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- Oxford University Press
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- 1467-7954
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- 1467-7962
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- 10.1093/jcsl/kry010
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Abstract
Abstract Article 2(4) of the United Nations Charter, detailing the prohibition of the threat or use of force between states, is undoubtedly one of international law’s most fundamental norms. Yet, its phrasing is awkward and ‘unhappy’, as one Delegate described it during the drafting of the Charter at San Francisco in 1945. Over 70 years of debate has yet to settle on an explanation of how the provision operates, and even the scope of the prohibition itself. While some argue that the prohibition is general and all-encompassing, others prefer a more narrow interpretation—often in an attempt to find undesirable loopholes in the rule. However, this author is not satisfied with either extreme position. This article investigates a more pragmatic interpretation of Article 2(4) that seeks to explain its mechanics and the inherent contradictions that come with the more popular wide interpretation of the provision, while also avoiding the undesirable consequences of an extremely narrow interpretation. It is the result of research that has looked back to the original intentions of the drafters of the UN Charter, and has uncovered revealing intentions and nuances in the debates therein that can clarify the doctrinal operation of the prohibition of force. In particular, instead of interpreting Article 2(4) as prohibiting all uses of force, with the powers of the Security Council and the right of self-defence as ‘exceptions’ to this, it is suggested that the prohibition was only ever one outlawing unilateral uses of force, and the so-called ‘exceptions’ are in fact circumstances that were never precluded by the prohibition in the first place. This may seem a semantic distinction, but the effects of this original interpretation are more substantive, and indeed help to explain some of the long-debated problems with Article 2(4). 1. Introduction The prohibition of the use of force in international relations is said to be a cornerstone of the United Nations (UN) Charter. Yet, for over 70 years, ambiguity and mystery still surrounds this key provision. There are two broad camps that interpret the prohibition differently.1 In one camp, the prohibition is interpreted restrictively, and is seen as allowing the use of force for humanitarian purposes, even without the authorisation of the United Nations. In the other camp, the prohibition is seen as an absolute and all-encompassing prohibition that covers all uses of inter-state force.2 However, there are fundamental problems with both interpretations. Firstly, while some of the arguments for a restrictive interpretation have merit, they go too far in allowing for the unilateral use of force by states—ie without the authorisation of the United Nations. As we shall see, the drafters of the UN Charter drew a very clear line whereby the use of force beyond the control or approval of the United Nations was not permitted. Secondly, the all-encompassing interpretation of the prohibition creates two apparent paradoxes that do not stand up to scrutiny.3 The first paradox relates to the fact that the United Nations Security Council has the power to use force for the maintenance of international peace and security, yet both the Council and Member States are also bound to act in accordance with the purposes and principles of the Charter when doing so—one of those being the very prohibition of force itself.4 The second paradox arises from the nature of the prohibition of force as a norm of jus cogens—one that cannot be derogated from. If Article 2(4) really were an all-encompassing prohibition with jus cogens status, it is difficult to reconcile this exclusion of derogations with the fact that there are two very clear instances where the use of force is lawful—in self-defence, and with the authorisation or command of the UN Security Council. These instances are often seen as ‘exceptions’ to Article 2(4). While, strictly speaking, ‘exceptions’ are not always the same as ‘derogations’, it is argued below that a treaty provision which allows a generally-applicable rule to be ignored could be considered as such a ‘derogation’ if that treaty provision does not also have the status of jus cogens. In other words, a treaty provision which provides for an ‘exception’ to an all-encompassing rule could be considered a derogation of a jus cogens norm if that exception is incapable of attaining the status of jus cogens. It is argued in this article that those treaty provisions providing for the powers of the Security Council in particular could not achieve such a status, especially considering the fact that they are incapable of binding states that are not Members of the United Nations. This article offers an explanation for these ‘inherent contradictions’ by suggesting that the original meaning of Article 2(4) was different during the drafting of the Charter, and this original interpretation has been lost through generalised and imprecise understandings of the mechanics of the provision over the past 70 years. By looking back to the drafting of the Charter to investigate its original purpose, the article finds that Article 2(4) was only ever intended to apply to unilateral uses of force, and was carefully constructed in a way so as to allow force to be used on behalf of the Security Council and in pursuit of a limited right of self-defence. The significance of such statements and reports during the drafting of the Charter seems to have been overlooked by previous research that has investigated these preparatory debates. In light of these findings, the main argument of this article is that the prohibition of force was never intended to be an all-encompassing prohibition of all uses of force in international relations. It suggests that the powers of the Security Council, and the right of self-defence, are not ‘exceptions’ to the prohibition of force in the traditional sense, but are instead instances that are simply not covered by the prohibition in the first place. In other words, the scope of Article 2(4) simply does not cover those instances of the use of force, and this therefore explains these inherent contradictions. The distinction is subtle, but the implications may well be profound. This is because the original interpretation suggests that Article 2(4) may also act as a limitation on the powers of the Security Council. However, it is also argued that this original interpretation, based upon these preparatory debates, is not inconsistent with the contemporary understanding of the effect of the prohibition of force, but instead offers a different explanation for how the prohibition operates and how it achieves its main legal effects. 2. Article 2(4) and Over 70 Years of Debate A. The Sources of the Prohibition Article 2 of the UN Charter states that ‘The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.’ Article 2(4) stipulates: 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. Many commentators have considered the meaning of ‘force’ and what types of coercive action may be included in its definition.5 Others have considered the meaning of ‘international relations’ and how far this restricts the scope of the prohibition to the use of force between states, compared to using force to intervene in internal matters such as civil wars, or against non-state actors.6 The focus of this article, however, is on the scope of the prohibition between states in general and its relationship with the circumstances where force is lawful. The prohibition of force is also a recognised rule of customary international law. The International Court of Justice (ICJ) in the Nicaragua Case7 noted the existence of this prohibition in custom and explained the interplay between the prohibition as a treaty-based rule, and as a customary rule. The Court reasoned that although these principles would certainly overlap, they maintained a separate existence.8 Importantly, the Court rejected any argument that these rules were identical, stating: The Court has not accepted this extreme contention, having found that on a number of points the areas governed by the two sources of law do not exactly overlap, and the substantive rules in which they are framed are not identical in content.9 In fact, the Court noted that there are some areas where the scope of the two prohibitions certainly diverge, such as in the realm of self-defence where Article 51 of the Charter requires acts of self-defence to be reported to the UN Security Council, potentially rendering a use of force that does not comply with this rule unlawful, whereas there is no such comparable rule in custom.10 The reason for maintaining a separate existence between customary law and treaty law was inherent in the very nature of that case—different rules may be applied in different contexts, and may even be subject to different institutional tools by which they can be given effect or enforced.11 But, the Court was sure to emphasise that the two rules did flow from a common point: The essential consideration is that both the Charter and the customary international law flow from a common fundamental principle outlawing the use of force in international relations.12 The Court looked to several declarations of the UN General Assembly for evidence of opinio juris, and to shed light on the customary principle of the prohibition of force.13 For example, the Court looked to the Friendly Relations Declaration14 as evidence of opinio juris establishing customary international law relating to the prohibition of force.15 In this declaration, states proclaimed and expanded upon many principles of international law. Most relevantly, the declaration proclaimed: The principle that States 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.16 Clearly, this is almost a word for word duplication of the principle that exists in Article 2(4). We may assume, therefore, that the pronouncements that followed this principle in the declaration might also aid the interpretation of the prohibition in the Charter, notwithstanding the application of specific mechanics of the Charter regime. This follows the rules of the Vienna Convention of the Law of Treaties,17 which is now also considered to reflect customary international law,18 where any subsequent agreement or practice of states can be taken into account in the interpretation of a treaty provision.19 Thus, certain declarations by the General Assembly relating to this principle may shed light on the types of force prohibited, or the circumstances in which such force is prohibited by that principle. B. Common Interpretations of Article 2(4) There are two main competing interpretations of Article 2(4) that are worth highlighting from the outset.20 The first approach reads the prohibition in its widest possible sense, treating it as a ‘general prohibition’ of the threat or use of force in international relations. In other words, it is said to apply to all but ‘internal’ uses of force—a blanket ban—leaving no room or flexibility for new exceptions to arise through state practice or custom.21 According to this view, all uses of force outside of self-defence are a violation of Article 2(4), unless specifically authorised by the Security Council. This position relies on the same reading of Article 2(4) as this ‘general prohibition of force’, with the powers of the Security Council in Chapter VII of the Charter as the ‘exceptions’ to this general rule. Accordingly, the use of force by or on behalf of the Security Council would be covered in principle by the primary rule in Article 2(4), but excluded by an exception in a secondary rule elsewhere in the Charter. The second approach interprets Article 2(4) much more narrowly. Accordingly, the prohibition is open to further exceptions beyond the commonly accepted roles of self-defence and the powers of the Security Council—and is said to include the so-called right of unilateral humanitarian intervention. This position generally relies on the suggestion that the use of force is lawful if: (i) it does not violate the territorial integrity of the state; (ii) it does not jeopardise the political independence of the state; and (iii) that the use of force itself is conducted in a manner consistent with the Purposes of the UN Charter. Those who advocate for this position argue, for example, that the use of force could be legal where it does not result in a ‘territorial conquest or political subjugation’ and thus does not violate the territorial integrity or political independence of the target state, 22 so long as it is also in pursuit of, or consistent with, the Purposes of the UN under Article 1 of the Charter. Such a purpose, some argue, may include the protection of human rights.23 Therefore, we have two extremes in interpreting Article 2(4)—an all-encompassing prohibition (the ‘wide interpretation’) or a prohibition that is qualified and leaves room for lawful uses of force (the ‘narrow interpretation’).24 We shall now address the inherent contradictions that emerge if we accept the more popular ‘wide interpretation’. 