Article 2(4) of the UN Charter: Alive and Well

Autor: Mihir Kanade

Originally Published at Peace and Conflict Monitor on: 07/07/2009

Category: Essay

The establishment of the United Nations in 1945 saw the prelude to the ‘New World Order’[1], based on the principle of ‘sovereign equality’[2] of all nations. The UN Charter proclaims as one of its principal purposes the maintenance of international peace and security.[3] This objective manifests itself quite vividly in Article 2(4) of the Charter, which mandates all its members to ‘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.’ The principle enshrined in Article 2(4) runs through the entire Charter like a golden thread weaving together all the other provisions.

However, within twenty-five years of the proclamation of the UN Charter, scholars began claiming that the continued use of force by the international community has led to the death of Article 2(4).[4] Ever since the UN Charter came into force, the world has on several occasions witnessed the use of force by countries for varied reasons. The NATO military action in Kosovo, the U.S. American action in Iraq and Afghanistan, the Russian invasion of Afghanistan and recently, actions in Georgia, Israel’s military actions in the Middle East, Uganda’s actions in DRC, North Korea’s invasion of South Korea, are, amongst other examples, all eloquent enough to show that States have indeed used force in their international relations. Backed by this factual matrix, today, the voices sounding the death-knell for Article 2(4) appear to have only grown.[5] These death certificates have been issued by scholars for two different reasons. Some scholars claim that Article 2(4) has simply failed to prevent what it so solemnly aimed to do – the use of force in international relations, and as such, the said provision has been rendered meaningless and outdated.[6] Others press into service a different argument that continued use of force by countries has given rise to a new set of customary international rules, thereby rendering the provisions of Article 2(4) otiose and nugatory.[7]

In this essay, I seek to demonstrate that both these arguments are fallacious, being founded on fundamentally erroneous premises regarding both the purpose of international law and the interpretation thereof. The essay is divided into four parts. The first part is the Introduction. The second part demonstrates why the arguments that Article 2(4) has failed to serve its purpose are erroneous. The third part deals with the incorrect arguments regarding emergence of new rules of customary international law governing the ‘use of force’. Finally, in the last part, I make some conclusions based on my analysis.

 

The purpose of Article 2(4).

 

As mentioned supra, many scholars have argued that Article 2(4) was introduced with the sole purpose of ensuring that countries do not use force in their international relations, and that empirical evidence into the number of times force has been used in breach of Article 2(4), has rendered that very purpose meaningless. The argument is that Article 2(4) has failed to achieve its lofty objective and, as such, the provision has lost all its meaning and is outdated.[8] In order to dispel this argument, it would only be apt at this juncture, to take a step back and look at the history of Article 2(4).

Since earliest times, states have employed military force to pursue their political and economic objectives.[9] Grotius, as long back as in the fifteenth century, articulated three justifiable causes (under the Just War theory) for States to use force – defence, recovery of property and punishment.[10] Oppenheim has pointed out that in the absence of an international organ for enforcing law, war was a means of self-help for giving effect to claims based or alleged to be based on International Law. According to him, “such was the legal and moral authority of this notion of war as an arm of the law that in most cases in which war was in fact resorted to in order to increase the power and possessions of a State at the expense of others, it was described by the States in question as undertaken for the defence of a legal right.”[11] Under this rule, States engaged in the use of force for vindication or for securing legal rights such as recovery of property or arbitral awards.[12] Traditional customary law even permitted states to use force by means of reprisals if certain conditions were met, viz. that there must have been a prior deliberate violation of international law; that an unsuccessful attempt must have been made at redress; and that the actions taken in reprisal must be proportionate to the injury suffered.[13]

It was in this backdrop, that the WWI presented the international community with the opportunity of reappraisal of the law governing use of force. Thus, by virtue of Articles 15 and 16 of the Covenant of the League of Nations, resort to ‘war’ by a member was deemed to be ipso facto war against all the other members of the League. However, the provisions stopped short of outrightly prohibiting use of force or even war. Thus, war continued to be an unprohibited instrument of national policy[14], till the Kellogg-Briandt Pact of 1928 was entered into in which war was in fact expressly outlawed as an instrument of national policy.[15]

