THE UNIVERSITY OF MALAWI
SCHOOL OF LAW, ECONOMICS, AND GOVERNANCE.
DEPARTMENT OF PUBLIC LAW
TO : MR. MANDA
FROM : LAW/ME/15/20
COURSE TITLE : PUBLIC INTERNATIONAL LAW
COURSE CODE : LLB 224
TASK : SECURITY COUNCIL’S ROLE IN PROHBITION OF
USE OF FORCE
DUE DATE : 29TH MARCH, 2024
INTRODUCTION
The United Nations Charter was established in 1945 following the Second World War, it
outlines the fundamental principles governing relations between states, among them being
restrictions on the threat or use of force. The Dumbarton Oaks proposals leading up to the
Charter's drafting envisaged the critical need for an executive organ of limited membership
to be entrusted with primary responsibility for maintaining international peace and security. 1
This vision crystallised into the formation of the UN Security Council. This essay analyses the
Security Council role in prohibition of the use of force as according to the UN Charter with
the aid of contemporary examples.
PROHIBITION AGAINST THE USE OF FORCE
According to the broad interpretation, Article 2(4) of the UN Charter it contains a blanket
prohibition. States cannot use force, except in self-defence. Hence, self-defence and
collective security are the only instances of permissible use of force. 2 According to the
narrow interpretation, Article 2(4) contains a qualified prohibition. Force, in order to be
prohibited, must infringe the territorial integrity or the political independence of a foreign
State or be contrary to the purposes of the United Nations. As a rule, scholars share the
theory according to which Article 2(4) contains a general ban on the use of force. This view is
also supported by the practice of States, which justifies the recourse to force as an exception
to the general prohibition rather than a conduct permitted under Article 2(4).
The Meaning of ‘Force’ and ‘Threat of Force’
Article 2(4) is the cornerstone. It prohibits UN members from threatening or using force
against another state's territorial integrity or political independence. Essentially, the
provision prohibits any acts of aggression. Any use of force by a State outside its own
borders is likely to be inconsistent with the maintenance of international peace and security
or of promoting friendly relations among nations.
1
SWB Templeman & RM Maclean, Public International Law: A textbook (Old Bailey Press, 2000)
2
Article 50 of the UN Charter
The UN Charter refers to the concept of ‘force’, as opposed to ‘war’. 3 This is significant
because force encompasses a much broader range of conduct, and there is no requirement
for a state to make a formal declaration of war for it to be in breach of the prohibitions on
the use of force. Although the wording of the prohibition of the use of force contained in
Article 2(4) of the U.N. Charter seems quite clear on first glance, its scope and content has
neither in state practice nor in scientific writings yet been defined beyond doubt. First, this is
because the prohibition is part of a system of provisions concerning peace making and
peacekeeping, such as Articles 39, 51, and 53 of the U.N. Charter, which rely on different
wordings: “threat to the peace,” “act of aggression,” or “armed attack.” 4 Second, this system
lays down restrictions on the right of self-defence that have triggered controversy not only
about the scope of that right but also about the notion of “force.” 5 The interpretation may
rely on the judgments of the ICJ and on the binding resolutions of the S.C., such as the
Security Council resolution 2118 of (2013) in which the use of chemical weapons in the
context of the civil war unfolding in the Syrian Arab Republic led the Council to determine, in
resolution, that the use of chemical weapons both in that country and elsewhere constituted
a threat to international peace.6
THE ROLE OF THE UN SECURITY COUNCIL
Having established what force is, the Security Council plays a pivotal role in implementing
the prohibition against the use of force enshrined in the UN Charter. Article 2(4) explicitly
requires 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." Under
Chapter VII, the Security Council is granted the primary responsibility and authority to
determine threats to peace and acts of aggression. In such cases, the Council can take
enforcement measures, including authorizing military intervention, if necessary, as a last
resort to maintain or restore international peace and security.
The Security Council’s primary function of maintaining international peace and security is
exercised through the pacific settlement of such international disputes as are likely to
endanger international peace and security and the taking of enforcement action. The legal
3
Charter of the United Nations, Art. 2(4)
4
L. M. Goodrich, E. Hambro and A. P. Simons, “Charter of the United Nations, Commentary and Documents,”
3rd Revised Edition, Columbia University Press, New York, 1969.