3. The ‘Inherent Contradictions’ of Article 2(4) A. Article 2(4) and the Powers of the Security Council It is obvious that the UN Charter allows the Security Council to use force. We know this because Article 42 of the Charter, for example, grants the Council following power: Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations. Additionally, the Council’s ability to use force is explicitly referred to in Article 44, where it states: When the Security Council has decided to use force it shall, before calling upon a Member not represented on it to provide armed forces in fulfilment of the obligations assumed under Article 43, invite that Member, if the Member so desires, to participate in the decisions of the Security Council concerning the employment of contingents of that Member's armed forces.25 Because of the ability of the Security Council to use force, supporters of the ‘wide interpretation’ of Article 2(4) arrive at the simple conclusion that this power is an exception to the prohibition.26 However, although these provisions refer to the use of force, they do not provide any explicit exception that limits the application of Article 2(4).27 The Security Council is bound by Article 24(2) to ‘act in accordance with the Purposes and Principles’ of the Charter when exercising its powers. The ‘Principles’28 include the prohibition of force, and also respect for the principle of sovereign equality,29 which includes respect for territorial integrity and political independence—according to discussion during the drafting of the Charter,30 and the Friendly Relations Declaration.31 Therein lies an inherent contradiction in the wide interpretation of the prohibition of force—if Article 2(4) really was a blanket ban on force, it would mean that the Charter would require the Council, when using its powers, to act in accordance with a Principle that essentially excludes the type of force foreseen in those very powers. There are, however, arguments that seek to explain this contradiction. Carswell, for example, offers a solution based upon an interpretation of Article 2(4) itself, while maintaining a wide interpretation of the prohibition.32 In particular, Carswell suggests that the prohibition only applies to Members of the UN, rather than the Organisation or the Security Council itself.33 This is based upon the fact that Article 2(4) refers to ‘all members … ‘refraining from the threat or use of force. In this regard, Carswell also goes on to suggest that a consequence of the Security Council delegating powers to Member States for enforcement action is that those states are acting on behalf of the UN Organisation and thus are not captured by Article 2(4).34 He therefore stresses that ‘as long as the actions of UN states can be ascribed to the Security Council, they are the actions of the UN Organization as such and are not captured by Article 2(4)’.35 There are some fundamental problems with this interpretation. First, it ignores the effect of Article 48 of the Charter. Article 48 requires: 1. The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine. 2. Such decisions shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members.36 The intention of Article 48 does not seem to be to stipulate the actor to which the use of force should be attributable to when undertaking enforcement action. But, by requiring Member States to directly undertake this action, or to do so through their membership of other international organisations, it clearly indicates who must undertake the use of force to carry out binding Council decisions.37 While Article 48 may have been inserted with the intention of utilising the armed forces that were originally to be provided to the UN under special agreements in accordance with Article 43, since such agreements never transpired, Article 48 as a standalone provision certainly leaves room for states to use force without necessarily being under the formal command of the Security Council. In other words, Article 48 remains compatible with the Council’s recent practice of authorising Member States to use force, rather than commanding them to do so.38 Carswell’s argument also disregards the fact that, in authorisations to use force by the Security Council, the Member State concerned may not be under any chain of command linking the conduct of a state’s national forces to the United Nations. According to the International Law Commission’s (ILC) commentaries to the Draft Articles on the Responsibility of International Organisations:39 … [the] conduct of military forces of States or international organizations is not attributable to the United Nations when the Security Council authorizes States or international organizations to take necessary measures outside a chain of command linking those forces to the United Nations.40 Carswell’s argument that the Council’s powers are ‘delegated’ when authorisations are made, and thus actions are attributable only to the Security Council,41 seems unconvincing in light of the ILC’s commentary—for the Commission specifically excluded attribution to the UN in cases of authorisations.42 Similarly, while it is not the intention of this article to go into the debate surrounding the attribution of conduct for UN-controlled forces such as those utilised for Peacekeeping,43 one would argue that it is a legal fiction to suggest that a Member State would not be ‘using force’ for the purposes of Article 2(4) simply because those actions might be attributable to the UN for the purposes of determining legal responsibility for other internationally wrongful acts.44 In all cases of forcible action by the Council, Members will always be the ones ‘using’ such force. Thus, there is a question as to whether this force, even though authorised or ordered by the Council, is consistent with the Members’ obligations under Article 2(4). In light of this, as well as being obliged itself to act in accordance with the Principles in Article 2, there also seems to be an indirect obligation on the Council not to order Members to do something that likewise would not be in accordance with those Principles.45 After all, could it be said that the Council was acting ‘in accordance’ with such Principles if it allowed or encouraged Members to violate or ignore them?46 And so, the wide interpretation of Article 2(4) cannot explain why Members using force on behalf of the Council is consistent with the prohibition. Still, there is merit in Carswell’s general suggestion that Article 2(4) simply does not include the powers of the Security Council within its scope. As we shall discuss below, this was the original intentions of the drafters of the Charter—they just meant it differently to how Carswell interpreted the provision. B. Jus Cogens and the ‘Exceptions’ to Article 2(4) A second paradox with the wide interpretation of Article 2(4) comes from its status as a jus cogens norm. It is widely accepted that Article 2(4) is also a norm of ‘jus cogens’—a peremptory norm of general international law.47 Although some might question this point,48 it is not the purpose of this article to investigate this, so we will proceed on the assumption that the prohibition is jus cogens. Article 53 of the VCLT states: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. This provision sheds light on what jus cogens might look like.49 The key characteristic for our purposes is that ‘no derogation is permitted’ by a jus cogens norm. According to the Oxford English Dictionary, a ‘derogation’ is the ‘partial abrogation or repeal of a law, contract, treaty, legal right, etc’,50 and the Oxford Advance Learner’s Dictionary defines a ‘derogation’ as ‘an occasion when a rule or law is allowed to be ignored’.51 On the other hand, an ‘exception’ is defined as: ‘Something that is excepted; a particular case which comes within the terms of a rule, but to which the rule is not applicable; a person or thing that does not conform to the general rule affecting other individuals of the same class’.52 This definition suggests that an exception must first come within the terms of a rule—ie a lawful use of force must first be one that is generally covered by the prohibition in question (the primary rule), but is excluded from the scope of that prohibition by another corresponding rule (a secondary rule). To explain, Helmersen uses the following definition of ‘exception’: ‘a special situation excluded from the coverage of an otherwise applicable rule’.53 Helmersen also argues that ‘exceptions’ are not the same as ‘derogations’ for the purposes of jus cogens: Exceptions limit the scope of rules. This means that an apparent derogation that is covered by an exception is not a derogation, since it regulates something that is outside the scope of the rule. For example, rule A prohibits X, Y and Z, but has an exception in rule B that says it does not cover Y. If two states conclude a treaty that allows Y between them, the treaty is not a derogation from rule A. Nor is the treaty a derogation if rule A by its scope covers only X and Z.54 If we follow Helmersen’s logic, the ‘exceptions’ to the prohibition of force might be found in separate rules that limit the scope of the prohibition itself. Therefore, Article 51 of the Charter might be a separate rule allowing for self-defence, and likewise with the powers of the Security Council in Chapter VII. The problem is that, while ‘exceptions’ are not always the same as ‘derogations’, any treaty provision which provides for a power or right which could allow a generally-applicable jus cogens rule to be ignored could be considered as such a ‘derogation’ if that treaty-based norm does not also have a corresponding status of jus cogens.55 In other words, the ‘exceptions’ to Article 2(4)—if it was an all-inclusive prohibition—must also have the status of jus cogens so that they are not derogations from that jus cogens rule. This is based upon the fact that, when the prohibition of force became jus cogens, it attained a ‘separate’ status within ‘general international law’. From that point on, according to Article 64 of the VCLT, any existing treaty provision which is in conflict with a newly-established norm of jus cogens becomes void and terminates. How, then, can the provisions of the UN Charter allowing for the use of force be reconciled with the fact that Article 2(4) has attained such a status? Linderfalk56 argues that this is because ‘the relevant jus cogens norm cannot possibly be identical with the principle of non-use of force as such. If it were, this would imply that whenever a state exercises a right of self-defence, it would in fact be unlawfully derogating from a norm of jus cogens’.57 Green58 and Linderfalk offer an explanation by suggesting that the jus cogens prohibition of force must also contain the exceptions of the Charter built into the rule itself.59 To support this, they both construct possible versions of the prohibition that might reflect the norm in jus cogens by broadly defining the norm itself to encompass the exceptions to the prohibition.60 For example, Green suggests the jus cogens version of the prohibition might say: The use of armed force directed against the territorial integrity or political independence of any state or which is in any other manner inconsistent with the purposes of the U.N. is prohibited other than when it is employed in a necessary and proportional manner in response to an armed attack by another state against a member of the UN or when authorized by the Security Council under Article 42 of the UN Charter, following a threat to the peace and breach of the peace or an act of aggression as determined by the Security Council.61 Both Green and Linderfalk note the impracticalities and unattractiveness of this approach.62 Notwithstanding their lack of drafting perfection, these suggestions are in line with the idea that the prohibition of force includes the relevant ‘exceptions’ within its scope, so as to ensure that any treaty-based provision reflecting those exceptions are not derogating from an all-inclusive prohibition of force. Linderfalk and Green are essentially creating their own qualified version of Article 2(4), and this could work so long as those qualifications (ie the powers of the Security Council, the right of self-defence) are capable of having the status of jus cogens too.63 Orakhelashvili takes a much more extreme step, suggesting jus ad bellum as a whole is jus cogens, arguing: ‘if the very prohibition of the use of force is peremptory, then every principle specifying the limits on the entitlement of states to use force is also peremptory’.64 Green disagrees with this argument, even if we were to envisage a ‘jus cogens network’ of norms relevant to jus ad bellum, because for many of the rules within the jus ad bellum it might be difficult to make a case for their peremptory status.65 Unfortunately, neither Orakhelashvili’s argument nor Green and Linderfalk’s approaches are very convincing, because they require us to accept the assertion that the powers of the Security Council and self-defence also have the status of jus cogens, as we shall now discuss. (i) Security Council Powers as Jus Cogens? As Linderfalk rightly discusses, the powers of the Security Council in Chapter VII of the Charter must also at least form part of customary international law to achieve jus cogens status.66 This would be inherently difficult if non-Member States have not accepted the jurisdiction of the Security Council so as to create such a customary rule. A similar conclusion is reached by Helmersen, where he suggests: An exception reflecting Article 42 would have to be created by state practice and opinio juris. With the existence of the UN Charter, UN member states using force on the basis of the Charter would simply be obeying the Charter, and not simultaneously generating state practice in favour of the existence of a concurrent customary rule. State practice would have to be generated by non-members.67 If non-Member States cannot be bound