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An Inquiry on the Interpretation of Article 2( 4) of the UN Charter and Its Implications for the Jus Ad Bellum

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An Inquiry on the Interpretation of Article 2( 4) of the UN Charter and Its Implications for the Jus Ad Bellum The Final Draft for the S.J.D. Dissertation An Inquiry on the Interpretation of Article 2( 4) of the UN Charter and Its Implications for the Jus Ad Bellum BeomChul SHIN Professor Jane E. Stromseth, John N. Moore, James V. Feinerman Georgetown University Law Center May,2007 Contents I. Introduction 1 Part I. Original Intention of Article 2 (4) and 51 of the UN Charter II. Background: Drafting Process of the UN Charter ....................... 22 1. Dumbarton Oaks Preparatory Conference /22 2. The United Nations Conference on International Organization /26 3. U.S. Delegations to UNCIO /31 III. The Drafting History of Article 2 (4) of the UN Charter 33 1. Drafting Story of Article 2 (4) in the Dumbarton Oaks Conference /33 2. Drafting Story of Article 2 (4) in the UNCIO /40 3. The Intention of Major Sponsoring States /54 4. The Legitimacy of Permissive Interpretation of Article 2 (4) /77 IV. The Drafting History ofArticle 51 of the UN Charter ........... 90 1. Drafting Story of Article 51 at the Dumbarton Oaks Conference /90 2. Drafting Story of Article 51 in the UNCIO /93 3. The Intention of Major Sponsoring States /107 4. The Legitimacy of Anticipatory Self-Defense /136 Part II. Evolution of the Jus ad Bellum V. The Evolution of the Jus ad Bellum before 1945 140 1. The Development of the Jus ad Bellum before the League of Nations /140 2. Jus ad Bellum in the League of Nations and the Kellogg-Briand Pact /145 3. Putative Rules concerning the Use of Force in Customary Law /155 VI. The UN Charter and the Transition of the Putative Rules .. .. .. .. .. 167 1. The United Nations, the Outcome ofEvolutional Thinking /167 2. Theoretic Approach to the Charter's Adoption of Old Putative Rules /177 3. The Transition of Old Putative Rules into the UN Charter /183 VII. Evolution under the Charter system 190 1. Question regarding New Customary Law over the UN Charter /190 2. The Evolution of Jus ad Bell um Since 1945 /201 3. Undisrupted Evolution of the Jus ad Bellum under the UN Charter /232 Part III. Preventing Pretext for War VIII. Conditions limiting Unilateral Use of Force 238 1. Easing Practical Dilemmas, the Pretext for War /238 2. Conditions Limiting the Unilateral Use of Force /242 3. Matching Permissive Interpretation with Conditions Limiting Force /268 IX. Conclusion 272 Acknowledgement The phrase "permissive interpretation of Article 2 (4)" is intended to indicate the manner in which to interpret Article 2 (4) as the text provides. Because Article 2 (4) provides "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," the ordinary meaning of the text can be interpreted that force can be permitted if it is consistent with the Purposes of the UN; In this regard, the way to interpret Article 2 (4) in this way should be named "ordinary meaning interpretation," or "text based interpretation." However, the traditional understanding of Article 2 (4) was that the Article prohibits all unilateral use of force except with the authorization of the Security Council in Chapter VII and in self-defense in Article 51. Thus, to make a distinction from the traditional view, and to promote understanding of the subject, this study uses the term "permissive interpretation." I. Introduction 1. Purpose of Study Today the international community faces various threats from failed governments, terrorists, ethnic conflicts and proliferation of weapons of mass destruction; however, unfortunately, in each of these instances, the use or potential use of force is a source of debate. When it comes to the legal constraints on the use of force, the UN Charter provides the most fundamental principles concerning the use of force. From the very beginning, the UN Charier was destined to establish the fundamental principles governing the use of force. In particular, Article 2 (4) of the Charter, which sets legal constraints on the use of force;; plays an important role in deciding the legality of a particular use of force, and because of this importance, debates relating to the interpretation of Article 2 (4) continue up to today. Some claim that the UN Charter, which was created after the Second World War and in response to a different set of threats from those we face today, is outdated and inadequate for meeting contemporary challenges. 1 Accordingly, many scholars emphasize the need to reform the UN in order to be more effective in avoiding war under a more realistic I ANN MARIE SLAUGHTER, A NEW WORLD ORDER 8 (2004). 1 paradigm. 