Has Article 2(4) Of The UN Charter Become Redundant In The 21st Century?

Daniyal Hassan Commentary, Guest Columnists

Has Article 2(4) Of The UN Charter Become Redundant In The 21st Century?

The principle of non-intervention in international relations is indeed deep-rooted. It would be difficult, if not impossible for there to be intercourse between states had this principle not been there. This principle has acquired the status of jus cogens in international law. However it has developed significantly over the years.

This essay aims to critically examine the applicability of Article 2(4) in the 21st century[1]. A brief history of the embodiment of the principle of non-intervention in Article 2(4) shall be stated. This will follow an explanation of the development of exceptions to this principle. The frequent use of those exceptions will then be analyzed. And finally a conclusion will be offered as to the statement in question.

I. HISTORY

During the first centuries of Christianity the principal theories on war were formed, which in the Middle Ages gave rise to the foundations of the law of war. The matter whether or not the recourse to war was legitimate was considered from two perspectives: the pacifists condemned any recourse to collective violence irrespective of its objectives and purposes; whilst the doctrine of ‘just war’ allowed the use of force provided that the ‘cause’ was ‘just’. Augustine of Hippo[2] defined ‘just war’ as follows:

“Just wars are usually defined as those which avenge injuries, when the nation or city against which warlike action is to be directed has neglected, either to punish wrongs committed by its own citizens or to restore what has been unjustly taken by it. Further, that kind of war is undoubtedly just which God Himself ordains.”

This shows that wars were fought mainly in the name of religion, whatever the social, political or economic motives of the conquests be. In fact wars were mainly conquests by one empire against another. There were hardly any rebellions in the empires from within for what we today call human rights. Rights was not a concept known to man until quite recently. The monarch was thought to be the sovereign and everyone felt obligated to show allegiance to him/her.

However as time moved on and these huge empires broke down into smaller ones and then finally into even smaller nation states by the end of the 19th century, a need to regulate the law of war was felt. The first attempt to limit the right to wage war took place at the end of the nineteenth and the beginning of the twentieth centuries at the Hague Peace Conferences of 1899 and 1907. The major breakthrough took place after World War I with the creation of the League of Nations and the adoption of the General Treaty for the Renunciation of War 1928 known as the Kellogg-Briand Pact. Various heads of state are to be credited for this achievement and further development of the principles of jus ad bellum[3] and jus in bello[4].

Finally with the creation of the United Nations and the formulation of the Charter of the United Nations, these principles of ‘just war’ or the reasons for going to war were codified and in fact their applicability was reduced to a great extent, as compared to the time of St. Augustine. Article 2(3)[5] of the Charter makes it mandatory on nation states to resolve their disputes in a peaceful manner and Article 2(4) expressly prohibits the threat or use of force in international relations.

Having analyzed the history of the principle of non-intervention very briefly, the scope of Article 2(4) and its exceptions will be analyzed at some length.

II. SCOPE OF ARTICLE 2(4) AND ITS EXCEPTIONS

There seems to be a general prohibition on the use of force by a state outside its borders as per Article 2(4) which was analyzed by the International Court of Justice (ICJ) in the Corfu Channel Case: United Kingdom v Albania (Merits)[6]. In this case following an incident when two British warships had been struck by mines while exercising a right of innocent passage in Albanian territorial waters, the UK carried out minesweeping operations (Operation Retail) in the Corfu Channel. The UK argued her action was not in breach of Article 2(4) since it ‘threatened neither the territorial integrity nor the political independence of Albania. Albania suffered thereby neither territorial loss nor any part of its political independence.’ The ICJ rejected the British arguments by stating that:

“The Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has in the past given rise to more serious abuses and such as cannot, whatever be the present defects in international organization, find a place in international law… The United Kingdom Agent… has further classified “Operation Retail” among methods of self-protection or self-help. The Court cannot accept this defence either. Between independent states respect for territorial sovereignty is an essential foundation of international relations.”

It is patently clear that the ICJ in an early case as the one at hand rejected the use of force by the United Kingdom which one could argue has a justification. This is because the world was at an agreement to avoid another war after the catastrophic World War II.

The meaning of the phrase ‘against the territorial integrity or political independence of any state’ has been disputed by writers in international law. Professor Bowett states:[7]

“The phrase “against the territorial integrity or political independence of any state” may, on one construction, mean that the element of intent is introduced into the prohibition; namely, that the use of threat of force contravenes this obligation only where intended to jeopardize the political independence or territorial integrity of another state. Or, if specific intent is not required, it may mean that at least the use or threat of force must have this effect before being in contravention of Article 2(4).”

