Louis Rivera / 620037571
GOVT6065 – Selected Issues in International Law
Question 2.
Introduction
The term undermine was coined during a time when the use of military force was accepted as not only
an option to settling differences but as an official policy undertaken by sovereigns (Kings /Queens
/Sultans /Khans /Shahs etc.) sometimes even for frivolous reasons. The entire international system has
changed since then to what we agree is a more amicable situation. It is ironic that the current sovereign
states still use this tactic of undermining to use military force when they choose. Although, the structure
that is being destroyed is not an actual wall but a proverbial wall preventing every state from making
war on another. This proverbial wall is Article 2(4) of the United Nations Charter compiled in 1945, this
article along with Chapter VII and Articles 51 - 53 of the same charter outline the rules governing the use
of force in today’s international environment. In order to examine the statement carefully the Rules
governing force and their exceptions must be explored along with violations that may contradict these
rules.
Rules governing use of force
Article 2 (4) states 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.”. (U.N. Charter art. 2., para. 4) It is important to
notes a few things; 1. The identitfication of ‘All Members’ has been expanded to be binding on every
state as it has become customary international law. The prohibition of the use of force in international
relations between states was recognized by the ICJ as customary international law in the Nicaragua Case
(Meritis)(1986), when the judges dissenting opinion highlighted that the US’ use of force against
Nicaraugua was a violation of its customary international law obligations. (Harris, 2010, p. 737) Some
authors have suggested that this prohibition has become a premptory norm, also known as jus cogens.
The International Law Commission in 1966 listed three examples of what types of current treaty
obligations could not be included into any treaty because they consititute jus cogens, the first on the list
was “a treaty contemplating an unlawful use of force contrary to the principles of the Charter” 1.
Customary International Law
The Statute of the ICJ, Article 38 (1) (a-d) provides a foundation for the sources of international law. Sub-
section (b) states “b. International customs, as evident of a general practice accepted as law” 2
Customary international law is derived from the sufficient state practice and the belief that the practice
is a legal obligation required by international law (opinion juris sive necessitatis); an example of this is
1
Report of the of the International Law Commission on the work of its Eighteenth Session, 4 May - 19 July 1966,
Official Records of the General Assembly, Twenty-first Session, Supplement No. 9 (A/6309/Rev.1) p. 248
2
Article 38 (1) a-d, Statute of the International Court of Justice 1945 p. 26
immunity for a visiting head of state.3 Cases that concern the operation and nature of customary
international law are the Asylum case, Lotus case, Anglo-Norwegian Fisheries case, North Sea
Continental Shelf cases, and the Nicaragua case. Although treaty law and customary law are not seen in
a hierarchy; there are some customs that will always be above all other sources of international law
these are known as peremptory norms or jus cogens.
Jus Cogens
Article 53 of the Vienna Convention on the Law of Treaties provides the first basis for this. Jus cogens or
peremptory norm “is a norm accepted and recognized by the international community of states as a
whole as a norm from which no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same character.”4 We have seen earlier that
both the Nicaragua case and the International Law commission see this prohibition as customary
international law and jus cogens respectively.
Exceptions
There are few exceptions to Article 2 (4) of the UN Charter. Two of which are provided within the
Charter itself. They are the inherent right to individual and collective self-defense and collective security
action taken by the United Nations Security Council.
Self-defense
Article 51 of the UN Charter states that “nothing in the present Charter shall impair the inherent
right of individual or collective self-defense if an armed attack occurs against a Member of the United
Nations, until the Security Council has taken the measures necessary to maintain international peace
and security. Measures taken by Members … shall be immediately reported to the Security Council and
shall not in any way affect the authority and responsibility of the Security Council … to take at any time
such action as it deems necessary in order to maintain or restore international peace and security.” 5 It is
important to note that the inclusion of this article and the subsequent additions have been attributed to
negotiations revolving the authority of regional organizations over the right of collective self-defense.
(Franck, 1970) Article 52 outlines the responsibility of regional groupings to make an effort to achieve
pacific settlements through regional arrangements that in no way violates the Security Council’s right to
investigate.6 Article 53 outlines the supremacy of the United Nations over regional action in every other
case not involving self-defense against an enemy state.7 Noteworthy, is the concept of anticipatory self-
defense accepted in international law, and this was provided in the 1841 Caroline case with Daniel
Webster the US secretary of state outlining that showing a necessity of self-defense is instant,
overwhelming, leaving no choice of means and no moment for deliberation and also being proportional.
