State Territory and International Law

Josephat Ezenwajiaku

• Publisher: Routledge
• Year: 2020
• eBook ISBN: 9781000073485
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

This book proposes a re-interpretation of Article 2(4) of the Charter of the United Nations to read, or at least include, respect for the inviolability of State territory.

While States purport to obey the prohibition of the Use of Force, they frequently engage in activities that could undermine international peace and security. In this book the author argues that State practice, opinio juris, as well as contentious and advisory opinions of the International Court of Justice, have promoted the first limb of Article 2(4). Although wars between States have decreased, the maintenance of international peace and security remains a mirage, as shown by the increase in intra- and inter-State conflicts across the world. The author seeks to initiate a rethinking of the provision of Article 2(4), which the International Court of Justice has described as the cornerstone of the United Nations. The author argues that the time is ripe for States to embrace an evolutive interpretation of Article 2(4) to mean respect, as opposed to the traditional view of the threat, or the use, of force. He also evaluates the discourse regarding territorial jurisdiction in cyberspace and argues that the efforts made by the international community to apply Article 2(4) to cyberspace suggest that the article is a flexible and live instrument that should be adjusted to address the circumstances that endanger international peace and security.

This book will engineer a serious debate regarding the scope of Article 2(4), which before now has always been limited to the threat or use of force. As a result, it will be of interest to academics and students of public international law, as well as diplomats and policymakers.

1 General introduction

1.0 Introduction

The birth of the United Nations brought significant changes to the conduct of international relations. For the first time, the world powers successfully formed a supranational organisation to promote global peace, security and cooperation among States. Thus, Article 2 paragraph 4 of the Charter of the United Nations¹ has been described by the International Court of Justice (ICJ) as “a cornerstone of the United Nations Charter.”² Consequently, the world has witnessed a tremendous decline in inter-States wars since the United Nations Charter went into force. However, time has passed, and the situation of warfare has changed significantly. For instance, cyberspace and unmanned aerial vehicles have unleashed unconventional modes of warfare in a manner that has watered down the potency of Article 2(4). In fact, there are reports that Article 2(4) is already dead.

This book, which substantially modifies my doctoral thesis, deconstructs Article 2(4) and observes two things. First is that Article 2(4) has two limbs to it for ensuring international peace and security. Second is that State practice and scholarship have overexploited the first limb and neglected or excluded the second limb. In the short term, the highly prized world peace has remained a mirage because of States’ proxy interference and intervention in the internal affairs of other States. As shall be seen, internationalised armed conflicts are on the increase while inter-States armed conflicts decrease.

This book argues that the first limb refers to the prohibition of the threat or use of force against a State by another State. Scholarship has focused exclusively on this limb. However, what constitutes a State has become increasingly tenuous with non-States actors dominating international political space. The second and mutely referred to is what this book focuses on. Its neglect might even be the reason why international peace and security have been remote since the Second World War. It is the requirement to respect the inviolability of State territory.

1 United Nations, Charter of the United Nations (Signed at San Francisco on 26 June 1945, entered into force on 24 October 1945) 1 UNTS XVI, art. 2(4) [hereinafter UN Charter].

2 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) Judgment ICJ Reports (2005) p. 168, para. 148 [hereinafter DRC v Uganda].

This book argues that the second limb is the dominant norm or at least complements the prohibition of the threat or use of force. It seems that compliance with the doctrine of respect carries with it the prohibition of the threat or use of force. This interpretive approach to Article 2(4) has some advantages. First, it gives the required maximum protection to States’ territory, which now includes cyberspace. Second, it minimises the levity with which States treat Article 2(4) when they breach other States’ territory while claiming not to have violated international law. Third, it stands the chance of enhancing the maintenance of international peace and security.

By emphasising the primary substantive norm, respect for the inviolability of State territory becomes the focal point. How to achieve that in a complexly ever-evolving world dynamic of inter-State relations becomes the issue. This objective is not defeated from the outset since it is in the interest of States that others respect their borders. Besides, a careful analysis of the travaux préparatoires of the United Nations, particularly, States submissions, interventions and debates that went on in various Committees that drafted Article 2(4) leads to the finding that States want other States to respect their territory. Besides, it falls within the confines of the purposes and principles enunciated in the UN Charter.

