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Introduction.
This is an investigation into the continued debate over the legality of the use of force in international law. In what is termed the post “Un Charter” period, there is argued to be a clear prohibition on the threat or use of force against the territorial integrity or political independence of any other state as is set down in Article 2(4) of the UN Charter itself. However, despite this seemingly clear prohibition, the use of force is clearly still prevalent in the world at large. In addition, the threat of force, including the use of nuclear force has continued to be exhibited by States such as the United States and North Korea, who in the past year have threatened each other with mutual nuclear destruction. This essay will assess the limits of the prohibition on the use of force in modern international law, and in the light of recent events, will assess whether or not it can be said that the prohibition on the use of force is still effective.
The General Prohibition on the Use of Force.
The United Nations (UN) was established in 1945 in the wake of the Second World War in order primarily to ensure that war between States could not again wreak the terrible destruction that had been seen in the first half of the twentieth century. The general prohibition on the threat or use of force contained in Article 2(4) of the UN Charter is therefore seen as central to the entire mission of the UN, with the principle of prohibiting the unilateral use of force itself being regarded as being the very “raison d’etre” of the UN. The prohibition appears at first glance to be relatively clear in its scope, as it prohibits the use, or threat of the use of force, against the territorial integrity or political independence of any State. This is however subject to certain exceptions, such as the United Nations’ ability to take collective security measures, including the use of force, if sanctioned by the Security Council under Article 42 UN Charter. Similarly, States are explicitly entitled to the use of force in self-defence under customary international law as is provided for under Article 51 UN Charter.
It is possible however that these exceptions can be regarded as giving some scope to States to seek to evade the general prohibition on force. As can be seen by the state of current events in the world today, the use of force, and the threat of the use of force remains prevalent. Many of the current conflicts in the world can be seen as being initiated primarily for the purposes of altering the political status, independence, or territorial integrity of the States in question and thus these conflicts would appear at first glance to be caught by the reach of Article 2(4) UN Charter as was stated by the International Court of Justice (ICJ) in its landmark judgment in Nicaragua v United States. For example, the ongoing war in the Donbass region of the Ukraine is aimed primarily at determining or altering the territorial boundaries and integrity of the Ukraine and the Russian Federation, and the Russian annexation of the Crimea in 2014 was a similar exhibition of force aimed at the acquisition of territory. Similarly, the United States and United Kingdom’s invasion of Iraq in 2003 was specifically stated as being justified by the need to remove the government of Iraq, thus appearing to violate the States’ right to political independence and seemingly falling under the prohibition on the use of force in Article 2(4) UN Charter. The UN Charter also notably prohibits not only the use of force however, but also its threatened use, but it can be seen that many States continue to threaten the use of force, and even nuclear force against other States in the modern world. For example, in the past year, the Democratic People’s Republic of Korea (North Korea) and the United States have engaged in a seemingly “tit-for-tat” nuclear threat or standoff. In particular, North Korea threatened that it could strike the US mainland with nuclear missiles and engaging in the testing of ballistic missile rockets in the Pacific region (including overflights of Japan), whilst the President of the United States, Donald Trump retaliated with threats that the United States would “totally destroy” North Korea in a speech at the United Nations.
It is submitted that many of these threats and uses of force are justified by States on the grounds of self-defence and that this has been made simpler for States because the Charter itself does not specifically cover whether or not the right to self-defence under international law also includes a right to pre-emptive, or anticipatory self-defence. The legality of this threat will now be considered.
The Legality of the Threat of the Use of Force or Use of Force in Modern International Law and the “Bush Doctrine”.
As stated, there has long been disagreement between international lawyers as to whether the exception to the general prohibition on force set out in Article 2(4) UN Charter extends to situations where States seek to pre-emptively defend themselves from an attack or not. The ICJ in the Nicaragua judgment appeared to have held clearly that an “armed attack” was necessary for a State to invoke its customary right to self-defence under Article 51. The same was true in Armed Activities on the Territory of the Congo where Uganda’s use of force against the Democratic Republic of Congo (DRC) was held to be unlawful as it was in retaliation to paramilitary attacks, and not an “armed attack” from the DRC itself. However, others have argued that the ICJ in Nicaragua “did not say if, and only if and armed attack occurs” could self-defence be lawful. Instead, some States have argued that the right to self-defence in international law can also extend to anticipatory or pre-emptive self-defence, as was the position of customary international law in the pre-Charter period. This argument appears to be based on the wording of Article 51 which suggests that the right to self-defence in the Charter is simply a preservation and express re-affirmation of the existing position of customary international law, which therefore survives the Charters transposition of it into treaty. Furthermore, this is an argument which has become much more popular since the 9/11 attacks, after President George W. Bush launches his global “war on terror” and invasions of both Afghanistan and Iraq on the grounds of pre-emptive self-defence and in order to protect the United States from potential attacks including from non-state actors in the form of terrorists. Under the historical position of customary international law, this form of pre-emptive self-defence is considered lawful, if it is both necessary, and the level of force used is proportionate according to the so called “Caroline formula”. These requirements are submitted to have formed part of customary international law through custom, State practice and the opinio juris of scholars and the international judiciary as was seen in the ICJ’s ruling in Advisory Opinion on the Threat or Use of Nuclear Weapons where the Court held that the retention of nuclear arsenals was itself a threat of nuclear war; however, this threat was necessary as it was a proportionate and necessary response to nuclear proliferation and underpinned the doctrine of mutually assured destruction without which nuclear war might be more likely. Under the ICJ’s own reading of the right to self-defence in the Nuclear Weapons opinion therefore, the use of nuclear force in self-defence or the threat of nuclear force in anticipatory self-defence is indeed lawful. Seen in this light, the threat of nuclear destruction promised both by North Korea and by Donald Trump appears to have been within the boundaries of pre-emptive self-defence acknowledged as being permissible under international law, even if the ICJ’s jurisprudence on this point appears somewhat contradictory and confusing when considering the Nicaragua and Congo opinions. It might well be that following 9/11, the Court and indeed the Members of the UN themselves are now ready to accept threats of force as being regarded as being part of the permissible scope of self-defence under customary international law, which is in turn preserved by Article 51 UN Charter. This also has the advantage for many states of masking their territorial or political ambitions gained through the use of force with a guise of legality. This is submitted to be something which the UN Charter was established specifically to prevent, and it may well be that the re-incarnation of pre-emptive self-defence as a part of customary international law poses an existential threat to the continued utility of Article 2(4) and the general prohibition of force under the UN Charter as a whole.
Conclusion.
In summary it appears as though State practice after 9/11 appears to be that the use of threats or force in pre-emptive self-defence is lawful if proportionate and necessary, and this has been accepted by the ICJ in their Nuclear Weapons opinion. The ongoing use of force and the threats of force seen worldwide therefore can be seen in this light as being lawful. Despite this apparent lawfulness however it can be argued that the current state of international law poses a real threat to the ongoing survival and efficacy of Article 2(4) UN Charter itself, and it might well be suggested that a better position would be for the ICJ to seek to prohibit the use or threat of force more clearly by tightening significantly the control over the use of pre-emptive force in the future.
Bibliography.
Table of Cases.
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Rep 226
Case Concerning Armed Activities on the Territory of the Congo (Uganda v Democratic Republic of Congo) [2006] ICJ Rep 126
The Republic of Nicaragua v The United States [1986] ICJ Rep 14
Table of Legislation.
Charter of the United Nations 1945
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