The ban on using force is one of the cornerstones of international law.The United Nations
charter Article 2(4) codifies this provision. Article 2(4) stipulates that a state that is a member
of the UN is not allowed to use force or threaten the political independence or territorial
integrity of another state, nor may it act in any manner that is contrary to the UN’s goals.
The ban on the use of force does not apply in all circumstances, as Article 2(4) suggests. In
order to maintain the integrity of its territory, a sovereign state probably has the right to
employ force. States are able to manage their internal affairs with a great deal of discretion.
Additionally, some theorists think that in circumstances where using force outside of one’s
borders does not jeopardise the sovereignty or integrity of another state, a state may be
permitted to do so. Force may be employed in certain circumstances to safeguard citizens of
the intervening state who are residing abroad or for humanitarian grounds. For example, an
intervening state may invoke the Protective Jurisdiction Principle which allow them to
prosecute aliens who committed acts abroad that threatened their national security and vital
interest.
Nevertheless, Personal and other Immunities, exempt head of states, heads of government
foreign affairs (Foreign Ministers) from criminal and civil liability from FOREIGN
STATE’S domestic court, as long as they are in active service, therefore, the abduction and
extradition of Venezuelan President and his wife to USA is total violation of customary
international law. For instance, in the case of (DRC v. BELGIUM) where Belgium issued
international arrest warrant against Abdoulaye Yerodia Ndombasi, the then serving minister
of foreign affairs of the DRC, for alleged war crimes and crime against humanity. The ICJ in
its ruling stated that the allegation of violation of Jus Cogens do not remove immunity,
because immunity is procedural and not substantive, therefore immunity bars foreign courts
from exercising jurisdiction against head of states and foreign affairs ministers for allegation
of international crime while they hold office.
Again, the decision of United States of America to invade Venezuela and capture its sitting
President and extradite him to USA cannot be construed as self-defence under article 51 of
UN charter. The circumstances under which, President Maduro and his wife were captured
and extradite out of Venezuela are not recognised by the UN Charter as an exemption to the
ban on the use of force. The perception among many in the international community is that
states use these excuses to cover up unethical intentions. The UN Charter’s Article 51
recognises the right to self-defence as an exemption to the general ban on using force. This
clause expressly permits the use of force by a state in retaliation for an armed attack by
another state.
The UN Security Council must be informed of any self-defence measures adopted by
members of the UN. Customary international law’s inherent principles of self-defence, which
stipulate that self-defence must be both necessary and proportionate to the aggression, have
been interpreted to include Article 51. The Caroline case (1837) offers a statement that is
frequently used to support anticipatory self-defence: self-defence must be “instant,
overwhelming, and leaving no choice of means, and no moment for deliberation.” The
International Court of Justice (ICJ) upholds this principle in decisions like Nicaragua v.
United States, stating that the right to self-defence must be both essential and appropriate
given the circumstances. Although, jus ad bellum is occasionally seen as a component of the
laws of war, the phrase “laws of war” is more frequently understood to refer exclusively to
jus in bello, which, as previously said, deals with whether a war is fought justly or lawfully
(regardless of whether the beginning of hostilities was just). The criteria for what constitutes
a just or legitimate armed conflict are the main focus of jus ad bellum regulations. The
standards of necessity and proportionality are fundamental to any justifiable use of force. The
right to self-defence is compromised by the use of disproportionate or excessive force. A
state’s response to an armed attack must be proportionate with the attack, the International
Court of Justice (ICJ) said in the Oil Platforms decision (2003).
The principle of proportionality guarantees that the amount of force employed is restricted to
the minimum necessary to counter the immediate threat and reinstate security. The broad
assumption that any use of force in self-defence is justifiable, regardless of scale, contradicts
accepted international legal standards. One important restriction is the notion of
proportionality. This idea makes sure that defensive acts don’t turn into an excuse for
aggressive ones and helps stop the situation from getting worse. The 2005 ruling in the DR
Congo v. Uganda case before the International Court of Justice (ICJ) concerned armed
activity on Congolese territory. The fact that Uganda used more force than was required to
defend against an immediate threat rendered its use of force against the Democratic Republic
of the Congo unjustified was one of the court’s main conclusions. The court ruled that
Uganda’s action did not comply with the requirement that self-defence be restricted to what is
necessary and appropriate in light of the threat being faced. This decision upheld the UN
Charter’s Article 51’s requirements of necessity and proportionality when it comes to the use
of force in self-defence.
States have an obligation to resolve disputes peacefully under Article 33 of the UN Charter.
This clause condemns the use of force as the main method of resolving disputes and
emphasises the value of diplomatic alternatives. This duty is incompatible with the
widespread use of force in self-defence without respect for peaceful conflict resolution
procedures. The Gulf of Tonkin Incident (1964) and the United States’ following actions in
Vietnam serve as examples of the difficulties involved in using force in self-defence.
