The success of the prohibition against use of force

Introduction
The question this essay seeks to answer is: Have the prohibition against the use of force found in Art. 2(4) of the Charter of the United Nations1 (hereafter the UN Charter) been a success? In answering that question one have to figure out how to measure success. In determining this, it is relevant to look at which indicators the legal text set up for this. In the preamble of the UN Charter it clearly states that the aim of the regime is ‘to save succeeding generations from the scourge of war, which has twice in our lifetime has brought untold sorrow to mankind..’ With this reference to the two world wars, it can be argued that the regime is successful if there is no third world war. However, if we look in the first article of the UN Charter, it is clearly stated that the purpose of the United Nations (hereafter the UN) is ‘To maintain international peace and security..’ When the point of reference is if the regime has maintained peace and security, it is not hard to argue that since there have been lots of wars and atrocities, the provisions have been unsuccessful. As a point of reference it seems more accurate to use the later, however applied in a less restrictive way. The point of reference will therefore be if the prohibition against use of has made a significant difference in maintaining peace and security.

In this essay I will take a positivist look at the empirical data presented through different times in history. It will be argued that the provision was flawed from the very beginning. This argument is based on the fact that the presumption for cooperation between the big five has been false and the fact that the law has been breach on numerous occasions through its existence. It will also be examined how the provision has kept up with the changing types of warfare and if we even no what it prohibit. Lastly it will be argued that the prohibition has lost some of it significance, because if nobody follows the law, is it then law. First the essay will give a short introduction to the provision to place it in the historical context that the later analyses will draw to.

The history of Article 2(4) of the UN Charter
The Charter of the United Nations entered into force on October 24th 1945 and thereby created the United Nations. The backgrounds for its creation were the ruins of the Second World War and the fear of and wish to prevent at new devastating world war.2 From the entry into force the charter had 513 members states. This number has now grown to 193 member states as well as permanent two observers.4 5
The aim of the UN is according to the preamble of the UN Charter ’to save succeeding generations from the scourge of war’ and the main purpose is ’To maintain international peace and security..’6 Article 2(4) of the UN Charter prohibit the use of force against other states by stating that ‘All members shall refrain in their international relations from the treat or use of force against the territorial integrity of political independence of any State, or in any other manner inconsistent with the Purposes of the United Nation.’ The clear exceptions to this rule are authorised use of force by the Security Council (Art. 42) and self-defence (Art. 51) while it is more controversial if intervention by invitation, responsibility to protect, reprisals and protection of nationals abroad can be seen as a legal exception to the prohibition.
The provisions in the UN Charter were not the first attempt to prohibit the use of force. This was tried in 1928 by treaty called the Briand-Kellogg pact.78 This pact did however not prevent the atrocities of the Second World War and was therefore overwritten by the current regime.
The prohibition against use of force is not only written but also customary international law. It is also what we call a jus cogens norm i.e. a fundamental principle of international law that is accepted by the international community of states as a norm from which no derogation is permitted.9
In the following it will be examined if the prohibition against use of force is successful in today’s society.
The assumption for cooperation was false
The Allied Nations10 adopted the prohibition against use of force soon after the Second World War. The aim was admirable, but as it will be shown, the provision was flawed from the very start. First of all it was assumed that the partnership between the allies would continue, which would in theory provide for the means of peace and security under the UN provisions. This assumption was indeed very much false. With great expectations comes great disappointments and not long after the conclusion of the treaty began the Cold War. This made it to say it the least very hard for the permanent members to cooperate.11 The former brotherhood of arms was destroyed not to be made good again. During the next 40 years the functioning of the regime to secure peace and security came to a standstill.12
Since the allies where no longer brothers of arms, the cooperation were not what it was intended to be. The states national interest where now the focal point for the negotiations in the Security Council, and it have surely not always been in the best interest for human kinds. As Thomas M. Franck rightly pointed out in his article ‘Who Killed Article 2(4)?’ ‘So long as there are nations, which is likely to be for a very long time, their pursuit of the national interest will continue; and where that interest habitual interest runs counter to a stated international norm, it is latter which will bend and break.’13 This assumption is in line with the realism theory, which is the dominant theory for practitioners. The theory sees power as the determinacy for outcome, and acknowledges that decision-makers only pursue their national interest within international relation, therefore will power always be the bottom-line in politics. The theory sees international law as insignificant since the law is only a product of states pursuing their interest and therefore not determent for the behaviour of states.14 It is an illusion to think that nations would put the interest of other states first. The relationship between the permanent members is strained with the U.S., China and Russia fighting for influence to further their national interests. This is last seen in the negotiations around the conflict in Syria where it can be argued that Russia is blocking the proposed resolution to protect its last naval base outside in the Mediterranean.15 During this ongoing conflict, it is clear that the relationship between Russia and the U.S. has been strained even more when Vladimir Putin recently wrote a provocative article on the subject in the New York Times.16
As a concluding remark it must be said that the functioning of the Security Council was flawed from the start. When the Security Council with so many national interests is giving the ‘primary responsibility for the maintenance of international peace and security’17 it seems hard to see how this goal can be met.