However, neither the League of Nations nor the Kellogg-Briandt pact was able to prevent the ‘scourge of war’ that the world witnessed during the WWII. Thus, under the framework of the United Nations, it was thought necessary to introduce Article 2(4) in the Charter, making it illegal to use or even threaten to use force against the territorial integrity and political independence of another State, or in any manner inconsistent with the Purposes of the UN. It may be worthwhile to mention that Article 2(4) is preceded by a provision in Article 2(3) which mandates all States to settle their mutual disputes in a peaceful manner in order to secure international peace and security and justice. Thus, Article 2(4) is a logical complement of Article 2(3) and vice versa.

The Charter did not also intend to impose a complete and comprehensive ban on the use of force by member States. Two exceptions were expressly carved out in the Charter itself, those being the ‘inherent’ right to individual and collective self-defence recognized by Article 51 of the Charter and enforcement measures involving the use of force sanctioned by the Security Council under Chapter VII thereof. In recent times, more doctrinal exceptions to Article 2(4) such as anticipatory self defence (especially after the events of 9/11) and humanitarian intervention (NATO in Former Yugoslavia) have been pressed into service by some countries, reference to which would be made in the ensuing paragraphs.

In this historical backdrop, the question that begs attention is what is it that Article 2(4) really sought to achieve? What difference did it seek to make in the New World Order that was absent before its incorporation? The first answer to these questions is that it expanded the prohibition of military action from ‘war’ to ‘use of force’ and even to ‘threat of use of force’. This prohibition was a paradigm shift from the earlier rules governing use of force. I have demonstrated hereinabove, that use of force was hitherto legal, even for issues like recovery of property or in some cases, reprisals. Thus, with the introduction of Article 2(4), a rule of International Law was introduced for the first time making it illegal for States to use or threaten to use force, for any reasons other than the permissible exceptions. This principle has not only been recognized as a rule of international law, but has now achieved the status of a jus cogens norm – a peremptory norm of International Law from which no deviation is permissible. This was not only expressed by the International Law Commission as far back as in 1966[16], but has also been recognized as such by the International Court of Justice in the Nicaragua case.[17] Moreover, Article 103 of the Charter expressly states that obligations under the Charter would supersede obligations under any other international agreement. Finally, the International Court of Justice in the Nicaragua case held that the prohibition of use of force is now a part of the body of Customary International Law also.[18]

The composite effect of the aforesaid is that the prohibition of use of force has firmly been established as a rule of international law, deviation from which is permitted only in accordance with the exceptions mentioned supra. This fact of ‘attribution of illegality’ to any action in breach of Article 2(4) cannot be undermined, even in the face of several instances of breaches thereof by States. The argument that Article 2(4) has failed to prohibit use of force by States is an argument which rests on the premise that International Law is supposed to ensure that the rules are followed in all cases. This leads us to the rather philosophical and jurisprudential question of what is the role of international law in international society? This question must be answered by drawing the analogy of domestic laws. Domestic laws are framed to provide a binding code for normative behaviour, any breach of which entails legal consequences. The fact that such laws are framed prohibiting an action, does not mean that the prohibited actions are in fact not carried out in society. It merely means that such actions are illegal and are liable for consequences. Similar is the situation in International Law. The role of Article 2(4) is to provide a normative rule for prohibition of use of force in international relations within the ambit of the qualifying provisions, and that a breach thereof is not only illegal but subject to the right of an actionable claim at the behest of the aggrieved State. Again, as in the national sphere, legal rules are only one among a variety of factors that may influence behaviour.[19]

A note must be made here of the Realist school of thinking which makes a distinction between the role of International Law and Domestic Law. Michael Glennon, one of the more vociferous protagonists of the Realist school, believes that International Law is based on ‘consent’, whereas domestic law is based on ‘coercion’.[20] Thus, according to him, it is incorrect to compare the normative values of rules of international law and that of domestic law. Assuming that such dismissal of the Naturalist and Positivist schools is correct, it must be said that as long as international laws have binding value and entail legal consequences for breach thereof, these rules serve their purpose. In any legal system, international or domestic, breaking the law does not make the law disappear.[21] I, therefore, submit that Article 2(4) fulfills that purpose and is not outdated and meaningless, simply because States have actually used force. If the objections mentioned above are to be accepted, no rule of international law can be said to be meaningful and alive, because there always have been breaches of these rules.

