Name: Nakibinge Nathan

Registration number: 18/U/13787/EVE

Student number: 1800713787

Course: International law

The International Court of Justice (ICJ), established by The Charter of the United Nations is the principal

judicial organ of the United Nations. 1 Accordingly, in exercising its jurisdiction, the court is mandated to

adjudicate over international disputes and facilitate their peaceful resolution. In this regard, the ICJ is a

contrivance that helps to maintain international peace as Sir Hersch Lauterpart remarks in his

“Development of International Law by the International Court” that, “It would appear that the primary

purpose of the International Court . . . lies in its function as one of the instruments for securing the peace in

so far as this aim can be achieved through law. ”2 This goes to show the indispensable role played by the

ICJ in maintaining international peace and security. This it does in mainly three ways which I propose to

adopt, that is, indirectly through settling disputes, the aggravation of which may lead to international tension

and by developing rules of international law, which in turn provides a basis for peaceful relations among

States, and by combining these two ways to settle disputes concerning the use of force in which peace is

not only threatened but has also been breached, 3 a central aspect to the following presentation.

For the states recognition of the devastating effects of war, the law on the use of force became the

centerpiece of the post-world war (1945) normative and legal order as enshrined in two main sources: The

Charter of the United Nations and customary International Law. The charter constitutes three main

provisions governing the use of force, to wit, the prohibition of the use of force in article 2(4), the

preservation of the right to individual or collective self-defense in article 51 and thirdly article 42

empowering The United Nations Security Council to authorize the use of force. Suffice it to add that all

these are done pursuant to the overarching purpose of the United Nations to prevent and remove threats to

peace, suppress acts of aggression or other breaches of peace, in conformity with the principles of justice

1
Statute of the International Court of Justice
2
Dapo Akande, “The Contribution of The International Court Of Justice To The Law Of Use Of Force.” EJIL:TALK! Nov 18, 2011.
https://www.ejiltalk.org/the-contribution-of-the-international-court-of-justice-and-the-law-of-the-use-of-force/ [accessed November
1, 2021]
3
Akande, op. cit.,
and international law, adjustment or settlement of international disputes or situations which might lead to a

breach of the peace.4

The consistency of the International Court’s decisions, and their consistency with the Charter and

customary international law may be analyzed through the lens of its contribution to the development on the

law on the use of force mainly through its pronouncement on; the prohibition of use of force, the sources of

international law on the use of force, elucidating the relationship between the charter and customary

international law and the law on self-defense as is ascertainable through the various disputes that have

been brought before it.

Article 2(4) of the Charter embodies the general rule prohibiting the use of force to the effect 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. Indeed this article has been described as the cornerstone of the UN Charter as it bans the

unilateral use or threat of use of force save in certain limited circumstances 5 as will be discussed.

The court first case on the use of force was the Corfu Channel case.6 This arose out of the mining of the

Corfu Channel in Albanian territorial waters which had affected the British navy, and the latter’s

minesweeping operation without Albania’s consent contending that it was urgent and no consent was

required. Rejecting this contention it was held inter alia that, “ The court can only regard the alleged right of

intervention as a manifestation of a policy of force as has in the past given rise to most serious abuses and

as such cannot, whatever be the present defects in international organisation find a place in international

law…”7 accordingly holding the United Kingdom liable for violation of Albania’s sovereignty.

4
Charter of the United Nations, op. cit., Article 1(1)
5
James Crawford; Ian Brownlie, “Brownlie’s Principles of Public International Law” (Oxford, United Kingdom: Oxford University
Press, 2012), p. 1383 available at https://b-ok.africa/book/3524894/0a79cd
6
[1949] ICJ Rep, 4
7
Ibid p. 35
Notably, the court did not make outright reference to Article 2(4) of the charter but nevertheless, implicitly

upheld the prohibition of use of force thereunder. This foreshadowed the strict approach 8 to the prohibition

of use on the use force under the charter effected in later cases for which the court further rejected UK’s

claim to have acted on behalf of the international community in its forcible intervention and the argument for

a narrow interpretation of the prohibition of the use of force as codified in in article 2(4) of the UN Charter,

to allow the use of force which did not aim to overthrow a government or cease a state’s territory.