Professor Bowett stressed on the need for there to be intent to affect the territorial integrity or political independence. It will be hard to reconcile his view with the international law today because threat or use of force against Article 2(4) is generally denounced by the international legal community.

Professor Brownlie gives a more pragmatic explanation for the phrase. He argues:[8]

“The conclusion warranted by Travaux preparatoires is that the phrase under discussion was not intended to be restrictive but, on the contrary, to give more specific guarantees to small states and that it cannot be interpreted as having a qualifying effect… The phrase “political independence and territorial integrity” has been used on many occasions to epitomize the total legal rights which a state has. Moreover, it is difficult to accept a “plain meaning” which permits evasion of obligations by means of a verbal profession that there is no intention to infringe territorial integrity and which was not intended by the many delegations which approved the text. Lastly, if there is any ambiguity by the principle of effectiveness should be applied.”

Professor Brownlie’s view is more pragmatic because it offers protection for smaller and weaker states. Without such a protection for these states, the economic and political giants would use international law in a way which favours their point of view and their practices. This does not mean that currently the powerful countries don’t do acts contrary to international law. In fact, even today with a system of check and balance there at the international legal front, the permanent members of the Security Council, to name but a few, are not held accountable in a manner similar to that of the accountability of African states, for example.

Moving on to the discussion of exceptions to Article 2(4), there are some envisaged in the Charter while some have developed over time. Most of these exceptions will be explained and analyzed before it can be ascertained whether or not they have led to Article 2(4) being redundant in the 21st century.

Article 51 of the UN Charter[9] lays down one of the most important exceptions to the prohibition of use of force, as stated in Article 2(4). In broad it lays down self-defence as a ground to use force against another state. Self-defence in itself is a very vague idea, be it domestic law concerning individuals or international law concerning states. It is difficult to define parameters of self-defence, especially when it comes to international law and this has rather led to an abuse of this exception. It would not be wrong to state that the Charter does not mention of other exceptions explicitly. Hence the application and scope of Article 51 is to be analyzed at some length.

Although Article 51 lays down the requirement of an armed attack for there to be a right of self-defence, states have use the principle of self-defence very broadly and have engaged in armed attacks without there being a prior attack. Moreover countries like Israel and the United States have used Article 51 as a justification to avenge attacks and even failed attempts. Whether or not this is in line with the international law, is an ongoing debate. Unfortunately, the ICJ has never made an authoritative statement on the issue of pre-emptive or anticipatory self-defence. This stance of the Court has been criticized by Judge Elaraby in his dissenting opinion in the Case Concerning Oil Platforms: Islamic Republic of Iran v United States of America[10] in the following words:

“The Oil Platforms case presented the Court with the occasion to reaffirm, clarify, and if possible, develop, the law on the use of force in all its manifestations… The Court regrettably missed this opportunity. The judgment refrained from exploring refinements and progressive development of the existing doctrine. Even an obiter dictum was not contemplated. The international community was entitled to expect that the International Court of Justice, on an issue as important as the prohibition on the use of force, would take the opportunity to clarify and enhance the prohibition, and add probative value to the existing jurisprudence.”

Judge Elaraby was not wrong to criticize the Court for not embarking upon the law regarding use of force in international law. However his contentions were not fully correct either. The ICJ has a very limited mandate in its Statute as well as under the Charter. The ICJ does not have a universal jurisdiction, nor does are its decisions binding on states other than the parties. There is no system of stare decisis in international law. So even if the Court had taken the opportunity to give its opinion on use of force and pre-emptive self defence, it would have been very like that the Court’s take would not have been followed.

A few examples are illustrative of this. In 1976 an Air France aircraft with 251 passengers on board was hijacked by pro-Palestinians and taken to Entebbe in Uganda. The hijackers released the majority of the passengers but continued to hold some 60, most of whom were Israeli citizens. The Ugandan Government (under Idi Amin) did little to bring the hijacking to an end and shortly before a deadline set by the hijackers an Israeli commando raid took place. Commandos arrived unannounced at Entebbe where they stormed the hijacked craft, released the passengers and killed the hijackers (and some 45 Ugandan soldiers) before returning with the passengers to Israel. Israel claimed that Article 51 permitted it to use force in such circumstances in order to protect its citizens abroad if the state in which they found themselves was either unable or unwilling to protect them. International opinion was divided on this. However it has been accepted that where there is an imminent danger to a country’s citizens and the host country is unwilling or unable to protect them, a rescue operation with military force being used would be justified. However was the killing of 45 Ugandan soldiers justified? Hardly anyone could make such a claim.