5
Ibid
6
Security Council resolution 2118 of (2013)
framework for the UN Security Council's powers and responsibilities regarding the use of
force is primarily established under Chapter V, Chapter VI, and Chapter VII of the UN Charter.
Powers of the Security Council
Chapter VII (Articles 39-51) is the key chapter granting the Security Council enforcement
powers. As the organ having the primary responsibility for the maintenance of international
peace and security, the United Nations Security Council has the power under Article 39 of
the Charter to determine the existence of any such threat, breach or act of aggression. This
serves as the critical trigger for allowing enforcement action.
Article 1 of the Charter lists as one of the Purposes of the United Nations the suppression of
acts of aggression, therefore if a state uses aggression this would be a breach of Article 2(4) 7.
What constitutes aggression is a question for the security council to determine in
accordance with Article 39. In order to overcome this difficulty in deciding whether a
particular use of force constitutes a breach of the Charter, the General Assembly in adopted
a Resolution on the definition of aggression. The Resolution defined Aggression as the use of
armed force by a State against another state in any other manner that is inconsistent with
the Charter of the United Nations.8
The prohibition of force is now regarded as the norm rather than the exception. The charter
restriction has, in addition, been reinforced by a number of resolutions of the General
Assembly which are widely regarded as reflecting the position at customary law. The General
Assembly Resolution 21319 provides that armed intervention and all other forms of
interference are to be condemned and General Assembly Resolution 262510 on General
Principles of International Law, provides that every state has a duty to refrain from the
threat or use of force and that this would constitute to a violation of international law.
This prohibition has further been reinforced by decisions of the General Assembly and
Security Council condemning specific acts of force as illegal such as Security Council
Resolution 2056 (2012) which aimed to address the political crisis in Mali in 2012 as a
military coup d'état overthrew the Malian government in March 2012. This created a power
7
UN Charter 1945
8
The General Assembly Resolution 3314, 1974
9
General Assembly Resolution 2131 (xx) of 21 December 1965
10
General Assembly Resolution 2625 (1970
vacuum and emboldened rebel groups in the north. The UN Security Council unanimously
adopted this resolution on July 5, 2012 which called for respect for constitutional order
which led to the return to civilian rule and adherence to Mali's constitution. 11
Nevertheless, there remains some room for doubt as to whether this norm should be
considered as all-embracing as suggested. In particular, doubt has been expressed as to
whether the prohibition on the use of force would apply in cases of a denial of self-
determination or a manifest of abuse of human rights. this doubt is reinforced by examples
such as the Indian invasion of Goa in 1961 in which India Justified its use of force on the
grounds of facilitating self-determination. The numerous examples of States disregarding the
prohibition on the use of force also undermines the normative quality of the law.
Provisional measures in Article 39 and 40 in the UN Charter
For example, the situation in North Korea (2006-Present). North Korea's nuclear weapons
program has been a major concern for the Security Council. The Security Council has used
Article 39 to determine these developments as a threat to international peace and security
and have passed numerous resolutions imposing sanctions on North Korea in an attempt to
curb the program.12 Such provisional measures may provide a basis for the settlement of the
dispute without the need for further action by the security council. These provisional
measures do not prejudice the rights of the parties. They are simply a means of preventing
an aggravation of the situation.
By Resolution 2582 (2021) of 29 June 2021, the Council, condemning all acts of violence as
well as violations of human rights and international humanitarian law, in particular the
Gatumba massacre, urged all the Governments and parties concerned in the region to
denounce the use of and incitement to violence, to condemn unequivocally violations of
human rights and international humanitarian law, and actively to cooperate with the United
Nations Operation in Burundi and the United Nations Organization Mission in the
Democratic Republic of the Congo (MONUC) and with efforts of States aimed at ending
impunity.13 The Council also called upon the Governments of the Democratic Republic of the
11
Security Council resolution 2056 (2012) [on the situation in Mali], adopted by the Security Council at its 6798th meeting,
on 5 July 2012.