In this context, to fortify my argument, reference may be made to the observations of the ICJ in the Nicaragua case that instances of state conduct inconsistent with a general rule should normally be treated as breaches of that rule, not an indication of the recognition of a new rule.[22] Although, the aspect of whether a new rule has been established by virtue of these breaches would be dealt with in the next part, this observation assumes significance in the broader context of the above discussion of what role does international law play insofar as its normative value is concerned.

The aforesaid objections to the utility of Article 2(4) have been fed in large parts due to the evolving doctrinal debates in International Law governing the use of force, such as humanitarian interventions, unilateral actions for protecting nationals in other countries and anticipatory or pre-emptive self-defence. The legality of each of these uses of force has been the subject of much debate amongst international scholars, particularly in the teeth of examples where such force has been used without sanction of the Security Council under Chapter VII. The use of force by NATO in Kosovo on purported humanitarian grounds, the use of force by Israel in Entebbe, Uganda, to rescue its own citizens, the use of force by US America in Iraq and recently, the use of force by Russia in Georgia on purported humanitarian grounds (or arguably in self-defence) have all been without sanction of the Security Council as is mandated by Chapter VII. However, without entering into the debate concerning legality of each of these actions, what is of utmost importance to notice is that none of the countries engaged in the use of force attempted to claim that Article 2(4) is redundant. Each of them, on the other hand, justified their use of force on some or the other exceptions permitted under the Charter and claimed that they had not breached Article 2(4). For instance, NATO action in the Kosovo was sought to be justified on the ground that such action was purely a humanitarian intervention.[23] As such, it did not breach the territorial integrity or political independence of any State, nor was it in breach of the Purposes of the UN, and therefore, was not in breach of Article 2(4). It was, in fact, an action for humanitarian purposes, something which member states have been obliged to follow under the Purposes of the UN. This justification is a departure from the traditionally accepted two exceptions and is an attempt to carve out a third exception based purely on the interpretation of Article 2(4). For the purposes of this paper, it is not necessary to test the validity of this argument. However, the fact remains that either way, no one ever claimed that the prohibition of use of force against the territorial integrity or political independence of another State has become redundant.

Similarly, the US American action in Iraq was sought to be justified on the grounds of anticipatory self-defence.[24] It may be noteworthy to point out that Article 51 gives the right of self-defence only in case an ‘armed attack occurs’, and not in anticipation of an imminent attack. It has been argued based on the Nicaragua judgement, that Article 51 of the Charter is not an exhaustive code within whose ambit the entire gamut of the right to self defence falls. Individual and Collective self-defence, it has been argued, has been recognized as an ‘inherent’ right even under Article 51, which leads to a conclusion that the same is part of the customary international law.[25] As such, the Treaty law under Article 51 and customary international law regarding self-defence run parallel to each other and operate in two separate domains. Anticipatory self-defence is therefore, as part of this body of customary international law, not limited by the restrictive language employed in Article 51 of the Charter. Again, without entering into the validity of this argument, it may only be stated that US America did not claim that Article 2(4) is redundant. On the other hand, it sought to justify its actions as a lawful exception to the prohibition of use of force.

The Israeli action in Uganda was justified on the basis of self-defence, in that an attack on its citizens was treated as an attack on Israel itself. Russia justified its actions in Georgia also on the ground that its citizens were being targeted in South Ossetia and Abkazia by the Georgian forces. In the same breath, some other uses of force, notably by Israel against alleged terrorist attacks on it by non-state actors in Lebanon and Palestine may be mentioned. In all these cases, however, some or the other legal justification under the exceptions to Article 2(4) have been put forth.