by the jurisdiction of the Security Council, no ‘exception’ to the jus cogens prohibition of force allowing for such powers can exist as part of any construction of the jus cogens rule itself, because that ‘exception’ is not capable of binding states as a whole. In custom, it is unlikely that there exists any comparable rule binding all states to the powers of the Security Council, especially in the scenario where a state has not signed up to the UN Charter.68 Even in the General Assembly declarations, the lawful uses of force are given effect by statements such as: Nothing in the foregoing paragraphs shall be construed as enlarging or diminishing in any way the scope of the provisions of the Charter concerning cases in which the use of force is lawful.69 These limitations in the declarations stipulate that those provisions in the Charter remain unaffected—not that they are also exceptions for states who have not signed the Charter. There is no obvious customary exception explicitly allowing the Security Council to use force as a standalone customary power. In fact, there is much more evidence to the contrary that suggests non-Members are in fact not bound by the Security Council’s decisions. The ICJ’s Advisory Opinion on the Continued Presence of South Africa in Namibia70 acknowledged that non-Members of the UN were not bound by Articles 24 or 25 of the Charter—the key provisions granting the Security Council its powers, and requiring states to accept and act in accordance with its decisions.71 Additionally, the practice of non-Member States is also important here. As Vitzthum highlights,72 before Switzerland became a Member of the UN it decided autonomously whether or not to participate in measures adopted by the Security Council.73 Similarly, the Federal Republic of Germany, while a non-Member during the situation concerning Southern Rhodesia, voluntarily participated in sanctions as called for by resolutions such as Resolution 232 (1966)74—but still maintained that it was participating in these sanctions ‘in spite of the fact that the Federal Republic of Germany is not a Member of the United Nations’.75 (ii) Self-Defence as Jus Cogens? Self-defence is referred to in Article 51, where it states: Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain 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 and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. Article 51 is not an explicit exception to Article 2(4) itself. Rather, as evident in the opening words of the provision, one could say that Article 51 is a ‘limited’ exception to the whole Charter, due to the fact that the exception itself maintains the jurisdiction of the Security Council over the maintenance of international peace and security, and in fact even goes further still to require that any ‘[m]easures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council’. Furthermore, Article 51 refers to a state’s ‘inherent’ right of self-defence. This phrasing has been determined by the ICJ to indicate the existence of the right in international customary law.76 Based upon this interpretation, the Charter gives effect to a customary law rule, while also binding its Members to the limitation it places upon the use of the customary right as it maintains the jurisdiction of the Security Council. By its existence in customary international law, one could certainly infer that the right of self-defence is capable of achieving the status of jus cogens. Consequently, the right could also theoretically form part of any general construction of the jus cogens rule and not necessarily a derogation that would render the rule unlawful. But, whether self-defence can be said to have jus cogens status is far from clear, with commentators offering opposing views on this matter, particularly in light of the absence of any declaration by states.77 Furthermore, if the right of self-defence had jus cogens status, and therefore could not be derogated from, the limitation imposed in Article 51 of the UN Charter that self-defence only applies until the Security Council steps in to take necessary measures to maintain or restore peace and security must also be explained.78 This is clearly a restriction of the right of self-defence for Members of the UN, and we therefore run into the same problem regarding the powers of the Security Council being unable to obtain jus cogens status. (iii) Other Explanations of the Jus Cogens Contradiction One argument seeking to explain the jus cogens problem suggests that jus cogens does not require a rule to be recognised as such by all states—but simply a vast majority of states—notwithstanding the fact that Article 53 of the VCLT refers to jus cogens being accepted by states ‘as a whole’.79 In this sense, Kahgan makes the following argument: Obviously, no norm could realistically be considered a principle of general international law if it did not, at a minimum, meet the criteria of acceptance and adherence required for customary international law. However, whether a norm has been denominated or identified as customary international law should not frustrate, eliminate, or immunize its categorization and recognition as a norm of an even more profound nature, such as jus cogens. That inquiry requires assessment of the extent of recognition and acceptance such as would cause its elevation to the status of general international law, whereby it would bind even nonconsenting states.80 Unfortunately, Kahgan goes too far here. There is a fundamental difference between: (i) a state accepting that a norm they are already bound by constitutes jus cogens; and, (ii) a state not consenting to be bound by that rule altogether. The fact that a state may not have signed up to the UN Charter, and thus not yet consented to the jurisdiction of the Security Council, is crucial to this point. Article 53 of the VCLT specifically states that jus cogens ‘is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted … etc’.81 Surely, no matter what the threshold or legal test for ‘elevating’ a norm into one of jus cogens and being recognised as such by the international community as a whole, a rule must actually bind all of that international community in the first place?82 Even leaving such debates aside, the only other alternative would be to argue that the UN Charter is some form of ‘world constitution’—a supranational authority that transcends the sovereignty of states with the ability to bind non-Members.83 However, this is not a viable solution either. It is more widely accepted in the literature that the UN has no such status, and there has not been any authoritative indication of this being the case by the international community.84 Finally, another alternative could be to suggest that the jus cogens version of the prohibition is one which prohibits only the use of force not authorised by the Security Council, or not in self-defence in response to an armed attack.85 This position certainly alleviates the problems outlined, and is very closely linked to the interpretation preferred by this articles’s findings, as outlined below. However, the statements by states accepting the jus cogens nature of the prohibition do not refer to such a precise formulation—the preference, as outlined by Corten, is to treat Article 2(4) itself as the jus cogens principle, or at least the formulation found within that provision.86 Any alternative formulation also creates a distinction between Article 2(4) and the jus cogens version of the norm—a distinction that has never been recognised by states, and is not compatible with the practice that accepts Article 2(4) as having jus cogens status.87 In light of these arguments, there are two possibilities. Either the prohibition of force is not a blanket ban on force at all, and allows for the Security Council’s powers and self-defence within the rule itself, or Article 2(4) is not a norm of jus cogens. Based upon the wide acceptance of the status of the prohibition as jus cogens, the answer certainly does not seem to be the latter. As we shall now explore, the very wording of Article 2(4) is sufficient to provide for these ‘exceptions’ built within the rule itself. 4. Seeking an Explanation—Back to San Francisco A. Recourse to the Preparatory Works of the Charter The general rule of interpreting treaties in Article 31 of the VCLT requires, in the main, that a treaty should be interpreted in good faith in accordance with the ordinary meaning of the terms within, taking into account the context and the object and purpose of the treaty. Article 32 of the same treaty allows recourse to the preparatory works of the treaty as a supplementary means of interpretation to either confirm such an interpretation based on Article 31, or to determine the true meaning when the ‘ordinary meaning’ of the terms (i) leaves the meaning ambiguous or obscure; or, (ii) leads to a result which is manifestly absurd or unreasonable. The ordinary meaning of the terms in Article 2(4), especially ‘territorial integrity’ and ‘political independence’, have never been completely settled. This is primarily because they are not ‘ordinary terms’ in themselves—they are, of course, constructions of legal principles adopted by states with many different political underpinnings. Even if some of the interpretations of those terms can be accepted, especially when they result in the wide interpretation of Article 2(4), they may well lead to manifestly absurd results such as the inherent contradictions that we have just outlined. Therefore, there is a great need to revisit the preparatory works of the Charter to either confirm interpretations of Article 2(4), or determine its true meaning. B. Back to San Francisco: Explaining the Construction of Article 2(4) The so-called ‘Dumbarton Oaks Proposal’ is the proposal put forward for debate as a basis for a new International Organisation by the original inviting parties at the United Nations Conference on International Organisation88 at San Francisco in 1945. The Article 2(4) equivalent, before the Proposals were debated and amended, read very simply: 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.89 This original proposal, in its construction, is quite clear in that it maintains the possibility of states using force on behalf of the Security Council, as per the Charter, and in self-defence, assuming that these types of force are ‘consistent’ with the purposes of the Organisation. Rather than outlawing simply the threat or use of force, the original proposal sought to outlaw only force that was ‘inconsistent with the purposes of the Organisation’. If the prohibition of force was meant to preclude all threats and uses of force in international relations, the drafters of the provision could have simply required all members ‘to refrain from the threat or use of force in their international relations against any state”. But, as Simon90 points out, the drafters did not do this—they went on to specify that it was force against ‘territorial integrity’, ‘political independence’, and in a manner ‘inconsistent with the Purposes of the UN’ that were specifically prohibited. Similarly, Schachter91 argues that such additions must logically qualify the prohibition of force, or else they are redundant. Based upon this logic, we can say that the only qualification in the original proposal for Article 2(4) was the phrase precluding force ‘inconsistent with the Purposes of the UN’. By extension, this suggests that the original proposal allowed for force consistent with the Purposes of the UN. It was meant to allow for lawful uses of force in the way that it was constructed, and this was explicitly noted by some states during the drafting of the Charter.92 There seems to be no clear reason why this would change when further terms were added to strengthen the prohibition itself, especially when no explicit exception was inserted to counteract the effect of such terms.93 One of the most-cited debates during the drafting of the Charter comes from the Eleventh Meeting of Committee I/1, on 4 June 1945.94 In this meeting, there was extensive discussion of the possibility of the provision being interpreted as allowing some forms of unilateral force beyond self-defence, especially if argued that such force was ‘consistent with the purposes of the organisation’.95 In particular, the delegate of Norway felt that the language of the provision, which at the time reflected essentially the final version of Article 2(4) bar some minor amendments, did not reflect satisfactorily its intentions. Norway thus called for it to be made very clear that the prohibition ‘did not contemplate any use of force, outside of action by the Organization, going beyond individual or collective self-defense’.96 To suggest that the provision’s intentions did not contemplate such force, while maintaining the possibility of action by the UN and in self-defence, necessarily and logically suggests that Norway certainly considered those lawful uses of force as being recognised by Article 2(4) itself. In fact, the Norwegian representative even went as far as to suggest the removal of the terms ‘territorial integrity’ and ‘political independence’ to make this purpose clear, considering that these principles could already be said to be protected elsewhere in the Charter and under international law generally.97 In reply—and very crucially—the delegate of the UK agreed with the reasoning of the Norwegian delegate, but insisted on the fact that ‘the wording of the text had been carefully considered so as to preclude interference with the enforcement clauses of [Chapter VII] of the Charter’.98 Furthermore, the UK explained the addition of ‘territorial