Pre-20th century, the jus bellum iustum doctrine was non-existent and states had autocratic freedom to go to war. Currently, the explicit prohibition on the use of force in solving international disputes is contained within Article 2(4) of the Charter of the United Nations which 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”. It is labelled as the “cardinal rule” of international law and “cornerstone” of peaceful relations among states. Two exceptions exist to this article permitting self-defence under Article 51 and the authorisation of use of force by the United Nations Security Council under circumstances where there happens to be “threats to the peace, breaches of the peace and acts of aggression.”
Has the continued use of force by states led to the eradication of Article2(4)? After the implementation of the UN Charter, there have been several occurrences in which the use of force has been used by different states for different reasons. Occasions such as the NATO military action in Kosovo, the U.S. American action in Iraq and Afghanistan and the Russian invasion of Afghanistan corroborate claims that Article 2(4) has failed to complete its solemnly function. Many scholars argue that the continuous use of force by the states renders the provisions of Article 2(4) archaic and of no practical purpose.
An area which has continuously employed the interest of scholars is the ambiguity contained within Article 2(4) and the great number of infringements by member states on the use of force since the implementation of the Charter in 1945. The expansive flexibility in being able to construe the wording of Article (2) to justify member states’ use of force to protect national interest is the underlying reason behind the recurrent violations. This finding is further established in the judgement of the International Court of Justice in a Case regarding military and paramilitary activities in and against Nicaragua in which it was held that there is no question posed on the validity of the principle to the States, rather the aim is to support its conduct by invoking different exceptions or justifications within the provisions of the Charter. It is evident that this way of approach does open the rules to deadly erosion as it provides member states with an outstretched spectrum for justification and lawfulness with the use of force since significance is placed on confirming the exceptions are valid in the rule rather than failing it.
Ambiguity and uncertainty in the wording of the provision and the puzzling interlinks between different clauses in the provision can be considered to be the main complications. To be able to analyse the wording of Article 2(4) inexactness, it is necessary to break down the terms and explore the scope. The phrase “force” has no specific definition on type therefore it can be interpreted in multiple ways ranging from military force or all types of forces and from economic or political coercion. The vagueness within the term aids support for states to declare this expansive interpretation of “force” to their benefit particularly if they are vulnerable to improper economic and political relationships. The undetermined language of Article 2(4) does not specify that it would fall outside the written restraints of the Charter if the state was to interpret this language broadly.
On the face of it, the freedom in the interpretation of Article 2(4) appears to diminish entirely the purpose of the constraint placed on the use of force which therefore justifies even potentially illegal use of force and gives freedom for states to abuse this system whenever they like.
The clause “against the territorial integrity or political independence of any state” on the prohibition on the threat or use of force causes two camps to emerge. Use of force will be permitted if the clause is interpreted narrowly so long as the state did not have an intention to violate the territorial integrity or political independence of any state. In opposition to this, ambiguity lies when a wide interpretation of the clause is implemented as it reveals the type of the prohibition through the method of placing focus on the non-infringed elements of the territorial integrity or political independence of states.
The Charter itself has provided enough exceptions to the prohibition to use force with self-defence being the most important. Firstly, it is eligible only ‘upon an armed attack’. Secondly, the State owes a duty to the Security Council to ensure that they report to them when they are employing their right to self-defence. This has always been regarded without much seriousness by both the States concerned and the Council itself. Finally, the Security Council will take measures ‘as it deems necessary in order to maintain or restore international peace and security’ in which the right to self-defence will then be suspended.
One of the most significant exceptions to the law against war is outlined in Article 51 of the UN Charter. Self-defence is considered as a ground to lawfully use force against another state. In its interpretation and meaning, self-defence gives a very indefinite notion Within both domestic law and international law concerning states, making it complex to define the framework of the exception.
It is evident that states abuse the power of this exception. Article 51 also requires an element of armed attack in order to be able to apply the exception of self-defence. The broad interpretation of this element has meant that states have been able to participate in armed attacks with no prior element of an attack. What is more is that powerful countries like Israel and the United States are seen to be using Article 51 as a mechanism which justifies attacks or even attempts at attacks as a counterblow. Undeniably, such action is not in line with international law.
An example of Article 51 being used as a tool to provide this type of justification occurred in a 1993 assassination attempt on the President of the United States, George Bush in which a car bomb was found in Kuwait. In response to this attempt, nearly two months after, the U.S launched a cruise missile attack on Iraqi Military Intelligence Headquarters resulting in killings and destructions. The U.S put forward the argument that Article 51 allowed for this type of use of force to be completed and that there had been pre-collected evidence proving the involvement on Iraqi’s side which as a knock on was approved by the Security Council. Application of the provisions in this manner does put less-powerful countries in a disadvantageous and vulnerable position and kick-starts the rules to deadly erosion.
The law remains flawed in many areas. Fuller presents the argument that any functional legal system must allow individuals to adjust their conduct to the law. It is noted further from Fuller’s theory that the legal system would fail if the requirements of the law to be clear, prospective, public and coherent were absent. Questions of concern are raised in regards to the Charter and the elements of ambiguity contained within it and whether the Charter actually adheres to the idea of a law and social justice.
The concluded effect of the aforementioned is that Article 2(4) does in theory provide complete prohibition on threat and use of force and it has been established and recognised as a key rule of international law in which you can only deviate from with use of the exceptions provided in Article 51 and 52. It is evident that the interpretation of the provisions particularly Article 51 are done in a way which possibly was not the intention of the Article originally. Article 2(4) of the UN Charter may be regarded as a redundant matter which failed to prohibit the use of force thus it is considered obsolete particularly by powerful states.