Another example of Article 51 being used as a justification for launching attack could occurred in 1993. An assassination attempt was made on former President of the United States, George H.W. Bush in 1993 when a car bomb was discovered in Kuwait. Almost two months later the U.S. launched a substantial cruise missile attack against Iraqi Military Intelligence Headquarters in Baghdad, causing death and destruction. Clearly this was an act of reprisal in response to the assassination attempt. However the U.S. argued that Article 51 permitted this sort of use of force and further said that the delayed response was due to the time taken for evidence collection to prove the involvement of Iraqi intelligence. Although this was supported by the Security Council at that time, this sort of application of Article 51 leaves weaker countries more vulnerable.

Collective self-defence is also permitted by the UN Charter in Article 52. However it is subject to oversight by the Security Council. North Atlantic Treaty Organization (NATO) is an example of such an organization. Collective self-defence is not widely used. Currently, it can be seen in the nine nation Saudi-led coalition against the Houthi rebels in Yemen. The coalition has wide support from the Security Council and is claiming to act in self-defence. Rather it is Saudi Arabia which has argued self-defence. Whether or not it is really an issue of self-defence, cannot be discussed and concluded in the scope of this essay.

III. CONCLUSION

It follows from the discussion above that while Article 2(4) provides for a complete prohibition on threat or use of force with limited exceptions under Articles 51 and 52, the current international positions seems otherwise. Powerful states with resort to the use of force without exhausting peaceful means of settlement of dispute. Article 51 has been interpreted in a way to include pre-emptive self-defence which perhaps was not the purpose of the Article initially. In light of the above discussion and  prevailing circumstance on the international front, it is submitted that Article 2(4) of the UN Charter has in effect become redundant in the 21st century.

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Bibliography:

Legal textbooks and articles

  1. Kaczorowska, A. Public international law. (London: Old Bailey Press, 2005) third edition [ISBN 1858366070]
  2. Bowett, D. W. 1958. Self-defence in International Law. (Manchester: : Manchester University Press, 1958)
  3. Brownlie, I. International Law and the Use of Force by States. (Oxford: Clarendon Press, 1963)

Cases and statutes

  1. [1949] ICJ Rep 4, Corfu Channel Case: United Kingdom v Albania (Merits)
  2. [2003] 42 ILM 1334, Case Concerning Oil Platforms: Islamic Republic of Iran v United States of America
  3. Covenant of the League of Nations, 1919
  4. Charter of the United Nations, 1945

Legal databases and other websites

  1. Lexis Nexis (https://www.lexisnexis.com/uk/legal/)
  2. Westlaw UK (legalresearch.westlaw.co.uk/)
  3. JSTOR (http://www.jstor.org)
  4. HeinOnline (heinonline.org/)
  5. New York Times (http://www.nytimes.com/)
  6. The Economist (economist.com/)
  7. Foreign Policy (http://foreignpolicy.com/)
  8. Academic OneFile (http://www.gale.cengage.com/PeriodicalSolutions/academicOnefile.htm)
  9. United Nations (http://www.un.org/en/home/)

References:

[1] Article 2 (4) UN Charter: “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.”

[2]  354 AD – 430 AD

[3] Jus ad bellum(Latin) “right to war” is a set of criteria that are to be consulted before engaging in war, in order to determine whether entering into war is permissible; that is, whether it is a just war.

[4] Jus in bello(Latin) “law of war” is what we today call International Humanitarian law or the rules of war.

[5] Article 2(3): “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.”

[6] [1949] ICJ Rep 4

[7] p.152, Self-Defence in International Law, Manchester: Manchester University Press, 1958.

[8] p.268, International Law and the Use of Force by States, Oxford: Clarendon Press, 1963.

[9] Article 51: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

[10] [2003] 42 ILM 1334

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.

Daniyal Hassan

Author: Daniyal Hassan

The writer holds an LL.B (Hons.) degree from the University of London International Programmes and is serving as the competition coordinator for national rounds of the Philip C. Jessup International Moot Court Competition, also the world’s largest international law competition. He has also been part of a focused group discussion with the UN Secretary General’s Envoy on Youth, Mr. Ahmed Alhendawi. He has participated in multiple moot court competitions and won the “Best Advocate” awards at two of them. He was also one of the 25 participants from Pakistan who participated in a US State Department sponsored exchange program in 2014. On the 800th anniversary of the world’s first human rights charter, The Magna Carta, he was also invited for a panel discussion on its practical significance by the British High Commission in Pakistan.