Comparably, the disputes between Israel and Palestine have prompted debate over the
necessity and proportionality of self-defence tactics. The difficulties in putting the idea of
proportionality into practice are evident in the way Israel’s military operations in Gaza have
frequently been criticised for going beyond what is thought to be required for self-defence.
The United Nations Security Council is critical in authorising force and dealing with
violations of international law. Without the consent of the Security Council, a state may act
unilaterally in self-defence, undermining the UN Charter’s system of collective security. By
involving the Council, it is ensured that the use of force is carefully considered and defended
in light of upholding global peace and security. The concepts of state sovereignty and non
intervention are intimately related to the ban on the use of force. The structure of the UN
Charter seeks to uphold these ideals while permitting the right to self-defence. Without regard
for these values, the broad use of self-defence could result in abuses and jeopardise world
peace and security. Any armed conflict or physical coercion between states is considered a
“use of force” under international law. Military actions, armed assaults, and other hostile
deeds can fall under this category. International treaties and customary international law most
notably the United Nations Charter generally regulate the use of force. The legal right of a
state to defend itself against an armed attack is known as “self-defence”. Article 51 of the UN
Charter, which permits a state to employ force in retaliation for an armed attack until the
Security Council takes action to restore peace and security, enshrines this right. The idea of
“territorial integrity” implies that other governments should respect a sovereign state’s
boundaries and not trespass on it. This idea, which is safeguarded by international law, is
essential to the idea of state sovereignty, which now beg the question if INTERNATIONAL LAW IS TRULY A LAW?
WORLDWIDE APPLICABILITY OF INTERNATIONAL LAW
The problem of international law is that it lacks worldwide applicability. Countries have
different ideological, religious, and social orientations. For instance, some countries have
theocratic governments (this is where a particular Religious doctrine is used in running or
governing the country, example is Iran); while some countries are secular (governance is not
based on religious doctrine, example Ghana). The problem comes because international law
has been largely shaped by western culture and this is somewhat antithesis of certain cultures,
such as Islamic andAfrican. Consequently, some countries do have problems applying
international agreements, such as equal rights for men and women, in their jurisdictions.
NOEXECUTIVEPOWERTOENFORCEINTERNATIONALLAWS
Another main problem of international law has to do with enforcement. Unlike national or
domestic laws where there are clearly define institutions to enforce laws and punish those
who disobey the laws of the land, there is nothing like that in the international system. For
this reasons the international legal system relies on individual countries to punish violators.
For instance, according to Morgenthau, ‘in cases where international law is violated, the
considerations are usually power related, rather than legal.’
This indicates that the great powers in the international system will get away with most, if not
all, violations. Who will punish the United States of America for abducting President Maduro
or Russia for violations of international law by causing thousands of deaths in Ukraine?
Also, the International Court of Justice, which settles disputes between member countries of
the United Nations, does not really have the powers to enforce its decisions, its relies largely
on UNSecurity Council to enforce its decisions, however if the case involves one of the five
permanent members, (United States, Russia, China, France, United Kingdom) that state has
the power to veto the enforcement. (Nicaragua v. United States of America, 1986).In sum, if
the use of force or economic sanctions is the only real legitimate avenue for enforcing
international law, then international law has failed, because bigger states can flout the rules,
whenever it is in their interest to do so; there appears to be a double standard as far as
enforcement/punishment for non-compliance is concerned.
INTERNATIONAL LAW IS BETTER DESCRIBED AS A BRANCH OF MORALS THAN AS BRANCH O FLAW.
The International legal system is largely based on consensus either through the practice of
States or through agreements. Also, states adhere to international law not base on law, but
largely on reciprocity and more also to large extent naming and shaming. For example, the
case involving Chad and Libya, was adjudicated not base on law, but on agreement Libya had
with France in 1955. ICJ decision in the case relied heavily on text and context of 1955 treaty
between France and Libya (Uti Possidetis) to arrive at their decision. Chad and Libya case
underpinned the fact that, the international law is heavily influenced by moral principles and
ethical considerations. Many international legal norms are based on shared values and beliefs
about what is right and just. This moral dimension is more pronounced in international law
compared to domestic law, where the focus is often on more concrete legal rules and
procedures, so therefore, the emphasis on morality in international law reflects the fact that
compliance is not solely based on enforcement but also on the moral obligations and ethical
standards that states adhere to in the international community.
In conclusion, one may probe further, if the principle of ‘male captus, bene detentus”
(wrongfully captured, lawfully detained) which was established in Eichman v. The State
is a justification for US’s action in Venezuela, certainly not, because serving President enjoys full
immunity from prosecution from foreign states’court for both their private and officials acts
and it is absolute as long as they remain in office. Again, it does not lie in the bosom of
United States of America to declare who is a legitimate President of Venezuela. Even if we
have to resort to ‘De Facto recognition theory’it still acknowledged the facts that the
Maduro’s government has control over the state of Venezuela, it institutions and territory,
even if it is not considered fully legitimate by the international community.
