Prohibition of the Use of Force

According to Malcolm D. Evans in his authoritative work International Law (Oxford University
Press), the prohibition of the use of force under international law is a foundational principle
enshrined in the United Nations Charter and widely regarded as a norm of customary
international law. Evans outlines the scope and application of this prohibition with detailed legal
analysis rooted in treaty law, state practice, and judicial decisions.
Article 2(4) of the UN Charter is the cornerstone of the prohibition, stating 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 Nations.” Malcolm D. Evans emphasizes that this provision establishes a
general and comprehensive ban on the use of force, subject only to two narrow exceptions: the
right of self-defence under Article 51, and actions authorized by the Security Council under
Chapter VII of the Charter.
Evans notes that the scope of this prohibition extends beyond conventional warfare to include
any use of military or coercive force that threatens the sovereignty or political independence of
a state. This includes acts such as invasions, bombardments, blockades, and even some uses of
force by non-state actors if attributable to a state.
He also highlights that the International Court of Justice (ICJ), particularly in cases such as the
Nicaragua v. United States (1986) and the Advisory Opinion on the Legality of the Threat or Use
of Nuclear Weapons (1996), has reinforced the binding nature of this principle and clarified its
interpretation, including the requirement that any claim of self-defence must meet the criteria of
necessity and proportionality.
Evans discusses debates about emerging concepts such as humanitarian intervention and the
Responsibility to Protect (R2P), noting that while these reflect evolving state practice and
normative aspirations, they remain controversial and have not displaced the core prohibition
established by Article 2(4).
Overall, Malcolm D. Evans provides a clear legal exposition that affirms the centrality of the
prohibition on the use of force as a key element of the modern international legal order, while
recognizing ongoing debates about its limits and applications.

Necessity and Proportionality : Under international law, particularly as interpreted by scholars

such as Malcolm D. Evans and reflected in jurisprudence of the International Court of Justice (ICJ),
the principles of necessity and proportionality are fundamental criteria governing the lawful
exercise of self-defense. These principles serve as limits to the otherwise exceptional right of a
state to use force in response to an armed attack, as recognized in Article 51 of the United Nations
Charter.
Necessity refers to the requirement that force may only be used in self-defense when there are
no other peaceful means available to avert the threat or repel the attack. A state invoking the
right of self-defense must demonstrate that the use of force was the only viable means to address
the armed attack, and that diplomatic or other non-forceful options were not sufficient or timely.
In Military and Paramilitary Activities in and against Nicaragua (1986), the ICJ emphasized that
the existence of an actual armed attack is a prerequisite for invoking self-defense, thereby
excluding vague or speculative threats as grounds for military action.

Proportionality, on the other hand, requires that the scale, scope, and duration of the defensive
response must not exceed what is necessary to repel the attack and secure the state’s protection.
This does not imply strict equality of force but rather a reasonable correlation between the attack
suffered and the defensive measures taken. In the same Nicaragua case, the ICJ reaffirmed that
the proportionality requirement is a customary norm of international law that constrains
excessive or punitive uses of force under the guise of self-defense.
Evans highlights that these criteria are not merely political considerations but legal obligations
rooted in customary international law and treaty law. They are essential to distinguishing
legitimate self-defense from unlawful aggression. The emphasis on necessity and proportionality
is also present in other judicial forums and documents, including the UN General Assembly’s
resolutions and subsequent advisory opinions, such as the Advisory Opinion on the Legality of
the Threat or Use of Nuclear Weapons (1996), which reiterates that even if a state is lawfully
exercising self-defense, it must always act in accordance with the requirements of international
humanitarian law.

