International Law and the Use of Force

Beyond the U.N. Charter Paradigm

Anthony Clark Arend, Robert J. Beck

• Publisher: Routledge
• Year: 2014
• Print ISBN: 9781138168879
• eBook ISBN: 9781136143724
• Edition: 1
• Topic: Politica e relazioni internazionali
• Subtopic: Politica

When the United Nations Charter was adopted in 1945, states established a legal `paradigm' for regulating the recourse to armed force. In the years since then, however, significant developments have challenged the paradigm's validity, causing a `pardigmatic shift'. International Law and the Use of Force traces this shift and explores its implications for contemporary international law and practice.

Part I

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Introduction

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Chapter 1

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International law and the use of force

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On August 2, 1990, in one of the most provocative moves of the post-Second World War era, Iraqi troops invaded Kuwait. The invasion force proceeded quickly to subdue Kuwaiti troops and to establish control over the beleaguered state. In a broadcast statement, Baghdad Radio warned other states not to aid Kuwait, claiming that Iraq would ‘make Iraq and Kuwait a graveyard for those who launch any aggression.’¹

The condemnation of Iraq by the world community was instant. US President George Bush referred to the Iraqi invasion as ‘naked aggression that violates the United Nations charter.’² He specifically criticized Iraqi leader Saddam Hussein, terming ‘his behavior intolerable.’³ The Soviet government called for the restoration of the ‘sovereignty, national independence and territorial integrity of the State of Kuwait.’⁴

In the early morning hours after the invasion, the United Nations Security Council convened. This was the body of the world organization charged with the maintenance of international peace and security. While the Iraqi Ambassador attempted to justify the actions of his state, delegate after delegate called Iraq's action a violation of Article 2, paragraph 4 of the United Nations Charter. This provision prohibits 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.’⁵ By the end of the meeting, the Council had adopted Resolution 660, which condemned the invasion and called upon Iraq to ‘withdraw immediately and unconditionally’⁶ from Kuwait. Four days later, on August 6, the Council adopted Resolution 661, imposing sweeping diplomatic and economic sanctions on Iraq.⁷ This was the first time in its forty-five year history that the Council had ordered collective sanctions in response to a use of force.⁸

While diplomatic efforts were being made to reach a peaceful settlement to the conflict, the Security Council continued to take action. It adopted further resolutions condemning Iraq's purported annexation of Kuwait (662), demanding the release of non-nationals held in Iraq (664), authorizing the use of force by states to maintain a naval blockade (665), allowing for UN supervision of food shipments to Iraq (666), and condemning Iraqi incursions into several diplomatic installations (667). Finally, the Security Council adopted Resolution 678, which authorized states to ‘use all necessary means to uphold the Security Council Resolution 660 and all subsequent resolutions and to restore international peace and security in the area’⁹ if Iraq had not withdrawn from Kuwait by January 15, 1991. On January 16, 1991, when an allied assault was launched, the forcible action was pursuant to Resolution 678.

During the course of the Persian Gulf conflict, world leaders and diplomats constantly referred to norms of international law. In particular, they cited the rules of international law relating to the recourse to force, the so-called jus ad bellum. These are the norms that determine when a state may permissibly resort to force against another state. In the Gulf conflict, decision makers were faced with myriad jus ad bellum questions. Was the Iraqi invasion of Kuwait, for example, permissible under international law? Were there any plausible legal justifications for the action? If indeed the invasion was illegal, how could the international community lawfully respond to the action? Could other states unilaterally use force to respond to the Iraqi attack? Or was United Nations authorization required before force could be used against Iraq? What was the relationship between the right of self-defense and the authority of the United Nations Security Council?

Although the Gulf War was clearly one of the most dramatic uses of force since 1945, the legal questions it raised are by no means novel. Throughout the period of the modern state system, diplomats and scholars have constantly struggled to understand the legal norms relating to the recourse to force. This book seeks to explore the contemporary jus ad bellum: What is it? Where did it come from? And where is it going?

Before we address these essential questions of international law, it is necessary first to set the stage for our inquiry. Accordingly, this chapter will be divided into three sections. In the first, we will characterize the nature of the contemporary international system. International law cannot be understood without an appreciation of the international context within which it operates. In the second section, we will discuss in greater depth the purposes of our book. Here, we will introduce our fundamental argument that the jus ad bellum has undergone a ‘paradigmatic shift.’ In the final section, we will describe our book's methodological approach, setting out our test for the existence of a rule of law.

THE CONTEMPORARY INTERNATIONAL SYSTEM

Force has been a consistent feature of the global system since the beginning of time. Early human beings often resorted to violent means to persuade their fellows to take a certain course of action or in order to obtain something another possessed. As the world began to be organized into political communities, force became a frequent means of interaction among these communities. With the emergence of the modern state system in the seventeenth century,¹⁰ armed conflict of all varieties proliferated. And as technology rapidly advanced, the destructive potential of warfare increased exponentially over the centuries. The machine gun, the airplane, the submarine, and ultimately, the nuclear bomb raised the horrors of war to apocalyptic proportions. In this century alone, there have been two devastating world wars that have resulted in the deaths of over sixty million people¹¹ and have broken the spirits of entire cultures.