It appears that in strictly interpreting article 2 the International Court’s reasoning was also compounded by

customary principle of non-intervention and state sovereignty barring outside interference by another state

into the affairs of another. Later, in the Nicaragua case,9 the international court similarly considered non-

intervention part and parcel of customary international law, in which regard it reiterated its ruling in the

Corfu Channel Case that, “Between independent states, respect for territorial sovereignty is an essential

foundation of international relations”10 with the effect that forceful intervention was a manifestation of a

policy of use of force against another state prohibited under article 2(4).

In addition, the court considered the question whether customary international law and the provisions of the

charter were divergent to the extent that reliance on former would be ineffectual, the court did not consider

this to be the case and held that “the essential consideration is that both the charter and customary

international law flow from a common fundamental principle outlawing the use of force. ”11

Likewise, in DRC V Uganda,12 the international court reasoned that the unlawful military intervention by

Uganda was of such a magnitude and duration that the Court considered it to be a grave violation of the

prohibition on the use of force expressed in Article 2(4) of the Charter, that Uganda had violated the

principle of non-use of force in international relations and the principle of non-intervention.

8
Christine Gray, “The International Court Of Justice and the Use of Force” in “The Development of International Law by The International Court
of Justice” by Christian J Tams, James Sloan available at https://b-ok.africa/book/2835006/001c44 [pdf] page 238
9
[1986] ICJ Rep, 14 at p. 96 para. 202
10
Op. cit., p. 35
11
Nicaragua (merits) (n 9) case para.181
12
[2005] ICJ Rep 168 para. 165, 345
Similarly, in the Oil Platforms Case.13 Iran brought an action against the USA for its use of force against

Iranian oil platforms; the USA claimed that it was acting in self-defense against Iranian missile and mine

attacks on its shipping, in particular for the attacks on the US-flagged vessels. The USA justified its use of

force as measures ‘necessary to protect its essential security interests’ The issue was whether the US’

recourse to the use of force was consistent with international law on the use of force and self-defense. The

Court reasoned that even a treaty provision protecting national security interests could not have been

intended to sanction the use of force inconsistently with relevant international law. The Court proceeded to

find that the US had exceeded the boundaries of international law on the use of force.

The effect of all these decisions is that, subject to the UN Charter and customary international law, any use

of force envisaged under article 2(4) of the charter is strictly prohibited hence, a claim that the court’s

decisions have been inconsistent with each other and with the charter and customary international law is

unfounded.

Important exceptions to article 2(4) exist with regard to self-defense or collective self-defense and in

collective measures taken by the United Nations. Again, the court has been consistent in its decisions, the

charter and customary international law.

Article 51 of the charter preserves the inherent right of individual or collective self-defense by states aimed

to repulse an armed attack against a member of the UN, until the Security Council has taken measures to

avert the threat to the international peace and security. The language of article 51 points to a pre-existing

right of self-defense in case of an armed attack in customary international law only codified under the

charter.

The customary nature of the right to self defence has been confirmed in the Nicaragua case14 as the

international court observed inter alia that “Article 51 of the charter is only meaningful on the basis that

13
[2003] ICJ Rep 161
14
Nicaragua (merits) (n 9) paras. 176, 193
there is a ‘natural’ or ‘inherent’ right of self-defense and it is hard to see how this can be other than of a

customary nature even if its present content has been confirmed and influenced by the charter ” and also

that “with regard to the existence of this right,… the language of Article 51 of the United Nations Charter,

the inherent right, which any State possesses in the event of an armed attack, covers both collective and

individual self-defence. Thus, the Charter itself testifies to the existence of the right of collective self-

defence in customary international law.”

Suffice to add, thus far the court’s decision is consistent with customary international law and the provisions

of the UN Charter.

The traditional definition of the right to self defence occurs in the famous Caroline case which originated out

of a dispute between the British and US government regarding the destruction of an American vessel by

the former’s subjects for transporting munitions and groups of Americans who carried out raids in the

Canadian territory. The US government declared that this constituted an attack on American territory to

which the British government claimed a right to self-defence. In the ensuing diplomatic correspondence US

Secretary Daniel Webster emphasized that for self defence to be lawful, the British Government had to

prove necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for

deliberation and that assuming such a necessity existed at the time, the act justified by the necessity of

self-defence, must be limited by that necessity, and kept clearly within it. 15 These principles were accepted

by the British Government at the time and are accepted as part of customary international law.