(Harris, 2010)
3
Professor Christopher Greenwood, Sources of International Law: An Introduction 2008 p. 1
4
Article 53, Vienna Convention on the Law of Treaties 1960 p. 18
5
Article 51, Charter of the United Nations and Statute of the International Court of Justice 1945 p. 10
6
Article 52, Charter of the United Nations and Statute of the International Court of Justice 1945 p. 11
7
Article 53, Charter of the United Nations and Statute of the International Court of Justice 1945 p. 11
This anticipatory self-defense was condemned Israel attacked Egypt in 1967 commencing the six-day
war. In 2001 the United States led coalition invasion of Afghanistan to pursue Osama Bin Laden and
remove the Taliban from power for humanitarian violations was not condemned as the UN Security
Council stated in resolution 1267 (1999) that the Taliban’s’ humanitarian violations, mass opium
production and protection of international terrorists including Osama Bin Laden was unacceptable. The
US also claimed the right of anticipatory self-defense. The 2001 invasion was an obvious expansion of
international law because the use of force was used against a state to change its government and non-
state actors to pay form crimes against the USA. The anticipatory self-defense definition that was
adhered to was also subverted because the US had between September 11 2001 and October 6 2001 as
a period of waiting, thus departing from the rubric of determining self-defense laid out in the Caroline
case. Subsequent UN Security Council resolutions surrounding Afghanistan did not renounce this use of
force but provided the framework for international assistance for the new Afghani government. 8
Collective Security
The second exception in the UN Charter is contained in Chapter VII titled action with respect to threats
to the peace, breaches of the peace, and acts of aggression. Articles 39 – 42 layout the rules to the
existence of a threat to or breach of international peace, use of measures not including force for
example a trade embargo and the use of force by any means necessary to maintain or restore
international peace and security.9
Other Exceptions
There are other exceptions not expressly states in the charter they are Intervention by invitation;
Protection of Nationals and Humanitarian intervention. The right to use force to protect nationals in a
foreign country is a debated issue in international law. Writers such as Brownlie and Bowett have had
differing opinions on whether the protection of nationals is contained within the inherent right of self-
defence. Bowett maintains that protection of nations is self-defence as long as it conforms to the
Carolina case. Brownlie on the other hand does not think this so.10 This right was utilized by the United
States as one of the justifications for entering Grenada in 1983, this action was condemned by a General
assembly resolution and an attempt to categorize it as an illegal action by the Security Council was
vetoed by the US. Israel also used this justification in defending its action in The Entebee Incident in
Uganda during in July 1976, where Israeli troops used deadly armed force to free its nationals from a
hijacked plane.
Humanitarian intervention happens when a state intervenes to protect the lives of the human rights or a
group of people in another country. This concept of legally permissible force for humanitarian reasons
was put forward by Hersch Lauterpacht in cases where action of a state is so extreme as to “shock the
conscience of mankind” (Harris, 2010) Interventions that included the use of military force have been
used by the Security Council in Iraq to stop the genocide of the Kurds and the invasion of Kuwait in
8
UN Security Council resolution 1378 (2001), 1383 (2001), 1386 (2001)
9
Article 39-42, Charter of the United Nations and Statute of the International Court of Justice 1945 p. 9
10
Andrew Thomson, Doctrine of the protection of nationals abroad: Rise of the noncombatant evacuation
operations, Washington University Global Studies Law Review. Vol.11:627
1991; Bosnia and Herzegovina by establishing safe havens and implementing a no fly zone11; Somalia to
provide humanitarian relief in 1992 with the establishment of UNITAF and UNISOM II for peace keeping
and enforcement12; Rwanda to end the genocide of the Tutsi by the Hutu and to provide humanitarian
relief by establishing UNAMIR II13 (Harris, 2010)
Intervention by invitation is a situation where military forces from a foreign state are invited into a
country at the request of its governing authority to assist in military activities. (Harris, 2010) This has
been seen in the Soviet intervention in Hungary in 1965; the Soviet intervention in Czechoslovakia
Republic in 1968; the Soviet intervention in Afghanistan in 1978 and the United States intervention in
Grenada in 1983. This is a highly debated issue due to the very nature of internal conflict.
Is Article 2 4 dead
The question that Thomas Franck asked was whether Article 2(4) is dead. The majority view is that
Article 2(4) is a legitimate example of jus cogens so as to place fundamental standards of acceptable
action on states. The reality that the use of force involves atrocities threatening human life places the
need to have Article 2(4) as jus cogens despite some state practice or opinion juris. The prohibition has
been accepted as norm of international law and is also enshrined in the UN charter giving it heavy
weight when considering its status as jus cogens. (Green, 2011) Green (2011), questions the status of
Article 2(4) as a peremptory norm based in the definition of a peremptory norm, the existence of
legitimate exceptions and changing state practice, but accepts that its roots in natural law make it
somewhat of a necessity to the operation of the international system and giving it jus cogens status may
increase the compliance pull over time.
Franck (1970), pointed out some ambiguities and complexities that affected the interpretation of a
violation of Article 2(4).
1. The flawed voting system of the UN Security Council and the possibility of veto from a
permanent member.