Although the world has been thus far able to avoid another global war, the use of force has not been abandoned. Since the Second World War, there have been myriad uses of force. Professor K. J. Holsti catalogues fifty-eight wars or major armed interventions that have taken place since 1945.¹² And his list excludes both the 1989 US invasion of Panama and the 1991 Gulf War. While some of these conflicts lasted only a few weeks, others were protracted wars, such as the Vietnam War, the Soviet-Afghan War, and the Iran-Iraq War. Taken together, these sixty post-Second World War battles and other ‘minor’ conflicts that Professor Holsti did not list, have brought death and social upheaval to much of the world. In the relatively brief Gulf War alone, as many as 200,000 persons may have lost their lives.¹³ Clearly, the last half of the twentieth century has been no less violent than the first.

The nature of contemporary International relations

The reasons why force has been a perennial factor in international life are many. Indeed, scholars from a variety of disciplines have often undertaken to explore the causes of ‘war’ and other uses of force.¹⁴ Some of the factors cited by these experts as ultimate causes of international conflict include the inherent aggressiveness of human beings or the sinful nature of humans. But these factors also exist within domestic systems, and yet, generally, domestic authorities have been able to regulate and greatly to limit violence within those systems. Why then does the international system seem to be inherently more violent? The relatively greater incidence of force in the international arena seems to have been due, at least in part, to the very nature of the international system itself.

Unlike a domestic system, where there is a centralized authority with a monopoly of force to deter and punish wrongdoers, the international community is characterized by extreme decentralization.¹⁵ At present, there are over one hundred and eighty states in the world but no international authority with an effective monopoly of force to prevent and, if necessary, to punish law breakers. As Professor Robert J. Lieber has explained, there is ‘no common power,’ ‘no overall arbiter or institution to which [states] can turn for settlement of dispute, for enforcement of their rights, or even for effective protection of their basic security and survival.’¹⁶

There is, of course, the United Nations. But, as will be seen in subsequent chapters, this organization was not actually vested with a monopoly of force at the outset.¹⁷ Moreover, for most of its existence, the UN has been largely unable to use effectively what theoretical power it does possess.

Reinforcing this factual decentralization is the concept of ‘sovereignty.’¹⁸ When the state system was emerging in the 1600s, thinkers began developing a theory to justify the de facto arrangement of power. This theory contended that states were to be regarded as juridically equal. No one state was to enjoy greater legal privileges than any other state. Owing to this juridical equality, no state could be subject to the control of another state or of any other temporal authority without that state's consent. States were thus said to be sovereign, to have absolute control over activities within their territories. While there may have been certain acknowledged moral norms, there were no pre-ordained legal norms.¹⁹ Any law that was to be binding on states came not from divine or natural sources,²⁰ but solely from the states themselves. International law, therefore, if it were to exist, would have to be created by the consent of states.

THE PURPOSE OF THIS WORK

Over the past several centuries, states have in fact created legal rules to regulate their conduct in a wide variety of areas: international personality; jurisdiction; acquisition of territory; the seas; airspace; outer space; human rights; environmental concerns; economic transactions; and, of course, the use of force. The law relating to the recourse to force, the jus ad bellum, developed rather slowly until the beginning of this century. With the devastation wrought by the First World War, however, states redoubled their efforts to impose legal restrictions on the resort to armed force. To this end, both the League of Nations and its successor, the United Nations, sought to establish comprehensive legal regimes.²¹

The League proved to be a short-lived experiment. The United Nations, by contrast, has functioned for nearly half a century as an important actor in the international system. At the same time, the legal framework for the resort to force established by the United Nations Charter has become the most widely accepted framework for describing contemporary law relating to the recourse to force.²²

In this book, we maintain that the United Nations Charter framework for the jus ad bellum represents a ‘legal paradigm’.²³ This conclusion is not likely to be disputed. Other scholars have made similar claims.²⁴ In the years since the Second World War, however, a number of significant developments have challenged the validity of this UN Charter paradigm. These include: problems of Charter interpretation; the changed nature of international conflict; a perceived illegitimacy of institutions for peaceful change and peaceful settlement...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Dedication
• Contents
• Figures
• Acknowledgments
• Part I Introduction
• 1 International law and the use of force
• 2 Historical overview: the development of the legal norms relating to the recourse to force
• Part II The United Nations Charter paradigm
• 3 The United Nations Charter framework for the resort to force
• 4 Collective use of force under the United Nations Charter
• Part III Challenges to the Charter paradigm
• 5 Anticipatory self-defense
• 6 Intervention in civil and mixed conflicts
• 7 Intervention to protect nationals
• 8 Humanitarian intervention
• 9 Responding to terrorism
• Part IV Conclusion: beyond the Charter paradigm
• 10 International law and the recourse to force: a shift in paradigms
• Notes and references
• Index