Contents of the principle of non-use of force and threat of force. Principles of non-use of force or threat of force and peaceful settlement of disputes

This principle, which puts war outside the law, began to take shape only in the 20th century. Its appearance is a huge achievement for the world community. History of humanity until the 20th century. - this is the history of the widespread and legal use of force, when every state had an unlimited right to war - jus ad be Hum.

The formation and recognition of the principle was difficult and gradual. Only in 1919, in the Statute of the League of Nations, did states decide “to accept certain obligations not to resort to war.” They undertook, in the event of a dispute, to first use the peaceful procedure (dispute consideration by the League Council, the PPMP or the arbitration court) and until three months have passed after the decision of any of these bodies not to resort to war. Between the First and Second World Wars, many states took the path of concluding bilateral non-aggression treaties. A significant event was the adoption on August 27, 1928 of the Paris Treaty on the renunciation of war as an instrument of national policy (Briand-Kellogg Pact) - the first international legal act in history that contained legal obligations of states not to use military force in foreign policy.

For the first time, the prohibition of the use of force as a universal legal principle is enshrined in the UN Charter. According to paragraph 4 of Art. 2 of the Charter, all members of the UN “will 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.” This norm is specified in a number of other UN acts (Declaration of Principles of 1970, Declaration on Strengthening the Effectiveness of the Principle of Non-Threat or Use of Force in International Relations of 1987), as well as in the Declaration of Principles of the CSCE of 1975.

The content of the principle is most fully disclosed in the UN General Assembly resolution “Definition of Aggression” of 1974. An open and obvious violation of the principle is aggression. According to Art. 1 resolution aggression - is the first use by any State of armed force against the sovereignty, territorial integrity or political independence of another State or in any other manner inconsistent with the UN Charter. The use of means other than armed ones (economic, political) can be qualified as the use of force if their consequences are similar to military measures (for more information on the definition of aggression, see Chapter 13 of this textbook).

The resolution (Article 4) established: the UN Security Council is authorized to recognize other actions as aggressive if, according to the Charter, they threaten peace or violate the peace.

Since the 1970s. The content of the principle began to include the obligation of states not to use force to violate state borders or as a means of resolving territorial and border disputes.

The attack on September 11, 2001 by the terrorist group Al-Qaeda on a number of US targets also made adjustments to the interpretation of the concept of “attack”, which was no longer perceived only as an attack of one state on another. In Resolution 1368 of September 12, 2001, the UN Security Council expanded its interpretation and created a legal precedent: it qualified these terrorist acts as a type of armed attack posing a threat to international peace and security, confirming in the preamble of the resolution the inalienable right to individual or collective self-defense in accordance with Art. . 51 of the UN Charter.

Serious problems have arisen in recent years in connection with the emergence of doctrines and practices of “pre-emptive strike”, “humanitarian intervention”, etc. Thus, when conducting “humanitarian interventions”, when the use of military force by states or international organizations against other states is often justified by the need to protect human rights, the politicization of the situation may be allowed, priority may be given to politics rather than law, disproportionate use of force may be used, etc. The most striking example is NATO’s military action against Yugoslavia in 1998.

The 2005 World Summit limited the practice to the most severe cases. In the Final Document of the Summit, the heads of state stated the need to take collective action of a humanitarian nature in fulfillment of the so-called “responsibility to protect” through the UN Security Council, “if peaceful means prove insufficient, and national authorities clearly fail to protect their populations from genocide, military crimes, ethnic cleansing and crimes against humanity."

• Doc. UNGA A/60/L.1. 16 Sep. 2005

The principle of non-use of force or threat of force

This principle is a novelty of modern international law. The principle of non-aggression, previously in force since the League of Nations, had a significantly different content.

Nowadays this is a generally recognized principle of international law, set out in paragraph 4 of Art. 2 of the UN Charter and at the same time having the force of customary law.

The main provisions of this principle, according to the Declaration of Principles of International Law of 1970, provide the following.

Each state is obliged to refrain in its international relations from the threat or use of force, either against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the UN. Such a threat or use of force is a violation of international law and the UN Charter and should never be used as a means of resolving international problems.