Many scholars have argued that these justifications on the basis of exceptions are only a camouflage for ascribing legality to patently illegal acts committed with intent abusive to Article 2(4). However, Higgins makes a good point in answer to this argument that we cannot lose sight of the fact that we live in a decentralized international legal order, where claims may be made either in good faith or abusively.[26] She adds that we delude ourselves if we think that the role of norms is to remove the possibility of abusive claims ever being made. The role of norms, she points out, is the achievement of values for the common good. This view presented by Higgins only lends credence to the arguments put forth by me.

I argue that in view of the above, Article 2(4) still serves the purpose it was deemed to serve. In fact, I argue that by claiming adherence to Article 2(4), the belligerent States have only reinforced the validity of the provision. Even on an empirical and statistical level, majority of the community of States have adhered to the provisions of Article 2(4) meticulously for solving their international disputes. As stated supra, exceptions by few states must be treated as breaches of the rule, and not as a death certificate for the rule itself. In the language of Henkin who eloquently rebutted the claims of legicide of Article 2(4) presented by Dr. Franck, “the purpose of Article 2(4) was to establish a norm of national behaviour and to help deter violation of it. ….. The sense that war is not done has taken hold, and nations more readily find that their interests do not require use of force at all.”[27]

 

New Customary International Law.

 

Recently, a new set of arguments, rather novel, has been put forth that continued use of force by States purportedly on the grounds of unilateral humanitarian intervention and anticipatory self-defence has led to the creation of new customary laws to that effect.[28] These arguments rest on the foundation that State practice has resulted in creating customary international law which does not necessarily confirm to the wordings of Article 2(4) and Article 51 of the Charter. As a result, Article 2(4) has been rendered otiose and nugatory.

Let us take the example of unilateral NATO action in Kosovo on humanitarian grounds without the sanction of the Security Council, and assume that this has led to the creation of new customary international law. This argument is significant because it presupposes that the humanitarian intervention cannot be justified on the basis of Article 2(4) and therefore, must find legality in customary international law. Scholtz argues that ‘unilateral’ humanitarian intervention is in breach of Article 2(4).[29] However, discussing the legality thereof is not the purpose of this essay. What is of importance to this analysis is the claim that the emergence of this new customary international law permitting unilateral humanitarian intervention, has resulted in acceptance of a law that is in breach of Article 2(4) and therefore, Article 2(4) is outdated. I argue that even with all the assumptions made in the opening sentence of this paragraph, this does not necessarily lead to a conclusion that Article 2(4) is rendered meaningless by emergence of this new customary rule of law.

If humanitarian intervention, whether unilateral or sanctioned by the Security Council, is really for humanitarian purposes, then it is not against the territorial integrity or political independence or Purposes of the UN. As such, it is not, by itself, in breach of Article 2(4). The question of legality or illegality of a unilateral humanitarian intervention is, in my view, concerned not with Article 2(4), but with the procedural requirements of Chapter VII. Thus, assuming that there is the emergence of this new customary rule of international law, it does not in any way conflict with Article 2(4), such as to render it nugatory.

Similarly, assuming that a new set of customary international law has emerged with respect to anticipatory self-defence, the same would be a rule which runs parallel to Article 51 of the Charter which deals with self defence. This new customary rule would then be a valid exception to Article 2(4) and cannot by any stretch of imagination be said to render it meaningless or outdated.

