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. 8 They are concerned
with threats that exist in the real world, and see that, in extremely exceptional situations, the
use of force could be consistent with the purposes of the Charter and that it might not be
illegal. Thus, they suggest arguments aimed at reconciling the need for the use of force in
extraordinary circumstances with the UN'sjus ad helium regime. 9 They argue that
"Article 2 (4) does not simply forbid the threat or use of force. Rather, under the permissive interpretation, it forbids the use of force when it impairs the territorial integrity or political independence of any states."1° For example, under this view, if a genuine humanitarian intervention does not result in territorial conquest or political interference, the use of force is permissible.
8 L. J. Holzgrefe, The humanitarian intervention debate in HUMANITARIAN INTERVENTION: ETHNICAL, LEGAL, AND POLITICAL DILEMMAS 37-41 (J. L. Holzgrefe & Robert 0. Keohane eds., 2003). 9 Id. 10 W. Michael Reisman, Criteria for the Lawful Use ofForce in International Law, 10 YALE J. INT'LL. 278 (1985); Farer, supra note 6, at 186.
5 Although the labels for these two groups of scholars are at issue, 11 for the present
purposes, I use the terms, classicists for the prohibitive interpretation, and legal realists for the permissive interpretation. 12 Indeed, these two views provide many invaluable points of consideration, and it might be premature to say that one school is completely correct and the other wrong. Rather, these two schools share the same purpose, international peace and security through the rule of law, based on differing points of view. However, it might also be true that these two schools failed to suggest concrete rules regarding the use of force.
Classicists' idea seems ideally plausible, but the reality of international relations did not coincide with the hope of classicists:· In particular, the deadlock of the Security Council, which is supposed to act and to protect international peace and security, causes inaction of the UN when it is desperately needed. Thus, some scholars even argue that the UN
Charter security system is dead. 13
On the other hand, the legal realists' idea seems, so far, legally weak since they did
11 Scholars, for the purpose of their study, used different terms: Classicists v. Legal Realist Tom Farer, An Inquiry into the Legitimacy ofHumanitarian Intervention, in supra note.6, also in Holzgrefe, supra note 8; Legalist v. Realist in FRANCIS A. BOYLE, FOUNDATIONS OF WORLD ORDER: THE LEGALIST APPROACH TO INTERNATIONAL RELATIONS 7-9 (1999); Restrictionist v. Counter-Restrictionist in ANTHONY C. AREND & ROBERT J. BECK, INTERNATIONAL LAW AND THE USE OF FORCE 12 (1993). 12 Farer, supra note 6, at 186. 13 Michael J.Glennon, Why the Security Council Failed, FOREIGN AFF., May/June 2003, at 16-8, 24. In addition, Professor Arend also contends that "for all practical purposes, the UN Charter framework is dead." Anthony Clark Arend; International Law and the Preemptive Use ofMilitary Force, WASH.Q., Spring 2003, at 89, 101.
6 not provide convincing evidence regarding the intentions of the drafters. 14 Lack of
material evidence that some states interpreted Article 2 (4) in a permissive way has been the
most difficult obstacle for legal realists in maintaining their argument. It is curious that
the negotiation on Article 2 (4) resulted in a somewhat uncertain text. The negotiators in
San Francisco in 1945 were professional diplomats who understood subtle and delicate changes in the text of the treaty. Nevertheless, the negotiators agreed, or at least
acquiesced to the text that provides "any other manner inconsistent with the purposes of the
Charter," rather than "inconsistent with the provisions of the Charter." The uncertainty is not yet resolved and thus the debate continues today, even though most scholars support the classicists' view.
Approach
This study explores this fundamental debate surrounding Article 2 (4) of the UN
Charter by applying the general rule of interpretation of treaties, Article 31 and 32 of the
Vienna Convention on the Law ofTreaties.15 These two articles provide a slew oflegal
14 They do not mention much about the intention of the drafters. Rather, they seem to focus on the unforeseen change in circumstances since the start of the UN. From the legal realists' point of view, texts themselves are but one among a large number of means for ascertaining the original intention of a treaty's meaning. Thus, they argue that original intention has no intrinsic authority, and that the past is relevant only to the extent that it helps us to identify currently prevailing attitudes about the propriety of a government's acts and omissions. Holzgrefe, supra note 8, at 40. 15 1155 UNTS 331; 8 ILM (1969), available athttQ://untreaty.un.org.
7 standards in treaty interpretation: the text, its context, the object and purpose of the treaty of
Article 31, the preparatory work and circumstances of its conclusion as supplementary means of interpretation for Article 32. 16 If analyzed in detail, the standards of treaty interpretation are 1) ordinary meanings - based on good faith- of the text; context such as
2) agreement relating to the treaty, 3) instruments made by one party and accepted by other parties; 4) subsequent agreement and practice, 5) relevant rules of international law, 6) special meaning, 7) the preparatory work and circumstances of its conclusion. To define whether Article 2 ( 4) should be interpreted in a permissive way or prohibitive way, it would be worthy to test the Article.based on each standard of treaty interpretation.
In particular, the preparatory work and circumstances can be examined by studying the drafting history, which is called "t,:avaux preparatories." Admittedly, if it is read through an ordinary meaning of the text, Article 2 (4) seems to prohibit the threat or use of force that is "inconsistent with the purpose of the UN." On the other hand, there were no confirmed agreements, instruments or special meanings in relation to Article 2 (4) as well as relevant rules of international law. Thus, to define the proper way to interpret Article 2
(4), one must support one's argument with the other two standards of treaty interpretation:
16 ANTHONY AUST, MODERN TREATY LAW AND PRACTICE 187 (2002).
8 the preparatory work and subsequent agreement and practice after the UN Charter. As noted, classicists challenge the ordinary meaning of the text because the drafting history and subsequent state practice support their view. Thus, by examining the preparatory work, this study tries to figure out the original intention of the drafters of the Charter. If they really intended a categorical prohibition, then Article 2 (4) should be interpreted in this way. Thus, the only way to justify unauthorized use of force is probably to amend or revise the provision. However, if the drafters intended otherwise, or if there was any special reason to draft the text providing "inconsistent with the purposes of the Charter," then the intention should be reflected in the interpretation of Article 2 (4).
The subsequent agreement and practice after the UN Charter can be examined by viewing state practice on the use of force because there was no subsequent agreement regarding Article 2 (4). Indeed, over a hundred instances of interstate use of force have occurred since the adoption of the UN Charter. By reviewing those uses of force, this study tries to determine how states have interpreted Article 2 (4) and how the intention of the drafters was reflected in those uses of force. If states used their force based on the permissive interpretation, then the subsequent state practice would be the strongest argument that the Charter should be interpreted in the same way. However, if not, the
9 prohibitive interpretation should prevail.
Methodology
This study examines travaux preparatories of Article 2 ( 4) of the UN Charter based on the interdisciplinary approach, specifically, the process-tracing method that was widely used by political scientists and political sociologists. 17 Thus, this study takes the form of a detailed narrative or story presented in the form of a chronicle that purports to shed light on how the Charter was drafted, from Dumbarton Oaks to the San Francisco Conference.
During the process, this study attempts to identify the intervening mechanism, such as the
U.S. and other sponsoring states' preparation ofthe·draft ofthe UN Charter as an independent variable, which had the most significant effect in drafting the UN Charter.
Accordingly, this methodology is inevitably combined with documents analysis. For the most part, this study attempts to find the true intention of the sponsoring states in drafting
Article 2 (4) as it provides. Thus, this study examines government documents, especially unclassified ones, in addition to books and articles on the subject.
In addition, regarding state practice, this study uses case study findings for theory
17 ALEXANDER L. GEORGE & ANDREW BENNET, CASE STUDIES AND THEORY DEVELOPMENT IN THE SOCIAL SCIENCE 204-11 (2004).
10 testing and theory developing. 18 First, this study uses traditional case study methods to
examine theories regarding state practice on the use of force. By sorting out 134 cases and by comparing these uses of force, this study examines theories on the subject. Second, this study uses case study methods to develop the theory in relation to the evolution of the jus ad bellum. To maintain focus on the development of the international law governing the use of force, this study will focus more on the critical cases that provided turning points in the legal justification of the use of force, e.g. the Kosovo Intervention.
3. The Organization of the Study
The structure of this study begins from the proper manner of interpretation of Article 2 (4) to its implications for the theories regarding thejus ad bellum. Following this introductory chapter, the travaux preparatories of Article 2 (4) and 51 of the UN Charter will be examined. These chapters will provide reasons why Article 2 (4) should be interpreted in a permissive manner. Then, this study explores the implications of the permissive interpretation for the theories regarding the jus ad bellum, especially the evolution of the jus ad bellum and the legal justification regarding controversial uses of force. Lastly, based on the role of the sources ofthejus ad bellum, other conditions
18 Id., at 109-24.
11 limiting unilateral use of force will be re-examined for future discretion.
Chapter II provides the drafting procedure of the UN Charter. Although the U.N.
Charter was the result of intensive discussions between member states of the United
Nations, the draft was initially prepared by the discretion of the major war powers - the
U.S., the U.K., and the Soviet Union - as a measure to maintain peace and security after
World War II. In particular, the U.S. prepared the interim text for the Charter, and hosted the two Conferences, held at Dumbarton Oaks and in San Francisco. The UN Charter was the result of these long discussions, and thus, to understand the intention of each article of the Charter, historical context of the article should : be addressed. Thus, Chapter II provides the overall procedure in the drafting of the UN Charter: the Dumbarton Oaks
Conference and the San Francisco Conference. Further, because the U.S. role in drafting the UN Charter was so important, it provides a general description of the U.S. Delegation to the San Francisco Conference. This background would be helpful in understanding the discussion regarding the intention of Article 2 (4) and 51 of the Charter.
Chapter III discusses the proper way to interpret Article 2 (4) of the UN Charter based on preparatory work of the UN Charter, arguing in particular, that the sponsoring states intended Article 2 ( 4) in a permissive way. At first, it explores discussions from the
12 Dumbarton Oaks Conference, which was the preparatory conference for the drafting of the
Charter among the four powers, the U.S., the U.K., the Soviet Union, and China. Since
the Dumbarton Oaks proposal suggested the basic frame of the Charter, the study looks at
the original intention of the drafters of Paragraph 4 of Charter II- later Article 2 (4) of the
UN Charter. Thus, based on U.S. Department of State documents, 19 this study examines the drafting process of Article 2 (4) and its related history. The drafting history of the UN
Charter at the San Francisco Conference will follow the history of the Dumbarton Oaks
Conference. Based on official documents from the Conference, 20 this study examines the
· drafting process including the Amendment suggested-by many nations to the Dumbarton
Oaks proposal and the discussions in the process of adopting Article 2 (4). These discussions and documents will help to clarify the general intention of the drafters. Lastly, this study explores the U.S.' standpoint in drafting Article 2 ( 4) as well as that of other sponsoring states. Based on the U.S. State Department documents,21 the study tries to determine why the U.S. supported adopting the Australian Amendment, and opposed other
19 RG-59: GENERAL RECORDS OF DEPARTMENT OF STATES: RECORDS OF HARLEY A. NOTTER 1939-45: RECORDS RELATING TO THE DUMBARTON OAKS CONVENTION 1944. The document is available at the National Archives and Records Administration, located in College Park, MD, U.S.A. 20 UNITED NATIONS INFORMATION ORGANIZATION, DOCUMENTS OF THE UNITED NATIONS CONFERENCE ON INTERNATIONAL ORGANIZATION SAN FRANCISCO 1945 ("UNCIO" hereinafter) Vol. 1, 2, 5, 6, 17, and 18. (1945). 21 RG-59: GENERAL RECORDS OF DEPARTMENT OF STATES: RECORDS OF HARLEY A. NOTTER 1939-45: US DELEGATION TO THE UN CONFERENCE ON INTERNATIONAL ORGANIZATION, 1944 & 1945.
13 ( Amendments which had stronger language that would have led to categorical prohibition of
the use of force. In addition, this study also provides the intention of other sponsoring
states such as the U.K. and the Soviet Union. Since these states sponsored and virtually
led the Conference, even in drafting the Charter, their intention could be one of the major
influences on the intentions of the drafters - and thus, the proper way to interpret Article 2
(4) is in a permissive way.
Chapter IV examines another important provision regarding the use of force, Article
51. Since Article 51 is regarded as a lawful exception to Article2 (4), the intention for
drafting the two provisions is interrelated to each other and thus it would be helpful to
clarify the meaning of Article 2 (4). Thus, the organization of this Chapter is similar to
that of the previous Chapter. First, it explores discussions from the Dumbarton Oaks
Conference followed by the drafting history of the UN Charter at the San Francisco
Conference. Lastly, this study explores the U.S. standpoint in drafting Article 51 as well
as that of other sponsoring states.
The following three chapters explore, based on a permissive interpretation of Article
2 (4), what thejus helium of today is. Chapter V covers the evolution ofjus ad helium
before 1945. History provides that thejus ad helium, the international law governing the
14 use of force, had been incrementally developed before the establishment of the UN. Thus, the development of legal constraints on the use of force in the Covenant of the League of
Nations, the Kellogg-Briand Pact and old customary law will be explored. Although many of these old rules are not recognized as lawful today, the study provides the direction of the development ofjus ad bellum.
Chapter VI argues that the UN Charter is, in fact, a result of the development of old rules. First, this Chapter proves that the Charter'sjus ad bellum provisions are, in fact, the reflection of the historic development ofthejus ad bellum. However, because the Charter' provisions do not cover all old customary rules, it will address the transition of old customary rules into the UN Charter: whether or not the UN Charter abandoned pre- existing customary law governing the use of force which was not included in the text of the
Charter. Because some of the old rules were compatible with the Charter and others not, the old rules should be tested based on the provisions in the UN Charter. By doing so, this study tries to determine the relations between the old putative rules and Article 2 (4) of the
UN Charter: in particular, whether some old putative rules could survive the Charter if they were compatible with the purposes of the Charter.
Chapter VII discusses the evolution of the }us ad bellum under the UN Charter
15 ( system. This study finds that customary norms are still evolving under the Charter system.
In particular, the norms have their origin in the old putative rules, and thus, survive the
Charter, and are still evolving. First, this chapter examines theories in relation to the
possibility of new customary law over the UN Charter. Then, it explores the lawfulness of
legal justifications of the use of force in customary law. The legality of highly debated
issues such as anticipatory self-defense, the use of force to protect nationals, and
humanitarian intervention, etc. will be discussed here. Lastly, this Chapter, based on a
permissive interpretation of Article 2 (4), tries to evaluate the evolution, which seems
uninterrupted throughout the evolution.
Chapter VIII discusses the last issue of this study. As a more future-oriented idea,
this study explores how to create legal standards that ease the possible pretext for war that a
permissive interpretation might bring. Thus, after discussing the possibility of pretext for
war, the sources of international law for setting the criteria that ease the concern of pretext
for war will be explored. The detailed conditions can be found in the sources of the jus ad
bellum and can play an important role in deciding the legality of the unilateral use of force.
Lastly, this study tries to set the conditions limiting unilateral use of.force under a
permissive interpretation of Article 2 (4).
16 Thesis
This study argues that, unlike the classicists' view, the original intention of the
drafters does, in fact, support a permissive interpretation of Article 2 (4), and thus, the use
of force consistent with the purposes of the UN Charter is not categorically prohibited.
The confusion regarding the original intention of drafters was caused by the lack of
distinction between the intention of some of the nations and the adopted intention of the
drafters. During the entire process of the drafting the Charter, from Dumbarton Oaks to
the San Francisco Conference, the U.S. purposely prepared the text that could be
interpreted in a permissive way, and consistently opposed text containing any idea in
relation to the categorical prohibition of force. The reason for this discretion was to
prepare for the possibility of a deadlock in the Security Council caused by veto power -
especially from the Soviet Union. The U.S. Delegation was concerned that the Security
Council could fail to provide proper measures to maintain international peace and security
if the Soviet Union improperly exercised veto power. Since the UN security system was centered on the action of the Security Council, the security system is nothing but a written document, if the Security Council is unable to take necessary measures. Thus, the U.S.
Delegation sought measures for exiting a deadlock of the Security Council. Interestingly,
17 the idea was agreed upon by the other sponsoring powers such as the U.K. and the Soviet
Union although the reason for accepting the idea was different: the two states did not want
status quo of border line. In short, the preparatory work of the Charter supports a
permissive interpretation of Article 2 ( 4), and demonstrates that the drafters of the' UN
Charter left room for future discretion to find the best way consistent with the purposes of
the UN when the Security Council fails to act. The previous common assumption of a
categorically prohibitive interpretation of Article 2 (4) paid too much attention to the
intention of smaller states and the diplomatic rhetoric from the sponsoring powers.
The intention for drafting Article 2 (4)in a permissive way can also be found in the discussions for drafting Article 51. As of yet, although the use of force in self-defense after an "armed attack" clearly became a part of the UN Charter, the question of anticipatory self-defense remained uncertain. However, this study found that, when the
U.S. drafters prepared the text of Article 51 which expresses the requirement that an "armed attack occurs," they believed that anticipatory self-defense can still be lawful based on a permissive interpretation of Article 2 (4). In their view, Article 51 excludes anticipatory self-defense because self-defense can only be exercised after an armed attack occurs.
Nevertheless, the drafters did not discard anticipatory self-defense. They believed that if
18 there is an imminent threat, states can use force to respond to the threat in a manner
consistent with the purposes of the UN Charter. Thus, anticipatory self-defense is
implicitly included in Article 2 ( 4). In fact, anticipatory self-defense was one of reasons
that the drafters insisted that the text could be interpreted in a permissive way.
The permissive interpretation provides solid grounds that the norms regarding the jus
ad bellum have been incrementally developed and there is a relevant norm for dealing with
controversial issues. In particular, considering the superiority of the Charter, only this
approach provides the basis for the evolution theory because, under the prohibitive
interpretation, the old putative rules found in the customary law fell into desuetude when the Charter was adopted, and any other justification except self-defense and authorization of the Security Council means the breach of the Charter. If compatible with the purposes of the Charter, the old rules in customary law, under a permissive approach, survived the
UN Charter, and, even under the Charter system, those norms have been developing and continue in harmony with the purposes of the UN Charter. Through this mechanism, the
Charter'sjus ad bellum system opens the way for self-development, under which the international community considers the best way to maintain international peace and security. This demonstrates that "the UN Charter itself, like the U.S. constitution, is a
19 living document deliberately designed by its founders to have the capacity to meet new threats to peace and security."22
Lastly, this study, because it recognizes that the purpose itself does not guarantee the lawfulness of the use of force, argues that the use of force can only be lawful if it abides by all conditions found in each source ofthejus ad bellum. The permissive interpretation faced opposition not only because of its approach to interpreting Article 2 (4) but also for practical reasons: the concern for the pretext for war that a permissive interpretation might bririg. Thus, if one admits a permissive interpretation and seeks reconciliation with the other, the practical reason, the concern for pretext for war, must be solved. This study argues that some conditions limiting the unilateral use of force can be found in the sources of international law. These include initial discussions in the Security Council; the deadlock of the Council to enforce its previous decision in spite of non-compliance of a sanctioned state; exhaustion of peaceful means; proper scope of the force; collective action; provided legal justification, etc. These conditions are specific enough to ease the concern for pretext for war, and, if combined with the purposes consistent with the Charter, they can
22 Thomas Franck, Is the UN Charter a Constitution?, in VERHAMDELN FUR DEM FRIEDEN - NEGOTIATION FOR PEACE 95-106 (JochenAbr Frowein ed., 2003); Jane E. Stromseth, Agora: Future Implications ofthe Iraq Conflict, 97 A.M. J. INT'L. L. 633 (2003).
20 provide solid standards in deciding the legality of unilateral use of force. Most of all, in this way, the international community can seek the consensus that would make rules more responsive to contemporary challenges without altogether abandoning the Charter's normative constraints on the use of force. 23
23 Thomas M. Franck, Interpretation and Change in the Law ofHumanitarian Intervention, in supra note 8, at 207.
21
Part I. Original Intention of Article 2 (4) and 51 of the UN Charter
II. Background: Drafting Process of the UN Charter
1. Dumbarton Oaks Preparatory Conference
The break out of World War II virtually sentenced to death the League ofNations,1 and the
nations who fought against the Axis Powers2 initiated a new international organization to
replace the League of Nations. Since the London Declaration3 and the Atlantic Charter,4
many nations began to recognize the need for a new international organization to maintain
peace and security after World War II. The name "United Nations," coined by United
States President Franklin D. Roosevelt, was first used in the "Declaration by United
Nations" of January 1, 1942, when representatives of 26 nations pledged their governments
to continue fighting together against the Axis Powers. 5 The idea for establishing a new
1 After World War II had occurred, the major Allied Powers became convinced that another effort should be made to establish a new universal international organization charged with the management of international conflict. ANTHONY C. AREND & ROBERT BECK, INTERNATIONAL LAW AND THE USE OF FORCE 29 (1993 ). 2 The Axis Power stands for allied nations which initiated World War II, and there were three major Axis Powers: Nazi Germany, Fascist Italy, and Imperial Japan. See, generally, RICHARD DINALDO, GERMANY AND AXIS POWERS: FROM COALITION TO COLLAPSE (2005). 3 On June 12, 1941, 14 nations and exiled governments declared to fight against German and Italian aggression. The declaration is also called "Declaration of St. James 's Palace." Detailed text is available at http:/ hvww. yale. edu/la wweb/a valon/imtiimtj ames.htm. 4 On August 14, 1941, two months after the London Declaration, the Atlantic Charter was declared as the next step to a world organization, the result of a meeting between President Roosevelt and Prime Minister Churchill. United Nations Department of Public Information, The story ofthe United Nations conference on international organization, 1945, 22 UN CHRONICLE 4 (1985). 5 On January 1, 1942, President Roosevelt, Prime Minister Churchill, Maxim Litvinov, of the Soviet Union, and T. V. Soong, of China, signed a short document which later came to be known as the United Nations Declaration. The next day, the representatives of twenty-two other nations added their signatures. This important document pledged the signatory governments to maximum war effort and bound them against making a separate peace. Id., at 5.
22 international organization had been developed in the Moscow Declaration6 and the Tehran
Declaration,7 and finally four powers - the U.S., the UK, the Soviet Union, and China -had
met in Washington D.C. to draft the interim Charter for the new international organization.
The Dumbarton Oaks Conference was held on August 21, 1944 at the old original
federal style house located in Georgetown. The representatives at the Conference were
Under Secretary Stettinius (the U.S.), Sir Alexander Cadegan (the U.K.), Ambassador
Gromyko (the Soviet Union), and Ambassador Dr. V. K. Wellington Koo (China).8 The
principles of the world organization-to-be were laid down through the Conference, and
discussions were completed on October 7, 1944.
The Conference was composed of three major bodies: Plenary Meetings, a Joint
Steering Committee, and Sub-Committees.9 The Plenary Meetings were the final stage of
the Conference, and, seemingly, had the final authority in deciding the draft of the Charter.
6 The basic definition for a world organization came at the meeting, which was held in Moscow, of the Foreign Ministers of Great Britain, the United States and the Soviet Union on October 30, 1943. The Declaration pledged further joint action in dealing with the enemies' surrender and, in clause 4, proclaimed: "That they [the Foreign Ministers] recognize the necessity of establishing at the earliest practicable date a general international organization, based on the principle of the sovereign equality of all peace-loving states, and open to membership by all such states, large and small, for the maintenance of international peace and security." Id. Detailed text is available at http://www.vale.edu/lawweb/avalon/wwii/moscow.htm. 7 In December; two months after the four-power Declaration, Roosevelt, Stalin and Churchill, meeting for the first time at Teheran, the capital of Iran, declared that they had worked out concerted plans for final victory. See id. at 6. 8 The U.S. State Department, Washington Conversation on International Organization 1 (February 9, 1944) in Box 171, RG-59, GENERAL RECORDS OF DEPARTMENT OF STATES (RECORDS OF HARLEY A. NOTTER 1939- 45): RECORDS RELATING TO THE DUMBARTON OAKS CONVERSATION 1944. 9 ROBERT C. HILDERBRAND, DUMBARTON OAKS: THE ORIGIN OF THE UNITED NATIONS AND THE SEARCH FOR POSTWAR SECURITY 70-4 (1990).
23 However, in the Conference, the Joint Steering Committee, which was originally intended to decide only matters of conference procedures, became center stage in dealing with the most difficult negotiations and decision making. 10 In addition, there were six Sub- committees to discuss specific issues and to draft the Charter for the new international organization: the Sub-committee on General Questions of International Organization, 11 the
Legal Sub-committee, 12 the Sub-committee on Security Questions, 13 the Drafting Sub- committee,14 the Special Military Group, 15 and the Sub-committee on Nomenclature. 16
Through these Sub-committees, the text of the Conference proposal was initiated and discussed and reported to the Joint Steering Committee, and then to the Plenary Meeting.
The Conference had two phases: the Conference between the U.S., the U.K. and the
Soviet Union, and later the Conference between he U.S., the U.K. and China. The Soviets and the British met with the Americans first, starting the discussions on August 21, 1944.
10 Id., at 72. 11 The Subcommittee dealt with the structure and establishment of the new international organization. Id. 12 The Subcommittee dealt with the arrangements for the pacific settlement of disputes, including provisions for world court. Id. 13 The Subcommittee dealt with post war security issues. Id. 14 The Subcommittee dealt with the specific text after the decision had been made and needed to be put into proper form. Later the Joint Steering Committee established the Joint Formulation Group under the Drafting Subcommittee to make these functions more effective. Thus, the Joint Formulation Group played a key role in drafting the Dumbarton Oaks proposal. Id., at 73. 15 It dealt with the technical aspects of the Russian proposal for an international air force and all questions of a military nature relating to the implementation of an international organization. Id. 16 It recommended the name and titles for the new international organization, its various organs and its officials. Id., at 74.
24 The Soviets left on September 28, and the next day the Chinese arrived for a nine-day meeting with the U.S. and the U.K. This procedure was a political necessity at the request of the Soviets who had not entered the war in the Pacific against Japan and did not want to appear to the Japanese that they were in collusion with the Chinese. 17 However, although
China did not participate in the fist phase of the Conference, the U.S. and U.K. had taken into account the Chinese views during the Conference. 18 In addition, those views that
China raised in the second phase of the Conference were considered as among the "open questions" left at the end of the Soviet phase and were not published as part of Proposals. 19
The· Dumbarton Oaks Conference Was submitted by the four powers to all the United .
Nations governments for their study and discussion. 20 Based on the Proposal, member states to the San Francisco Conference decided their point of views and prepared
Amendments Proposal, which was handed in the San Francisco Conference.
2. The United Nations Conference on International Organization
17 Id., at 69. 18 RUTH B. RUSSELL, HISTORY OF UNITED NATIONS CHARTER 415 (1958). 19 Id., at 416. 20 The agreements in the Dumbarton Oaks were published, accompanied by a statement that the question regarding voting in the Security Council and several other matters were still under consideration by the governments. Id., at 416; see also United Nations Department of Public Information, The story ofthe United Nations conference on international organization, 1945, 22 UN CHRONICLE 10 (1985).
25 On April 25, 1945, representatives21 from 50 countries22 met at San Francisco for the
United Nations Conference on International Organization to work out the details of the
Charter. In this world wide Conference, which represented 80% of the world population of the time, 23 state parties shaped the Charter for a new international organization based on the Dumbarton Oaks proposal and the Amendments proposal that was suggested by forty nations.24
It was the U.S. who organized the Conference and the plan was generally acceptable to the other sponsors.25 The organization of the Conference can be generally distinguished by the following hierarchy: a Plenary Meeting; the Steering Committee, the Executive
21 Those participants were 282 delegates, 1,500 staffs, a 1,000 person secretariat to translate the documents in the five official languages, and 2,600 reporters from the press and world media. AMOS YODER, THE EVOLUTION OF THE UNITED NATIONS SYSTEM 28 (1977). 22 Nations accepted the original invitations to participate in the Conference ( 46 nations including 4 sponsoring nations): Australia, Belgium, Bolivia, Brazil, Canada, Chile, China, Columbia, Costa Rica, Cuba, Czechoslovakia, Dominican Republic, Ecuador, Egypt, El Salvador, Ethiopia, France, Greece, Guatemala, Haiti, Honduras, India, Iran, Iraq, Lebanon, Liberia, Luxembourg, Mexico, Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Peru, Philippine Commonwealth, Saudi Arabia, Syria, Turkey, Union of South Africa, Union of Soviet Socialist Republics, United Kingdom, United States of America, Uruguay, Venezuela, Yugoslavia. Subsequently, after the Conference was in session, the Byelorussian Soviet Socialist Republics (April 27), the Ukrainian Soviet Socialist Republics (April 27), Argentina (April 30), Denmark (June 5) were added. The U.S. State Department, Statistical Summary of UNCIO, in Box 201, RG-59, GENERAL RECORDS OF DEPARTMENT OF STATES (RECORDS OF HARLEY A. NOTTER 1939-45): US DELEGATION TO THE UN CONFERENCE ON INTERNATIONAL ORGANIZATION 1944 & 1945. 23 Over 3,500 persons--staff of delegations and of the Conference Secretariat--were brought to San Francisco. The delegates of fifty nations were in all representatives of over eighty per cent of the world's population, people of every race, religion and continent, all determined to set up an organization which would preserve peace and help build a better world. In addition, there were more than 2,500 press, rndio and news representatives from many societies and organizations. See United Nations Department of Public Information, supra note 21, at 9; see also, http:i/www.un.org/aboutun/sanfrancisco/history.html. 24 The amendments sent from 40 national delegations during the first week of the San Francisco meetings were made up into books of some 400 pages of text. In addition, the sponsoring Powers themselves presented 24 joint amendments, incorporating later developments of their original ideas. Id., at 10. 25 RUSSEL, supra note 19, at 639.
26 Committee, Commissions, and the Committees. The Plenary Meeting was the final stage
of the Conference and had the final authority to adopt the draft of the Charter;26 the
Steering Committee was composed of the heads of all the delegations and decided all
matters of major principle and policy.27 But, even at one member per state, the committee
had fifty members, too large for detailed work. Therefore, an Executive Committee of
fourteen heads of delegations was chosen28 to prepare recommendations for the Steering
Committee.29
26 For this purpose, the reports of the commissions were drawn together in the text of the Charter for submission to the plenary meetings. The heads of the delegations of the sponsoring countries took turns as chairman of the plenary meetings. Initially, there was a plan that the U.S. Secretary of Stat.e be elected president of the Conference with the representative of other sponsors as vice president. However, the Soviet delegation wanted and achieved this four rotating president for the public Plenary Meeting. Id., at 634-5. 27 Id, at 640. 28 The U.S. had suggested that it be the same size as the Security Council and include five permanent members of the Council plus the following: Brazil, Canada, Czechoslovakia, Iran, the Netherlands, and Mexico. However, the other sponsoring powers provided proposals to replace one or the other on this list, and considerable discussion continued. Finally, instead of changing the members of the U.S. proposed list, Australia, Yugoslavia, and Chile were added to the original list. Id. at 640. 29 Many clauses and much of the phraseology of the Charter were interdependent. Decisions on one point affected other points; wording decided on for one section had to be brought into harmony with wording selected in another section. Thus, to prevent duplication and ensure the development of a harmonious whole, the Conference set up a Co-ordination Committee under Executive Committee. United Nations Department of Public Information, supra note 20, at 11.
27 Plenary Executive Committee Steering Committee ~ ~ Session Coordination Committee I Credential Parlia- l- Press I Committee I mentarian H Officers I I I I Commission I Commission II I Secretariat Commission III Commission IV General General I Security Judicial Provision Assembly Council Organiztion
___ J ______J ____ r ___ J ____ r ___ J ____ r I r I , , I Committee 1 I : Committee 1 : Committee 1 l Committee 1 I IPreamble/Purposesl I Structure I Structure I Int'! Court I & Principles : I & Procedures I & Procedures I of Justice l L----J----- L----J----- 1L----J----- L----J-----I r------1 r------1 r------1 r------, l Committee 2 I l Committee 2 l I Committee 2 I I Committee 2 I I Membership I I Political & I I Peaceful I I Legal I I I I I l & General I ISecurity Function I Settlement I Problems L- : ___ ] ____ ' :I ___ ] ____ ' I L- I I Committee 3 I : Committee 3 I I Economic/Social I I Enforcement I : Cooperation I I Arrangements : ._ ___ ] ____ _ l- ___ J ____ _
r------, r------, I Committee 2 I I Committee 4 I I Trusteeship I I Regional I I System : Arrangement : L------l _
Organization of the UNCI030
The bulk of the substantive work of the Conference was done in twelve technical
Committees. These operated under four general Commissions, each responsible for drafting a particular section of the Charter. Commission I dealt with the general purposes of the organization, its principles, membership, the secretariat and the subject of the amendments to the Charter, Commission II considered the powers and responsibilities of
30 Doc. 67. G 20. (May 5, 1945) in 1 UNCIO, at 81.
28 the General Assembly, Commission III took up the Security Council, and Commission IV
worked on a draft for the Statute of the International Court of Justice.31 Even dividing the
Charter into four sections was still insufficient for quick and efficient discussions. Thus,
Commissions were, again, subdivided for consideration by Committees. 32 The Committee
was the place that discussed and decided the draft of the Charter although more specific work was done in the sub-committee of each Committee.
The procedure to draft the Charter was a hierarchy from the Plenary Meeting to the
Committee. After the Committees had dealt with detailed sections, their conclusions were drawn together and reported to the Commissions.33 Then, the Commissions reviewed the report and discussed additional questions suggested by the Committee and approved them. 34 The approved provisions then went to the Coordination Committee, which was made up of the same fourteen states that formed the Executive Committee. The Committee decided on the structure of the Charter and prepared the final text. 35 In the final form, the
31 This draft had been prepared by a 44-nation Committee of Jurists which had met in W
29 Charter was then approved by the Steering Committee and officially adopted by the
Conference in the Plenary Meeting. 36
In addition, there was also an informal Committee, which was composed of five
sponsoring nations and discussed umesolved questions on new matters of importance that
m1g· ht anse.· 37 The head of these five delegations38 appointed their chief technical
advisers. This "Committee of Five" gave detailed preliminary consideration to all
significant Conference proposals and to draft texts on which the five could seek common
agreement.39 Throughout this complicated process, the Charter was considered-- paragraph by paragraph, sentence by sentence--"in nearly 400 meetings of the various committees.· 40
3. U.S. Delegations to United Nation Conference on International questions of organization, language clarification, and consistency of Committee decisions. In case of vagueness or of inconsistencies, proposed changes by the Coordination Committee had to be referred back to the appropriate Committee for approval. Id; see also Doc. 243 ST/8 (May 11, 1945) in 5 UNCIO, at 222-2. 36 In addition, the Advisory Committee of Jurists examined the text made by the Coordination Committee. But, the function was only to examine in five official languages. RUSSELL, Id. 37 It initially started with four members, but, later, France, another permanent member, joined the Committee. Id, at 642. 38 At the start of the Conference, the five major delegations were headed by Foreign Ministers of each nation. However, except for Stettinius, they left San Francisco by the Middle of May, the surrender in Europe hastening their departures. The acting Chairman of the delegations - Lord Halifax (U.K.), A. A. Gromyko (Soviet Union), Wellington Koo (China), and Joseph Paul-Boncour (France)- replaced the foreign ministers. Id. 39 Although it is uncertain how detailed the Committee affected the decision of the Conference, the function and influence was viewed as having considerable importance. Id. 40 The Charter was signed on 26 June 1945 by the representatives of 50 countries. In addition, Poland, which was not represented at the Conference, signed it later and became one of the original 51 member states. United Nations Department of Public Information, supra note 20, at 9.
30 Organization
The officers of the U.S. delegations to the San Francisco Conference were composed of a
few groups: Delegates, Advisers, Special Assistant to the Chairman, Assistant to the
· 41 Chairman, etc. Among these officers, Delegates and Advisers played the most important
role in the decision making process of drafting the text of the Charter.
Delegates,42 representatives of the U.S. to the conference, decided the direction of
negotiation and the final draft of each Article of the Charter. All activity of the delegation
was under the Chairman of the delegation, Edward R. Stettinus, Jr., Secretary of States. 43
The Chairman also represented the U.S. Delegation on the Steering Committee and
Executive Committee.44 Under the direction of the Chairman, there was a Delegate-in-
Charge of the work of each Commission: Commission I, Representative Bloom;
Commission II, Senator Vandenberg; Commission III, Senator Connally, Commission IV,
41 Other categories were: Secretary General and Deputy Secretary General, Special Assistant to the Secretary General, Political and Liaison Officers, Chief Technical Experts, Technical Experts, Aides and Assistants, Protocol Officers, Public Liaison Officers, Deputy and Associate Public Liaison Officers and Assistants, Executive Secretary and Assistants, Administrative Officer and Assistants. The U.S. State Department, United States Delegation: Organization and Procedure 1 (April 27, 1945), in Box 197, supra note 22. 42 Delegates were composed of eight members: Edward R. Stettinius Jr. (Chairman, Secretary of States), Cordell Hull (Senior Advisor), Tom Connally (United States Senate), Arthur H. Vandenberg (United States Sanetes ), Sol Bloom (House of Representative), Charles A. Eaton (House of Representative), Harold E. Stassen (Commander, U.S.N.R.), Virginia C. Gildersleeve (Dean of Barnard College). See id., at Annex. 43 Id., at 2. 44 Id., at 3.
31 Commander Stassen.45
Advisors,46 specialists in each area, advised delegates regarding the possible results of the draft. The advisors acted m a general or special capacity, as directed by the
Chairman, and Advisors, who were specifically assigned to Commissions, performed the work in connection with respect. to Commissions and related Committees as the Delegate- in-Charge directed. 47 The Delegates met every day during the Conference, regularly meeting from 9:00 a.m. to 10:15 a.m., and Advisors and other officers of the Delegation met with the Delegates as invited.48
45 Id., at 2. 46 Advisors were composed of 17 members from the Government: Department of State (James Dunn, Green H. Hackworth, Leo Pasvolsky, Isaiah Bowman, Hamilton Fish Armstrong, Charles W. Taussig, Avra M. Warren, John Hickerson, Harley A. Notter, Leroy D. Stinebower, John Foster Dulles), Treasury Department (Harry White), War Department (John McCloy, Stanley D. Embick, Muir S. Fairchild, R. L. Walsh, Kenner Hertford), Department of Justice (Charles Fahy). See id., at Annex. 41 Id. 48 On the other hand, Secretary General and Deputy Secretary General attended all meetings in order to keep records of the meetings and making daily reports. Id., at 4.
32 III. The Drafting History of Article 2 (4) of the UN Charter
1. Drafting Story of Article 2 (4) in the Dumbarton Oaks Conference
The idea to limit the use of force was suggested from the beginning of discussions at
Dumbarton Oaks. The U.S. initiated the idea of an independent paragraph to limit the use of force - although it was originally a categorical prohibition, the idea changed to a permissive manner just before the conference - and other members agreed with the U.S.' idea, although there were some re-wordings in the original text suggested by the U.S.
Finally, the four nations reached a draft of Paragraph 4 of Chapter II that limited the threat or use of force that is "inconsistent with the purposes of the organization."
It was the U.S. that initiated the independent paragraph 1 regarding the limitation of using force. The effort was shown in the early document for establishing the new international organization and in tentative proposals for the Dumbarton Oaks Conference.
In early 1944, the U.S. decided to insert the paragraph prohibiting the use of force in the
Charter of new international organization. In fact, the initial idea can be read in a prohibitive way because it articulates "to prevent the use of force or of threats to use of
1 In the Dumbarton Oaks Conference, Article was expressed by the name of the Paragraph. Later in the San Francisco Conference, the Paragraph was replaced by the name of the Article.
33 force in international relations except by authority of the international organization itself."2
The phrase articulates the only one exceptional condition, the authorization of the organization. 3 Thus, withoutthe authorization of the organization, there is no room for any use of force to be regarded as lawful.
In addition, the same idea was also found in another document prepared for the
Dumbarton Oaks conference.4 It provided that the "future international organization must be based upon firm and binding obligations that the member nations will not use force against each other and against any other nation except in accordance with arrangements made. "5 The text prohibited all use of force except the arrangements made in the organization, and thus using force is illegal if it is not authorized by the organization.
Thus, categorical prohibition seems to have been the U.S.' initial intention.
2 The U.S. State Department, General Character and Functions of the Proposed General International Organization (February 9, 1944), at 1-3, in Box 171, RG-59, GENERAL RECORDS OF DEPARTMENT OF STATES (RECORDS OF HARLEY A. NOTTER 1939-45): US DELEGATION TO THE UN CONFERENCE ON INTERNATIONAL ORGANIZATION 1944 & 1945. 3 Id., at 1. 4 The U.S. State Department, Summary of Official Statements and Views Pertaining to Permanent International Organization (August 1, 1944), at 4, in Box 186, RG-59, GENERAL RECORDS OF DEPARTMENT OF STATES (RECORDS OF HARLEY A. NOTTER 1939-45): RECORDS RELATING TO THE DUMBARTON OAKS CONVERSATION 1944. 5 Full text provided that "in conformity with the pledge of the four Great Powers in the Moscow Declaration not to use force outside their own territories after the war exerted for the purposes envisaged in the Declaration and after joint consultation, the Secretary of State, in his broadcast of April 9, 1944, declared that the future international organization must be based upon firm and binding obligations that the member nations will not use force against each other and against any other nation except in accordance with arrangements made." No specific reference to this principle, however, was been made by any of the other united nations, although a high official of the Chinese Government has previously declared that "international employment of force must be outlawed." Id.
34 However, the idea of categorical prohibition of the use of force did not last long and
changed when the U.S. handed in its proposal at the Dumbarton Oaks Conference. When
the four states met at Dumbarton Oaks, each nation handed in their tentative draft6 and
Paragraph 3 of Section I of the U.S. proposal articulated:
"the organization should be empowered to make effective the principles that no nation shall be
permitted to maintain armed force, or to use armed force in international relations in any manner inconsistent
with the purposes envisaged in the basic instrument of the international organization or to give assistance to
any state contrary to preventive or enforcement action undertaken by the international organization."7
It is noteworthy that the phrase in the U.S. proposal was changed from the initial idea
of a prohibitive one to a permissive one. The changes in the paragraph from "except the
authorization of the organization" to "inconsistent with the purposes of the organization"
afford the interpretation that a state might use its force if it is consistent with the purpose of the UN. It was uncertain why the U.S. changed its position; however, this U.S. position, the text of permissive interpretation, was never changed throughout the whole drafting
6 The U.S. State Department, Parallel Texts of the United States, British, and Soviet Tentative Proposals and the League ofNations Covenant (August 23, 1944), in id. The Soviet, at that time, did not engage war against Japan, so it expressed its concern that having the Conference with China might jeopardize Soviet neutrality in the Pacific conflict. The concern was accepted, and thus China joined the Conference after the Russia delegates left the Conference. Thus, the delegates of China participated in the Conference late, although it handed its proposal through its Embassy. See ROBERT C. HILDERBRAND, DUMBARTON OAKS: THE ORIGIN OF THE UNITED NATIONS AND THE SEARCH FOR POSTWAR SECURITY 61-2 (1990). 7 The U.S. State Department, supra note 4, at 2.
35 process of the Charter.
On the other hand, other member states of the Conference did not suggest specific provisions in limiting the use of force, although the idea was included in other Paragraphs of their proposals. The proposals from the UK and the Soviet Union also had paragraphs that purported to limit threats or use of force; however, they did not have an independent paragraph that specifically prohibited the use of force. 8 Although China's proposal, which was sent to the Conference by the Chinese Embassy, had the independent paragraph to prohibit the use of force, it was more likely related to the pacific settlement of international disputes.9 In this context, it seemed that the U:S. proposal provided the initial ideas in drafting Paragraph 4 of Section II of the Dumbarton Proposals.
During the Conference, members reached an agreement on the principle without considerable difficulty. In their early tentative agreement, which was made on August
1 29 \ 1944, the three nations agreed to limit the use of force, and Paragra~h 4 of Chapter II
8 Although the U.K and the Soviet did not suggest having an independent Paragraph regarding the prohibition of the use of force, their intention to limit the use of force can be found in many parts of their proposals. The phrases that "prevent aggression," "shall not live with war," "prevent states ... form upsetting the peace of world" were expressions related to the general idea of the prohibition of use of force. The State Department of the U.S., supra note 6, at 2, 14, 15 and 16. 9 Paragraph 4 of Section I (general Principles) of the Tentative Chinese Proposal provided that "the use of force as an instrument of national policy shall be absolutely prohibited. Any dispute between states, irrespective of its nature or origin, shall be settled only by specific means." The U.S. Department, Tentative Chinese Proposals for a General International Organization (August 24, 1944), at 1, in Box 186, Id.
36 of the tentative agreement articulated:
"All states shall refrain from the threat or use of force in their international relations in any manner
inconsistent with the purp6ses stated above." 10
The tentative agreement of August 29th showed that it was based upon the U.S.
proposal since it was nothing but a concise re-wording of the initial U.S. proposal.
However, there were two distinctive changes in the tentative agreement. First, the term
"threat" was added to the text instead of the phrase "no nation permitted to maintain armed
forces" in the original U.S. tentative proposal. 11 Although there was no explanation regarding the deletion of the phrase, it might be viewed as unduly restrictive since the phrase gives the new organization the power to intervene in the arms control of a state.
On the other hand, the term "threat" might be a useful phrase since it could conceive the idea of arms control as well as the idea of prohibition of another illegal act of a state. The second was the deletion of the latter part of the U.S. proposal that stated "no state ... to give assistance to any state contrary to preventive or enforcement action undertaken by the
10 The States Department of the U.S., Draft: Formulation Group-Org (August 29, 1944) in Box 178, supra note 4. The purposes in the draft were: 1. To maintain general peace and security and to take effective collective measures for the prevention and suppression of threats to or breaches of the peace; 2. To adjust or settle by peaceful means international disputes which may lead to a breach of the peace; 3. To develop friendly relations among nations and to take any other measures to strengthen universal peace; 4. To achieve international cooperation in the solution of international economic, social and technical problem; and 5. To be a center for harmonizing the actions of nations in the achievement of these common ends. 11 The U.S. Department, supra note 4, at 2.
37 international organization." This was not because of opposition from the other parties. It was well respected among the parties and became an independent phrase, what became
Paragraph 6 of the Chapter II, of the Dumbarton Oaks Proposal. 12
Later, in its tentative agreement on September 7, three nations had agreed to change the terms of the article: "all states" to "all members of the organization"; "the purposes stated above" to "the purposes of the organization."13 Although there were further discussions regarding whether the phrases "territorial integrity" and "political independence" should be inserted, no change was made on the tentative agreement of
September 7. Thus, the final draft of the Dumbarton Oaks preparatoryconference, in its
Paragraph 4 of the Chapter II14 provided:
All members of the Organization shall refrain in their international relations from the threat or
use of force in any manner inconsistent with the purposes of the organization. 15
At Dumbarton Oaks, the four nations made a provision that hinged on the legitimacy
12 Dumbarton Oaks Proposal, Paragraph 6 of Chapter II provided "all members of the Organization shall refrain from giving assistance to any state against which preventive or enforcement action is being undertaken by the Organization." Available at 13 The U.S. States Department, Draft: Formulation Group-Org. (September 7, 1944) in Box 178, supra note 4. 14 Paragraph 4 of Section II became Article 2 (4) of the UN Charter in the last minutes of the San Francisco Conference. On June 23, 1945, the Steering Committee approved unanimously the text of the Charter as submitted by the Coordination Committee and by the Advisory Committee of Jurists. Doc. 1210 P /20 (June 27, 1945) 1 UNCIO, at 628. 15 Doc. 1 Gl, 3 UNCIO, at 3.
