Law Assignment Sample

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There has been a long-term debate regarding the phenomena use of force as this phenomenon is considered to be about the sovereignty of the states where the states take all the best possible measures to protect their interest. As the concept of using force is relating to the sovereignty and independence of the states, there has been more concern shown in international law as this has become an independent legal institution in itself. Hence, it has become important for the states to know as to what level and extent of force can be used by them to protect their territory and people from the force in self-defence. The presented essay outlines and criticises the speech given by the United States President Donald Trump regarding the using of force against North Korea. The presented essay shall highlight the provisions of international law that stand against using force against any nation. Further, the essay shall also highlight the circumstances and the situations under which the states are allowed to use force against another state to protect their population and territory against crime and exploitation. Lastly, the essay shall outline the contribution of United Nations in abolishing the use of force by any nation against the other nation and how effective has the United Nations been in implementing the moralities of international and cross border laws.

Under the rules of international laws, the force has been regarded as a sign of decentralisation and this was historically used either to punish for the non-compliance of orders or the purpose of intervention. The harshest form of using force is considered war that is used to completely acquire the territory of the state and to suppress it.[1]But reprisals are also a form of using force that is considered to be a violent act under international law. Hence, it can be stated that the speech given by Donald Trump, the United States President was reflecting the situation of waging war against North Korea so that it could either acquire the territory or suppress North Korea completely.

Special circumstances for use of force and the contribution of the United Nations against the use of force under cross-border law

The United Nations is considered as the strongest body governing the rules of international laws and hence, the member states if the UN abide by the rules to which they have become a signatory. The United Nations thus, has animportant role in protecting the interest of the nations and ensure that the nations do not violate the right of others in protecting their rights. Hence, the United Nations through its agencies strike a balance between the states and make them decide the case of conflict of interest. The United Nations has also enacted the rules for the embargo of the use of force by one nation over another nation.The United Nations under Article 2(4) provides that the member nations shall restrain from using force against the other state as per the rule of international laws and shall also refrain from using threat and force against the territory of any state and shall not hamper the integrity, independence or do any other activity that is inconsistent with the laws framed by the United Nations.[2]

The member states have also ratified the rules enacted in the United Nations Charter 1945 where they have prohibited the usingof force by one nation over the other state. Initially, the nations restrained using force in any matter over the other state but later the United Nations Security Council stated that force can be used under special circumstances for example self-defence or in matters of armed attacks by the other states. Hence, it can be stated that the provision of Article 2(4) mentioned in the United Nations Charter allows the use of force in a special circumstance when the state is defending itself from any armed or other attacks. Thus, the speech of Donald Trump against North Korea reveals that he has intended the use of force against North Korea but it does not fall within the approved and allowed category of self-defence as the act of US shall not be justified unless North Korea uses nuclear weapons against the US or does any act hampering the sovereignty or independence of the US.[3] Hence, using force by the United Statesin the territory of North Korea shall not amount to force for any justified purpose as provided under the United Nations Charter until North Korea make use of its nuclear weapons or does any criminal act on the territory of the United States to destroy the US population. Further analysing the statement of US President Donald Trump, it can be stated that the speech of the president was not to make use of force against North Korea but to defend itself from the nuclear attack or any other criminal attack done on the US territory.

At such stages where one nation is at threat of attack by the other nation, there is a significant role played by the United Nations to protect the sovereignty of the nations and also to maintain peace, law and order. Hence, if the United States is under a threat of nuclear attack by North Korea, it may use force against North Korea and thus, there is intervention by the United Nations to protect the states. There are two statutes named the United Nations Charter and the Military Tribunal Statute that has been drafted keeping in mind the rules of international law. These laws have been created by the signatory members of the United Nations so that there coming generations do not have to face the consequences and chances of war. But the definition of war is not been provided in the charter neither this word has been used in the charter, rather the word force has been used in the charter and the member states have implied this term in the charter as they believe that the meaning and definition of the word war shall change over time.[4]

Hence, it is clear that as per the provisions of international law and the United Nations Charter, the use of force is being prohibited by the member states and it also includes all kinds of intervention with the use of force. Hence, the United Nations does not excuse any kind and form of reprisals and completely disregard this action. Hence, it can be argued that the United Nations is not in support of any form of a violent act by the state over the other where war is considered as the gravest form of violence. Moreover, it has also been analysed that the role of the United Nations is not only to prevent the member states from engaging in acts of violence and war but also to promote peace and order among the member states. The role of the United Nations is not only confined to the retraining the nations from using force by the state but also to negotiate with the state to encourage it to abide by the rules of international law. In the year 1950, the United Nations used force to force North Korea to remove its allies from South Korea. It was also in the year 1960 that the United Nations used forces against Iraq as it invaded Kuwait. Hence, it has been made clear that United Nations after approval from the member statesmay take collective action against any state that is violating the rules of international law.[5]