Do we even know what force is?
Another initial problem with the prohibition is that there is no international consensus on what constitutes a use of force. There is no legal definition of this, and there has through history been great discussion about it the use of force only includes the use of military force or also political and economic coercion. Such coercion can be just as critical as military force for a vulnerable state that relies on aid from western states. The African states are in favour of expanding the prohibition so it also includes economic coercion, while most western states are against such expansion.18 On the one hand it could be said that because the provision do not explicit mention that it only prohibit military use of force, then the provision should be interpreted broadly and also include other kinds of force as political and economic coercion. This makes sense since the UN Charter explicitly refer to armed force in its later provisions as Art. 51 relating to the right to self-defence, and it therefore can be argued that it was intentional that the provision refers to force instead of armed force. It can on the other hand also be argued that because it later refer to armed force it most be interpreted as implicitly meaning that this is what is meant by the use of force in Art. 2(4). The UN Charters travaux preparatoires19 and numerous declarations20 on the topic by the General Assembly of the UN seems to suggest that the prohibition against the use of force only is directed against the use of military measures. This is however only implicitly stated in these documents, and is therefore still unclear if also economic and political coercion in some instances could fall within the prohibition.

Another initial problem is that the very nature of warfare has changed drastically since the UN Charter was framed. When the UN Charter was drafted it was in the light of the warfare used during the Second World War. It was designed to deal with aggressive warfare as the one seen when Germany invaded Poland in 1939. Since this time the means of warfare has changed radically. The time where use of force could be described as one country invading another country with the means of armies with guns and bombs is long gone. Now the international legal order face new problems with weapons as nuclear bombs, biological and chemical weapons, drones and even cyber warfare. The persons conducting the attacks has moved from states attacking other states, to more indirect use of force as seen in Nicaragua, to terrorist attacking states and even leaders of states attacking its own peoples. The scale has gone from world wars, to small-scale wars during the Cold War and internal wars as the one we see right now in Syria. It is relevant to ask if the provision can keep up with this ever-changing means and methods of warfare. The short answer to this is yes. The provisions in the UN Charter relating to the use of force is interpreted rather flexible based on the purpose of the treaty rather than the original meaning of the words when the treaty was concluded.21 This is seen on numerous occasion as for example in the Nicaragua-case22 where the U.S.A. where found in breach of it obligation not to use force against another state. Even though the U.S.A. had not directly engaged in the attacks on Nicaraguan territory, it was ruled that by training, arming, equipping, financing and supplying the contra forces or otherwise encouraging, supporting and aiding military and paramilitary activities in and against Nicaragua the state had violated the prohibition against use of force.23 It was hereby ruled that indirect use of force was prohibited under international law. Another recent example is the International Court of Justice (ICJ) Advisory Opinion of the Legality of the Threat or Use of Nuclear Weapons24 where the court ruled that ‘A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful.’25 With this opinion ICJ took the position that nuclear weapons was contrary to Art. 2(4) of the UN Charter and thereby outlawed its use.26 Another recent development is the tendency after the 9/11 terror attacks to allow the inclusion of the right to self-defence against terrorist organisation within another state as a legal act of self-defence.27 It remains yet to be seen how the international society will interpret the UN Charter in relation to cyber attacks.28
As seen above the nature of warfare has changed. Until this day a flexible interpretation of the provisions of the UN Charter with emphasis on purpose makes the provisions relevant in the legal order even though the prohibition was not intended to deal with these new types of warfare. It remains yet to be seen how the provisions will deal with future means of warfare as for example cyber attacks and if the provision will be expanded to include some forms of political and economic coercion.
If nobody follows it, is it then law?
As Michael Glennon writes in Foreign Affairs, ‘Diplomatic historians have yet to identify a single instance of interstate violence that was actually stopped by the United Nations.’29 It is however not due to the lack of interstate violence, but due to the lack of the functioning of the Security Council as seen above. A question to ask is, when the law is constantly being broken, is it then even law?