38 of the use of force in the purposes of the new organization. The drafting history showed that the text containing categorical prohibition was once considered but replaced with softer language by the U.S. The other three nations also agreed to the U.S. proposal which allowed the text to be interpreted in a permissive way. This was the very reason that some nations expressed their concern regarding Paragraph 4 of Chapter II, and suggested their amendment on this issue in San Francisco. Although the Dumbarton Oaks proposal meant nothing but an interim reference at the San Francisco Conference, the drafting story shows, at least, that there was a clear understanding of the difference between "force inconsistent with the purposes of the organization" and "force inconsistent with the provisions of the organization." In addition, it was believed that international peace and security would be best maintained if members actively cooperated to achieve the common purposes and principles of the organization.16 Thus, it was intended that the inclusion of the purposes and principles in the main text would provide greater force as guiding principles "within the framework of which the Council and the members would be required to act."17 On
October 9, 1944, the final draft of the Dumbarton Oaks proposal, entitled Proposals for the
16 Ruth B. Russell, History of United Nations Charter 456 (1958). 17 Id., at 656.
39 Establishment of a General International Organization, was published. 18
2. Drafting Story of Article 2 (4) in the United Nations Conference on
International Organization
A. Amendment Proposals for Article 2 ( 4)
Optimism and enthusiasm prevailed among delegations from the smaller states at San
Francisco Conference for the prospect of peace and security through the newly proposed international organization. 19 However, recognizing that the prohibition of the use of force should be more extensive than any previous attempt to regulate the use of force, many of participating states were dissatisfied with the agreement of four powers at Dumbarton Oaks.
Thus, they proposed an Amendment on the Article; a total 12 Amendments20 were suggested at the San Francisco Conference regarding the principle that prohibits the use of force.
When states received the Dumbarton Oaks proposal, some felt that Paragraph 4 of the
18 Although the final draft was published, there was still disagreement on a number of issues such as veto power, trusteeship, and International Court of Justice. See EVAN LUARD, A HISTORY OF THE UNITED NATIONS 32 (1982). 19 Timothy L. McCormack, Self-Defense in International Law 157 (1996). 20 The nations that presented Amendments were Australia, Bolivia, Brazil, Chile, Columbia, Costa Rica, Ecuador, Iran, Netherlands, New Zealand, Norway, and Panama. UNITED NATIONS CONFERENCE ON INTERNATIONAL ORGANIZATION (1945: SAN FRANCISCO), SELECTED DOCUMENTS, 100-8 (1946).
40 Chapter II should be strengthened.21 Some of them suggested specific language for
Paragraph 4 to make the prohibition of using force categorical, and others suggested
general ways to strengthen the idea. Those states which provided Amendment proposals
regarding the use of force are Australia, Bolivia,22 Brazil,23 Chile,24 Columbia,25 Costa
21 United Nations Department of Public Information, The story of the United Nations conference on international organization, 1945, 22 UN CHRONICLE 10 (1985). 22 The Bolivian Amendment provides that "All members of the Organization shall refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the Organization. All threats or acts of violence committed by any state to the detriment of any other state shall be considered as acts of aggression committed against all the other members of the Organization." In its Amendment, Bolivia added one sentence to strengthen the prohibition of the use of force. The phrase "detriment of any other state" suggested strong implications that the use of force should be universally prohibited. However, by accepting the basic frame of the Dumbarton Oaks proposal without any change, the Bolivian proposal was not read as a categorical prohibition. See Doc. 2 G/14 (r) (May 5, 1945), in 3 UNCIO, at 582. 23 The Brazilian Amendment provides that "All members of the Organization shall refrain in their i:11ter11ational relati.ons from any intervention in the foreign or domestic affairs of any other member of the Organization, and from resorting to threats or use of force, if they are not in accord with the methods and decisions of the Organization. In the prohibition against intervention, there shall be understood to be included any interference that threatens the national security of another member of the Organization, directly or indirectly threaten its territorial integrity, or involves the exercise of any excessively foreign influence on its destinies." The text of the Brazilian Amendment demonstrated a strong intention of categorical prohibition of the use of force except the one authorized by the new international organization. Under this text, there is no room to legitimize the use of force without the authorization of the international organization, even if using force secures the purposes of the UN. See Doc. 2 G/7 (e) (May 2, 1945), in id., at 237. 24 The Chilean Amendment provides that "(I) Peace is the normal life of States. The international Community repudiates war not only as an instrument of national and expansionist policy but also as a procedure for settling international disputes. (2) Only the International Community, by means of its various organizations, may employ force in order to prevent or repel aggression and maintain the rule of law." Chile re-organized the Paragraphs in Chapter II, and located Paragraph 4 to Paragraph 3 under the title "repudiation of the use of force." Under the Chilean Amendment, force can be lawfully used if international community employs (employs what? Maybe participates?). The meaning of"by means of its various organizations" was not clear, but it might be the use of force of the new international organization - the United Nations - and that of other regional organization which the Dumbarton Oaks described in Chapter VIII, Section C. However, the proposal expressed strong opposition in that the use of force without such authorization became illegal no matter what the purpose was. Thus, the Amendment should be read as one that intended categorical prohibition. See Doc. 2 G/7 (i) (I) (May 6, 1945), in id., at 293. 25 The Columbian Amendment provides that "In order to promote cooperation among nations and to guarantee them peace and security, followings are necessary: ... VIII. To renounce the use of force as a means of settling disputes between states, and to declare war of aggression constitutes a crime in international law and involves not only the responsibility of the aggression state but also the personal responsibility of the political and military leaders of that country." The Columbian Amendment did not mention any specific terminology. Rather it described the general prohibition of the use of force needed to criminalize war of
41 Rica,26 Ecuador,27 Iran, 28 Netherlands,29 Panama,30 New Zealand,31 and Norway.
aggression. More interestingly, the Amendment added the criminal responsibility of states and its leaders. In this regard, it seemed that Columbia also wanted strong prohibition of the use of force; however, the phrase was too general to be interpreted as categorical prohibition. See Doc. 2 G/14 (s) May 6, 1945, in id., at 588. 26 The Costa Rican Amendment provides that "All members of the Organization shall refrain in their international relations from the threat or use of force." Costa Rica's Amendment did not add anything. Rather, it omitted the last part of the same Paragraph of the Dumbarton Oaks proposal so that the principle of abstention from the use of force may be "absolute." By deleting the last part, "in any manner inconsistent with the purposes of the Charter," Costa Rica intended categorical prohibition of the use of force since the new text could rid the possibility of a legal use of force to secure the purposes of the UN. See Doc. 2 G/7 (h) ( 1) (May 4, 1945), in id., at 278. 27 The Ecuadorian Amendment provides that "Formal repudiation by the states of the exercise of moral or physical force in their mutual relations, unless such measures should be the result of action agreed upon by the international organization within its international police system." Ecuador's Amendment, although it changed an entire text of the former Dumbarton Oaks proposal, intended universal prohibition of the use of force since only the international organization can employ the use of force. Thus, like the Costa Rican proposal, it can be read as intending categorical prohibition. Doc. 2 G/7 (p) (May 1, 1945), in id., at 399. 28 The Iranian Amendment provides that "All member states of the Organization should refrain from intervening in their international relations, either directly or indirectly, in the international affairs of the other states and from the threat or use of force in any manner inconsistent with the purpose of the Organization." The Iranian Amendment proposes inserting non-intervention principle into the Paragraph that prohibits the use of force. Since the non-intervention principle was omitted in the Dumbarton Oaks proposal, some nations wanted to insert the principle into the text of the Charter. The Iranian proposal was one effort in achieving this, and thus, it was not directly related to the categorical prohibition of the use of force. A non intervention principle was later provided by independent provision, Article 2 (7) of the UN Charter. See Doc. 2 G/14 (m) (May 5, 1945), in id., at 554. 29 The Dutch Amendment provides that "Each State has a legal duty to refrain from any use of force and from any threat to use force in its relations with another State, except as authorized by the competent agency of the Community of States; but subject to immediate reference to and approval by the competent agency of the Community of States, a State may oppose by force an unauthorized use of force made against it by another State." The Amendment, under the annex titled "Principals for the International Law of the Future," proposed the prohibition of the use of force. Netherlands' proposal also intended categorical prohibition. Just like others which intended the same goal, the Amendment hinged the legality of the use of force on only the authorization that is described in the Charter. In addition, the Amendment was distinctive in that it tried to insert the right of self-defense as a principle of the use of force. See Doc. 2 G/7 (j) (1) (May 1, 1945), in id., at 329. 30 The Panamanian Amendment provides that "Each States has a legal duty to refrain from any use of force and from any threat to use force in its relations with another State, except as authorized by this Charter; but subject to immediate reference to and approval by the competent agency of the (here the name of the Organization), a State may oppose by force an unauthorized use of force made against it by another State." Panama's Amendment also proposed categorical prohibition and emphasized it as a legal duty. Just like other Amendments that intended to do so, the condition for becoming a legal use of force was located in the authorization of the new organization. See Doc. 2 G/7 (g) (2) (May 5, 1945), in id., at 270. 31 The New Zealand Amendment provides that "a. All members of the Organization undertake collectively to resist every act of aggression against any member; b. All members of the Organization shall refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the organization." The New Zealand Amendment, similar to that of Bolivia, is nothing but inserting the duty to resist against the act of aggression in front of the paragraph that prohibits the use of force. The legality of the use of force remained as it was in the Dumbarton Oaks proposal and thus was not a categorical prohibition.
42 Among the Amendment proposals, those of two states, Australia and Norway, have great
importance, which led to hot debates during the Conference.
First, the Australian Amendment provides that "All members of the United Nations
shall refrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any member or state, or in any other
manner inconsistent with the purposes of the United Nations. "32 The Australian
Amendment articulated the specific language for Paragraph 4, "territorial integrity and
political independence." The phrase "territorial integrity and political independence/' provided in Article 10 of the Covenant of the League ofNations/3 was discussed during· the Dumbarton Oaks Conference, 34 and was considered such an important issue during the
See Doc. 2 G/14 (f) (May 2, 1945), in id., at 487. 32 Doc. 2 G/14 (1) (May 5, 1945), in id., at 543. 33 Article 10 of the Covenant of the League of Nations stated that "The Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled." Available at http://www.yale.edu/lawweb/avalon/leagcov.htm. 34 The term territorial integrity and political independence did not exist in the final text of the Dumbarton Oaks Proposal. However, it was discussed during the conference although it was opposed by the U.S. because Article 1 of Chapter II of the Dumbarton Oaks Proposal, the principle of "sovereign equality of all peace loving states" could cover the same idea. For example, "The Chairman said that was the view of the Chinese delegation that the political independence and territorial integrity of states should be safeguard against aggression but that this did not mean to perpetuate the status quo ... Mr. Pasvolsky remarked that the Chairman's statement added up to a strong argument in favor of considering political independence and territorial integrity as outstanding attributes of sovereignty. He wondered, however, whether the concept of sovereignty would not be weakened if some of its attributes were specified, and not others. He thought that the term "sovereign equality" was in themselves strong words and that it was understood that they meant such things as political independence, territorial integrity, security, and other attributes of sovereignty. He thought if special reference were made to political independence and territorial integrity the inferenc'e might be that they were not included in the general conception of"sovereign quality." ... Chairman replied that ... these two
43 Conference. 35 The Australian Amendment seemed to distinguish the terms "territorial
integrity and political independence" from other examples that were inconsistent with the purposes of the UN. The head of Australian delegation, H. V. Evatt, explained the reason to insert the terms in the Article 2 (4): " ... as the result of the insertion of the above words
(territorial integrity and political independence) ... the most typical form of aggression would place the aggressor clearly in the wrong at the bar of the United Nations."36 In
short, the term under the Australian Amendment meant the most typical form of aggression,
and was far from categorical prohibition of the use of force.
· Second, the Norwegian Amendment provides that "all members of the Organization shall refrain in their international relations from the threat of force and from any use of force not approved by the Security Council as a means of implementing the purpose of the
Organization."37 Norway's Amendment demonstrated a well developed text that clearly intended categorical prohibition. Under the text, there is no room for lawful use of force if
principles were understood to be attributes included in the conception of sovereign quality mentioned in the first principle in Chapter II of the Proposals." Later it became Article 2( 1) of the UN Charter, which provides that "the Organization is based on the principle of the sovereign equality of all its Members." The States Department of the U.S., Washington Conference on International Organization: Informal Records ofthe First Meeting of the Joint Formulation Group (October 3, 1944) at 11-5, in Box 183, supra note 4. 35 Several states, such as Bolivia, Egypt, and Ethiopia submitted amendments regarding the general obligation to respect each others' territorial integrity and political independence. MCCORMACK, supra note 19, at 158. 36 H. V. Evatt, The United Nations 18, 19 (1948) 37 Doc. 2 G/7 (n) (1) (May 4, 1945), in supra note, 22, at 366.
44 a force is used without the authorization of the Security Council. The phrase "purpose of
the organization" here has no independent meaning because it is simply a principle that the
Security Council should rely on when it decides the authorization. This is one of the
most succinct phrases for the categorical prohibition of using force and caused much
discussion during the drafting process of Article 2 (4).
Granted all proposed Amendments were submitted to strengthen the prohibition of the use of force by inserting new conditions or certain phrases such as territorial integrity, aggression, and criminal accountability, the most distinctive request was to establish a categorical prohibition. Since Paragraph 4 of Chapter II of the Dumbarton Oak proposal could be read that a force might be unilaterally used by a state, without authorization, to secure the purpose of the organization, many nations tried to re-word the Paragraph to block the possibility of a unilateral use of force by hinging its legality on the authorization of the organization. These attempts were made in virtually over half of the proposed
Amendments: Costa Rica, Ecuador, Netherlands, Norway, and Panama. Indeed, whether the use of force should be categorically prohibited or not was the most contended issue in drafting Article 2 (4).
B. Drafting Story of Article 2 ( 4)
45 The issue regarding the text of Paragraph 4 of Chapter II38 was discussed at Committee 1
of Commission I. Many delegates expressed that improvements in phraseology should be
made to strengthen the prohibition of using force. However, the result was the adoption of
the Australian Amendment, which could be interpreted otherwise. The proposed
Amendments were mitigated down to a less prohibitive understanding under the text of the
Australian Amendment.
The re-wording of Paragraph 4 had been discussed in the subcommittee of
Committee 1. It was pointed out that the phraseology of the paragraph might leave it open to a member state to use force in some manner consistent with the purpose of the organization but without securing the assent of the Organization to such use of force.
Some nations argued, accordingly, that Paragraph 4 should be reworded as to provide that force should not be used by any member state except by the direction of the world organization.39 Nevertheless, the subcommittee decided to adopt the Australian
Amendment to replace Paragraph 4 of the Dumbarton Oaks proposal.40 The Australian amendment, although not a categorical prohibition, strengthened the prohibition of the use
38 On June 13, 1945, the Committee 1 decided the integration of Chapter I and II. Thus, Paragraph 4 of Chapter II became an Article 2 (4). See Commission I, Committee 1: Report ofPapporteur of Committee J to Commission I (June 13, 1945), 6 UNCIO, at 447. 39 Doc. 382. 1/1/19 (May 17, 1945), in id, at 304. 40 Doc.7841/1/24 (June 5, 1945), in id, at 334.
46 of force in certain degrees since it added new conditions such as· "political independence
and territorial integrity," and included the non-member states into the umbrella of non-use
of force. The original text of the Australian Amendment - after some rewording - was adopted as the final text of Article 2 (4). 41
It is noteworthy that the drafters did not adopt the Amendment proposing a higher legal threshold that led to categorical prohibition. As seen in the Amendment proposals, many states wanted precise terminology for categorical prohibition, prohibiting the use of force that is not based directly on the Charter. 42 The change was simple because the states could establish the categorical prohibition of the use of force if they had changed the phrase
"inconsistent with the purposes of the Charter" to "inconsistent with the provisions of the
Charter," or if they had just adopted the Norwegian Amendment. If they made one of these changes, the categorical prohibition of the use of force would have been granted and there might not have been grounds for the permissive interpretation of Article 2 ( 4). But, the result was disappointing for those nations that preferred the change: the subcommittee did not choose that precise term.
41 The phrases in the original Australian Amendment, "All members of the United Nations ... " and "(political independence of) any member or state," cut short into "All members" and "any state." See WD 410 Co 170 (June 20, 1945), in 17 UNCIO, at 146-7; WD 435 CO 199 (September 4, 1945), at 284; WD 439 C0/203 (September 14, 1945), at 346. 42 See supra note 23, 24, 29, 30, and 37.
47 Accordingly, the decision of the subcommittee, once again, provoked considerable
discussion in the meeting of Committee 1. The Delegate of Brazil said that "the change, made in the text to incorporate the Australian Amendment had not removed the element of the ambiguity," and "apart from the use of legitimate self-defense, the text as it stood at present might well be interpreted as authorizing the use of force unilaterally by a state, claiming that such action was in accordance with the purposes of the Organization."43
Thus, the Delegate suggested that it was essential to clarify this by some wording such as
"all members of the Organization shall refrain ... from the threat or use of force unless such action was being taken according to procedure established by the Organization and in accordance with its decision."44 The delegate of Norway also argued that "the Committee should reconsider the present language which did not seem to reflect satisfactorily its intentions, and thought that in any case it should be made very clear in the report to the
Commission that this paragraph 4 did not contemplate any use of force, outside of action by the Organization, going beyond individual or collective self-defense."45 These were the attempts, like the amendments of many nations, to clarify the meaning of Paragraph 4 as a
43 Doc. 784 I/1/24 (June 5, 1945), in supra note 22, at 334. 44 Id. 45 Id., at 334-5.
48 ( categorical prohibition by hinging legality of the use of force on the authorization of the
Organization.
Nevertheless those views were opposed by sponsoring states. The Delegate of the
U.K. spoke in favor of the Australian Amendment in that, although he did not dissent from
the reasoning of the Norwegian Delegate, "the wording of the text had been carefully
considered so as to preclude interference with the enforcement clauses of Chapter VII of
the Charter."46 He argued further that, since the concept was already embodied in the
Australian amendment, he was convinced that the subcommittee had used the most
intelligible, forceful, and economical language. 47 The U.S. also added in favor of the
Australian Amendment that "the intention of the authors of the original text was to state in
the broadest terms an absolute all-inclusive prohibition and the phrase or in any other
manner was designed to insure that there should be no loopholes."48 The comments of the
U.K. and the U.S. were, in other words, that they understood the Norwegian reasoning but
they regarded that the Australian Amendment could capture the reasoning. The comments
were, however, too diplomatic to clarify the meaning because, whether the phrases
46 Id. at 335. 47 Id. 48 Id.
49 "absolute all inclusive prohibition" and "or in any other manner" strengthened the
prohibition of the use of force, the criterion for the legality of using force was still based on
the "purposes of the organization." In addition, the change to "inconsistent with the
provisions ... " does not seem to be far from economical language since it just changed one
word. Thus, if the intention of categorical prohibition was so clear, it was a mystery why
the text was not adopted to articulate it as such.49
Finally, Committee 1 voted for the submission of a text to the Commission. Once
again Committee 1 adopted the Australian Amendment unanimously although the Delegate
o f Norway ab stame· - d . 50 The Norwegian Amendment was never posted for voting.
Nevertheless, Committee 1 decided to report the discussion regarding Norwegian
Amendments to Commission I. 51 Interestingly, Committee 1 expressed a comment that the intention of the Norwegian Amendment, the categorical prohibition of the use of force, could be achieved by the adoption of the Australian Amendment. It provided,
Committee 1 stated that "The Committee likes it to be stated in view of the Norwegian amendment to
49 Classicists argue that these two comments of the U.K. and the U.S. were the reason that Article 2 (4) was intended as categorical prohibition. See IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 268 (1963); Edward Gorden, Article 2 (4) in Historical Context, 10 YALE J. INT'LL. 276-7 (1985). However, they did not explain why the drafters did not adopt the text that represents the intention more clearly. 50 Doc. 784 I/1/24 (June 5, 1945), in supra note 38, at 342. 51 Doc. 885 I/1134 (June 9, 1945), in supra note 38, at 400.
50 the same paragraph that the unilateral use of force or similar coercive measures is not authorized or admitted.
The use of arms in legitimate self-defense remains legitimate only to back up the decisions of the
Organization at the start of a controversy or during its solution in the way that the Organization itself ordains.
The intention of the Norwegian amendment is thus covered by the present text."52
However, by doing so, the meaning of the Paragraph 4 became contradictory: the intention of categorical prohibition under the text that can be interpreted otherwise. This was the very reason the new Paragraph 4 was not welcomed in the discussion of
Commission I. In the discussion of the Commission, the self-contradictory explanation was criticized by both sides: supporters of categorical prohibition and their opponents.
The Delegate of Norway said "it is illogical, because it comprises two negations."53 The
Delegate of Brazil also argued "it is equivocal."54 And, the U.S. Delegate said "it is awkward."55 However, no record of further discussion on this issue was found, and the
Australian Amendment was once again adopted by Commission I without any change. 56
Then, a very subtle but incredibly important change occurred. Unlike the report of
Committee 1 to Commission I, the report of the Commission I to the Plenary Meeting
52 Id. 53 Doc. 1123 1/8 (June 20, 1945), in supra note 38, at 68. 54 Id. 55 Id. 56 Id., at 82.
51 omitted the comment that the Norwegian intention was covered by the interpretation of the
adopted Paragraph 4. To the contrary, the Report continued to report the other important
discussions regarding the Amendment, for example, the New Zealand Amendment.
During the drafting process, New Zealand insisted that the phrase "all members of the
Organization undertake collectively to resist every act of aggression against any member"
should be inserted into Paragraph 4. 57 However, the New Zealand Amendment fell short
of the two thirds majority required for the submission by receiving 26 votes in its favor and
18 contrary votes. Nevertheless, Committee 1 decided to report the discussion regarding the Amendments to Commission I, 58 and Commission I reported the same statement that the New Zealand proposal "could not be ignored." Later, based on the Report of
Commission I, the Plenary Meeting also confirmed that New Zealand's proposal "could not be ignored."59
Indeed, in addition to New Zealand's proposal, many important issues regarding the
57 The New Zealand proposal was opposed in the subcommittee because the keynote of collectively was contained in the opening words of the Charter, and the amendment limited the Organization to resistance against aggression and the aggression itself could not be defined. Doc. 810 1/1/30 (June 6, 1945), in id, at 342- 3. 58 Doc. 885 1/1/34 (June 9, 1945), in id, at 400. 59 It stated that "the Delegate of New Zealand, in commenting Article 4 of Chapter II as submitted by the Committee, recalled that his delegation has sought to amplify the Article by the phraseology "all members of the Organization undertake collectively to resist any aggression against any member," and that in the Committee this proposal, while falling short by a few votes of the required two thirds, did have in its favor a substantial majority which could not be ignored." Doc. 1210 P/20 (June 27, 1945), 1 UNCIO, at 614.
52 interpretation of the paragraphs were reported by the Commission to the Plenary Meeting.
The purpose of the report was to remind the discussants in the drafting process and to
clarify the interpretation of each Article: the phrase "sovereign equality" in Paragraph 1 of
Chapter II covers the meaning of "personality of states";60 the role of International law in
deciding domestic jurisdiction in paragraph 8 of Chapter II; 61 the interpretive comment to
the admission of new members62 etc. In this regard, states should have been reminded of
the prohibitive interpretation of Paragraph 4 in the Plenary Meeting, the final authority in
drafting the Charter, that "it cannot be ignored" or ''approved the interpretative comment
under the Australian Amendment," if the categorical prohibition was to become authentic.
Nevertheless, there was no report and reminder regarding the Norwegian proposal to
Paragraph 4 in the Plenary Meeting. As a result, the omission of the discussion regarding
60 It stated that "the Peruvian Delegate made a declaration with reference to Article 1 of Chapter II, as submitted by Committee Ill, stressing the belief of his delegation that this Article should have contained a reference to the "personality of states." He likewise expressed misgivings as to the meaning of the phrase "sovereign equality," to which the Rapporteur of Committee Ill replied with a full review of the ideas as comprised in the Committee's discussions of the phrase." Id. 61 It stated that "the Delegates of Uruguay and Belgium explained their attitudes toward this Article (later Article 2 (7) of the Charter) as based on the belief in the rule of international law as a criterion of what matters were within the scope of domestic jurisdiction. The Belgian Delegate was satisfied with the settlement of disputes by the International Court of Justice or other tribunals on the basis of international law. The Peruvian Delegate requested that it be noted in the report that the Peruvian Delegation, as well as a number of delegations, had proposed that the International Court of Justice should determine whether a matter pertained to domestic jurisdiction." Id., at 615. 62 It stated that, with respect to the admission of new members, Commission I approved by acclamation the following interpretative commentary ... "It is the understanding of the Delegation of Mexico that paragraph 2 of Chapter III (later Article 4 of the Charter) cannot be applied to the states whose regimes have been established with the help of military forces belonging to the countries which have waged war against the United Nations, as long as those regimes are in power." Id.
53 the Norwegian proposal, whether or not it was omitted on purpose, weakens its status to
become an authoritative interpretative comment.
In sum, the drafting process of Article 2 (4) in the San Francisco Conference showed
1) many efforts to change the original phrase, the one in the Dumbarton Oaks proposal for
the categorical prohibition of the use of force; 2) these efforts were opposed, mainly by the
U.S., in Committee 1 of the Commission I; consequently Committee 1 decided to adopt the
Australian Amendment; however, 3) Committee 1 distinguished that the intention of
categorical prohibition could be covered by the interpretation of the adopted Australian
Amendment, 4) the report from Committee 1 was :self-contradictory and illogical under the
phraseology, and thus, not welcomed in Commission I; later, 5) Commission I omitted the
restrictive interpretation without any comment when it reported the draft to the Plenary
Meeting; 6) the Plenary Meeting, therefore, did not distinguish the prohibitive
interpretation and decided on Article 2 (4) as it was provided by Commission I.
3. The Intention of Major Sponsoring States
A. The U.S. Intention in Drafting Article 2 (4)
The U.S. intention regarding the draft of Article 2 (4) was based on permissive interpretation. A number of documents provide that the U.S. clearly opposed categorical
54 prohibition, and this position was consistent during the UNCIO. When it was faced with
strong requests from small nations, the U.S. opposed the request and alternatively adopted
the Australian Amendment, which had the expression that many states wanted to inscribe
into the Charter, "territorial integrity and political independence." By accepting the
Amendment, the U.S. could mitigate the request from small nations. The reason to oppose
the categorical prohibition was based on its concern that the Security Council might face
stalemate because of the veto power. For this purpose, the U.S. did not accept any text
that intended categorical prohibition.
From the beginning of the negotiation, the US.recognized possible outcomes of the phrase that intended categorical prohibition, and decided not to accept it. The U.S.' concern regarding the categorical prohibition was found in the early discussions of the U.S. delegation to San Francisco.63 When the U.S. received the Amendment from many nations requesting categorical prohibition, it examined the alternative text, which provided:
"All members of the Organization shall refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes and principles of the Organization and the provisions of its
63 The State Department of the U.S., UNCJO: the Meeting ofthe U.S. Delegation (April 18, 1945) at 15, in Box 193; The States Department of the U.S., UNCIO: the Meeting ofthe U.S. Delegation (April 26, 1945) at 13-4, in Box 193, supra note 2.
55 64 Charter."
Because of the phrase "the provisions of its Charter," the Amendment inevitably led to categorical prohibition. During the discussion, however, there were oppositions to accepting the phrase in that it would prevent necessary action by Member States when the veto Power of the Organization was used arbitrarily. 65 Mr. Pasvolsky, an Advisor from the
State Department, argued that, by adding the phrase, the use of force can be lawful only if it followed the procedural provision of the Charter, the authorization of the Security
Council. 66 Mr. Pasvolsky added that "the delegation should examine the situation that would be created if the proposed Amendment was adopted, and the basic question was whether states assumed obligations not to use force or whether they did not assume them."67 Mr. Dulles, an Advisor from the State Department, also opposed th.e new phrase in that it enlarged the scope of the obligations of members. Mr. Stassen, a Delegate, indicated that so long as the veto power remained, he would stand against enlarging the scope of the obligation. The reason they opposed the change in the text was that the new paragraph was more restrictive than before. Under the new text, the principle is so
64 Id. (April 18), at 15; Id. (April 26), at 13. 65 Id. (April 18), at 15. 66 Id. 67 Id.
56 restrictive that, even if the Organization fails to act, states would still be bound by the provisions of the Charter. Mr. Stassen mentioned that he objected to the new language because "if Russia vetoed action by the Organization," he wanted "it to be possible for the
United States to take whatever action was necessary, consistent with the purposes of the
Organization."68 Mr. Sandifer, an Advisor from the State Department, commented that
"the test was whether the use of armed force was in accordance with the purposes of the
Organization and that the individual use of armed force by a state might on occasion be construed as serving the purposes of the Organization and at the same tine constitute self- defense."69 Mr. Dulles also said there was no prohibition·on the individual use of force if it was done for the purposes of the Organization.70 Thus, the U.S. delegation reached an agreement that the original language, confining the obligation to refrain from the use of force in a manner inconsistent with the purposes, was preferable.71
After the discussion, the U.S. standpoint was consistent throughout the San Francisco
Conference: the U.S. understood the phrase "inconsistent ... with the provisions of its
Charter" as a matter of whether or not they accepted the categorical prohibition of the use
68 Id. (April 26), at 13-4. 69 Id., at 14-5. 70 Id., at 16. 71 It was, at first, discussed on April 18, but they failed to reach a decision. Later, on April 26, they decided not to accept the amendment proposal. Id.
57 of force, and consistently opposed any Amendment that intended as such. Later, during the discussion in the subcommittee of Committee 1 of Commission I, the U.S. opposed
Norway's arnendment,72 which led to the same result to establish categorical prohibition.
Once again, the U.S. delegation opposed the proposal for the same rationale. They believed that the revision would constitute an unnecessary restriction upon the right of the member states to use force consistent with the purposes of the organization.73 At this time,
Mr. Pasvolsky clarified again that "force could be used with the approval of the Security
Council and be used independently by states."74 Mr. Stassen added that "under the original wording the members could use force if the Security Council were to fail in dealing with the dispute or if it were to be in a deadlock. The only restriction on the right of a member state to use force, in the wording under discussion, would be that the use of force had to be consistent with the purpose of the Organization."75 Although Mr. Notter remarked that the Norwegians and a number of other delegations were opposed to the old wording, the idea of Mr. Stassen's was accepted without any opposition, and Secretary
72 The States Department of the U.S., UNCIO: the Meeting of the U.S. Delegation (May 16, 1945), at 2-3, in Box 194, supra note 2. 73 Mr. Dulles and Commander Stassen also agreed with Mr. Pasvolsky. Id. at 3. 74 Id. 75 The States Department of the U.S., UNCIO: the Meeting of the U.S. Delegation (June 5, 1945), at 3, in Box 194, supra note 2.
58 Stettinus recommended to the Delegation that it stand by the original phraseology.76
These discussions show that the U.S. deliberately selected text that could contain the idea
of using force if it was to secure the purpose of the UN, especially conceiving of the
situations when the Security Council fails to act or is in a deadlock.
As it noted, the U.S. also intended broad prohibition of the use of force in
international relations, 77 and if force is to be used, it should get authorization from the
Security Council. However, if the Security Council failed to act or is in a deadlock, the
U.S. wanted to be able to act, unilaterally or collectively, to secure the purposes of the UN,
· to maintain international peace and security.
Then, why was the U.S. Delegation so concerned about the possibility of a deadlock
in the Security Council and what circumstances might have caused this concern? The
answer can also be found in the drafting process, in particular, the part/section regarding
self-defense. The Soviet position, under the U.S. point of view, was not credible. From
the Dumbarton Oaks Conference, the U.S. Delegation encountered much difficulty when
76 Id. 77 The U.S. might not intend the unilateral use of force that intended territorial annexation or to make another nation as a satellite state, especially if the force is used without any deliberation of the Security Council. Those uses of force, under the U.S. understanding, are always inconsistent the purposes of the Charter since the text of Article 2 (4) intended to prevent those uses of force. This idea was never contended even up to today.
59 they negotiated with the Soviet Delegation.78 In particular, the Soviet Union's addiction
to complete veto power was a concern within the U.S. When the veto power of the
permanent members of the Security Council was discussed, both the U.S. and the U.K.
believed that although permanent members should have veto power regarding the
enforcement of decisions by the Security Council, the veto power should not apply to the
pacific settlement. Thus, the U.S. proposed that a party to a dispute should not vote on its
own case. 79 However, the Soviet Union insisted on the complete veto power of permanent
members including in the pacific-settlement, and finally acquired the U.S. 's concession. 80
This attitude of the Soviet Union in terms of negotiation concerned the U.S. The concern
was well represented in Senator Vandenberg's comments:
... Russia's unilateral plan appears to contemplate the engulfment, directly or indirectly, of a
surrounding circle of buffer States, contrary to our conception of what we thought we were fighting
for in respect of the rights of small nations and a just peace. 81
78 The confrontation between the U.S. and the Soviet Union could be easily found, and the Soviet Union frequently opposed the U.S.' idea, not only in regard to major issues of the Charter, but also asked concession to the U.S. based on political interest: the Soviet Union did not permit Chinese delegation to come to the table; wanted additional seats for Ukraine and White Russia; opposed France to be a member of the Council, etc. ; international armed force where the Soviet Union insisted on establishing international air force, etc. See RUSSELL, supra note 16, at 433, 445, 470, see also HIDERBRAND, supra note, at 122 158. ~ . ' RUSSELL, zd., at 444-9. 80 Id., at 449. 81 91 CONGRESSIONAL RECORD, PT. 1, 79 CONG. 1 SESS., at 164-7, re-quoted from RUSSELL, id., at 485.
60 However, the U.S. Delegation, as well as other sponsoring powers showed concern
about the failure of the Security Council. This was one reason that sponsoring powers,
contrary to its agreement at the Dumbarton Oaks Conference, agreed to express the right of
self-defense in the Charter at the San Francisco Conference.82 The U.S. Delegation believed that self-defense is a lawful exception of principle four, and if the Security
Council failed to take action as a result of the exercise of the veto power, it allowed others to use their force consistent with the purposes of the UN Charter, which includes the right of self-defense. 83 The right of self-defense, under this view, was dependent upon the original wording of principle four which made possible the use of force by member states. 84 In particular, considering that Article 51 provides the right of self-defense after
82 In the Dumbarton Oaks Proposal, the right of self-defense was not expressly provided. However, four powers agreed that principle 4 included the right of self-defense. For details, see infra Chapter IV, Section 1. 83 Senator Vandenberg stated that the problem was that we would be helpless to act in the new world if our action was not wanted by China and Russia. Mr. Pasvolsky noted that thanks to our own veto power no state could interfere in this hemisphere: In the event of an attack upon us from within or without, we would go to the Security Council, and if the Security Council refused to act, we would take action in self-defense. There was no question, he said, but that if our security was immediately imperiled by the failure of the Organization to act, we ourselves would act. In addition, Mr. Dulles stated ... since the prevention of aggression was a purpose of the organization, action to prevent aggression in the absence of action by the Security Council would be consistent with the purposes of the organization." He thought that if a European country vetoed action to prevent aggression in the Western Hemisphere, we would be entirely free to use force ... Mr. Stassen added that in order to keep us free to use force under these circumstances, he had previously favored the omission of the phrase in principle four "consistent with the provision of the Charter." Senator Vandenberg said that he thought that there was a general renunciation of the right to use force. Both Mr. Dulles and Mr. Stassen pointed out that this was not the case. The U.S. State Department, United Nations Conference on International Organization: Meeting of the United States Delegation (Evening, May 7, 1945), at 6, in Box 193, supra note 2. 84 The U.S. State Department, United Nations Conference on International Organization: Meeting of the United States Delegation (June 5, 1945), at 3, in Box 192, id.
61 "armed attack occurs," the legality of the use of force against imminent threat depend on the wording of Article 2 (4). 85 Thus, the U.S. Delegation drafted the principle in a perm1ss1ve way. The categorical prohibition of the use of force cannot be acceptable for the U.S. for the above reasons.
In conclusion, the U.S. intention regarding Article 2 (4) was not an equivocal one but allowed clear discretion for a permissive interpretation to prepare for the possible deadlock of the Security Council caused by the use of veto power by one of the permanent members, in particular from the Soviet Union. The U.S. delegation to the San Francisco conference reiterated this principle when they reported the result of the meeting to the President of the
U.S.:
" ... There were strong feelings among many nations in San Francisco that the Charter should
include a statement emphasizing respect for the territorial integrity and political independence of
states. Agreement was reached to state the obligation of Members of the Organization to refrain
in their international relations from the threat or use of force against territorial integrity and
political independence. The standard of conduct of this country permits us to assume this
obligation with no hesitation, and such an obligation is consistent with the purpose of the United
85 For details, see infra Chapter IV.
62 Nations to prevent the threat or use of force in any manner inconsistent with its objectives. 86
This report reaffirmed that the intention of the U.S. relating to the legal standard of
the use pf force was based on whether it is "consistent with the purposes of the UN." In
addition, the U.S. delegation expressed that they accepted the phrases such as territorial integrity, political independence, and even self-defense because they viewed these phrases as consistent with the purposes of the UN. 87
B. Intention of the Other Sponsoring States
The U.S.' s idea was flanked by that of other sponsoring nations. The U.K. and the Soviet
Union clearly understood that the Australian Amendment could be read in a permissive way, and thus, accepted the Amendment. Although not clear, there is plausible evidence that the other two sponsoring states, China and France, acquiesced to the view: a gentlemen's Agreement between sponsoring states.
The U.K.
86 The Chairman of the United States Delegation, Charter of the United Nations: Report to the President on the San Francisco Conference 41 (1945). 87 " ••• Under this principle (Article 2 (4)) Members undertake to refrain from the threat or use of force in any manner inconsistent with the purpose of the Organization. This means that force may be used in an organized manner under the authority of the United Nations to prevent and to remove threats to the peace and to suppress acts of aggression. The whole scheme ofthe Charter is based on this conception of collective force made available to the Organization for the maintenance of international peace and security. Under Article 51, force may also be used in self-defense before the machinery of the organization can be brought into action, since self-defense against aggression would be consistent with the purpose of the Organization." Id.
63 The U.K. also interpreted the Australian Amendment in a permissive way.
Although the discussion of the U.K. delegates did not provide details like that of the U.S., the U.K. representatives discussed the Amendment proposals and decided to accept the
Australian Amendment under the permissive interpretation. The U.K. Foreign Office documents provided the evidence to support this. It states:
Territorial Integrity and Political Independence: Some governments, including those of New Zealand and
Australia, are very anxious that the guarantee of Article 10 of the Covenant should be renewed. This
guarantee was in fact quite illusory, since it laid no specific obligations upon the members of the League.
Nevertheless there will be among some states a great demand that their territorial integrity and political
independence should be guaranteed. The United Kingdom objection, which was strongly stated at
Dumbarton Oaks and publicly put forward in the Commentary on the proposals, are that such a guarantee,
if it is a real on one, would amount to a guarantee of the status quo. On the other hand we did suggest
that states should undertake to respect the political independence of other states, and as a result of the
recent Commonwealth discussion it was suggested that the Dumbarton Oaks document should be
amended so as to debar members expressly from the use of force against one another's territorial
integrity and political independence. Such words might do no harm, though they are in fact a limitation
on Principle 4, and so far from adding anything to the protection of small states might possibly detract
64 c: . 88 1rom 1t.
The document clearly recognizes that the Australian Amendment does not intend categorical prohibition of the use of force. Rather, the document provides that the U.K. understanding of the Amendment is far from adding anything to the protection of small states. Accordingly, those wishes of small states, the categorical prohibition of the use of force, were not accepted by the U.K. Unfortunately, the document did not specifically provide the reason why they opposed an Amendment that could be interpreted in a categorical manner, e.g. the Norwegian Amendment. It mighthave been too strict for the
U.K. to accept those since it once thought and wanted the charter of a new Organization to be simple and flexible when it comes to its principles and objects.89 Nevertheless, the document clearly reflects the U.K. intention: Article 2 (4) is not a categorical prohibition but a permissive one.
The Soviet Union
The perm1ss1ve interpretation of Article 2 (4) can also be found in the Soviet intention. When the Soviet Union published the result of the San Francisco Conference, it
88 FO 371/50708, United Kingdom Delegation to Reconstruction Department, San Francisco Conference: United Kingdom Delegation Document No. 1., at 2. 89 The States Department of the U.S., supra note 6, at 13.
65 specifically mentioned that Article 2 (4) had nothing to do with categorical prohibition of
the use of force. 90 In detail, the Soviet viewed:
The initiative of the Australian delegates led to the addition to item 4. According to it, an addition is
made to the text accepted in Dumbarton Oaks and explaining that the members of the Organization
refrain from threat or use of force "somehow, not compatible with the purposes of the Organization",
to the extent that the members of the Organization refrain from threat or use of force "against
territorial integrity or political independence of any state." It is necessary to notice that this addition
does not introduce a new principle; needless to say, it was meant also at the document acceptance in
Dumbarton Oaks, and only specifies the attributes of aggression, inadmissible according to the
Charter. At the same time, it by no means excludes, for example, change of state borders under
voluntary agreement (as under the Soviet-Czechoslovak contract on June, 29th, 1945, about the
Zakarpatye Ukraine), or handover, also under voluntary agreement, any key points ( as under the
Soviet-Chinese covenant on Port Arthur on August, 14th, 1945), or recognition of independence of
any country (as in agreement on External Mongolia made by exchange of notes by Molotov - Van
Shidze on August, 14th, 1945). In other words, this addition does not guarantee the preservation of
90 Academy of Science of the USSR, Institute of Law, Materials on the History of the United Nations Organization: Creation of the Charter of the United Nations Organization 108 (1949). AKA,IJ;EMI15I HAYK CCCP, I1HCTI1TYT TIPABA, ATEPI1AJ1bl K MCTOPMH OPfAHI13AQHH OE'bE,IJ;MHEHHbIX HAQMH: C03,IJ;AHI1E TEKCTA YCTABA PfAHI13AQI1H OE'bE)J;I1HEHHbIX HAQMH 108 (1949).
66 territorial standstill. (English commentators of Dumbarton Oaks text (see White Paper, Cmd 6771, p.
5) and of the Charter of the United Nations Organization (see White Paper, Cmd 6666, p. 6) speak to
the same effect. The New Zealand amendment that guaranteed status quo was not accepted at the
Conference). 91
This excerpt, part of a book published by the branch of the Soviet government,
provides that the rev1s10n of Article 2 (4), the Australian Amendment, had the same
meaning as that of Dumbarton Oaks, and was far from guaranteeing territorial standstill.
It, at first, explains the Dumbarton Oaks proposal that Article 2 (4) is to prohibit the use of
force as "somehow not compatible with the purposes of the UN Charter," and that the term
"territorial integrity and political independence" in the Australian Amendment prohibits the
91 Id. In Russian, TiyHKT 4 co.11.ep)KMT .11.on01rnem1e, ofonaHHoe, rnaBHhIM o6pa.30M, HHMil,Manrne aBCTpaJJHHCKHX .11.eneraTOB. CornaCHO eMy, K TeKCTY, npHIDITOMY a J:1:YM6apTOH-0Kce H fOBOpHBIIIeMy, 'ITO 'lneHbI OpraHH3ail,HH B03)].ep)KMBaIOTCH OT yrp03bI CHnOH HnH ee npHMeHeHM «KaKHM-nH60 o6pa.30M, He COBMeCTHMbIM C 11,enHMH OpraHH3aI.J.HH>>, BHeceHO .11.ononHem1e B TOM CMbICne, 'ITO 'lneHbI OpraHma11,m1 B03)].ep)KHBaI-OTrn OT yrp03bI CHnOH HnH ee npHMeHeHM «npOTHB TeppHTOpHaJJbHOH I-ienpHKOCHOBeHHOCTH HnH no mITH'leCKOH He3aBHCHMOCTM nI-06oro rocy.11.apcTBa». Cne.11.yeT 3aMeTMTb, 'ITO 3TO .11.ononHeHHe He BHOCHT HOBOro npHHil,Hna; caMO co6oil: Pa.3YMeeTCH, OHO MMenocb B BM.11.Y M npM npMIDITHM )].OKYMeHTa B J:1:YM6apTOH-0Kce H nMIIIb YTO'IIDieT IIpM3HaKH He.11.orryCTMMOH no Ycrnay arpecCMM. BMeCTe c TeM, OHO OTHI-0)].b He HCKnI-O'!aeT, HanpMMep, M3MeHeHM rpaHHII, rocy.11.apcTBa no .11.06pOBOnhHOMY cornaIIIeHMI-0 (KaK no COBeTCKO-'lexocnoBail,KOMY .11.oroBopy 29 MI-OIDI 1945 r. o 3aKapnaTCKOH YKpaMHe), MnH nepe.11.a'IM, TaK)Ke no .11.06poBonbHOMY cornaIIIeHHI-0, KaKHX-nM6o CTpaTerH'leCKHX rryHKTOB (KaK no COBeTCKO-KMTaHCKOMY cornaIIIeHMI-O O TiopT-Aprype 14 aBrycrn 1945 r.), HnM npM3HaHM He3aBMCMMOCTM KaKOH-nH60 crpaHbI (KaK BHeIIIHeH MoHronHH - o6MeH HOT MonoToBa - BaH lllM.11.3e OT 14 aBrycra 1945 r.). )];pyrn:MM cnoBaMM, 3TO .11.ononHeHMe He rapaHTMpyeT coxpaHeHM TeppHTOpMaJJbHOro «crnryc KBO. (B TOM )Ke CMbICne BhICKa.3bIBaI-OTCH aHrnMHCKMe KOMMeHTaTOphI TeKCTa J:1:YM6apTOH-0Kca (cM. White Paper, Cmd 6771, crp. 5) H YcraBa OpraHma11,MM 06be)].MHeHHbIX Ha11,Hi1 (cM. White Paper, Cmd 6666, cTp. 6). HoBmenaH.11.CKaH nonpaaKa, rapaHrnpoBaBIIIaH status quo, He 6brna npMIDITa KompepeH11,Meil:.)
67 use of force "only to that extent."92 Further, it implies the reason why the Soviets opposed the categorical prohibition of the use of force: the Soviet concern regarding the inviolability of borders and the support for self-determination. Because the book, unlike that of U.S. and U.K. documents, is not a classified document, it does not provide more practical reasons, such as the concern of the overuse of veto power by its rival, the U.S.
Nevertheless, it demonstrates that the Soviet Union's intention of the perm1ss1ve understanding of Article 2 (4) is too distinctive to interpret otherwise. The Soviet Union, later, demonstrated its point of view when it supported "war ofliberation."93 At that time, the Soviets showed their understanding of Article 2 (4): a war of liberation is consistent with the purpose of the Charter. 94 The basis for this argument was inevitably based on the permissive interpretation of Article 2 (4) of the UN Charter.
Other Sponsoring States
Unfortunately, this study could not access the relevant documents or books in France,
China or Taiwan. However, there is strong evidence that these two states also agreed, or at least acquiesced, to the permissive understanding of Article 2 (4): a gentlemen's agreement
92 Id. 93 W. Michael Reisman, Criteria for the Lawful Use of Force in International Law, 10 YALE J. INT'LL. 280 (1985). 94 Id.
68 between five sponsormg states. During the San Francisco Conference, there was a gentlemen's agreement between the five sponsoring states that sponsoring states should first consult and seek the concurrence of others before tabling the Amendment to the
Dumbarton Oaks proposals.95 This gentlemen's agreement provides strong grounds to assume that there was a concurrence in opinion, among the sponsoring states, regarding the understanding of Article 2 (4) before they discussed it in Committee 1 of Commission I.
As it noted, there was a daily meeting among sponsonng states, which was called
"Committee of Five" during the San Francisco Conference. 96 Considering the same opinion among three major sponsoring states, the U.S., the U.K., and the Soviet Union, the intention of the other two states, although it cannot be confirmed, could be assumed, at least, as an acquiescence in a permissive interpretation.
C. The Status of the Intention of Sponsoring States
The cooperation among the sponsoring states shows that they clearly intended to draft
Article 2 ( 4) in a permissive way. The intention, although it cannot represent the intention of all the drafters, holds great significance over that of small states. The role of
95 It states that " ... before any one of them tabled an Amendment to the Dumbarton Oaks proposals, he would first consult and seek the concurrence of others." THE U.K. DELEGATION TO SAN FRANCISCO CONFERENCE, FROM UNITED KINGDOM DELEGATION SAN FRANCISCO TO FOREIGN OFFICE (TELEGRAM), May 17, 1945. 96 See supra Chapter II, Section 2.
69 sponsoring states during the drafting process and the adopted text of Article 2 (4) support this conclusion.
A question arises regarding the status of the intention of sponsoring powers, and that of other small states which probably outnumbered the sponsoring states. Can one of either represent the intention of the drafters of the UN Charter? If not, which one has more impact on the draft of Article 2 (4)? To answer the question, one must consider practical issues such as the role of each group of states during the drafting process. In addition, since the final text is the result of negotiation, it can also be used to determine whose intention prevails ifthere were conflicting views recognized by member states.