The Realist school of thinkers have gone even a step further in proclaiming that Article 2(4) has by virtue of its repeated breach, ceased to be obligatory and has become ‘desuetude’.[30] A rule’s abandonment through non-enforcement or non-compliance is known as ‘desuetude’. Glennon, the champion of this school, argues that where a rule of International Law has been repeatedly disregarded by a significant number of States over a long period of time, there is no longer reason to believe that States feel obliged to comply with that rule. Applying this logic to Article 2(4), he argues that severe non-compliance over a period of time by a significant number of States has resulted in its ‘desuetude’. He backs this logic by arguing that if the community of nations behaves as though rules do not exist, then they do not exist; and if they do not exist, they are not binding. Thus, he claims that by virtue of ‘desuetude’, Article 2(4) has opened itself up to be supplanted either by ‘no rule’ or by the international law’s default rule, the ‘freedom principle’ by virtue of which anybody can do whatever they please.

He claims that neither he, nor Dr. Franck, are alone in thinking along these lines. Thus, Jean Combacau has concluded that “the international community no longer believes in the system of the Charter… and is in fact back where it was in 1945: in the state of nature.”[31] Richard Falk has opined that “the decline of normative restraint can be seen in the broadening of the definition of self-defence and in the increasing resort to unilateral force by sovereign States. A consequence of this is to convert the rules of behaviour embedded in the UN Charter into aspirational norms.”[32] Anthony Arned has observed that “through customary practice, States have withdrawn their consent from Article 2(4); the argument that it is still in force, denies the dynamic nature of International Law”.[33]

I argue that the edifice of these arguments is built on an entirely erroneous foundation, the weakness whereof must necessarily bring down the whole structure. First, the argument completely loses sight of the fact that Article 2(4) is jus cogens and is not susceptible to change unless it is replaced by a new peremptory rule enjoying the same status of jus cogens. None of the Realists have suggested that State practice contrary to Article 2(4) has created such a jus cogens norm. What they claim is ‘desuetude’; that there is either ‘no rule’ or there is ‘freedom principle’. In other words, I argue that jus cogens norms are not subject to the rule of desuetude.

Second, there is no international support to the argument that the principle of ‘desuetude’ applies to International Law, except for some US American scholars like Glennon.[34]

Thirdly, assuming that the principle applies to international law, the fact is that not one country has ever accepted that its actions are in breach of Article 2(4). As such, there is no basis for presuming that Article 2(4) has been severely not complied with by States.

Fourthly, the assumption that a ‘significant’ number of states have ‘severely not complied with’ the principles of Article 2(4) is without any basis. The facts, by all empirical evidence, are to the contrary.

Lastly, to my mind, the whole argument with respect to Article 2(4) falling into ‘desuetude’ is erroneous because it fails to take into account the dynamic nature of international law (ironically, the very ground which Arned uses to say that Article 2(4) has become ‘desuetude’). For a rule to become ‘desuetude’ by way of continuous non-compliance or non-enforcement, it must only be logical that States must at all times be ad idem on what the rule is. It is only that accepted ‘interpretation of the rule’ that can become ‘desuetude’. If different States adopt different interpretations of Article 2(4) to justify or outlaw some non-traditional actions such as humanitarian intervention, then the rule is subject to dynamic interpretation or the process of ‘accretion’. In that case, there is a serious dispute as to what constitutes violation of the rule. If that be so, it does not make much sense to claim that a rule of law prescribing a violation has become ‘desuetude’ by virtue of non-compliance, when States themselves do not agree on what is non-compliance. What process of reasoning justifies an inference that disputed non-compliance of disputed interpretations of Article 2(4), is without dispute? Interestingly, Glennon himself agrees that ‘in reality, the Charter’s use-of-force rules are extremely malleable and vast differences of opinion exist as to what constitutes a violation’.[35] It does not appear logical to say in the same breath, that the same ‘unclear’ rules have ‘clearly’ become ‘desuetude’.

Under the circumstances, I argue that the claims that Article 2(4) has become meaningless or outdated because a new set of customary rules has emerged, or that it has passed into ‘desuetude’, are erroneous.

