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Article 2(4) of the UN Charter

Article 2(4) of the UN Charter. Let’s take a closer look…. Introduction. The most important issue that the writers of the UN Charter had to face was: how to restrain the use of force by states against each other

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Article 2(4) of the UN Charter

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  1. Article 2(4) of the UN Charter Let’s take a closer look…

  2. Introduction • The most important issue that the writers of the UN Charter had to face was: how to restrain the use of force by states against each other • Before the UN Charter, states had experimented with the League of Nations’ Covenant and the Kellogg-Briand Pact – but neither had succeeded in stopping states from using force • Article 2(4) of the UN Charter was a new formula • It was different from the League of Nations’ Covenant and the Kellogg-Briand Pact

  3. How was Article 2(4) different? Article 2(4) was different in at least 3 ways: 1. Article 2(4) prohibits the use of force instead of only encouraging states to renounce war 2. In addition to actual force, Article 2(4) prohibits the threat of the use of force 3. Article 2(4) not only prohibits war but also any use of force • So, it is much wider in scope than both the League of Nations’ Covenant and the Kellogg-Briand Pact Source: Abbas, A. International Law: Text, Cases and Materials (Oxford University Press, 2012) 350-51

  4. Article 2 paragraph 4 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.

  5. “All members” • “All Members” means all members of the United Nations • Currently, there are 193 member states • Interpreted literally, the UN Charter only applies to its members • States do not have to join the UN • But note that Article 2(6) of the Charter provides that the UN shall ensure that states which are not members will act in accordance with the these principles

  6. “shall refrain in their international relations” • Written in the imperative, “shall” • “refrain” means “to not do something” or “to hold back oneself from doing something” • This article contains a command or an order to member states – they shall refrain from using force • But it appears to refer to states in their dealings with one another: it does not seem to prohibit states from using force within their own borders – perhaps because of the principle of sovereignty and territorial integrity

  7. “use of force” • The word“force” is used, not “war” – the word “force” is broader than “war” • Does “force” include not only military force but also economic force (ie, boycotts, economic sanctions)? • This is a controversial issue which isn’t settled • Shaw doesn’t think that the use of economic pressures would amount to a violation of Article 2(4) (see Shaw at p1125) • Since states can choose whether to trade with one another, threatening not to trade does not seem to amount to a breach of this clause

  8. “threat or use of force” • Note that “threats of force” are covered as well as actual force • It does not matter whether the state has the ability to carry out the threat – it will still be unlawful • The International Court of Justice (ICJ) discussed this in an Advisory Opinion: it said that ‘an intention to use force if certain events occur’ would also amount to a breach of Art 2(4) • “If the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2, paragraph 4” • See Legality of the Threat or Use of Nuclear Weapons Advisory Opinion

  9. “against the territorial integrity or political independence of any state” • What does this mean? How should this be interpreted? • Does it mean that states can use force so long as it is not against the territorial integrity or political independence of any state? Can states use force internally against rebel groups, without limitation? • The ICJ and the General Assembly have both saidthat it means: no state has the right to intervene, directly or indirectly, for any reason, in the internal or external affairs of another state • Each state must respect the territorial sovereignty of all other states • Should this phrase be interpreted narrowly or widely? • Narrowly: we could say that it is very specific, so uses of force that do not fall within the wording are still allowed (eg humanitarian intervention, saving the citizens of one’s own state) • Widely: we could say that the words were intended to be interpreted very broadly to cover virtually any use of force so there is no force that can be used without violating this clause

  10. 1965 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States • This was a UN General Assembly resolution which emphasized that armed intervention, and all other forms of interference or attempted threats against a state, are unacceptable • The 1965 Declaration was reaffirmed in the 1970 Declaration on Principles in International Law

  11. Exceptions • If the general rule is: no state shall use force, or threaten to use force, against another state…. • What are the exceptions? • There are two main exceptions: • In self-defence under Article 51 of the UN Charter • When authorised by the Security Council under Chapter VII of the UN Charter

  12. Is there one more exception? • Later in this course we will discuss Humanitarian Intervention • Humanitarian Intervention: when States use force to stop a State from violently repressing its own citizens • Some scholars say that Humanitarian Intervention has become a third way for states to justify the use of force against other states • It is not expressly provided for in the UN Charter but it has been used on a number of occasions • It seems that it is gaining ground as a means to justify the use of force when there is an urgent need to use force to save people - especially when the Security Council is not acting • The Responsibility to Protect (R2P) norm has been specifically referred to as a means to intervene with force to prevent genocide, war crimes, crimes against humanity and ethnic cleansing

  13. Let’s look briefly at a few examples of when states have used force…

  14. Many states use force against other states and then argue that it was lawful • But to be lawful, it must not violate Article 2(4) • States might intervene for these reasons: • Humanitarian Intervention – • NATO forces bombed Serbia and Montenegro in 1999 (there was no Security Council authorization) • Libya 2011 (but here there was Security Council authorisation at least for the no-fly zone Refer to S/RES/1973 (2011) • Regime change • Vietnam’s overthrow of the Pol Pot regime in Cambodia in 1978 • US intervened in Nicaragua in 1989 • US and the UK intervened in Iraq in 2003 • To rescue nationals stuck in another state • Israel used force in 1976 to rescue Israelis who were being held hostage at Entebbe airport in Uganda • The US used force 1983 to rescue US medical students in Grenada

  15. What can we conclude? • Each case has to be examined individually • In some cases (eg the US intervention in Grenada) writers argue that the US did not violate Article 2(4) because it did not violate the territorial integrity of Grenada nor did it reduce the size of Grenada’s territory • But in other cases (eg the US and UK intervention in Iraq in 2003) most scholars have concluded that the use of force was unlawful – it did violate the territorial integrity and political independence of Iraq • It seems that powerful states can use force first and ask questions later about its legality

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