integrity’ and ‘political independence’ through an Australian amendment as using ‘most intelligible, forceful and economical language’.99 This evidences an interpretation, at least on the part of Norway and the UK, that Article 2(4) itself allows for the use of force as provided for in the Charter, and in self-defence. However, this is also the meeting where the delegate of the United States is widely and famously cited as arguing that ‘the intention of the authors of the original text was to state in the broadest terms an absolute all-inclusive prohibition; the phrase ‘in any other manner’ was designed to insure that there should be no loopholes’.100 It is this key phrase that is often cited by commentators to support the wide interpretation of Article 2(4), and thus the view that it is an absolute blanket ban on force.101 At first glance, this seems to reveal an apparent divergence between the positions of the UK and the US in this meeting. However, considering the fact that these states were both a leading part of the drafting of the original Dumbarton Oaks proposals, and the US is clearly referring to language that was already within that original proposal, it seems unlikely that their statements on this issue would be fundamentally incompatible. Logically, it can’t be possible for the prohibition to be all-encompassing with no loopholes, while at the same time allowing for the use of force by the Security Council through its ‘consistency’ with the Purposes of the UN. As just highlighted, the original proposal could not have been absolute either.102 Instead, it seems more plausible that the US was referring to ‘no loopholes’ in the ‘absolute all-inclusive prohibition’ of force in any manner inconsistent with the Purposes of the Charter, while clearly leaving room for the requisite in-built ‘loopholes’ of self-defence and the powers of the Security Council. It is in this context that this statement of the USA should be understood. This is especially true in light of the subsequent report of the Rapporteur to this very committee.103 This report made an explicit and special note in relation to Article 2(4), to alleviate the concerns of Norway, to state: The Committee likes it to be stated in view of the Norwegian amendment to 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 admitted and unimpaired. The use of force, therefore, 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.104 There could be no clearer or more authoritative statement that it was the intentions of the drafters of this very provision that Article 2(4) itself: (i) outlawed the use of unilateral force; but (ii) maintained the possibility of using force in self-defence, and as per the powers of the UN Security Council. This recognition is also referred to elsewhere during the drafting. When discussing an amendment by New Zealand to add another ‘Principle’ to the Charter which would have required active resistance by states to acts of aggression, which was ultimately rejected, Australia noted that Article 2(4) ‘was not entirely negative but implied the positive use of force’.105 It is argued on this basis that Article 2(4) was carefully constructed in a way so as to acknowledge the lawful uses of force recognised under the Charter, while also maintaining a wide prohibition in instances of unilateral action beyond the Organisation. This counters any argument for the extreme narrow interpretation, but also indicates the prohibition is not as far-reaching as the wide interpretation. Yet, since the drafting of the Charter, we have seen that this interpretation of Article 2(4) has not been explicitly acknowledged, or at least not investigated in full.106 Unfortunately, the result is a very complicated and complex working of the provision, due to the competing balance between protecting states from unilateral force as far as possible, while still maintaining the possibility of Security Council enforcement action. This was once described by Peru during the drafting of the Charter as ‘an awkward, unhappy, equivocal wording’.107 Peru also noted that the delegate of Norway described it as illogical, ‘because it comprises two negations’.108 But the delegates nevertheless still emphasised the original purpose of the provision in still leaving room for UN-sanctioned force.109 (i) Drafters’ View on Self-Defence Discussions during the drafting of the Charter in San Francisco further reveal that self-defence was inserted into the Charter not as an exception to the prohibition of force, but as an exception to the jurisdiction or ‘virtual monopoly’ of force of the Security Council. Firstly, Article 51 did not even appear as a provision in the original Dumbarton Oaks proposals—even when drafting the prohibition of force it apparently was not considered necessary to have such a provision.110 When Article 51 was proposed, it was put forward in the context of regional arrangements and regional enforcement action,111 now found in Chapter VIII of the Charter, to ensure that it was clear that the jurisdiction of the Security Council did not restrict the right to individual or collective self-defence, even when undertaken by regional organisations or under treaties of assistance.112 This was put most explicitly during discussions of the Coordination Committee, when deciding on where in the Charter Article 51 should be located, 113 where the right of self-defence was described as ‘a particular exception to the action of the Council in connection with the system of regional arrangements’, an ‘exception to the general rule in Chapter VII’, and, more specifically, ‘a general exception to the Council machinery [which] belonged where the powers of the Security Council were stated, in Chapter VII’.114 In each case, self-defence was framed as an exception to the powers of the Security Council in limiting the enforcement action of regional organisations, and not as an exception to the prohibition of force. This approach is clearly in line with the proposed interpretation of Article 2(4). If the drafters were not already under the assumption that self-defence was protected by their construction of the prohibition of force, there may well have been evidence pointing to the need for Article 51 as an exception to that principle. However, this was not the case, and Article 51 was only ever referred to as an exception to the jurisdiction of the Security Council. It was not considered necessary to limit Article 2(4), and this may be taken as further evidence that the provision already left room for self-defence. (ii) Drafters’ View of Territorial Integrity and Political Independence Ultimately, Article 2(4) refers specifically to ‘territorial integrity’ and ‘political independence’. Referring to the preparatory works of the Charter, Brownlie argues that ‘territorial integrity’ and ‘political independence’ were inserted at the insistence of smaller states to offer very specific guarantees or protections under the prohibition, and not to restrict the prohibition of force.115 Notwithstanding such ‘specific guarantees’, Brownlie argues that the terms do not qualify the prohibition of force.116 Respectfully, this author disagrees, in part, with Brownlie’s interpretation of the preparatory debates, for the following reasons. It was evident from some discussions that there was a clear intention for the Security Council itself to be bound by these principles. Particularly revealing is a Czechoslovakian proposal which explicitly considered the Security Council to be bound to respect ‘territorial integrity’ and ‘political independence’.117 The proposal was suggested in the context of what became Article 24, where the Council is required to act in accordance with the Principles of the Charter. The Czechoslovakian proposal clearly considered the Council to be bound by such principles, and suggested that there should be a provision for a situation to be referred to the General Assembly if measures were required that would infringe upon those principles. In full, the proposal stated: Should the Security Council come to the conclusion that international peace and security can be maintained only by measures not in conformity with these fundamental principles (respect for the territorial integrity and political independence of States-members), and especially by territorial changes, the matter should be laid before the Assembly. At the request of any party to the dispute, the question shall also be laid before the Assembly. In these cases the Assembly should decide by a two-thirds majority vote.118 However, the proposal was withdrawn, with the Czechoslovakian representative suggesting that it was merely an ‘observation’ that the Security Council was bound to respect territorial integrity and political independence elsewhere in the Charter.119 A discussion of this very issue arose following a Norwegian amendment to the Charter that would have required the Council to abide by certain principles when settling a dispute.120 The proposal required that ‘no solution should be imposed upon a state of a nature to impair its confidence in its future security or welfare’.121 Norway expanded upon this proposal, referring to the Czechoslovakian proposal for support, and sought assurances relating to the powers of the Security Council that states’ territorial integrity and political independence should be protected, particularly in the application of coercive actions and sanctions.122 Norway made clear that its proposal was made with a view to establishing rules of conduct for the Security Council.123 Rejecting Norway’s proposal, states pointed out that the Security Council was already bound by the Purposes and Principles of the Charter. The United Kingdom said that its purpose was already served by the Purposes in Article 1 of the Charter, where it is required that the Organisation was to ‘bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes … .’124 In other words, the UK was suggesting that, when settling an international dispute—especially following the use of enforcement measures to restore or maintain peace and security—the Council must act in accordance with justice and international law. Norway replied that there was no problem connected with the Council’s pacific settlement of disputes, but with its coercive action, where the Council has at its disposal ‘overwhelming powers’.125 In response, the United States attempted to reassure Norway by arguing that the Purposes and Principles of the Charter ‘constituted the highest rules of conduct’, and stated simply that Article 24 of the Charter just simply was not the right place to put Norway’s amendment.126 The US argued: ‘Furthermore, the Charter had to be considered in its entirety and if the Security Council violated its principles and purposes it would be acting ultra vires.”127 Finally, the Australian delegate noted the importance of Norway’s amendment, but insisted that its proper place was ‘in another part of the Charter to which Australia had proposed an amendment that all nations should refrain from threat or use of force against one another’. He argued: This idea, as well as the Czechoslovak desire for guarantees of independence and territorial integrity, was concerned with the same basic question as the Norwegian amendment, but belonged in an earlier section of the Charter.128 This is a fundamental revelation. Australia’s statement suggests that Norway’s aim for the Security Council to respect the Purposes and Principles of the UN is achieved through its own amendment to Article 2(4)—an amendment which added the terms ‘territorial integrity’ and ‘political independence’ to that provision.129 Furthermore, for those still not convinced that the Security Council is obligated to act in accordance with Article 2(4), there can be no doubt that it must act in accordance with Article 2(1)—which provides for the principle of sovereign equality, on which the Organisation itself is based. During the drafting of this provision, it was made very clear that the principle of sovereign equality includes respect for political independence and territorial integrity.130 By being required to act in accordance with this Principle in Article 24, the Security Council is bound to respect the territorial integrity and political independence of all states—especially when undertaking or authorising enforcement action. Considering that the powers of the Security Council are very clearly accepted within the Charter itself, there would be no alternative but to accept that territorial integrity and political independence can, in some way, allow for enforcement measures. In light of this, there are three possibilities: (i) the meanings of ‘territorial integrity’ and ‘political independence’ are much more narrow than assumed; (ii) the scope of these principles is very wide and, thus, the Security Council’s powers are much more limited than assumed; or (iii) ‘territorial integrity’ and ‘political independence’ are much more dynamic principles than first thought, containing inherent qualifications based upon the consent of states and other rules of customary international law. The latter possibility is the most convincing, as we shall now go on to discuss as we investigate the consequences of the original intentions of the drafters on the legal and doctrinal mechanics of Article 2(4). 