Apart from the defence of collective action, there is yet another significant exemption from the use of force and that is when the force is used in self-defence. The provision of self-defence is enacted under provisions Article 51 of the UN Charter. The use of armed forces by any one state over the other makes the United Nations intervene as the state taking the action in self-defence is required to report such action to the United Nations Security Council. The Article authorising use of force in a matter of self-defence provides that the member state shall be allowed to take action against the armed attack by the other state and such taken action shall be in self-defence by the state. But the defence shall only be valid only if the United Nation Security Council has taken all the necessary measure to preserve peace between the states but the results are ineffective.But the states are required to immediately report the action taken to the UN Security Council. It also authorises the United Nations Security Council to take any possible measure that is required to maintain international peace and order. Further, it has also been noted that the right to take action in self-defence has not only been mentioned in the charter, but it has also been a part of the customs under the international law. The best example of this is seen in the Nicaragua Case. Further, Article 51 provides for the process to be followed in case of exercising self-defence by the state under armed attack. Further, it has also been observed that in case of irregular armed attacks, the United Nations authorises using force as it did to the United States during the 9/11 attack and authorised the US to use force against the terrorists.[6]

Another notion has come up in recent years regarding using force by one nation over the other and that is for the protection of the nationals in another state. The state uses force over the other to protect its nationals residing in that state but this action has been strongly criticised by the United Nations General Assembly as it believed that the intervention by the state is not to protect the nationals in other states but to protect other political issues and agendas. However, there are also instances when there has been intervention done and force used without the permission of the UN Security Council. Such intervention has been called humanitarian intervention as this intervention is necessary on the grounds of humanity. Further, it has been observed that there are two distinct views regarding the use of force where one view is that the use of force shall be not entertained in any manner and the other is that force can be used in special circumstances like in self-defence. But the UN Charter has also been reviewed and commented on by the court ICJ.[7]

The United Nations also published a report regarding the high-level panel of threats and challenges where there was commentary for the first time regarding the invasion of the United States on Iraq. This report was regarding the law that governs the use of force that shall be made applicable to threats over the nation. The panel gave its consent regarding the point that the older interpretation of self-defence was correct and stated that the provision under Article 51 is not to be amended or repealed. Further, the panel also stated that the states shall be allowed to do what they deem necessary in such situations and should also be allowed to defend themselves in cases of armed attacks. Another notion coming up in the last few years is the use of force against non-state acts or the terrorists residing in some other nation. Hence, the notion that whether the state shall be allowed to use force against the other state to stop terrorist's activity was taken into consideration and it was stated that the state shall be allowed to take such measures as the US was allowed after the 9/11 attack.[8] But it has also been stated that the use of force by any state should be the last resort for any state as the use of force in self-defence or to protect the nationals become a never-ending cycle and the example of this is seen between the two states Russia and Ukraine since 2014 and between India and Pakistan since 1947.[9]

But discussing self-defence, a major question arises that is whether the right to self-defence is available in terms of anticipatory self-defence that is whether the states are allowed to exercise this right without actually facing the attack. But the answer to this question is still controversial. This controversy started at the time of the cold war where some of the jurists were of the view that self-defence is only permissible and lawful if there is an actual attack on the territory of the state. The major economies like the United States and the United Kingdom havemaintained the Caroline approach. This approach provides that force is justified to be used in the face of a forthcoming attack. The International Court of Justice has also not yet answered this question and has left the question open for the states depending on their situations.[10]But the question again arises that what shall constitute a situation of an imminent attack in respect of weapons and mass destruction. In the answer to this question, the statement by the Attorney General of the House of Lords can be considered who stated that the concept of imminent threat relating to armed attack is a developing concept and shall continue to develop with time and situation. He also stated that the states shall be allowed to defend themselves in face of imminent attack where the nature of the attack is not sure or the place of attack is not evident. Moreover, it was also stated in the same speech by the Attorney General that the international law permits using force by the nation only in the face of imminent attack and not for the pre-emptive attack where the chances of an attack are remote or if there is no evidence regarding immediate attack.[11]

A classic example of this can be seen when there was an attack by Israel on a nuclear plant in Iraq in 1981 on the basis that Iraq was planning nuclear bombing on Israel in 1985 and that the nuclear bombs used in such attack were made at that centre. The UN Security Council held that the attack by Israel on Iraq was a complete violation of the norms provided under the international laws as there was no evidence of the attack by Iraq on Israel and that the attack was also not a result of self-defence. But there was a strong debate regarding the right of Israel for the attack over Iraq and the supporters of the attack stated that Israel failed in all the measures taken for maintaining peace and hence, it was left with the only resort of using force. Further, the criticisms for the attack stated that there was no evidence of an imminent attack on Israel from Iraq and thus, the attack by Israel was in contradiction to therules of international law.[12]

On analysing all the above facts and laws and views of the eminent jurists and justices, it can be stated that the US President Donald Trump made the statement of destroying North Korea. But the statement also highlighted the words 'if it is forced to defend itself or its allies' which means that the action taken by the US shall be an act of self-defence. Moreover, the President also stated that no nation on earth shall support the criminal acts and attacks of North Korea if it stands loaded with weapons and missiles. Thus, it is clear that President Donald Trump intends to protect the territory of the United States and also the people from being attacked in case North Korea attacks the United States.[13] On analysing the statement of Donald Trump from the perspective of international law, it can be stated that if the United States uses forces against North Korea because of the threat of imminent attack, it shall be justified in defending itself under the directions of international law. The justification of the act and defence of the United States shall lie in Article 51 of the UN Charter which provides for the right to defend itself if there is a threat to an imminent attack. Further, the role of United Nations shall immerge as the organisation shall negotiate in between for the maintaining of peace and in case the negotiation does not work and the United States is attacked, the self-defence by the nation shall be justified by the United Nations and it shall stand in favour of the United States.[14]