Aggressive war constitutes a crime against peace, for which liability is provided in accordance with international law.

Each state is obliged to refrain from the threat or use of force for the purpose of violating the existing international borders of another state or as a means of resolving international disputes, incl. territorial disputes, and issues relating to state borders.

Equally, each State has the obligation to refrain from the threat or use of force to violate international demarcation lines, such as armistice lines, established by or consistent with an international agreement to which that State is a party or to which that State is otherwise bound to comply.

States have an obligation to refrain from acts of reprisal involving the use of force.

The territory of a state must not be subject to military occupation resulting from the use of force in violation of the provisions of the UN Charter. The territory of a state must not be the object of acquisition by another state as a result of the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal.

However, nothing in the foregoing provisions shall be construed as extending or limiting in any way the scope of the provisions of the UN Charter affecting cases in which the use of force is lawful.

The above provisions concerning the essence of the principle of non-use of force or threat of force in interstate relations are the foundation of the modern system of maintaining international peace and security.

The principle of non-use of force or threat of force - concept and types. Classification and features of the category “Principle of non-use of force or threat of force” 2015, 2017-2018.

The principle of non-use of force or threat of force is enshrined in i. 4 tbsp. 2 of the UN Charter. In accordance with this principle, all states in international relations are obliged to refrain from the threat or use of force against the territorial integrity and political independence of other states or in any other manner inconsistent with the purposes of the UN. No considerations can be used to justify resorting to the threat or use of force in violation of this principle.

No use of force or threat of force will be used as a means of settling disputes or matters that may cause disputes between them. Nevertheless, in the event of any aggression or violation of the sovereignty, territorial integrity and political independence of the state, the country subjected to aggression retains its right to individual and collective self-defense in accordance with the UN Charter and the International Order.

States, on the basis of generally recognized principles and norms of international law, must conscientiously fulfill their international obligations regarding the maintenance of peace and security. The threat of force should not be used as a means of settling disputes between States. Wars of aggression are declared crimes against peace and humanity and entail liability under MP. War propaganda is also prohibited.

The territory of a state cannot be the object of acquisition by another state as a result of the threat or use of force. No territorial acquisitions resulting from the threat of force are recognized as legal.

States are also obliged to refrain from acts of reprisal involving the use of armed force, from organizing and encouraging irregular forces or armed bands to invade the territory of another state.

Article 51 of the UN Charter establishes the right to self-defense of a state that has been subjected to aggression. The definition of aggression given by the UN General Assembly in 1974 specifies the list of actions considered “aggression”.

On November 18, 1987, UNGA Resolution 42/22 adopted the Declaration on strengthening the effectiveness of the principle of non-threat or use of force in international relations, which complements the obligations of states in this area. In particular, all States must comply with their obligations under the International Law to refrain from organizing, instigating, aiding or participating in paramilitary, terrorist or subversive activities, including mercenary activities, in other States and from facilitating organized activities aimed at such activities. , within its territory.

States are obliged to refrain from armed intervention and other forms of interference or attempted threats directed against the legal personality of another state or against its political, economic and cultural foundations.

No country should use or encourage the use of economic, political or any other measures with the purpose of obtaining the subjugation of another state in the exercise of its sovereign rights and obtaining any advantages therefrom.

States are also obliged to refrain from promoting wars of aggression.

It is especially emphasized that no treaty will be valid if its conclusion was the result of the threat or use of force in violation of the principles of international law enshrined in the UN Charter.

States must take effective measures to prevent the threat of any armed conflicts, including conflicts in which nuclear weapons may be used, prevent an arms race in outer space and stop the arms race on Earth, reduce the level of military confrontation and strengthen global stability.

At the same time, actions carried out according to a decision of the UN Security Council on the basis of Chapter 1 are not a violation of the principle. VII of the UN Charter to suppress aggression and restore peace.

The principle of non-use of force and the threat of force is one of the principles that emerged in the 20th century. Prior to this, international law considered resorting to war as a way of resolving international disagreements and disputes as a natural function of the state, its inalienable right. This was noted in his treatise “On the Law of War and Peace” by Hugo Grotius, emphasizing that “the law ... of peoples, established by will, as well as the laws and customs of all peoples, as history sufficiently testifies to this, do not condemn war at all.” . The English lawyer L. Oppenheim admitted that “from the point of view of law, war seemed to be a natural function of the state and the prerogative of its unlimited sovereignty.”