5. Explaining the Mechanics of Article 2(4) A. Territorial Integrity and Political Independence It is beyond the purpose of this article to explain the full scope and workings of the principles of territorial integrity and political independence. However, the findings of this article do reveal a fundamental characteristic of these principles that explains their role as part of the prohibition of force—and that is the possibility of those principles being qualified or limited without necessarily limiting the overall scope of the prohibition of force itself. (i) Inherent Qualifications of Territorial Integrity There are two main competing interpretations of ‘territorial integrity’. There is the narrow interpretation, which says that territorial integrity prohibits the annexation of territory, or the use of force for territorial conquest. In essence, it relates only to the changing of borders or boundaries, and may also prohibit the illegal occupation of territory. This view is supported by authors such as D’Amato131 and Tesón,132 who primarily advocate for a right of unilateral humanitarian intervention. Brenfors and Petersen,133 submit that the intention of Article 2(4) was to abolish this ‘classic’ form of the use of force, which they argue is not the type of force used for a ‘true’ humanitarian intervention.134 Brenfors and Petersen believe that ‘Article 2(4) was to be understood as covering only acts of invasions, subsequent border changes or abrogation of independence’.135 According to this school of thought, such invasions and annexations are legally distinct from forcible interventions to protect populations from impending or ongoing atrocities, and thus do not infringe upon the principle of territorial integrity. On the other hand, there is the wide interpretation of ‘territorial integrity’, which conflates ‘integrity’ with territorial ‘inviolability’—ie the notion that borders are inviolable, and thus any interference within a state itself would violate the territorial integrity of that state. This is supported by the likes of Chesterman,136 Brownlie,137 and Elden.138 Elden highlights two alternatives for the meaning of ‘integrity’: first, the notion of being ‘whole’ versus being ‘fractured’, and secondly the more personality-based notions of respect, honour, and pride.139 These notions are closely related to the dictionary definitions of ‘integrity’, which include: (i) the quality of being honest and having strong moral principles; or (ii) the state of being whole and undivided.140 The latter notion is also further defined as: the condition of having no part or element taken away or wanting; or an undivided or unbroken state.141 Of course, it is not possible for territory itself to ‘be honest’ or ‘have strong moral principles’, and so it is unlikely that the principle of territorial integrity refers to this ‘unimpaired moral state’ or ‘freedom from moral corruption’.142 It is more likely that the legal use of the term refers to the wholeness of a state’s territory, and its borders remaining fixed and unalterable through force. Yet, the much wider view suggests that this ‘integrity’ of territory extends to the complete ‘inviolability’ of borders or boundaries. Lauterpacht is widely cited as suggesting that ‘territorial integrity, especially where coupled with political independence, is synonymous with territorial inviolability’.143 Lauterpacht, in fact, goes on to argue: Thus a state would be acting in breach of its obligations under the Charter if it were to invade or commit an act of force within the territory of another state, in anticipation of an alleged impending attack or in order to obtain redress, without the intention of interfering permanently with the territorial integrity of that state.144 Here, Lauterpacht seems to be suggesting that the intention of a state, and how it directs its use of force, is irrelevant to the protection of territorial integrity. If territorial integrity was synonymous with territorial inviolability, and did prohibit any act of force within territory or any incursion into territory regardless of the intention, then even the use of force for the maintenance of international peace and security on behalf of the UN would be included within this definition. That, by extension, would imply that Article 2(4) really was an ‘absolute’ prohibition of force, because any force foreseen by the UN Charter would be captured by this phrase ‘territorial inviolability’. Similarly, Chesterman dismisses any restrictive interpretation of Article 2(4), suggesting that a narrow view of territorial integrity would demand an ‘Orwellian’ construction of those terms.145 It is not entirely clear what Chesterman means by this, but his argument is based upon a similar assertion previously put by Schachter,146 who states: The idea that wars waged in a good cause such as democracy and human rights would not involve a violation of territorial integrity or political independence demands an Orwellian construction of those terms. It is no wonder that the argument has not found any significant support.147 When arguing this point, Schachter briefly defines territorial integrity as ‘the right of a state to control access to its territory’.148 However, Schachter himself concedes the possibility of a limited intervention to save lives, which he terms as a ‘limited rescue mission’, but maintains that ‘it is difficult to extend that argument to justify an armed invasion to topple a repressive regime’.149 Therefore, even with the more restrictive interpretations of Article 2(4), there are more nuanced understandings of territorial integrity that must be investigated. Of course, we must be careful not to stretch or abuse the meaning of these terms to justify uses of force on potentially duplicitous grounds. But this does not mean that we should ignore the effect of those terms altogether. Rejecting overly-wide interpretations, and the link to territorial inviolability, Bowett insists on giving ‘territorial integrity’ its plain meaning, arguing that: ‘The rights of territorial integrity and political independence have never been absolute, but always relative to similar rights in other states, so that ‘integrity’ has always been a more accurate term than ‘inviolability’.150 Bowett’s argument certainly calls for a more doctrinal and nuanced investigation into these terms. Indeed, the very possibility of the Council being bound itself by territorial integrity and political independence, whether through Article 2(4), or through the principle of sovereign equality in Article 2(1) of the Charter, leads us to consider the possibility of these terms having inherent qualifications.151 This implies that the principles themselves are limited in scope by a voluntary relinquishment of sovereignty by the state, or by reason of existing rights of other states. In other words, a state consents to circumstances normally affecting territorial integrity or political independence, thereby limiting the application of those principles. By this analysis, it is submitted that enforcement measures find their compatibility with the principles of territorial integrity and political independence through qualifications inherent within the principles themselves, rather than through overly-narrow interpretations of situations that might usually fall within their scope. This issue becomes particularly clear when we consider the use of military occupation by the Security Council. Territorial integrity clearly prohibits the unlawful military occupation of a states’ territory.152 However, is it possible to occupy territory lawfully, thus rendering such an occupation outside of the scope of territorial integrity? For example, if one considers an agreement between state A and State B, for State A to have a military base on the territory of State B, could we consider this consent as a voluntary limitation of State B’s right of territorial integrity in those particular circumstances? A similar theory might be applied to UN Peacekeeping, where states consent to the presence, and sometimes occupation, of peacekeepers within its territory.153 We also know that states can voluntarily change borders or boundaries through a peaceful settlement. It is the forcible change of borders that would violate territorial integrity. The change of borders through a peaceful settlement or treaty, therefore, would be a valid limitation of the application of the principle of territorial integrity of that state. It is left to be considered, then, whether the provisions of the UN Charter, as a form of ‘permanent’ consent to the powers of the Council, could explain an inherent limitation of the principle of territorial integrity when applied in the context of the use of force by the Council. This, indeed, could explain why a military occupation on a mandate from the Security Council might be valid. (ii) Inherent Qualifications of Political Independence Political independence, according to a relatively consistent consensus among commentators, refers to ‘the autonomy in the affairs of the state with respect to its institutions, freedom of political decisions, policy making, and in matters pertaining to its domestic and foreign affairs’.154 The Draft Declaration on the Rights and Duties of States155 similarly declares: Every State has the right to independence and hence to exercise freely, without dictation by any other state, all its legal powers, including the choice of its own form of government.156 Corten describes it as ‘a notion that implies at the very least that each state exercises full executive power in its territory without external interference’.157 Corten uses this definition to suggest that even if a use of force was not aimed at overthrowing or changing the government of the target state, then it would still be incompatible with the concept of independence in what is most fundamental about it.158 That leaves us to question the role that consent plays in ‘limiting’ the political independence of a state. Bowett also refers to the inherent limitations of political independence, arguing that the right of political independence is not absolute, but subject to the rights of other states.159 Referring this back to the UN Charter, Bowett suggests that: Perhaps the most important limitation on the rights of political independence today is the right of intervention assumed by the Security Council in the general interest of the international community as a whole. … This means, therefore, that the right of political independence is conditional upon it not constituting a ‘threat to the peace, breach of the peace, or act of aggression’ within the terms of Article 39.160 This is a very convincing argument, especially in light of the preceding findings of this article. Like territorial integrity, political independence also seems to be inherently limited by the consent of states, and any existing international law applying to a state. As explored by Bowett, a state’s political independence is also limited by the right of self-defence in international law.161 By the very reason of its existence, and being subject to pre-existing rules of international law and customary international law, even if not a member of the UN Charter, a state must expect that any armed attack it conducts against a state will be subject to the right of the victim state to respond in self-defence. Thus, its decision to conduct an external policy of force against a state is not protected by its political independence, for this right has been limited by the very existence of the right of self-defence. By this analysis, it seems that ‘absolute’ territorial integrity or political independence is only possible with ‘absolute’ sovereignty. However, upon ‘entering’ the international community and being subject to international law, sovereignty is immediately qualified. For example, any new state would be already subject to respecting the sovereignty of other states, which inherently limits the political independence of the new state to conduct a foreign policy of annexation and territorial expansion. Those are no longer accepted practices in international law, and so are no longer protected by the principle of political independence so long as those laws exist. B. Consistency with the Purposes of the United Nations (i) The ‘Catch-All’ Provision The final part of Article 2(4) is the restriction of force in any other manner inconsistent with the Purposes of the United Nations. Yoram Dinstein162 considers this last sentence to be a residual ‘catch-all’ provision that would prohibit all other uses of force, including those already against the territorial integrity or political independence of a state.163 In other words, the effect of the final provision is the same as would have been intended under the original Dumbarton Oaks proposal.164 In support of this, Dinstein cites Lachs,165 who originally conceded in 1980 that the final sentence is ‘at first sight a residual “catch-all” provision’,166 however Lachs continued to suggest that ‘it may render the operation of the Article more specific, since it serves to prohibit the substitution of a forcible solution for any process decided upon by the United Nations, in pursuance of its purposes, for the settlement of a particular issue’.167 Corten is more explicit in suggesting that the final sentence is an objective prohibition of any force used in a manner inconsistent with the stated Purposes of the UN.168 Similarly, Chesterman agrees that this provision is inclusive of all uses of force whether or not they violate the territorial integrity or political independence of a state.169 (i) The Purposes of the UN The Purposes of the UN are found within Article 1 of the Charter, and include the maintenance of international peace and security through effective collective measures in Article 1(1). Tesón argues that unilateral action—humanitarian intervention in particular—can survive this ‘purposes’ test, noting that a primary purpose of the UN is the promotion of human rights.170 To support this, Tesón