Threats of Force

International Law and Strategy

Francis Grimal

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781135132033
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho internacional

Despite recent attempts by scholars to examine the absolute prohibition of threats of force under Article 2(4) of the UN Charter, threats remain a largely un-chartered area in international law when compared with actual uses of force. Adopting an interdisciplinary approach and utilising strategic literature and international relations theory, this book examines the theoretical nature behind a threat of force, which, helps to inform and explain why and how the normative structure operates in the way that it does. In addition to considering the normative rules regarding threats of force, this book focuses heavily on understanding the theory of threats of force or "threat theory". Drawing on strategic studies for an insight into practical workings of international law, the heart of the book examines whether international law, or indeed the international community, should distinguish between a threat of force which is little more than mere "sabre rattling" and one that is serious enough to send a state to DEFCON 1. Finally, the book considers the point at which a state pursuing nuclear capabilities may breach Article 2(4) with particular reference to both North Korean and Iranian efforts to pursue nuclear technology.

This topical book will be of great interest not only to scholars and postgraduates in international law but also to academics and students in the fields of political science, international relations and strategic studies.

1 Historicl analysis

Threats of force and indeed threats of war as a general category remained undeniably unregulated prior to the advent of Article 2(4) of the UN Charter. Rather than dwelling on this uncontested position, the chapter posits a different perspective. While threats were not unlawful in pre-Charter era, certain instances of “threatening behaviour” were condemned by states – amounting to self-regulation within the international community. This chapter analyses the extent to which international law dealt with threats of force in the pre-UN Charter era within the time span from 1648 to 1945. The framework to assess this question is the following: first, to examine the ambit of the legal instruments prohibiting the threat – in other words, the primary material. Second, to examine the means by which the provisions are enforced. Even if a particular treaty prohibits threats of force, insufficient means of adjudicating and enforcing the prohibition renders the provision caduque. In order to make an overall judgment, it is necessary to examine instances when states threatened force and see whether the system “prosecuted” these unlawful breaches.

The significance of this chapter within the overall book is two-fold. First, it underlines the fact that the prohibition under international law of threats of war made by one state to another is a recent phenomenon. Yet at the same time, the chapter dismisses the idea that threats were entirely acceptable forms of behaviour prior to the inception of Article 2(4). Second, it highlights that international law has made progress with its enforcement against the use of threats in the post-Charter era. As demonstrated in Chapter 2 of this book, the current prohibition against the use of threats of force under Article 2(4) of the UN Charter is more effective than the tentative prohibitions of the pre-Charter era.

The majority of the sources examined in this chapter are primary materials. While the Kellogg-Briand Pact has received much scholarly attention, the academic debates and discussions within the secondary material make little reference to threats of war/force.¹ In other words, there is a paucity of literature on this topic. Consequently, this chapter focuses on analysing primary sources such as The Hague Regulations,² the Covenant of the League of Nations,³ the Kellogg-Briand Pact⁴ and the Treaty of Versailles signed at the Paris Peace Conference in 1919.⁵ Many of the instruments raise other issues within the jus ad bellum, such as collective security.

In addition to examining the positivist aspect of threats, the chapter explores the works of the early theorists of international law to ascertain whether “threats” have any grounding within jurisprudential theories. Despite a wealth of secondary material on Vattel and the other fathers of international law, none of them deals specifically with the concept of how those thinkers perceived threats of force. In light of this, the analysis concentrates on the original texts. It is also worth underlining that the classical writers do not deal with threats of force in any detail.

The works of the natural lawyers primarily revolve around the “Just War Theory”. However, because Chapter 5 examines the Just War Theory in detail, this chapter will avoid discussing it at length. Chapter 5 investigates whether the Just War criteria provide a more proficient test for determining the lawfulness of threats of force than the present test under Article 2(4) of the UN Charter. Just War Theory is rooted within the natural law notion that war is wrong but, in certain extreme circumstances, acceptable. If the decision to go to war satisfies the six-part litmus test of the Just War Theory, then the war is lawful. In Chapter 1, the analysis will only consider whether the concept of threats is present within the theory.