The Conventions on the Peaceful Settlement of International Conflicts and on the Limitation of the Use of Force in the Collection of Contractual Debt Obligations, adopted at the Hague Peace Conferences of 1899 and 1907, did not abolish the state’s right to war (jus ad bellum), but only called on states “to the extent possible” to prevent recourse to force , “as far as circumstances permit.” The emergence of the principle of non-use of force began with the prohibition of aggressive wars. For the first time, war was declared the greatest crime against humanity in a domestic law - the Decree on Peace, adopted at the II All-Russian Congress of Soviets of Russia on November 8, 1917.

The League of Nations Statute established certain restrictions on the right of states to resort to war. The League adopted a number of documents prohibiting and condemning wars of aggression, including the Declaration on Wars of Aggression of 1927. The first multilateral treaty prohibiting resort to war was the Treaty on the Renunciation of War as an Instrument of National Policy of August 27, 1928, which entered into force on July 24, 1929 (known as the Kellogg-Briand Pact, or the Paris Pact). Article 1 of the Treaty provided that the parties to the Treaty “condemn the resort to war to settle international disputes and renounce it in their mutual relations as an instrument of national policy.”

The UN Charter gave a broader interpretation to the prohibition of war, enshrining it in the form of the non-use of force or threat of force. Article 2, paragraph 4, of the Charter obliges states to refrain in their international relations from the threat or use of force, either against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the UN.

The normative content of the principle of non-use of force and the threat of force was specified in the 1970 UN Declaration of Principles of International Law, the 1974 Definition of Aggression, the 1975 CSCE Final Act, and the 1987 Declaration on Strengthening the Effectiveness of the Principle of Non-threat or Use of Force in International Relations of the year. The analysis of all these documents makes it possible to determine to the fullest extent the normative content of the principle.

First of all, the principle in question is universal in nature and binding, regardless of the political, economic, social or cultural system or allied relations of each state (Declaration of 1987). This means that the principle applies to all states. At the same time, any action constituting a threat of force or the direct or indirect use of force by one state against another is prohibited (Declaration of 1975). “Any actions” should mean both the use of armed force and unarmed violence.

While prohibiting all manifestations of force or the threat thereof, the 1970 Declaration places particular emphasis on the duty to refrain from the threat or use of force for the purpose of: 1) violating the existing international boundaries of another state or as a means of resolving international disputes, including territorial disputes or issues, relating to state borders; 2) violations of international demarcation lines, including armistice lines; 3) acts of reprisals involving the use of force; 4) violent actions that deprive peoples of their right to self-determination, freedom and independence; 5) organizing or encouraging the organization of irregular forces or armed gangs, including mercenaries, to invade the territory of another state; 6) organizing, instigating, assisting or participating in acts of civil war or terrorist acts in another state or condoning such acts within one’s own territory; 7) military occupation of the territory of a state or its acquisition as a result of the threat or use of force. ,

The 1987 Declaration also emphasizes the obligation of states not to use or encourage the use of economic, political or any other measures with the aim of achieving the subjugation of another state in the exercise of its sovereign rights and obtaining any advantages from it. : The principle of non-use of force and threat of force prohibits, first of all, the use of armed aggression. To reveal its content, the Definition of Aggression adopted by the UN General Assembly in 1974 is of fundamental importance.

Article 3 defines aggression through a list of specific acts of aggression, establishing that any of the following actions, regardless of the declaration of war, if applied first, will qualify as an act of aggression:

1) an invasion or attack by the armed forces of a state on the territory of another state or any military occupation, however temporary, resulting from such an invasion or attack, or any annexation by force against the territory of another state or part thereof;

2) bombing by the armed forces of a state of the territory of another state or the use of any weapons by the state against the territory of another state;

3) blockade of ports or coasts of a state by the armed forces of another state;

4) an attack by the armed forces of a state on the land, sea or air forces or sea or air fleets of another state;

5) the use of the armed forces of one state located on the territory of another state by agreement with the host state, in violation of the conditions provided for in the agreement, or any continuation of their presence on such territory after the termination of the agreement;

6) action of a state allowing its territory, which it placed at the disposal of another state, to be used by that other state to commit an act of aggression against a third state;

7) sending by the state or on behalf of the state of armed bands, groups, irregular forces or mercenaries who carry out acts of use of armed force against another state that are of such a serious nature that they are tantamount to the acts listed above, or its significant participation in them.