cites Article 1(3) of the UN Charter, which emphasises that a Purpose of the United Nations is: To achieve international cooperation 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; Tesón argues that the promotion of human rights is just as important as the maintenance of international peace and security, and so the use of force to remedy serious human rights deprivations—in the form of humanitarian intervention—is in accordance with the Purposes of the UN.171 Tesón goes on to justify this position by, among other things, theorising a hierarchy of the Purposes of the United Nations, and emphasising the Preamble’s statement that force should not be used ‘save in the common interest’ to make an analogous argument for the common interests of humanity in the case of a humanitarian intervention.172 Unfortunately, his initial argument is fundamentally flawed. Chesterman criticises Tesón’s interpretation as stretching the words of the Charter too far – and highlighting that, in Article 1(3), the Purpose is to achieve international cooperation in its aims, while promoting and encouraging respect for human rights.173 Indeed, using the word ‘protect’ rather than ‘promote’ could have granted a stronger mandate in enabling states to defend human rights. Simons notes this point, and the fact that the proposal to use the word ‘protect’ was ultimately rejected out of fear that it would raise hopes of going beyond what the UN could achieve effectively.174 Emphasising this, Chesterman argues that there is no room in this provision to allow for a unilateral right to humanitarian intervention.175 Even so, Simon suggests that the intentions behind these provisions indicate that human rights were to be taken seriously.176 He alludes to the possibility that the Charter creates a fundamental obligation on states to respect and protect human rights, purportedly giving a unilateral humanitarian intervention the consistency with the Purposes of the Charter that Article 2(4) requires.177 I do not find this persuasive for the following reasons. First, if we consider unilateral uses of force—ie force without the authorisation of the UN—it might be suggested that any such unilateral measures inherently threaten international peace and security, are ineffective for this purpose, and are not sufficiently ‘collective’ for the purposes of Article 1(1). Secondly, the rarely-cited Article 1(4) could provide a strong basis for arguing that unilateral action is inconsistent with the Purposes of the Charter. This particular Purpose is for the UN to be ‘a center for harmonising the actions of nations’ for the attainment of the other Purposes of the UN. I submit that unilateral action would also be inconsistent with the purpose of harmonising the collective maintenance of international peace and security, since the Security Council, as stated in Article 24, acts on behalf of Member States in its responsibility for the maintenance of international peace and security. Action through the United Nations is the only way to harmonise the actions of the nations in response to a crisis—and any unilateral action would clearly be inconsistent with that aim.178 From this, one could also argue that a use of force, to be consistent with Article 2(4), must be consistent with all of the Purposes of the United Nations, and not just one of them. 6. Explaining the Inherent Contradictions of Article 2(4) Now that we have addressed how the original intentions of the drafters may explain the mechanics of Article 2(4), we may now return to investigate how this also explains the contradictions of the wide interpretation. A. Effect of the Original Intentions on the Jus Cogens Debate The preparatory debates reveal that the very wording of Article 2(4) is sufficient to provide for the recognised ‘exceptions’ built within the rule itself. This avoids the jus cogens contradiction because such ‘exceptions’ actually would be circumstances not covered by the prohibition in the first place, and so any treaty-based rule providing for them could not, even remotely, be derogating from that rule. This is true so long as the implementation of these provisions remains within the precise definition of the prohibition. We shall now go on to examine exactly how this works. (i) Self-Defence and Jus Cogens Self-defence is within the definition of the prohibition of force for the following reasons. Firstly, because it exists as a right in customary international law, it inherently limits the application of the principles of territorial integrity and political independence, acting as one of the ‘inherent qualifications’ of those principles. These protections have been limited by the law of self-defence in allowing such a response to an armed attack (the actual debates surrounding the scope of self-defence notwithstanding). If self-defence allows a temporary incursion into a state’s territory, then that target state’s territorial integrity is either (i) not even affected, or (ii) inherently limited by self-defence, depending on whether international law recognises the narrow or wide interpretation of territorial integrity. There is a question, however, as to whether the temporary occupation of a territory to counter an armed attack is lawful in self-defence, and this has been explored by Zemach.179 The key question here is whether the law of self-defence allows for such a temporary occupation, and thus whether the territorial integrity of a state is inherently limited to exclude such a use of force from its scope, based upon the application of this legal principle and nothing more. The criterion in the prohibition requiring consistency with the Purposes of the United Nations must still be respected. Article 51 is found in Chapter VII of the Charter. Chapter VII is entitled ‘Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression’. This clearly places self-defence as a measure that the Charter considers a lawful response to a ‘threat to the peace, breach of the peace, or act of aggression’. In other words, the Charter considers an ‘armed attack’ such a threat, breach, or act of aggression. In light of this, it can be implied that self-defence is a necessary measure for the maintenance of international peace and security, in response to the very threats the Charter was intended to respond to. Logically, if self-defence was not permitted, it would be much harder for threats or breaches of the peace to be prevented or removed—as is a Purpose of the UN under Article 1(1). If a state was expected to simply allow an armed invasion without a lawful response, then the maintenance of peace and security by the Security Council would not be effective at all. Self-defence provides the Council with a ‘first response’ to armed attacks, allowing states to take necessary action until the Council can step in to assume its responsibilities. The actions of nations are harmonised through this very framework in the Charter. Although this might not always happen in practice—in theory it explains the relationship between self-defence and Article 2(4). Although self-defence is, in practice, a ‘unilateral’ use of force which would usually be ‘inconsistent with the Purposes of the Charter’,180 this analysis demonstrates that self-defence is unique. It is a fundamental pillar of the Charter’s collective security system, without which the maintenance of peace and security would be much more difficult. It is even necessary for Non-Members of the UN to have this right for the very same reason, even if they are not bound by the other obligations under Article 51 relating to the Security Council.181 So, self-defence might often be conducted unilaterally, but it is the only unilateral use of force which states are harmonised in recognising as a necessary measure for the maintenance of international peace and security, rendering the right and its use consistent with the Purposes of the UN Charter, and therefore consistent with Article 2(4). Indeed, the ILC have suggested in its commentaries on its Articles on State Responsibility that self-defence is a circumstance precluding the wrongfulness of an act by a state.182 In explaining this, the Commission said that Article 51 of the Charter: … preserves a State’s “inherent right” of self-defence in the face of an armed attack and forms part of the definition of the obligation to refrain from the threat or use of force laid down in Article 2, paragraph 4. Thus, a State exercising its inherent right of self-defence as referred to in Article 51 of the Charter is not, even potentially, in breach of Article 2, paragraph 4.183 The ILC does not say that Article 51 forms part of the prohibition itself; it says that it forms part of the definition of the obligation in Article 2(4). In other words, the Commission seems to be indicating that self-defence is allowed inherently by Article 2(4) itself. Therefore, the right of self-defence, as recognised by Article 51, does not derogate from the jus cogens prohibition of force because that very right is compatible with the wording and structure of the prohibition. The question of self-defence itself having the status of jus cogens, by this argument, is rendered moot. (ii) Security Council Powers and Jus Cogens The powers of the Security Council are compatible with Article 2(4) through a Member State’s consent to the Charter. Importantly, such consent is not a ‘derogation’ from Article 2(4), but instead a partial relinquishment of a right that is simply protected by Article 2(4). By consenting to the powers of the Security Council in Chapter VII, a state’s rights of territorial integrity and political independence have been limited. From that point on, the state has agreed that it no longer has the competence to adopt a policy of aggression, or to conduct actions that would threaten international peace and security. They have thus consented to the use of force against itself should the Security Council consider it necessary, in accordance with its powers and competences in Chapter VII of the Charter. Importantly, such consent would not be a ‘derogation’ from a jus cogens principle—they are derogations from the principles of territorial integrity and political independence. Article 2(4)’s protection of those principles therefore depends on the existing scope of those principles as they apply to a state concerned on a case-by-case basis. Corten suggests the authority of the Security Council is also based upon the consent of the state—but argues that ‘it goes without saying that we are in the context here of the rule prohibiting the use of force and not that of any derogation from that rule’.184 This is essentially the crux of this article’s main argument, but Corten does not further explore why we are in the context of the prohibition of force, or how the Security Council’s powers find compatibility with, or are excluded from, the rule itself. The proposed interpretation of Article 2(4) provides such an explanation. As we shall now discuss in relation to the Security Council’s powers,185 only action taken by the United Nations can be considered consistent with the purposes of the UN, and so any consent to force outside of this second Article 2(4) criterion could still be considered a derogation of the prohibition. B. The Effect of the Original Intentions on the Powers of the Security Council In the general lawful operation of the Security Council’s powers, the compatibility of the use of force by the Council with Article 2(4) can be explained as follows. In terms of the criteria protecting territorial integrity and political independence, it is argued on the basis of the analysis above that territorial integrity and political independence are inherently limited, or qualified, by a state’s very consent to the powers of the Council. By signing up to the UN Charter, states have consented to the powers of the Council, in accordance with the relevant provisions, and thus have limited their territorial integrity and political independence in this regard. So long as the Security Council’s authorisation or uses of force remain within those powers, its conduct remains compatible with the ‘reduced’ territorial integrity and existing political independence of the target state. How these principles may limit the actions of the Security Council requires determining their exact scope and interpretation, which is a task that remains beyond the scope of this article. But the Council’s action must also pass one final hurdle—it must also be consistent with the Purposes of the UN. Generally, considering that the Security Council is such a fundamental reason for forming the United Nations, we can say outright that Council enforcement action will be for the maintenance of international peace and security, and thus compatible with the Purposes of the Charter.186 Action authorised, but not controlled, by the Council, for example through coalitions of willing states or regional organisations, are still compatible with these purposes. The actions of nations are harmonised by the very authorisation of the Security Council, in accordance with Article 1(4),187 for the maintenance of international peace and security, which has acted on behalf of Members by virtue of Article 24(1).188 Of course, the other purposes of the UN may well impose other limitations on the Security Council’s use of force by virtue of Article 2(4).189 These include the right of self-determination,190 human rights,191 and fundamentally, the peaceful settlement of international disputes or situations in accordance with international law and justice.192 Again, whether these purposes limit the powers of the Security Council via the criterion in Article 2(4) is beyond the scope of this article, and must be addressed in future research. 