The unilateral use of force by states in international law
The purpose of this study is an inquiry into the present state of customary international law on the use of armed force by individual States. It deals with the historical evolution of the law towards the current rule of the prohibition of the use of force, the content of this prohibition and the purported exceptions to it that are invoked in the practice of States as justifications of lawful resort to force. The present author does not deal with the use of force under the authority of competent organs of the United Nations and regional organisations, as well as questions of individual criminal responsibility for resort to armed force. The present author has adopted an analytical and empirical approach towards the phenomenon of the use of armed force by States. The study is based on an examination of the practice of individual States, both within and outside the framework of United Nations organs. More specifically it concentrates on the practice of States that perpetrated the use of force, the States that were the targets of this force and the reactions of third States (in the sense of not those directly involved) to instances of use of force. Moreover, the present author considers certain resolutions adopted by the Security Council and the General Assembly as part of the practice of States and evidence of opinio juris of this practice. By this it is meant that the adoption (or not) of resolutions, especially in the Security Council, is not insulated from statements by individual members of these U. N. organs. Hence, in the case of the Security Council the lack of condemnation is not automatically considered as approval of the action that is the object of debate at the Council, beyond and apart from the attitude of individual Members. At the same time the adoption of a resolution is treated as a projection of the position advocated by individual States, while account is taken of the voting pattern and dissent or reservations expressed upon adoption. The study of State practice is compared with the ruling of the International Court of Justice in the Nicaragua Case (Merits) (the issues of use of armed force dealt with by the Court) with the aim of proving that the restrictive interpretation of the law on the use of force upheld by the Court corresponds to the actual practice of States as a component of general customary law. The position of the law of the use of force rests on a twofold basis. First, the rule of the prohibition of resort to armed force that constitutes the foundation and the starting point of the legal regulation of unilateral resort to armed force, and secondly, the purported exceptions to the rule. It is undoubtedly the case that the legal force of the rule of non-use of armed violence is not diminished. The numerous resorts to armed force by individual States have been justified either on the basis of restrictive interpretation of the content of the prohibition itself or of the purported exceptions to it. In the subsequent sections it is shown that State practice does not admit a restrictive interpretation of components of the rule and is unanimous only with regard to one of the purported exceptions to it : the right of defensive action. With regard to other exceptions, there exists extreme controversy as to their existence and scope. The content of the prohibition of the use of force, the scope of the "universally admitted" exception of defensive action, and, finally, the controversial exceptions to the rule of non-use of force constitute the three main thematic issues that are dealt with in this study. Hence the structure of the present thesis reflects this contingency. The present study considers the evolution of the law on the regulation of the use of force as marked by continuity from the period of the League of Nations to the present, and it is divided in three parts. Part One deals with the rule of the prohibition of the use of armed force by individual States. It considers the historical evolution of the rule and focuses greatly on the important developments in the practice of States during the period of the League of Nations that culminated in the total prohibition of armed force as a result of the Conclusion of the Pact of Paris (1928) and the establishment of the United Nations Organisation (Chapter 1). The remainder of Part One deals with the content of the prohibition of the threat or use of force by focusing, mainly, on the practice of States in the period 1945 - 19913. The issues that are dealt with are related to the phenomena of indirect use of force by way of armed bands (Chapter 2); armed reprisals (Chapter 3); the concepts of threat of force (Chapter 4); economic coercion (Chapter 5); anti-colonial armed struggles in relation to the rule of non-use of force (Chapter 6); and territorial integrity and political independence as the object of forcible action. Part Two examines the historical evolution (Chapter 8) and the content of the right of self-defence (Chapters 9& 10), as the only universally accepted ground for lawful unilateral resort to armed force. Chapter 9 deals with the content of individual defensive action and Chapter 10 concerns the concept of collective self-defence. Finally, in Part Three the present author considers justifications for lawful resort to armed force that are surrounded by controversy: Namely, the use of force by States for the protection of the lives and property of nationals or under the doctrine of "humanitarian intervention" (Chapter 11) and the concept of military intervention on the basis of the consent of the State on whose territory military action is taking place (Chapter 12). By way of last word it must be pointed out that in this study the term "intervention" is considered as wider than the concept of "armed force" - the latter is included in the former but not vice-versa. A study of intervention necessarily includes, in this writer's view, instances of nonforcible State activity detailed consideration of which was beyond the scope of this thesis.