WHAT KIND OF FORCE IS MEANT IN ARTICLE 2(4)?

(Academic coursework of BARR. EDETANLEN O. STEPHEN)[1]

Such an academic exercise as the one before me now is not an inviting prospect to be embarked upon. Not so much that the answer to it is elusive as that the answer is shrouded in deep controversy, even amongst eminent writers and jurists. To be quite honest, to say the least, it is a challenging proposition to attempt to provide an answer to such a question as this. A dilemma which arises from a consideration of this proposition is that the answer to the question is to be found in the very provision itself, and at the same time, the answer is not in the text of the provision but to be found elsewhere. Even, some may argue that the meaning (that is, the answer) of Article 2, paragraph 4 of the United Nations Charter is to be read into the text of the provision. All these are plausible approaches to determining what the provision meant by “force”. The various interpretations could be founded, depending on what stand point one argues from. Indeed one can raise several points leading variously to its own conclusions as to the meaning of the term “force” as intended or meant by Article 2, paragraph 4. But to ascertain with precision the meaning of the term is indeed a task. Not only because this is the general problem of law, also the task is further compounded by State practice and opinion juris in international law as it relates to the use of force. Notwithstanding all these odds, the construction of the term “force” is not an exercise that is impossible. One actually needs to adopt and apply the proper rule of construction to achieve this aim. A necessary starting point for such exegesis would be to diligently have a close look at the provision itself, Article 2, paragraph 4 of the United Nations’ Charter. The paragraph read:

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 manner inconsistent with the Purposes of the United Nations.

From the above provision, it can be seen that there are other related issues whose understanding are apt for a proper determination of the question undertaken in this paper, for example, the “target” of the “force”. That is what is the “force” aimed or directed at? Another relevant issue in trying to determine the kind of force meant by this provision that should be borne in mind is that the paragraph will only bear its true meaning when considered in the context of the whole Charter of the United Nations, that is, within the purpose of the United Nations. This means that the force meant in Article 2, paragraph 4 can only be put in its proper light or perspective by a contextual interpretation. Hence, the pertinent factors that are relevant for consideration of this question would be determining force; determining territorial integrity or political independence in relation to the provision under consideration; and determining the purposes of the United Nations. Putting all these factors into proper perspective will assist in accomplishing this exposition set out before me. These factors are therefore considered below, as well as a conclusion reached as to the meaning of Article 2, paragraph 4 of the United Nations’ Charter.

FORCE

The term “force” when used in relation to States in international law, is often used interchangeably with some other phrases as such “armed attack”[2], “all necessary means”[3] and “military force”[4]. Particularly, where the word is used in the phrase “use of force” in international law terminology it means and is understood to mean “military force”. The various commentators on the meaning of “force” as it is expressed in Article 2, paragraph 4 of the Charter of the United Nations are not in disagreement as to this usage. What these writers (and States in many cases) are not agreed on is the scope and extent of its interpretation. Some are of the view that in Article 2, paragraph 4, force has a wider meaning than “armed force” as used in Article 51 of the same Charter. Some extreme view is that non-physical illegal measures as economic coercion is part of the force contemplated by the drafters of Article 2, paragraph 4. In by view, such a wide interpretation can not be validly supported under this provision. Indeed, according to R. Higgins[5], “(s)o far as United Nations practice is concerned, the problem of whether extreme economic pressure is equivalent to a use of force has never clearly arisen, as charges of coercion which was primarily economic in character were dealt with in other, related terms.” Any attempt to define the word “force” outside of the United Nations’ Charter or the practice of States in international law will be an exercise in futility, and therefore, inconsequential to the aim of this paper. In addition, we should look at some cases where the phrase “use of force” is employed in international law terminology, to put us in perspective as to what kind of force is implied when used in international relations for a further understanding of the import of “force”.