When it comes to the role played during the San Francisco Conference, it should be noted that the sponsoring states virtually led the conference and played the most important role in the drafting process. As a matter of principle, the intention of one party or a group cannot represent the others if there are conflicting views during the negotiation. As a treaty, the UN Charter is the treaty of all member states, and although it could not have satisfied every nation on every point, it was a plan which all agreed to accept as the highest common denominator of the ideas of all. 97 Consequently, a certain view of a certain
97 UN Department of Public Information, supra note 21, at 11.
70 nation cannot always prevail over other views in relation to the intention to draft Article 2
(4) of the Charter. However, one should not underestimate the reality that the sponsoring powers were leading nations among allied nations which fought against axis powers in
World War II. They virtually led the war, and amidst the war, they planned an international organization. In addition, it was the sponsoring states that led the conference and initiated the draft of the Charter. Thus, their influence over the member states in the
San Francisco Conference cannot be overlooked. Especially, it was the U.S. that played the most important role during the two Conferences and infiltrated its will into every provision of the Charter. 98 As one of five sponsoring nations, the U.S. initiated the
Dumbarton Oaks proposals, and provided the location and facilities for the Conference. 99
The intention of the U.S. infiltrated the text of the Charter through these processes. In particular, the U.S. prepared every detail regarding the text of the Charter, and led the drafting process through the discussions with sponsoring nations. 100
Other sponsoring states also propelled the establishment of the new international organization. Together with the U.S., they discussed the issues in the drafting process and
98 The States Department of the U.S., Statistical Summary of the United Nations Conference on International Organization, in Box 201, supra note 2. 99 Id. 100 The Conunittee of Five was a good example. The U.S. preliminarily discussed every important issue with other sponsoring nations. See supra Chapter II, Section 2.
71 persuaded other states to follow their ideas. The gentlemen's agreement, which indicates that any Amendment proposal should be posted to vote after the agreement of sponsoring states, provides how they designed the Conference to draft provisions consistent with their intention. If one admits this as reality, one cannot argue against the fact that the intention of the sponsoring powers could be regarded as the core intentions of the drafters.
More convincing evidence supporting the intention of sponsoring states is located in the result of the negotiation, the text of Article 2 (4). I.fthere are conflicting views on a certain phrase of the text, which is recognized by negotiating parties, the most important fact in defining the intention of the drafters might be the result of the negotiation. This controversial issue was not initiated from unconscious negotiating parties. It was well recognized during the negotiation process, and it was a matter of adopting one of two phrases: the text worded in a prohibitive way by articulating "inconsistent with the provisions of the Charter," or the text worded otherwise by articulating "inconsistent with the purposes of the Charter." To be authoritative, the text for categorical prohibition should have been adopted in the Conference. Or, at least, the intention of small states should have been mentioned in the Plenary Meeting to affect the interpretation of Article 2
(4). Unfortunately, small states, the supporters for categorical prohibition, failed to keep
72 their position up to that threshold, and the text that intended categorical prohibition was never posted to vote and failed to be reported to the Plenary Meeting. By adopting the current text of Article 2 ( 4), the intention of small states remained a minority. Instead of accepting the request of small states, sponsoring states tried to mitigate the request with diplomatic rhetoric and phrases. But sponsoring states never gave up their viewpoints and maintained the basic criterion "inconsistent with the purposes of the UN."
On the other hand, the fact that sponsoring powers did not overt their permissive intention does not provide excuses for small states. It could be argued that the intention of sponsoring states could not be accepted because it was never openly discussed in the drafting process. The sponsoring states did not overtly argue that they would use force without the authorization of the Security Council. Consequently, one may argue that the hidden intention of the sponsoring power cannot prevail over the expressed intention of small states. However, the treaty negotiation was flooded with diplomatic language and it, sometimes, took for granted that negotiating parties did not disclose their strategic interests.
Thus, the diplomatic rhetoric in negotiation processes such as "no loophole,"101 or
"absolute all inclusive prohibition" cannot constitute excuses because Article 2 (4)
101 See supra note 48.
73 maintained its original phrase "inconsistent with the purposes of the UN."
True, it might be uncertain to draft current language if the sponsoring powers openly insisted their intention to use unilateral force if the Security Council fails to act. Therefore, by opposing the text intended as categorical prohibition of the use of force, the sponsoring states virtually expressed their point of view. Small states knew the controversial phrase in the drafting process of Article 2 (4) and the opposition of sponsoring states regarding the adoption of the phrase that would manifest in categorical prohibition. In fact, this is very common in treaty negotiation. States, to maximize their interest during the treaty negotiation, used to use diplomatic rhetoric and keep silence in relation to their real intention while taking the text very seriously during the drafting of the treaty. 102 True, this bargaining metaphor is necessary for the secrecy regarding one's own position, both resources and the limits of possible concessions, and has been considered one of the most important issues in international negotiation. 103 During the treaty negotiation, it is the responsibility of each state whether they ultimately agree or disagree to a certain text which would be eventually interpreted according to its ordinary meaning. Thus, the mere fact
102 Victor M. Sergeev, Metaphors for Understanding International Negotiation, in INTERNATIONAL NEGOTIATION: ANALYSIS, APPROACHES, ISSUES 65-66 (VICTOR A. KREMENYUK ed. 2002). 103 Id.
74 that sponsoring states did not reveal their intention cannot provide legal basis in support of small states.
Lastly, one may argue that, because small states outnumbered sponsoring states, 104 the intention of small states should be considered as the majority intention of the drafters.
However, it is even unclear whether the prohibitive intention was in fact a majority in numbers during the Conference. Although many states wanted broader prohibition of the use of force, they did not provide specific details regarding the possibility of exceptional circumstances, such as the failure of the Security Council, and, in that case, the need of unilateral force to secure the purposes of the UN. It seems that many small states just preferred a stronger statement guaranteeing that members would not use force against each other. 105 Thus, they might have been satisfied with the Australian Amendment, and thus did not insist on using the phrase that articulates categorical prohibition of the use of force.
It should be noted that the Norwegian Amendment, which manifested categorical prohibition of the use of force, was not even posted to vote. 106 In addition, even ifthere
104 See Louis Henkin, Use ofForce: Law and U.S. Policy, in RIGHT AND MIGHT: INTERNATIONAL LAW AND THE USE OF Force (2d) 37-47 (LOUIS HENKIN ed., 1991). 105 Mr. Notter reported to the U.S. delegate about the pressure of Committee I/1 for a stronger statement guaranteeing that members would not use force against each other, and they would want the Organization to guarantee that assurance. The States Department of the U.S., Meeting ofthe Delegation (June 5, 1945), at 1, in Box 194, supra note 2. 106 The posted New Zealand proposal failed to get a two thirds majority vote, which was the threshold to
75 were a majority in numbers, it should be noted that the UN security system is based on the
107 reality of power politics which admits supreme role of permanent powers. It was the
San Francisco Conference that bestowed superior powers in dealing with international security matters to permanent members. Because of the unique UN security system, the intention of small states could not represent the intention of all drafters even if the small states constituted the majority in numbers.
In sum, although Article 2( 4) provided stronger assurance to smaller states that all members pledged not to use force, it did not provide a universal guarantee. If a text is adopted in spite of conflicting language provided to replace it, the intention of the adopted text must be respected. Thus, even if one concedys from arguing that the intention of sponsoring states is more likely the core intention of the drafters, it is much less convincing to argue that the intention of small states can represent the intention of all drafters. The hope of some states was blocked by the sponsoring powers during the drafting process.
Further, even if a permissive understanding of sponsoring states cannot represent the intention of all drafters, the limited status still has made a very important contribution in become an official text. Thus, the status of Norwegian Amendment seems even weaker than that of New Zealand. See supra note 57, 59. 107 See Article 27 of the Chapter, available at http://www.un.org/aboutun/charter/. For details on veto power, see BRUNO SIMMA, THE CHARTER OF THE UNITED NATIONS 434-69 (1994 ); see also ANJALI V. PATIL, THE VETO POWER: HISTOR1CALNECESSITY 89-103 (2001).
76 ( interpreting Article 2 (4) because, unless other intention prevails, the Article should be
interpreted in accordance with the ordinary meaning of the text.
4. The Legitimacy of Permissive Interpretation of Article 2 (4)
Unlike previous studies, this study found the classicists' argument, that the drafting history
supports the prohibitive interpretation of Article 2 (4), is not convincing. Rather the
Travaux Preparatories provides that permissive interpretation is more credulous under the
rule of treaty interpretation. Combined with the text of Article 2 (4), the intention of
sponsoring powers provides legal grounds that the interpretation of the Article 2 (4) should
be a permissive interpretation. In addition; from a historical context, the phrase "territorial
integrity and political independence" did not mean categorical prohibition of the use of
force even before the San Francisco Conference.
A. Preparatory Works in fact Support Permissive Interpretation
Based on the principles of treaty interpretation from the Vienna Conv~ntion on the Law of
Treaties, the text of Article 2 (4) can be read in a permissive way. First of all, the ordinary
meaning of the Article 2 (4), the first principle to interpret the treaty, can be read in a
perm1ss1ve way. The text expressly hinges the legality of the use of force "inconsistent
with the purposes of the UN," and thus, the ordinary meaning can be read that the use of
77 force may be lawful if consistent with the purposes of the UN. Thus, the textual meaning
seems to support the legal realists' view, which is the very reason that classicists argue for
supplementary treaty interpretation measures.
To refute the ordinary textual meaning, one must prove that the meaning of Article 2
( 4) is uncertain and needs other supplementary means in treaty interpretation to clarify. 108
This is the way classicists argue. In their view, Article 2 (4) was understood as a clear and
categorical rule at the time the Charter was adopted, and is accepted as a matter of fact. 109
· However, this study found that the intention of the drafters of Article 2 (4) does not support
the classicists' argument. Rather, surprisingly, even in the preparatory work of the Charter,
the permissive interpretation seems to prevail.
As seen above, the classicists' interpretation represents the intention of only some
states, which was ultimately blocked by the sponsoring states at the San Francisco
Conference. If the U.S. and other sponsoring states did not have a specific intention regarding the permissive interpretation of Article 2 (4) and simply believed that the
108 The rules of Article 32 of Vienna Convention are applied to confirm or determine the meaning of treaty as supplementary to Article 31. Even if the words of the treaty are clear, if applying them would lead to a result which would be manifestly absurd or unreasonable, the party must seek another interpretation. ANTHONY AUST, MODERN TREATY LAW AND PRACTICE 187 (2002). 109 See Tom J. Farer, An Inquiry into the Legitimacy of Humanitarian Intervention, in LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 186 (LORI FISLER DAMROSCH & DAVID SCHEFFER eds. 1996); BROWNLIE, supra note 49, at 268.
78 Australian Amendment was better phrased than Norwegian Amendment, Article 2 (4)
should be interpreted in a prohibitive way. Nevertheless, the in-depth examination of
preparatory work of Article 2 (4) provides that the sponsoring states clearly intended
otherwise, and purposely rejected the request from some states. It provides that the term
"inconsistent with the purposes of the UN Charter" was drafted purposely by the
sponsoring powers to secure their interest: for the U.S., to prepare for the possible overuse
of veto power by the Soviets; for the U.K., to avert status quo of territorial borders; for the
Soviets, to support the independence of new states, which can be interpreted in other words
"to expand socialism." Accordingly, the preparatory works show that the intention of
sponsoring powers prevailed in the San Francisco Conference, and Article 2 (4) should be read in a permissive way, in accordance with the ordinary meaning. 110
B. Territorial Integrity and Political Independence was not Categorical Term
Even if the sponsoring states did not intend categorical prohibition of the use of force and succeeded in drafting the Article to achieve their purposes, one could argue that prohibitive interpretation still survives if the term "territorial integrity and political independence" was
110 Article 31 (1) of the Vienna Convention (General rule of interpretation) provides that "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." Available at http ://untreaty. un. org/ilc/texts/instruments/english/ conventions/1 I 1969. pdf
79 accepted by states as meaning categorical prohibition at that time. In fact, part of the
classicists' argument, although they argue that even the intention of drafters was the
categorical prohibition by inserting the phrase, is based upon the phrase. 111 Thus, in order
to clarify the interpretation of Article 2 (4), the contemporary meaning of the term should
be examined, especially whether or not the phrase had historical precedent or special
meanmg. This study found that the phrase "territorial integrity and political
independence" did not mean categorical prohibition of the use of force even before the San
Francisco Conference.
One of earliest uses of the term "territorial integrity" and "political independence" can be found in the Treaty of Paris of 1856, among the U.K., Austria, France, Prussia,
Sardinia, and Turkey. Article VII of the treaty stated that " ... to respect independence and territorial integrity of the Ottoman Empire ... " The treaty constituted an important gloss upon the term "independence and territorial integrity" as a form of guaranteeing the preservation of the Ottoman Empire. Hence, the notion of these two terms began to take on a meaning equivalent to "preventing the permanent loss of a portion of one's territory,
111 They argue that, by accepting the phrase "territorial integrity and political independence or in any manner inconsistent with the purposes of the UN," Article 2 (4) of the Charter intended to mean categorical prohibition of the use of force. They, especially, used the U.S. comments during the conference as evidence that the U.S. also intended the categorical prohibition of the use of force. See BROWNLIE, supra note 49, at 268; Tom J. Farer, supra note 109, at 186.
80 and later treaties of guarantee seemed to bear out the rough equivalence of independence
and territorial integrity."112 The phrase used here meant targeting permanent loss of
territory. Thus, the term had nothing to do with the categorical prohibition of the use of
force because force could be lawful if it does not intend acquiring others' territory.
The term territorial integrity and political independence in Article 10 of the Covenant of the League of Nations also did not indicate categorical prohibition of the use of force. 113
Professor Brownlie argues that it stated the duty of not committing aggression; territorial integrity and political independence were the prime examples in deciding external aggression. This so-called "principle of non-intervention" was based on the concept of respect for the territorial sovereignty of states and constituted a part of the customary mtematlona. . 11 aw o f t h e time.. 114 However, the phrase "territorial integrity and political independence" in the Covenant also did not mean categorical prohibition of the use of force.
The territorial integrity here meant the prohibition of the permanent deprivation of ones territory. As Professor Kelsen commented, territorial integrity and political independence can be violated by means other than aggression. To further his argument in relation to
112 Anthony D'Amato, International Law Sources Vol. III 342 (2004). 113 Article IO of the Covenant of the League ofNations, supra note 33. 114 BROWNLIE, supra note 49, at 113.
81 lawful intervention, he commented that "if state A leases territory to state B, and upon
expiration B refuses to leave. Then does A have a right to attack B in order to get back its territory? A's aggression would be to re-establish territorial integrity, and thus not be in violation of Article 10 of the Covenant." 115 In addition, Article 10 of the Covenant of the
League of Nations even provided a source of debate regarding whether a state had a right to intervene to protect territory or independence of another state against internal attack, i.e.
against revolutionary forces within that state. 116
In fact, there was a stronger term providing categorical prohibition of the use of force at the time: "inviolability." For example, in the non-aggression treaty between Lithuania and the Soviet Union of 1926, Article 2 states that the parties "undertake to respect in all circumstances each other's sovereignty and territorial integrity and inviolability."117 As professor D' Amato pointed out, the term inviolability here works for the stronger non- intervention guarantee. In addition, as found in the Soviet concern regarding the drafting
Article 2 (4), the Soviet understood the term "inviolability of borders" to mean categorical
115 See Han Kelsen, Legal Technique in International law, 10 Geneva Studies, No. 6 (1929), re-cited from D' AMATO, supra note 112, at 347. 116 F. S. NORTHEDGE, THE LEAGUE OF NATIONS: ITS LIFE AND TIMES 52 (1986). 117 60 LNTS No. 1410, at 145.
82 prohibition of the use of force. However, the term was not even discussed during the San
Francisco Conference.
On the other hand, the sponsoring states accepted the phrase "territorial integrity and political independence" without understanding of categorical prohibition. It was at the
Dumbarton Oaks Conference, when China suggested that the phrase "political independence and territorial integrity" should be included in the proposal because the phrase would safeguard against aggression so that the great body of states would be reassured and their cooperation in the new organization would be made more likely. 118 It should be noted that the phrase under the Chinese point of view did not mean the categorical prohibition of the use of force. China explained that "it was not intended [that] the guarantee should be an absolute one but rather that it should be stated in the form of a principle that each member state would undertake to respect and not to violate the political independence and territorial integrity of other states." Nevertheless, the U.K., the U.S., and the Soviet Union opposed the proposal since they took the view that the phrase overlapped and could be replaced by the phrase "sovereign equality," in which China
118 The U.S. State Department, supra note 34, at 1, 11-12.
83 acqmesce· d . 119 The reason the other sponsoring states opposed was their concerned that
the term territorial integrity would tend to strengthen the status quo and make unnecessarily
difficult modification in boundaries. 120 At the San Francisco Conference, however, these
states changed their minds and accepted the Australian Amendment which included the
term. 121 Here, adopting the Australian Amendment also has nothing to do with categorical
prohibition. Rather, it was because of the mitigation to block the request of categorical
prohibition. The intention of these sponsoring powers was well reflected by the
explanation of Mr. Bowman, an Advisor of the U.S. delegation, who stated that "since the question of territorial integrity would be raised by a large number of states, it was desirable to agree upon a formula which would satisfy everybody." 122 Later, the U.K. and Soviet
Union also clarified that the territorial integrity did not mean the status quo of the border line when they accepted the Australian Amendment.
Lastly and most importantly, the term territorial integrity and political independence under the Australian delegation did not mean the categorical prohibition of the use of force.
119 Id. 120 The States Department of the U.S., Principal Proposals by Other Governments and Argument against Them I (April 24, 1945), in Box 193, supra note 2. 121 The tentative decision of the U.S. to accept the Australian proposal was made on May 15. The States Department of the U.S., UNCJO: the Meeting of the U.S. Delegation (May 15, 1945), at 3; see also, The UNCIO: the Meeting of the U.S. Delegation (May 17 1945) at 2 in Box 195 id. . 122 The States Department of the U.S., UNCIO: the Meeting' ' of the ' U.S. Delegation' (April 24, 1945), at 6, in Box 191, id.
84 The Australian delegate indicated that the terms territorial integrity and political
independence mean typical forms of aggression, which was viewed as territorial
invasion. 123 Under the term that the Australian delegate expressed, when he handed the
Amendment, territorial integrity and political independence has nothing to do with
categorical prohibition. The Deputy Prime Minister of Australia, Francis M Forde,
expressed that:
.. In the Charter should also be inserted a specific undertaking by all members to refrain in their
international relations from force or threat of force against the territorial integrity or political
independence of another state. The application of this principle should insure that no question relating to
a change of frontiers or an abrogation of a states' independence could be decided other than by peaceful
negotiations. It should be made clear that if any state were to follow up a claim to extended frontiers by
using force or the threat of force, the claimant would be breaking a specific and solemn obligation under
124 the Charter.
As Professor D' Amato pointed out, what apparently was in this speaker's mind was that "territorial integrity" meant that frontiers could not be extended, while "political independence" meant that a state's independence could not be abrogated, probably with
123 McCORMACK, supra note 19, at 161. 124 1 U.N.C.1.0. Doc., at 174.
85 H1t. 1er ' s conquests m. mm . d . 125 Thus, the terms prohibited the use of force intending the
change of the border, or exercising political influence to other states; however, it did not
intend the categorical prohibition of the use of force. The original intention of the
Australian government was expressed to all other members, and thus, by adopting the text,
the meaning of the Amendment cannot be different from that of proposing state. In
addition, even the Norwegian Delegate also expressed his personal view that it would be
better to omit the phrase "territorial integrity and political independence" since this was a
permanent obligation under international law and could be covered by the phrase
"sovereign equality."126 Indeed, the term at the time did not mean the categorical prohibition.
In this regard, the argument based on the broader interpretation of the phrase
"territorial integrity and political independence" has no legitimate grounds. When the
Charter was drafted, contemporary understanding of the term did not mean categorical prohibition of the use of force. Rather, the ordinary meaning of the phrase at the time may support a permissive interpretation.
C. The Limit of Permissive Interpretation
125 D 'AMATO, supra note 112, at 352. 126 Id.
86 In conclusion, the sponsoring powers deliberately drafted Article 2 ( 4) during the
Conference, and thus, the original intention of the drafters should be understood in the same way. The re-examination of the preparatory works on Article 2 (4) provides that the traditional assumption does not reflect the truth of the drafting history. Thus, Article 2 (4) of the Charter should be interpreted in a permissive way. However, it should be noted that, at the San Francisco Conference, many states wanted stronger prohibition of the use of force, and although they failed to adopt categorical prohibition of the use of force, their efforts imply that they wanted a fairly rigid standard. Thus, the permissive interpretation does not mean arbitrary use of force. . Rather, it shows that there are certain restrictions on the permissive interpretation.
First of all, as Article 2 ( 4) provides, a use of force must be consistent with the purposes of the UN Charter. Drafting history shows that the preparatory work of the
Charter sets one limitation on the ordinary meaning of the text of Article 2 (4): maintaining international peace and security of Article 1 (1 ), friendly relations based on equal rights and self-determination of Article 1 (2), solving international problems such as social and economic matters and human rights of Article 1 (3) or Article 55, etc. Thus, the use of force that infringes on these purposes becomes illegal by definition.
87 Secondly, purposes of the UN Charter set by Article 1 (1) imply one of the most fundamental principles regarding the use of force: force should be the last resort. Article 1
( 1) articulates that states should maintain international peace and security based on two specific measures: collective measures and peaceful means. However, Article 1 (1) keeps silent on the situation when those two measures have failed. Thus, it remains uncertain what the proper measure to maintain peace and security is when both measures fail.
Should states take no measure and let the situation go on until it calms down? Or should states make their best effort to maintain peace and security even if this means the unauthorized use of force? Indeed, this isthe fundamental question ofthejus ad helium under the Charter but is unanswered as of yet. However, a permissive interpretation of
Article 2 (4) answers the question: force can be used lawfully if those two measures, collective measures and peaceful means, are exhausted and impossible. (Of course, the use of force, in this case, should also be consistent with other purposes of the UN Charter.)
This implies, on the other hand, the use of force should be the last resort when the other measures are unable to work. Because the purpose set by Article 1 (1) requires two measures, the exceptional situation can be lawful only after the exhaustion of both
88 measures. Thus, permissive interpretation of Article 2 (4) is bound by the restriction,
"force should be the last resort."
The last restriction on the permissive interpretation can be found in the intention of sponsoring states, in particular, that of the U.S. The preparatory work shows that the original intention of the U.S. was not of an arbitrary standard. The permissive interpretation was preferred by the U.S. in preparing for an exceptional situation, when the
Security Council faces stalemate and fails to act. If the permissive interpretation prevails, the reason to adopt the interpretation should be entailed. Thus, the reason, the fear of deadlock of the Security Council, should play as a pre-condition of permissive interpretation. In other words, the use of force, although it is consistent with the purposes of the UN Charter, is not consistent with the intention of drafters unless it is used after the deadlock of the Security Council.
89 IV. The Drafting History of Article 51 of the UN Charter
1. Drafting Story of Article 51 at the Dumbarton Oaks Conference
The right of self-defense was discussed from the start of discussions at Dumbarton Oaks.
The U.S. Delegation, although they did not provide self-defense as an independent clause, regarded self-defense as a right of a state and intended that the right was implicitly included in the non-use of force principle provision. During the Dumbarton Oaks Conference, the
U.S.' idea was accepted by other member states and, thus, the final draft of the Conference did not have any clause that explicitly expresses the right of self-defense. In relation to its scope, self-defense that was discussed during the Dumbarton Oaks Conference included customary law anticipatory self-defense.
In early 1944, when the U.S. officials prepared its proposal for the Dumbarton Oaks conference, the use of force in self-defense was brought out during the discussion to locate non-use of force principles and the authority of the Executive Council. During the discussion, in order to make provisions regarding non-use of force principles, the U.S. officials noted that "one could not deny the states the right to use force to put down subversive acts within their own territories or in protecting their own territories from attack, and that the jurisdiction of the International Organization was limited to situations where
90 the use of force threatened the peace of nations."1 In their view, the right of self-defense
was limited to repel armed attacks made into a state's borderline and the situation should be
inspected by the Executive Council.2 On the other hand, although there was an attempt to
limit the right of self-defense by conditioning the approval of the Executive Council, the
idea was opposed. 3
However, the U.S. officials did not make self-defense as an independent clause in
their proposal. Thus, the U.S. proposal for the Dumbarton Oaks Conference does not have
any provision regarding self-defense. At first, Mr. Bowman, a U.S. State Department
official; suggested self-defense to be a part of the principles of the new International
1 The U.S. State Department, Informal Political Agenda Group International Organization Discussions (January 28, 1944), at 5, in Box 170, RG-59, GENERAL RECORDS OF DEPARTMENT OF STATES (RECORDS OF HARLEY A. NOTTER 1939-45): RECORDS RELATING TO THE DUMBARTON OAKS CONVERSATION 1944. 2 Mr. Pasvolsky commented that in a conflict between Bulgaria and Greece, Greece could not be held guilty if she met a Bulgarian attack with force. Greece would be accountable, he said, only if it pursued the Bulgarian forces into Bulgaria. If the Council ordered Bulgaria to withdraw its forces and Bulgaria refused and Greece pursued the Bulgarian forces, then the Council would have to step in with some form of force. If Bulgaria complied with the demand to withdraw its forces, then it would be necessary to invoke the machinery for the settlement of disputes. Mr. Gerig asked whether Mr. Pasvolsky would give the Council jurisdiction to order the dispersal of a heavy concentration of forces such as Bulgarian might assemble on its border. Mr. Pasvolsky said that the Council could, in his view, order such a concentration to be dispersed. It would be up to the Council in the first place to restore the statue quo. Mr. Bowman suggested that a state might claim the concentration of forces necessary as a part of maneuvers. Mr. Pasvolsky remarked that this situation could be handled in part at least through the right of inspection by the Council. Id. 3 Mr. Notter remarked that debated earlier and that "the right of self-defense against unwarranted aggression was assumed be a conservatory measure which would be approved by the council. The international organization in other words, would authorize a state to defend itself." Mr. Cohen said he was not ware that agreement had been reached on the language of the draft and he wondered whether the present language would be acceptable. He was not sure that it provided sufficient flexibility. If troops crossed the border of a state, would that state have to telegraph the head of the international organization to get authorization for defending itself" Mr. Pasvolsky said that Mr. Cohen had a real point. The U.S. State Department, Informal Political Group International Organization Discussions (March 3, 1944), at 1-2, in Box 170, supra note l.
91 Organization, "if an emergency came up and a state had to act in self-defense."4 However,
other officials favored a provision which has a broader non-use of force principle, which
paragraph 4 of Chapter II provides.5 As a result, the U.S. officials agreed to adapt a non-
use of force principle, 6 and a part of that decision was that the right of self-defense was
assumed to be implicit under existing international law and that the drafting committee had
believed that the right would not be removed except by specific language to that effect. 7
In other words, the U.S. delegation intended that self-defense can be implicitly included in
the principle of non-use of force.
· The U.S. view in its proposal was accepted in the Dumbarton Oaks Conference.
Once again, self-defense was discussed in relation to principle 4, non-use of force, and reminded that it was implicitly included in the principle. During the Conference, a
Chinese delegate once tried to enact a provision that included self-defense. He suggested that it might be better to say in this paragraph 4 that "states should refrain from the use of force except when authorized by the Council or in self-defense." However, he abstained
4 Id. 5 Id., at 2. 6 Id. 7 Id.
92 from his idea because it might be impractical. 8 In addition, the U.S. delegation opposed
the idea because if the term "self-defense" were adopted, there would still be need for
machinery to decide what self-defense was exactly. Thus, member states agreed that self-
defense is implicitly provided in Dumbarton Oaks proposal in its fourth principle.9
2. Drafting Story of Article 51 in the United Nations Conference on
International Organization
At the San Francisco Conference, unlike the Dumbarton Oaks Conference, self-defense was
discussed in relation to the regional organization of the UN Charter. However, self-
· defense was not a hotly debated issue of the Conference. This was because states already
perceived the right as their inherent right, and thus was easy to agree upon. Only a small
number of discussions can be found in the official documents in UNCIO, and most of them
were in relation to phrasing and locating the provision of self-defense. Thus,
unfortunately, the scope of self-defense cannot be found in the documents, and, because of
the lack of information, debates regarding anticipatory self-defense have continued until
8 The U.S. State Department, Informal Record ofthe Second Meeting ofthe Joint Formation Group (Oct 6, 1944), at 9, in Box 183, supra note 1. 9 The Dumbarton Oaks proposal, Article 3 of the Chapter II provides "All members of the Organization shall settle their disputes by peaceful means in such a manner that international peace and security are not endangered." Article 4 of the Chapter II provides "All members of the Organization shall refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the Organization." Available at http ://www.udhr.org/history/dumbarto .htm.
93 today.
A. Amendment Proposals for Article 51
Before the San Francisco Conference, several amendment proposals were presented in relation to self-defense. However, the proposals did not clearly indicate the right of self- defense. Rather, the proposals merely included the idea of self-defense as a part of state's right to take necessary measures until the Security Council takes effective measure, or if the
Security Council fails to take effective measures. Only the Turkish Proposals commented the need for an independent clause providing the right of self-defense. On the other hand, the Latin American states, although they did not provide specific provisions regarding collective self-defense, expressed their intention of collective self-defense through regional arrangement. The so-called Act of Chapultepec was agreed between the two Conferences in Dumbarton Oaks and San Francisco. 10
It is uncertain that other states were informed that self-defense was included in the third and fourth principle of the Dumbarton Oaks proposal. However, the other states probably did not know about the fact because the Amendment proposals that provided self-
10 Act of Chapultepec stand for the Inter-American Reciprocal Assistance and Solidarity (March 6, 1945). The name "Chapultepec" was derived from the name of old castle in the Mexico City where the meeting was held. Available at http://www.yale.edu/lawweb/avalon/intdip/interam/chapul.htm.
94 defense were suggested not in relation to the principles but in relation to Charter's
enforcement system, Chapter VIII of Dumbarton Oaks proposal. 11 In particular, states
such as Australia, 12 Belgium 13 Czechoslovakia, 14 France, 15 and Turkey16 provided
Amendment proposals to allow a measure of regional autonomy until the Security Council
takes measure.
11 It would be worthy to examine Chapter VIII of the Dumbarton Oaks proposal before discussing the Amendment proposal regarding self-defense because the Amendment proposals could be found in the Chapter VIII of the Dumbarton Oaks proposal. Chapter VIII dealt with arrangements for the maintenance of international peace and security, including prevention and suppression of aggression. The Section A provides pacific settlement of disputes; the Section B provides the determination of threats to the peace or acts of aggression and action with respect thereto; and the Section C provides regional arrangements. Later, these sections became Chapter VI, VII, VIII of the UN Charter. 12 The Amendment provided that "if the Security Council does not itself take measures, and does not authorize action to be taken under a regional arrangement or agency. For main~aining or restoring international peace, nothing in this Charter shall be deemed to abrogate the right of the parties to any arrangements which is consistent with this Charter to adopt such measures as they deem just and necessary form maintaining or restoring international peace and security accordance with that arrangement." Doc. 2; G/14(1), 3 UNCIO, at 552. 13 The Amendment provided that " ... in the case where immediate action might be necessary the application of coercive measures provided for by special agreements should not be held in abeyance pending the Security Council's authorization; it would, of course, behave the Security Council to retain control at all times, of the action undertaken, and it would have the right to suspend execution of such action." Doc. 2; G/7(k), 3 UNCIO, at 334. 14 The Amendment provided that " ... such authorization should be given in advance and as a general rule for cases of immediate danger where the suspension of any coercive action until the intervention of the Security Council may cause irremediable delays. The measures taken in these cases could be submitted subsequently for approval to the Council." Doc. 2; G/14(b) 3 UNCIO, at 470. 15 The Amendment provided that "it is incompatible with the conditions of Security of some States, which demand immediate action, to defer, until such time as the Council had reached a decision, emergency measures for which provision is made, in the case of contingencies, by treaties of assistance concluded between Members of the Organization and filed with the Security Council, which a view to maintaining the rights of the Council, the Signatory States of such treaties should report to it, with the least possible delay, such measures as they may have been led to take in he execution of the stipulations of these treaties." 15 Doc. 2; G/7(0), 3 U.N.C.LO., at 387. 16 The Amendment provided that" ... the acceptance of regional arrangements providing for automatic action as constituent elements of collective security, on condition that they should be conceived for the exclusive purpose of defense and that the signatory states which might have to avail themselves there of, should be required to report within the shortest possible time, to the Council on the emergency measures which they might have been compelled to take in carrying out these arrangements, as well as on the justification of the urgency of the action." Doc. 2; G/14(c), 3 UNCIO, at 483.
95 These proposals, although they do not have specific phrases mentioning the right of
self-defense, intended states' right to defend themselves in case of the emergencies when
states cannot wait for measures by the Security Council or if the Security Council failed to
take measures. For example, it has been speculated that the Australian Delegation was
concerned that a veto should prevent the Security Council from taking action to deal with
the dispute. 17 Thus the Australian Amendment intended that the Charter was to allow for new regional security arrangements to be formed with the freedom to act without the restriction or prior authorization of the Security Council. 18 In addition, several European states were concerned with the possibility of a resurgence of aggression by the Axis Powers of World War II and thus did not want to be limited by the condition of prior authorization from the Security Council in case of emergency. 19
On the other hand, only the Turkish Amendments Proposal recommended the need for and independent provision regarding self-defense. It stated that:
The Proposals do not contain any provision on the subject of legitimate defense, Although this right is of an obvious nature, it would be useful to insert in the Charter a provision justifying legitimate defense
17 H. v. EVATT, THE UNITED NATIONS 27 (1948), re-quoted from TIMOTHY MCCORMACK, SELF-DEFENSE IN lNTERNATIONALLAW 170 (1996). 18 RUTHB. RUSSELL, THEHISTORYOFTHEUN!TEDNATIONS CHARTER 688 (1958). 19 Id.
96 agamst. a surpnse. attac kby anoth er state. 20
The Turkish Amendments Proposal explicitly indicated the need for an independent
clause regarding the right of self-defense, but it also recognized that "the right is an obvious
nature." The obvious nature of self-defense was probably the main reason that other states
did not provide Amendment Proposals regarding an independent self-defense clause.
Lastly, it should be noted that many American states were in favor of collective self-
defense based on regional arrangements. The Act of Chapultepec was agreed upon by
American states. The Act of Chapultepec was an agreement on regional security adopted
by the inter-American Organization of States. In particular; Aliicle I and II of this treaty
contains provisions regarding collective self-defense where an act of aggression to one
member state would be considered as that to all member states. 21 Based on the idea of
20 Doc. 2; G/14(c), 3 UNCIO, at 483. 21 Article I (3) provides that " ... every attack of a State against the integrity or the inviolability of the territory, or against the sovereignty or political independence of an American State, shall, conformably to Part III hereof, be considered as an act of aggression against the other States which sign this Act. In any case invasion by armed forces of one State into the territory of another trespassing boundaries established by treaty and demarcated in accordance therewith shall constitute an act of aggression." In addition, Article II provides the duty of member states to fight against aggression by articulating that "That for the purpose of meeting threats or acts of aggression against any American Republic following the establishment of peace, the Governments of the American Republics consider the conclusion, in accordance with their constitutional processes, of a treaty establishing procedures whereby such threats or acts may be met by the use, by all or some of the signatories of said treaty, of any one or more of the following measures: recall of chiefs of diplomatic missions; breaking of diplomatic relations; breaking of consular relations; breaking of postal, telegraphic, telephonic, radio-telephonic relations; interruption of economic, commercial and financial relations; use of armed force to prevent or repel aggression." In addition, the member states, in Article III, clarified that the declaration is consistent with the purposes and principles of the general international organization, when established. See website, supra note 10.
97 regional collective measures, some Latin American states jointly submitted draft proposals
regar dmg. reg10na . 1 arrangements. 22 The regional arrangements, thus, included the measure
of collective self-defense.
B. Drafting Story of Article 51
It should be noted that most states, at the time of the San Francisco Conference, admitted
self-defense as a right of sovereign states. Thus, the consensus regarding the right of self-
defense was very common at the time, and to make an independent provision expressing
the right did not lead to huge discussion during the Conference. Only a small part of the
discussion can be found in the official UNCIO documents and the discussions were related
to the wording and location of self-defense. Thus, Commission III, after reaching a
general agreement on the wording of self-defense, decided the final wording and that it was
to be decided in the Coordination Committee, and the Committee, upon the request,
decided the final wording and located it at the end of Chapter VIL
True, the Amendment Proposals intending the implementation of self-defense
included every element that self-defense of Article 51 provides. For example, the Australian emphasized the inherence of the right by phrasing "nothing in this Charter shall be deemed
22 Doc. 2; G/28, 3 UNCIO, at 620.
98 to abrogate the right";23 the Australian and French Amendment Proposal included individual and collective self-defense;24 the French and Turkish Amendment Proposal provided a condition to exercise the right of self-defense, until the Security Council takes measures;25 the Belgium Amendment Proposal provided that the measures taken in cases of self-defense should be submitted subsequently for approval to the Council. 26 These common ideas among states were, on the other hand, a proof that states perceived self- defense as their fundamental right, and that they wanted to confirm the right if an emergency is coming and the new international organization would not properly work for their own, security.
Thus, during the San Francisco Conference, self-defense was not a hotly debated issue. Self-defense was dealt with in Committee 4 of Commission III. This was because the Amendments Proposal pertaining to the right of self-defense was presented in relation to the regional arrangement of Charter's enforcement system, Chapter VIII of the
Dumbarton Oaks Proposal. 27 Although the specific language ofArticle 51 was made by
23 See supra note 12. 24 See supra note 12, 15. 25 See supra note 15, 16. 26 See supra note 13. 27 It was U.S. idea that self-defense would be discussed in the Committee 4 of Commission III. During the meeting of the U.S. Delegation following discussion was found. "Senator Vandenberg inquired as to which of the Conference committees had jurisdiction. Mr. Pasvolsky thought that perhaps a joint subcommittee should
99 sponsoring powers and introduced to the Committee after the powers reached an agreement,
Committee 4 of the Commission III welcomed the language of Article 51, and, on May 29,
1945, unanimously, approved the text that provides:
"Nothing in this Charter impairs the inherent right of indiv.idual or collective self-defense if an
armed attack occurs against a member state, until the Security Council has taken the measure
necessary to maintain international peace and security. Measures taken in the exercise of this
right of self-defense shall be immediately reported to the Security Council and shall not in any
way affect the authority and responsibility of the Security Council under this Charter to take at
any time such action as it may seem necessary in order to maintain or restore international peace
. ,,28 and secunty.
As noted by the Delegate of Czechoslovakia, the approved text effectively reconciled the rights of individual and collective self-defense with the maintenance of a central
authority capable of dealing with Security problems as they arose, and was welcomed by all
study the proposal in the first instance and that ultimately the Coordination Committee would decide as to location. Senator Vandenberg recalled that Subcommittee III/4/A had been requested to consolidate or amalgamate the various amendments offered to Section C of Chapter VIII and that the draft, in his opinion, could be submitted direct to the Subcommittee." The U.S. State Department, United Nations Conference on International Organization: Meeting of the United States Delegation (May 11, 1945), at 8, in Box 192, RG-59, GENERAL RECORDS OF DEPARTMENT OF STATES (RECORDS OF HARLEY A. NOTTER 1939-45): US DELEGATION TO THE UN CONFERENCE ON INTERNATIONAL ORGANIZATION 1944 & 1945. 28 Doc. 576 III/4/9 (May 25, 1945), Commission III in 12 UNCIO, at 680.
100 member states. 29 In particular, the Delegate from Australia expressed strong support for the text based on two reasons: first, the text made clear the overall jurisdiction of the
Security Council, and second, the phrase "individual or collective security" was sufficiently broad to cover the right of the parties, in certain circumstances, to adopt necessary measures to maintain international peace and security in accordance with any arrangements consistent with the Charter. 30
It should be noted that many Latin American states expressed that the Act of
Chapultepec was included in the language of self-defense. For example, the Chairman of
Committee 4, speaking as the delegate of Columbia, {with whom the delegates of Mexico,·
Costa Rica, Paraguay, Venezuela, Chile, Ecuador, Bolivia, Panama, Uruguay, Peru,
Guatemala, El Salvador, Brazil, Honduras, and Cuba associated themselves) made the following statement:
"the Latin American countries understood ... that the origin of the terin 'collective self-defense' is
identified with the necessity of preserving regional system like the Inter-American one. The Charter
in general terms is a constitution, and it legitimatizes the right of collective self-defense to be carried
out in accord with the regional pacts so long as they are not apposed to the purposes and principles
29 Id., at 681-2. 30 Id., at 682.
101 of the Organization as expressed in the Charter ... The Act of Chapultepec provides for the collective
defense of the hemisphere and establishes that if an American nation is attacked all the rest consider
themselves attacked... Such action would be in accord with the Charter, by the approval of the
article and a regional arrangement may take action, provided it does not have improper purposes as,
for example, joint aggression against another state. From this, it may be deduced that the approval
of this article implies that the act ofChapultepec is not in contravention of the Charter."31
In addition, some Arab states were also in favor of this regional based measure. For
example, the Delegate of Egypt observed that "the principle involved in the new text should
certainly extend to the League of Arab states."32 These statements emphasized the
collective self-defense measure based on regional arrangements.
On the other hand, although the language of the text was agreed upon unanimously,
the location of the self-defense provision caused some debates, but both parties agreed to
bring the issue to the Coordination Committee. Two contending views were presented in
· relation to the location of the new paragraph providing self-defense. The first view was to
placing the paragraph at the end of Section B, Chapter VIII of the Dumbarton Oaks
Proposal, enforcement system. The Soviet Union argued in favor of this view because the
31 Id., at 680-1. 32 Id., at 682.
102 exclusion of this paragraph from Section B would be illogical and even artificial. From
the Soviet Union's point of view, the paragraph regarding self-defense deals with the right
of member states, but the right should not affect the power and duty of the Security Council.
Thus, since Section B deals with the powers and duties of the Security Council regarding
peace and security, it would be logical and understandable that the adopted paragraph
should appropriately be placed as the last paragraph of Section B, paragraph 12, of Chapter
VIII. 33 The second view is to make a new Section D in Chapter VIII of the Dumbarton
Oaks Proposal. The idea was originally in the Australian Amendment Proposal, and a majority of states in the Committee favored the idea. The main reason to establish a new section, however, was not a substantial matter, but was just a jurisdictional matter because
Section B of Chapter VIII was not within the competence of Committee 4 of Commission
33 " ••. paragraph 12 deals with the right of a member of the Organization to self-defense in case of an act of aggression, until the Security Council takes measures for the maintenance of international peace. It is also stated in this paragraph that these measures of self-defense do not in any way affect the power and duty of the Security Council to take at any time such measures as it may deem necessary for the maintenance or restoration of international peace. 33 It follows then, that this paragraph deals with the commencement of military operations and, accordingly, with the powers and duties of the Security Council. Section B, furthermore, deals with the powers and duties of the Security Council from the time of the determination by it of the threat to the peace up to the time it takes measures against the aggressor. It may be argued that the beginning of paragraph 12 deals with the right ofa member of the Organization to self-defense. However, it must be kept in mind that the paragraph at the same time deals with the duties of members of the Organization. One of these duties is to inform the Security Council immediately concerning the measures of self-defense taken by the member, and of his compliance with the obligations under the Charter. Paragraph 5, 6, 7, and 10 of Section B also deal with the same duties of members of the Organization. It seems only logical and fully understandable that the rights and duties of members of the Organization are set forth in the very Section B which deals with threats to the peace. For the reasons above stated I, therefore consider that the adopted paragraph should appropriately be placed as paragraph 12 of Section B of Chapter VIII." Id., at 683.
103 III. Thus, placing self-defense within Section B might bring about renewed discussion of the subject matter in another Committee, Committee 3 of Commission III. 34 Since the debate was not a fundamental question, both contending parties, without trouble, reached an agreement to transmit the issue to the Coordination Committee for its consideration. 35
The decision of Committee 4 reported to Commission III, and the Commission approved the report without objection.36 Thus, the final location was decided by the Coordinate
Committee.
The Committee, upon recommendation of Commission III, decided to place the paragraph ·at the end of Section B of the Dumbarton Oaks Proposal. Three contending views were suggested. The first was to place the article at the end of Section B, enforcement measures by the Security Council. In fact, before the Coordination
Committee decided the location of the paragraph, it had been discussed in the Committee of
Jurists, which had suggested placing it at the end of section B. 37 The main reason for this
34 Committee 3 of Commission III dealt with enforcement arrangements. See table II-1 in Chapter II. 35 That the question of the place where the new paragraph should be inserted in the Dumbarton oaks proposal should be referred to the Coordination Committee for final decision with the recommendation, however, Committee 4, by majority vote, recommended that it might constitute a new section D to Chapter VIII. Doc. 576 III/4/9, supra note 28, at 682-3. 36 Doc. 972 III/6 (June 14, 1945), 11 UNCIO, at 51. 37 The Committee of Jurists had thought that "the Article should not be placed after the Chapter VIII (regional arrangements), as a separate section as Committee III/4 had proposed, because it might have the effect there of limiting the right of self-defense only to regional arrangements, thus depriving a state which was not a party to such arrangements of that right. Such a conclusion was clearly not to be permitted. The other reason for placing the article in Chapter VII was its connection with and dependence upon the powers
104 view was that the article amounts to an exception to the enforcement arrangements decided
upon by the Security Council. 38 The second was that the article should form a separate
section.39 This view held that the article belonged with Section C, Regional Arrangements,
where it was a particular exception to the action of the Council in connection with the
system regional arrangements. The third was to locate the article in the principles of the
Chapter, if not as a separate chapter between Section B and Section C. This view said that
the only reason for this Article was that it was an exception to the general rule provided in
Section B, and thus it should go at the end of that Section as the only place where it could
be correctly understood.40
During the discussion, however, members agreed to the first view. The majority of
members insisted that it was a general exception to the Council machinery and belonged
where the powers of the Security Council were stated, in Chapter VII, and the members who supported the other views changed their minds. For example, some supporters for the
second view changed their position and said that "the desire to emphasize a general right of given to the Security Council in that Chapter. It might seem that the article deals with the obvious, but when the Security Council is given power to act in such and such a way then the provisions of this article can be understood." WD 435 C0/199 (September 4, 1945), 17 UNCIO, at 286-7. 38 However, it should be noted that some supports this view, though they believed the article was calculated only to reassure parties to regional arrangements, when they gave responsibility to the Security Council, that they could still rely on self-defense. Id., at 287. 39 Id. 40 Id.
105 individual or collective self-defense would be better realized at the end of the enforcement system of the Security Council rather than with regional arrangements."41 In addition, the third view was also withdrawn when other members called attention to the necessity of rewording the entire paragraph if this were done, and agreed to placing the Article at the end of Section B. 42 Thus, the Coordination committee decided the paragraph stating self- defense to be located between the enforcement system of the Security Council and regional arrangements. 43
In sum, self-defense was recognized by member states as a right of states, and thus, although it was not provided in the Dumbarton Oaks Proposals, states requested to enact it when they suggested the Amendment Proposals. Based on the consensus, self-defense was expressly provided in the Charter without opposition. On the other hand, although states had differing views regarding the location of self-defense, they decided to locate it at the end of the enforcement system of the Security Council because the text regarding self-
41 Id., at 288. 42 Id. 43 In addition, the Committee accepted the following changes in the proposed text: "shall impair" for "impair"; "member of the Organization" for "member state"; and the insertion of"by members" after "measures taken." Thus, the paragraph was changed to "Nothing in this Charter shall impair ("impairs" deleted) the inherent right of individual or collective self-defense if an armed attack occurs against a member state of the Organization (later "the United Nations") until the Security Council has taken the measures necessary to maintaining or restore international peace and security. Measures taken by members in the exercise of this right of self-defense shall be immediately reported to the Security Council. .. " The change was because it possibly improved the drafting of the paragraph. Id., at 286, 288.
106 defense was made in relation to the enforcement arrangements made by the Security
Council. Unfortunately, however, the scope of self-defense was not issued during the
Conference. Thus, it is still uncertain whether anticipatory self-defense was included in
the text "armed attack."