By necessary implication therefore, only an ‘armed attack’ as envisaged under the charter will give rise to

necessity of self-defence, instant and overwhelming, leaving no choice of means and no moment for

deliberation. This has perhaps been the most controversial and crucial aspect in all the cases surrounding

the legitimacy of use of force in self-defense. Nevertheless the International Courts decisions have been

consistent with each other and all the same consistent with the provisions of the Charter and customary
15
Webster and Fox , 1857
international law for in all these cases it was held that there was no such armed attack to warrant the use of

force in self-defence thereby breaching the dictates of article 2(4) prohibiting the unlawful use of force.

Nicaragua case16 the question was whether Nicaragua had committed armed attacks against El Salvador,

Costa Rica, and Honduras that would justify the use of force by the USA in collective self-defence. The

USA did not succeed in showing that Nicaragua was responsible for armed attacks against El Salvador,

though there was some evidence of its involvement in the supply of arms to groups opposing the

Government of El Salvador. Three key sub-issues arose, whether attacks by irregular armed forces

constituted an armed attack by a state thereby justifying the use of force in self-defence. The question was

answered in the affirmative pro tanto “there was a sending by or on behalf of a State of armed bands . . .

which carry out acts of armed force against another states of such gravity as to amount to . . . an actual

armed attack conducted by regular forces, or its substantial involvement therein.”

Secondly, what acts constituted an armed attack? The Court emphatically held that the US claim was

unfounded in absence of an armed attack and accordingly supply of arms to the opposition by Nicaragua in

another state did not constitute an armed attack in El Salvador. Similarly in its pleadings in DRC v

Uganda,17 Uganda directly challenged this view. It tried to persuade the Court that the wider views of

Judges Schwebel and Jennings in Nicaragua on the meaning of ‘armed attack’ were to be preferred.

Uganda argued that the provision of logistical support to armed bands with knowledge of their objectives

could constitute an armed attack (as opposed to just unlawful intervention), but it did not offer any legal

argument to support this claim, and it was not accepted by the Court. 18

Thirdly, was there a gravity requirement? The Court in Nicaragua stated that “it will be necessary to

distinguish the gravest forms of the use of force (those constituting an armed attack) from other less grave

16
Nicaragua (merits) (n 9) para. 195
17
DRC v Uganda (n 12)
18
Gray op. cit., p. 252
forms.”19 The Court referred to this with regard to its finding that the supply of arms did not amount to an

armed attack. The court has repeated its commitment to the gravity requirement in the Oil Platforms case

where it held that in order to justify its attacks on the Iranian oil platforms the USA had to show that the

attacks upon its vessels qualified as ‘armed attacks’ within Article 51 and as understood in customary

international law. It relied on Nicaragua in holding that it was necessary to distinguish ‘the most grave

forms’ of the use of force (those constituting armed attack) from other less grave forms. Therefore, the

missile attack on the US-flagged tanker, the Sea Isle City, did not amount to an armed attack justifying use

of force, blowing up Iran’s oil platforms purportedly in self defence.

Necessity and proportionality: Notably the Charter does not deal with all aspects of self-defence including

the aforementioned aspects but the ICJ has consistently affirmed that these aspects are part of customary

international law. In Nicaragua, the court implicitly refers to a specific rule whereby self-defense would

warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule

well established in customary international law .20 This is confirmed in the Caroline case21 cited earlier.

Accordingly mining certain Nicaraguan ports, attacking naval bases, oil installations and financing the

insurgent Contras in the name of self defence against Nicaragua’s logistical support to opposition forces in

El Salvador, which continued long after the presumed attack could be contemplated, fell short of this criteria

of necessity and proportionality.

In Oil Platforms case, the Court the court re-affirmed this position citing Nuclear weapons case and the

Nicaragua case that the conditions precedent to the exercise of self-defence were well settled as the court

had previously held respectively that, the submission of the exercise of the right of self-defence to the

conditions of necessity and proportionality was a rule of customary international law as was restricting self-

19
Nicaragua (merits)(n 9) Para 191
20
Nicaragua (merits)(n 9) para 176
21
Secretary Daniel Webster, “nothing unreasonable or excessive since the act, justified by necessity of self-defense must be
limited by that necessity and kept clearly within it”
defence to only measures proportional to the armed attack and necessary to respond to it. Accordingly the

Court was not satisfied that the attacks on the platforms were necessary to respond to these incidents. 22

An important observation with regard to the two criteria is that court has considered the nature of the

targets a weighty matter in determining whether the afore-mentioned criteria were met although this was

rather implicit in Nicaragua than in the Oil Platforms Case.