12
https://press.un.org/en/content/security-council/press-release
13
Security Council Resolution 2582 (2021), adopted by the Security Council at its 8807th meeting, on 29 June
2021.
Congo and Rwanda to cooperate unreservedly with the Government of Burundi to ensure
that the investigation into the Gatumba massacre was completed and that those responsible
were brought to justice.
One question arising under Article 40 is whether the adoption of a resolution providing for
provisional measures creates an obligation upon the parties to whom the resolution is
directed. In this respect it is generally agreed that the words “call upon” when used in Article
40 means ‘order’ and should be read in conjunction with Article 25. 14 For this reason, to
avoid having to take enforcement action against states, the powers under Article 40 are
rarely used by the Security Council and most resolutions passed are phrased as
recommendations and not orders.15 There is no measure under Chapter VI (Pacific
Settlement of disputes) corresponding to Article 40. Nevertheless, the absence of such
authorisation has not prevented the Security Council from calling upon parties to cease
conduct likely to aggravate a dispute.
Enforcement action under Article 41 not involving the use of armed force
The situation in Iran (2020-Present) it concerns Iran's nuclear program which led to the
Security Council to pass several resolutions under Article 41. The Security Council Resolution
2522 (2020), stressed that the proliferation of nuclear and other weapons of mass
destruction, along with their means of delivery, was a clear and present global challenge
posing a great threat and should, therefore, be handled with “firm determination”. To add
on, there was another Security Council resolution 1747 (2007) which demanded Iran to
suspend its uranium enrichment activities and imposed economic sanctions such as
restrictions on trade, investment, and financial transactions with Iran and also the supplying
of weapons and military equipment to Iran. 16 The representative of the United Kingdom
stated that the Council had a responsibility to respond to what he labelled as a threat to
international peace and security. In contrast, the representative of Pakistan affirmed that
there was “no justification” for the adoption of the draft resolution under Chapter VII of the
Charter, because the threat of proliferation of weapons of mass destruction by nonstate
14
L. M. Goodrich, E. Hambro and A. P. Simons, “Charter of the United Nations, Commentary and Documents,” 3rd Revised
Edition, Columbia University Press, New York, 1969.
15
SWB Templeman & RM Maclean, Public International Law: A textbook (Old Bailey Press, 2000)
16
The Charter of the United Nations (3rd Edition): A Commentary, Volume I
actors, while real, was not imminent, and thus did not pose a threat to peace. 17 By
implementing these measures, the Security Council aimed to pressure Iran to halt its nuclear
program and pursue a diplomatic solution.
In the above cases the measures imposed by the Security Council have failed to have the
effect they intended. The inability to achieve consensus within the Security Council for
comprehensive measures enforcing action taken under Article 41 has to a very large extent
contributed to the perceived failure of the United Nations system in maintaining peace and
security.
Enforcement action under Article 42 involving the use of Armed forces
The forces used under Article 42 can comprise of national armed forces made available to
the UN under special agreements. Article 48 outlines that the Council's decisions for action
shall be carried out by all UN members directly and through their action in the appropriate
international agencies. The article entirely prohibits the use or threat of armed force against
another State except in self-defence (Article 51) or in execution of collective measures
authorised by the Security Council or General Assembly. The force prohibited is armed force.
The general view is that the Article does not preclude a State from taking Unilateral
economic and other reprisals not involving threat or use of armed force, in retaliation for a
breach of international law by another State.18
EXCEPTION TO THE RULE: SELF-DEFENCE AND COLLECTIVE SELF-DEFENCE
The most significant exception to the prohibition on the use of force is the right to self-
defence. It has long been recognized under international law that if an armed attack occurs
against a state, it is the inherent right of that state to use force to defend itself.19
Unlike the covenant of the league, the right of self-defence under the Charter system is not
left outside the collective system for maintaining peace. Self-defence is recognised to be a
necessary to the fundamental principle in Article 2(4) that resort to force by an individual
State is illegal without the prior authority of the United Nations. However, the exercise of
the right of self-defence is made subject to the control of the international community. The
17
Ibid
18
SWB Templeman & RM Maclean, Public International Law: A textbook (Old Bailey Press, 2000)
19
Malcolm Shaw, International Law (Cambridge: Cambridge University Press, 2008, 6th edn), 1131
fact that resort of force in self-defence without prior recourse to the security council and,
therefore, no single permanent member may veto the action being initiated. 20 Moreover,
once the action in self-defence is being taken it requires an affirmative decision from the
security council to order the cessation of that action. Therefore, action in self-defence under
article 51 cannot be barred by the veto and cannot be terminated except by the unanimous
vote of the Permanent members. The inherent right of self-defence, as it existed in
international law before the Charter, was a general right of protection against a forcible
threat to a State’s legal rights. Article 51, however, speaks only of an inherent right of self-
defence if an armed attack occurs.