Of the seven listed cases, the first five relate to acts of direct aggression, the last, seventh, to indirect ones. Particularly highlighted in paragraph 6 is the case of complicity in aggression.

The list of aggressive acts listed in the Definition of Aggression is not exhaustive. “Security Council,” says Art. 4, - may determine that other acts constitute aggression under the provisions of the Charter."

The Definition of Aggression explicitly emphasizes the discretionary powers of the Security Council in determining the existence of acts of aggression. It is with these powers in mind that Art. 2 The definition of aggression establishes criteria for the unlawfulness of the use of armed force. The most important of these is the primacy principle, which states that “the first use of armed force by a State in violation of the Charter is prima facie evidence of an act of aggression.”

The Security Council, in exercising its authority to determine an act of aggression, must be guided by other important criteria in addition to the principle of primacy. Art. speaks directly about this. 2 Definitions of aggression: “The Security Council may, in accordance with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of a sufficiently serious nature "

The criterion of the seriousness of the nature of acts of unlawful use of armed force allows the Security Council to draw a line between an act of aggression and such use of armed force, which, due to its limited or accidental nature, can be regarded as a threat to the peace or a breach of the peace.

From Art. 2 also implies the need to take into account the criterion of aggressive intent. When considering a specific situation, the Security Council proceeds not only from the principle of primacy, but also from the aggressive intentions of the parties. An important help in this direction is Art. 5 Definition of aggression, which indicates that no considerations of any nature, be it political, economic, military or otherwise, can serve as a justification for aggression.

The definition of aggression qualifies aggression as a crime against international peace, entailing international responsibility. It provides that no territorial acquisition or special benefit obtained as a result of aggression is or can be recognized as legal.

Adopted in Rome in July 1998, the Statute of the International Criminal Court included the crime of aggression in the list of crimes falling under the jurisdiction of the Court and entailing the individual criminal liability of individuals. Although the Court has yet to develop the definition and elements of such a crime, the fact that it is included in the list of the most serious crimes of concern to the entire international community demonstrates the determination of States to strengthen the regime of non-use of force and the threat of force.

(The principle of non-use of force and the threat of force does not exclude the lawful use of force in self-defense and in the case of measures taken by joint armed forces on behalf of the UN in order to maintain international peace and security.

UN Charter, referring to Art. 51 on the inalienable right of states to individual or collective self-defense, emphasizes that this right arises only in the event of an armed attack by one state on another. The right to self-defense should not be interpreted broadly. This means that the state does not have the right to use armed forces in a preventive strike, citing the threat of an armed attack. Article 51 also requires States that measures taken by them in the exercise of the right of self-defense be immediately reported to the Security Council and that such measures do not in any way affect the powers and responsibilities of the Security Council with respect to such actions as it deems necessary for the maintenance or restoration of international peace and security.

The UN's right to use armed force to maintain international peace and security is also placed within certain limits. The use of such force can only take place in cases of threat to the peace, breach of the peace and act of aggression, as decided by and under the direction of the Security Council.

Armed force can be used by the peoples of colonial and dependent countries in the struggle for their independence while exercising their right to self-determination.

With regard to the use of unarmed force, states have the right to resort to measures not involving the use of armed force in retortion or reprisal in response to unfriendly behavior or an offense that does not have the nature of an international crime. Their application must be proportionate. If we are talking about the use of such measures as sanctions against a state whose behavior is qualified as a threat to peace, a violation of the peace or an act of aggression, then they can only be applied by decision of the Security Council and under its control. In Art. 41 of the Charter provides a list of such measures: complete or partial interruption of economic relations, railway, sea, air, postal, telegraph, radio and other means of communication, as well as severance of diplomatic relations.