2. The vast amount of military encounters between 1945 and 1970 that lacked security
council approval
3. The self-defense exceptions are utilized more often than the rule, and is at most times
too difficult to prove.
4. Small scale warfare such as national liberation movements supported by international
forces, guerilla warfare and terrorism are not addressed in the charter.
5. Total destruction warfare with nuclear, biological and chemical weapons now existing,
which results in states not being able to be reactive to attacks due to the mass
destruction.
6. Regional organizations and groupings exercising authority over use of force measure
by invoking Articles 51 – 53 of the UN charter.
11
UNSC Resolution 776
12
UNSC Resolution 794
13
UNSC Resolution 929
In addition to these ambiguities and complexities, if a rule is not to be derogated then there should exist
no exceptions or avenues for parties to that rule to subvert or get around the rule. The wording of
Article 2(4) may also leave open to interpretation use of force for promotion of a UN agenda, an
example of this is humanitarian intervention, but will this interpretation be extended to justify other
uses of force against sovereign states.
Violations
Author Michael Glennon has stated that states have violated Article 2(4) so much that it has created a
customary international norm that erases Article 2(4) entirely, using an arguing point that opinion juris is
relative and only state practice matters when considering custom. (Glennon, 2001) I will list some of the
examples of use of force that have occurred despite the jus cogens.
Tanzania's 1979 intervention in Uganda; France's 1979 intervention in the Central African Republic;
India's 1971 intervention in East Pakistan; United States' 1983 intervention in Grenada; Iraq’s 1991
invasion of Kuwait 1991; and the Unites States’ 2003 invasion of Iraq. These are just a few of the
international conflicts that have occurred despite the clear language on the prohibition of the use of
force.
For the purposes of highlighting how use of force violations is evident in our current reality, I will use the
United States’ policy in Northwest Pakistan. Since 2004 the CIA and US military have been conducting
bombing raids in the northwest of Pakistan using Unmanned Aerial Vehicles also known as ‘Drones’. The
Bureau of Investigative Journalism has estimated as of June 2013 a total of 370 done strikes were carried
out with 2,548-3,549 people killed of which 411-890 are confirmed civilians. 14 Pakistan has had never
ending problems with the collateral damage of the covert operations and plans to take the issue to the
United Nations.15 At the beginning of September there were two such attacks which the Pakistani
authorities have called extra-judicial killings, and the US maintains that this is a legitimate campaign
against terrorism.16
Conclusion
Article 2(4) is a customary international law that is needed to guide states on what the international
standard for use of force is. The actual realization of the spirit of the Article is not wanted as states
ensured that exceptions exist and create new exceptions as the international environment changes. It is
all well and good to say it is the thought that counts, except when people’s lives are at stake. After
examining the statement posited after question Franck posed, it is obvious that Article 2(4) had little
power from the beginning and will continue to have less power in the future once we continue ignoring,
making excuses for and inventing new justifications for the violations of the prohibition of the use of
force. The statement made by Franck seems to be evidently true in practice but theoretical hypocrisy
14
http://www.thebureauinvestigates.com/2013/07/01/six-month-update-us-covert-actions-in-pakistan-yemen-and-
somalia/
15
http://www.ndtv.com/article/world/pakistan-to-launch-protest-against-us-drone-attacks-at-united-nations-417878
16
http://www.bbc.co.uk/news/world-asia-23983388
has rendered it false as the nations of the world seem to believe in the concept behind the prohibition
of the use of force.
Article 39 states “The Security Council shall determine the existence of any threat to the peace,
breach of the peace, or act of aggression and shall make recommendations, or decide what measures
shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and
security.”
Article 41 “The Security Council may decide what measures not involving the use of armed force
are to be employed to give effect to its decisions, and it may call upon the Members of the United
Nations to apply such measures. These may include complete or partial interruption of economic
relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the
severance of diplomatic relations.”
Article 42 “Should the Security Council consider that measures provided for in Article 41 would
be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as
may be necessary to maintain or restore international peace and security. Such action may include
demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United
Nations.”
Works Cited
Franck, T. M. (1970, October). Who Killed Article 2(4)? or: Changing Norms Governing the Use of Force
by States. The American Journal of International Law, 64(No. 5), 809-837.
Glennon, M. J. (2001). Limits of Law, Prerogatives of Power: Interventionism After Kosovo. Palgrave
Macmillan.
Green, J. (2011). Questioning the Peremptory Status of the Prohibition of the Use of Force. Michigan
Journal of international Law, 215-255.
Harris, D. (2010). Cases and Materials on International Law (7th ed.). London: Thomson Reuters (Legal)
Limited.
United Nations. (1945, October 24). Charter of the United Nations. Charter of the United Nations. San
Francisco, California, U.S.A.: United Nations. Retrieved September 10, 2013, from
http://treaties.un.org/doc/Publication/CTC/uncharter.pdf