2 Yet the international community has forged no comprehensive consensus and the disagreement between states continues to deepen. Amid the complexities of our time the use of force issue can be described as "all the answers and all the questions."3 However, if international rules governing the use of force are to endure, they must be built upon strong consensus between states while preventing states from disrespecting the rule of law. To achieve such purposes, a sustainable rule addressing the use of force, which states are motivated to follow, is needed. In other words, the international community must understand and reach a consensus on one fundamental question: what the jus ad bellum is today. Yet, there is no such consensus among states like the UN Charter, and an expectation to establish a totally new jus ad bellum regime will be a long shot. Accordingly, to establish a consensus regarding the legal constraints on the use of force, restoring and strengthening the UN Charter is the easiest and most practical. Thus, to solve the controversies regarding the curientjus ad bellum regime, the Charter's security system, is probably the answer for reaching a consensus among states. For this purpose, this study will explore the single most important rule regarding the 2 John Norton Moore, Enhancing Effectiveness in United Nations Peacekeeping, Collective Security, and War Avoidance: Toward a New Paradigm, in STRENGTHENING THE UNITED NATIONS AND ENHANCING WAR PREVENTION 107 (John Norton Moore & Alex Morrison eds., 2000). 3 Charles W. Kegley, Jr., The Neoidealist Moment in International Studies: Realist Myths and the New International Studies, 37 INT'LSTUD. Q. 141 (1993). 2 jus ad bellum, Article 2 (4) of the UN Charter, which a lawful use of force must comply with. True, the central rule regarding the prohibition on the threat or use of force is contained in Article 2 (4) of the United Nations (UN) Charter, 4 and thus, the Article provides controversies in every difficult question regarding use of force, such as humanitarian intervention, anticipatory self-defense, and the use of force to protect nationals abroad, etc. To this end, by re-examining the Article 2 ( 4) of the Charter, this study explores and answers the important issue regarding thejus ad bellum. 2. The Debate Over Interpretation of Article 2 (4) of the UN Charter Article 2 (4) of the Charter provides, 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 purpose of the United Nations. The debate among scholars regarding the proper understanding of Article 2 (4) is whether or not the unauthorized use of force that does not intend to be against "territorial integrity, political independence of any member state or any other manner inconsistent with the purpose of the UN," is permitted. If one understands the phrase in a prohibitive way, 4 CHRISTINE GRAY, INTERNATIONAL LAW AND THE USE OF FORCE 24 (2000). 3 ( no unilateral use of force can be considered legal unless it is the use of force for self- defense or authorized by the Security Council. However, if one understands it in a permissive way, a unilateral use of force can be lawful if it is consistent with the purposes of the UN Charter. Scholarly Debates For many scholars, the meaning of Article 2 (4) is clear: categorical prohibition of the use of force except in self-defense and by the authorization of the Security Council. 5 They, in addition to the text, focus on other elements of treaty interpretation such as context, object, and the purpose of the UN Charter. · They argue that the parties of the treaty had an original intention which can be discovered primarily through textual analysis and which, in the absence of some unforeseen change in circumstances, must be respected until the agreement has expired or has been replaced by mutual consent6 and the drafting history demonstrates that the original intention of the drafters was categorical prohibition. 7 In particular, they noted that the negotiating history of the Charter supports the contention that the conjunction "or" in the phrase "or in any other manner inconsistent with the purposes of 5 Louis Henkin, Use ofForce: Law and U.S. Policy, in RIGHT AND MIGHT: INTERNATIONAL LAW AND THE USE OF FORCE (2d) 44 (Louis Henkin ed., 1991). 6 Tom J. Farer, An Inquiry into the Legitimacy ofHumanitarian Intervention, in LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 186 (Lori Fisler Damrosch & David Scheffer eds. 1996). 7 Edward Gorden, Article 2 (4) in Historical Context, 10 YALE J. INT'L L. 276-7 (1985). 4 the UN" was meant to supplement, rather than qualify, the prohibition on the unauthorized use of armed force. Thus, they interpreted Article 2 (4) just as it provides "in any other manner inconsistent with the provisions of the Charter." However, some scholars contend, based on the text of Article 2 (4), that using force might be legitimate if it is consistent with the purpose of the UN.
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