The prohibition against use of force has been breach on numerous occasions with no legal impact on the states breaching the law. The most significant consequence a breach normally has, is condemnation from the world society. In some instances this is not even the case since. When NATO bombed the Federal Republic of Yugoslavia in 1999 was seen as the morally right thing to do even though the action was illegal.30 Other recent breach of the prohibition is the 2003 invasion of Iraq where the U.S. and U.K, without expressed authorisation from the Security Council, attacked Iraq and removed Saddam Hussein from power.31 This was contrary to the NATO bombing in 1999 condemned by the world society and the trust in the legality of the US foreign policy declined significantly. Most recently in the 2011 intervention in Libya, NATO where authorised by the Security Council acting under Chapter VII of the UN Charter to establish a no flight zone in the country.32 Both the mandate giving and the very creative interpretation of the resolution by NATO is presumably a violation of the international law relating to jus ad bello.33 All these example of violations of Article 2(4) leads one to think that if there is no legal consequence and if the law do not change the behaviour of states, is it then law?
There are at least three different schools concerned with this subject, the so-called legalist, core-interpretationist and the rejectionist.34 The legalist takes the positivist look that Art. 2(4) are still good law because it is written in a treaty that is in force. Until the state parties have withdrawn from this treaty is still binding upon the parties. The core-interpretations view the core of the prohibition as still good law, but argue that state practice has gone beyond the literal reading of the provision, allowing the rescue of nationals and humanitarian intervention.35 This view is the most accepted. The rejectionist on the other hand content that because the states have ignored the provision in so many instances following their national interest, then Art. 2(4) are not controlling the state behaviour.36 They view that when the norm fails to reflect the behaviour of the states, then the law is not law.
I tend to agree most with the core-interpretationist since it may seem like when international actors speak, they speak in terms of international law as they make legal claims. From a constructionist point of view it is the fact that states act and believe in the law that makes the law. States want to avoid charges of unilateralism and must therefore justify their action within the international legal system, sanctions therefore play a significant role. The legal system is seen as guidance to which procedure to follow for the acts to be considered as legitimate.37 Other states will tend to criticise a state for breach of the law as was seen with the international community’s response to the invasion in Iraq in 2003. The coalition justified their action within the legal scheme of different older resolution. This doubtful interpretation was however condemned by the international society as unjustified. This had significant influence on the U.S. credibility in foreign relations, there where thus some kind of consequence for the illegal act.
Conclusion
The UN has not developed as the founding fathers originally intended. While the prohibition against use of force is an admirable aspiration it is also too idealistic. The provision has in many instances lost its significance. This is in part due to the lack of cooperation within the Security Council, which made the provision flawed from the beginning since the states has a tendency to always pursue their national interest. The fact that many states has ignored the provisions in relation to authorisation from the Security Council for the more unilateral or regional alliance based use of force has led to the question if the provision is still good law. This essay agrees with the core-interpretationist that the core of the prohibition is still good law. It can be argued that the prohibition does not cover humanitarian intervention and rescue of nationals since this has been breach on numerous occasions, but the provisions seems to have some kind of significance in today’s society. The prohibition seems to be flexible enough to incorporate the new types of warfare as nuclear weapons and cyber attacks and it seems like the states at least feel the need to justify its action in legal terms. It is the states believe in the law that makes the law, and as some writers argue, it hard measures deterrence, which makes it hard to examine if the prohibition is successful. As Louis Henkin argue in his comment on Thomas M. Franck’s article ‘Who killed Article 2(4)?’38 ‘Article 2(4) has indeed been a norm of behaviour and has deterred violations. In inter-state as in individual penology, deterrence often cannot be measured or even proved, but students and politics agree that traditional war between nations has become less frequent and less likely.’39 Many however refuse to credit the provision for this lack of traditional wars and instead attribute this to other factors as territorial stability a greater cooperation between states.
As a conclusion it must be said that Article 2(4) has been unsuccessful in achieving its purpose as stated in Article 1(1) of the UN Charter that is ‘To maintain international peace and security..’ It has not developed into the international security system as it was intended to, but the provision is still relevant as the main analytical tool when analysing if hostile activities are legal. It seems that even though the prohibition has been breached lots of times, the states still feel the need to find legal justifications for their acts. If there is no legal justification, the actions will most likely be condemned by the international society. Even though the provision is important, I would argue that it is unsuccessful. It has not made the significance difference as it was set up to. It is hard to argue that it is successful when we see atrocities all over the world with no action from the Security Council. The national interest of the five permanent members seems to be in the way for this goal to be met. The prohibition against use of force constitutes an admirable aspiration for how the world should be, but is in reality so flawed that it cannot live up to this aspiration.

