Stephen Vasciannie | Analysing use of force rules

In 1945, following World War II, almost all then-existing states – numbering about 50 – agreed to the terms of the United Nations Charter, a major treaty that remains in force today for all 193 member states of the United Nations. In large part, the Charter, as originally drafted, reflected the views of the Allied States which had prevailed in that war.

FUNDAMENTAL

In substance, the UN Charter contemplates three primary rules on war: these are to be found, respectively, in Article 2, paragraph 4, Article 51, and Chapter VII of the treaty. Article 2(4) sets out the fundamental rule:

“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, . …”

This fundamental rule, sometimes referred to as a rule of jus cogens by the International Court of Justice, constitutes a broad prohibition on the use of force in international relations. It means, for example, that a state may not legally attack another state unless there is an applicable exception to the Charter rule in Article 2(4), in the circumstances of a given case.

Three points of interpretation relating to Article 2(4) may be briefly noted. First, the provision prohibits not only formal entry into war; it also constrains states from taking part in “the use of force” more generally.

Secondly, Article 2(4) is expressly addressed to “Members” of the United Nations, a form of words implying that non-state entities are exempt from the terms of the prohibition on the use of force in the article. This implication is difficult to sustain: in today’s world some non-state actors have, or aspire to have, as much power and influence as states do. Why, then, as a matter of policy, should those entities be exempt from the prohibition on unlawful use of force?

TERRITORIAL INTEGRITY

A third point of interpretation pertaining to Article 2(4) is whether a state may use force against another state if that force does not amount to a violation of the victim state’s “territorial integrity or political independence”. Could a state initiating the use of force argue successfully, for instance, that it would not be in breach of Article 2(4) if its attack on another country does not give rise to a territorial annexation or change of government in the victim state?

The answer to this question, which may be distilled from the early decision of the International Court of Justice in the Corfu Channel Case ( United Kingdom v. Albania) and subsequent decisions of high authority, is no. As long as a state uses force against another state, Article 2(4) will be implicated.

In sum, Article 2(4) stands for the proposition that states and non-state entities must refrain in their international relations from the use of force.

SELF-DEFENCE

But this fundamental rule is expressly made subject to two important exceptions in the United Nations Charter: namely that: (a) force may be used in self-defence and (b) force may be used if it is authorised by the United Nations Security Council under Chapter VII of the Charter.

The rule in the Charter on self-defence – as formulated in Article 51 – indicates that nothing in the Charter shall impair the “inherent right” of a state to exercise self-defence, “if an armed attack occurs” against that state. This provision also raises questions of interpretation.

The core rule in Article 51 is clear enough. If State A attacks State B using force, an armed attack has occurred, and consequently State B may respond in self-defence. But what if State A has not (yet) physically launched an attack on State B, but appears to be preparing to make an attack? May State B take anticipatory action pursuant to the right of self-defence?

On the better view –based on logic and policy, as well as an influential precedent in the Caroline Incident involving the US and Britain – the state that is about to be attacked may actually fire the first shot. On this view, anticipatory self-defence may lawfully be undertaken if, but only if, the adversary’s attack is imminent: the attack anticipated must be “instant, overwhelming, leaving no choice of means and no moment for deliberation” (as agreed by both governments in the Caroline Incident).

WAITING FOR PAIN?

The alternative view – according to which the victim state must await a physical attack before it may exercise self-defence – may be more consonant with the language in Article 51, for the article does require an armed attack to have occurred. But this wait and see position seems somewhat implausible because several states when faced with an imminent attack that could, for instance, destroy their entire air force will be inclined to hit the enemy first, taking anticipatory action.

That said, when a state strikes before it is struck, it cannot reasonably go on a fishing expedition. By this I mean that the state exercising anticipatory self- defence may not rely solely on its suspicions that it may be attacked at some uncertain, unsubstantiated time in the future.

PROPORTIONALITY

Where a state exercises the right of self-defence, it is normally required to demonstrate that the actions in self-defence are proportionate to the prior attack. If State A attacks State B then State B’s self-defence shall not be completely disproportionate to State A’s prior attack.

This approach, which is supported by dicta from the International Court of Justice, may run into difficulty because proportionality is not always an easy concept to pin down. It is also problematic at the policy level when the state taking the first shot knows that there will be a marked limit to the response allowed by law: this approach somehow seems to allow the calculating state to make strategic arrangements before it strikes.

But proportionality is sound in law, and it deters excessive and brutal retaliation in cases where the respondent state may be inclined to act without constraint.

CHAPTER VII

As noted above, the second express exception to the rule prohibiting the use of force in international relations is found in Chapter VII of the UN Charter. This section of the Charter allows states to use force against others at the behest, or with the permission, of the UN Security Council. The underlying idea here is that the United Nations may act as a group of states, or through individual states, to impose international peace and security on the world.

The “Chapter VII” exception to Article 2(4) has in practice been rarely relied upon because its implementation is subject to the veto of any one of the five permanent members of the Security Council: specifically, the US, Russia, China, France or the United Kingdom.

DUTY TO SPEAK

Overall, therefore, states should proceed with care in assessing the use of force in contemporary affairs. But sometimes legality, or the lack thereof, stares one in the face. In such cases, states – even those that lack power and possibly will – are under a duty to speak out. Silence in international law is frequently equated with acquiescence in the wilful or inadvertent violation of basic rules.

Stephen Vasciannie is professor of international law at The University of the West Indies, Mona. Send feedback to columns@gleanerjm.com