The International Court of Justice’s decision in the Case Concerning Military And Paramilitary Activities In And Against Nicaragua[6], concerning the use of force is reproduced below:

            (4) By twelve votes to three,

            Decides that the Untied States of America, by certain attacks on Nicaraguan

Territory in 1983-1984, namely attacks on Puerto Sandino on 13 September and 14 October 1983; an attack on Corinto on 10 October 1983; an attack on Potosi Naval Base on 4/5 January 1984; an attack on San Juan del Sur on 7 March 1984; attacks on patrol boats at Puerto Sandino on 28 and 30 March 1984; and an attack on San Juan del Norte on 9 April 1984; and further by those acts of intervention referred to in subparagraph (3) hereof which involve the use of force, has acted against the Republic of Nicaragua, in breach of its obligation under customary international law not to use force against another State; [7]

TERRITORIAL INTEGRITY OR POLITICAL INDEPENDENCE

As may have been noted already, Article 2, paragraph 4 is a very controversial provision in the Charter of the United Nations. One reason for this is that it is enshrined in a Charter with global ramification for the regulation of the behaviour of Nations of the world, a world that is by no means uniformed whether in ideology, practice, religious belief, political interests and power, economic strength or technological development. Invariably, particularly where the provision has not unequivocally expressed in definitive terms its intendment, States (and commentators) are bound to give to the provision, interpretations that are accord with their stance. This is the situation here. It is the view of Roling[8], that this provision concerning the force being “against the territorial integrity or political independence of any state” refers back to the League of Nations Covenant. Article 10 of the Covenant provides thus:

The Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled.

Though there is no definition of “territorial integrity” or “political independence” in either the Covenant of the League of Nations or the Charter of the United Nations, some commentators hold the opinion that the notion of territorial integrity in Article 2, paragraph 4 implies that “force” will not be resorted to with intent permanently to deprive a State of any part or parts of its territory, including territories for the foreign affairs of which it is responsible; and that political independence in the same way means that “force” will not be resorted to with intent to deprive a State of the entirety of one or more of the prerequisites of statehood, namely: defined territory, permanent population, constitutionally independent government and the means of conducting relations with other States. They (including some States) are of the view that the phrase “against the territorial integrity or political independence” is intended as a qualification on the prohibition of use of force in Article 2, paragraph 4[9]. For example, the United Kingdom argued in the Corfu Channel Case that her activities under her Operation Retail of 12^th to 13^th November 1946 did not threaten the territorial integrity of Albania neither did it threaten Albania’s political independence, and that because of this is was not unlawful.[10]

It is submitted that reading such qualification into the provision will derogate from the intended purpose of the drafters, because it will negate the inviolability of a sovereign State and founding principle of the United Nations Charter. Moreover, history lends support to the strong argument that the addition of territorial integrity and political independence was intended to intensify or strengthen the prohibition on the use of force, and not to qualify it.

PURPOSES OF THE UNITED NATIONS

From the text of the Charter of the United Nations and history, the purpose(s) of the United Nations is remarkably clear. This is not unusual of treaties or other forms of legal instruments or documents. Whilst, it is possible and indeed common place, for provisions of such international documents to be the subject of diverse interpretation, the purposes of any treaty are usually easily identifiable. This is as a result of the traditional elegant drafting and conventional practice of the use of a Preamble which is normally placed at the beginning of any such documents. Often, we find statutes which provide, separate from its Preamble, provisions wherein its purposes (and sometimes, principles) are expressed. The United Nations Charter is not dissimilar from other international statutes in this regard. The Charter opens with a Preamble of several paragraphs which discloses, though not explicitly, the antecedents of the international community at the time. Of particular relevance to the aim of this paper is the very first paragraph of the Preamble, which states:

(We the peoples of the United Nations) determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind,[11]

Thereafter, the Charter progresses to its first chapter with its heading being “Purposes and Principle”. The chapter, Chapter I, contains only two Articles (1 and 2). The significance of the arrangement reveals the weight or importance of the provisions therein. The “principles” are in pursuit or furtherance of the “purposes” of the Charter, i.e. of the United Nations. The purposes of the Charter are contained in Article 1, while Article 2 contains the principles. For the purpose of this subhead, I will only address the provision pertinent to this paper, which is Article 1. The provision reads: “The Purpose(s) of the United Nations are… (t)o maintain international peace and security,…” The juxtaposition of this provision of Article 1, paragraph 1 of the United Nations Charter with the Charter’s Preamble expresses in plain and clear terms the purpose of the United Nations.