The chapter divides into four historical periods: 1648 to the fin de siècle, 1900–1919 (up to the end of the First World War and the creation of the League of Nations), the inter-war years (1920–1939) and finally the Second World War and its aftermath in the judgments of the international military tribunals at Nuremberg and Tokyo (1938–1945). The period 1648–1900 is important in underlining the fact that threats of force are a relatively recent concept within international law.

Prior to the twentieth century, there was no explicit prohibition of threats of force within international law. However, in both treaties and the works of theorists such as Vattel, we do see references to the sort of behaviour, which is later categorised in the post-Charter era as falling within the ambit of Article 2(4). Although this is ahistorical, the parallels are useful in that they underline the progression within international law. Understanding a type of behaviour that was previously un-categorised as threatening that later falls within the umbrella of a threat of force enables an assessment of the way in which international law has developed.

Despite references to threats in the period 1648–1900, it is not until 1934 that there is an outlawry of threats between states.⁶ The two topographical changes within the pre-Charter era are the outlawry of threats between states in 1934 and the shift from prohibiting threats of war to threats of force.⁷ Stürchler reinforces this position and refers to the works of Maurice Bourquin, who underlines the idea that, in the nineteenth century, international law permitted threats of war.⁸

1 1648–1900

In order to place the research in an overall context, one must investigate the state of play preceding the twentieth century. This part of the chapter divides into two sections. The first examines whether classical international lawyers have referred to threats of force in their treatises. The second examines sources of international law, such as treaties, to see whether states have limited or prohibited their ability to threaten one another. It is important to underline that the focus of this section will be on Vattel for the primary reason that the other international law scholars at the time did not discuss threats of force or threats of war.

Vattel does refer to threats in The Law of Nations but not in the sense that the Just War Theory prohibits state A from threatening state B with war.⁹ Within his discussion of the Just War Theory, Vattel sets out that the basis “or cause of every just war is injury, either already done or threatened”.¹⁰ Vattel adds that the threat of injury “authorises a prevention of it by arms” but in assessing whether a war is just, “we must consider whether he who undertakes it is really threatened with one”.¹¹ Arguably, this is an embryonic manifestation of the concept of “anticipatory self-defence”, which is later set out in the Caroline incident.¹²

Although it is ahistorical, it is interesting nonetheless to note that the concept and type of action we now categorise as anticipatory self-defence had roots as far back as the works of the natural lawyers. The Webster formula in the Caroline incident¹³ prescribes that a state has to show “a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation” as a basis for anticipatory self-defence.¹⁴ State A feels sufficiently threatened that state B is going to cause it injury. In order to prevent that injury, state A takes defensive action by attacking state B.

How does this relate to the question as to whether the early theorists deemed threats of force to be unlawful? Vattel’s proposition implies that threats are unlawful. State A “anticipates” the threatened injury by attacking state B first. Vattel concludes that this is a “just cause” for war and the war brought by state A against B is lawful. Logically, if the cause for war is “just”, then the initial threat of injury by B must have been unjust.

If threats are punishable by war (and that war has a lawful basis to it), then it follows that threats of injury to another state are therefore unlawful. Why could state A be able to lawfully punish state B by declaring war if state B’s threat was lawful? However, one could equally suggest that it may have been immoral/injurious without necessarily being unlawful. Another way of explaining this is to draw a parallel with reprisals. Reprisals seek to punish a prior delict. If threats are punishable, then they must be unlawful to be punishable. There is no point in punishing a lawful action. As Leben underlines, Kelsen sets out a similar framework.¹⁵ Kelsen argues that use of force must either be categorised as a sanction (i.e. a reprisal) or an unlawful use of force.¹⁶

In summary, one could perhaps tenuously conclude from the writings of Vattel that threats of serious injury from one state to another are punishable by war. Accepting this proposition suggests that the Just War Theory contains the first implicit prohibition of threats of force. However, it is important to underline that, as its name indicates, the Just War Theory, was just a theory, albeit one rooted in natural law doctrine. Even if the natural lawyers believed that threats were unlawful, that does not mean that international law a...