Has international law governing the use of force dramatically changed since 2001 - Essay Example

The charter terms use of force as a threat to the peace, a breach of the peace, or an act of aggression3. On the other hand, Article 2, paragraph 4 of the UN charter, prohibits use of force. It states that; all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations4. This is just an emphasis of the mission of UN Charter as contained in Article1 (1) ‘Maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace.

5’ the articles apply to all members and non-member state. Notwithstanding these provisions in the UN charter, there are two exceptions that allow use of force; Article 42 permits the council (and to member states) to take appropriate measures to restore peace and international security. It states that the council has power to take any action where non-forcible measures have proven to be inadequate. However, the authorization to use force must be given by the Security Council alone and not members to decide to apply force6.

The second exception is the general rule of using force for self-defense as stated in Article 51 of the UN Charter; ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security7. However, Article 51 is not the only authority that permits use of force; the Customary International law has historically allowed the use of force for self-defense.

The Customary International Law not only enforces Article 51 but also allows pre-emptive measures8. According to Wallenstein, “the customary right of self-defense is also accorded to States as a preventive measure, taken in ‘anticipation’ of an armed attack”9. The requirements giving rise to this customary right were enunciated in the widely cited Caroline incident, where in 1837, some British soldiers attacked an American boat; Caroline, set it on fire and the only justification the British gave was “for self-defense.

” Accepting this explanation, the then American Secretary of State Daniel Webster set out the basic elements of the right, stating that there should be a “necessity of self-defense, instant, overwhelming, leaving no choice of means and no moment for deliberation10” The UN Security Council Res 1368 recognizes that the right for self-defense can be used to respond to terrorist attacks. On the Armed Activities Case; ICJ recognizes that there could be armed attacks by non-state actors in the absence of an effective government authority.

However, where the act of aggression is committed by a non-state actor, the act of self-defense can only be justified if that act of aggression is attributed to that State. The attacks are justified as long as the state acts as soon as the attacks have occurred or the enemies have set security threatening messages11. The charter states clearly states that a nation can use self-defense when the enemy has attacked them, simply implying that there must be evidence of armed attack. Thus,