The approach adopted in this book departs from the traditional view that restricts the meaning of Article 2(4) to the threat or use of force.³ While the black-letter law should be applied, an interpretive approach allows purposes, principles, circumstances and context in which the law was enacted to be taken on board. Seventy-five years after the United Nations Charter went into force, it is pertinent to re-evaluate how Article 2(4) has fostered international peace and security which is primus inter pares among the other purposes of the United Nations. Strict compliance with its tenets cannot be circumvented lest the international community slides back to another war through unorthodox means.

While Louis Henkin applauds States for being law-abiding,⁴ Thomas Franck laments the demise of Article 2(4).⁵ This book argues that the intention of the founders of the United Nations to build a peaceful international community has been distorted partly due to over-dependence of the member States on the first limb of Article 2(4). Hence, scholarship dissipates its scarce energy debating about breaches that qualify as de minimis incursions or an armed attack⁶ to the detriment of a complete prohibition.⁷ It suffices to say that this kind of debate emboldens States to engage in mere frontier incidents or support nefarious activities of non-State actors. They do so while claiming that they comply with their obligations under Article 2(4), notwithstanding that incremental breaches sow the seeds of mistrust which germinate to conflict and a precipice to world’s anarchy.

3 Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) Judgment ICJ Reports (1986) p. 14, paras 98–101, 190–191, 227 [hereinafter Nicaragua case].

4 Louis Henkin, How Nations Behave: Law and Foreign Policy, Second Edition (New York, Columbia University Press, 1968) 49.

5 Thomas M. Franck, “Who Killed Article 2(4) or: Changing Norms Governing the Use of Force by States” (1970) 64(4) American Journal of International Law 809–837.

6 Olivier Corten, The Law Against War: The Prohibition on the Use of Force in Contemporary International Law (Oxford and Portland, Hart Publishing, 2010) 77.

7 Tom Ruys, “The Meaning of ‘Force’ and the Boundaries of the Jus ad bellum: Are Minimal Uses of Force Excluded from UN Charter 2(4)?” (2014) 108(2) American Journal of International Law 159–210.

Other factors exacerbate the situation. First, the Case Concerning Military and Paramilitary Activities In and Against Nicaragua provides that a State shall be a victim of an armed attack to avail itself of the right to self-defence. Second, an armed attack should have been committed by or attributed to a State if committed by non-State actors. Third, a State that alleges that another State sponsored an armed attack against it must prove that the perpetrators are agent or organ of the accused State. Fourth, the burden of proof is on the State that alleges, and it must show that non-State actors are dependent on the accused State or are under their effective control.

Additionally, the recognition of cyberspace as part of States’ territory calls for a review of the scope of State territory as traditionally held. A reappraisal is vital for two reasons. First, the fluid nature of cyberspace, because of the free-flow of economic activities, information and cybercrime, has changed the dynamics on how States exercise their sovereign functions. One feature of cyberspace is that States exercise overlapping sovereignty in it. Moreover, globalisation has eroded exclusivity traditionally associated with States’ sovereignty. In other words, it is difficult for States to take full control of cyberspace activities without the cooperation of other States. Although States have assumed territorial jurisdiction in cyberspace through legislation, a unilateral enforcement of cyberlaws is difficult without the cooperation of other States. It is even harder when cyber-related offences are sponsored by States or carried out by their agents because of the problematic threshold of attribution. Although the cyberspace-related crimes are non-kinetic, they may cause physical harm to a State that is a victim of cyberspace attacks.

In some cases, the effects of cyberspace attacks may be equivalent to those caused by conventional war. Yet it cannot be regarded as a physical force as understood in 1945. Therefore, cyberspace has changed the meanings attributable to conventional war, and new adaptations of Article 2(4) are imperative. The same rationale applies to other unconventional means of waging war such as intercontinental ballistic missiles and unmanned aerial vehicles. These changes disengage Article 2(4), which according to the ICJ requires “sending armed forces” of a State into the territory of another State.⁸ The idea that war is fought by human beings is becoming outmoded because of the risks involved.

This book examines how Article 2(4) might be expanded to include respect for the inviolability of State territory. This approach is not a wild guess but relies on States’ written submissions, interventions and debates that went on when the Charter and other instruments which prohibit States from interfering in the internal affairs of other States were drafted. The issues involved shall be discussed in six chapters after this brief introduction.