The specificity of the principle of non-use of force and threat of force is that it is associated with such concepts as force, armed force, unarmed force, threat to peace, breach of peace, aggression, act of aggression, armed attack, individual and collective self-defense. The right to qualify certain situations in accordance with these concepts and establish the use of measures related to the use of force belongs exclusively to the Security Council. This is one of the fundamental points in the peacekeeping system based on the provisions of the Charter, which, unfortunately, is not always observed in the practice of international relations. The use or threat of force in violation of the provisions of the UN Charter is unlawful and, as noted in the 1987 Declaration, “no consideration shall be invoked as a justification” for it.

An integral part of the principle of non-use of force and the threat of force is the prohibition of propaganda for war. The 1970 Declaration states this: “In accordance with the purposes and principles of the United Nations, States are obliged to refrain from propaganda of wars of aggression.” The same provision was included in the 1987 Declaration.

The principle of non-use of force and the threat of force is closely connected with the system of maintaining international peace and security, being its central link.

The emergence of the principle of non-use of force or threat of force is associated with the adoption of the Hague Peace Conventions of 1899 and 1907. The Statute of the League of Nations contained a rule limiting the right of a state to war. Of particular importance in the establishment of the principle of non-use of force was the Paris Peace Treaty of 1928 (Kellogg-Briand Pact), the first multilateral international agreement prohibiting aggressive war.

As a super-imperative norm of modern international law, the principle of non-use of force or the threat of its use is enshrined in the UN Charter. The detail, normative content and interpretation of this principle are contained in the Declaration of Principles of International Law of 1970, the UN GA resolution “Definition of Aggression” of 1974, the CSCE Helsinki Act of 1975, the UN Declaration on Strengthening the Effectiveness of the Principle of Refusal from the Threat or Use of Force in International Relations 1987

In modern international law, the following acts are regarded as the use of force and are absolutely prohibited:

• – any actions constituting a threat of force, direct or indirect use of force against another state;
• – the use of force or the threat of force for the purpose of changing the existing borders of another state or to resolve international disputes, including territorial or concerning borders, or to violate demarcation lines, including armistice lines;
• – reprisals using armed forces, including peaceful blockade (blocking the ports of another state carried out by armed forces in peacetime);
• – organizing or encouraging the organization of irregular armed forces or armed gangs, including mercenaries;
• – organization, provision of assistance, participation in acts of civil war or terrorist acts on the territory of another state; encouragement within one’s own state of activities aimed at committing such acts on the territory of other states;
• – military occupation of a state resulting from the use of force in violation of the UN Charter;
• – acquisition of areas of the territory of another state as a result of the threat or use of force;
• – violent actions that deprive peoples of the right to self-determination.

The 1974 definition of aggression contains a more expanded (but not exhaustive) list of prohibited actions, which are the most dangerous forms of unlawful use of force. War propaganda is also prohibited and is regarded as an integral part of the principle of non-use of force.

The principle of non-use of force is associated with the state's right to self-defense. The right to collective and individual self-defense under the UN Charter is regarded as the legitimate use of force. The right to self-defense is an inalienable right of any state under attack until the Security Council takes the measures necessary to maintain peace and security. The principle of non-use of force does not apply to actions taken on the basis of Security Council resolutions (Chapter VII of the Charter).

The International Court of Justice has confirmed that the right to individual self-defense can only exist when a state is the victim of a military attack. In the case of collective self-defense, this condition remains the same.

Currently, a different understanding of the legitimate use of force is developing among most states: the right to self-defense is not only the “right of retaliation”, but must be applied when there is a real threat of the use of force (the concept of “preventive self-defense”). This concept reflects the requirement of objective reality, especially when it comes to the fight against international terrorism.

The principle of non-use of force and the threat of force has a totally cogent character. However, the practice of implementing this principle in international relations shows that the requirements of international legal documents are extremely rarely observed, and the illegal use of force is an urgent problem on a global scale. Currently, one of the most pressing problems of international law is the problem of state responsibility for the unauthorized use of force.