3. The Intention of Major Sponsoring States
A. The U.S. Drafting Process Regarding the Right of Self-Defense
The U.S. played the most important role in drafting Article 51 and intentionally prepared
the text providing the right of self-defense. The right of self-defense, under the U.S.
proposal, changed the following order: implicit admission in Article 2(4) in the Dumbarton
Oaks Proposal; text including anticipatory self-defense focusing on regional arrangements;
text conditioning "armed attack occurs" without focusing on regional arrangements. The
changes were caused by the requests of Latin American states and through compromises in
the negotiation with other sponsoring powers. The last U.S. proposal was presented on
May 20, and adopted by Committee 4 of Commission III later on May 29, 1945.
Between the Dumbarton Oaks Conference and the San Francisco Conference, the US
Delegation considered that, although self-defense was implicit in the .document, it could be spelled out in the draft of the Charter. Yet, the problem was that no suitable language had
107 yet been found. During the meeting of U.S. Delegation before the San Francisco
Conference, Senator Vandenberg, a U.S. Delegate, asserted that the right of self-defense would need to be identified.44 Mr. Pasvolsky answered that the right of self-defense existed but that there was an obligation to notify the Council, and if the Council failed to act immediately then a country was free to act. He furthered that self-defense was implicit in the document but inquired how it could be spelled out and no suitable language had yet been found. 45 Others expressed a concern whether the Charter should go so far as to acknowledge the right of each state to "judge its own measures."46 Thus, the U.S. delegation did not decide whether to make self-defense an independent provision of the
Charter until the start of the San Francisco Conference. 47
As noted, several states provided Amendments Proposals providing the right of self- defense. Thus, the issue was discussed during the meeting of the U.S. delegations, and the
44 The U.S. State Department, United Nations Conference on International Organization: Meeting ofthe United States Delegation (April 10, 1945), at 4, in Box 192, supra note 27. 45 Id. 46 The U.S. State Department, United Nations Conference on International Organization: Meeting of the United States Delegation (April 26, 1945), at 15, in Box 193, supra note 27. In addition, another objection would be that the Russians might then claim that they were acting under the provisions of the Charter permitting action in self-defense, and that it had been considered wisest to leave the matter implicit. The U.S. State Department, United Nations Conference on International Organization: Meeting of the United States Delegation (May 4, 1945), at 7, in Box 193, supra note 27. 47 In the meeting of the American delegation to the United Nations Conference on International Organization on April 18, it was decided unanimously that " ... We also have postponed consideration of the possibility of having provision in the Charter defining the right of self-defense." The U.S. State Department, Memorandum for the President (April 19, 1945), at 9, in Box 191, supra note 27.
108 Delegates from Congress, in particular, wanted to express the right of self-defense in the
Charter, and asked advisers of the State Department to prepare a draft for the right of self-
defense. The reason they initiated making self-defense as an independent provision was
because without a provision expressing the right of self-defense, the U.S. Senate would
oppose the U.N. Charter. 48 Other Delegates also expressed their support for this view. 49
Thus, the requested was accepted. 50
The U.S. Delegation put in much time and effort to draft self-defense in relation to the authority of the Security Council and the role ofregional organizations as a collective measure. The U.S. delegation took the view that there was no question as to the right of a nation to act in self-defense. Thus, the question at issue was whether the right of self- defense includes action on a regional basis. In particular, the Act of Chapultepec held great importance for them. The U.S. delegation intended to extend the right of self- defense to act under the Act, and tried to phrase the proposition that an attack on any
48 Senator Vandenberg concerned that the Foreign Relations Committee of the Senate had never been willing to yield until a reservation on the subject of self-defense was made. Senator Conally also expressed that he would appreciate it ifhe could have a statement regarding self-defense when the Charter comes before the Senate. Representative Bloom also expressed his interest having a statement on the right of self-defense because the House of Representatives would want such a statement. The U.S. State Department, supra note 46, at 14-5. 49 Mr. Sandifer agreed with the importance of a statement on this point, especially since there was nothing in the proposals, and Mr. Stassen thought that it would be useful to have an authoritative explanation that could be used when necessary. Id. 50 Id., at 16.
109 American state is an attack on all the American states.51 Thus, the U.S. did welcome the
Amendment Proposals from other states which had the same intention. For example, the
French Amendments had proposed that preventive measures under mutual assistance treaties, signed by members of the international organization and duly reported to the
S ecunty. c ounc1·1 , b e automatic. . 52 Under the proposal, signatory states would report to the
Security Council as soon as possible on the measures taken. 53 The U.S. understood this proposal having the same intention with the Act of Chapultepec. The provisions with respect to regional arrangements are sufficiently flexible to permit general prior authorization of regional enforcement action in some .cases. 54 Based on this background; the first U.S. Amendment proposal on self-defense was introduced on May 10, 1945.
Date Text
May 10, 1. Nothing in this Charter shall be construed as abrogating the inherent right of self-defense U.S.A. against a violator of this Charter. 2. In the application of this provision the principles of the Act of Chapultepec and of the Momoe Doctrine are specifically recognized. It is of course also clear that all regions are fully entitled to use all peaceful means of settling disputes without the permission of the Security
51 The US. State Department, supra note 46, at 6. 52 The U.S. State Department, supra note 15. 53 Id. 54 For example, the Security Council may find that such instruments as "the Act ofChapultepec" and some of the "security pacts" are consistent with the Charter of the general organization and justify for regional enforcement action in these instances. The U.S. State Department, Principal Proposals by Other Governments and Arguments against Them (April 23, 1945), at 2-3, in Box 191, supra note 27.
110 Council. May 11, In the event of an attack by any state against any member state, such member states possess U.S.A. the inherent right to take measures of self-defense. The inherent right to take measures of self defense against armed attack shall apply to arrangements, like those embodies in the Act of Chapultepec, under which all members of a group of states agree to consider an attack against any one if them as an attack against all of them. The taking of such measures shall be reported immediately to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under this Charter to take at any time such action as it may deem necessary in order to maintain or restore international peace and security May 11 Should the Council not succeed in reaching a decision the members of the organization France reserve to themselves the right to act as they may consider necessary in the interest of peace, right and justice May 12, If the Security Council fails to prevent aggression by any state against any member state U.S.A. against any member state, such member state possess the inherent right to take measures of self-defense. The right to take measures of self-defense against armed attack shall apply to arrangements, like those embodied in the Act of Chapultepec, under which all member of a group of states agree to consider an attack against any one of thein as an attack against all of them. The taking ... May 12 Nothing in this Charter invalidate the right of self-defense against armed attack, either U.K. individual or collective, in the event of the Security Council failing to take the necessary steps to maintain or restore international peace and security. Measures taken in the exercise of this right shall be immediately reported to the Security Council and shall not in any way affect the responsibility of the Security Council under this Charter to take any time such action as it may deem necessary in order to maintain or rescore international peace and security May 14, Nothing in this Charter impairs the inherent right of self-defense, either individually or U.S.A. collective, in the event that the Security Council has failed to maintain international peace and security and an armed attack against a member state has occurred. Measures taken in the exercise of this right shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under this Charter to take at any time such action as it may deem necessary in order to maintain or restore international peace and security May 20, Nothing in this Chapter impairs the inherent rights of self-defense, either individual or Russia collective, if prior to undertaking the measures for the maintenance of international peace and
111 security by the Security Council an armed attack against a member state occurs ... May 20, Nothing in this Charter impairs the inherent right of self-defense, either individual or U.S.A. collective, if an armed attack occurs against a member state, until the Security Council had taken adequate measures to maintain international peace and security. Measures ...
55
Major Amendment Proposals by sponsoring powers regarding self-defense
The first draft expressed original U.S. idea: the right of self-defense is inherent right of states and thus is broadly enough to include the right of anticipatory self-defense and collective action based on regional arrangements.56 The U.S. regarded that, by referring to the Act of Chapultepec, it would be helpful for the U.S. in securing the support of the Latin
American bloc and to the world at large to have an example of the kind of regional undertaking which was considered desirable. 57
The next draft was prepared on May 11, 1945. This draft, which was written more specifically, had three major differences as compared to the former draft. First, the draft
55 See the U.S. State Department, United Nations Conference on International Organization: Meeting of the United States Delegation (May 11, 1945), at Appendix; (May 12, 1945), at 12; (May 14, 1945), at 2; (May 20, 1945), at 6, in Box 192, supra note 27; RUSSELL, supra note 18, at 699. 56 Id. Mr. Stassen explained that the international Organization would have responsibility for the use of force unless this responsibility was delegated. If the principles of the Act of Chapultepec or of the Momoe doctrine were violated, the proposal of the right of self-defense would be applicable. However, it should be noted that the mention of the Act ofChapultepec in the draft for self-defense was controversial within the U.S. Delegation. For example, Mr. Notter spoke against the mention of the Act ofChapultepec and said that under the Act several states, not including the United States, could taken action against another American states and the United States would have to deal with the consequences of such a situation in the Security Council. He recalled that the concept of an indivisible peace and dominated the thinking of Mr. Roosevelt, Mr. Hull, President Truman, and Secretary Stettinius. This concept is that an attack against one in any part of world is an act against all. This is the concept of world security, not regional security. Id (May 11, 1945), at 4. 57 Id. (May 11, 1945), at 4.
112 added the term "attack" and "armed attack." The distinction between the two terms was
made deliberately in order to cover the Monroe doctrine which had two parts-the case of
an overt attack and that of political efforts from outside the continent to overthrow the
political institutions of the American republics. 58 The word "attack" could be used to
cover both contingencies but the ''armed attack" has specific reference to collective action
under the Act of Chapultepec. Thus, it was understood that the first was broad enough to
cover a propaganda attack. 59 Second, the draft deleted the term "Monroe Doctrine." The
·U.S. delegation discussed whether it might not be desirable to mention the Monroe
Doctrine, but they concluded that such a reference was outdated and believed that the Act
of Chapultepec could replace the modem Monroe Doctrine.60 Third, the draft specified
the authority of the Security Council in case of the use of force to exercise self-defense.
This was to make the draft broader and presumably covered regionalism in other parts of
58 The U.S. State Department, supra note 57 (May 11, 1945), at 4-5. 59 Id. 60 Mr. Sandifer expressed the opinion that it was not desirable to include the Act since it was a transient instrument. To this Mr. Hackworth said that the Act has two parts, one of which relates to the war period and ends with it and the other to the postwar in which the implementation of the Act is contemplated through the negotiation of a treaty. Senator Connally thought there was merit in the mention of the Act because it might constitute a warning to other states to keep out of this hemisphere and in so far as it might give body and content to the vague concept of self-defense. In addition, Mr. Gerig called attention to the fact that mention of the Monroe Doctrine in Article XXII in the League Covenant had always proved rather embarrassing at Geneva; that it was very difficult to explain to non-American states precisely what was meant by the Monroe Doctrine. The Chair at this point canvassed the opinion of the meeting and it was agreed that the new draft should be discussed with the other sponsoring governments. Id., at 6.
113 the world. The Delegation regarded that even in emergency situations and that the
Security Council had the power to stop the fighting at any stage. 61 However, it should be
noted that the draft distinguished regional arrangements because the second sentence of the
draft focused on the application of the regional arrangement rather than declaring an
"inherent" right of self-defense itself. The draft was regarded as a satisfactory
compromise between the world organization and regional organizations since it (1) placed
no restrictions on pacific settlement by regional means, (2) recognizes the paramount
authority of the world organization in enforcement by (3) permitted freedom of action for
all in the event of failure by the general organization and of an attack. 62 On the other hand, the U.S. Delegation decided that the issue should be discussed in Commission III,
Committee 4, and that the Coordination Committee would finally decide the location of the paragraph in the Charter. 63
The next day, after discussing the matter among the U.S. Delegation and consulting with other sponsoring powers, there were two major changes in the draft in relation to its
61 Id., at 7. 62 Id., at 5-6. 63 Senator Vandenberg inquired as to which of the Conference committees had jurisdiction. Mr. Pasvolsky thought that perhaps a joint subcommittee should study the proposal in the first instance and that ultimately the Coordination Committee would decide as to location. Senator Vandenberg recalled that Subcommittee III/4/A had been requested to consolidate or amalgamate the various amendments offered to Section C of Chapter VIII and that the draft, in his opinion, could be submitted direct to the Subcommittee. Id., at 8.
114 wording: attack and the failure of the Security Council. First, the U.S. Delegation decided
that it would be better to use the term "aggression" instead of "attack." As noted, second
draft of May 11 used both terms "attack" in the first sentence and "armed attack" in the
second sentence. However, that was criticized by some members of the Delegation
because distinction between "attack" and "armed attack" gave rise to certain doubts. 64 In
particular, Senator Vandenberg criticized that it would be very difficult to explain in the
Committee and in the Senate the distinction between the two concepts of "attack" and
"armed attack."65 As noted, the term "attack" was regarded as broader than "armed
attack" By the U.S. Delegation. However, using the terms liattack" and "armed attack"
within the same paragraph caused confusion. Thus, to avert the confusion, the U.S.
Delegation decided to use the term "aggression" instead of the term "attack" in the first
sentence.66 Second, the U.S. Delegation regarded that the French idea limiting the right of
self-defense only after "the Council fails to agree" was a good idea to promote negotiation
with other big powers because the U.K. preferred French text. In fact, the U.S. draft of
64 Id., at 7. 65 Id. 66 Mr. Hackworth thought it might be better to speak of "armed attack" in both cases and the Chairman thought it might be useful to use the word "aggression" instead of"attack." Id., at 10.
115 May 11 was faced with negative response from the Delegation of the U.K. 67 Since the
draft put too much importance on the regionalism, including the Act of Chapultepec, other
sponsoring states opposed the text. However, the U.S. Delegation still preferred to include
regional arrangements in the text, and decided to maintain its original position. Instead,
the Delegation decided to use the expression in the French proposal, "if the Security
Council fails." They believed that the employment of the French language would be
helpful because other sponsoring powers preferred the phrase. 68 Thus, the formula in the
text on May 12 was that if the Security Council fails to maintain peace and security then a
state's inherent right of self-defense comes into a play.
The next text on May 14 had almost the same terms that the current Article 51 of the
UN Charter provides. The new text, although it was still conditioning the "failure of the
Security Council" to exercise the right of self-defense, the term "aggression" disappeared.
Rather, the text, instead of mentioning attack or aggression, simply declared the inherent right of self-defense if the Security Council fails and an armed attack occurs. In fact, the
67 The U.K. opposed the U.S. idea because it was to them a new thought that self-defense can operate outside of a nation's territorial limits through regional arrangements. See supra note 55 (May 12, 1945), at 4. 68 For example, Senator Vandenberg stated that it would help him greatly in the Committee, if the statement should start out with French language. Representative Eaton said that he was in agreement. Commander Stassen said that the suggestion was a very good one and that it would be desirable to start with the French language. Id., at 9.
116 draft was also a response to the U.K. proposal which provided in the meeting of sponsoring
powers on May 12. 69 The U .K. at the time proposed an Amendment proposal that deleted
the term "aggression" and only used the term "armed attack" and omitted specific reference
to the Act ofChapultepec.70 These ideas were acceptable to the U.S. as a basis for
negotiation.71 In addition, the U.S. position regarding regionalism had changed, and as a
result, the U.S. discarded the plan to express the Act ofChapultepec in the draft for self-
defense. The U.S. took the reaction of Latin American states seriously during the
discussion and this was main reason to include the Act in the text. However, faced strong opposition by other sponsoring powers, the U.S. Delegation finally agreed to reject the insertion of the words "the Act of Chapultepec. "72 The changes initiated by former
Secretary of State and a delegate, Mr. Hull, who expressed that the American position was veering from a strong international organization would impair the strength of the international organization. 73 He stated that we are being lead away from our own national
69 See supra table VI-1 70 Id. 71 Id. 72 Senator Vandenberg stated that "the truth of the matter was that the South Americans would not go home without mention of the Act of Chapultepec. Since we could not specifically mention the Act of Chapultepec in the Charter without becoming involved in the enumeration of other regional groups, including the Pan Arab league, and since this was impossible, the only answer was to go head with a promise to implement the Act of Chapultepec." See The U.S. State Department, supra note 55 (May 14, 1945), at 3, 5. 73 Id., (May 12, 1945), at 4-5.
117 interest and the intent of the Dumbarton Oaks proposals.74 Other members of the
Delegation also pointed out that the Act of Chapultepec in fact is not much more than an arrangement. 75 The only matter was how to persuade Latin American states. 76 Thus, the
U.S. promised Latin American states that it was the intention of the U.S. to negotiate with them "in order to put the Act of Chapultepec on a permanent basis, in harmony with the world charter."77
The last U.S. proposal was made on May 20, and this was also in order to respond to the proposal suggested by the Soviet Union. 78 The Soviet Union's wording was a response to the U.S. previous proposal of May 14; but the Soviet Delegation deleted the phrase "in the event of the Security Council does not maintain international peace and security." As noted, by the phrase, the right to invoke self-defense became conditional
74 Id. 75 Id., at 3. 76 Senator Connally said that the big question was "would the Latin Americans accept this solution?" Senator Vandenberg pointed out that the new language of VIII, B, 12 clearly removes the veto. Mr. Hackworth commented that he thought they would be if the U.S. makes it clear that they feel this language clearly covers the matter. Mr. Stettinius said that he felt they ought to take it. Mr. Armstrong asked "why it was necessary to tell the Latin Americans that we intend to make a reservation on this matter?" and Commander Stassen replied that "we can certainly tell them that in our opinion this covers the Act of Chapultepec." See The U.S. State Department, supra note 55 (May 14, 1945), at 3. 77 On May 15, 1945, the Secretary of State of the U.S., Edward R. Stettinius, Jr., informed the intention to the Latin American delegation at San Francisco Conference and addressed it again through radio address on may 28, 1945. RUSSELL, supra note 18, at 509. 78 The Soviet Union proposed new draft of Chapter VIII, Section B, New Paragraph 12, provided that "Nothing in this Chapter impairs the inherent rights of self-defense, either individual or collective, if prior to undertaking the measures for the maintenance of international peace and security by the Security Council an armed attack against a member state occurs ... " The U.S. State Department, supra note 55 (May 20, 1945), at 2.
118 based on the failure of the Security Council. The Soviet proposal, however, intended the
right of self-defense to be exercised automatically before the Security Council makes a
decision. The U.S. Delegation regarded the proposal as demonstrating that there was no
fundamental difference remaining on policies and objectives.79 However, regarding the question of putting a policy into words, the U.S. Delegation preferred the phrase "until such time as the Security Council has taken adequate measures."80 The U.S. Delegation reached a general agreement on the proposal of May 20. 81 The new text received the approval of sponsoring powers, and then was presented to Committee 4, Commission III on
May21.
B. The Scope of Self-Defense under the U.S. View
The U.S. intention to draft Article 51 was that the right of self-defense does not include anticipatory self-defense in its text; however, anticipatory self-defense can be exercised based on Article 2 (4) of the UN Charter. The U.S. delegation understood that the phrase
79 In the light of our study of the Soviet proposal, Mr. Pasvolsky added, we reached the conclusion that this is what the Soviet Union is trying to say. Mr. Pasvolsky then read a brief statement along the following lines: "In the event that armed attack occurs against a member state, nothing impairs the exercise of the inherent right of self-defense, either individual or collective, during the period elapsing between the attack and the time the Security Council takes adequate measures to restore international peace and security. Id., at 3, 5-6. 80 The U.S. proposal to respond the Soviet proposal was initially drafted on May 19. It provided "before the Security Council has taken adequate measures ... " But the U.S. Delegation preferred the term "until" to "before" and add comma in from of"until the Security Council has taken measures .. " Id. at, 6. 81 Id., at 7.
119 "if an armed attack occurs" in Article 51 should be interpreted, based on the ordinary
meaning, that "actual military attack must occur first," and thus the Article does not
guarantee the right of anticipatory self-defense. However, it should be noted that the
Article does not intend to preclude the application of anticipatory self-defense because the
Article was made to clarify the application of the right of self-defense in relation to the
enforcement system of Chapter VII. Thus, if anticipatory self-defense was intended by the
U.S. drafters, it was based on Article 2 (4), and the standard to decide the legality of the use of force is the purposes ofthe UN Charter.
Initially, the "inherent right" ofself-defense included anticipatory self-defense
Under the U.S. view, the right of self-defense was inherent and states could hold the rights unless expressly restricted by the Charter. The U.S. Delegation noted that there was no question as to the right of a nation to act in self-defense, 82 and that it was the general rule in international law that a state possessed the right of self-defense. Thus, the U.S.
Delegation agreed to the idea that the right of self-defense remains for states unless there is an explicit limitation upon it. 83 In addition, so inherent was the right the self-defense, the
U.S. Delegation believed that it might be impractical to define self-defense in the
82 The U.S. State Department, supra note 46 (May 4, 1945), at 6. 83 Id.
120 provisions of the Charter. 84 This approach made the U.S. regarded the right existed in the principles of the UN Charter during the Dumbarton Oaks Conference and the San Francisco
Conference. Further, since the right is natural for states, there was a suggestion to make the provision for self-defense explicitly stating in the Charter that "nothing in the Charter takes away the right of self-defense." Senators who participated in the Conference also took the view that the right of self-defense was inherent and that nothing in the present draft took that right away. 85 In detail, the U.S. believed that the inherent right is not restricted to the case of a direct attack, and the concept is much broader, 86 which probably includes anticipatory self-defense.
But "Armed Attack" in Article 51 Precluded Anticipatory Self-Defense.
However, the U.S. delegation, later, accepted the U.K. idea conditioning "armed attack" before exercising the right of self-defense. Under the view of the U.S. Delegation, the use of force for anticipatory self-defense is not an exercise of the right of self-defense in
Article 51, because there was no "armed attack." The U.S. Delegation recognized the
84 For example, Mr. Stassen remarked that no effort should be made to define the right of self-defense since to define it simply raised the question as to what constitutes self-defense. Senator Vandenberg also asked if there was any way to put into words the right of self-defense, which it was claimed was inherent, without throwing open the door to individual action. Id., at 7. 8 ' Id. 86 The U.S. State Department, supra note 55 (May 11, 1945), at 4.
121 distinction between the terms "attack" and "armed attack," and understood the former as an
act of aggression including political propaganda and the latter an actual attack within the
territory as the Act of Chapultepec, which provided "invasion by armed forces of one State
into the territory of another trespassing boundaries ... " This understanding was well
represented in the U.S. draft on May 11, 1945 by distinguishing the terms: using "attack" in
relation to declaring the inherent right of self-defense and using "armed attack" in relation
to the application of the right to regional arrangements and the action of the Security
Council. · Thus, under the U.S. view, it was very clear that "armed attack" meant the actual
attack, excluding imminent threat, against other states' territory. 87
In particular, it is very clear that the term "armed attack" in the final U.S. draft for
self-defense was limited as an occasion of an armed attack. For example, Mr. Hackworth expressed the view that the draft greatly qualified the right of self-defense by limiting it to the occasion of an armed attack and Mr. Stassen stated that this was intentional and "we did not want exercise the right of self-defense before an armed attack had occurred."88
Further, Mr. Stassen clarified that there was no right of anticipatory self-defense in the
87 For example, Mr. Dulles suggested that there be no tinkering with the text around the table since every word had been carefully scrutinized by the group which had prepared it and that if there were any suggestions for drafting changes they should be referred to the small group for study and report. Id., at 10. 88 The U.S. State Department, supra note 55 (May 20, 1945), at 7.
122 Article 51. Mr. Stassen stated that "this (self-defense) was the same principle as in private law in which defense must have relation to the nature of the attack. In the case of propaganda we would respond with propaganda. It the case of an armed attack we would respond with an armed attack, this however, without prejudice to the continued authority of the Security Council."89 When Mr. Gates posed a question as to our freedom under this provision in case a fleet had started from abroad against an American republic, but had not yet attacked. To this Commander Stassen replied that "we could not under this provision attack the.fleet but we could send a fleet of our own and be ready in case an attack came."90
In sum, "armed attack" in the U.S. draft did not intend to include.the idea of anticipatory self-defense.
However, Article 51 did not intend to limit customary law self-defense
The U.S. original understanding of the right of self-defense did not intend to limit customary law self-defense. The U.S. Delegation believed that the inherent right of self- defense was implicitly included in paragraph 4 (Article 2 (4)) of the Dumbarton Oaks proposal, and the inherent right included anticipatory self-defense. When the U.S. met the requests of states which wanted to express the right in the Charter, the U.S. provided a text
89 The U.S. State Department, supra note 55 (May 11, 1945), at 5-6. 90 The U.S. State Department, supra note 55 (May 14, 1945), at 4.
123 that has the definition of self-defense. 91 It conditioned "attack" to exercise the inherent
right of self-defense, and "armed attack" was used in relation to the application of self-
defense to security arrangements. Under this formula, a state may hold the right of self-
defense including anticipatory self-defense, but in relation to apply the right to the U.N.
enforcement system, a stricter threshold, armed attack, is needed. Thus, when the U.S.
Delegation discussed the text that used the narrow expression "armed attack," some
members preferred to leave out the word "armed" because the term "armed attack" would
abrogate the right of self-defense. 92 The main reason was that the right of self-defense
should not be curtailed in any way.
However, the U.S. Delegation could accept the term "armed attack." It is unclear
why the U.S. accepted U.K. idea of"armed attack" because no specific discussions have
expressly indicated the reason to accept it. Nevertheless, some discussions provide
circumstantial evidence: the U.S. delegation believed that states could use their force to
respond to an imminent attack because of Article 2 ( 4). The U.S. Delegation thought that
ifthere is a threat, the U.S. could act to defend herself; the U.S. could be protected through
91 See supra table IV-1. 92 In particular, Senator Connally would prefer the word "attack" to "armed attack." He insisted that the Delegation should not do anything to abrogate or modify the Monroe Doctrine. The U.S. State Department, supra note 55 (May 14, 1945), at 4.
124 the veto power when the legality of the use of force to respond imminent threat is at issue in the Security Council.93 When Mr. McCloy asked "supposing Germany sent a fleet into the waters off Argentina, would it be illegal if we shot across the German bows when they attempted to land in Argentina?," Mr. Pasvolsky answered that "we would act, and that the
Security Council would then be in a position to review our action."94 Mr. Dulles also pointed out that the members of the Organization, under paragraph 4 of the Chapter II,
Principles, pledged "to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the Organization."95 Since the prevention of aggression would be consistent with the purposes of the Organization, action by a state in self-defense would be in accord with the principles of the Organization.96
Because any act of aggression is contrary to the purposes of the organization and preventing the aggression is consistent with the purposes of the organization, the right of self-defense against aggression is not limited under Article 2 (4). 97 The U.S. delegation thought that if there is a statement about self-defense in general language, the test could still
93 For example, in the meeting of U.S. Delegation, Senator Vandenberg said if an armed attack should come from abroad we would take action in any case,and our veto in the Security Council had been a guarantee that the organization could not take action against an American republic and that with the present arrangement we have closed the last loophole. Id., at 4-5. 94 The U.S. State Department, supra note 46 (May 4, 1945), at 5. 95 Id., at 6. 96 For details, see supra Chapter III. 97 The U.S. State Department, supra note 46 (May 4, 1945), at 6.
125 be whether action, when taken, was inconsistent with the purposes of the Organization. 98
Under this view, a state might have the right to act in an emergency, and if there was an
allegation that this action was contrary to the purposes of the Organization, the Security
Council might review it. 99 This formula was possible because, they believed, there was no
prohibition on the individual use of force if it was done for the purposes of the
Organization. 100 Thus, the legality of the anticipatory self-defense should be based on the
purposes of the UN Charter.
This understanding continued even after the U.S. delegation accepted the term
"armed attack" for self-defense. On June 5, 1945, during the meeting of the U.S.
Delegation, Mr. Notter proposed a text for Article 2 (4). The text provided
" .. .inconsistent with purposes and provisions of the Organization."101 Because of the part
"provisions of the Organization," the use of force could not be read in a permissive way.
During the discussion; the U.S. delegation decided not to accept the term because it would
affect the draft for self-defense. The right of self-defense, under this view, was
"dependent upon the original wording of paragraph four which made possible the use of
98 The U.S. State Department, supra note 46 (April 26, 1945), at 15. 99 Id. 100 Id., at 16. 101 The U.S. State Department, United Nations Conference on International Organization: Meeting of the United States Delegation (June 5, 1945), at 3, in Box 192, supra note 27.
126 force by member states."102
In sum, the U.S.' understanding the scope of the right of self-defense is that first,
Article 51 only applies in case an "armed attack occurs," and thus does not include
anticipatory self-defense; second, a state could hold the right of anticipatory self-defense as a exception to Article 2( 4 ); third, if the use of force for anticipatory self-defense is exercised, the Security Council would decided the legality of the use of force based on the purposes of the UN Charter. 103
C. Intention of the Other Sponsoring States
Role of Other Sponsoring Powers in the Drafting process
Indeed, the text of Article 51 was the outcome of intensive discussion between sponsoring powers. Through intensive discussion and persuasion, the other sponsoring powers opposed U.S. drafts emphasizing regionalism in the text of self-defense. In particular, each sponsoring power had special interests regarding the text. The U.K., wanted world wide application, compared to regional based application, of self~defense to its commonwealth allies; the Soviet Union wanted to preclude the possibility that collective
102 Id. 103 Mr. Bowman explained that under the Dumbarton Oaks Proposals we could make an agreement and the Security Council would have to take negative action to declare that agreement inconsistent. Mr. Dunn agreed that regional treaties or arrangements would stand until declared inconsistent by the Security Council. The U.S. State Department, supra note 46 (May 4, 1945), at 7.
127 self-defense would be used against it; and France wanted a broader right of self-defense
because of its experience of aggression from Nazi Germany.
The U.K.
When the U.K. Delegation read the U.S. Proposal, they objected to the idea of
including the Act of Chapultepec because it would lead to a series of regional organizations
acting independently of the world organization. 104 Since the U.K. wanted an Article that
could apply to a group and not to a region and thus could apply to the British
Commonwealth, 105 the U.S. Proposal, which is based on the regionalism, was not
acceptable for the U.K. delegation. Rather, the U:K. preferred the French Amendment
Proposal, which, the U.K. believed, broader freedom to exercise the right of self-defense. 106
Thus, the U.K. prepared a draft, on May 12, that compromised the views from the U.S. draft and French draft. 107 The text was regarded by the U.S. Delegation as having been motivated in order to avoid referring to regional agencies which would be dangerously limiting, and to leave leeway for other regional organizations. 108 The text was agreed upon by the U.S. Delegation and became the main frame of the U.S. draft on May 14, 1945.
104 RUSSELL, supra note 18, at 699. 105 The U.S. State Department, supra note 55 (May 12, 1945), at 6-7. 106 RUSSELL, supra note 18, at 699. 107 See supra table IV-1. 108 The U.S. State Department, supra note 55 (May 12, 1945), at 6-7
128 Later, the condition "in the event of the Security Council failing to take the necessary steps" was replaced with "until the Security Council has taken measures necessary ... "
However, the term "armed attack" was continuously accepted by all sponsoring powers.
The Soviet Union
The Soviet Union also objected to the idea to include the Act of Chapultepec. In particular, the Soviet Union worried not about the possibility of collective measures taken against them on the basis of previous agreements, and were afraid that it would make possible a coalition against them. Thus, even after the U.S. discarded the plan to include the Act of Chapultepec, the Soviet representatives were objecting to the word
"collective."109 Only after strong persuasion by the U.S. Delegation, the Soviet Union reluctantly accepted the term "collective self-defense."110 However, the Soviet Union opposed the idea conditioning the failure of the Security Council before exercising the right of self-defense. Thus, on May 19, the Soviet Union proposed a new text, 111 which affected the last draft of the U.S. Amendment Proposal of May 20, the final version agreed by all sponsoring powers.
109 The U.S. State Department, United Nations Conference on International Organization: Meeting of the United States Delegation (6 p.m. May 17, 1945), at 5, in Box 192, supra note 27. 110 Id. 111 See supra table VI-I. The U.S. State Department, supra note 55 (May 20, 1945), at 2.
129 France
France was one of leading states insisting that the right of self-defense should be
expressly included in the Charter. The first French proposal generally stated the right of
self-defense and gave freedom of action to individual states, leaving the states completely
free to take emergency measures "until such time as the Council had reached a decision."112
Later, the Delegation of France provided a text conditioning the failure of the Security
Council. 113 Although the text provided a threshold to exercise the right of self-defense, the
failure of the Security Council to reach a decision, states could have freedom to exercise the
right of self-defense. 114 The text was probably a result of French understanding of the'
right of self-defense. It should be noted that, many European states were specifically
concerned with the possibility of the resurgence of aggression by the Axis Powers of World
War II because at the time of San Francisco, the war was still in progress. In particular,
the European states did not wish to be restrained by the requirement of prior authorization
from the Security Council if, in the event of aggression against them, enforcement action was necessary. 115 Thus, they wanted more freedom to exercise the right of self-defense. 116
112 The U.S. State Department, supra note 15. 113 The U.S. State Department, supra note 55 (May 12, 1945), at 4. 114 Id. 115 RUSSELL, supra note 18, at 688.
130 ( It is not clear whether the French Delegation later changed their position when she admitted
the text of Article 51. But, the circumstances in the Europe might be the reason that the
French text of Article 51 used the term "armed aggression (aggression armee )" instead
"armed attack (attaque armee)."
China
The role of the Chinese Delegation was hardly found in the discussion regarding the
right of self-defense. The only case was that the Chinese Delegation wanted to make the
statement regarding self-defense more precise by providing "if in any particular instance
17 the Security Council does not maintain peace and security and·an armed attack occurs ... "1.
The U.S. Delegation once thought that the Chinese wording was an improvement, and thus
had prepared the text including the phrase once before. 118 However, the idea was changed
when the sponsoring powers agreed to adopt the text excluding the condition assuming the
failure. oft h e secunty . c ounc1"1 . 119
The Scope of the Self-Defense under the Other Sponsoring Powers View
Although Article 51 was the result of intensive discussion among the sponsoring
116 See Amendments Proposals from Belgium, Czechoslovakia, France and Turkey. Supra note 12, 13, 15, 16. 117 The U.S. State Department, supra note 109 (10:20 a.m. May 17, 1945), at 14. 118 See the U.S. proposal on May 12, supra table IV-1. 119 The U.S. State Department, supra note 109 (10:20 a.m. May 17, 1945), at 14.
131 powers, the lack of specific information made it uncertain whether the other sponsoring
powers also understood the right of self-defense in the same way that the U.S. did. Thus,
to seek the answer for the question, two aspects should be examined: whether the other
sponsoring powers recognized, in the Dumbarton Oaks Conference, that the right of self-
defense is implicitly included in the paragraph 4 of the Principles of the Charter and the
right at the time intended that of customary law; whether other sponsoring powers, as the
U.S. intended, understood that Article 2(4) could include anticipatory self-defense.
First, it seems clear that other sponsoring powers recognized that the right of self-
defense was included in paragraph 4 of Chapter II in the Dumbarton Oaks Proposal. In
the Meeting of the Joint Formation Group on October 6, 1944, participating states agreed
that principle 4 of the Dumbarton Oaks Proposal included the right. 120 In addition, the
scope of self-defense in the Dumbarton Oaks proposal seemed to include anticipatory self-
defense. Although anticipatory self-defense was not clearly named during the Conference, it was expected within the scope of self-defense with the limit of the supervision of the
Security Council. It can be discovered in the following discussion in the Joint
Formulation Group:
120 See supra, at 92-3.
132 ( The Chairman suggested as a possible case a situation in which states A found that across the border in
state B there was a threat of civil war and active preparations for it. Realizing the imminence of war state
A took action to safeguard its frontier by crossing into state B with the idea of keeping war from
spreading. State A would claim that it was acting for the sake of peace. Under the Charter, would state A
have to take the matter to the Council before it moved across the frontier? Mr. Pasvolsky said that he
thought the council would have been very derelict in its duties if it had not seen the situation developing
in state B. and taken some measures to counteract it. If State A took action its own initiative, the Council
would have to decide what to do about state A. In many cases in private life, for example, a person
could not be prevented from taking' action, but ifhe took unlawful action:certain consequence followed,
and he might be punished for his act. 121
In short, state A, in response to imminent threat, can use its force to prevent it.
However, the use of force should be reported to the Executive Council and the Council
would decide the legality of the use of force and proper measures against State A, or,
possibly, State B. Thus, under this view, states have the right of anticipatory self-defense,
although the right is subject to the scrutiny of the Executive Council. Therefore, at least
the U.K., Russia and China might have same view that the U.S. had at lease before the San
121 The U.S. State Department, Washington Conversation on International Organization: Informal Record of the Second Meeting ofthe Joint Formation Group (Oct 6, 1944), at 9, in Box 183, supra note 1.
133 Francisco Conference started.
Second, it seems that, as the U.S. understood, other sponsoring powers assumed that article 2 (4) could include anticipatory self-defense if it is exercised in a manner consistent with the purposes of the UN. It is uncertain whether the sponsoring powers had changed their position during the San Francisco Conference. Since they agreed the text requiring
"armed attack," unless evidence provided otherwise, they seemed to change in position regarding the right of self-defense. However, there is a discussion indicating that other sponsoring powers also shared the same view with the U.S. even after the San Francisco.
The factcanbe found in the discussion between theU.S. and the Soviet Union. When the
Delegation of the Soviet Union opposed collective self-defense, the U.S. Delegation tried to persuade the Soviet Union by reminding them of the Dumbarton Oaks Proposal. The
Soviet Delegation expressly commented that they accepted the provision for the right of self-defense because it was covered in the Dumbarton Oaks Proposal; 122 however, the
Soviet Union had doubts whether the principle of collective self-defense was covered in the
Dumbarton Oaks Proposal. The U.S. argued, since self-defense in the Dumbarton Oaks
122 Mr. Pasvosky commented that the Soviet Union was "not sure the word "collective" conformed to the conception of Dumbarton Oaks. They were willing to accept the provision for the right of self-defense, since they thought this was covered in Dumbarton Oaks." The U.S. State Department, supra note 109 (10:20 a.m. May 17, 1945), at 13.
134 Proposal meant broader right of self-defense, that collective self-defense was covered in the
Proposal. Further, Mr. Pasvolsky argued that "if any right of self-defense is implied, then the right remains in any form," and more importantly, he stated that "the other three governments were in agreement with him on that view."123 Later, the Soviet Union accepted collective self-defense in its proposal on May 19th. These conversations provide strongest evidence yet found that all sponsoring states understood that the right of self- defense was not limited by Article 51 but existed in any form, Article 2 (4), in the Charter.
Even if the U.S. idea was accepted by other sponsoring powers, a question arises why the sponsoring power made such formulas. It was likely that they did not want to guarantee unlimited right of anticipatory self-defense because, if guaranteed, states could freely invoke the right until the Security Council has taken measures. True, it would have led to great confusion if Article 51 provides that "nothing in the present Charter shall impair. .. if an imminent threat occurs against a member of the United Nations, until the
Security Council has taken measure ... " Thus, sponsoring powers probably agreed a threshold for whether an "armed attack occurs."
123 Id.
135 4. The Legitimacy of Anticipatory Self-Defense
Unfortunately, the trauvax of Article 51 does not provide legal ground for anticipatory self- defense. Although the terms "inherent right" possibly includes anticipatory self-defense, the term "armed attack occurs" limits the application of the Article. However, it should be noted that self-defense in Article 51 was not the implementation of the customary international law governing self-defense; it was just a confirmation of the right in relation to the authority of the Security Council and regional arrangements. Since customary law self-defense was not limited by Article 51, anticipatory self-defense can be lawful if it is exercised in a way consistent with the purposes of the UN Charter.
It seems that no other states believed that Article 51 guaranteed the right of anticipatory self-defense in the text used term "armed attack" as a threshold. There is no evidence that armed attack includes the threat of peace. Rather preparatory work provides that states were aware of the difference between the terms "attack or aggression" and
"armed attack." Thus, one could hardly make a case that Article 51 did include the right of anticipatory self-defense.
However, it should be noted that Article 51 did not intend to limit the customary law governing self-defense. No such discussion has found that Article 51 would limit the use
136 of force against threat. Article 51 was not drafted for the purpose of deliberately narrowing the customary law on self-defense. Rather, as Professor Bowett noted, Article
51 was drafted as a safeguard for the right of individual and collective self-defense in case an armed attack occurs. 124 The Article was not brought to table as a principle regarding the use of force. Rather the article was issued and discussed in relation to the regional arrangements to confirm the collective self-defense. 125 The intention can also be found in the discussion of the Coordination Committee to locate self-defense. The Committee, when it placed the Article at the end of the Security Council's enforcement system, emphasized that the article amounts to an exception to the enforcement arrangements decided upon by the Security Council. 126 Under the view, the article was calculated only to reassure parties to regional arrangements: when they gave responsibility to the Security
Council, they could still rely on self-defense. In this regard, it is fair to say that the purpose of the Article was not to limit the customary law right of self-defense but to ensure the right in relation to regional arrangements or the enforcement system of the Security
Council.
124 For details, see D.W. BOWETT, SELF-DEFENCE lN INTERNATIONAL LAW 189-200 (1958). 125 Article 51 was discussed in Commission III, Committee 4, whose mission was to draft regional arrangements. The principles of the UN was discussed in Commission I, Committee 1. See supra figure II-1. 126 17 UNCIO, supra note 37.
137 Lastly, if Article 51 did not exclude or guarantee anticipatory self-defense, a question arises whether anticipatory self-defense can be lawfully exists in international law. This study argues, again, that the question comes down to the interpretation of Article 2 (4). If
Article 2 ( 4) prohibits all uses of force except in self-defense and the authorization of the
Security Council, legitimacy of anticipatory self-defense has no grounds in international law; it is prohibited by the Article 51. In contrast, if Article 2(4) only prohibits the use of force inconsistent with the purposes of the UN Charter, anticipatory self-defense can be lawfully exercised when it is exercised in a manner consistent with the purposes of the
Charter. As a result, the formula regarding anticipatory self-defense became similar to· that of the U.S. delegation.
In conclusion, this study found that, although Article 51 does not include the right of anticipatory self-defense; however, anticipatory self-defense can be invoked as an exception to Article 2 (4 ). Under this formula, if an armed attack occurs, states could respond by any measure to defend itself and the lawfulness of the use of force is guaranteed.
The only remaining issues are first, whether the state exercising the right of self-defense has to report the use of force to the Security Council; second, whether the Security Council takes necessary actions to maintain international peace and security, which is superior to the
138 self-defense measures taken by states; whether the Security Council regarded the measure to respond armed attack as proportionate. However, if there is no armed attack but there is an imminent threat of attack, the lawfulness of the use of force to repel the threat is not guaranteed by Article 51. The legality of the use of force acting in anticipatory self- defense is under discretion of the Security Council and the Council would decide the legality based on the purposes of the UN Charter and would take necessary measures there upon. Thus, although anticipatory self-defense implicitly exists in Article 2( 4), there was no right of anticipatory self-defense in the UN Charter. Anticipatory self-defense was not a guaranteed right like the right of self-defense after an am1ed attack. It is merely a use of force by states which is not prohibited by Article 2 (4) and 51, and can only be lawful when it is exercised in a manner consistent with the purposes of the Charter.
139 Part II. The Evolution of the Jus ad Bel/um
V. The Evolution of the Jus ad Bellum before 1945
1. The Development of the Jus ad Bellum before the League of Nations
From moral principle to legal justification, the }us ad bellum had been incrementally
developed throughout international history. In particular, it became the legal doctrine
since the establishment of modern states, and was developed in the form of customary law
limiting the use of force. Although states failed to codify customary law before World
War I, they were able to reach an agreement on the Covenant of the League of Nations and
the Kellogg-Briand Pact after experiencing the war. Even before the establishment ofthe
UN, thejus adbellum had been incrementally developed,with broader prohibition of the
use of force.
The earliest efforts to provide some form of normative framework for the recourse to
force can be seen in the sacred writings of ancient religions. Frequently, these reflected a
'holy war' approach. 1 From a normative perspective, divine orientation was the sole element that determined the permissibility of war, and even wars of conquest were acceptable if they were sanctioned by God. 2 As time passed, the holy war was replaced
I According to this approach, recourse to force was to be deemed morally permissible when it was divinely oriented. See, e.g., J. WALSH, THE MIGHT FROM THEIR THRONE: POWER IN THE BIBILICAL TRADITION (1987). 2 Id.
140 by the just war doctrine. 3 Under the doctrine, recourse to war was deemed to be
permissible when there was a just cause. Divine sanction, while still a plausible just cause,
was no longer regarded as the condito sine qua non for the use of force. 4 However,
granted, the just war doctrine faded away with the birth of modem nations because nations
believed in their right to go to war regardless of the ''justice" concept. In addition,
because the doctrine existed before the birth of modem international law and no legal
limitation was in fact ever imposed on states to use force during the period, the just war doctrine should be recognized as a moral doctrine rather than a legal doctrine. 5
The eighteenth century was a ferment of intellectual ideas and rationalist philosophies that contributed to the evolution of the doctrine of international law. 6
International law spread geographically through the expansion of Western Powers. In this time period, states believed that there was no legal barrier in going to war, 7 and that they
3 Id.; see generally, J. JOHNSON, JUST WAR TRADITION AND THERESTRArNTOFWAR (1981). 4 ANTHONY CLARK AREND &ROBERT J.BECK, INTERNATIONAL LAW ANDTHEUSEOFFORCE 12 (1993). 5 Just War doctrine originated from religious principle even before the establishment of Modem States, and the states were not likely bound by the norm. Moreover, states practice did not show a case that the war was ever prohibited because of lack of a just cause. Since no limitation has occurred during the time, the effectiveness of the so-called 'just war' was not deemed to constitute legal constraint of the use of force. If any, these constraints merely tender an implication that even before the birth of international law, there was an effort to set the standard to regulate states' activity concerning the use of force. Thus, the doctrine should be regarded as moral rather than as legal. 6 MALCOME N. SHAW, INTERNATIONAL LAW (5d) 26 (2003). 7 War in this period should be distinguished from the ordinary meaning of the use of force. War in this period implied a full scale combat which also involved a termination of commercial intercourse between the contending states and the invalidation or suspension of treaties. IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES, 16, 27 (1963).
141 had a 'sovereign right' to go to war. 8 The declaration of war was the requirement that gave states the right to wage war during this period. Hence, a state simply declared war, 9 and other states believed that it was lawful. 10 In addition, to obtain territory by right of conquest was un1 1m1te. · d . 11 The officers of these states regarded their annexation as valid under international law and scholars supported the position by providing relevant theories for them. 12 On the other hand, a large number of writers described war as a judicial procedure involving also execution and punishment, as a sort of litigation for states obtaining redress for wrong doings in the absence of a system of international justice and sanct10ns.· 13
The nineteenth century by contrast was a practical, expansionist and positivist era, which gave birth to legal constraints on the use of force. The Congress of Vienna enshrined the new international order based upon the European balance of power. 14 The
8 AREND & BECK, supra note 4, at 17. 9 T. BATHY & J. H. MORGAN, WAR: ITS CONDUCT AND LEGAL RESULT 895 (1915). 10 However, for many years, no formal declaration has been thought necessary, and although by art. I of Hague Convention, 1907, nations have bound themselves to issue them, there is no doubt that war may exist de facto before its formal declaration, id., at 315. 11 In many circumstances, outcomes of war were regarded as legally valid as in the case of the Prussian annexation of the Danish duchies and the annexation of Alsace-Lorraine by the German Empire. The UK and France, and Russia made a number of incursions around the World, in Asia, Africa, many oI which resulted in annexations or the imposition of protectorate. The U.S. also fought wars in 1846 and 1898 resulting in the annexation of Texas and the Philippines. BROWNLIE, supra note 7, at 20. 12 T. J. LAWRENCE, THE PRINCIPLES OF INTERNATIONAL LAW 333 (1911). 13 HOLLAND, STUDIES IN INTERNATIONAL LAW 1963 (1898), WOOLSEY, INTRODUCTION TO THE STUDY OF INTERNATIONAL LAW 116 (1860), re-cited from BROWNLIE, supra note 7, at 21. 14 Id.