Finally in DRC v Uganda the Court in disposing of the matter, had rejected Uganda’s claim to be acting in

self-defence as there was no armed attack by the DRC. However, it further observed that the taking of

airports and towns many hundreds of kilometers from Uganda’s border did not seem proportionate to the

series of trans-border attacks it claimed had given rise to the right of self-defence, or necessary to that

end.23 From the reading of these cases, the only prudent conclusion is that the Courts decision have been

consistent with each other as well as with the rules of customary international law and the Charter and a

claim to the contrary is unsound.

Collective self defence: The right of collective defence was pivotal in the Nicaragua case24 wherein USA

relied on it to justify its use of force against Nicaragua. The court resolutely set out the requirements for

collective self-defence that, it was the state which was the victim of an armed attack which must form and

declare the view that it was so attacked. There was no rule in customary international law permitting

another state to exercise the right of collective self-defence on the basis of its own assessment of the

situation. Moreover, there was no rule allowing collective self-defence in the absence of a request by the

victim state. On the particular facts the US claim that it was acting in collective self-defence failed; there

was no timely declaration by El Salvador that it had been the victim of an armed attack, and there was no

declaration at all by Costa Rica or Honduras. None of the states had requested forcible assistance from the

USA before it took its actions against Nicaragua.

22
Oil platforms (merits) (n 13) para. 76
23
DRC v Uganda (n 12) para 147
24
Nicaragua (merits) (n 9) paras. 195-9, 231-4
In DRC v Uganda collective self-defence was addressed succinctly when the Court said that the DRC was

entitled to invite help from Sudan.25 In Oil Platforms the Court noted that the USA had not invoked collective

self-defence, reiterating that, ‘The USA has not claimed to have been exercising collective self-defence on

behalf of neutral states engaged in shipping in the Persian Gulf; this would have required the existence of a

request made to the United States by the State which regards itself as the victim of an armed attack .26 The

Court referred to the Nicaragua case as authority for this position. Likewise, the court has shown

consistency in its decisions with regard to collective self-defence which are in tandem with the charter and

customary international law.

The final issue to assess on the legitimacy of use of force is the requirement to report to the Security

Council. Article 51 obligates states to report to the Security Council any measures taken in exercise of their

right of self-defense. Gray remarks that this provision was given new life in the Nicaragua case, owing to

previous pervasive erratic compliance.27 The Court held that, although this requirement was not part of

customary international law, it was significant in that failure to report could be an indication that the state

was not genuinely acting in self-defence. 28 US was castigated for having omitted to report its measures in

self defence.

In DRC v Uganda when it came to determine whether the use of force by Uganda within the territory of the

DRC could be characterized as self-defence it noted without comment that Uganda had failed to report to

the Security Council events that it regarded as requiring it to act in self-defence. 29 It seems to have treated

this as an additional factor indicating the illegality of Uganda’s actions, but it did not make this explicit. In

Oil Platforms the Court took account of the US reports to the Security Council in considering the nature of

25
DRC v Uganda (n 12) para. 128
26
Oil platforms(merits) (n 13) para 51
27
Gray op. cit., 275
28
Nicaragua (merits) (n 9) para 200
29
DRC v Uganda (n 12) para 145
its claim of self-defence.30 Even in this area the court has shown a considerable degree of consistency in all

the three decisions which nullifies the claim as to its inconsistency.

Overall, it is my submission that the court’s decisions have been consistent with one another and with the

provisions of the charter and customary international law. In Nicaragua the court has affirmed that the

provisions of the charter on the legitimacy of use of force are largely an embodiment of pre-existing

customary international law, by necessary implication, in my view, a decision made on the basis of these

provisions is a decision made based on customary international law and as such that decision cannot be

inconsistent with the charter or customary international law. Moreover it is difficult to see how the court’s

decision have been inconsistent with each as the court has been single minded in strictly prohibiting the

unlawful use of force in the context of the charter and customary international law. In my view it is easy to

understand why, that the pre-charter period is characterized by a catastrophic war era that had extensive

political, social and economic impacts and it is of utmost urgency that the international court is firm and

steadfast in its decisions to avoid creating undue lacunae in the law that would create fertile ground for

regression to the devastating war era moreover with modern war tactics and weaponry.

30
Oil platforms (merits) (n 13) para 48, 62, 67, 72