Armed Attack: Under international law, the concept of self-defense in response to an armed
attack is a recognized exception to the general prohibition on the use of force, as codified in Article
51 of the United Nations Charter. This article affirms that nothing shall impair the inherent right
of individual or collective self-defense if an armed attack occurs against a UN member state, until
the Security Council takes necessary action to maintain peace and security. The notion of “armed
attack” has been central to determining the legality of invoking self-defense. According to the
International Court of Justice (ICJ), particularly in its landmark ruling in the Nicaragua v. United
States case (1986), not every use of force constitutes an armed attack. The ICJ distinguished
between the gravest forms of force, which qualify as armed attacks, and lesser uses of force,
which may not justify self-defense under Article 51.
The Court defined an armed attack as including significant acts such as the sending of armed
bands or groups that engage in violence of such gravity that it equates to an actual attack by
regular armed forces. The response to an armed attack must meet two important criteria:
necessity and proportionality. This means that force must be used only when it is necessary to
repel the attack, and the scale and intensity of the response must not exceed what is required to
neutralize the threat. The principle of immediacy is also relevant, meaning the right of self-
defense should be exercised close in time to the attack and not long after.
Therefore, while self-defense against an armed attack is a lawful recourse, it is tightly
circumscribed by legal conditions that aim to preserve international peace and prevent the
misuse of force under the guise of self-defense.
The Use of Force in Protection of Nations: The use of force in the protection of nationals abroad
is a controversial and unsettled area of international law. While the general prohibition on the
use of force under Article 2(4) of the UN Charter remains firm, some states have claimed a right
to use force extraterritorially to protect their nationals when they are in immediate danger. This
practice is sometimes framed as a form of self-defense under Article 51 of the Charter, though it
lacks universal acceptance.

For a state to justify the use of force to protect its nationals, it typically argues that the host state
is unwilling or unable to protect them, that there is an imminent threat to their lives, and that the
action taken is necessary and proportionate. However, Evans notes that these justifications are
contentious, as they can be easily abused and may undermine the territorial sovereignty of the
host state. Furthermore, the requirement of immediacy and the exhaustion of peaceful means
are often difficult to clearly demonstrate.
In sum, while the protection of nationals is sometimes invoked as a form of self-defense, it
occupies a gray area in international law. It is not expressly authorized by the UN Charter and is
not supported as a general principle in customary international law. Evans emphasizes that any
use of force in such cases must be scrutinized carefully, as it carries significant risks of escalating
conflict and eroding the rule-based order.
Anticipatory or Pre-Emptive Self Defence: Anticipatory or pre-emptive self-defense refers to the
use of force by a state in anticipation of an imminent armed attack. Under traditional international
law, particularly as interpreted by the International Court of Justice and scholars like Malcolm D.
Evans, this concept remains highly controversial and is not generally accepted as lawful unless
the threat is immediate, overwhelming, and leaves no choice of means or moment for
deliberation. This restrictive interpretation is rooted in the Caroline case of 1837, which
established that anticipatory self-defense must meet the criteria of necessity and proportionality.
The UN Charter, specifically Article 51, permits self-defense only “if an armed attack occurs,”
which many scholars and legal authorities, including Evans, interpret as excluding pre-emptive
action. However, some states argue for a broader view, particularly in response to modern threats
such as terrorism or weapons of mass destruction, but this view lacks widespread acceptance in
customary international law.
A ‘Bush Doctrine' of Pre-Emptive Self Defence? The “Bush Doctrine” refers to a strategic policy
adopted by the United States under President George W. Bush, particularly after the September
11, 2001 attacks. Central to this doctrine is the concept of pre-emptive self-defense, which asserts
the right of a state to use force preemptively against perceived threats, especially from non-state
actors or states suspected of harboring weapons of mass destruction. This approach diverges
from the traditional interpretation of international law, particularly Article 51 of the UN Charter,
which permits self-defense only in response to an actual armed attack.

The Bush Doctrine's broader claim to preventive war—acting against potential future threats
rather than imminent ones—therefore stands in tension with established international law. Most
legal scholars and states reject it as incompatible with the UN Charter framework, which is
designed to limit unilateral uses of force and preserve international peace and security.