Conclusion

Thus, it can be concluded that the debate regarding the meaning and scope of the word 'force' is somewhat over in the present scenario as the meaning of using force in the international context has now been cleared. Force can be used against the state if it intervenes with the sovereignty and the independence of any other nation in an unauthorised and unlawful way. Also, it has been made clear by the commentators and judges especially in the ICJ that there is a difference between the word armed attack and force as the armed attack is the worst and the harshest form of force whereas force merely may be political force or an economic force or a military force. Hence, the statement made by President Donald Trump was regarding the armed attack which the United States may do over North Korea in case North Korea uses nuclear power against the United States. Moreover, the statement by Donald Trump is justified as the use of force in international law can be done in matters of self-defence. It is also concluded that the use of force in absence of threat is not justified under the rules of international law and such ats violate the United Nations Charter.[15]The only justified act of force against any state is justified if it is done as a collective actionor as self-defence with the majority of the member states.

References

Abdallah J and others, 'The Legitimate Use Of Force For Self-Deference Under International Law: A Literature Review' (2019) 9 International Journal of Academic Research in Business and Social Sciences

Alshdaifat SA, ‘International Law and the Use of Force against Terrorism’ (2017) Cambridge Scholars Publishing

Bak McKenna M, 'The Discourse Of Proportionality And The Use Of Force: International Law And The Power Of Definition' (2020) 89 Nordic Journal of International Law

Carty A, ‘Philosophy of international law’ (2017) Edinburgh University Press

Corten O, ‘The law against war: the prohibition on the use of force in contemporary international law’ (2021) Bloomsbury Publishing

Damrosch LF and Murphy SD, ‘Basic documents supplement to international law: cases and materials (2019) West Academic Publishing

Dill J, and Schubiger L, 'Attitudes Toward The Use Of Force: Instrumental Imperatives, Moral Principles, And International Law' (2021) 65 American Journal of Political Science

Falk RA, ‘International Law and the United States Role in the Viet Nam War’ (2017) 1 In the Vietnam War and International Law

Galbraith J, ‘Contemporary Practice of the United States Relating to International Law’ AM. J. INT’L L., (2019) 113

Gazzini T, ‘The use of force in international law’ (2017) Routledge

Ginsburg T, 'Authoritarian International Law?' (2020) 114 American Journal of International Law

Gray C, ‘International law and the use of force’ (2018) Oxford University Press

Hakimi M, 'Making Sense Of Customary International Law' [2020] Michigan Law Review

Henderson C, ‘The use of force and international law’ (2018) Cambridge University Press

Karoubi MT, ‘Just or unjust war? international law and unilateral use of armed force by states at the turn of the 20th century’ (2017) Routledge

[1] Christian Henderson, ‘The use of force and international law’ (2018) Cambridge University Press

[2] Tarcisio Gazzini, ‘The use of force in international law’ (2017) Routledge

[3] Christian Gray, ‘International law and the use of force’ (2018) Oxford University Press

[4] Olivier Corten, ‘The law against war: the prohibition on the use of force in contemporary international law’ (2021) Bloomsbury Publishing

[5]Janina Dill and Livia I. Schubiger, 'Attitudes Toward The Use Of Force: Instrumental Imperatives, Moral Principles, And International Law' (2021) 65 American Journal of Political Science.

[6]Jean Galbraith, ‘Contemporary Practice of the United States Relating to International Law’ AM. J. INT’L L., (2019) 113

[7] Mohammad Taghi Karoubi, ‘Just or unjust war? international law and unilateral use of armed force by states at the turn of the 20th century’ (2017) Routledge

[8]Monica Hakimi, 'Making Sense Of Customary International Law' [2020] Michigan Law Review.

[9]Tom Ginsburg, 'Authoritarian International Law?' (2020) 114 American Journal of International Law.

[10]Miriam Bak McKenna, 'The Discourse Of Proportionality And The Use Of Force: International Law And The Power Of Definition' (2020) 89 Nordic Journal of International Law.

[11] Anthony Carty, ‘Philosophy of international law’ (2017) Edinburgh University Press

[12] Lori Fisler Damrosch and Sean D Murphy, ‘Basic documents supplement to international law: cases and materials (2019) West Academic Publishing

[13] Shadi Adnan Alshdaifat, ‘International Law and the Use of Force against Terrorism’ (2017) Cambridge Scholars Publishing

[14]Jamal Awwad Abdallah and others, 'The Legitimate Use Of Force For Self-Deference Under International Law: A Literature Review' (2019) 9 International Journal of Academic Research in Business and Social Sciences.

[15] Richard A Falk, ‘International Law and the United States Role in the Viet Nam War’ (2017) 1 In the Vietnam War and International Law