LCP4801 ASSIGNMENT 2 ANSWERS OF SEMESTER 2 OF 2024
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QUESTION 1
1.1 The Position of International Law Regarding the Use of Force
A. Prohibition on the Use of Force
The use of force by states against the territorial integrity or political independence of any
other state is prohibited under Article 2(4) of the United Nations Charter.
This principle has been firmly established in customary international law and is considered a
jus cogens norm, meaning it is a peremptory rule from which no derogation is permitted.
In South Africa, the prohibition on the use of force is recognized in the Constitution, which
states that "the Republic is a sovereign, democratic state founded on the values of ... the
supremacy of the Constitution and the rule of law" (Section 1(c)).
B. Exceptions to the Prohibition on the Use of Force
The UN Charter recognizes two main exceptions to the prohibition on the use of force:
Self-defense (Article 51)
Authorization by the UN Security Council (Chapter VII)
These exceptions have been further developed and interpreted in South African law through
cases such as Government of the Republic of South Africa and Others v. Grootboom and
Others, where the Constitutional Court emphasized the importance of upholding international
law principles.
C. Principles of Proportionality and Necessity
The use of force, even when permitted, must be limited to what is necessary and
proportionate to the threat or aggression faced by the state.
This principle of proportionality has been affirmed by the International Court of Justice in
various cases, such as the Nicaragua v. United States case.
In South Africa, the principle of proportionality is recognized in the Constitution, which
requires that any limitation of rights must be "reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom" (Section 36).
1.2 Circumstances Under Which a State May Deviate from the Prohibition on the Use of
Force
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