142 most important of these changes was the consolidation of the state system and the
development of the concept of sovereignty. 15 Also, democracy and nationalism, spurred
on by the wars of the French revolution and empire, spread throughout the continent and
changed the essence of international relations. 16 Conscription was introduced throughout the European continent and large national armies replaced the small professional forces. 17
War became an ordinary occurrence, and the right of war, as an aspect of sovereignty, was consolidated as customary international law. However, paradoxically, frequently occurring war promoted the legal constraints on war at the end of the century. By that time, war was no longer the affair of despots and professional armies, and the advancement of military technology brought heavier tolls on the population and economic resources of states; the time in which war might not interfere materially with the national life ended. 18
In addition, because of widespread information, caused by cheap newspapers and their
15 AREND & BECK, supra note 4, at 15. 16 A. COBAN, THE NATION STATE AND NATIONAL SELF-DETERMINATION (1969) re-cited from id. 17 See generally GEOFFREY BEST, WAR AND LAW SINCE 1945 (1994). 18 States practice reflected these new circumstances by adopting new norms in relation to use of force. States considered that it was desirable to avoid the disruption of full scale hostilities that war caused, and instead of recourse to war, they considered some restricted use of force with a limited object or to extensive operations without any admission of the existence of full scale war. BROWNLIE, supra note 7, at 28. As Professor Brownlie noted, "it is sufficient for present to notice that, in theory at least, states had to pay for the luxury of avoiding the consequences of a state of war by submitting to some measure of legal regulation of the lesser means of coercion as a reprisal, pacific blockade, or justified intervention. Reprisals and the justified forms of intervention were bounded by the requirement of proportionality to the danger threatened and the restricted object of the use of force."
143 mass circulation, people started to take war seriously, and, with the extension of
constitutional government and democratic control, the idea to limit the use of force
developed increasingly. 19
In practice, states reflected the idea in their practice in two ways: force "Short of
War" and justifiable cause. The first approach was the concept of Short of War such as
reprisal and interventions. States differentiated the use of force Short of War from a full- blown war. 20 Short of War was quick military actions that did not involve a major
commitment of forces. They took place in absence of a declaration of war and were thus regulated by the rules of peacetime. 21 The second, justifiable cause, was the belief that war should be the last resort and states should have some legitimate cause. This was put into practice after perceiving legal constraints on the use of force. As a result, war was rarely initiated by states without some stereotyped plea to a right of self-preservation, self- defense, a necessity to protect vital interests, or merely alleged injury to rights, national honor and dignity. Thus, the consensus that states had a reciprocal interest and war should be a means oflast resort in the enforcement oflegal rights was increasingly recognized and
19 Id., at 26. 20 AREND & BECK, supra note 4, at 17. 21 Id.
144 considered as customary international law on use of force by the end of this period.
However, the legal constraints on the use of force in this era remained as customary
international law. Although much effort for codifications had been made during the
period, - scholars and states tried to codify customary law related to war and the codified
22 law became a framework for international law - those efforts failed to reach the
codification during this period.
2. Jus ad Bellum in the League of Nations and the Kellogg-Briand Pact
A. The League of Nations
World War I provided a new era for the jus ad bellum, collective security system. 23 The war proved that the old system had failed and it was felt that new institutions to preserve and secure peace were necessary. 24 The League of Nations was founded in 1920 as an integral part of the Treaty ofVersailles which concluded the war. 25 The League Covenant
22 MARKE. VILLIGER, CUSTOMARYINTERNATIONALLAWANDTREATY 61 (1985). 23 Collective security is one type of coalition building strategy in which a group of nations agree not to attack each other and to defend each other against an attack from one of the others. This is a system aspiring to the maintenance of peace, in which participants agree that any "breach of the peace is to be declared to be of concern to all the participating states." Martin Wight, Systems ofStates, in THE ANARCHICAL SOCIETY: A STUDY OF ORDER IN WORLD POLITICS 149 (Hedley Bull ed., 1977). 24 SHAW, supra note 6, at 30. 25 The Covenant forming the League of Nations was included in the Treaty of Versailles and came into force on 10 January 1920. Total 63 states once all member states joined the League of Nations. Of the 42 founder members, 23 (or 24, counting Free France) remained members until the League ofNations was dissolved in 1946. A further 21 countries joined between 1920 and 1937, but 7 left, withdrew or were expelled before 1946. However, the League of Nations was dissolved on 18 April 1946, when its assets and responsibilities were transferred to the United Nations. See F. S. NORTHHEDGE, THE LEAGUE OF NATIONS: IT'S LIFE AND TIMES 328-9 (1986).
145 was an institution of power politics designed by the victors of World War I to secure and perpetuate the favorable political, economic, and military status quo after the end of the war with the maximum possible degree oflegal and institutional coercion and control.26 In the
27 time of positivists , founders of the League believed that the establishment of the League would result in achieving their goal. Thus, they set up a mechanism to maintain international security through the creation of the general system for the obligatory arbitration of disputes between states; the establishment of an international court ofjustice; the codification of major international customary law; arms reduction; etc.28 The
Covenant of the League of Nations was the fulfillment of these ideas.
At this time the common belief was that the war had resulted from 'accidental causes.' 29 So, states were focusing on procedural matters that, they believed, could prevent states from going to war. 30 Thus, the Covenant of the League of Nations has two
26 FRANCIS A. BOYLE, FOUNDATION OF WORLD ORDER 9 (1999). 27 The early twenty century was the era of the positivist. Their methodology was based on the recognized international law as set forth in the customary practice of states, instead of philosophical approach to natural law. According to Professor Boyle, a true international legal positivist must perform seven tasks in order to promote the science of public international law: exposition of existing rule of law; historical research; criticism of existing law; preparation of codifications; maintaining the distinction between old customary law and new conventional law; fostering international arbitration; and popularization of public international law. Based on this approach, the promotion of international law and organizations was ideally suited to achieving the objectives of a U.S. foreign policy that was predicated on the twin assumptions of maintaining isolationism in peace and preserving neutrality. Id. at 11-2. 28 Id. 29 I. CLAUDE, SWORDS INTO PLOWSHARES (4d) 45-6 (1971). 30 J. N. MOORE, F. S. T!PSON, & R. F. TURNER ( eds.), NATIONAL SECURITY LAW 48 (2005).
146 distinctive provisions in relation to the legal constraints on the use of force: the prohibition
of aggression and the procedural limits. First, Article 10 of the League Covenant provided that "members to respect and preserve against external aggression, the territorial integrity, and existing political independence of all members. In the case of any such aggression, threat or danger of the aggression, the Council was to advise upon the means by which the obligation should be fulfilled."31 Although the power of the Council under the article was vague and supposed to preserve the status quo,32 the article clearly imposed a legal obligation on member states, which perhaps was the most distinct element in the
Covenant.33 In detail, the Covenant did prohibit four unlawful cases of use of force: when made without prior submission of the dispute to arbitration or judicial settlement or to inquiry by the Council of the League; when begun before the expiration of three months after the arbitral award or judicial decision or Council report; when commenced against a member which had complied with such award or decision or recommendation of a
31 Article 10 of the Covenant of the League of Nations, available at http://www.yale.edu/lawweb/avalon/leagcov.htm. 32 It had also argued that the provision was merely a moral obligation, and it was. Moreover, the article was in contradiction to Article 15, paragraph 7, which permitted member states recourse to war in circumstance to enforce their claims. BROWNLIE, supra note 7, at 62 33 The defmition of aggression is uncertain under the Covenant although it was interpreted as prohibiting aggressive war, aiming at territorial or political ambition; however, it became clearer when Article 2 (4) of the UN Charter provided detailed patterns prohibiting the use of force. Hence, the prohibition of aggression of the Covenant seems to be assimilated by the Charter. Id.
147 unanimously adopted Council report; and under certain circumstances, when initiated by a non-memb er state agamst· a memb er state.. 34 The purpose of the procedural limits was to allow a government time for reflection because the drafters believed that a postponed conflict was sometimes a conflict avoided. 35
As a result, the articles of the Covenant of League of Nations took tacit admission of war as a means of settling disputes. If there was no decision by the arbitral body, court, or the League Council, after three months as a cooling off period, there was no obligation to refrain from using force. In this regard, the Covenant of the League of Nations did not prohibit all wars; it only prohibited resorting to war without the League of Nations' proce d ure an d pnnc1p. · Ies. 36 As Professor Moore noted, the lawfulness of war did not depend solely on the justness of one's cause but rather on compliance with procedural standard.37
Moreover, the Covenant emphasized on sovereign discretion too much, requiring the
34 See MARTIN, COLLECTIVE SECUR1TY 90-3 (1952). 35 Secretariat of the League of Nations, The Aims, Methods and Activities of the League of Nations 37 (1938). 36 Although article 10 of the Covenant of the League of Nations articulates "the Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League," this restriction seemed to contradict article 12-15, which permit use of force in certain circumstances. Scholars assumed that the drafters intended that force be permitted in accordance with the other provisions of the Covenant. See BROWNLIE, supra note 7, at 62; Covenant of the League of Nations, article 10, 12-15, available at http://www.yale.edu/lawweb/avalon/leagcov.htm. 37 J. N. MOORE, F. S. T!PSON, & R. F. TURNER, supra note 30, at 48.
148 decision of Council to be unanimous, which in practice weakened any possibility of
meaningful collective security. Further, the Covenant was crippled from the start by the
skeptical attitude of nations, including the absence of the United States and the Soviet
Union for most of its life, and remained basically as a western European organization. 38
While the League of Nations did have minor success with regard to the maintenance of
international order, it failed to maintain peace and security when confronted with
determined aggressors, from Japan, Italy, German, and the Soviet Union. 39
B. Geneva Protocol
Recognizing the problems with the Covenant, some tried to strengthen the jus ad bellum, but failed to codify the rules. States wanted to make aggression illegal, and this normative consensus became stronger when met with aggression. The vast increase in the number of international agreements on the issue reflected the increasing interest of the international community to control the use of force, and the effort to codify customary international law also drastically increased at this time. 40 The Geneva Protocol was
38 BROWNLIE, supra note 7, at 62. 39 Japan invaded China in 1931 and two years later withdrew from the League. Italy attacked Ethiopia, and Germany embarked unhindered upon a series of internal and external aggressions. The Soviet Union was expelled from the organization in 1939 following its invasion of Finland. For Details, id., at 92-105. 40 Although the Covenant of the League ofNation of 1919 did not expressly mention codification as one of its aim, the Committee of Jurists drafting the PCIJ statutes put forward a first proposal. Also, the codification of customary international law was also necessitated by the fact that a majority of judges on any international
149 especially worthy of notice in clarifying thejus ad bellum. 41 The Protocol, unlike former
rules governing the use of force, allowed only two circumstances under which a state could
resort to war: defense from aggression or when authorized by a competent organ of the
League. 42 In this regard, the protocol was a big transition, which the UN Charter accepted
later, in the direction of broader prohibition. However, even though 48 states recommended the ratification of the protocol in the League Assembly, it failed to receive the number of votes necessary to ratify. 43 Thus, as Professor Brownlie noted, the Geneva
Protocol became neither a treaty nor customary international law at this period.
Nevertheless, it was the harbinger of international agreement prohibiting illegal war in the next step, the Kellogg-Briand Pact.
C. The Kellogg-Briand Pact
States continued to discuss the way to illegalize an act of aggression through the
League Assembly and the International Conference of American States, and finally reached
court would undoubtedly be trained in the Continental tradition, which varied significantly from the Anglo American heritage in numerous important respects. 41 These included the 1923 Draft Treaty on Mutual Assistance and the 1924 Protocol for the Pacific Settlement of International Disputes, the so-called Geneva Protocol. Both of these agreements defined 'aggression' as an 'international crime.' BROWNLIE, supra note 7, at 68-70. 42 YORAM DINSTEIN, WAR,AGGRESSION AND SELF-DEFENSE 80 (1988). 43 BROWNLIE, supra note 7, at 71.
150 a Treaty for Renunciation of War, which is popularly known as the Kellogg-Briand Pact. 44
The Kellogg-Briand Pact prohibited war for the solution of international disputes45 Thus,
for the first time, an international treaty outlawed resorting to war. 46
Granted, the general presumption of the Covenant of the League of Nations was that states still had an almost-unlimited right to recourse to war. Recognizing the problem, states reached for steps toward agreeing on prohibiting war to enforce legal rights.
Because the Pact, in its Article 14 7 renounced war as an instrument of national policy, war was outlawed. In addition to the promise of pacific resolution for all disputes or conflict, it became clear that states' right to recourse to war in order to enforce legal rights was no longer permitted . 48
However, the right of self-defense was recognized as an exception although the Pact
44 Id. 45 The Pact did no longer focus on previous concepts such as, whether war was "just," or whether certain procedural requirements designed to prevent accidental war has been met. Rather, it focused squarely on whether a use of force was aggressive and thus illegal, or defensive and thus lawful. J. N. MOORE, F. S. TIPSON, & R. F. TURNER., supra note 30, at 51. 46 See article 1 & 2, Kellogg-Briand Pact (Aug. 26, 1928), Stat 46: 2343, T.S. No. 796, L.N.T.S. 94: 57. 47 Article 1 of the Kellogg-Briand Pact provides, "the High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another." Available at http://www.yale.edu/lawweb/avalon/imt/kbpact.htrn (last visited on August 22, 2006). 48 Article 2 of the Kellogg-Briand Pact provides, "the High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means." This principle was included and reaffirmed by Article 2 (3) of the Charter, and thus was assimilated by the UN Charter.
151 did not expressly provide as such. 49 In addition, states also believed that the use of force
Short of War might be lawful if the use of force is exercised to enforce legal rights. In fact, there was continuing discussion in relation to the lawfulness of customary law Short of War under the Kellogg-Briand Pact. In 1928, at the time the Pact was agreed upon, the meaning of war could be driven in two ways: through a technical meaning that formally declared war between states, or the use of force of all manners. 50 This ambiguity led to a debate over, whether the Pact prohibited the use of force in the absence of war in a formal sense. Indeed, the extent to which the Kellogg-Briand Pact permits force Short of War is open to the same serious objections as were the corresponding provisions of the Covenant of the League of Nations. The scholars in opposition of Short of War argued that the Pact did renounce customary law Short of War, while the scholars in support of Short of War interpreted it to the contrary. 51 The scholars in opposition to the lawfulness of Short of
War argued that the hostile measures Short of War were prohibited by the Pact because the interpretation otherwise derogates the objectives of the treaty. In addition, they insisted
49 See Wright, The Meaning ofPact ofParis, 27 AM. J. INT'L. L. 39, 42-43 (1933); IAN BROWNLIE, supra note 7, at 89; J. N. MOORE, F. S. TJPSON, & R. F. TURNER, supra note 30, at 51-4. 50 The pact did not preclude the right to use force in self-defense nor clearly limit the use of force other than the traditional concept of war. BROWNLIE, supra note 7, at 89; MARY ELLEN O'CONNELL, INTERNATIONAL LAW AND THE USE OF FORCE 132 (2005). 51 BROWNLIE, id., at 109-10.
152 that state practice after the Pact supported their view. Professor Brownlie concisely
explains:
It is submitted that the practice of states between 1920 and 1945, and more particularly between 1928
and 1945, provides adequate evidence of a customary rule that the use of force as an instrument of
national policy otherwise than under a necessity of self-defense was illegal... The Kellogg-Briand
Pact was a legal instrument and the state practice shows a general awareness of the legal nature of
. . . fC. 52 1mutat10ns on use o 1orce.
Other scholars took contrary views because, in their point of view, the term "war" in
the Pact only referred to the technical meaning of a formally declared war, and state
practice reflected that measures Short of War were generally considered lawful. 53
Professor McDougal explained:
It is true, however, that the Pact, by retaining "war" as a term of art, failed to quiet the continued
debate as to the permissibility of force that participants might verbally describe as a "measure Short
of War." It was left to the Charter of the United Nations to resolve and make moot that debate by
discarding the term "war" and employing in its stead the multiple reference to "threat or use of
52 Id, at 109-10. 53 O'CONNELL, supra note 50, at 133.
153 54 force," "threat to the peace," "breach of the peace," "act of aggression."
True, each argument has its own persuasive legal basis, and yet there is no consensus on the pre-existing rule with no overwhelming evidence. Nevertheless, it should be noted that all scholars agree on the customary law Short of War that was established before the
Kellogg-Briand Pact,55 and the customary law Short of War was, more often than not, invoked by states to enforce legal rights.56 Thus, unless provided by convincing evidence to the contrary, the pre-established customary law should be interpreted as an effective one.
The Kellogg-Briand Pact had legal significance, which was of almost universal obligation. Sixty three states ratified the Pact and only four states in the international community as it existed before the World War II were not bound by its provisions. 57 The
Pact had the U.S. 58 and the Soviet Union as member states, meaning the treaty reflected the reality of international relations at the time, and even today, the Pact is still in force.
In addition, many subsequent treaties reaffirmed the obligations of the Pact and stated, as a
54 MYRES S. MCDOUGAL & FLORENTINO P. FELICIANO ( eds.), THE INTERNATIONAL LAW AND WAR: TRANSITIONAL COERSION AND WORLD PUBLIC ORDER 142 (1994). 55 See infra section C. Putative Rules in Customary Law before 1945. 56 MARY ELLEN O'CONNELL, supra note 50, at 133. 57 Those states were Bolivia, El Salvador, Uruguay, and Argentina. To which might be added entities such as San Marino, Yemen, and Nepal. The last two states referred to take too little part in international life at the time. BROWNLIE, supra note 7, at 75. 58 The Kellogg-Briand Pact was given an unenthusiastic reception by many countries. The U.S. Senate, ratifying the treaty with only one dissenting vote, still insisted that there must be no curtailment of America's right of self-defense and that the United States was not compelled to take action against countries that broke the treaty.
154 part of the objectives of the treaty, the desire to give more precision to those obligations. 59
However, the Pact had some weaknesses. It has been pointed out that the Pact failed to
define legal war; it lacked an enforcement mechanism, it refused to call even for consultation in the event of its violation, and it had inconsistency with the provisions of the
Covenant. 60 Thus, in the wake of World War II, the Pact could not make a meaningful contribution to international order. 61
3. Putative Rules concerning the Use of Force in Customary Law
Ifthe Kellogg-Briand Pact did not prohibit customary 1aw Short of War, it would be worthy to examine the customary rules governing the use of force that existed before the UN
Charter. Customary law governing the use of force could be found in state practice and in the literature of scholars before 1945. However, the definition of customary law governing the use of force was elastic at that time, and thus, one definition could vary depending on the time of writing. Especially, the concept of Short of War - such as self-
62 63 preservation, self-help, and interventions - was deeply controversial. Since the legality
59 See, e.g., Locamo Treaty of Mutual Guarantee, Oct. 16, 1925, 54 LNTS 289. 60 GARYB. 0STROWER, THE LEAGUE OF NATIONS FROM 1919 TO 1929 85 (1996). 61 Although it was invoked in 1929 with some success, when China and the USSR reached a tense moment over possession of the Chinese Eastern territory, the pact proved to be meaningless, especially with the practice of waging undeclared wars in the 1930s. e.g., the Japanese invasion of Manchuria in 1931, the Italian invasiqn of Ethiopia in 1935, and the German occupation of Austria in 1938. 62 Intervention is applied to justify use of force in situations other than those justifying exercise of the right of
155 of the customary Short of War before 1945 has been challenged, this study names the rules
which existed before the UN Charter "putative."
A. Anticipatory Self..:Defense
Self-defense was the most distinctive and well consented customary rule. No
scholars ever contended on the fact that, before 1945, states regarded that they have the
right of self-defense when there is an attack or imminent threat. 64 The classic formulation
of the right of self-defense, including anticipatory self-defense, can be found in the
Caroline incident. 65 After the Caroline incident, much diplomatic correspondence ensued,
self-preservation: in particular intervention in virtue of treaty rights, humanitarian, and collective interveption. BROWNLIE, supra note 7, at 4 7. Thus, the concept in part provides the concept of Short of War. 63 · Short of War was the use of force without a declaration of war and designated "intervention" or a resort to hostile measure "Short of War," the doctrine displayed elements both of intended elasticity and of sheer doctrinal confusion. Professor Brownlie distinguished self-preservation from self-defense and intervention, but admits that there was no clear distinction between exercise of a right to self-preservation and its alter egos hostile mearues Short of War. Ian Brownlie, Thought on Kind-Hearted Gunmen, in HUMANITARIAN INTERVENTION AND THE UNITED NATION (Richard B. Lillich ed. 1973), at 142. However, Professor D' Amato provides four under the category of Short of War: self-defense, self-help, defend or help others, and group actions. D'AMATO, INTERNATIONAL LAW AND POLITICAL REALITY Vol. I 118-137 (1995). Thus, it should be noted that the concept of this study may differ from those old writings because this study summarizes and unifies the category used by scholars. 64 See D. w. BOWETT, SELF-DEFENSE IN INTERNATIONAL LAW (1958); MCDOUGAL& FELICIANO, LAW AND MINIMUM WORLD PUBLIC ORDER (1961); Iran Brownlie, supra note 7; YORAM DINSTAIN, WAR, AGGRESSION, AND SELF-DEFENSE (1988); Oscar Schachter, Self-Defense and the Rule ofLaw, 83 AM. J. INT'LL (1899), at 259-77, etc. 65 The Caroline case occurred in 183 7. A rebellion in Canada against the British Crown was in its dying stages, but sympathetic commotions occurred at various places in the United States, especially along the Canadian border. The Government of the United States adopted active measures for the enforcement of the neutrality laws, but the difficulties of the situation were increased by the course of the insurgents, who, when defeated, sought refuge in the United States, where they endeavored to recruit their forces. Meanwhile, some Canadian insurgents obtained American support in Buffalo, New York. A body of about 1,000 persons, mostly Americans, took over Navy Island lying in the Niagara River on the Canadian Side of the border, and used it as a base for raids on the shore. The Steamer "Caroline" was used to ship arms and supplies to the group on the Island; the American authorities having nothing done about this. However, the British commander across the river decided that the only way to cut off the traffic in supplies was to destroy the Caroline. When the
156 and many points of law were raised. 66 For example, when one British soldier was caught
and tried in the U.S. for murder and arson, although he was eventually acquitted, famous
letters were exchanged between Daniel Webster, the U.S. Secretary of State and Lord
Ashburton, the British Foreign Minister.67 In the letter, Secretary Webster projected some
qualifications for self-defense, such as "necessity of self-defense ... instant, overwhelming,
and leaves no choice of means and no moment for deliberation," and "nothing unreasonable
and excessive."68 Remarkably, Lord Ashburton accepted all the principles stated by
Webster although he insisted that the case fitted into such a framework. 69 These conditions were then reflected in state practice and accepted by other scholars. In particular, some of Webster's language, like "no moment for deliberation," had been regarded as an illustration not only to respond when states are actually attacked but also
Caroline was resting between supply trips at Fort Schlosser in New York, several boatloads of English soldiers slipped up to it in the nighttime, boarded it, and started shooting at the defenseless crew, who promptly abandoned ship. The English soldiers set fire to the boat, cut it loose, and sent it over the Niagara Falls. During the incident, two Americans were shot and killed and two others were taken prisoner temporarily in Canada. Details are available at http://www.yale.edu/lawweb/avalon/diplomacy/britain/br- 1842d.htrn. 66 On the 22d of May, 1838, Mr. Stevenson, then minister of the United States at London, presented a demand for reparation. Its receipt was acknowledged by Lord Palmerston on the 6th of June, with a promise of consideration. Id. 67 Id. 68 Id. 69 For example, Lord Ashburton argued that the boat was set adrift so that the American property in the port would not be burned, and the attack took place at nighttime for the greatest efficiency of the attack and the least loss of life. See id.
157 when there is an imminent threat of attack. 70 Anticipatory self-defense was reflected in
state practice before 1945. For example, the Netherlands in WWII, on December 8, 1941,
declared war against Japan prior to any Japanese attack. The evidence had shown that an
attack was clearly planned by the order of Japanese Imperial General Headquarters. In
these circumstances, the International Military Tribunal for the Far East stated:
The fact that the Netherlands, being fully appraised of the imminence of the attack, in self-defense
1 declared war against Japan on the 8 h December and thus officially recognized the existence of a
state of war which had been begun by Japan cannot change that war from a war of aggression on
71 the part of Japan into something other than that.
In this regard, before 1945, the use of force for anticipatory self-defense in customary. law was regarded as lawful exercise of the right of self-defense.
B. The protection of nationals in a foreign country
The use of force to secure the lives and liberty of nationals in a foreign state was
70 Secretary Webster claimed that "the right of self-protection may and frequently does extend in its effect beyond the limits of the territorial jurisdiction of the state exercising it, and by necessity, a sovereign state may need to act alone, and does so to protect itself by preventing a condition of affairs in which it will be too late to protect itself." Id. See also Elihu Root, The Real Monroe Doctrine, 8 AM. J. INT'L. L. 427, 432 (1914); Webster's formulation was reaffirmed a century later by the International Military Tribunal at Nuremburg, when it ruled that German invasion of Norway in 1940 was not defensive because it was unnecessary to prevent an "imminent" allied invasion. See International Military Tribunal (Nuremburg) - Judgment and Sentences, 41 AM. J. INT'L. L. 172, 205 (1947). 71 JUDGMENT, NOVEMBER4-12, PART. B, CH. VII, at 994-5, re-quoted from BOWETT, supra note 64, at 144. See also JOHN NORTON MOORE, LAWFULNESS OF THE USE OF FORCE: Jus AD BELLUM, (Course Material for the University of Virginia School of Law), at 65.
158 commonly asserted as lawful before 1945. 72 It was believed that states recognized that
individuals have certain fundamental rights such as the right to life and liberty, and thus had
mutually undertaken to ensure the possibility of enjoying them. Thus, states held the right
of protection over citizens abroad by intervention. 73 In state practice, from the 1830s to
the 1930s, the justification was invoked by the Western states mostly in Latin America,
where the injuries of nationals of a western state were caused by political disorder. 7 4
However, armed intervention to enforce demands for redress occurred frequently in states,
and subsequently, the impression soon spread that the intervention to protect nationals and
property was a practice which only strong countries resorted to against weaker ones. 75 As
a result, some requirement such as necessity and proportionality emerged to limit the free
exercise of the right of intervention: the use of force should be the last resort, and mere
72 I OPPENHEIM, INTERNATIONAL LAW 276 (7th ed, Lauterpacht 1948); HERSHEY, ESSENTIALS OF INTERNATIONAL PUBLIC LAW AND ORGANIZATION 235-45 (1927). ANNVANWYNENTHOMAS &A. J. THOMAS JR., NON-INTERVENTION: THE LAW AND ITS IMPORT IN THE AMERICA 55-64, 303-372 (1956). Professor John B. Moore was even categorical, stating "The right of the government to intervene for the protection.of its citizen in foreign land was never doubt. JOHN B. MOORE, AMERICAN DIPLOMACY 131 (1905). 73 A categorical problem should be noted in defining the use of force to protect nationals or property abroad: whether it was a sort of self-defense or Short of War. Many scholars justify the use of force to protect nationals as a pattern of self-defense because self-defense is clearly entitled as lawful even under the Charter. For example, Professor D 'Amato categorizes that the use of force in order to protect nationals is within the scope of self-defense. He even classifies the use of force to protect nationals or property abroad in the category of self-defense. D'Amato, supra note 63, at 123. Other scholars include the concept as one type of Short of War. THOMAS & THOMAS, id, at 303; AREND & BECK, supra note 4, at 71, 93. etc. However, in the traditional international law theory, a state consists of three main factors - a territory, sovereignty and nationals - and there seems to be little question that a state has a right as to protext its own nati.onals whether at home or in a foreign country. HERSHEY, supra note, at 239. Thus, at least in the time before the UN Charter, the use of force to protect nationals should be discussed within the category of self-defense. 74 THOMAS & THOMAS, Id. 75 Id., at 307-8.
159 76 danger of injury to the lives or property of foreigners afford no grounds to use force.
Nevertheless, it seems that, before 1945, states had the right to use force to protect one's nationals abroad in case of an attack or imminent threat.
C. Force "Short of War" or "Interventions"
The definition of customary law Short of War had been very elastic and the categorization
varies by scholar. Some scholars used the term "interventions" instead of Short of War. 77
Nevertheless, the major patterns, or names, of the use of force based on the two
terminologies were almost the same: reprisal, pacific blockade, and humanitarian
intervention. On the other hand, another terminology, self-help, indicated the use of force
to secure legal rights of the state and includes the use of force Short of War except in a humanitarian intervention. 78
Reprisal
76 HERSHEY, supra note 72, at 239. 77 The term intervention came from the right of a state - in relations to the right of sovereignty, autonomy, or independence - and the term had developed toward non-interventionism: that a state should not intervene in the internal and external affairs of another state by force. However, in the early 20th century, states agree to the idea that things within a state is its own national concern and that as to such matters, no foreign power has any right to interfere unless it is requested to do so, is led to do so by special reason, such as granted by treaty, to protect nationals and property, to prevent humanitarian disaster, or was justified in international relations based on legal or moral grounds before 1945. See HERSHEY, id, at 235-45; THOMAS & THOMAS, supra note 72, at 55-64, 303-372. 78 Self-help regarded the use of force as a mode of judicial settlement. When a debtor state refuses or neglects to reply to an offer of arbitration, or after accepting the offer, prevents any "compromise" from being agreed on, or fails to submit to the award, a state could use its force up to Short of War because the Kellogg-Briand Pact prohibited the state to recourse to war to recover this right. BROWNLIE, supra note 7, at 48.
160 Reprisal was an action that a state undertook to redress an injury suffered, after an
unsatisfied demand, during a time of peace. It was an act that would normally be a violation of international law but was not regarded as such when it was done in response to
a prior unlawful act. 79 For example, intervention for the protection of a citizen's property abroad was accepted as lawful, 80 if the following conditions were met: intervention upon breakdown of a government in a state so that property of the citizen of the intervening state is destroyed or placed in danger; intervention to collect public or contract debts owed by a
. state to the citizens of the intervening state; and intervention in instances of expropriation or nat10na. 1·1zat10n . o f property. 81 The rules limiting reprisals were: (1) it should be in response to a previous act contrary to the law; (2) it should be preceded by an unsatisfied demand; (3) if the initial demand for redress is satisfied, no further demands may be made; and (4) the reprisal must be proportionate to the offense. 82 These principles had been confirmed through state practice such as the Naulilaa case, 83 the Tampico case, 84 and the
79 THOMAS & THOMAS, supra note 72, at 85. 80 The customary law on the use of force to protect property in a foreign country had been developed in the same context as the use of force for reprisal. See THOMAS & THOMAS, supra note 72, at 329. However, some scholars argued that the legality of the use of force to protect property is similar to that of the use of force to protect nationals. For example, Hershey and D 'Amato classify the use of force under the title of the use of force to protect nationals and property. Thus, they argued in favor of the lawfulness of the use of force to protect properties. See HERSHEY, supra note 72, at 239; D' AMATO, supra note 63, at 123. 81 THOMAS & THOMAS, id., at 334; OPPENHEIM, supra note 72, at 165b; HERSHEY, id, 261-4. 82 D' AMATO, supra note 63, at 125-6. 83 Delegates from the German colony of Southwest Africa went to visit members of the post ofNaulilaa, Portuguese colony, in Angola. They tried to discuss food supply; however, misunderstanding oflanguage
161 .C, • 85 Cor1u lllCl"d ent. Thus, although its legal status as a lawful use of force had been challenged before 1945,86 many contemporary scholars tendered that it could be lawful under except1ona. l circumstances. . 87
Pacific Blockade
Pacific blockade was invented to describe a naval blockade exercised by a state for
caused a threat, so Portuguese fired upon the German speakers and killed two. So Germany retaliated by sending troops to attack Naulilaa and other outposts. The issues went to three Swiss arbiters, and Portugal relied on a territory it had from 1915. The arbitrators asked the questions of"what is reprisal and were the actions-by both sides reasonable? As well as did they act on the law of nations by both sides and were they self-defense and enforcement action?" Then, the arbiters decided that "reprisals are acts of self-help of the injured State, acts in retaliation for un-redressed acts contrary to international law on the part of the offending State ... limited by considerations of humanity and the rules of good faith, applicable in the relations between States. They are illegal unless justified by a previous act contrary to international law. It is their object to impose on the offending States reparation for the offense, the return to legality or the avoidance of new offenses." Re-cited from SCHWARZENBERG ER, INTERNATIONAL LAW AS APPLIED BY INTERNATIONAL COURTS 261-2 (1949). 84 In 1914, a Mexican squad arrested at Tampico without cause a paymaster and two seaman of the U.S.S. Dolphin. The men were released shortly thereafter, and the head of Mexico's provisional government, general Huerta, made a personal apology. But the U.S. Admiral in the region also demanded that the Mexicans salute in a special ceremony carrying the U.S. flag and firing 21 guns. The Mexican governor expressed his regret, but the U.S. demand for a flag salute on Mexican soil was denied. Then President Wilson sent marines who landed at Vera Cruz and seized the customs houses. Wilson responded by dispatching a force of U.S. marines to the Mexican port of Veracruz, an action that led to the overthrow of Huerta. Wilson felt his actions to be justified but came under fire from European governments for his supposedly heavy-handed approach. Available at http://www.firstworldwar.com/atoz/tampico.htrn. 85 The Corfu Incident was a classic case of a reprisal that occurred in 1923. Greece and Albania were quarrelling over their boundary. The two nations took their dispute to the Conference of Ambassadors. Meanwhile the League of Nations had appointed a commission to determine the boundaries. Four Italian members of the commission were murdered on the Greek side of the border. Mussolini reacted violently, bombarding and occupying the Greek island of Corfu, demanding that Greece pay an indemnity. Greece protested to the League of Nations - which took up the case. The ambassadors put forth terms favourable to Italy, and as a result, Greece paid 50,000,000 lire directly to Italy. But the decision was internationally criticized because the Italian reaction did not constitute the requirements that lawful reprisal asked. D' AMATO, supra note 63, 128-9. 86 See BROWNLIE, supra note 7, at 222. In particular, the use of force to protect property rights was largely condemned. See THOMAS & THOMAS, supra note 72, at 339. 87 Reprisal was sometimes classified as acts of intervention, e.g. "interventions in the form ofreprisals are recognized as legitimate by general international law." THOMAS & THOMAS, id., at 88.
162 the purpose of bringing pressure to bear on another state without actual war. 88 Although
scholars were divided on whether any blockade could be pacifist in nature, 89 state practice
during the 19th century established that, if undertaken by way ofreprisal for prior illegal
offenses, a pacific blockade was often considered justified. 90 As a result of state practice,
customary law regarding pacific blockades against another included legal requirements
such as (1) declaration by competent authority, (2) institution after notification of the time
and place they were to take effect, (3) use only after failure of negotiations, (4) reasonably
effective and ( 5) not excessive. 91 In addition, in order to be binding against a third state, a
pacific blockade must be made in time of war and not in time ofreprisal.92
Humanitarian Intervention
Humanitarian intervention is the threat or use of force by a state, or states, primarily
for the purpose of protecting the nationals of the target state from widespread deprivations
88 Historically, pacific blockade described three classes according to the object with which they are entered into: reprisal, intervention, and suppression. ALBERT HOGAN, PACIFIC BLOCKADE 17 ( 1908). 89 The majority view was that a pacific blockade was characterized by the limitation that it could not be legally enforced against third states, and, contrary to the term "pacific," such blockades were illegal acts. OPPENHEIM, supra note 72, at 148. 9° For example, UK blockade of New Granada in 1837, French blockade of the Mexican ports in 1838, UK blockade ofNicaragua in 1844, UK, Austria, Germany, Italy and Russia blockade of Greece in 1886, British, Austro-Hungarian, French, German, Italian, and Russian blockade of Crete in 1897, etc. See ALBERT HOGAN, supra note 88, at. 73-149. 91 D' Amato, supra note 63, at 129. In addition, the Declaration of Paris of 1856 provided that Blockades, in order to be binding, must be effective-that is to say, maintained by a forge sufficient really to prevent access to the coast of the enemy. See Article 4, Declaration of Paris, avalable at http ://www.yale.edu/lawweb/a val on/la wofwar/decparis.htm. 92 D' AMATO, supra note 63, at 132.
163 of internationally recognized human rights. 93 The discussion of humanitarian intervention
can be traced back to Grotius under modem international law, 94 or even back to ancient
times. 95 In addition, state practice regarding humanitarian intervention can also be found
in the literature of scholars: during the 1820s, the UK, France, and Russia intervened in
Greece with military forces primarily provided by Russia to stop the Ottoman massacre of
Greek Christians; 96 in the 1860s, France intervened in Syria in response to the Turkish
massacres of Christians;97 in 1898, the U.S. intervened in Cuba to stop a humanitarian
disaster;98 in 1913, Greece, Bulgaria, and Serbia intervened in Macedonia to stop Turkish
massacres. 99 It is true that those uses of force were colored by a humanitarian nature; the
humanitarian disasters ignited the use of force, and states hinged their legitimacy on
humanitarian intervention. Thus, humanitarian intervention seemed to be one of many
putative rules governing the use of force before 1945. However, it should also be noted
that there were many challenges in contending the legitimacy of humanitarian intervention
93 SEAN MURPHY, HUMANITARIAN INTERVENTION 11-2 (1996). 94 Grotius subscribed to the principle that every human society and its law are limited by a universally recognized principle of humanity, and if a government violates the rights of humanity, the rights of intervention may be lawfully exercised. DUNNING, POLITICAL THEORIES FROM LUTHER TO MONTESQUIEU 55 (1905). 95 MURPHY, supra note 93, at 33-64. 96 OPPENHEIM, supra note 72, at 194. 97 BROWNLIE, supra note 7, at 340. 98 MURPHY, supra note 93, at 55-6. 99 Id., at 56-7.
164 and whether it ever existed as customary international law before 1945. State practice,
although it had the character of humanitarian purpose on the surface, had contended that the
nature of intervention was, in fact, a pretext to war. Under the view of those who are
skeptical about the humanitarian intervention, the three powers intervention in Ottoman
Greece in the 1920s was caused by the desire to eliminate an impediment to European
commerce; 100 the innocence of Christians during France's intervention in Syria was in
doubt; 101 the U.S. intervention in Cuba was challenging Spanish domination in Cuba; 102
and finally, the Bulgarian intervention was politically tainted. 103 Moreover, humanitarian intervention was used as a pretext forwar when Japan invaded China and Italy invaded
Ethiopia in the 1930s. 104 True, these uses of force had an ambiguous nature and were hardly considered a true humanitarian intervention in purpose or nature.
Thus, writers on international law usually state that such a right does or does not exist, depending on their particular approach to the general question of international law. As
Professor Thomas wrote, three contending views had existed before 1945,
100 MURPHY, supra note 93, at 53. T. Franck & N. Rodley, After Bangladesh: The Law ofHumanitarian Intervention by Military Force, 67 AM. J. INT'LL. 275, 277-95 (1973). 101 Franck & Rodley, id, at 282. 102 MURPHY, supra note 93, at 55-6. 103 Id, at 57. 104 Id.
165 Those viewing it from a strictly pragmatic platform arrive at the conclusion that each nation is
completely sovereign and that international law deals solely with external relations between the states
in which the individual per se has no part, hence humanitarian intervention is outside the scope of
international law. Those who view international law as an inter-social law arrive at the opposite
conclusion, stating that the family of nations must be concerned with the life and experiences of the
private individual in his relationships with the state of which he is a national. A third point of view
straddles the question altogether, declaring that humanitarian intervention is above and beyond the
domain oflaw, but that it may be morally right and even praiseworthy to a high degree. 105
In sum, although some scholars asserted that states had a right to intervene in other
states to stop humanitarian crises, the legality of a humanitarian intervention remained
uncertain at a time even before 1945,
105 LAWRENCE, PRINCIPLES OF INTERNATIONAL LAW 129 (1923), re-quote from THOMAS & THOMAS, supra note 72, at 372. Professor Hershey supported humanitarian intervention based on moral ground. See HERSHEY, supra note 72, at 239-40.
166 VI. The UN Charter and the TransitiQn of the Putative Rules
1. The United Nations, the Outcome of Evolutional Thinking
A. The Evolution of International Organization to Maintain Peace and Security
The creation of the UN was also the result of the evolution of the }us ad bellum before
World War II. As an international organization dealing with international security and stability, the UN can be traced to the Concert of Vienna, the Hague Conventions, and the
League of Nations. The history of international organizations shows the progression of the evolving idea and the result of it, the United Nations.
The first was the experience of the Concert of Europe: · Lessons as to the most effective way to organize and conduct multilateral diplomatic meetings learned in the
Concert of Vienna subsequently served as guidelines for the organization of inter- governmental meetings held within the framework of the Concert of Europe. Although the Concert did not have a formal constitutional foundation, the Final Act of 1815, as well as many other multilateral treaties and declarations, laid the cornerstones for the first multi- functional system of international organization. Its structure was flexible and it was continuously adapted to the changing needs and to changes in the system's context. 1
I Jean Siotis, The Institutions ofthe League ofNations, in THE LEAGUE OF NATIONS IN RETROSPECT
167 The next stage of the Concert of Vienna was the Hague Conventions. The discussions in this direction were held in multinational conferences for discussing international security matters, i.e. the Congress of Paris (1857), the Berlin Congress (1878),
and the two Hague Conferences (1899 and 1907). We should note that during the lifetime of the Concert of Europe (1815-1914) more than 60 multilateral meetings were held, which were entitled Congresses, Conferences, or Conferences of Ambassadors. 2 Finally, the
Hague Conferences were the first meetings with participating states from outside of Europe.
The presence of the United States, several Latin American countries, China and Japan were evidence of the expansion in the direction of universalism of the Concert's structure and functions. 3 Although the Convention did not produce any significant treaty in relation to the }us ad bellum, it provided invaluable rules regarding thejus in be/lo, and, most of all, the success of the Convention was the harbinger of the coming League of Nations. Thus, this study found that the basic rules for the conduct of multilateral diplomatic relations were progressively codified over the course of the nineteenth century.
The third stage was the experience of the League of Nations. After World War I, the
(organized by The United Nations Library and the Graduate Institution of International Studies in Geneva, 1983), at 20-1. 2 The Conferences of Ambassadors were always of a limited composition and they were convened normally to deal with issues relating to the Ottoman Empire or other extra-European problems. Id. 3 Id.
168 international community came up with a powerful, from the view of the time, international
organization that would monitor international security matters. The League was the first
standing international organization for maintaining peace and security in the world. The
main branches of the League were the General Assembly, the Council and the Secretariat.
The General Assembly, which met once a year, consisted ofrepresentatives of all the
member states, and decided on the organization's policy. The Council included four
permanent members (Britain, France, Italy and Japan, and later Germany in 1926) and four
others elected by the General Assembly every three years, and had the authority to deal
with any matter affecting world peace. The Secretariat prepared the agenda and published
reports of the meetings.4 In addition, the League had other institutions that played an
important role in pursuing its purpose, such as the Permanent Court of International Justice
(PCIJ),5 Disarmament Commission,6 Refugees Commission,7 the Health Organization,8
4 Each member was represented and had one vote in the League Assembly. Individual member states did not always have representatives in Geneva. The Assembly held its sessions once a year in September. The Council met on average five times a year, and in extraordinary sessions when required. In total, 107 public sessions were held between 1920 and 1939. The staff of the League's secretariat was responsible for preparing the agenda for the Council and Assembly and publishing reports of the meetings and other routine matters, effectively acting as the civil service for the League. 5 The PCIJ was the judicial branch of the League of Nations, but it was not subordinated but independent from the League of Nations. GARYB. 0STROWER, THE LEAGUE OF NATIONS FROM 1919 TO 1929 110 (1996). 6 The Commission obtained initial agreement by France, Italy, Japan, and Britain to limit the size of their navies. However, the United Kingdom refused to sign a 1923 disarmament treaty, and the Kellogg-Briand Pact, facilitated by the commission in 1928, failed in its objective of outlawing war. However, it had been years of wasted effort and failed to halt the military buildup during the 1930s by Germany, Italy and Japan. Id, at 71-5. 7 World War I dislocated as many as three million people. The Commission oversaw the repatriation and,
169 the International Labour Organization,9 etc. These institutions were also the result of the
evolution of international efforts in each area. For example, the PCIJ also had its roots in
the prewar period, particularly the Hague Conference which established an international
mechanism for arbitration of disputes; the League's Health Organization was the successor
of the International Health Office in 1907, and the ILO owed its birth to a Swiss based
group called the International Association for Labor legislation. 10 Most importantly, the
experience of failure and success became the foundation of the United Nations. Several of
these institutions were transferred to the United Nations after World War II such as PCIJ,
· ILO,' the Health Organization, which was restructured as the World Health Organization.·
In sum, just like the League, the UN was not a complete innovation but was the outcome of
evolutional thinking regarding international organization.
B. Charter's Jus ad Bel/um Provisions, the Result of the Evolution
The UN Charter, the only treaty that deals with the legality of the use of force, articulates
when necessary the resettlement, ofrefugees and ex-prisoners of war. It established camps in Turkey in 1922 to deal with a refugee crisis in that country and to help prevent disease and hunger. It also established the Nansen passport as a means of identification for stateless peoples. Id, at 96-8. 8 This body focused on ending leprosy and malaria, the latter by starting an international campaign to exterminate mosquitoes. The Health Organization also succeeded in preventing an epidemic of typhus from spreading throughout Europe due to its early intervention in the Soviet Union. Id, at 101-4. 9 This body successfully banned the addition of lead to paint, and convinced several countries to adopt an eight-hour work day and forty-eight-hour working week. It also worked to end child labour, increase the rights of women in the workplace, and make shipowners liable for accidents involving seamen. Id, at 108-9. 10 Id. at 108.
170 three major principles related to the use of force: the non-use of force principle of Article 2
(4), self-defense of article 51, and the authorization of the Security Council of Chapter
VII. 11 This jus ad bellum system of the Charter was also the result of the development of pre-existing rules. Customary norms of self-defense had been developed through state practice and became a foundation of Article 51 of the UN Charter. Article 2 (4) of the
Charter was also a magnification and a strengthened version of the Article of the Covenant of the League of Nations. Finally, the strong collective security measure of the Security
Council also came from the lesson of the failure of the Council of the League of Nations. ·
The Charter was the result of the evolution of the international legal regime for the peace and security of the world, which had suffered massive atrocities during the world wars and many small military conflicts before and between the world wars.
Prohibition of Unilateral Use ofForce in Article 2 ( 4)
Granted, the text of Article 2 (4) contains strong language prohibiting the use of force.
The drafters of the UN designed a system where, ideally, conflict between nations has to be
11 Although the Charter mentions other ways of using force such as "collective use of force before the Security Council is functional" in article 106, and "force against 'enemy' states" in article 107, these provisions were provisional for the immediate aftermath of World War II and practically dead after the disposition ofit. See ANTHONY CLARK AREND & ROBERT J. BECK, INTERNATIONAL LAW AND THE USE OF FORCE 132-3 (1993).
171 solved through peaceful measures, 12 and, although there is a debate concerning the interpretation of Article 2 (4), it is indisputable that Article 2 (4) sets the most fundamental, non-use of force principle. The exceptions are those in the Charter itself, self-defense and the authorization of the Security Council, and, as some argue, those that do not infringe on the purpose of the Charter.
However, it should be noted that the Article was not unprecedented; rather, it was the result of the evolution of previous thinking. As noted, Article 10 of the Covenant of the
League of Nations stated the general principle prohibiting aggression:
The Members of the League undertake to respect and preserve as against external aggression the
territorial integrity and existing political independence of all Members of the League. In case of any such
aggression or in case of any threat or danger of such aggression the Council shall advise upon the means
by which this obligation shall be fulfilled. 13
Although the Covenant did not prohibit the use of force, 14 it stated the duty of not committing aggression; territorial integrity and political independence were the prime
12 IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES, 113 (1963). 13 Article 10 of the Covenant of the League of Nations, available at http://www. yale. edu/la wweb/a valon/leagcov.htm. 14 Interestingly, this provision was also a source of debate regarding whether a state had a right to intervene to protect territory or independence of another state against internal attack, i.e. against revolutionary forces within that state. F. S. NORTHEDGE, THE LEAGUE OF NATIONS: ITS LIFE AND TIMES 52 (J 986).