7. Conclusions This article has set out, through an investigation of the original intentions of Article 2(4), an explanation for the apparent contradictions of the prohibition of force. In sum, Article 2(4) was carefully constructed in a way to specifically exclude from its scope the powers of the Security Council and self-defence. This, in turn, exposes inherent limitations of the enigmatic concepts of political independence and territorial integrity as they apply to the Security Council—limitations that manifest through the very existence of the Security Council’s powers as a form of permanent consent to the UN Charter’s collective security regime. However, these limitations—clearly being based upon treaty provisions and the legal competences of the UN—cannot apply to the unilateral actions of states without authorisation from the UN, because the target states would thus enjoy the full protection of territorial integrity and political independence, beyond their voluntary relinquishment under the Charter of these aspects of sovereignty. We have also seen that the final sentence of Article 2(4) also acts as a catch-all provision which captures all forms of force not authorised by the United Nations in any case. Because of this, the ‘effect’ of Article 2(4) as a ‘general prohibition’ of unilateral force, with two specific ‘exceptions’, remains unimpaired. It has not been the intention of this article to ‘find loopholes’ in the prohibition of force. In fact, the findings of this article very much closes most of them, save for those that are meant to be there. The intention of the article was to explain many of the discrepancies with the construction of Article 2(4) that have plagued international legal commentary for decades. In light of this alternative, we can now accept that it is possible for the prohibition of force to have the status of a norm of jus cogens, for the simple reason that the ‘exceptions’ were already hiding in plain sight within the primary rule itself. Therefore, these exceptions cannot remotely be considered derogations, because they are not covered by the scope of the prohibition in the first place. The original intentions of the drafters could not have been clearer – but the significance of a few statements hidden within the reams of the preparatory works and documents, unfortunately, had been overlooked. Article 2(4) was only ever meant to restrict unilateral uses of force and, through its construction, achieved that. Although this interpretation may have been the original intention of the drafters—that does not necessarily mean that it has ceased to remain valid. Subsequent practice and opinio juris has always considered the unilateral use of force as illegal. It might well be said that because of this, and even though over 70 years have passed since the drafting of the Charter, this original interpretation could well be compatible with the general understanding of Article 2(4) today. The same can be said for the legality of self-defence, and the powers of the Security Council. The only obstacle to this would be the precise understanding of what states mean when they refer to an ‘exception’ in this context—do they mean a circumstance simply not covered by a prohibition, or a circumstance specifically allowed to apply despite a prohibition? Nevertheless, it is because the original interpretation itself relies upon a dynamic understanding of the key features of Article 2(4) that this interpretation could still be valid today. Considering this interpretation, we can also better understand the limits of the Security Council’s powers. By looking back to San Francisco, we have found key conversations during the drafting process that reveal that the Security Council itself was meant to respect the fundamental principles of territorial integrity and political independence. How exactly these principles may limit the Council’s powers is to be assessed in future research. It is, of course, impossible to address all the consequences of this interpretation compared to the more generally-recognised status quo. Indeed, questions also remain as to how far this interpretation could also explain the ability of the General Assembly to ‘recommend’ force through the much-debated Uniting for Peace Resolution,193 or how this interpretation would apply to the use of force by regional security mechanisms. Such implications, however, remain to be investigated further. Many thanks go to Michelle Farrell and Michael Gordon for their valuable comments on previous drafts of this article, and to Christian Henderson for his feedback and support as my PhD supervisor. Footnotes 1 See Section 2.B. 2 This all-encompassing interpretation would also include the use of force on behalf of the Security Council within the primary rule, but then rendered lawful due to apparent ‘exceptions’ to the primary rule contained elsewhere in the UN Charter. 3 See sub-Section 3.A and sub-Section 3.B. 4 See sub-Section 3.A. 5 See for example: T Ruys, ‘The Meaning of “Force” and the Boundaries of Jus ad Bellum: Are “Minimal” Uses of Force Excluded from UN Charter Article 2(4)?’ (2014) 108(2) American Journal of International Law 159–210; B Asrat, The Prohibition of Force under the UN Charter: A Study of Art 2(4) (Iustus Förlag 1991), at 39–41, and 94–138; A Randelzhofer, ‘Article 2(4)’ in B Simma (ed), The Charter of the United Nations: A Commentary (OUP 2002), at 117–21; Olivier Corten, The Law Against War: The Prohibition on the Use of Force in Contemporary International Law (Hart Publishing 2012), at Chapter 2. 6 See for example, Randelzhofer, ibid at 121–23; Corten, ibid at 127–35. 7 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Merits), Judgment of 27 June 1986, [1986] ICJ Rep 14 [hereinafter ‘Nicaragua Case’]. 8 ibid at paras [174]–[176]; see also Yoram Dinstein, War, Aggression and Self-Defence (5th edn, CUP 2012), at 94, para [252] onwards. 9 Nicaragua Case (n 7) at para [181]. 10 ibid at paras [175]–[176]; see also para [181]. 11 ibid at para [178]. 12 ibid. 13 ibid at paras [184], [188]–[195]. 14 UNGA Res 2625(XXV), Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 24t October 1970, UN Doc A/RES/2625(XXV), Annex. 15 Nicaragua Case (n 7) at para [191]. 16 Friendly Relations Declaration (n 14), Annex, Principle 1. 17 Vienna Convention on the Law of Treaties, (adopted 23 May 1969, entered into force 27 January 1980)) 1155 UNTS 331 [hereinafter VCLT]. 18 See, eg Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment of 3 February 1994, [1994] ICJ Reports 6, at para [41]; see also Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Jurisdiction and Admissibility) (Qatar v Bahrain), Judgment of 15 February 1995, [1995] ICJ Reports 6, at para [33]. 19 VCLT (n 17), art 31(3)(a)-(b). 20 For an overview of these competing approaches, see for example: Corten (n 5) at 4–27; Christine Gray, International Law and the Use of Force (2nd edn, OUP 2008), at 30–31; Lindsay Moir, Reappraising the Resort to Force: International Law, Jus ad Bellum, and the War on Terror (Hart Publishing 2010), at 5–9. 21 Olivier Corten highlights this in the context of an overall restrictive approach to interpreting customary international law: see Corten (n 5), at 5 and 15–27. 22 Fernando R Tesón, Humanitarian Intervention: An Inquiry into Law and Morality (2nd edn, Transnational Publishers 1997), at 151. 23 ibid at 152–57. 24 Yoram Dinstein refers to the first all-encompassing interpretation as ‘the non-restrictive scope of the prohibition’—Dinstein (n 8), at 89–91, [240]–[244]; However, this is not to be confused with the methodology of interpreting customary international law that Corten refers to as the ‘restrictive approach’–Corten, (n 5): However, quite confusingly, the phrase ‘restrictive interpretation’ is sometimes used to describe interpretations of Article 2(4) that attempt to specifically restrict the scope of that provision, and thus have the opposite effect to the all-encompassing interpretation: see, for example, Simon Chesterman, Just War or Just Peace: Humanitarian Intervention and International Law (OUP 2001), at 48–51. 25 Emphasis added. 26 See n 20. 27 Unlike, for example, art 2(7) on non-intervention which does provide for an explicit exception referring to Chapter VII of the Charter. 28 art 2, UN Charter. 29 art 2(1), UN Charter. 30 See below, sub-Section 4.B.(ii). 31 Friendly Relations Declaration (n 14), Annex, Principle 6. 32 AJ Carswell, ‘Unblocking the UN Security Council: The Uniting for Peace Resolution’ (2013) 18(3) Journal of Conflict and Security Law 453–80. 33 ibid, at 461–62. 34 ibid. 35 ibid, at 461. 36 Emphasis added. 37 Such ‘decisions’ are binding by virtue of art 25 of the Charter, where Members agree to ‘accept’ and ‘carry out’ these decisions. 38 For an interesting overview of this practice, see, N Blokker, ‘Is the Authorisation Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by “Coalitions of the Able and Willing”’, (2000) 11(3) EJIL 541–68; see also, Gray (n 20), at 254, and 327–69; J Frowein and N Krisch, ‘Article 42’ in B Simma (ed), The Charter of the United Nations: A Commentary (2nd edn, OUP 2002), at 754–59. 39 ILC, ‘Draft Articles on the Responsibility of International Organisation, with Commentaries’, <http://legal.un.org/ilc/texts/instruments/english/commentaries/9_11_2011.pdf> accessed 1 June 2017; also included in ILC, ‘Report of the International Law Commission on the Work of its Sixty-Third Session’ (26 April–3 June and 4 July–12 August 2011) UN Doc A/66/10, from 69; see also UNGA Res 66/100, Responsibility of International Organisations, (9 December 2011), UN Doc A/RES/66/100, Annex. 40 ILC Commentaries, ibid, at 16. 41 Carswell (n 32), at 10–11; for an overview of this position, see also D Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (OUP 1999), at chs 1 and 4, and 164–65. 42 ILC Commentaries (n 39), at 16. 43 The ILC Commentary succinctly outlines this debate: ILC Commentaries (n 39), at 19–26. 44 See ILC Draft Articles on Responsibility of International Organisations (n 39), art 7; ILC Commentaries (n 39), at 22–25, where it is suggested that attribution of conduct for joint operations should be based upon a factual criterion. 45 States have also suggested that all the principles in art 2 must be respected by both Members and the Organisation: seem UNGA, ‘Report of the Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States’ (16 November 1964) UN Doc A/5746, para [218]. 46 Such an authorisation might be considered a ‘derogation’ from a jus cogens norm, if art 2(4) really was an all-encompassing prohibition: see below, sub-Section 3.B.(i). 47 See, eg Nicaragua Case (n 7), at [190]; Corten gives a very detailed overview of the state practice and opinio juris to this effect; Corten (n 5), at 200–13; see also, Asrat (n 5) at 51–52; Gray (n 20) at 30; Dinstein (n 8), at 105–07. 48 See, eg Green (n 58), below. 49 While a norm of jus cogens is found in ‘general international law’, the fact that the prohibition of force is also found in art 2(4) is enough for us to address its interpretation in light of its corresponding jus cogens status. After all, art 2(4) is the most authoritative manifestation of the rule purported to be jus cogens. 50 Oxford English Dictionary definition (Oxford University Press), <www.oed.com/view/Entry/50657> accessed 1 June 2017. 51 Oxford Advanced Learner’s Dictionary (Oxford University Press), <www.oxfordlearnersdictionaries.com/definition/english/derogation> accessed 1 June 2017. 52 Oxford English Dictionary definition (Oxford University Press), <www.oed.com/view/Entry/65724> accessed 1 June 2017. 53 ST Helmersen, ‘The Prohibition of Force as Jus Cogens: Explaining Apparent Derogations’ (2014) 61(2) Netherlands International Law Review 167, at 175. 54 ibid, at 176. 55 Helmersen seems to suggest that having a corresponding rule in customary law is enough: ibid, at 176–77, 180. However, this would suggest that a simple loophole of jus cogens would be for a group of states to establish a customary rule between them so as to avoid a ‘treaty-based derogation’, and cannot be reconciled with the fact that ad-hoc consent to an act prohibited by a jus cogens rule is also considered a derogation: see, ILC, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries’, <http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf> accessed 1 June 2017; also included in ILC, ‘Report of the International Law Commission on the Work of its Fifty-Third Session’, (23 April–1 June and 2 July–10 August 2001), UN Doc A/56/10, art 26, and para [6]; reproduced in [2001] (Vol II, Part Two) Yearbook of the International Law Commission, from 31. Thus, it seems more logical to argue that any exception to a jus cogens rule must also have the status of jus cogens. 56 U Linderfalk, ‘The Effect of Jus Cogens Norms: Whoever Opened Pandora’s Box, Did You Ever Think About the Consequences?’ (2007) 18(5) EJIL 853–71. 57 ibid, at 860. 58 J Green, ‘Questioning the Peremptory Status of the Prohibition of the Use of Force’ (2011) 32 Michigan Journal of International Law 215. 59 Linderfalk (n 56), at 860; Green, ibid at 229–30; see also a discussion of this issue in, A de Hoogh, ‘Jus Cogens and the Use of Armed Force’ in M Weller (ed), The Oxford Handbook of the Use of Force in International Law (OUP 2015). 60 Green (n 58), at 232–33, especially fn 82; Linderfalk (n 56), at 860–867. 