8 Nicaragua case (n 3), para. 195; DRC v Uganda (n 2), para. 97.

Chapter 2 is a theoretical framework upon which subsequent chapters build. Its approach and methodology are not strictly legal but bi-disciplinary in that it incorporates political philosophy as far as reasonably practicable while threshing out the origins, meanings and theories upon which the notion of State territory anchors. Also, it examines how concepts such as sovereignty, jurisdiction and control relate to State territory. It analyses the scope of State territory as traditionally designated and evaluates the evolution of State territory from ancient times. The last section of Chapter 2 explores how the search for peaceful coexistence culminates in the Peace of Westphalia. Despite reasonable objections to the Westphalian origins of territorial sovereignty, Chapter 2 argues that the Peace of Westphalia consolidates the idea of territorial sovereignty.

Chapter 3 is entitled inviolability of State territory and Article 2(4) of the UN Charter. It offers a detailed analysis of Article 2(4) of the United Nations Charter. The purpose of Chapter 3 is to draw readers’ attention to the deliberations that went on during the drafting of Article 2(4). It argues that since some States propose that Article 2(4) should be extended to include economic coercion and others recommend the insertion of the word “inviolability,” it suggests that some member States intend a broad meaning. This position is supported by the peremptory character of Article 2(4). Besides, the debate regarding the nature of Article 2(4) was revisited before the United Nations General Assembly adopted Resolution 2625 (XXV) in 1970. Such developments point to the second limb of Article 2(4). Otherwise, the General Assembly Resolution 2625, which is aimed at the “progressive development and codification of the principles of international law”⁹ would have been a failed project if it repeats the existing norm. Therefore, Chapter 3 argues that “respect” and “inviolability” could be implied into Article 2(4) because both concepts have been codified in bilateral and multilateral treaties that pre-existed or are contemporaneous with the UN Charter. Therefore, legal antecedent abounds. Besides, legal instruments that came much later, after the UN Charter went into force, also codified them.

Chapter 4 subjects narrow meaning of Article 2(4) to cyberspace’s test and discovers some shortfalls for the following reasons. First, cyberspace offences are non-kinetic. Often and in terms of the jus ad bellum, such attacks are ancillary art of war. Even when their effects are grave or cause physical damage, it is difficult to equate that with an armed attack. While this book considers it utterly inadmissible to violate a State’s territory under any guise, claims that non-kinetic attack is equal to physical attack is preposterous. On this count, the direct application of international law to cyberspace is reasonably practicable if the broader meaning of Article 2(4) is taken on board. Second, the UN member States have exercised executive, legislative and judiciary functions in cyberspace. Technically, States’ territorial sovereignty now includes cyberspace. It is much easier to argue for an all-inclusive prohibition under Article 2(4) than the current efforts to adapt international law to cyberspace. However, Chapter 4 welcomes efforts to expand territorial sovereignty to cyberspace because of the dangers which unregulated cyberspace poses to national security but cautions that narrow application of Article 2(4) is not the way to go.

9 UNGA Res. A/RES/2533 (XXIV) (8 December 1969), preamble para. 5.

Chapter 5 evaluates the negative impacts which restricting Article 2(4) to the threat or use of force have on the United Nations’ peace agenda. It examines breaches of States territory on land, air and at sea, focusing attention on those breaches often classified as de minimis or mere frontier incidents. It argues that the narrow construction of Article 2(4) has short-changed international peace and security. This is not because States have not been observing the precept of Article 2(4) but because the narrow interpretation has inadvertently encouraged small-scale violation of States’ territory. This has resulted in distrust and mistrust among States. For instance, it is surprising that espionage is not illegal. Insofar as that remains the case, the flame of suspicion will be kept alive in the heart of States. Consequently, peace and security become scarce and unaf...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• Foreword
• Acknowledgements
• Table of cases
• Table of treaties
• Abbreviations
• 1. General introduction
• 2. Setting out the theoretical framework
• 3. Inviolability of State territory and Article 2(4) of the UN Charter
• 4. Expanding the frontiers of Article 2(4) to cyberspace
• 5. Breaches of State territory
• 6. Non-State actors, Article 2(4) and the sanctity of State territory
• 7. An attempt to formulate a theory of respect for the inviolability of State territory
• Bibliography
• Index