No further exposition of the purpose of the United Nations is necessary for our present aim. When we apply this understanding in connexion with next Article, in its paragraph 4, we can paraphrase the purpose of the United Nations to be the maintenance of global peace in conjunction with preventing inter-state war(s) or armed conflict (which is the usual contemporary parlance).

CONCLUSION

Having determined the related factors within the provision under consideration, the task of answering the question of what kind force is meant in the provision becomes less daunting. In the light of logical reasoning, historical antecedents, legal opinions and materials, and international statutes (some of which are already indicated in the preceding exposition) I will now attempt to construe the term “force” as meant by Article 2, paragraph 4 of the United Nations’ Charter. In doing this I shall be guided by the words of the International Court of Justice, in its Judgement of 15^th December 2004, in the CASE CONCERNING LEGALITY OF USE OF FORCE[12]. I quote paragraph 100 of that judgement here, for the purpose of emphasis:

The Court will thus proceed to the interpretation of Article …, of the Statute, and will do so in accordance with customary international law, reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties.  According to paragraph 1 of Article 31, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of the treaty’s object and purpose.  Interpretation must be based above all upon the text of the treaty.  As a supplementary measure recourse may be had to means of interpretation such as the preparatory work of the treaty and the circumstances of its conclusion.

From the Preamble to the United Nations Charter, it is expressed that the international community is determined to avert the scourge of war, which has occurred twice already. These are the First World War and the Second World War. After each war, the international community of States sought to avert any likely recurrence of such horror of warfare. Immediately following the end the First World War, though it was generally in Europe but with international ramification, the international community decided to set up a system for the regulation of inter-state cooperation and prevention of war in the future. The result of this cooperation was the Covenant of the League of Nations. The aim was laudable but the provision was loose. There was no prohibition or ban on the use of force falling short of war. This created a lot of loopholes for States which engaged in war but labelled their actions otherwise to avoid being considered as violating the prohibition on war as contained in the League of Nations Covenant. Of particular reference here is Japan which termed its aggression on Manchuria an “incident” in other to deny violation of the ban on “war”. Between 1931 and 1932, Japan invaded Manchuria and occupied it, and afterwards attacked China after walking out of the League Council following a condemnation of the invasion of Manchuria. Again, in proper perspective, war was not banned under the League system. What obtained in actual fact was a curtailment in the sense that, flowing from the provisions of Articles 12, 13 and 15, there was a three-month period of “cooling-down,” before States may be entitled to resort to war. Of paramount note in this regard is Article 12:

The Members of the League agree that, if there should arise between them any dispute likely to lead to a rupture they will submit the matter either to arbitration or judicial settlement or to enquiry by the Council, and they agree in no case to resort to war until three months after the award by the arbitrators or the judicial decision, or the report by the Council. In any case under this Article the award of the arbitrators or the judicial decision shall be made within a reasonable time, and the report of the Council shall be made within six months after the submission of the dispute.

It is needless to say that the League of Nations system failed in regulating the use of force as a national policy in international relations, much less in restraint or prohibition of the use of force. Meanwhile, France and the United States (which was not a party to the League of Nations) endeavoured to obviate[13] the most conspicuous deficiencies of the League of Nations by initiating the GENERAL TREATY FOR THE RENUNCIATION OF WAR (a.k.a. Kellogg-Briand Pact) 1928. Article 1 of this Pact declares:

The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.