 

Conclusión

 

In conclusion, it may be said that Article 2(4) continues to bear meaning and utility in the context of the ever changing world. The 2004 report titled ‘A More Secure World’ issued by the High Level Panel on Threats, Challenges and Change appointed by Kofi Annan, Kofi Annan’s own document ‘In Larger Freedom’ and the Outcome document of the World Summit 2005, are all in consensus that no change in the UN Charter provisions relating to use of force is necessary, and that they are adequate to meet the new threats.[36] Of course, the new threats of terrorism, involvement of non-state actors in cross border warfare and nuclear proliferation, all present new challenges to the world community. But there is nothing in the provisions of Articles 2(4) and 51 to suggest that these threats cannot be adequately dealt with within the framework of the existing provisions.

Footnote: [1]Roosevelt, January 1941, quoted in Sampson and Chambers, Developing Countries and the WTO, United Nations University Press, 2008, at page 192.

[2] Article 2(1) of the UN Charter.

[3] Article 1(1) of the UN Charter.

[4] Franck, Thomas – Who killed Article 2(4)? or Changing norms governing the use of force by States, Centre for International Studies, New York University, 1970.

[5] Glennon, Michael – How International Rules Die , Georgetown Law Journal, Vol. 93, p. 939, 2005

[6]4

[7]5

[8]4

[9] Higgins, Rosalyn – International Law and How We Use it, Chapter 14, The Individual Use of Force in International Law, 1998, at page 238.

[10] Grotius – Book II, De jure belli ac pais, Chapter I, ss. 1.4 and 2 ; Chapter 2, s. 13: quoted in Ibid. 9.

[11] Oppenheim, Derecho Internacional, Vol. 2, 1952 at Page 177-78: quoted in Damrosch, Henkin, Pugh, Schachter and Smit – International Law, Cases and Materials, American Casebook Series, 2001, at page 923.

[12] Schachter, Oscar – International Law in Theory and Practice, page 110-113: quoted in Damrosch, Henkin, Pugh, Schachter and Smit – International Law, Cases and Materials, American Casebook Series, 2001, at page 939.

[13]9, at Page 240.

[14]11

[15]9

[16] Yearbook of International Law Commission, Edition 1966, Volume 2, at Page 247.

[17] International Court of Justice, Nicaragua vs. United States, I.C.J. Reports 1986, Page 14, at Paragraph 190, Page 871. Also see – Linderfalk, Ulf – European Journal of International Law, Vol. 18, Issue 5, pp. 853-871, 2007

[18]17, at paragraph 185, Page 870.

[19] Gray, C. – International Law and the Use of Force, Page 25

[20] Ibid 5

[21] Slaughter, Anne-Marie – Misreading the Record, Foreign Aff., July-Aug 2003, at 202, 203

[22] Ibid 17, at Paragraph 186, Page 870.

[23] Gazzini – 2002 European Journal of International Law, at Pages 391-435.

[24] See O’Connell – http://www.asil.org/taskforce/oconnell.pdf , retrieved on 30 April 2009.

[25]17, at Paragraph 176, Page 867.

[26]9, at Page 247.

[27] Henkin – The reports of death of Article 2(4) are greatly exaggerated, The American Journal of International Law, 1971, Volume 65, Page 544.

[28] See Scholtz W, The Changing Rules of Jus ad bellum: Conflicts in Kosovo, Iraq and Afghanistan, PER 2004(2) Pages 1-37.

[29] Ibid 28.

[30] Ibid 5.

[31] Combacau, Jean – The Exception of Self-Defence in United Nations Practice, The Current Legal Regulation of the Use of Force, Page 32.

[32] Falk, Richard – Revitalizing International Law, page 96 (1989)

[33] Arend, Anthony – Legal Rules and International Society, Page 76 (1999)

[34] O’Connell, Mary – Customary International Law on the Use of Force: The UN Charter, practice and opinio juris, www.addix.it/internazionale/relazioni/Connell.pdf , retrieved on 29 April 2009.

[35] Ibid 5, at Page 963.

[36]19, at Page 4.

Bio: Mihir Kanade has been a lawyer for five years practicing principally before the Supreme Court of India and the Bombay High Court. He holds a Master in International Law and the Settlement of Disputes from the University for Peace