61 Green (n 58), at 234. Linderfalk suggests an alternative as: ‘If, in the conduct of its international relations, a state resorts to force directed against the territorial integrity and political independence of another state, or inconsistent with the purposes of the United Nations, and this action is not prompted by an armed attack, which according to the relevant rules of state responsibility is attributable to a state, or, if indeed prompted by such an attack, the force resorted to infringes the rules and principles of international humanitarian law, or for some other reason fails to meet the twofold criterion of necessity and proportionality, then this shall be considered a violation of the international jus cogens.’ Linderfalk (n 56), at 867, see also 860 and 865. 62 ibid. 63 See below on why this author believes this is not possible. 64 A Orakhelashvili, Peremptory Norms in International Law (OUP 2008), at 50–51. 65 Green (n 58), at 231; see also, de Hoogh (n 59), at 1172. 66 Linderfalk (n 56), at 863–64. 67 Helmersen (n 53), at 183–84. Indeed, Helmersen rightly highlights that this also explains why the reporting requirement of self-defence does not exist in customary international law: see Helmersen (n 53), at 184; also Nicaragua Case (n 7), at para [200]. 68 See, eg the VCLT art 34, on treaties creating obligations for third states. 69 Friendly Relations Declaration (n 14), Annex, Principle 1, para [13], see also operative para [2], ‘General Part’; compare also UNGA Res 2131(XX), Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, (21 December 1965), UN Doc A/RES/2131(XX), at para [8]. 70 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion), Opinion of (21 June 1971), [1971] ICJ Reports 16. 71 ibid, at para [126]. 72 WG Vitzthum, ‘Article 2(6)’ in B Simma (ed), The Charter of the United Nations: A Commentary (2nd edn, OUP 2002). 73 ibid, at 143–44 and the positions cited therein; see also Helmersen (n 53), at 184. 74 UNSC Res 232 (1966), (16 December 1966), UN Doc S/RES/232(1966), at para [6], Compare this with para [7] of the same Resolution which only requires Members of the UN to carry out the decision in accordance with art 25. 75 See, Note by the Secretary General, transmitting Note Verbale dated (17 February 1967) from the Acting Permanent Observer of the Federal Republic of Germany, (20 February 1967), UN Doc S/7776, at 3; see also Vitzthum (n 72), at 143. 76 Nicaragua Case (n 7), at para [193]. 77 Dinstein suggests that it is unclear whether self-defence has jus cogens status: Dinstein (n 8), at 192–93, para [509]; Kahgan, on the other hand, argues that it does: C Kahgan, ‘Jus Cogens and the Inherent Right to Self-Defence’ (1997) 3 ILSA Journal of Int'l & Comparative Law 767, at 791 (see fn 105), see also 824–27. 78 On this point, see de Hoogh (n 59), at 1173. 79 See eg Kahgan (n 77), at 775–76. 80 Kahgan (n 77), at 776 (emphasis in original). 81 Emphasis added. 82 Unfortunately, this is a question about jus cogens that remains a topic of debate, and it is beyond the scope of this paper to address it here. For further discussion of this issue, see for example: M Byers, ‘Conceptualising the Relationship Between Jus Cogens and Erga Omnes Rules’ (1997) 66 Nordic Journal of International Law 211, at 220–29; U Linderfalk, ‘The Creation of Jus Cogens – Making Sense of Article 53 of the Vienna Convention’ (2011) 71 ZaöRV 359–78, <www.zaoerv.de/71_2011/71_2011_2_a_359_378.pdf> accessed 1 June 2017); D Dubois, ‘The Authority of Peremptory Norms in International Law: State Consent or Natural Law?’ (2009) 78 Nordic Journal of International Law 133–75; MW Janis, ‘The Nature of Jus Cogens’ (1988–87) 3 Connecticut Journal of International Law 359. 83 Linderfalk (n 56), at 863–64. 84 See, eg J Frowein and N Krisch, ‘Action with respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression’ in B Simma (ed), The Charter of the United Nations: A Commentary (2nd edn, OUP 2002), at 715; see also Vitzthum (n 72) at 146–48. On the other hand, see: B Fassbender, ‘The United Nations Charter As Constitution of the International Community’ (1998) 36 Columbia Journal of Transnational Law 529; Hans Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (Fredrick A Praeger 1950), at 107–10. 85 Similar arguments suggest that the jus cogens version of the prohibition only covers illegal uses of force or aggression: see, eg de Hoogh (n 59), at 1173–75; see also Helmersen (n 53), at 185–86. 86 See Corten (n 5), at 200–13. 87 ibid. 88 Documents of the United Nations Conference on International Organisation (Multi-volume, New York, United Nations 1945)–Cited hereinafter as UNCIO. 89 Dumbarton Oaks Proposals for a General International Organisation, Doc 1, G/1, 3 UNCIO 1, at 3 (Chapter II, para 4). 90 Steve G Simon, ‘The Contemporary Legality of Unilateral Humanitarian Intervention’ (1993–1994) 24 California Western International Law Journal 117, at 131. 91 O Schachter, ‘International Law in Theory and Practice: A general Course in International Law’ (1982) 178 Recueil des Cours de l’Académie de Droit International 9, at 140. 92 See for example, Verbatim Minutes of the Second Meeting of Commission I (20 June 1945), Doc 1123, I/8, 6 UNCIO 65, at 68–69 (Peru). 93 See above n 27. 94 Eleventh Meeting of Committee I/1, (5 June 1945), Doc 784, I/1/27, 6 UNCIO 331. 95 ibid, at 334–35. 96 ibid, at 334. 97 6 UNCIO 331 (n 94), at 334–35. 98 ibid, at 335. 99 ibid. 100 ibid. 101 See eg Chesterman (n 24), at 49–50. 102 See text at n 91 and surrounding discussion. 103 Report of Rapporteur of Committee 1, Commission I, (9 June 1945), Doc 885, I/1/34, 6 UNCIO 387. 104 ibid, at 400 (emphasis added). 105 Twelfth Meeting of Committee 1, Commission I, (6 June 1945), Doc 810, I/1/30, 6 UNCIO 342, at 346. 106 However, Perkins interprets art 2(4) as prohibiting only unilateral uses of force, but of course does not further investigate the wider implications of this beyond his arguments surrounding ‘counterintervention’. See JA Perkins, ‘The Right of Counterintervention’ (1987) 17 Georgia Journal of International & Comparative Law 171, at 198–99 (in particular n 90); See also Brownlie (n 115), at 268, where Brownlie suggests that the final part of the prohibition requiring ‘inconsistency with the Purposes of the UN’ might well explain the legality of the actions of the Security Council under Chapter VII of the Charter, but does not further investigate this possibility; see also, discussion relating to the International Law Commission, below at n 182. 107 Verbatim Minutes of the Second Meeting of Commission I, (20 June 1945), Doc 1123, I/8, 6 UNCIO 65, at 68–69 (Peru). 108 ibid. 109 ibid, at 68. 110 Perhaps further evidence indicating the more nuanced scope of art 2(4). 111 See, for example, Terms of Reference of Committee III/4 – (With Pertinent Excerpts from Comments and Draft Amendments Submitted by Delegations), (14 May 1945), Doc 269, III/4/5, 12 UNCIO 764, at 777; see also, Interim Report to Committee III/4 on the Work of the Subcommittee III/4/A, (15 May 1945), Doc 335, III/4/A/5, 12 UNCIO 833, at 836–37. 112 See, for example, discussions in Summary Report of Fourth Meeting of Committee III/4, (25 May 1945), Doc 576, III/4/9, 12 UNCIO 679, at 680–82, 683 and 687. 113 Summary Report of Thirty-Fifth Meeting of Coordination Committee of 20 June 1945, (4 September 1945), Doc WD 435, CO/199, 17 UNCIO 276, at 286–88. 114 ibid, at 287–88. 115 Ian Brownlie, International Law and the Use of Force by States (OUP 1963), at 266–67. 116 ibid, at 267. 117 See Document Table on Chapter VI Sections B, C, and D, (15 May 1945), Doc 360, III/1/16, 11 UNCIO 766, at 770 (citing Doc 2 G/14 (b), p.2). 118 ibid, emphasis added. 119 Continuation of the Report of the Activities of Committee III/1 Concerning Sections A, B, C, and D of Chapter VI of the Dumbarton Oaks Proposals, (14 June 1945), Doc WD 313, III/1/51, 11 UNCIO 555, at 557; see also Summary Report of Thirteenth Meeting of Committee III/1, (24 May 1945), Doc 555, III/1/27, 11 UNCIO 375, at 378. 120 See proposal at (n 117), 11 UNCIO 766, at 770 (citing Doc 2 G/7 (n)(1), p.4). 121 ibid. 122 Thirteenth Meeting of Committee III/1 (n 119), 11 UNCIO 375 at 378–79. 123 ibid 378. 124 ibid, emphasis added. 125 ibid. 126 ibid 379. 127 ibid. 128 ibid. 129 See eg Amendments to the Dumbarton Oaks Proposals Submitted on Behalf of Australia, (5 May 1945), Doc 2, G/14 (1), 3 UNCIO 543. 130 See eg Report of Rapporteur of Committee 1 to Commission I, (9 June 1945), Doc 885, I/1/34, 6 UNCIO 387, at 397–98; See also, Friendly Relations Declaration (n 14), Annex, Principle 6. 131 Anthony D’Amato, International Law: Process and Prospect (2nd edn, Transnational Publishers 1995), Chapter 3 generally; see also, Anthony D'Amato, ‘The Invasion of Panama Was A Lawful Response to Tyranny’ (1990) 84 American Journal of International Law 516, at 520. 132 Fernando R Tesón, Humanitarian Intervention: An Inquiry into Law and Morality (2nd edn, Transnational Publishers 1997), at 146–57 generally. 133 M Brenfors and MM Petersen, ‘The Legality of Unilateral Humanitarian Intervention – A Defence”’ (2000) 69(4) Nordic Journal of International Law 449–99, at 466. 134 Brenfors and Petersen (n 133), at 470–71; see also Tesón (n 132), at 151. 135 Brenfors and Petersen (n 133), at 471. 136 Simon Chesterman, Just War or Just Peace: Humanitarian Intervention and International Law (OUP 2001). 137 Brownlie (n 115). 138 Stuart Elden, Terror and Territory: The Spatial Extent of Sovereignty (University of Minnesota Press 2009). 139 ibid, at 142–45. 140 Oxford Dictionaries’ definition (Oxford University Press), <https://en.oxforddictionaries.com/definition/integrity> accessed 1 June 2017). 141 Oxford English Dictionary definition (Oxford University Press), available at: < www.oed.com/view/Entry/97366> accessed 1 June 2017. 142 ibid. 143 Lassa Francis Lawrence Oppenheim, International Law (Hersch Lauterpacht (ed); 7th edn, Longmans, 1952) Vol II, at 154 (as cited in Chesterman (n 136), at 50, and Bowett (n 149), at 152. 144 ibid. 145 Chesterman (n 136), at 51–52. 146 Oscar Schachter, ‘The Legality of Pro-Democratic Invasion’ (1984) 78 AJIL 645, 649. 147 ibid. 148 ibid. 149 ibid. 150 DW Bowett, Self-Defence in International Law (Manchester University Press 1958), at 152. 151 See also ibid, at 152. 152 See, for example: Friendly Relations Declaration (n 14), Annex, Principle 1; Conference on Security and Co-Operation in Europe, Helsinki Final Act, (1975) 14 ILM 1292, 1294, Chapter 1(a), s IV. 153 See eg Yoram Dinstein, International Law of Belligerent Occupation (CUP 2009), at 37–38; See also generally, A Roberts, ‘What is Military Occupation?’ (1984) 55 British Yearbook of International Law 249. 154 See eg Samuel KN Blay, ‘Territorial Integrity and Political Independence’ in Rüdiger Wolfrum (ed), Max Planck Encyclopaedia of Public International Law (Online edn, March 2010). 155 UNGA Res 375 (IV), (6 December 1949) Draft Declaration on the Rights and Duties of States, (6 December 1949) UN Doc A/RES/375(IV). Although this was never formally adopted, it is illustrative of the attitude of states in the early practice of the UN. 156 ibid, Annex, art 1. 157 Corten (n 5), at 499. 158 ibid. 159 Bowett (n 149), at 51. 160 ibid, at 51–52. 161 ibid 51–55. A similar idea is briefly explored by Kaghan who suggests that art 2(4) ‘includes and incorporates the right to use such for in self-defence’. C Kaghan, ‘Jus Cogens and the Inherent Right to Self-Defence’ (1996–1997) 3 ILSA Journal of International and comparative Law 767, at 788. 162 Yoram Dinstein, War, Aggression and Self-Defence (5th edn, CUP 2012). 163 ibid, at 90, paras [241]–[243]. 164 See sub-Section 4.B. 165 Manfred Lachs, ‘The Development of General Trends of International Law in Our Time’ (1980) 169 Recueil des Cours de l’Académie de Droit International 9. 166 ibid, at 162. 167 ibid. 168 Corten (n 5), at 499–500. 169 Chesterman (n 136), at 52–54. 170 Tesón (n 132), at 152–57. 171 ibid, at 152–57. 172 ibid, at 152–57. 173 Chesterman (n 136), at 52–53. 174 Simon (n 90), at 133. 175 ibid. 176 ibid, at 134–35. 177 ibid, at 136–37. 178 How this argument can be reconciled with self-defence is explained below at sub-Section 6.A.(i). 179 A Zemach, ‘Can Occupation Resulting from a War of Self-Defense Become Illegal?’ (2015) 24(2) Minnesota Journal of International Law 313; see also Gray (n 20), at 154–55. See also Dinstein (n 152), at 2–4. 180 See sub-Section 5.B.(ii). 181 Green (n 58), at 231–32; see also, Gordon A Christenson, ‘The World Court and Jus Cogens’ (1987) 81 American Journal of International Law 93, at 99. 182 ILC Articles on Responsibility of States (n 55), art 21. 183 ILC Articles on Responsibility of States (commentaries) (n 55), at 74, emphasis added. Note that, while suggesting that art 51 is included within the definition of the prohibition of force, the International Law Commission does still refer to self-defence as an ‘exception’ to the prohibition. As noted above, this is not strictly speaking the definition of an exception that is adopted in this article. 184 Corten (n 5), at 256, emphasis in original. 185 See sub-Section 6.B. 186 See art 1(1), UN Charter. 187 Declaring a Purpose of the UN: ‘To be a centre for harmonizing the actions of nations in the attainment of these common ends.’ See also above, sub-Section 5.B.(ii). 188 art 24(1) states: ‘In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.’ (emphasis added). 189 On this point, see, Erika de Wet, The Chapter VII Powers of the United Nations Security Council (Hart Publishing 2004), at 195. 190 art 1(2). 191 art 1(3). 192 art 1(1). 193 UNGA Res 377(V), Uniting for Peace, (3 November 1950), UN Doc A/RES/377(V). © Oxford University Press 2018; All rights reserved. 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Journal
Journal of Conflict and Security Law – Oxford University Press
Published: Jul 1, 2018