Bibliography
Books
Scott, S.V., International Law in World Politics, (Colorado, Lynne Riener Publishers Inc., 2010)
Articles
Arend, A. C. ’Do Legal Rules Matter? International Law and International Politics’, Virginia Journal of International Law, Vol. 107, (1997-1998), 107-153
Barkham, J. ’Information Warfare and International Law on the Use of Force’, New York University Journal of International Law and Politics, vol. 34, (2001-2002), s. 57-113
Byers, M., ‘Terrorism, the Use of Force and International Law after 11 September’, International and comparative Law Quarterly, Vol. 401, (2002), 401-414
Franck, T. M., ’Who Killed Article 2(4)?, The American Journal of International Law, Vol. 64, (1970), 809-837
Glennon, M. ’The New Interventionism: The search for a Just International Law’, Foreign Affairs, Vol. 78, (1999) 2-7
Goldsmith, E. A. Posner and J., ’The New International Law Scholarship’ The Georgia Journal of International and Comparative Law, 34:463, (2006), 463-483 at 467
Gordon, E. ’Article 2(4) in Historical Context’, 10 Yale Journal of International Law Vol. 271 (1985), 271-278
Henkin, L. ’The Reports of the Death of Article 2(4) are Greatly Exaggerated’, The American Journal of International Law, Vol. 65, (1971), 544-548
Joyner, C. C. & C. Lotrionte, ’Information Warfare as International Coercion: Elements of a Legal Framework’ European Journal of International Law, vol. 12, no. 5, (2001), 825-865
Reisman, M. W., ‘Criteria for the Lawful Use of Force in International Law’, Yale Journal of International Law, Vol. 10:279, (1985), 279-285
Schmitt, M. N. ’Computer Network Attack and the Use of Force in International Law -Thoughts on a Normative Framework’, Columbia Journal of Transnational Law U.S. Naval War College, vol. 37 (1999), 73-97
Silver, D. S., ’Computer Network Attack as a Use of Force under Article 2(4) of the United Nations Charter’ Intenational Law Studies – Naval War College, Vol. 76 (2002), 73-98
Internet
www.unric.org www.un.org www.foreignpolicy.com www.opiniojuris.com www.ejiltalk.org
Documents
The Charter of the United Nations (26 June 1945) hereafter the UN Charter
Documents of the United Nations Conference on International Organization, 1945, vol. VI, 559, 720-721
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), (Jurisdiction and Admissibility), 1984 ICJ REP. 392 June 27, 1986.
Legality of the Threat or Use of Nuclear Weapons - Advisory Opinion of 8 July 1996 - General List No. 95 (1995-1998)
UN General Assembly Resolution 42/22 (1987)
UN Security Council Resolution 1973 (2011)

Bibliography: Books Scott, S.V., International Law in World Politics, (Colorado, Lynne Riener Publishers Inc., 2010) Franck, T. M., ’Who Killed Article 2(4)?, The American Journal of International Law, Vol. 64, (1970), 809-837 Glennon, M Goldsmith, E. A. Posner and J., ’The New International Law Scholarship’ The Georgia Journal of International and Comparative Law, 34:463, (2006), 463-483 at 467 Gordon, E Henkin, L. ’The Reports of the Death of Article 2(4) are Greatly Exaggerated’, The American Journal of International Law, Vol. 65, (1971), 544-548 Joyner, C Reisman, M. W., ‘Criteria for the Lawful Use of Force in International Law’, Yale Journal of International Law, Vol. 10:279, (1985), 279-285 Schmitt, M Silver, D. S., ’Computer Network Attack as a Use of Force under Article 2(4) of the United Nations Charter’ Intenational Law Studies – Naval War College, Vol. 76 (2002), 73-98 Internet The Charter of the United Nations (26 June 1945) hereafter the UN Charter Documents of the United Nations Conference on International Organization, 1945, vol Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), (Jurisdiction and Admissibility), 1984 ICJ REP. 392 June 27, 1986. Legality of the Threat or Use of Nuclear Weapons - Advisory Opinion of 8 July 1996 - General List No. 95 (1995-1998) UN General Assembly Resolution 42/22 (1987) UN Security Council Resolution 1973 (2011)