In the Nicaragua Case21 the ICJ accepted that the word inherent in Article 51 was reference
to customary law. The court declined, however, to rule one way or another on the question
of anticipatory self-defence as this was not required by the case. Before taking action in
anticipatory self-defence the charter of the United Nations imposes the obligation upon
States to settle their disputes by peaceful means, and empowers the Security Council to take
the steps necessary to ensure the maintenance of international peace and security.
The Council made reference to Article 51 of the Charter in one decision. In resolution 2117
(2013),22 noting the significance of small arms and light weapons as the most frequently
used weapons in the majority of recent armed conflicts, the Council emphasized that the
right of individual and collective self-defence recognized in Article 51 of the Charter should
be “fully taken into account.23
COLLECTIVE SELF-DEFENCE
Article 51 of the Charter refers to individual or collective self-defence, Professor Bowett a
published jurist has argued that this right of collective self-defence is merely a combination
of individual rights of self-defence, ‘states may exercise collectively a right which any of them
might have exercised individually.24 Thus, Bowett argues that no state may defend another
state unless each state has legally exercised a right of individual self-defence in the same
20
Brownlie, Ian. Brownlie's Principles of Public International Law. Oxford :Oxford University Press, 2012
21
Military and Paramilitary Activities in and against Nicaragua, Nicaragua v United States, Judgment on Jurisdiction and
Admissibility, ICJ GL No 70, [1984] ICJ Rep 392, ICGJ 111 (ICJ 1984), 26th November 1984
22
Resolution 2117 on Small Arms and Light Weapons
23
Resolution 2117 (2013), first and third preambular paragraphs
24
D. W. Bowett Self-Defence in International Law (1958)..Cambridge University Press
circumstances because Article 4(2) of the Charter is an attempt to limit conflicts and issues
of security should be handled by the Security Council.
However, state practice and the dicta of the ICJ does not support Bowett’s view. Brownlie for
example argues that State practice shows that if any state asks for assistance, other states
may go and help that state to defend itself 25. For example, the USA in justifying its
participation in the Vietnam conflict or more recently sending of troops to Saudi Arabia 26 as
it has been argued that international law permitted a right of collective self-defence even
where one party in this case USA did not have an individual right of self-defence.
Security Council’s Challenges and Limitations
However, there are some cases where the UN Security Council has failed to take action or its
actions were ineffective in preventing or resolving conflicts such as, the on-going Syrian Civil
War despite the violence and human rights violations, the Security Council has been
deadlocked due to the veto power exercised by Russia and China by preventing any decisive
action or intervention to stop the conflict.27
In addition, the Darfur conflict in which the Security Council has been criticised for its slow
and inadequate response to the crisis in Darfur and Sudan, where hundreds of thousands of
civilians are being killed and displaced. The Council's resolutions of peacekeeping force have
been insufficient to protect civilians and prevent further atrocities.28
These cases illustrate the limitations of the Security Council's ability to respond to conflicts
regardless of all the resources available to them due to political divisions among permanent
members, lack of consensus, and the prioritisation of national interests as seen in Syria over
collective security concerns.
25
Brownlie, Ian. Brownlie's Principles of Public International Law. Oxford: Oxford University Press, 2012.
26
Ibid
27
https://press.un.org/en/2024/sc15595.doc.htm
28
"Darfur rebel groups form two movements in Juba". Sudan Tribune article. 22 November 2007