Collective Self-defence : Collective self-defense under international law refers to the right of
states to defend not only themselves but also other states when they are victims of an armed
attack. This principle is expressly recognized in Article 51 of the United Nations Charter, which
affirms the inherent right of individual or collective self-defense if an armed attack occurs against
a UN member, until the Security Council takes measures to maintain peace and security.
According to Malcolm D. Evans in his work International Law, collective self-defense is not an
open-ended justification for the use of force but is bound by strict legal conditions.
For a state to lawfully invoke the right of collective self-defense, certain criteria must be satisfied.
First, there must be an actual armed attack against a state. Second, the state under attack must
declare itself as such and request assistance. Without an explicit request, the use of force by
another state on its behalf cannot be justified as collective self-defense. Third, the response must
adhere to the principles of necessity and proportionality, which are requirements of customary
international law, reaffirmed in the jurisprudence of the International Court of Justice, notably in
the Nicaragua v. United States case (1986).
Evans notes that collective self-defense is distinguished from collective security, the latter being
a function of the United Nations Security Council under Chapter VII of the Charter. While
collective self-defense is a decentralized, reactive right exercised by states in response to
aggression, collective security involves an organized, institutional response to threats to
international peace.
Furthermore, Evans addresses controversies in practice, particularly the use of collective self-
defense to justify interventions in conflicts where the existence of an armed attack is disputed or
where non-state actors are involved. He emphasizes that such interpretations risk expanding the
exception beyond its legal limits and undermining the general prohibition on the use of force.
Therefore, while collective self-defense remains a legitimate legal doctrine, its application is
subject to careful scrutiny and must be grounded in the strict requirements laid out in
international law.

UN Charter Framework : The UN Charter provides the foundational legal framework governing
international peace and security, including the regulation of the use of force by states. It was
adopted in 1945 and is a binding treaty for all UN member states, reflecting both treaty law and
customary international law principles.
Under the UN Charter, Article 2(4) sets a general prohibition on the threat or use of force in
international relations. It states that all members must refrain 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 Nations. This establishes a strong presumption
against the use of force and is regarded as a cornerstone of the modern international legal order.

However, the Charter also provides for two main exceptions to this prohibition. The first is the
right of individual or collective self-defense, enshrined in Article 51. It allows a state to use force
in response to an armed attack until the Security Council takes measures to maintain international
peace and security. Any use of force in self-defense must be reported to the Security Council
immediately and must conform to the principles of necessity and proportionality.
The second exception is the use of force authorized by the UN Security Council under Chapter VII
of the Charter. Articles 39 to 42 give the Security Council the authority to determine the existence
of any threat to the peace, breach of the peace, or act of aggression and to take military or non-
military measures to restore international peace and security. Article 42 allows the Council to
authorize the use of force if measures under Article 41 (such as sanctions) prove inadequate.
The Charter also emphasizes the peaceful settlement of disputes. Article 2(3) requires members
to settle their international disputes by peaceful means, and Chapter VI outlines procedures for
negotiation, mediation, arbitration, and judicial settlement. The Charter thus prioritizes
diplomacy and collective action through the Security Council over unilateral uses of force.
Overall, the UN Charter framework aims to restrict the unilateral use of force by states while
providing a system of collective security and lawful self-defense to address threats and breaches
of peace.

Intervention : In international law, intervention refers to the interference by one state in the
internal or external affairs of another state, particularly through the use of force or coercion. The
United Nations Charter and customary international law place strict limitations on such actions
to protect state sovereignty and maintain international peace and security.
Under the UN Charter, Article 2(7) explicitly prohibits the United Nations from intervening in
matters that are essentially within the domestic jurisdiction of any state. This reflects the broader
principle of non-intervention in international law, which forbids states from coercively interfering
in the internal affairs of other sovereign states, especially in political, economic, or military
matters.
The prohibition on intervention is closely linked to the general ban on the use of force found in
Article 2(4) of the Charter. Interventions involving armed force, unless authorized by the Security
Council under Chapter VII or justified as self-defense under Article 51, are considered unlawful.
Malcolm D. Evans in International Law emphasizes that the legal principle of non-intervention
aims to uphold the sovereign equality of states and prevent domination by more powerful states.

There are limited and controversial exceptions to this rule. Humanitarian intervention, which
involves the use of force to stop mass atrocities without Security Council authorization, has been
debated in legal scholarship and practice but lacks a clear basis in international law. The
Responsibility to Protect (R2P) doctrine, endorsed by the UN in 2005, shifts the focus from a right
to intervene to a responsibility of the international community to act—ideally through the
Security Council—when a state fails to protect its population from genocide, war crimes, ethnic
cleansing, and crimes against humanity.
Another debated form is intervention by invitation, where a state requests military assistance
from another state to address internal conflict or unrest. This is generally considered lawful if the
invitation comes from a legitimate government and does not breach other international
obligations.
Overall, while intervention remains a critical and evolving issue in international law, the UN
Charter framework heavily favors non-intervention, with only narrow and carefully regulated
exceptions to prevent abuse and preserve international order.