172 examples in deciding the external aggression. This so-called "principle of non-
intervention" was based on the concept of respect for the territorial sovereignty of states
and was seen as a part of customary international law of the time. 15 In addition, the question remained whether the term "territorial integrity and political independence" in the
Covenant meant categorical prohibition of the use of force. 16 The Geneva Protocol and the Kellogg-Briand Pact also provided evolutional thinking of the international community and acted as a precedent for Article 2 (4). Even before World War II, states showed their increasing interest to prohibit unilateral use of force, and crystallized the idea when they met at the San Francisco Conference. In this regard, Article 2 (4) of the Charter was never an innovative idea. Although the language of the Article used stronger terms than previously used, it was a reflection of the evolution on the respect of state sovereignty and non-intervention principles.
Collective Security by the Security Council in Chapter VII
15 BROWNLIE, supra note 12, at 113. 16 Hans Kelsen commented that territorial integrity and political independence can be violated by means other than aggression. He made an example in that, A leases territory to B, and upon expiration B refuses to leave. Then does A have a right to attack B in order to get back its territory? Kensen explains that A's aggression would be to re-establish territorial integrity, and thus not be in violation of Article 10 of the Covenant. See Han Kelsen, Legal Technique in International law, IO GENEVA STUDIES, No. 6 ( 1929), re-cited from D'AMATO, INTERNATIONAL LAW SOURCE Vol. III 347 (1995).
173 Chapter VII of the UN Charter, entitled action with respect to threats to the peace,
breaches of the peace, and acts of aggression, gives the Security Council authority to
determine what measures should be employed to address acts of aggression or other threats
to international peace and security. 17 It should be noted that the collective security system
of the Charter was also the result of reflection on the lessons learned before 1945 through
the failure of the League of Nations and customary law collective intervention.
The provisions in the League Covenant provided sanctions against the aggressor with the object ofreinforcing the provisions for peaceful settlement. But, regarding
international peace and security, the Covenant was tentative and modest; the decisions of the League bodies were basically recommendations only and carried no binding force, and
states were not obligated to participate in the sanction. 18 The League was not based on a
17 The Security Council must first, in accordance with Article 39, determine the existence of a threat to the peace, breach of the peace, or act of aggression. Then, it has the power under Article 41 to employ measures short of force, including a wide variety of diplomatic and economic sanctions against the delinquent State, to compel compliance with its decisions. If those measures are inadequate, the Security Council has the power to authorize member States to employ military force in accordance with Article 42 and 43, which envisage the collective use of force. Article 42 sets the parameters for collective measures, including the development of military forces. Under article 43, such forces are to be committed by member states to the service of the Security Council. The Security Council must, however, act consistently with the purposes and principles of the Charter. FRANCK THOMAS, RECOURSE TO FORCE 2 (2002). 18 See article from 11 to 17 of the Covenant of the League of Nations, available at http://www.yale.edu/lawweb/avalon/leagcov.htm. Especially, article 16 and 17 have the most importance. If conflicting parties, whether they were member of the League or not, accept the invitation to apply the decision of the League, the Council shall immediately institute an inquiry into the circumstances of the dispute and recommend such action as may seem best and most effectual in the circumstances. If a State so invited refuses to accept the obligations of membership in the League for the purposes of such dispute and resorts to war in defiance of a report on their dispute by the Council, or the Assembly, the state is deemed to be in default under the Covenant and could be subject to sanction.
174 super state concept, and thus, when the leaders of allied powers met at Dumbarton Oaks,
Washington D. C., they planned a stronger successor to the League. 19 The idea which
inspired them was that the League had failed because it was not a super-state, and that
something like a super-state would have to be created to stop aggressor states as strong as
Nazi Germany. Consequently, they gave much broader power to the Security Council to
overawe aggressors.
On the other hand, the idea of collective security can be found in customary
international law. Although the force ofnumbers did not give multi-states a greater right
ofintervention than was given to a single state, collective intervention was considered in that "it might be more unselfish than intervention by a single, and accordingly it might be eyed by the rest of the nations with less disapproval."20 Moreover, the use of force based on collective security was considered lawful when a group of states organized into an international community by multilateral treaty, and in that treaty each state grants the right of intervention in certain circumstances.21 In fact, this type of intervention was a sort of collective system that operated by intervention by invitation based upon treaties. Under
19 NORTHEDGE, supra note 14, at 51. 20 Ronald F. Roxburgh, The Sanction ofInternational Law, 14 AM. J. INT'L, L. 26 (1920). 21 See Charles Frenwick, Intervention: Individual and Collective, 29 AM. J. INT'L, L. 645-63 (1945).
175 the customary international law before 1945, the use of force by invitation or treaty was
considered lawful.22 A treaty may contain an invitation to send its troops,23 and the
legality of the use of force pursuant to the treaty, is considered lawful, as an invitation. 24
The UN Charter is also a treaty based on a collective security system. Accordingly,
although the old customary collective intervention was not eventually considered lawful,
the idea seeking the legality of the use of force through collective action probably affected
the establishment of a stronger collective security system of the UN.
Self-Defense in Article 51
Article51 of the Charter provides that when a state experiences an armed attack, that
state retains an inherent right to defend itself until the Security Council is able to take
action, and that state is required to report such action immediately to the Security Council.25
Self-defense, as noted in the text of Article 51, is the "inherent right" of a nation to deter
22 If state A sends its troops into state B at the request of the government of B, and its troops carry out military activities, the use of force could be lawful. However, it should be noted that the use of force by the invitation of another state should not be caused by forcible measure, such as threat to government officials, which is in violation of the UN Charter. In addition, state A, in responding to the invitation of state B, must not commit any illegal act against B. ANTHONY D'AMATO, INTERNATIONAL LAW AND POLITICAL REALITY Vol. I 136 (1995). 23 For example, the treaty of 1903 between the U.S. and Cuba has an amendment which stated "the government of Cuba consents that the U.S. may exercise the right to intervene for the preservation of Cuban independence, the maintenance ofa government ... " See Article III of the Treaty between the U.S. and Cuba of 1903, available at http://www.historyofcuba.com/history/havana/treaty.htrn. This Article was abrogated in 1934 when President Roosevelt adopted the Good Neighbor Policy. 24 Id. 25 AREND & BECK, supra note 11, at 31.
176 aggression from a foreign nation.26 It is generally recognized as one of the basic rights of
a sovereign nation, and has developed as customary intemational law. 27 Although the
concept was confused with self-preservation before the Kellogg-Briand Pact, it became
clearer during the 1930s28 that the right of self-defense was essentially a reaction by a state
against the use or threat of force by the armed forces of another state, when the customary
norm in relation to self-defense created a presumption that force was lawful as a reaction
against force, and the essence in exercising such a right was proportional to the threat
offered. 29 Thus, article 51 of the Charter was also not a novel idea. Rather, it was the
reflection of the customary norm that developed continuously before World War II. 30
2. Theoretic Approach to the Charter's Adoption of Old Putative Rules
Although the UN Charter, since its adoption, has provided the single most important rule in
26 CHRISTINE GRAY, INTERNATIONAL LAW AND THE USE OF FORCE 84 (2002); AREND & BECK, supra note 11, at 31. 27 As noted, the principle of self-defense had been developed and already established as a principle in the customary international law before the draft of the UN Charter. Self-defense had already been noticed as a customary law in state practice and by scholars of the period. It became more defined by Webster in the Caroline case. Webster used the phrase " ... necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation." Letter from Daniel Webster to LordAshburton (August 6, 1842), re-quoted in Miriam Sapiro, Agora: Future Implication ofIraq Conflict, 97 AM. J. INT'L. L. 599 (2003), original quote in Joi-IN B. MOORE, A DIGEST OF INTERNATIONAL LAW 421 (1906); see also BROWNLIE, supra note 12, at 240. 28 It has said that, in early stage, self-defense was confused with self-preservation, as a synonym, and hence included the redress of wrongs, i.e. the defense ofrights. Thus, when states became a member ofKellogg Briand Pact, they made broad reservations on the vague right of self-preservation. BROWNLIE, Id, at 241. 29 Id, at 252. 30 Although there was a controversy regarding the definition of self-defense in the Article 51, whether it contains the anticipatory norm that existed in customary law, it will be discussed in the following section.
177 deciding the legality of the use of force, it failed to notice or comment on the pre-existing rules regarding the use of force such as the Covenant of the League of Nations, the
Kellogg-Briand Pact, and customary law Short of War. The general absence of references raises a question regarding the rules as to whether they were ruled out by tacit mutual consent.31 Scholars have suggested different views; however, based on the discussion regarding the permissive interpretation of Article 2 ( 4), this study takes the view that the old customary law can be considered lawful under the UN Charter if it is compatible with the purposes of the UN Charter.
Putative rules regarding the use of force had been argued before the UN Charter, and, even under the UN Charter, substantial doubt was cast upon· the older rules supporting the legality of the use of force Short ofWar.32 There were too many putative rules concerning the use of force throughout human history, and many of them were in fact nothing but a pretext for war, and never accepted as a law. Traditionally, if a putative rule is to be accepted as a genuine law, it should receive either expressed consent or implicit acquiescence by states. However, without such a treaty or customary law, putative rules
31 BROWNLIE, supra note 12, at 114. 32 Since the legality of the customary Short of War before 1945 has been challenged, this study names the rules which existed before the UN Charter "putative."
178 were quoted as international law, and this is another source of confusion in defining the jus ad bellum before the UN Charter.
Although the Charter did not comment, even in its travaux, on the legality of the old rules, the question is essential to the debates on the interpretation of Article 2 (4). If the
Charter intended to prohibit the old rules regarding the use of force except self-defense, the old customary rules were ruled out by the Charter because states' obligation under the
Charter prevails over the states' obligation under other international agreements.33
However, if the Charter did not prohibit old rules, the rules can be said to have survived the
Charter- in this case, only rules that do not conflict with the provisions of the Charter can be considered lawful because the legality of those rules should be filtered by the Charter.
Scholars have provided three different theories: 1) the Charter's desuetude of former rules; 2) the Charter's assimilation of former rules; and 3) the Charter's co-existence with former rules. The first argues that the UN Charter decimated pre-existing rules, especially customary law Short of War, except in self-defense. If one understands that Article 2 ( 4) of the Charter categorically prohibited other uses of force except in the collective security
33 Article 103 of the UN Charter provides that "In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail."
179 action in Chapter VII and self-defense in article 51, the old rule that includes other
justifiable uses of force was prohibited at the time a state became a member of the UN. 34
This approach can be found in the Judge Jennings' opinion on the Nicaragua Case. He
commented that the International Court of Justice did not have to examine customary law
governing the use of force because of states' obligation under the UN Charter. Since
states' obligation under the Charter precedes any right, he commented that customary law
governing the use of force is ruled out by the Charter. 35 Under this view, there is no
problem in relation to the legal justification of the use of force based on old customary
norms; they are simply illegal after the inauguration of the United Nations.
The second view argues that, whether or not the Charter ruled out old customary law
governing the use of force, the contents of the customary law itself had already changed,
heading towards the same c.ontents that were provided in Article 2 ( 4) of the Charter. As a
result, the UN Charter reflected all pre-existing customary international laws governing the
34 Judge Sir Robert Jennings denied the existing of customary law governing the use of force on the ground that there was 'no room and no need for the very artificial postulate of a customary law paralleling these Charter provisions." He argues that, based on Article 2 ( 6) of the UN Charter, states, including non-member · states of the UN, would be bound by the Charter's provision. ICJ REPORT, Nicargua Case (1986), at 531, available athttp://www.icj-cij.org/docket/files/70/6525.pdf (last visited on April 23, 2007). Article 2 ( 6) of the UN Charter provides that "The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security." Available at http://www.un.org/aboutun/charter/ (last visited on April 23, 2007). 35 Id.
180 use of force. This view argues that, based on the legal materials and the diplomatic correspondence of the years between 1928 and 1939, nearly every government in existence had at some time stopped itself from denying the illegality of resorting to force except in self-defense.36 This view argues that the Kellogg-Briand Pact prohibited Short of War except in self-defense, and effectively worked in international relations and was supported by a considerable amount of state practice and by other treaties. 37 Professor Brownlie argues that, because the Kellogg-Briand Pact and state practice after the Pact ruled out the customary law Short of War, the matter is focused on the Charter's effective adoption of the
Kellogg-Briand Pact.38 As a result, this view holds that customary law justifying Short of
War became obsolete even before 1945, and Article 2 (4) in this context is simply the codification of customary law at the time.
The third theory argues that the UN Charter, a treaty, did not affect the existence of customary international law and thus, it regulates only what it actually provides. This view argues that, because the Covenant and the Kellogg-Briand Pact did not explicitly prohibit customary law governing the use of force, the use of force Short of War - or
36 BROWNLIE, supra note 12, at 108. 37 Id, at 80-111. Professor Brownlie provided various diplomatic declaration and treaties such as the Chaco Declaration of 1932, the Anti-war Treaty ofNon-Aggression and Conciliation of 1933, Seventh International Conference of American States of 1933, Inter-American Conference for the Maintain of Peace of 1936, etc. 38 Id., at 224, 231-57.
181 interventions -had not been conclusively established as illegal before 1945. Thus, the
pre-existing customary law could survive the Charter if it does not conflict with the
provisions of the Charter. However, under this view, there is a need to clarify which
customary Short of War can be compatible with the UN Charter and which standard can be
applied to distinguish the illegal from the legal use of force. 39 Professor Reisman argues, based on this assumption, that the use of force to protect nationals in a foreign country and humanitarian intervention can be lawful.40 True, based on their interpretation of Article 2
( 4), scholars have shown differening views regarding the legality of the use of force on a. case by case basis.
This study found, by the examination of travaux of the Charter, that the drafters did not intend categorical prohibition of the use of force. This means that the UN Charter did not flatly abandon old putative rules; rather, it left room for the development of putative rules using the standard of being compatible with the purposes of the UN. Thus, the putative rules could exist as lawful after the establishment of the UN, if the rule did not conflict with the purposes of the Charter. In this regard, this study has the same result as
39 Professor D'Amato provides a few standards: the loophole in self-defense, armed attack, and the purposes of the UN Charter of Article 2 (4). D'AMATO, supra note 22, at 131. 40 But he did not specifically make clear whether the old customary law contained humanitarian intervention and the rule survived the Charter. W. Michael Reisman, Criteria for the Lawful Use ofForce in International Law, 10 YALE J. lNT'L L. 278 (1985).
182 the third view; however, because this study respects the superiority of the UN Charter, the
basic constitution of the theory differs from the third view.
3. The Transition of Old Putative Rules into the UN Charter
Even if Article 2 (4) did not categorically prohibit the old rules, a question still arises as to which old rules were accepted or rejected. Based on the permissive interpretation of
Article 2 (4), this study found that some legal justifications in the customary law, such as anticipatory self-defense, the use of force to protect nationals in a foreign county, and humanitarian intervention, could be consistent with the Charter and could survive the
Charter. In contrast, the cooling off period in the Covenant of the League of Nations, customary rights of state recourse to war such as reprisal, and pacific blockade fell into desuetude by the UN Charter. These uses of force were not consistent with the purposes of the UN Charter and thus became unlawful under the Charter's regime.
A. Putative Rules that were Ruled Out by the UN Charter
The Cooling OffPeriod in the Covenant ofthe League ofNations
The UN Charter did not provide a cooling off period as a procedural limitation for the use of force. Rather, Chapter VII of the Charter gives stronger authority to the Security
Council to solve the problem, and the use of force not provided by the Charter became
183 illegal with no time limitation. Since the UN was an institution to guarantee a peaceful
world without wars, it is not compatible with the procedural measures based on the
permisssion of war. Thus, the cooling off period under the League of Nations was ruled
out by the UN Charter.
Reprisal
Subsequent to the establishment of the UN, it seems that reprisals can no longer be
considered lawful. Article 1 (1) and Article 2 (3) of the Charter provided for peaceful
settlements of international disputes, and under Article 33 (2), the Security Council may
-"call upon" parties to do so. 41 Even under the permissive interpretation of Article 2 (4),
the use of force cannot be lawful because the Charter did not provide protection of legal rights in its purposes. Even if the Charter provided the protection of legal rights in its
purpose, considering strong prohibition of the use of force in the international relations, it might not be strong enough to guarantee the right to use force. This prohibition has been confirmed by subsequent state practice and judicial proceedings. As an authoritative interpretation, the ICJ itself stated the unlawfulness of armed reprisals in its judgment of
41 Article 1 (1) of the UN Charter provides that "To maintain international peace and security, and to that end ... to bring about by peaceful means ... "; Article 2 (3) provides that "All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered"; Article 33 (2) provides that "The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means." Available at http://www.un.org/aboutun/charter/.
184 the Corfu Channel Case. In this case, the ICJ declared that the UK's "Operation Retail" was inadmissible because it was contrary to international law as a form of forcible self-help to obtain redress for rights already violated and thus "the British Navy constituted a violation of Albanian sovereignty."42 Further, on October 34, 1970, the General Assembly also formulated, in its Resolution 2625, a blanket prohibition permitting no exception to reprisal.43 Thus, it seems that customary law regarding reprisal had been ruled out by the establishment of the Charter, and many scholars are in harmony with this view. 44
Pacific Blockade
The legality of pacific blockades was seriously challenged even before 1945. The
Definition of Aggression (1933) defined aggression to include naval blockade,45 and states cast doubt on the legality of a pacific blockade when Japan blockaded the Chinese coast in
1937.46 In addition, customary law with respect to pacific blockade was a sort of reprisal and did not pay attention to the purpose of the use of force. Thus, pacific blockade is
42 ICJ Report, The Corfu Channel Case: Merits (1949), at 35. Available at http://www.icj cij.org/docket/files/1 /1645 .pdf. 43 The resolution provides that "states have a duty to refrain from acts ofreprisal involving the use of force." Robert Barsotti, Armed reprisals, in THE CURRENT LEGAL REGULATION OF THE USE OF FORCE 80 (A. Cassese ed., 1986). 44 D'AMATO, supra note 22, at 127. 45 Article 2 ( 4) of Convention for the Definition of Aggression, available at http://www.letton.ch/lvx 3 3 da.htm. 46 BROWNLIE, supra note 12, 224.
185 hardly compatible with the text of Article 2 ( 4) and was ruled out by the Charter.
B. Putative Rules that Survived the UN Charter
Anticipatory Self-Defense
As noted, the intention of the delegations of the U.S. and other sponsoring powers
shows that one of reasons for drafting Article 2 (4) in a permissive way was to respond to
imminent threat, if the Security Council falls into deadlock.47 In addition, Article 51 of
the UN Charter, which guarantees the right of self-defense in case an "armed attack
occurs," seems to be drafted under the assumption that anticipatory self-defense is
implicitly included in Article 2 ( 4). Thus, anticipatory self-defense in the customary law
not only survived the UN Charter but is also included in Article 2 (4) of the UN Charter.
However, it should be noted that the legality of the use of force for anticipatory self-defense
was not automatically granted. The drafters thought that, unlike in the case an "armed
attack occurs," the legality of the use of force would be later decided by the Security
Council. Thus, until the Security Council makes that decision, the legality of the use of force remains unanswered.
The Use ofForce to Protect Nationals
47 See supra Chapter IV, Section 2.
186 It is uncertain whether the use of force to protect nationals was ruled out by the UN
Charter. Under the Charter, the rights of aliens were assumed to be protected under the
term "human rights and fundamental freedoms,"48 but the legal liability of states who
transgress these rights is not mentioned. The Charter neither places legal duty on the
government to guarantee the rights of foreigners which it declares individuals to possess,
nor does it provide legal remedies to be employed in the case of violation of rights. 49
Unlike anticipatory self-defense, no discussion has been found regarding the legality of the
use of force to protect nationals during the Dumbarton Oaks and San Francisco Conference,
including the discussion between the sponsoring powers. so The question, whether the
Charter permits use of force to protect this purpose was unanswered at the time the Charter
was drafted. However, since this study found that the use of force consistent with the purposes of the Charter was not categorically prohibited and the protection of nationals is included in the purposes of the Charter, the use of force to protect nationals in customary
48 Article 1 (3) of the UN Charter provides that one of the purposes of the UN is "to achieve international cooperation ... in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion." 49 ANN VAN WYNEN THOMAS &A. J. THOMAS JR., NON-INTERVENTION: THE LAW AND ITS IMPORT IN THE AMERICA 310 (1956). 50 Thus, controversies arose whether the Charter intended to rule out old customary law that permits states to use force to protect nationals. From the categorical prohibition point of view, the use of force should be illegal although it protects the fundamental rights of their own nationals even if force is used as a last resort. On the other hand, from a permissive interpretation, force can be lawful ifit is intended to protect nationals and if force is exercised as a last resort.
187 law was not, theoretically, ruled out by the UN Charter. If there is use of force for this purpose; the legality of the use of force should be decided by the Security Council and, until the time of decision, the use of force remains unanswered.
Humanitarian Intervention
It is uncertain whether humanitarian intervention was ruled out by the UN Charter.
Granted, although the Charter does not define or specify what particular measures shall be taken to protect human rights, it provides a number of provisions to protect human rights and fundamental freedoms. 51 Thus, if the humanitarian intervention existed as lawful under the customary international law of the time, the proponents of a permissive interpretation of Article 2 (4) would argue that humanitarian intervention could be lawful because the protection of human rights is not inconsistent with the purposes of the UN.
However, like the use of force to protect nationals, no intention of drafters has been found regarding the legality of humanitarian intervention. Thus, theoretically, humanitarian intervention in the customary law was not ruled out by the UN Charter, but if there is a use
51 For example, in the preamble, the Charter affirms "faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small." Article 1 (3) states that it is a purpose of the United Nations "to achieve international cooperation ... in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion." Article 13 (1) b. empowered the General Assembly to assist" ... in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion." In addition, the idea to protect human rights is found at Article 55, 56, 62, 76, etc.
188 of force for this purpose, the legality of the use of force should be decided by the Security
Council and, until the time of decision, the use of force remains unanswered.
In sum, much of the incorporations of old putative rules into the UN Charter are
controversial and are still in question. These rules were in fact uncertain for a long time
after the UN Charter, and remain controversial even today. However, some patterns of use
of force, on the other hand, were clearly ruled out and became obsolete because of the
appearance of the UN Charter. They are self-help as reprisal, the use of force to protect
property rights, pacific blockade, and procedural constraints such as a cooling off period.
Other uses of force in the customary law, such as anticipatory self-defense, the use of force
to protectnationals, and humanitarian interventions, remain controversial but were arguably
not ruled out by the Charter.
(
189 VII. Evolution under the Charter system
1. Question regarding New Customary Law over the UN Charter
Customary law is an international custom, as evidence of a general practice accepted as a source of international law, and thus, if there is a general practice regarding the use of force, with opinio Juris, the state practice can be lawfully established as a customary law.
However, because of the superiority of the Charter over other international laws, a question may arise as to the legitimacy of new customary law if it is in conflict with the Charter.
So far, three groups of scholars have tried to suggest answers to this question: opponents of new customary law, proponents of new customary law, and revisionists. However, they, in part, failed to provide the whole spectrum of the issue, and the legality of some putative rules remain uncertain. The answer to the question can only be found based on the permissive interpretation: new customary law can be established unless it is prohibited by the Charter, and because Article 2 (4) remained uncertain when it was drafted, new customary law governing the use of force can lawfully exist if it is consistent with the purposes of the Charter.
A. Legal Significance of the Issue
Under the traditional international law theory, custom, the result of consistent state
190 ( practice is an independent source of international law, and the customary international law
has been recognized by the Statute of the ICJ 1 and many international cases. 2 Scholars,
although there are conflicting views on the existence of customary international law,
generally recognize that customary law is a source of international law. 3
The two most important factors of customary law are state practice and opinio
juris.4 State practice is the decision and behavior of a state5 to be established as general
practice of states. To be called a general practice, state practice should accumulate in
international relations with uniformity and consistency for a certain amount of time, which
is called duration of practice. 6 Concerning opinio Juris, the practice should be recognized
as a legal norm by states. 7
I Article 38 (1) of the ICJ Statute provides that "the Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply ... (b) international custom, as evidence of a general practice accepted as law." Available at http://www.icj cij.org/icjwww/ibasicdocuments/ibasictext/ibasicstatute.htm. 2 See ICJ REPORTS, North Sea Continental Shelf Cases, North See Continental Shelf Cases (1969), available at http://www.icj-cij.org/icjwww/idecisions/isummaries/icssummary690220.htm. 3 For details, see Ernest A. Young, Sorting Out the Debate Over Customary International Law, 42 VA J. INT'L L. (2002). 4 This is the belief of the states that the practice is pursued as a matter of legal right or obligation, not mere comity or convenience. In the North See Continental Shelf Case, the International Court of Justice said: "Not only must the acts concerned amount to a settled practice, but they must also be such, to be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of the rule requiring it. The need for such a belief, i.e. the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitate." ICJ REPORTS, supra note 2, at 44, para 77. 5 The evidence of state practice includes: (a) Domestic law; (b) past practice; (c) court decisions; (d) administrative regulations; (e) acts/instructions for diplomats; (f) UN declarations; (g) widespread acceptance. Practice thus includes conduct (actions and statements). 6 For details, see Mark E. Villiger, Customary International and Treaty 3-63 (1985). 7 G. I. TUNKIN, THEORYOFINTERNTIONALLAW 124 (W. Butler trans., 1974).
191 The customary law development approach is, however, a controversial one. Many scholars questioned the legitimacy of customary law by contending the formation of opinio juris8 and its limited role under the current era of the treaty. 9 In particular, the biggest problem of customary law in relation to the use of force is located in the special status of the UN Charter, its supremacy. Although the UN Charter is merely one of many treaties, its status plays the supreme role among all existing treaties. Moreover, the Charter contains provisions to protect against tacit or expressed agreements from undermining its rules. 10 The Charter provides provisions to protect its supremacy in Article 103, where it articulates the priority of the obligation under the Charter. In addition, by providing the rules to change the provision of the Charter in Article 108 and 109, 11 the Charter seems not to permit informal changes of the provision. Accordingly, unlike other treaties, states take
8 States do not often provide the legal justification of their act. Whatsoever the reason, this practice makes the customary law hard to be established. MICHAEL GLENNON, LIMITS OF LAW, PREROGATIVES OF POWER 38, 77-8 (2001 ). 9 In the light ofICJ Statute article 38 I, the normative material for codification is customary law. Hence, the codification can be defined as the act, and the result of the recasting into the written form of a rule which exists qua customary law. Thus, Customary law would be less important if states codified an agreement governing the use of force because the nature of customary law is to fill a gap caused by no expressly written agreement between the states. See generally, A. W. SUTHOFF, INTERNATIONAL CUSTOMARY LAW AND CODIFICATION (1972). 10 Mary Ellen O'Connell, Taking Opinio Juris Seriously, in CUSTOMARY INTERNATIONAL LAW ON THE USE OF FORCE 21 (Enzo Cannizzaro & Paolo Palchetti eds., 2005). 11 Article 108 of the Charter provides that "Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council." In addition, Article 109 of the Charter provides detailed procedure for the Amendment. See Article 109 of the Charter, available at http://www.un.org/aboutun/charter/.
192 seriously the breach of the UN Charter, and are not likely to accept the rules that arise from the breach of the Charter.
Since the Charter, as a matter of principle, prohibits the use of force outside of the
Charter system, new customary law governing the use of force that is inconsistent with the
Charter inevitably results in a breach, or a change, of the Charter'sjus ad helium regime.
As noted, the Charter'sjus ad helium regime is constituted by three basic principles, general prohibition of the use of force in Article 2 (4 ), the authorization of the use of force by the Security Council in Chapter VII, and self-defense in Article 51. If a new customary law governing the use of force is established, it means a new legal justification for the use of force is provided in addition to the Charter. This provides a major problem in the discussion regarding the possibility of customary law governing the use of force, and whether a new state practice of the Charter should be considered lawful or an unlawful breach of the Charter.
B. Three Schools
Three schools of scholars can be found in connection with the customary law reflecting the Charter'sjus ad helium system: proponents, opponents, and revisionists.
The first school denies the possibility of new customary law governing the use of force
193 while the last two schools admit the authority of state practice although they differ in the
details regarding the extent to which state practice plays a role.
The first school rejects the view that a new customary norm- regarding the
provisions of the Charter - may be incurred through state practice. These scholars hinge
their view on several arguments. Some scholars have relied in part upon the Charter's
status as a constitutive treaty in asserting its immunity from substitution by subsequent
custom and states' willingness to abide by the Charter. Thus, they argue that state practice
contradicting the Charter merely means a breach of the UN Charter. Professor Henkin
argues that state practice is nothing but a reflection of the UN security system in that no
state has claimed the failure of the UN system and even states which arguably violated the
Charter's rules sought to bring themselves within those rules instead of asserting their
invalidity. 12 Thus, for example, acts of a state violating Article 2 (4) or other similar norms regarding human rights and world order would not modify those preexisting norms, and such violations should be treated as breaches of the pre-existing rules. 13 He also adds that acts inconsistent with the Charter lack the required element of opinio Juris since states
12 Louis Henkin, International Law: Politics, Values, and Functions, in RECUEILDES COURS, vol. 216 (1990), at 146 -9. 13 Oscar Schachter, Remarks, American Society oflntemational Law Washington D.C.: Proceedings of the 81 st Annual Meeting 159 (1990).
194 have not claimed to act under the authority of a new rule that is not prescribed in the
Charter. 14 Some commentators even view the Charter's jus ad bellum system as representing a kind ofjus cogens, which can be modified only by a subsequent international law norm of the same character. 15 The argument finds support in the American Law
Institute's restatement of"Some rules of international law are recognized by the international community of states as preemptory, permitting no derogation ... It is generally accepted that the principles of the UN Charter prohibiting use of force ... have the character ofjus cogens."16 Some have argued that the state behavior in question is properly viewed not as custom but rather as practice relevant to interpretation of the treaty. For example, Y.
Blum clearly rejects the possibility of modification of the UN Charter through state practice. 17 He examines the extent to which the practice of the UN may transform the
Charter and the procedural rules into something new. His contention is that "there is an important distinction between arguing that the practice of the parties can modify treaty rules, on the one hand, and arguing that such practice is relevant to interpreting treaty rules, on
14 Henkin, supra note 12, at 169. 15 Nash, Contemporary Practice ofthe United States Relating to International law, 74 AM. J. INT'LL. 418, 419-20 (1980); see also, YORAM DINSTEIN, WAR AGGRESSION, AND SELF-DEFENSE 98-103 (1988). 16 Restatement (Third), FOREIGN RELATIONS LAW AND THE UNITED STATES, Section 102 cmt. k. (1987). 17 See Frederic L. Kirgis, Jr., Book Review: Y. Z. Blum, Eroding the United Nations Charter, 88 AM. J. INT'L. L. 552-3 (I 994).
195 the other."18 Relying on the negotiation history of the Vienna Convention, he views the
former as impermissible.
The second school sees that customary law - through state practice - can be
developed under the Charter system, and the development does not necessarily mean the
death of the UN Charter. Professor Franck agrees - with some scholars from the first
School - that the UN Charter has a constitutional character. 19 However, he views that
international law governing the use of force still survives since state practice reflects the
Charter's norm, and even if there were some inconsistent state practices within the
Charter's provision, they did not reflect the death of the Charter, but reflected the evolvement of the Charter's security regime. 20 To make his case, Professor Franck illustrates examples such as ECOMOG's intervention in Liberia and Sierra Leone and
NATO's intervention in Kosovo. 21 In addition, Professor Stromseth also opens the possibility of new customary law by arguing that "the Charter itself, like the U.S.
Constitution, is a living document deliberately designed by its founders to have the capacity to meet new threats to peace and security, and there has been an evolution in the Security is Id. 19 Thomas Franck, Is the UN Charter a Constitution? in VERHANDELN FUR DEN FREIDEN 8 (Frowein, Scharionth, Winkelmann & Wolfrum eds., 2003). 20 Id. 21 Franck, supra note 19, at 11-2.
196 Council's interpretation of the rules that shows the ability of the system to adapt."22
Although these scholars do not argue that a customary rule can overrule the legal limits of
Article 2 (4), they, at least, seem to believe that a customary norm can be developed if it
complements uncertain areas that the Charter does not clearly provide. 23
The third school says that the Charter needs revision because state practice regarding
the use of force no longer represents the rule inscribed in the Charter. Professor Glennon
argues that the Charter's norm can be changed by subsequent state practice. 24 He opposes
every point that the first school suggests. He opposes the UN Charter's supreme status as
either a constitution since states would not have ratified the Charter if it was a
constitution. 25 He also opposes the idea that Article 2 (4) of the Charter is jus cogens
since the argument is problematic in that other articles of the Charter limit the Security
Council's power to use offorce,26 and even if Article 2 (4) is seen asjus cogens, anew
22 Jane E. Stromseth, Law and Force After Iraq: A Transitional Moment, in 97 AM. J. INT'L L 633 (2003). 23 Id. at 634. Professor Stromseth suggests that "while these ... developments show the capacity of the UN Charter regime to adapt and evolve, they also expose clear tensions in the system between key norms of the Charter - tensions between the Charter's human rights provisions and its norm of nonintervention, and tensions between the Security Council's failure to effectively enforce its own resolutions and the norms limiting unilateral resort to force. But the better response it not to cling to rigid conceptions of the UN Charter and declare the document dead, but rather to work, as Secretary General Kofi Annan has tried to do, to resolve and mitigate these contradictory pressures through careful evolution." 24 GLENNON, supra note 8, at 36-49. 25 Id., at 38-9. 26 Professor Glennon raises following questions: "Why are the Charter's limits on state power to use of force preemptory but not on the Security Council's power to do so? Why should the Charter's limits on the right of the Security Council to use force - set out in Article 2 (7) and 39 - not also be seen as }us cogens, since those provisions are, after all, part of the same regime for the centralization of power that subsumes Article 2 ( 4)?"
197 norm permitting the use of force - for example to stop internal genocide - would seemingly represent a norm of the same character. 27 Thus, he first argues that customary law can substitute the norm of the UN Charter, 28 and concludes that "even if one accepts the scholastic tenets of international law doctrine, custom can arise with respect to the same subject addressed by a treaty - even the UN Charter - and, if it is inconsistent, that custom is characterized as practice evidencing states' interpretation of the treaty, the effect should be the same: the practice controls."29 This approach led him to conclude the death of the
UN Charter because, in his view, state practice today does not reflect the Charter's jus ad· bellum regime. 30 Then he argues further that, because the Charter's regime is dead, it is time to establish a new rule, including revision of the Charter, which can reflect real state practice.
C. Permissive Interpretation Could Provide the Answer
Indeed, each school has its own rationale in explaining the nature of the Charter's
Id., at 42. 21 Id. 28 One distinctive argument of professor Glennon is that he puts more importance on the state practice itself than opinio Juris. He emphasizes the illusion of opinio Juris arguing that the notion of the international community's "intent" is pure fiction because states would not "fess up',. and acknowledge illegality when they act at odds with a disliked rule. Id. 29 Id. at 64. 30 Professor Glennon says recent history of state practice did not reflect the Charter's idea ... He used to make his point recent cases including 2003 Iraqi war, Kosovo intervention, etc. Id.
198 jus ad bellum regime; however, their view, in part, failed to represent the whole spectrum of
the issue. As seen in the Chapter III, state practice since 1945 shows that states
continuously used force in certain circumstances, and the use of force was not strongly
condemned by other states. Opponents of new customary law failed to explain these state
practices. On the other hand, proponents did not specifically explain the possibility of
new customary law under Article 2 (4). Thus, this issue is left open and uncertain.
Revisionists are logically consistent, and clearly understand the relations between the new
customary law and Article 2 (4 ). They argued in favor of new law because they believed
that Article 2 (4) can no longer provide effective law: However, the state practice
explained in Chapter III evidences that states still respect the Charter's norm. Thus, the
assumption of the revisionists is somewhat arbitrary.
The failure to explain the relations between new customary law and Article 2 (4) is probably caused by the belief that the intention of the Charter's drafters was in favor of categorical prohibition. Thus, opponents, most of whom are classicists, do not put much
importance on subsequent state practice, and say that it is a breach of the Charter. On the contrary, proponents, although it is difficult to plainly call them legal realists, need additional legal basis to rebut the simple breach argument and need to focus on the fact that
199 states used force inconsistent with the Charter without a sense of breaching the Charter.
Accordingly, they argued for the establishment of a new customary law; however, their
explanation regarding the possibility of a new customary law under Article 2 ( 4) is inevitably weak or even self-conflicting if they believe the prohibitive interpretation of
Article 2 (4).
The answer to this issue can only be found based on the permissive interpretation: new customary law can be established unless it is prohibited by the Charter and, because
Article 2 (4) remained uncertain when it was drafted, new customary law governing the use of force can lawfully exist if it is consistent. This approach admits the supremacy of the
Charter, and thus, a new customary law cannot be lawfully established if the contents of the customary law are in conflict with the provisions of the Charter. However, in the same context, a new customary law can be lawfully established to fill the gap where the drafters of the Charter failed to clarify. This customary law would be glosses to the Charter, as glosses work for Constitutional law in domestic law. Under the permissive interpretation of Article 2 ( 4), the Charter remained uncertain regarding the use of force that is consistent with the purposes of the Charter. Thus, there is room for customary law to develop and to fill the gap the Charter left.
200 2. The Evolution of Jus ad Bellum Since 1945
Based on the approach suggested above, this study found that the customary norms are still evolving under the Charter system. Since some of the customary norms have their origin in the old putative rules, while others are a relatively new custom, the development of new customary law governing the use of force should be categorized into two fields: the evolution of old putative rules under the Charter and the emerging new customary law.
Old putative rules could be lawful as customary law if they were compatible with the purposes of the Charter and accepted by state practice since 1945. In addition, new state practice regarding the use of force could become a new customary law under the Charter if generally accepted as lawful and it gained opinio Juris. After examination of state practice, this study reaches the conclusion that there is strong evidence of the established general practice regarding certain uses of force: e.g. anticipatory self-defense, rescuing nationals in a foreign county, the use of force against terrorism, and arguably humanitarian intervention.
On the other hand, the use of force to help self-determination once received broad support by states during the decolonization period, but became obsolete after that period. Thus, today, the use of force seems to be ruled out by state practice.
A. The Evolution of Old Putative Rules under the UN Charter System
201 Anticipatory Self-Defense
State practice demonstrates that states have used force when an attack against the
state was imminent or apparent. Whenever there was a possibility of a military conflict
between states, each conflicting party was concerned about being attacked first. Thus,
states continue to use their forces to stop an imminent attack. The legality of anticipatory
self-defense had been controversial and was one of the most fundamental disagreements between states and scholars31 until it was more widely accepted by states and the UN
Secretary General's high level panel. Today, anticipatory self-defense seems to have achieved lawful status with a consensus among states. The old putative rule survived the
Charter and is evolving under the Charter.
State practice regarding interstate use of force can be categorized into three types.
First, a state responds to an imminent attack from the hostile state. A state uses force in its international relations when it feels an imminent threat of being attacked by another state, as Israel used force against Arab states in 1967 before it was actually attacked.32 Second,
31 CHRISTINE GRAY, INTERNATIONAL LAW AND THE USE OF FORCE 84 (2002). 32 This conflict includes two separate military conflicts. The first is the so-called Six Day war, when Israel attacked Arab states: Egypt (UAR), Jordan, and Syria. Israel gained militarily success, and the war ended when the conflicting parties accepted the Security Council's resolution calling for ceasefire. However, Arab states were not satisfied with the result, and three weeks after the end of the Six-Day war, states such as Egypt (UAR), Jordan, Lebanon, Syria engaged in a military attack, (mostly low level combat). Israel responded to the attack with bombing. For details, see MARK WEISBURD, USE OF FORCE: THE PRACTICE OF STATES SINCE
202 a state responds to a future threat which constitutes a military build-up within a hostile state.
A state uses force in its international relations to prevent the hostile state from having
weapons of mass destruction, especially nuclear weapons or from building nuclear
capability. The U.S. used force to stop Cuba from importing nuclear missiles from the
Soviet Union in 196233 and Israel used force against Iraq in 1981 to stop hostile states from ~cquiring nuclear weapons. 34 Third, a state responds to an attack that will continue, as the U.S. did in the Cambodian war in 1970;35 the force was used to stop the attack from a third state. This is, in fact, not a use of force under the dimension of anticipatory self- defense, but rather, a use of force that is spilled over from another use of force. However, for the purpose of categorization, this study includes this type of use of force as "preventing a future attack." The use of force to prevent future attack has occurred consistently since
WORLD WAR II 139-41 (1997). 33 When Cuba planned to install the Soviets' nuclear missile base in the country, the U.S. engaged in preventive action to stop nuclear imports into Cuba. The OAS supported the U.S.' action while the Security Council did not provide a resolution. Later, the U.S. and the Soviet Union reached an agreement, and the U.S. ended the naval quarantine. For details, see id., at 215-8. 34 In early 1980s Iraq tried to develop nuclear power, which Israel considered a great threat. After diplomatic efforts failed to stop the Iraqi nuclear program, Israel attacked the Iraqi nuclear reactor. The Security Council condemned Israeli actions, but no further step was made. For details, see SC R/487, available at http://www.un.org/Docs/scres/1981/scres81.htrn; id., at 287-9. ' 35 In 1985 Prince Sihhanouk of Cambodia agreed to the establishment of a military base area of Democratic Republic ofYietnam (DRY) within the Cambodian territory operating against the Republic ofYietnam. But later, Prince Sihhanouk also approved the U.S. attack to the so-called "Ho Chi Min Trail" in Cambodian territory. Further, Cambodia, the U.S., and ROY used forces to repel the DRY. The purpose of the use of force was to stop DRY's threat. Later, the use of force ended because the U.S. withdrew its force from the region and the Cambodian government was overthrown by communists. For details, see WEISBURD, id, at 143; Globalsecurity.org, US. Invasion in 1970s, available at http ://www.globalsecurity.org/rnilitary/world/war/cambodia l .htrn.
203 1945.
This so-called anticipatory type of self-defense has incurred controversial
international responses. However, the criticism differed based on the imminence of the threat. When Israel destroyed the Iraqi nuclear reactor in 1981, the Security Council cntlc1ze. . . d.its use o f.C.1orce. 36 However, although very rare, the international organizations sometimes were neutral or even supported the use of force. For example, the OAS supported the U.S. quarantine in the Cuban missile crisis. 37 Here, the difference between the condemned or supported actions was somewhat clear, that is, the imminence of the threat, since the Cuban missile crisis was regarded as facing a more imminent threat. ·
On the other hand, many scholars tried to embrace an interpretation of the UN
Charter that extends beyond the black letter language of Article 51, embracing the customary law principle of anticipatory self defense, justifying use of force to repel not just actual anned attacks, but also "imminent" anned attacks. Some scholars argued the necessity of anticipatory self-defense because it would be de facto suicide to wait for the first strike in this time of weapons of mass destruction.38 However, others expressed their
36 See supra note 34. 37 See supra note 33. 38 "The target of an illegal use of force need not wait before defending itself until it is too late to do so. International law, after all, is not a suicide pact." Eugene V Rostow, N.Y. TIMES, Nov. 15, 1983 atA35.
204 concerns over the lack of standards of application, and over the extension of anticipatory
self-defense as a pretext for unjustifiable use of force such as reprisal, or preventive actions
(i.e., use of force before the coalescence of an actual threat).
It should be noted that anticipatory self-defense had been recognized as lawful even before the birth of the UN, and can be consistent with the purpose of the Charter. Further, drafters of the Charter from sponsoring powers intended the text of Article 51, which articulates "armed attack" as a threshold for self-defense, based on the assumption that anticipatory self-defense can be implicitly included in Article 2 (4). In fact, the purpose of self-defense is to preserve states froni the danger of being .defeated or from suffering massive loss by atrocities from aggressors. Thus, anticipatory self-defense is acceptable and compatible with the purpose of self-defense.
The concern for misuse makes sense and should not overshadow the need for anticipatory self-defense because the legality of the use of force is always judged by strict standards which requires lawful justifications. If a state invokes anticipatory self-defense without necessity and proportionality, it cannot be lawful anticipatory self-defense. Thus, the concern for the pretext for war has, in fact, nothing to do with the legality of anticipatory self-defense. Rather, the concern for the pretext for war is a matter in relation
205 to detailed conditions limiting the use of force, such as necessity and proportionality of the
use of force. 39
Recently, the UN Security General's high level panel has recommended that
anticipatory self-defense can be lawful under the UN Charter. 40 It provides that "a
threatened State, according to long established international law, can take military action as
long as the threatened attack is imminent, no other means would deflect it and the action is proportionate." Although the panel did not provide detailed reasoning on the decision,41 what the High Commissioner panel did was reaffirm the principle. Thus, today, the use of force for anticipatory self-defense seems to have gained consensus among states, and thus should be regarded as lawful.
The Use of Force to Protect Nationals
The uncertainty of the use of force to rescue nationals continues after the establishment of the UN. Although the use of force to rescue nationals is not in conflict with the purposes of the Charter, it does not receive broad support from member states because of the misuses in the state practice since 1945. Thus, although it can be lawful if
39 For details regarding the pretext for war and conditions limiting the use of force, see infra Chapter VIII. 40 REPORT OF UN SECRETARY GENERAL'S HIGH LEVEL PANEL ON THREATS, CHALLENGES AND CHANGE, A MORE SECURE WORLD: OUR SHARED RESPONSIBILITIES 63 (2004). 41 See for example, Oscar Schachter, The Right ofStates to Use Armed Force, 82 MICHIGAN L. REV. 1633-65 (1984); LOUIS HENKIN, How NATIONS BEHAVE: LAW & FOREIGN POLICY (2d) 143-5 (1979).
206 the use of force purely intends to rescue nationals and keeps necessity and proportionality,
the use of force still remained somewhat controversial.
Since 1945, states have used force to rescue their nationals in another state, 42 as seen
3 in cases such as the U.S. and Belgium intervention in Congo 4 , the U.S. intervention in the
Dominican Republic,44 and the U.S. attempt to rescue its nationals in Iran. In each of
these cases the state whose nationals were threatened used its force to rescue them. In
addition, as seen in the U.S. military operation in Kampuchea in 1975, a state uses its force
when another hostile state has seized its nationals for the violation of its jurisdiction. 45
Sometimes, like the Israeli use of force in Uganda, the so-called Entebbe intervention, 46 a
42 However, as professor Arend noted, the way to define the use of force to protect nationals has been a source of great scholarly debate and misunderstanding. ANTHONY CLARK AREND & ROBERT J. BECK, INTERNATIONAL LAW AND THE USE OF FORCE 94 (1993). See also Hoffmann, The problem ofIntervention, in INTERVENTION IN WORLD POLITICS (H. Bull ed., 1984), at 7. 43 During the civil war in Congo, the U.S. and Belgium engaged in military action to rescue foreign hostages in the state. The Security Council requested the end of intervention, and ceasefire. However, during the debate, only two states took positions suggesting that they considered unlawful a state's intervention in a second state to protect the intervenor's nationals. For details, see the Security Council Resolution 199, available at http://www.un.org/documents/sc/res/1964/scres64.htm (last visited on December 3, 2006); see also WEISBURD, supra note 32, at 266-8. 44 During the civil umest in the Dominican Republic, the U.S. sent its troops to protect American citizens and prevent communist factions from taking power. Later the OAS, asked by the U.S., authorized the Inter American Peace Force (IAPF, which mostly consisted of U.S. troops). The Soviet Union proposed a resolution condemning OAS' use of force, but it failed to get two thirds vote. The Security Council adopted innocuous resolutions calling for the fighting to end. See SC R/203 and 205, available at http://www.un.org/documents/sc/res/1965/scres65.htm (last visited on November 30, 2006); WEISBURD, id., at 219-24. 45 When the U.S. merchant vessel, Mayaguaz, was seized by Kampuchea, the U.S. sent troops to rescue nationals. However, at the time of the use of force, Kampuchea was releasing the crews, and by the time the U.S. intercepted a ship returning the crews, the operation ended. For details, see WEISBURD, id., at 274-6. 46 On June 27, 1976, a Palestinian terrorists group hijacked an Air France jet flying from Tel Aviv, Israel. With cooperation from the Ugandan government, the terrorists proceeded to release their non-Jewish hostages and to demand the release of the terrorists imprisoned in a number of states. Israel sent its troops and rescued the
207 state uses its force in a foreign state to rescue its nationals from terrorists. In some cases, even if a state tried to justify its use of force as protection of its nationals, the main intention of using force was to exercise political influence. The U.S.' intervention in
Panama was cntic1ze. . . d as sue h .47 The use of force to protect nationals occurred throughout the Cold War; however, there were no cases after it. 48 This was probably due to the aggravated international relations under the Cold War. Since the onset of today's more favorable international climate, there have been fewer cases requiring the use of force to protect nationals abroad.
International responses to these types of use of force were various and controversial.
In 1960, the Security Council asked for the withdrawal of Belgian troops which were in
Congo to protect the European community, including the Belgian community within
Congo.49 The General Assembly condemned the U.S. invasion ofGranada50 and hostages, The use of force was discussed in the Security Council, but the Council did not take any action. However, OAU condemned Israel. For details, see Id., at 276-7 .. 47 Relations between Panama and the U.S. continued to deteriorate in 1989 when the U.S. indicted General Noriega, who had seized power. Noriega further nullified the election which he failed to win the election. During the conflict, one American marine was killed at a Panamaian military road block, and the U.S. invaded Panama. The General Assembly condemned the U.S. action and the OAS adopted the resolution of "regretting" U.S. invasion. For details, see WEISBURD, supra note 32, at 238-40; PATIL, THE VETO: A HISTORICAL NECESSITY 585-99 (2002). The U.S. legal justification as reported to the Security Council was self-defense in protection of its nationals and defense of the Panama Canal under the 1977 Canal Treaty. See D'Amato, The Invasion ofpanama was a Lawful Response to.Tyranny, 84 AM. J. INT'L. L. 516 (1990). 48 During this period, it is said that nearly twenty separate occasions since the end of World War II occurred where states have threatened to use force for the protection of their nationals, have actually used force for that purpose, or might arguably have had grounds to do so. AREND, supra note 42, at 95. 49 See supra note 43.
208 Panama,51 and the OAS condemned El Salvador's use of force to protect nationals in
Honduras. 52 However, some of these types of use of force have not been criticized as
unlawful by international organizations. When the U.K. invaded Iran53 and when the U.S.
invaded Kampuchea, 54 international society was limited and divided, and states either
supported or opposed the use of force based on their relationship with the invading or
invaded country. Neither case was the subject of a resolution by the Security Council,
General Assembly, or a regional organization. The distinction in these cases was that the
purpose of the use of force was, more clearly, to rescue nationals rather than to exercise political influence, and the force was used within a sho1i time period without continuing presence of troops. Thus, it could be argued that the use of force in order to protect nationals is likely to receive more support if the threat to nationals is clear and if the use of
50 After the success of a military coup by leftists, NJM, Grenada received military aid from the Soviet Union, and Cuba, etc. When the leftist arrested the prime minister, Maurice Bishop, Granada fell into a civil conflict; the U.S., by the invitation of the governor general of Grenada, intervened in Granada to rescue its nationals and withdrew its troops after a general election. In the Security Council, the U.S. vetoed the proposal intending imminent withdrawal of troops. However, the General Assembly adopted a resolution that the intervention was unlawful. For details, see WEISBURD, supra note 32, at 234-8; PATIL, supra note 47, at 581-5. 51 See supra note 47. 52 The relations between Honduras and El Salvador had deteriorated in the year for complex reasons, such as economic disparities and refugees. The tension grew when supporters for each state had been seriously maltreated in the others capital, and after failing to obtain guarantees of better treatment for Salvadorians in Honduras, El Salvador invaded. The OAS sanctioned El Salvador and conflicting parties accepted OAS ceasefire under OAS observance. For details, see WEISBURD, id, at 269-70. 53 In the summer of 1946, riots erupted in Iran. When these appeared to threaten installations of the British owned Anglo-Iranian Oil Company and the British subjects working there, the U.K. dispatched the troops under the agreement oflranian government. See AREND & BECK, supra note 142, at, 95. 54 See supra note 45.
209 force is limited. There were no cases where an international organization endorsed the use
of force to protect nationals; nevertheless, state practice showed that the prohibition of the
use of force to rescue nationals was not categorical.
From a theoretical perspective, an argument could be put forth, under a permissive
interpretation, that intervention to rescue nationals might be legal if it does not violate the
political independence and territorial integrity of the intervened state. If the use of force
by a state is made to achieve its limited purpose to rescue its own nationals at the time that
the intervened state is unable to protect them, the use of force can be seen as self-defense,
and thus, is not in conflict with the Charter. The use of force to rescue nationals was
sometimes invoked by states since 1945; however, most of the uses of force to rescue
nationals had other intentions beyond the limited purpose to rescue nationals. State
practice shows a different understanding, and while some of the uses of force have actually been used for such purposes, or might arguably have had grounds to do so, most of the uses of force were in fact a pretext for th<'t use of force, especially from the big-power states.
The proponents of the justification are the U.K. and the U.S. The U.K. invoked the justification in Iran (1946), arguing that a state had the right to land troops in a foreign
210 county to protect its nationals in an emergency if necessary. 55 The protection of U.S. nationals was also cited as one of the legal bases in justifying the initial U.S. military intervention in the Dominican Republic (1965), Grenada (1983) and Panama (1989). In each case, however, the U.S. emphasized that the protection of U.S. nationals, standing alone, did not necessarily provide the legal basis for the full range of U.S. activities undertaken in those countries. In addition, the justification was dubbed by other justifications such as an intervention by invitation. 56 More importantly, the use of force to rescue nationals shows that it is used to commingle with other purposes. The invasion of
Panama especially faced wide criticism from other member states of the UN, and although the resolution denouncing the U.S. intervention was vetoed at the Security Council, it was condemned by the General Assembly and OAS.57 The result of the use of force was not only to rescue nationals but also to expel the government which was disfavored by the U.S.
Although the legality of the use of force is still controversial and difficult to determine, if a use of force is really intended to rescue nationals in an extreme circumstance, it is difficult to interpret whether this use of force breaches the purpose of the UN. The
55 AREND & BECK, supra note 42, at 95. 56 See supra note 44. 57 Louis Henkin, The Invasion ofPanama: A Gross Violation, 29 COLUMBIA J. INT'L L. 293 ( 1991 ).
211 criticized uses of force mentioned above were because of the misuse of the justification
which intended more than a limited purpose to rescue nationals, namely to exercise political
influence. Thus, if the use of force intended only to rescue nationals, the use of force
would be regarded as lawful.
In sum, at this point, without enough state practice, it is premature to declare that the
use of force to rescue nationals has been supported by state practice. The evolution of the
putative rule of the use of force to rescue nationals did not see much progress because of
state practice abusing the justification. Thus, the use of force remained controversial;
however, the use of force will be promisingly lawful in the future, if the use of force is
limited to purely rescuing purposes.
Humanitarian Intervention
Humanitarian intervention was part of the old putative rules although the legality was not clear.58 Whether or not it lawfully existed before 1945, humanitarian intervention could become a customary law under the UN Charter because the purpose of the use of force is consistent with it. The only matter is the existence of the general practice and opinio Juris. With relatively few cases, it is hard to say, at this moment, that the
58 SEAN MURPHY, HUMANITARIAN INTERVENTION 51-52 (1996).
212 humanitarian intervention reflects the consensus of, or convinces, the international
community. However, the norm has re-emerged in Kosovo, and if the use of force is to
secure purely humanitarian purposes, humanitarian intervention should be regarded as
lawful.
State practice shows that states have used force to prevent or stop a massive
humanitarian crisis that resulted in civil war, starvation or genocide in another state. Most uses of force regarding humanitarian crises occurred in relation to civil conflicts of a third nation. A civil conflict exists when a state is experiencing domestic unrest59 that is caused by ethnic or religious hatred, political repression, political exclusion, and economic inequality. 60 These types of civil conflicts since 1945 have killed approximately 20 million people and displaced at least 67 million. 61 In some cases with huge humanitarian catastrophies, states and international organizations initiated the use of force to stop such a cns1s. It occurred for the first time under the Charter system in 1960, in Congo, 62 but did
59 This domestic umest may take many forms, and many scholars have suggested a number of ways to categorize the various forms of civil conflict. See Falk, Introduction, in THE INTERNATIONAL LAW OF CIVIL WAR 1, 18-9 (Falk ed., 1971); John N. Moore, The Control ofForeign Intervention in Internal Conflict, 9 VAJ. INT'L. L. 205, 256-258 (1969); AREND, supra note 42, at 81-3. 60 Paul Collier, Anke Hoeffer, and Nicholas Sambanis, The Collier-Hoeffler Model of Civil War Onset and the Case Study Project Design, in UNDERSTANDING CIVIL WAR Vol. 8 (Paul Collier & Nicholas Sambanis eds., 2000). 61 Id., preface. 62 The crisis that suddenly burst upon the Republic of the Congo had several dimensions: the secession of the country's richest region, Katanga, soon followed by a similar move in the southeastern Kasai Province (now Kasai-Oriental Region), which declared itself the Independent Mining State of South Kasai; and the role of
213 not become frequent in international relations until the end of the Cold War. Although there were three cases in the 1970s, they were partly caused by political hostility between the intervening state and the intervened state, as occurred between India and Pakistan in
1971,63 Greece and Turkey in the Cyprus crisis in 1974,64 and Vietnam and Kampuchea in
1976. 65 However, after the Cold War, interstate uses of force were established, mainly by international organizations to stop humanitarian crises with much less political purpose, as in Liberia, Sierra Leone,66 and Kosovo. 67 In particluar, the last two were mutilateral
the United Nations, first as a peacekeeping force and ultimately as the chosen instrument for bringing Katanga back into the fold of the central government. When the Congolese sought self-determination from Belgium, the Security Council requested that Belgium withdraw its force. However, even after Belgium's withdrawal, the civil conflict, in particular by the Katangese secessionists, continued. Later, the Security Council authorized the Secretary General to assemble troops, see SC R/143, 145, 146. Available http://www.un.org/documents/sc/res/1960/scres60.htm (last visited on November 29, 2006). The intervention ended Belgian influence in the Republic of Congo, and ended the civil war. For details, see WEISBURD, supra note 32, at 182-4; PATIL, supra note 47, 148-67. 63 When East Pakistan tried to seek autonomy, Pakistan responded with force against civil strife. In particular, the Pakistani army targeted Hindus and thus a lot of refugees crossed the border and went into India. Thus, India entered into East Pakistan to protect East Pakistan refugees and to protect its border. India expressed the use of force as self-defense. The Issue was brought to the Security Council and General Assembly, and, although the proposal demanding ceasefire and mutual withdrawal of forces was vetoed by the Soviet Union, the General Assembly demanded ceasefire. Later, India virtually won the military conflict, and Pakistan accepted the ceasefire. As a result East Pakistan became an independent state, Bangladesh. For details, see WEISBURD, supra note 32, at 146-50; PATIL, supra note 47, at 341-50. 64 When Greece supported military factions to overthrow the Cyprus government and sought anti-Turkish ethnic campaign, Turkey intervened in Cyprus to protect its ethnic peoples. The Security Council called for ceasefire, and later, upon the agreement between parties, decided to dispatch its peacekeeping mission (UNFYCIP). See SC RJ354, 358, 360, available at http://www.un.org/documents/sc/res/1974/scres74.htrn; WEISBURD, id, at 152-5. For UNFYCIP, see http://www.un.org/Depts/dpko/missions/unficyp/. 65 Vietnam invaded Kampuchea which was governed by the extraordinarily cruel Khmer Rouge, which killed millions of civilians. However, the troops of SRV maintained tens of thousands of troops to carry on the war against guerillas in Kampuchea. The General Assembly called for the withdrawal of foreign forces from Kampuchea. Later, with increasing diplomatic pressure form the Soviet Union, Vietnam withdrew its forces from Kampuchea. For details, see WEISBURD, id., at 42-4. 66 The civil war in Liberia and Sierra Leone was interconnected by some political factions, and caused a huge humanitarian crisis. In particular, in relation to Sierra Leone, the Security Council demanded that the military junta restore democracy and human rights and imposed sanctions prohibiting the importation of weapons,
214 undertakings aimed mainly at restoring order in a state that had fallen into chaos. 68
International response to the justification of such interventions has been controversial.
International response to the uses of force in order to stop a humanitarian crisis during the
Cold War is uncertain because the states did not try to justify the use of force as a humanitarian intervention. 69 Nevertheless, the responses of international organizations were somewhat neutral. When India intervened in East Pakistan, the General Assembly, rather than criticizing India, demanded a ceasefire. When Vietnam intervened in
Kampuchea, both the Security Council and the General Assembly kept silent because the use of force entailed humanitarian benefits. It did not demand the withdrawal of forces
military materiel, and petroleum as well as international travel by members of the military junta (See the Security Council Resolution 1132, available at http://www.un.org/Docs/scres/1997/scres97.htm. However, the Council did not act further. Instead, the Economic Community of West African Community (ECO WAS) · formed a unilateral peacekeeping force (ECOWAS monitoring group, ECOMOG), and engaged in Liberia and Sierra Leone. Later, conflicting parties in Liberia accepted ECOMOG's mediation, and conflicting parties in Sierra Leone accepted the peace accord and UN peacekeeping (UNAMSIL). For detail, see. WEISBURD, id., at 204-6; Globalsecurity.org, Liberia First Civil War, available at http://www.globalsecurity.org/military/world/war/liberia-1989 .htm and Sierra Leone http://www.globalsecurity.org/military/world/war/sierra leone.htm. 67 Unlike other cases related to the independence from former Yugoslavia, the Kosovo intervention was more complicated. Working against the Kosovo independent movement, Serbian ethnics' para-military group engaged in ethnic cleansing and resulted in a huge humanitarian crisis. The Security Council condemned Yugoslavia, and demanded ceasefire, but the humanitarian crisis continued. Later when the authorization of the use of force was threatened by the veto from Russia, NATO unilaterally intervened in the region. Yugoslavia finally accepted NATO's proposal. For details, see the Security Council Resolution 1199 and 1203, available at http://www.un.org/Docs/scres/1998/ scres98.htm. 68 WEISBURD, supra note 32, at 207. 69 When India intervened in East Pakistan in 1971, and when Vietnam intervened in Kampuchea in 1973, they tried to justify their use of force as self-defense. However, the use of force was partly based on the protection from the influx ofrefugees from the bordering state. See FRANCK THOMAS, RECOURSE TO FORCE 139-42 (2002).
215 until after an extended presence of Vietnam forces in Kampuchea. 70 Thus, it can be
difficult to determine whether an international organization condemned the use of force to
stop a humanitarian crisis.
However, after the end of the Cold War, international response displayed a more
favorable approach. The ECOWAS intervention in Sierra Leone and Liberia was
considered the action of a regional organization and was later supported by the Security
C ounc1.·171 In addition, although NATO's unilateral intervention in Kosovo was caused by
the fear of a veto which could be exercised by Russia, it should be noted that the proposal
condemning NATO's use of force was put to a vote and defeated by a great majority of the
Security Council. 72 The voting process reflects international response to the Kosovo
intervention, a typical and predominantly humanitarian intervention without overriding
intention of political influence. Thus, although it is difficult to determine whether there is
enough evidence to support humanitarian intervention at this moment, state practice shows,
at least, that, depending of the facts, the justification received neutral support by the international organization. Accordingly, state practice showed that the prohibition of the
70 See supra note 65. 11 F RANCK, supra note 69, 158-9. 72 The Security Council refused to condemn NATO's action. The Council rejected the Russian resolution calling NATO's intervention a violation of the UN Charter and a threat to peace and security by a vote of three in favor and twelve against. See S/1999/328, 26 March 1999. .
216 use of force has not been categorical when it comes to the use of force to stop humanitarian
cnses.
As noted, the Charter provides no apparent legal authority for humanitarian
intervention, and thus, a state using military force without the authorization of the Security
Council against another in "humanitarian intervention" has been, during the post-World
War II period, regarded as unlawful. 73 In addition, many governments, especially those of weaker states and jurists have rejected unilateral humanitarian military intervention because of the potential for powerful states to abuse such a doctrine. 74 The history of humanitarian military intervention is replete with examples of powerful states or coalitions invoking the doctrine to conceal their own geopolitical interests. 75 True, even though human rights are· usually called universal rights, in reality, the powerful nation-states run little risk of becoming the target of a humanitarian intervention action. Moreover, it is difficult to separate the humanitarian motives from the political motives and be assured thatthe intervening powers are entirely disinterested. 76 Many uses of force such as nuianced
73 FRANCK, supra note 69, 138. 74 Id. 75 Professor Thomas Franck examined the historical record of such interventions and concluded that "in very few, if any, instances has the right to humanitarian intervention been asserted under circumstances that appear more humanitarian than self-seeking and power seeking." Id. 76 For example, the Chechen population is probably in as much danger as in 2005 as the Kosovars were in previous years, but Russia is significantly more powerful in the realm of international relations than Serbia,
217 humanitarian intervention exposed the difficulty and the problem of political
contaminations. When India intervened in East Pakistan, Tanzania in Uganda, Vietnam in
Kampuchea, and France in Central Africa, the use of force overtly or implicitly intended
humanitarian intervention. However, those uses of forces were tainted with the intention
of political influence and resulted in no support from the international community. In
addition, unilateral humanitarian intervention was not put forward until recently as a legal
doctrine by states. At first, states justified the use of force for stopping humanitarian
crises as self-defense. When India rescued the humanitarian crisis in East Pakistan,
Tanzania in Uganda, and Vietnam in Kampuchea,77 their justification focused on self-
defense. In fact, it was scholars, rather than states, who named the uses of force as a
humanitarian intervention because the use of force includes a humanitarian purpose.78
However, with the end of the Cold War and the expansion of the norm to protect
human rights, state practice has changed. The ECOWAS interventions in Liberia and
Sierra Leone, and NATO's intervention in Kosovo provides good precedents. These uses
of force were less politically oriented but with conditions such as large scale atrocities,
and so an international action into Chechnya is much less likely. Jules Lobel and Michael Ratner, Humanitarian Military Intervention, 5 FOREIGN POLICY IN Focus 2 (2000), available at http ://www.fpif.org/briefs/vol5/v5n01 hmi.html. 77 See supra Chapter III, Section 2, list of interstate use of force. 78 See for example, Franck, supra note 69, at 139, 143, 145.
218 overwhelming humanitarian motives and joint action. As a result, these uses of force faced no strong condemnation from the international community even though the uses of force were not authorized by the Security Council.
True the UN' s primary goal is to "save succeeding generations from the scourge of war." To further this goal, its Charter requires that decisions to go to war be made by a deliberative body of states representing a broad range of constituents i.e., the Security
Council. Nevertheless, to protect human rights is one of the purposes of the UN, and thus, under the permissive interpretation, humanitarian intervention can be lawfully customary law if supported by the general practice and the opinio juris. Although the danger of this unilateral use of force weakens the international restraints on the use of force, its danger merely represents the policy direction - it strictly prohibits the use of force unless provided by necessity, proportionality and is used as a last resort - and could not represent the legality itself.
Thus, like the use of force in Kosovo, if the use of force has been made as a last resort and taken only after all peaceful alternatives have failed, the legality of a pure humanitarian intervention is difficult to view as illegal under the Charter. The re-
219 emerging norm of humanitarian intervention is evolving towards a direction oflawful use of force.
B. The Emerging New Custom under the Charter System
The Use of Force against Terror
The use of force against terror is not based on the old putative rules because, before
1945, response to terror was considered as a part oflaw enforcement. However, after suffering a great amount of atrocities from terrorists, the use of force to respond to terrorism has emerged in state practice and seems to receive more approval by the international community. Thus, although the degree of force to be used against terrorists still remains in question, the use of force against terrorism is more likely to be considered lawful. In addition, because the use of force against terrorism was not based on old putative rules, it can be seen as a new customary law whose purpose is, in nature, self- defense. 79
Traditionally, terrorism could be traced back to even before the establishment of the modernjus ad bellum, but the international community held the view that terrorist acts
79 Because traditional international law regarded only state and international organization as the subject of international law, legal measure against terrorists was a relatively new area and was the source of scholarly debates. See AREND & BECK, supra note 42, at 138, 173.
220 were criminal offences. 80 Thus, in spite of increasing universal opposition against terrorism, the proper measure to respond to terrorism never went beyond a domestic law enforcement system or prosecution. However, state practice has changed regarding the response to terrorism. The increased terrorist activity and the tragedy caused by terrorists made the members of the international community change their views on the legitimacy of the use of force against terrorists groups.
Terrorism that occurs in an international context can be placed into two categories.
The first category is state-sponsored terrorism. 81 .Some states sponsored terrorism by
providing finance and bounties given across international borders to terrorist organizations
and to the families of deceased militants for the purpose of conducting or rewarding
attacks on civilians. 82 As when Libya supported terrorists to bomb the U.S. military base
in Germany, state sponsored terrorism is used because it is believed to produce strategic
results where the use of conventional armed forces is not practical or effective. The
30 Id. 81 As well as the terms themselves, the distinctions between state-sponsored terrorism and state terrorism are controversial. Generally speaking, sponsored terrorism is simply a more specific form of state terrorism; the controversy largely arises in the definition of state terrorism with regards to sponsorship, asymmetric warfare and international character. In Western politics, however, the term state-sponsored terrorism is largely used in reference to certain politics and finance in the Arab world, i.e. politics and finance used to promote terrorism rooted in ideological Islamic nationalism amongst various radical Islamist militant groups. See FRANCK, supra note 69, at 53-4, 64-8. 82 Id.
221 second category is that of international terrorist organizations. Some terrorist groups
support the creation of international visibility for a persistent problem or acts ofretaliation
against a target state. 83 As Al Qaeda did on September 11, 2001 in the U.S., these
terrorists' organizations cause interstate uses of force.
Unlike other causes of interstate uses of force, the use of force to respond to terrorism
is emerging in state practice. Since Israel used its force against Lebanon in 1970, state
practice for this purpose has increased. 84 International response to the use of force
against terrorism has been negative or controversial until 2001. Until that time,
international organizations condemned states which used ·force to respond to terrorist
attacks. When Israel invaded Lebanon to stop terrorist attacks in 1970 and 1973,85 and
when Israeli special forces attacked a Uganda airport to combat terrorism in 1976,86 the
Security Council and OAU criticized the use of force. The U.S. bombing of Libya in
83 Currently, the U.S. designates 42 foreign terrorist organizations. See the U.S. Department of State web page, available at http://www.state.gov/s/ct/rls/fs/37191.htrn (last visited on May 12, 2006). 84 There were three cases in the 1970s, five cases in the 1980s, two cases in the 1990s, and two case in the 00s. Having viewed state practice since 1945, only three states, the U.S., Israel and Egypt, used their force against terrorist activities before the September 11th attack. See supra Section 2, list of the interstate use of force. However, because of the participation of many states in the war against Afghanistan, and the resolution of the Security Council that condemned terrorists' act, many states recently also began to use force against terrorism. 85 In the period 1970 through 1975, the pattern of violence along the Israel-Lebanon frontier persisted. Palestinian terrorists groups based in Lebanon attacked Israel, and Israel responded with force. The Security Council condemned Israel for the invasion, but Israeli occupation continued without any further steps from the Council. For details, see the Security Council Resolution 279, available at http://www.un.org/documents/sc/res/1970/scres70.htrn (last visited on December 2, 2006); WEISBURD, supra note 32, at 141-2. 86 See supra note 46.
222 1986 was also criticized by the General Assembly. 87 But such cases had not always been
subject to criticism.
However, after the terrorists attack on September 11, 2001, state practice reflects the
changing view of the international community on this subject and the use of force in response to terrorism. The attack, which has many new elements such as the objectives of the terrorist attacks and the extent of damage caused, led to a new era regarding the debate on the use of force in addressing the problem of terrorism. The terrorist act caused over three thousand deaths and the subsequent U.S. operation in Afghanistan has changed the legality of this type of use of force. The Security Council condemned terrorism and supported the U.S. position.88 The Security Council Resolution 1368 strongly condemned the terrorist attacks, declared that such acts were a threat to international peace and security and clearly refers to the right of self-defense against terrorists. 89 In particular, the
87 To respond to Libyan engagement in terrorism targeting the U.S., the U.S. bombed major strategic area of Libya. The General Assembly and the OAU condemned the attack. For details, see WEISBURD, supra note 32, at 293-7; See also GlobalSecurity.org, Operation El Dorado Cannon, available at http://www.globalsecurity.org/ military/ops/el dorado canyon.htm (last visited on December 3, 2006). 88 After Al-Qaeda terrorists hijacked civil airplanes and attacked the World Trade Center in New York, the U.S. responded to the terrorist group by invading Afghanistan. The Security Council condemned the terrorism, and supported the U.S. to establish a new and transitional government. The U.S. and its allies defeated the Taliban regime and helped to establish a new government. See Globalsecurity.org, Operation enduring freedom, available at http://www.globalsecurity.org/ military/ops/enduring-freedom.htrn (last visited on December 3, 2006). 89 See the Security Council Resolution 1368, 1373, and, 1378, available at http://www.un.org/Docs/scres/2001/sc2001.htrn (last visited on December 3, 2006).
223 Council's unprecedented willingness to invoke the right of self-defense under Article 51 helped legitimize the U.S. military campaign against Afghanistan as a lawful use of force. 90
Although Resolution 1368 did not in itself approve the use of force on the part of the U.S., and the resolution represents the political acceptance of the idea that the use of force in exercise of the right of self-defense may be appropriate in cases of terrorism. Thus, the
Security Council Resolution 1368 provided a turning point regarding potential measures against terrorism, and the use of force to respond to terrorism received broad support. 91
Lastly, it should be noted that, although the legality of the use of force against terrorism can be granted as lawful, a question still remains regarding the degree of the use of force, in particular, when the use of force paradigm is applicable and when the law enforcement paradigm is applicable. This issue arose, for instance, in the U.S. attack on
Al-Qaeda members in Yemen. 92 The attack was outside of Afghanistan and the U.S. forces did not try to apprehend suspected terrorists, but target them directly with lethal
90 Jack M. Beard, Americas New War on Terror: the Case for SelfDefense under International Law, 25 HAVARD J. OF INT'LLAW & PUBLIC POLICY No. 2 (2002), at 566. 91 Many scholars also support for the legitimacy of the use of force against terrorism by claiming that the use of force against terrorism can be justified since it is, by its nature, self-defense. AREND & BECK, supra note 42, at 138, 173; JackM. Beard, id., at 568-78. 92 On May November 4, the U.S. military, by a missile, destroyed the car that carrying six suspected Al Qauda members in a remote part of Yemen. See Anthony Dwoikin, The Yemen Strike: The War On terrorism Goes Global, CRIME OF WAR PROJECT (November 14, 2002), http://www.crimesofwar.org/print/onnews/yemen-print.html.
224 force. The rational ebehind the attack was that "al-Qaeda operatives are enemy fighters,
that the whole world represents a battle field, and that when hostile combatants cannot be
captured, it is legitimate to shoot to kill."93 The legality of the use of force, however, was
contended by other states as a summary execution that violates human rights. 94 Further,
even the U.S. has repeatedly criticized Israel for the targeted killing of Palestinian
militants.95 Indeed, the issue is controversial since the use of force against terrorism
inevitably constitutes two contending natures: action within law enforcement system and
action beyond law enforcement system. Drawing the line between the two in the real
world is not an easy task because the military should decide the method ofresponse under
heavy pressure of effective operations. It should be noted that the use of force against
terrorism is not a traditional use of force which is assumed to be a use of force that occurs
against a state or in a civil conflict. As Anthony Dworkin noted, "the apparent disjunction
between the existing legal framework, and evolving state practice, is a further indication of
the complications of this 'new kind of war,' and a further argument for the U.S.
93 The U.S. Deputy Secretary of Defense Paul Wolfwitz said on CNN that the strike was a very successful tactical operation, and National Security Advisor Condoleezza Rice said on Fox New that "We are in a new kind of war, and we've made it very clear that this new kind of war be fought on different battlefield. Id. 94 For example. Anna Lindh, Sweden's foreign minister expressed that the attack was a summary execution, and Amnesty International expressed that the attack was "the deliberate killing of suspects in lieu of arrest." Id. 95 On November 5, after the strike in Yemen, the U.S. State Department expressed that U.S. policy on Israel's actions has not changed. Id.
225 government to spell out some clearer rules of engagement."96 Thus, without further state
practice on the issue, it is difficult to determine the legality of the use of force for targeted
killing.
In this regard, the use of force against terrorism IS somewhat controversial.
However, the purpose of responding to terrorism IS, m nature, self-defense, and state
practice evidences the direction of the developing legal scheme regarding the use of force
against terrorism. Thus, the norm use of force against terrorism is evolving and becoming
convmcmg.
The Use ofForce for Self-determination
The use of force to help self-determination has been asserted in the decolonization
movement. 97 The use of force to help self-determination is not based on the old putative
rules. Thus the justification, if admitted, constitutes new customary law under the UN
charter. The purpose, to promote self-determination of people, is one of the main
purposes of the UN, and state practice has accumulated enough to evidence a new
customary law. In particular, the use of force to assist self-determination has emerged in
96 Id. 97 The purpose of the self-determination clause in international law was to allow the former colonies that existed before World War II to have a say in their future. It is clear that a colony cannot affect the territorial integrity ofa country which she is not a part of. MALCOLM N. SHAW, INTERNATIONAL LAW (5d) 269-70 (2003).
226 state practice and, at least, has become a convincing norm during the decolonization periods. However, it should be noted that, after the end ofdecolonization era, states no longer invoke a self-determination justification and thus the legal justification has become obsolete.
The legal term "self-determination" was acknowledged in the international community even before 1945 and supported by the UN Charter. 98 However, there were fundamental disagreements on the contents of self-determination, and practical reconciliation between the content of the principle as it appears above and respect for states' territorial integrity is a problemwhich remains unresolved. In particular, what the third states are entitled to do when the self-determination effort of a certain identity was forcefully denied, remained uncertain in relation to the legal justification of the use of force after World War II. 99 Thus, the use of force to assist self-determination was not recognized before the UN. Nevertheless, under the permissive interpretation, the use of force to assist self-determination of people does not breach the purposes of the UN Charter and could be a lawful customary law if it is supported by state practice and opinio Juris.
98 The term self-determination was referred to in many international agreements such as the UN Charter, Declaration on Friendly Relations. 99 ANTONIO TNACA, FOREIGN ARMED INTERVENTION IN INTERNAL CONFLICT 100 ( 1993).
227 Most self-determination related conflicts occurred during the Cold War era. 100
Many cases of decolonization were military conflicts undertaken in order to end European control of colonized areas. 101 They include internal wars between colonial powers and insurgent groups in colonies that led to independence. In addition, some states found themselves on opposite sides of anti-colonial conflicts and thus engaged in the conflict to help the self-determination of the colonized nations. In fact, in each of these cases outside states provided significant material support for the anti-colonial side. 102 This occured in the first Indochina war (France vs. Vietnam), in the Morroccan and Algerian war of independence etc. The international organizations did not condemn the use of force in pursuit of self-determination, including uses of force which assisted the liberation of another state. 103 Surprisingly, they have even been in favor of the use of force to help self-determination. The Security Council supported many self-determination movements without criticizing the use of force for independence such as Indonesia from the
100 Professor Cassese explained that "between the early 1950s and 1960s, at the behest of socialist countries led by the Soviet Union, and with the strong support of the developing countries that had already achieved political independence, the principle of self-determination was vociferously invoked ... " ANTONIO CASSESE, SELF-DETERMINATION OF PEOPLE: A LEGAL REAPPRAISAL 71 ( 1995). 101 WEISBURD, supra note 32, at 63. 102 Id. at 94. 103 GRAY, supra note 31, at 45.
228 Netherlands in 1949, 104 Angola and Guinea Bissau from Portugal in 1974, 105 Slovenia,
Croatia, Bosnia-Herzegovina from the former Yugoslavia in 1991, 1992, and 1995.106 In addition, the General Assembly also played an active role in recognizing the self- determination movement by supporting Cyprus in its independence from the U.K. in
1956,107 Mozambique from Portugal in 1974,108 and Western Sahara from Morocco in
1971, 109 etc. In other cases, international organizations have maintained a neutral
104 When the Netherlands announced its intention to dispatch an airport carrier and two escort vessels to western New Guinea, Indonesia, who claimed the territorial title over the islands, reacted with hostility. Indonesia, arguing self-determination of the inhabitants, sent troops to infiltrate the islands, but the several attempts were defeated by the Dutch. The conflict was issued at the General Assembly, but it failed to adopt the resolution, by failing to get two thirds vote. Later, conflicting patries reached an agreement whereby the UN would administer western New Guinea and then transfer administrative.functions to Indonesia. For details, see WEISBURD, supra note 32, at 33-5. 105 When the Guinea-Bissau Independence Group (PAIGC) and Republic of Guinea (ROG) sought independence from Portugal, the Soviet Union, the PRC, and its neighboring states provided arms and training support to the independence groups. The Security Council condemned Portugal in violating the territorial integrity of Guinea. Later, when Communists took power in Portugal, they agreed to the independence of Guinea-Bissau. For details, see the Security Council Resolution 275, available at http://www.un.org/ documents/sc/res/1969/scres69.htrn; WEISBURD, id., at 79-80. 106 The independence of these states was recognized by the EU and they joined the UN. The Security Council condemned the Yugoslavian action and decided a mandatory embargo against Yugoslavia. Later, conflicting parties accepted the UN proposal and the UN sent peacekeeping troops. For details, see the Security Council Resolution 713, 724, and 757, etc, available at http://www.un.org/Docs/scres/1991/scres91.htm; http://www.un.org/documents/sc/res/1992/scres92.htrn; for details on Slovenia, see Onwar.com, Slovenian war ofIndependence 1991, http://www.onwar.com/aced/nation/yak/yugoslavia/ fslovenial 991.htrn; for details on Croatia, see WEISBURD, id., at 113-6; for details on Bosnia-Herzegovina see PATIL, supra note 69, at 187- 202. 107 The Greek Cypriot Community fought against the U.K. for independence. The conflict, however, became more complicated when those of Greek ethnicity attacked those of Turkish ethnicity. Thus, the U.K., Greece, and Turkey were involved in the conflict. The General Assembly supported self-determination, and conflicting parties agreed to a ceasefire and the independence of Cyprus. For details, see WEISBURD, id., at 76-7. 108 When the Mozambique Independence Group (FRELIMO) sought independence from Portugal, the Soviet Union, the PRC, and its neighboring states provided arms, training etc. to the independence group. On the other hand, the U.S., France, etc., aided arms to Portugal. The General Assembly recognized the independence of Mozambique. Later, when Communists seized power in Portugal, they agreed to the independence of Mozambique. For details, see Id., at 82-5. 109 The Western Sahara independent group (POLISARIO) started fighting against Spanish colonial authority.
229 position towards self-determination. No resolution has been made to condemn the use of force in order to support self-determination.
On the other hand, many efforts have been made to justify the use of force in order to support self-determination. Particularly, non-aligned states and some scholars have been willing to agree on the legitimacy if the pattern of the conflict occurs between the Western colonial powers - or the government supported by the powers - and the insurgent advocating independence. Some argued that foreign states could lawfully provide aids to insurgent groups although direct military assistance would be unlawful. no Others went even further by invoking that a right of defense against colonialism could be lawful. 111
Interestingly, the argument in support of the use of force to help self-determination came from less powerful states, which have been in support of a broader prohibition of the use of force. Considering the state practice and the arguments from the scholars, it is fair to say that the use of force to support self-determination was emerging as lawful during the
However, their enemy changed when Spain decided to support self-determination because Morocco and Mauritania asserted the territorial title over the region. Later, Mauritania abandoned its claim, however, the fight against Morocco continued. The General Assembly endorsed self-determination, and conflicting parties accepted the UN mediation and peacekeeping (MINURSO). Western Sahara finally achieved self deterrnination. For details, the Security Council Resolution 725, available at http://www.un.org/Docs/scres/1991/scres91.htm; For details, see id., at 244~7 110 P. Rubino, Colonialism and the Use ofForce by States, in CURRENT LEGAL REGULATION 133-4 (Cassess ed., 1986). 111 They argue that self-determination was recognized by international law as a lawful struggle and no longer an internal matter. The use of force to support self-determination is, because it is actually asking for external help in collective self-defense. Id.
230 decolonization period.
However, recent state practice after the decolonization period shows the change of
view regarding the use of force to help self-determination. No state is willing to invoke
self-determination as a legal justification. For example, in the former Yugoslavia, regional
factions tried to seek self-determination after the breakdown of communism in Eastern
Europe. The effort for self-determination was supported by the international community
including the use of force by NAT0. 112 It should be noted that, however, no member of
NATO countries asserted the lawfulness of the use of force based on self-determination
justifications. Further, no state which formerly supported the use of force to help self-
determination, expressed their support of NATO's action based on the self-determination
justification. Instead, only a small number of states asserted a humanitarian intervention
JUStl· 'fi 1cat10n. · 113 Thus, it seems that the self-determination justification played a limited
role and only during the decolonizatio period; currently, no states are willing to argue that
there is a right to use force for self-determination purposes. Today, there are no on-going
112 See CASSESE, supra note 100, at 268-272. 113 There is a stong overlap between the use of force to assist self-determiantion and humanitarian intervention. State practice shows that whenever self-determination is asserted, there is a humanitarian crisis caused by the opposition party to self-determination. So called humanitarain interventions such as Kosovo, East Timor, India-East Pakistan, and France-Central African Empire, were in fact caused by the cruel oppression of the opposing party of self-determination.
231 interstate uses of force to support self-determination, although international society could possibly recognize self-determination, e.g. Chechen from Russia, or Tibet from China etc. 114
In sum, although there was an emerging norm regarding the use of force to support the self-determination of the people during the decolonization period, the justification no longer represents state practice of today. Therefore, although, theoretically, the justification can be lawful under the permissive interpretation, there is no such customary international law supporting the use of force to help self-determination.
3~ Undisrupted Evolution of the Jus ad Bellum under the UN Charter
Based on the examination of this Chapter, this study reaches the conclusion that international law governing the use of force has been evolving without interruption. The jus ad bellum was unclear and there were in fact no limits on states to resort to force until modem states recognized the necessity oflegal limits. Because oflessons from history, and after suffering atrocities caused by the use of force, the international community
114 Since the norm of self-determination conflicts with territorial integrity, there is no univercially recognized conditions, today, to grant self-determination to a certain group. Moreover, territorial integrity can only be applied to prevent the cessation of integral parts of a state, and does not apply to decolonisation, and thus, self-determination should be circumscribed by the principles of territorial integrity and non-intervention. However, after World War II, many anti-colonization movements led to military conflicts and, the use of force to achieve self-determination was supported by many states although the trend has weakened these days. WEISBURD, supra note 32, at 94-6.
232 increasingly tried to crystallize the legality of interstate use of force with increasing limitations.
The customary norm of the early 20th century provided broader justifications for the use of force but clearly recognized the principle of non-intervention. The two World Wars provided a turning point regarding the legal constraints on the use of force. The unprecedented size of the military conflicts gave momentum to the international community to formally shape the jus ad bellum when the UN Charter was drafted.
However, the UN Charter could not get rid of all uncertainty regarding the rules limiting the use of force. This is partly because of the equivocal text of Article 2 (4), but fundamentally, because of the disagreement between strong and weak states. This confusion over the rules provided many pretexts for war since 1945.
Nevertheless, like all cultures, international thinking evolves. The lessons of two
World Wars and the subsequent Cold War led to and reiterated the necessity for stronger legal burdens. The role of the UN Charter became increasingly stronger, and no states tried to justify the use of force to annex territories or conquer the entity of other states.
Rather states tried to justify the use of force with the criteria that the Charter provided, or at least, putative customary international law. Old putative rules have been filtered by the
233 UN Charter, and some of them survived the Charter if they were consistent with the purposes of the Charter, e.g. anticipatory self-defense, use of force by invitation etc.
However, if they were not consistent with the purposes of the Charter, the rules fell into desuetude. In addition, state practice demonstrated that new justifications were not recognized before 1945 and were not strongly opposed by states, e.g. the use of force to help self-determination and the use of force in response to terrorism. Although the consensus of the international community on these putative rules has differed, history tells us how the international community developed customary law governing the use of force.
These customary norms are in fact the glosses of the Charterbecause the norms play a role in clarifying the meaning of the Charter regarding the use of force.
Based on the permissive interpretation of Article 2 (4 ), this study found that Article 2
(4) remains with some uncertainties, and future discretion is needed. Because of the imperfectness of the provisions of the Charter, it has been filled with some customary rules, seeking the best way to maintain international peace and security. In fact, this is not unusual in the history of law. Usually, codification marks the end of legal development. 115 However, a legal system seeks to generate and enforce rules addressing a
115 Quincy Wright, The Meaning of the Pact ofParis, 27 Am. J. Int'l L. 58 (1933).
234 against terrorism. 116
Customary law I League I Pact of I Cold I Post l Post as of 1920 Covenant Paris C~er I War Cold War 9/11 I I Right to War I I Self- After Attack I I I I Defense Anticipatory ------I I
Reprisal I ----; Pacific Blockade I ----4 I I Rescue Nationals Short I ----i------+ of Protect -----o War Rights/Property I I Humanitarian r------,------.. Intervention I I Intervention By Invitation I I Cooling-off Period I I Authorization of I I the Security Council I I - I --- ___ ,.. Self-Determination I Against Terrodsm I I ------
Legality not contended Legality Denied Legality Questioned Legality Granted
The way of the evolution of the Jus ad Bellum
Lastly, the development of these rules is essentially the evolution ofthejus ad bellum.
If the old customary law was ruled out by the Charter, based on the prohibitive
116 It should be noted, however, that these rules are not automatically lawful only by virtue of their justifiable purposes. Rather, the unilateral use of force, to be lawful, must follow the other procedural limitations, which will be discussed in the next Chapter.
236 .interpretation, the evolution of the jus ad bellum had ceased by the time of the Charter, and
only state practice after the Charter, as a matter of establishing new custom, can hold
importance. However, if not, the evolution of the }us ad bellum can continue without any interruption. This study supports the undisrupted evolution of the jus ad bellum, namely that the evolution of the jus ad bellum has never been interrupted throughout history.
237
Part III. Preventing Pretext for War
VIII. Conditions limiting Unilateral Use of Force
1. Easing Practical Dilemmas, the Pretext for War
Even if the legitimacy of a permissive interpretation and the evolution ofjus ad bellum
under the UN Charter would be broadly recognized, the concern for pretext for war remains.
However, empirical evidence shows that the concern for pretext for war is not based on
relevant state practice. Further, the concern can be eased by the application of detailed
conditions limiting unilateral use of force, if the conditions can be found in legitimate
sources of international law.
Scholars, and a probably a majority of states as well, are likely to oppose the
permissive interpretation of Article 2 (4). The practical reason for the opposition would
be, in fact, based on the concern for the pretext for war. A majority of scholars have
suggested the pretext objection. In particular, scholars such as Professor Richard Bilder, 1
Ian Brownlie,2 Louis Henkin,3 and Oscar Schachter,4 manifested their intention against
1 Professor Bilder argues that "historically claims of humanitarian intervention have practically served simply as a pretext for what are, in fact, selfish assertions of national interest, power, and greed." Richard Bilder, Kosovo and the New "Interventionism": Promise or Peril? 9 TRANSNAT'L. L. & PoL'Y. 160-1 (1999). 2 Professor Broulie argues that "whatever special cases one can point out to, a rule allowing humanitarian intervention, as opposed to a discretion in the United Nations to act through the appropriate organs, is a general license to vigilantes and opportunities to resort to hegemonial intervention.' Ian Brownlie, Humanitarian Intervention, in Law and Civil War, in THE MODERN WORLD 217-28 (John Norton Moore ed., 1974); Ian Brownlie, Thought on Kind-Hearted Gunmen, in HUMANITARIAN INTERVENTION AND THE UNITED NATIONS 139, 147-8 (Richard B. Lillich ed., 1973). 3 Professor Henkin argues that "these pressures eroding the prohibition on the use of force are deplorable, and arguments to legitimize the use of force in those circumstances are unpersuasive and dangerous ...
238 the humanitarian intervention based on the premise that states would exploit humanitarian
exception to justify military aggression.5 For the same reason, many states have opposed
legalizing humanitarian intervention. In the past five years, more than 133 states have
issued individual or joint statements rejecting the legalization of humanitarian
intervention.6 In addition, a couple of UN initiated documents also suggest maintaining
the Security Council's monopoly over the use of force for humanitarian purposes. 7 True,
if the question regarding the interpretation of Article 2 ( 4) or the acceptance of customary
law development is a matter of legal dilemma, the concern for pretext for war is a practical reason to oppose the justifiable unilateral use of force.
It, however, should be noted that the pretext objection - namely, thata perrmss1ve
'Humanitarian intervention' can too readily be used as the occasion or pretext for aggression." LOUIS HEKIN, How NATIONS BEHAVE: LAW AND FOREIGN POLICY (2d) 144-5 (1979). 4 Professor Schachter argues that "it is highly undesirable to have a new rule allowing humanitarian intervention, for that could provide a pretext for abusive intervention." OSCAR SCHACHTER, INTERNATIONAL LAW IN THEORY AND PRACTICE 126 (1991). 5 Ryan Goodman, Humanitarian Intervention and Pretext for War, 100 AM. J. INT'L. L. 107-8 (2006). However, this study opposes professor Goodman's view regarding his opinion on Professor Franck Thomas and Jane Sromseth. These scholars, although they opposed the codification of the humanitarian intervention at this time, admitted the necessity of humanitarian intervention if circumstances are provided for pure humanitarian purposes. See THOMAS FRANCK, RECOURSE TO FORCE 172, 185-6 (2002); Jane E. Stromseth, Rethinking Humanitarian Intervention: the Case for Incremental Change, in HUMANITARIAN INTERVENTION: L ETHNICAL, LEGAL, AND POLITICAL DILEMMAS 232, 257 (J. L. Holzgrefe & Robert 0. Keohane eds., 2003). 6 See e.g. Declaration of the South Summit, Habana, CUBA, April 10 - 4, 2000, para 54, available at http://www.g.77.org/Docs/Declaration G77Sumrnit.htm (last visited on December 8, 2006); Movement of the Non-aligned Countries, XIII Ministerial Conference, Cartagena, Columbia, April 8-9, 2000, Final Document para. 263, available at www.nam.gov.za/xiiirninconf/index.htrnl (last visited on December 8, 2006). 7 REPORT OF UN SECRETARY GENERAL'S HIGH LEVEL PANEL ON THREATS, CHALLENGES AND CHANGE, A MORE SECURE WORLD: OUR SHARED RESPONSIBILITIES 65-6 (2004); UN Doc. A/59/2005. REPORT OF THE SECURJTY GENERAL, IN LARGER FREEDOM: TOWARDS DEVELOPMENT, SECURITY AND HUMAN RIGHTS FOR ALL 33 (2005).
239 interpretation would bring pretexts for war -- has never been proved in real state practice.
As noted in Chapter III, many uses of force were merely the pretext for war. However, among them, no states ever tried to justify their use of force based on the humanitarian intervention; rather, states tried to justify their actions as self-defense. This empirical evidence shows that a pretext for war has nothing to do with the legal justification provided.
As self-defense did not guarantee the legality of North Korean's invasion of South Korea nor Iraq's invasion of Kuwait, the use of force with humanitarian intervention as a rationale would not guarantee the legality if the real purpose is inconsistent with the humanitarian purpose. Aggressive states are not likely to be bound by legal justifications, which are not of importance to them when committing typical acts of aggression. Thus, the premise for the pretext objection is not based on empirical evidence in state practice on the use of force.
Accordingly, as Professor Goodman recently argued,8 the pretext objection should not remain an obstacle in developing legal rules and related institutions.
Even if the pretext objection is not an important matter, a question still arises over whether there are relevant institutions that ease the concern for the pretext for war. If
8 Professor Goodman, based on the examination of the pretext model analysis, argues against the pretext objection. First, it fails to articulate a baseline of interstate hostility for measuring the effect of humanitarian intervention; second, it does not adequately consider the relationship between international and domestic process; third, it disregards the sociological effect of justifying the resort to force. Goodman, supra note 5, at 115-6.
240 there is a relevant institution, there would be a more promising way in reaching a consensus
between the two different approaches to the interpretation of Article 2 (4). In particular, if
there are specific conditions that strengthen the legality of the unilateral use of force, the
concern for the pretext for war can be eased by applying the conditions to limit the use of
force.
On the other hand, the conditions limiting the justifiable unilateral use of force should not be arbitrary, which may increase the controversies in their application. To be more legitimate as a legal condition, the conditions should be based on legitimate sources of international law. This is why this study examines specific conditions based on the sources of international law. As noted, most leaders and scholars would agree that Article
38 restates those sources that states have already come to acknowledge as authoritative9 and the rules also apply to the area ofjus ad bellum. 10 Thus, this study explores five main sources - treaty, customary international law, the general principles of law, judicial
9 Today, legal scholars and government leaders have accepted Article 38 of the statute of the International Court of Justice, regarding the sources of international law. Because the function of the Court is to decide disputes submitted to it "in accordance with international law" and since all member states of the UN are ipso facto parties to the Statute by virtue of Article 93 of UN Charter, there is no serious dispute that the clause expresses the universal perception as to the enumeration of sources of international law. See, e.g., IAN BROWNLIE, PRJNCIPLES OF PUBLIC INTERNATIONAL LAW (6d) 3-5 (2003); MALCOME N. SHAW, INTERNATIONAL LAW ( 5d) 66 (2003). 10 ANTHONY C. AREND & ROBERT J. BECK, INTERNATIONAL LAW AND THE USE OF FORCE 5 (1993).
241 11 decisions, and scholars' writings - that constitute the sources of intemational law.
Fortunately, this study found some conditions limiting the unilateral use of force in the sources on international law. It should be noted that these conditions limiting unilateral force are distinguished from legal justifications which mostly focus on the justifiable causes, or purposes, of the use of force. Thus, even if the use of force has justifiable cause or purpose, the use of force cannot be lawful if it fails to abide by specific conditions provided by sources of international law.
2. Conditions Limiting the Unilateral Use of Force
A. Triggering Conditions Provided by the UN Charter
As noted, drafters from sponsoring powers intended Article 2. ( 4) in a permissive way.
However, they did not intend unlimited unilateral use of force. Unilateral force can only be lawful, even under the permissive interpretation of Article 2 (4), when the use of force is consistent with the purposes of the UN. Thus, purposes provided in Article 1 of the
Charter should play as a triggering condition limiting unilateral use of force. In addition, even if there is the need for force to secure the purposes of the UN, the use of force must be
11 In addition to the provision, equity deserves to be noticed as the other source of international law. Article 38 (2) of the ICJ Statute provides "this provision shall not prejudice the power of the Court to decide a case ex aequo et bona (equity), if the parties agree thereto." However, as it articulates, equity can.be applied only when the parties agree. Therefore, equity can hardly be considered as an independent source ofjus ad bellum although it has some value.
242 consistent with the other limitation: collective measure. It should be noted that the UN
charter emphasizes that threat to the peace or breach of the peace would be addressed by
collective measures. Thus, as a matter of principle, the legality of unilateral use of force
can only be lawful after the Charter's security system fails. Considering that the UN
security system is based on the collective system operated by the Security Council,
unilateral use of force can only be lawful after the system does not work as intended: initial
discussion of the matter in the Security Council and the failure of the Security Council to
enforce its previous decision.
Threshold: the Use ofForce is Needed to Secure the Purposes ofthe UN
First of all, force is needed to stop severe breaches of the purposes of the UN Charter.
As noted, the premise of the discussion on the justifiable unilateral use of force is the need
for the use of force. In particular, the need must be consistent with the purposes of the UN, which otherwise would result in aggression. Even under the permissive interpretation,
force cannot be used lawfully if it is not consistent with the purposes of the UN.
The purposes of the UN are provided in Article 1 of the UN Charter. 12 Firstly,
12 Article 1 of the UN Charter provides that: The Purposes of the United Nations are: 1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law,
243 paragraph 1 of Article 1, which provides the fundamental purpose of the UN, is composed
of two parts: "to maintain international peace and security" is described as the primary
purpose, and the other parts - effective collective measures to prevent and remove the
threat to peace; suppression of acts of aggression or other breaches of peace etc. -- sets out
the means to achieve this primary purpose. 13 Paragraph 1 affirms "to maintain
international peace and security" 1s the mam purpose o f th e UN . 14 In particular, the
paragraph focuses on the prevention and removal of threats to peace, thus, acts of
aggression or other breaches of the peace is probably another aspect of threats to peace.
The other parts articulate the importance of peaceful settlement of international disputes.
On the other hand, the other paragraphs provide specific issues that the UN is going to
develop in the state of international relations. Principles such as equal rights and self-
determination of peoples in paragraph 2, international problems of an economic, social,
adjustment or settlement of international disputes or situations which might lead to a breach of the peace; 2. To develop friendly relations among nations based on respect for the principle of equal rights and self determination of peoples, and to take other appropriate measures to strengthen universal peace; 3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and 4. To be a centre for harmonizing the actions of nations in the attainment of these common ends. Available at http://www.un.org/aboutun/charter/. 13 BRUNO SIMMA ( ed), THE CHARTER OF THE UNITED NATIONS 50 ( 1994) 14 According to Judge Simma, the term "peace and security" address different, although interrelated or even overlapping, concepts: If 'peace' is narrowly defined as the mere absence of a threat or use of force against territorial integrity or political independence of any state (Article 2 (4)) ('negative peace'), the term 'security' will contains parts of what is usually referred to as the notion of 'positive peace.' This latter notion is generally understood as encompassing the activity which is necessary for maintaining the condition of peace. Id.
244 cultural, or humanitarian character, for human rights and for fundamental freedoms in paragraph 3 are those purposes that would contribute peaceful international relations. In sum, the purposes inscribed in Article 1 are "every state is assured that peace will not be broken, or at least that any breach of the peace will be limited in its impact."15 Thus, from thejus ad helium point of view, states are obligated under duties that should not pose threat to others and should not breach other purposes provided by Article 1. If the duty is breached, the UN is supposed to take collective measures, including the use of force, to address it.
Accordingly, even if a state is entitled to use its force based on a perm1ss1ve interpretation of Article 2 (4 ), the use of force should in the event of the following: threat to the international peace and security, breach of peace, act of aggression, equal rights, self- determination, and economic, social, cultural, and human rights. Massive crime against humanity is a good example. More often than not, force is needed to stop imminent massive abuse of human rights or those that have already begun, as the international community noticed in Sierra Leone, Liberia, Kurdish Iraq, and Kosovo. 16 The purposes consistent with the Charter, the justifiable causes, are the first condition limiting the
15 Id., at 51. 16 See supra, Chapter VII, Section 3.
245 unilateral use of force.
Initial Discussion Made by the Security Council as a Matter ofPeace and Security
Under Article 2 (7) of the UN Charter, states are prohibited to intervene in matters which are essentially within the domestic jurisdiction of another state. 17 Since states may have different views, based on their interests, on the circumstances that threaten international peace and security, the use of force would be more controversial if every state retained the right to decide the circumstances. Therefore, the Security Council should decide whether the matter at issue is a matter of international peace and security. This is the first step inthe Security Council's enforcement measures. 18 Today, almost all problems in relation to international peace and security are discussed in the Security
Council, and the members of the Council are likely to reach a consensus on the issue of whether international peace and security is threatened. 19 Thus, unless a threat is too
17 Article 2 (7) of the UN Charter provides that "Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII." See supra note. 18 The first step of the Security Council's enforcement measure is to decide that the matter before it does in fact threaten the peace. PETER R. BAEHR & LEON GORDENKER, THE UNITED NATIONS AT THE END OF THE 1990s 26 (1999). 19 After the end of Cold War, states dealt with more matters at the Security Council. Most likely, the collapse of a bipolar confrontation between the superpowers has freed the UN from some inhibiting deadlocks and has made possible some productive interventions which would previously have been unlikely. See Milton J. Esman, A Survey of Intervention, in INTERNATIONAL ORGANIZATION and ETHNIC CONFLICT 43 (Milton J. Esman & Shibley Telharni eds., 1995).
246 imminent to report to the Security Council, the matter in relation to peace and security must be reported and discussed in the Security Council and the Council must express concern on the issue, as it did in the Kosovo case. 20
On the other hand, there could be a situation where the use of force is too urgent to report and wait for the decision of the Security Council, e.g. the use of force to rescue nationals. In this case, the situation can be solved based on the same rationale as self- defense because the character of rescuing nationals from the threat of a foreign government is in fact that of self-defense. As the Charter provides, the self-defense action and the report to the Security Council can be lawfully made until the Security Council takes necessary measures. 21 Accordingly, if the threshold circumstance is urgent, bypass of the
Security Council can be acceptable; however, even in this case, the use of force should be reported to the Security Council after the measure is taken. 22
The Security Council Fails to Enforce its Previous Decision
20 The Security Council decided that human rights abuses occurred in Kosovo and condemned the non compliance ofYugoslavia. See the Security Council Resolution 1244 (1999), available at http://daccessdds.un.org/doc/UNDOC/GEN/N99/172/89/PDF/N9917289.pdf?OpenElement. 21 See Article 51 of the UN Charter, available at http://www.un.org/aboutun/charter/. 22 For example, when the U.S. bombed Sudan and Afghanistan in 1998, the U.S. reported to the Security Council that the use of force was justified as self-defense. On August 7, 1998, terrorists destroyed the U.S. embassies in Nairobi, Kenya, and Dar-es-salaam, Tanzania. The U.S. bombed a pharmaceutical plant in Sudan and a base in Afghanistan. The U.S. reported to the Security Council and claimed to have acted in self-defense under Article 51. For details, see MARK WEISBURD, USE OF FORCE: THE PRACTICE OF STATE SINCE WORLD WARil 95-6 (1997).
247 As a last trigger, the Security Council must fail to reach an authorization of the use of
force for the non-compliance with Security Council decisions. The drafters of the Charter
gave unprecedented power to the Security Council to carry out its primary responsibility for
the maintenance of international peace and security and its power to make binding
decisions on member states. 23 In addition, the Security Council is supposed to take
necessary measures to solve the matter through recommending provisional measures,
calling on member states to apply diplomatic and economic sanctions, or authorizing the
use of force for the non-compliance. 24 Under the scheme, the Security Council is
supposed to act to enforce its decisions, and this is· the reason why the Council gets unprecedented power. However, it is true that some necessary actions by the Security
Council were blocked by states exercising or threatening to exercise veto power. As noticed in Kosovo, the Security Council was stalemated in authorizing the use of force to enforce its previous decision, or a matter it already defined as a threat to the peace and security. 25
23 Article 24, 25 of the UN Charter, available at http://www.un.org/aboutun/charter/. 24 Article 40, 41, 42 of the UN Charter, id; CHRISTINE GRAY, INTERNATIONAL LAW AND THE USE OFFORRCE 144-5 (2000). 25 · The Security Council condemned Yugoslavia, and demanded ceasefire, but the humanitarian crisis continued. See the Security Council Resolution 1199 and 1203, available at http://www.un.org/Docs/scres/1998/ scres98.htm.
248 This exceptional circumstance is not provided in the Charter, and thus, remained for
the future discretion. As noted, the Vienna Convention on the Law of Treaties provides
that, unless there is no provision that provides ordinary meaning, or other subsequent
agreements, the words of a treaty should be interpreted "in their context and in the light of
its object and purpose."26 Indeed, there is no provision that provides ordinary meaning in
relation to the stalemate of the Security Council to enforce its previous decision. Thus,
the next step to implement the absence of the provision should be the object and purpose of
the UN Charter, which is ultimately to maintain international peace and security.
Accordingly, unilateral action to secure the purpose of the Charter can be consistent with
the object and purpose of the Charter, if the Security Council is in a stalemate to enforce
what it already recognized as a threat. True, if the Security Council cannot enforce its
previous decision, and if the delay of the enforcement authorization makes the situation worse and definitely hurts international peace and security, the international community needs additional resources to enforce its decision.
However, a question still arises regarding who would decide when the Security
Council is in a stalemate, or fails to act. In the case of Iraq in 2003, for example, the U.S.
26 ANTHONY AUST, MODERN TREATY LAW AND PRACTICE 187 (2002).
249 said the Security Council failed to act effectively while other permanent members such as
France, China and Russia viewed the matter differently. 27 Indeed, the question as to what
circumstance can be regarded as a stalemate in the Security Council can be hardly defined
because no provision is provided in the Charter, and state practice regarding the issue does
not provide answers. Thus, again, the meaning of Article 2 ( 4) and 51 does not clarify an
answer, the intention of drafters of the UN Charter is worth revisiting.
The U.S. Delegation, during the drafting process of Article 2 (4) and 51, regarded
that a state might have the right to act in an emergency, and if there was an allegation that
this action was contrary to the purposes of the Organization, the Security Council might
review it. 28 Further the Delegation believed that the U.S. could be protected through veto
power when the legality of the use of force to respond to an imminent threat is at issue in
the Security Council.29 Since they believed that anticipatory self-defense was included in
Article 2 (4), the procedural aspect of unilateral use of force can be applied to other uses of force that is consistent with the purposes of the UN Charter. Although it is uncertain whether the other sponsoring powers agreed to the U.S. intention, the Soviet Union showed
:: Michael J.Glennon, Why the Security Council Failed, FOREIGN AFF., May/June 2003, at 18-20. See supra Chapter III, IV. 29 See supra note in Chapter VI, 98-106.
250 similar understanding in relation to posting authorization measures. When the Dominican
Republic tried to assassinate Venezuela's President, OAS condemned the attempt and ordered countermeasures against the Dominican Republic. In the Security Council, the
Soviet objection to the precedent set by the OAS taking such "enforcement" measures without obtaining prior approval from the Security Council, tried to correct the defect by proposing retroactive authorization for regional sanction.30 Thus, it seems that the Soviet
Union also understood the procedural aspect in deciding the legality of unilateral use of force in the same way that the U.S. delegation understood .
. Under the view, it is the Security Council that has monopoly on the authority to decide the legality of the use of force. However, each state has the right to decide in an emergency whether or not the measure by the Security Council is proper. The only consequence of the unilateral decision and subsequent action is that the judgment would also be subject to the discretion of the Security Council. If the judgment is regarded, by the Security Council, as properly securing the purposes of the UN Charter, the legality of the use of force would be endorsed by the Council. On the other hand, if the judgment is
30 S.C.O.R. (XV), 893'd Meeting, S/4481/Rev. 1 (1960), September 8, 1960, at 2-5. For details, see FRANCK, supra note 5, at 56-7. Professor Franck points out that "The Soviet proposal had proceeded on the assumption that an "enforcement action" taken by the OAS without Security Council authorization could retroactively be legitimated by later Council acquiescence or approval.
251 improper, the Security Council would condemn the use of force and then the state, which
unilaterally used force, is in breach of peace and would be subject to sanction by the
Security Council. This is very Machiavelli-style realistic approach because, in this
formula, no permanent members would be subject to sanctions by the Security Council by
virtue of their veto power. When a permanent member state is dissatisfied with the
decision or action of the Security Council, the permanent member could act unilaterally or
collectively with its ally. Then, if other states bring the use of force to the table at the
Security Council, the permanent member state could use veto power to block further
measure against it. This formula was in fact criticized by other small states during the San
Francisco Conference, but, nevertheless, was included in the Charter's security system.
Thus, if the Security Council recognizes the threat to the peace, breach of peace, or act of aggression, but did not provide effective enforcement action that stops the threat or the breach, states recognizing an emergency to secure the purposes of the UN could act unilaterally. Then the legality of the unilateral use of force should be reported to the
Security Council, which would decide the legality retroactively. In fact, the Kosovo case was a good example which is consistent with this intention. Although NATO did not get the prior authorization of use of force by the Security Council, the unilateral use of force
252 was brought to the table at the Security Council for discussion, and the Security Council approved the use of force by rejecting the Russian proposal condemning the use of force. 31
The ECOWAS intervention in Sierra Leone and Liberia were also good examples because the unilateral use of force by regional organization was later supported by the Security
Council.32 The U.S. use of force in Iraq in 2003 is another case, although any resolution condemning the use of force has never been brought in the Security Council by the other states.
Lastly, it should be noted that, although the unilateral use of force intends to secure the purposes of the UN, the use of force can only be lawful after non-compliance of states that subject to the decision by the Security Council. If there is a decision made by the
Security Council and the targeted state is willing to abide by the decision, states can no longer assert the failure of the Security Council. Thus, no unilateral use of force can be justifiable. This non-compliance requirement has tremendous importance regarding the legality of unilateral use of force because it might only be a practical restriction for a state with veto power. Because the intention of the use of force to secure the purposes of the
31 The Security Council refused to condemn NATO's action. The Council rejected the Russian resolution calling NATO's intervention a violation of the UN Charter and a threat to peace and security by a vote of three in favor and twelve against. S/1999/328, 26 March 1999. 32 FRANCK, supra note 5, at, 158-9.
253 UN can be asserted based on arbitrary interpretation and the proposal condemning use of
force can be rejected by veto power, non-compliance is only a practical limit if permanent
members try to use their force unilaterally.
In conclusion, theoretically, the extraordinary circumstance which permits unilateral
use of force should only be justified when the Security Council fails to enforce its prior
decision after recognizing a threat to peace or a breach of peace. To be legitimate, the
unilateral use of force with justifiable cause must act upon three procedural requirements:
initial discussion and resolution; non-compliance by a sanctioned state; and the failure of
the Security Council to enforce its decision in spite of non-compliance. In the same
context, if the Security Council rejected the enforcement of its previous resolution, in the
form of veto or failure to get majority vote, it would be the action of the Security Council,
not a failure to act, and thus the Security Council's action should stand.
B. Conditions provided by Customary Law: Necessity and Proportionality
As examined in previous Chapters, customary international law provides the legal justifications for the use of force, e.g. anticipatory self-defense, the use of force to rescue nationals, and, possibly, humanitarian intervention. However, on the other hand, the oldest source of international law also provides specific conditions limiting the use of
254 force. 33 Traditionally, when force is used, the legality of the use of force, in addition to
the justifiable cause of the use of force, is dependent on the necessity and proportionality of
the use of force. In particular, necessity provides that a force should be the last resort after
all reasonable peaceful means are exhausted, while proportionality provides additional conditions that the magnitude, scope and duration of the force should be proper. These twin norms have been developed as a part of customary law and determine whether the situation warrants lawful use of force.
Necessity
Necessity may denote the original grounds for what was then exercised as a legally protected right, a description of a particular privilege or excusable act, or reference to the degree of danger which makes the action justifiable. 34 True, because necessity could be tangled with the pretext for the use of force, it can be criticized as too vague and susceptible to selfish interpretation to provide a sufficient basis for a legal regime. 35 However, as a rule and general description that justifies the use of force, necessity emerged as a customary norm even before 1945.
33 G J. H. VAN HOOF, RETHINKING THE SOURCES OF INTERNATIONAL LAW 85-117 (1983). 34 IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 48 (1963). 35 Id.
255 The role of necessity in customary international law can be found as a condition for
limiting self-defense. The earliest case might be the Caroline case, 36 in which Secretary
Webster provided the conditions on the use of force for self-defense based on necessity,
which is "instant, overwhelming, and leaves no choice of means and no moment for
deliberation."37 Although necessity has had a number of meanings in different contexts in
the relations between states over the years, it is probably the best known condition limiting
force that states perceived as an international obligation. 38 In addition, states agreed that
the use of force should be the last resort even in the area where states were entitled to .use
their force such as self-help and interventions.
Later, the term developed in customary law even after the adoption of the Charter.
The term "instant and overwhelming" in the Caroline formula requires the immediacy of
the threat. Thus, a considerable lapse of time between the events and the use of force would not provide justification for the use of force. Further, necessity also requires that
36 The origins of necessity can be found in the writings of Grotius and Vattel. Grotius identified three methods by which war could be prevented: by means of a conference, through arbitration and by lot. Hugo Grotius, De Jure Belli ac Pacis, trans. by F. Kelsey, in THE CLASSIC OF INTERNATIONAL LAW VOL.IL BOOK IL 171 (J. Scott ed., 1925). Vattel said war must have necessity to justify it: that is to say, that, to be lawful it must be the only remaining mode to a just satisfaction. E. D. Vattel, Le Droit des Gens, on Principles de la Loi Naturelle (1758) trans. by C. Fenwick, in THE CLASSIC OF INTERNATIONAL LAW 171 (J. Scott ed., 1925). 37 Available at http://www.yale.edu/lawweb/avalon/diplomacy/britain/br-1842d.htrn. 38 BIN CHENG, GENERAL PRINCIPLES OF LAW, 70-7 ( 1961)
256 force must be by way of a last resort after all peaceful means have failed. 39 In particular, necessity means the exhaustion or ineffectiveness of peaceful means of resolution with respect to the nature of coercion applied by the aggressor state.40 This might be the meaning "have no choice of means" in Caroline case. In fact, in most cases of justifiable unilateral use of force, such as in Kosovo, Sierra Leone, and to protect the Iraqi Kurds after the first Iraq War, diplomatic alternatives to the use of force had been tried and have failed.
These circumstances would require that states have good reason to believe that further diplomatic negotiations would not result in the government in question stopping the ongoing atrocities, and as a result, people would continue to die if no military action was taken.
Proportionality
The principle of proportionality, working in conjunction with necessity,. has been developed in the area ofjus in bello. It prohibits the intentional targeting of civilians, persons no longer taking part in fighting because of injury or surrender, and civilian property.41 In relation to thejus ad bellum, proportionality limits force in magnitude,
39 Id, at 71, 74. 4 ° For details, see JUDITH GRADAM, NECESSITY, PROPORTIONALITY AND THE USE OF FORCE BY STATES 148-55 (2004). 41 Id. at 14-15.
257 scope and duration to that which is reasonably necessary to counter a threat or attack and
achieve legitimate ends of force. Failure to satisfy either test renders the action
unlawful; however, the failure to satisfy the proportionality requirement in the jus in hello
will not prevent an action from being disproportionate under the jus ad bellum and vice
versa.42
Although the requirements of proportionality in the jus ad bellum had been
controversial, since the adoption of the UN Charter, there has been consistent agreement on
the need for any forceful action, irrespective of its legal basis, to be proportionate.43
However, the specific requirements ofproportionality, the question of proportionality in
recourse to war, are still at issue. In the context of self-defense, for example, Professor
Bowett measures the proportionality of the response against the danger,44 Judge Higgins,
against the injury being inflicted,45 and Professor Waldock argues in terms of what is
required for achieving the object. 46
On the other hand, the initial threat should be serious enough to resort to using force,
42 /d,atll. 43 H. WALDOCK, THE REGULATION OF THE USE OF FORCE BY INDIVIDUAL STATES IN INTERNATIONAL LAW 81 (1951). 44 D. BOWETT, SELF-DEFENSE IN INTERNATIONAL LAW 169 (1958). 45 Higgins, Problems and Process, p. 231, re-cited from J. Hargrove, The Nicaragua Judgment and the Future ofthe Law ofForce and Self-Defense, 81 AM. J. INT'L, L. 136 (1987). 46 WALDOCK, supra note 43, at 463-4.
258 and responding with a full scope of use of force against merely one shot at the border is not proportionate. In the same context, force should be ended if the purpose of the use of force is achieved. Thus, if the duration of the use of force lasts after the achievement of the purpose of the use of force, it would be a breach of proportionality.
In conclusion, necessity and proportionality in customary international law provide the following conditions limiting force: imminent threat, exhaustion of peaceful means, grave situation needing the use of force, proper scope and duration of force.
C. Additional Conditions in Scholarly Views: Effects Consistent with the Charter
The·· teachings of the most highly qualified publicists of the various nations are subsidiary means for the determination of rules of law. Indeed great achievements of international legal scholars were the engme of the international community's effort to establish international institutions and their rules. However, in relation to the }us ad helium, the scholarly views are too divided to determine any one prevailing viewpoint that is agreed upon by scholars. As seen in the debates between classicists and legal realists, scholars have contrasting views on every major issue of the }us ad helium, such as self- defense, 47 collective security, 48 and customary law. 49 Thus, when it comes to legal
47 When it comes to self-defense, at least three different issues are at controversy. First is the anticipatory
259 self-defense. Once there was a view that the right of self-defense can be invoked only in cases where armed attacks occurrs. However, most scholars, today, accept the right of anticipatory self-defense although they regard imminence as the key criterion. See, REPORT OF UN SECRETARY GENERAL'S HIGH LEVEL PANEL ON THREATS, CHALLENGES AND CHANGE, A MORE SECURE WORLD: OUR SHARED RESPONSIBILITIES 63 (2004 ). Second is the use of force to rescue nationals. Some scholars and governments have opposed the right of rescuing nationals in a foreign country, but some argue that if the government of the country is threatening or in support of the group - military or terrorists - the country whose nationals are threatened can lawfully, based on self-defense, rescue the nationals. Especially, as seen in the U.S. embassy in the Iran case, if a nation supports the terrorist or certain military hunta that takes other nationals hostage, the use of force without consent of the host nation is hard to see inconsistent with the purpose of the UN. For early practice on protection of nationals, see Bowett, The Use ofForce for the Protection ofNationals Abroad, in THE CURRENT LEGAL REGULATION OF THE USE OF FORCE 39 (Cassesa ed., 1986); for the view it is illegal, see Louis Henkin, The Invasion ofPanama under International Law: a Gross Violation, 29 COLUM. J. TRANSNAT'L. L. 293 (1991); Anthony D'Amato, The Invasion ofPanama was a Lawful Response to Tyranny, 84 AM. J. INT'L. L. 516 ( 1990). Lastly, there was the same style of debate in relation to the use of force to respond to terrorism. See AREND & BECK, supra note 10, at 138-76. 48 Collective security of Article 51 also contains some controversial issues. First is the use of force by regional organization. Chapter VIII of the Charter provides a possible role for regional organizations in helping to mediate festering hostility that, if left unattended, could lead to armed conflict see Tom Farer, Parameters of the Legitimate Use ofForce under the Regime of the UN Charter, http://www.un globalsecurity.org/pdf/Farer paper legit use of force.pdf. Although Article 54 of the Charter states that any enforcement action by such organization requires the approval of the Security Council, sometimes scholars supported the initiative .of the use of force by regional organization, which the others opposed. Further, some scholars even suggested the new legal paradigm of 'post Charter self-help,' or the idea of "implied authorization to use force." Where the states were not able to secure expressed authority to use force, they have sought to justify their use of force as impliedly authorized by the Security Council. This controversial argument emerged with regard to U.S. and U.K. action against Iraq and Kosovo. Ruth Wedgwood, The Enforcement ofSecurity Council Resolution 687, 91 AM. J. INT'L. L. 724 (1998); Lobel and Ratner, Bypassing the Security Council: ambiguous authorizations to use force, ceasefires and the Iraqi inspection regime, 93 AM. J. INT'L. L. 124 (1999). Others responded that their arguments are difficult to reconcile with the conditions of the UN jus ad bellum regime. 49 Customary law provides the most diverse source of debates. First is the existence of customary law. Some scholars opposed the existence of customary law regarding the jus ad bellum because the custom means mere breach of the Charter. However, others contend that "the advent of the United Nations neither terminated nor weakened the customary institution, and even after the UN Charter, customary law can be developed. Michael Reisman (with the collaboration of Myres S. McDougal), Humanitarian Intervention to Protect the Ibos, HUMANITARIAN INTERVENTION AND THE UNITED NATION (Richard B. Lillich ed. 1973), at 171; Second is the requirement of customary law. Even for those who support the development of customary law under the Charter, there has been conflicting views in relation to the requirement of it. Some argue that state practice only, because of the impossibility to examine opinio Juris, constitutes the customary law. See GLENNON, LIMITS OF LAW, PERROGATIVE OF POWER 75-84 (2001); others argue in favor of the traditional view that requires both. See Mary Ellen O'Connell, Taking Opinio Juris Seriously, in CUSTOMARY INTERNATIONAL LAW ON THE USE OF FORCE 9-30 (Enzo Cannizzaro & Paolo Palchetti eds., 2005); Third is the character of state practice. Some s.cholars have insisted that only physical acts count as state practice, which means that any state wishing to support or oppose the development or change of a rule must engage in some sort of act, and that statements or claims do not suffice. See Antrea E. Roberts, Traditional and Modern Approaches to Customary International Law: A Reconciliation, 95 AM. J. IN'T. L. 757, 789 (2001). However, many scholars opposed the view because it only provides powerful states a central role in developing customary law. See Ian Brownlie, Remarks in Comparative Approaches to the Theory ofInternational Law, 80 AM. J. IN'T. L. (1986); AKEHURST, CUSTOM AS A SOURCE OF INTERNATIONAL LA w ( 1994 ). Fourth is the detailed legal justification provided by the customary law. Scholars have taken different views on the legal justification of the use of
260 justification of the use of force, consensus between scholars 1s virtually impossible.
Moreover, the nature of scholarly discussion 1s to clarify the meanmg of the treaty,
customary law, and judicial decision. Accordingly, the teachings of scholars have a limited role in examining the existence of rules. Nevertheless, it should be noted that scholarly writing is a harbinger of new ideas. It suggests the way that the international community and its law should progress. The specific contents of the customary rules have been developed through introduction and explanation by scholars. Thus, scholarly teachings provide the specific details basic for the newly forming rule.
Detailed conditions that limit unilateral use of force can also be found in many writings of scholars. For example, Professor Reisman, providing nine criteria for the legal use of force, 50 indicated that the purpose of the UN could enhance the legitimacy of unilateral use of force. 51 In particular, scholars have suggested various conditions in relation to humanitarian intervention. Some leading primarily U.S.-based international
force based on customary international law, such as humanitarian intervention, use of force for self determination, and self-help. 50 They are self-defense, which has been construed quite broadly; self-determination and decolonization; humanitarian intervention, intervention by military instrument to replace an elite in another state; uses of military instrument within spheres of influence and critical defense zones; treaty sanctioned intervention within the territory of another state; use of military instrument for the gathering of evidence in the international proceedings; use of the military instrument to enforce international judgment; and counter measure such as reprisal. Michael Reisman, Criteria for the Lawful Use ofForce in International Law 10 YALE J. INT'LL. 281-2 (1985). 51 Id. at 282-5.
261 law scholars, including ardent defenders of the UN and the Charter-based legal order, argue that humanitarian intervention is legal when the following conditions are met: massive crimes against humanity is imminent or has begun; no time for recourse to the Security
Council or action by the Security Council; the action is reported to the Security Council; the intervention is carried out in good faith; the intervention complies with the humanitarian law of war and is reasonably calculated to cause the least amount of damage to innocent persons than would occur if the crime against humanity were allowed to proceed. 52 In particular, Professor Stromseth suggests that a good case can be made for elements of a normative consensus in favor·of humanitarian intervention in truly exceptional cases may gradually be developing: 53 the conditions reflected in the Kosovo intervention and the 1991 intervention to protect the Kurds in Iraq: severe violation of human rights as a triggering condition, the UN Security Council is unable to authorize action, force is necessary to stop atrocities, proportionality, humanitarian purpose and effect, collective action, and legal justification is offered. 54 These scholars provide almost all relevant issues that this study has examined in the discussion of triggering conditions,
52 F arer, supra note 48. 53 Stromseth, supra note 5, at 248-51. 54 Id.
262 necessity and proportionality, and good faith. Thus, this section will discuss the conditions which are not covered by the former discussion.
Close Relations to the Security Council
Although the justifiable unilateral use of force should be caused by a deadlock of the
Security Council, the circumstance does not mean that the Security Council is dead.
Rather, the intervention should maintain close relationship with the UN Charter, the
Security Council, even after the use of force occurs. In particular, the use of force should not be criticized or condemned by the Security Council. From the very beginning, the premise of justifiable unilateral use of force is when the Security Council is in a deadlock.
An exceptional case can be lawful under plan B, the permissive interpretation of the UN
Charter, because the Charter cannot work as intended. As this thesis had argued, this was the intention of the U.S. delegates, and probably that of other permanent members.55 Thus, a close relation with the UN Charter is ultimately needed even after the initial use of force. 56 This condition has practical importance in relation to post-intervention measures authorized by the Security Council.
55 See supra Chapter III, section 3. 56 Some scholars have argued for this close relation in the context of humanitarian intervention. See e.g. Stromseth, supra note 5, at248-9.
263 The legality of the use of force can be strengthened by the post-intervention measure
authorization by the Security Council. Although there is no established rule in relation to
the post-measure authorization by the Security Council, the practice of the Council
, evidences flexible application of the provisions of the Charter. For example, the Security
Council authorized the use of force under the command and control of a certain state in the
Korean War and the Gulf War, and the decision was broadly regarded as lawful.57 Thus, if
a use of force, even after the initial action, is endors.ed by the Security Council, the legality
of the use of force can be restored and strengthened. In fact, this case can be found in the
Council's practice. After the ECOWAS·established ECOMOG and intervened in the
Sierra Leone and Liberia, the use of force was reported to the Security Council and the
Council supported the intervention by ECOMOG. 58 Not surprisingly, the use of force by
ECOMOG was not criticized nor condemned by the international community. True, the
Security Council is the single most important institution that decides the legality of the use
of force. Thus, even if the Council failed to act when the use of force occurred, the defect
can be cured by the decision of the Council.
On the other hand, in the same context, the exceptional case should be ended if the
57 WEISBURD, supra note 22, at 55-8, I 03-7. 58 FRANCK, supra note 5, 158-9.
264 Security Council restores its original function. The use of force cannot be lawful from the
moment the Security Council criticizes, or condemns it. In this case, the intervening
state should retreat its force under collaboration with the Security Council, or the use of force constitutes a threat to the peace. For example, when the Soviet Union proposed a resolution condemning the U.S.'s intervention in the Dominican Republic in 1965, the
Security Council refused it by a majority vote. 59 In addition, the Russian proposal to stop
NATO's military action in Kosovo was opposed by an overwhelming majority. 60 If the proposals received a majority vote in the Council, the intervention cannot be lawful from that moment and should be ended. However, when it fails by majority vote, the legality of the use of force, although it does not necessarily.mean that the Council is in support of the use of force, cannot be regarded as unlawful if it also satisfies the other factors discussed in this section.
Collective Action
By employing a system of collective security, the UN hopes to dissuade any member state from acting in a manner likely to threaten peace, thereby avoiding any conflict.
59 See WEISBURD, supra note 22, at 223-4. 60 The Security Council refused to condemn NATO's action. The Council rejected the Russian resolution calling NATO's intervention a violation of the UN Charter and a threat to peace and security by a vote of three in favor and twelve against. S/1999/328, 26 March 1999; Stromseth, supra note 5, at 238.
265 However, even if the Security Council failed to authorize the use of force, some scholars take the view that the use of force may have greater support if it was based on collective action. As a result of collective action, Professor Stromseth noted that "the intervenors have to justify their action not only to their domestic publics but also their allies and to the larger mtemat10na. . 1 commumty. . ,,61 Accordingly, it would receive more credibility than the unilateral use of force by an individual state. In addition, it should be noted that to harmonize the actions of nations to maintain peace and security is the sole purpose of the
UN Charter. 62 Thus, organizing the actions of nations would have more conformity of the
Charter than otherwise.
On the other hand, scholars also argue that collective action might have greater credibility if it has collaboration with the regional organization.63 The Charter provides regional organizations a limited role in maintaining peace and security in the region, and regional organizations in many cases worked better than the UN. 64 Moreover, there has been a pressing need, from the field, to establish a proper division of labor between the UN
61 Stromseth, id., at 251. 62 Article 1 (4) of the UN Charter provides that "To be a centre for harmonizing the actions of nations in the attainment of these common ends ... " 63 Thomas Weiss, Collective Security and Humanitarian Intervention, http://www.un globalsecurity.org/pdf7Weiss paper hum intervention.pdf. 64 Id.
266 and regional organizations in effectively maintaining peace and security. 65 Thus, the use
of force by regional organizations would have greater credibility than a unilateral
intervention by an individual state. This might be one of the reasons that the humanitarian
intervention made by NATO and UNOMOG faced less criticism than the Vietnamese
intervention in Kampuchea.
Legal Justification Offered
As noted, this study found that the legal justification should be offered in connection
with good faith. Professor Stromseth argues that, as part of the development of
humanitarian intervention as an emerging norm of customary law, intervening states should
explain why force was necessary to stop immediate and serioµs harm to civilian
populations and that a legal basis existed for using force in such circumstances. 66 This
argument has already been proven in state practice. In the case of Kosovo and the Iraqi
Kurds, intervening parties provided legal justifications, and although there wasn't a clear
basis, the justification was not condemned by the Security Council. True, states would be
restrained from resorting to force if they do not have proper justification, and, by offering
65 The Brahimi report on reforming UN peacekeeping provides details on the subject of establishing an effective division oflabor between the UN and regional organizations. The Brahimi Report, Overcoming North-South Divide (2001), at 103-4, http://www.globalpolicy.org/security/peacekpg/reform/2001/brahimireport.pdf. 66 Stromseth, supra note 5, at 251.
267 legal justification, states are more likely to be bound by what they have said. Thus, this
condition could work for the prevention of the unilateral force.
In sum, teachings of scholars, although they are subsidiary sources of international
law, provide new conditions limiting force: close relation to the Security Council; collective
action, and legal justification offered and examined.
3. Matching Permissive Interpretation with Conditions Limiting Force
Even under the permissive interpretation, the purposes consistent with those of the Charter
cannot guarantee the legality of the use of force. The legality of the use of force should
also be tested by the specific conditions limited by other sources of international law. By
matching these two premises that the lawful use of force must follow, international society
can ease the concern for the pretext for war.
Under the permissive interpretation of Article 2 (4), a use of force can be lawful if it
is self-defense or authorized by the Security Council, and if the use of force is consistent
with the purposes of the UN Charter. However, the purposes of the use of force cannot
guarantee the legality of the use of force; rather these are limited by the other sources of the jus ad bellum. As noted, conditions limiting the use of force can be found in the Charter,
customary international law, general principles of law, the decision of international
268 tribunals, and the teachings of scholars. They can be summarized as below:
• The purpose of the use of force should be consistent with that of the UN
• The Security Council recognizes the circumstance as a threat to peace and security,
or the threat is too imminent to be reported to the Security Council.
• The Security Council fails to act in due course of the enforcement system in spite
of the non-compliance of the sanctioned state.
• Peaceful means are exhausted and therfore the use of force is the last resort.
• The situation is grave enough to resort to force and the scope of the force is proper.
• Close relations to the Security Council, by not bypassing or disregarding the
Security Council.
• Collective action as an incentive condition.
• Legal justification, based on truthfulness, should be provided.
This study believes that the concern for the pretext for war would not arise if states abide by these strict and detailed conditions. On the other hand, it should be noted that each source of international law, which provides these conditions, plays a complementary role with each other. One by itself cannot provide lawfulness of the force; rather altogether they can guarantee lawfulness.
269 Under any approach, the future evaluation of the legality of unilateral use of force with justifiable cause would be located in one of three assessments: the unlawful use of force, excusable breach, or a lawful one. This study is in support oflawful use of force if the purpose of the use of force is consistent with that of the UN Charter, and if it abides by all conditions discussed above. The use of force is not categorically unlawful because the
UN Charter was not drafted in that way. In addition, the excusable breach argument cannot provide a clear and solid rule that states can recognize and abide by. The excusable breach approach denies that .a case can be a precedent for others with the same circumstance, but this does not make sense. An excuse of unlawfulness for a certain use of force establishes a precedent. If not, the inconsistency of the excuse, excusable for one, while un-excusable to the other, would make international relations unstable and would be more easily used by states for the pretext for war. Again, it should be noted that Article 2
(4) was drafted with some uncertainties and flexibilities, and thus needs to be supplemented by other subsidiary rules. The application of other sources, such as customary international law, general principles of law such as good faith, judicial decisions, and the teachings of scholars, would fill the gap. Accordingly, this approach not only has proper foundation in the currentjus ad bellum regime under the UN Charter but also can ease the
270 concern for the pretext for war.
271 IX. Conclusion
After intensive examination on the preparatory work of the UN Charter, subsequent state
practice, and the development of relevant rules, this study reaches the following conclusion.
Classicists' Assumption Mis-focused
For decades, it was the UN Charter that provided the cause for the legal dilemma.
Article 2 ( 4) was understood in a prohibitive way, and thus any use of force, except when authorized by the Security Council, or in self-defense, could not be lawful under the majority view. The text of Article 2 (4), however, never articulates a prohibitive interpretation. Rather, it supports that force can be lawful if it is consistent with the purposes of the Charter. True travaux of the Charter, at first glance, seems to support the classicists' view. However, the drafters, the delegates of member states who gathered in
San Francisco in 1945, were all experienced diplomats, representing the best interests of their own states. Did they really not know the potential implication of the text, "refrain from ... inconsistent with the purposes of the Charter"?
This study has found that all the drafters understood the implication of the text, and after a long discussion, they agreed to the text because sponsoring states, under the belief
272 that the text represented their best interest, virtually led the Conference to adopt it. The
U.S. wanted the recourse to force, in pursuit of the purposes of the UN, if the Security
Council faced deadlock through a veto by the Soviet Union. The U.K. and the Soviet
Union did not want status quo in their border line. They won in drafting Article 2 ( 4) over
the smaller states. True, smaller states would be advantaged by a categorical prohibition
of the use of force. 1 Thus, they insisted on text with stronger prohibition of the use of
force, "refrain from ... inconsistent with the provisions of the Charter." However, the text
of Article 2 (4) shows who prevailed in the drafting process. Accordingly, Article 2 (4)
. should be interpreted as it is written. The classicists' assumption, the categorical
prohibition of the use of force was, in fact, never intended in Article 2 (4).
Realists' Approach Exaggerated
On the other hand, the so-called realists' assertion, the death of the Charter, is also
groundless. True, in many cases, the Charter could not provide an effective regime in both
limiting the use of force by states and bringing justice to the states. Article 2 ( 4) was
tainted by too many uses of force and Chapter VII was tainted by the tardiness of the
Security Council in maintaining international peace and security. Nevertheless, states'
1 JULIUS STONE, AGGRESSION AND WORLD ORDER 22 (1958).
273 effort to bind themselves under the provisions of the Charter had increased, and no state
ever openly announced that the Charter was dead. Furthermore, large-scale inter-state
conflicts have been exceptional since the end of the Cold War; most interstate uses of force
have been limited to border action for territorial disputes and civil wars which spill over
into neighboring states or are fuelled by outside involvement.2 The collapse of bipolar
confrontations between the superpowers has freed the UN from some inhibiting deadlocks and has made possible some productive interventions, which would otherwise have been unlikely. 3 In addition, state practice after the Cold War showed an expanded role~ and.is more·productive for the UN and regional organizations in regulating interstate uses of force. Accordingly, state practice does not reflect the death of Article 2 (4) of the UN
Charter. Rather, it shows the effort of states, or at least the tendency of states, to abide more closely to the Charter. At the very least, the two decade old analysis of Professor
Henkin, "International Society Works, at least it muddles through. There has been no big war, and there are cogent reasons to hope there will be none,"4 still applies.
The UN Charter has evolved and is still evolving
2 CHRISTINE GRAY, INTERNATIONAL LAW AND THE USE OF FORCE 51 (2002). 3 Milton J. Esman, A Survey of Intervention, in INTERNATIONAL ORGANIZATION and ETHNIC CONFLICT 43 (MILTON J. ESMAN & SHIBLEY TELHAMJ eds. 1995). 4 LOUIS HENKIN, How NATIONS BEHAVE: LAW AND FOREIGN POLICY (2d) 338 (1979).
274 This study has found that, among three scholarly views, the advocates of the
evolution under the Charter explain state practice in a most convincing way. The UN
Charter was not perfect when it was drafted; however, states filled the gap in the Charter's
security regime with their post-Charter practices. States, by pushing the limits of the
Charter's rules, demonstrated certain patterns in their legal justifications, and finally,
showed some consistency in their practice. The norms such as the use of force for self- defense, to protect nationals, to prevent imminent attack, to respond to terrorism, to assist self-determination, and to rescue a humanitarian crisis have been developed through state practice and some of these practices have become customary lawthat is in harmony with the Charter's norm. As a result, these consistent practices have significant implications for the evolution of the Charter'sjus ad helium regime. Indeed, the UN Charter was the outcome of the evolution of the jus ad helium, and the evolution has not been disrupted and is continuing today.
Rules for the Justifiable Unilateral Use ofForce
Unilateral use of force does not automatically constitute an act of aggression, and, in fact, sometimes is much more needed than the prohibition of the use of force. Parties opposing the justifiable unilateral use of force, although their concern for the pretext for
275 war of strong states generally makes sense, need to think about the causes which threaten
peace today. The need for force outweighs the need for prohibition in many cases. In
Kampuchea, Rwanda and Darfur, late or non-use of force cost the lives of millions of
people. In these cases, more lives were lost than in any previous military intervention
after the adoption of the Charter. The issue, of course, should be solved through the
mechanisms of the Security Council. However, if the Security Council fails to act, justifiable unilateral use of force conditioned by strict limitations discussed above would be better than watching the atrocities without any measures. Indeed, there is no practical reason to consider this use of force as illegal. In addition, there are enough legal grounds to regard this use of force as lawful.
True, most states have believed, or hoped, that Article 2 ( 4) would set categorical prohibition of the use of force. They acted upon this belief when they commented on the other uses of force. But, they also faced legal dilemmas when they met their own threat or circumstance in needing to resort to force. Thus, states justified their actions as self- defense; if impossible to invoke self-defense, they kept silent. In some cases, states even responded to some uses of force that were hardly condemnable, by naming the use of force as exceptional, hoping that the more isolated these exceptional instances remained, the
276 smaller their potential to erode the precepts of international law. 5
However, these arguments cannot solve the legal dilemma caused by the unilateral
use of force with justifiable cause. The argument that imperative political and moral
considerations may appear to leave no choice but to act outside the law may lead more
uncertain instances, and makes states detour or desuetude the Charter's regime. It would
be nothing but an evasion of the legal issue. The dilemma we face is a legal problem.
Thus, if there are exceptional circumstances, the circumstance should be dealt with through
laws applicable to the exception. Ruling out those exceptional circumstances from the
legal regime and considering the matters as one of a moral or political problem is not an answer. The dilemma can be described by contemporary international law, and can be solved within the UN Charter'sjus ad bellum regime. By returning to the original intention that was drafted in Article 2 (4), and by applying norms that have developed in the sources of international law, the international community can find the answer to this dilemma.
The Future of the Jus ad Bellum
International law is meaningless if it is far away from the reality of international
5 Bruno Simma, Nato, the UN and the Use ofForce:Legal Aspects, 10 Eu. J. lNT'LL. 21-2 (1999).
277 relations. If international rules governing the use to force are to endure, they must be built
upon and reflect the realities of international relations and the security needs that confront
the international community. 6 Thus, developing rules in the }us ad helium is also a policy
matter that seeks sustainable rules, which states are motivated to follow. The international
community, although it will be heading towards a more peaceful world, may face similar
circumstances found in Kosovo. The issue, granted, should be solved in the Security
Council; however, if the Council fails to produce agreed upon enforcement measures, what
should be the reaction of the member states? States would act based on their best interests,
and ·if conditions are met, - whether or not driven by strategic or economic reasons - some
states, advocating humanitarian intervention, would engage in order to stop the atrocities.
However, a legal question would remain for government officials and scholars: to solve the legal dilemma regarding the unilateral use of force with justifiable cause, which approach would work best in the future? Among four broad groups - categorical prohibition, excusable breach, emerging norm of customary law, the death of the Charter- this study is in support of customary law development, and even goes further to argue that the legitimacy of the approach is already found in the sources ofthe jus ad bellum. In this
6 JOSEPHS. NYE JR., THE PARADOX OF AMERICAN POWER: WHY THE WORLD'S ONLY SUPER POWER CAN'T Go IT ALONE 158-63 (2002).
278 approach, the jus ad hellum is to evolve in the direction oflevying more legal burdens to
the state using force, but, if they have a justifiable cause and abide by the conditions that
other laws require, the use of force should be considered lawful.
The discretion of some drafters, who prepared for the possibility of a deadlock,
reminds us of the duty to keep the Charter'sjus ad helium regime, by developing it through
the reflection of the reality of contemporary international relations. Article 2 ( 4),
therefore, opened the door for the evolutional approach to jus ad helium. The adopted
current language of Article 2 ( 4) leaves room for future deliberation to find the best way to
maintain international peace and security. A system can evolve· when it can reflect the
development of new ideas. A flexible approach, the permissive interpretation, permits
international society to deliberate in the best way - under the reflection of contemporary
ideas - to maintain international peace and security when the Security Council fails to act.
The Charter's security system will continue to evolve throughout and reflect the developing norms regarding the use of force. Permissive interpretation of Article 2 (4) can provide a promising way to achieve both reality and legality.