This Kellogg-Briand Pact did not change much by way of prohibiting the use of force, though is made the prohibition on war more general. But of relevance to this paper is that the desire and awareness of the international community was steadily inclining towards the elimination or prohibition of war or use of force. According to Cassese[14], the correspondence between the parties before the signing of the Pact made it clear the customary right of self-defence was unaffected by the ban on war, and that a very liberal construction was placed on that right of self-defence. States that are parties to the Kellogg-Briand Pact (almost the whole international community at that time) generally made it clear their exceptions to the ban. An instance on this point was Great Britain which stated that its right of self-defence included its right to defend “certain regions of the world, the welfare and integrity of which constitute a special and vital interest for our peace and security”[15]. As noted earlier, the Kellogg-Briand Pact made little advancement over the League of Nations Covenant. But the significance of this international law development in relation to the use of force in inter-state relation was the growing desire of States to cut back on their customary unrestricted right to use military force in their relations with other State. The last of these world wars, WW II, which ended in 1945 virtually, inflamed the desire by States to outlaw resort or use of force as an instrument of national policy. Immediately the war ended and same year the Charter of the United Nations was drawn up bearing Article 2, paragraph 4. This time around, States were literally anxious to put an end to the horror and “scourge” of war, to the extent that they were willing to considerably limit their international political interests and practices and sign up to the new arrangement. Article 2, paragraph 4 placed

Again, whatever the interpretation that is read into what kind of force Article 2, paragraph 4 means, it is commonly agreed amongst States and commentators that “whatever force” it is that is prohibited by that provision leaves only Article 51 (self-defence) and Chapter VII (action by Security Council) of the Charter as the only two exceptions where force can be used under the regime of the United Nations. Then, a logical question for those holding contrary views to that supported in this paper is this: how can military force permitted under self- defence in Article 51 and Security Council action in Chapter VII of the Charter be the only exceptions to Article 2, paragraph 4? The premise of this question posed being that exceptions flow from a general rule, and the excepted rule or practice is of sui generis with the general rule. This premise is trite law.

Furthermore, the principle in Article 2, paragraph 4 is a customary law principle. The codification of the principle in a treaty or convention (multilateral or not) does not derogate from its nature as a customary law principle, which States have recognized and applied as prohibiting them from resorting to the use of military force in their international relations with other States. This position enjoys the support of the International Court of Justice, while rejecting the submission of the United States of America, in the Nicaragua case[16]. The international court quoted itself in an earlier decision in the same case thus:

“…the fact that the above-mentioned principles, recognized as such, have been codified or embodied in multilateral conventions does not mean that they cease to exist and to apply as principles of customary law, even as regards countries that are parties to such conventions. Principles such as those of the non-use of force, non-intervention, respect for the independence and territorial integrity of States, and the freedom of navigation, continue to be binding as part of customary international law, despite the operation of provisions of conventional law in which they have been incorporated.”(I.C.J. REPORTS 1984, P. 424, PARA. 73)[17]

Finally, as I have said earlier, the meaning of force as used in the Article 2, paragraph 4 is to be found in the proper construction of the provision itself. When the textual and original meaning of Article 2, paragraph 4 is aptly applied, it reveals what is intended by the provision. Particularly, when Article 2, paragraph 4 is considered as a whole: the prohibition of force in international relations; the prohibition being “against the territorial integrity and political independence of any state”; “or in any other manner inconsistent with the Purposes of the United Nations”, and this consideration is juxtaposed with the historical antecedents culminating in Article 2, paragraph 4, it becomes very plain what force is meant by the provision, the provision becomes illuminate literally. Whether one is of the opinion that this provision bans only the use of force directed at the territorial integrity or political independence of a state, or aligns with the more widely held opinion is that these are merely intensifiers, and that the article constitutes a general prohibition, subject only to the exceptions stated in the Charter itself of Article 51 and Chapter VII action by the Security Council, the unassailable convergence of opinion is that military force is meant by the provision. Cassese[18] referring to the prohibition on the use of force states, and I quote, “ (t)hey (the restraint on use of force placed by the Kellogg-Briand Pact) became radical and sweeping in 1945, when the UN Charter required members to refrain from using or threatening the use of any sort of military force, with or without the label of ‘war’”[19]. It may be relevant to mention here that, military force is a more restrictive form of armed force, in my view. While “armed force” could be possessed by non-state entities, like terrorist organizations, military force connote a more organized, regular armed force of a State. This distinction becomes necessary in relation to Article 2, paragraph 4 whose prohibition is implicitly in relation to large scale force. As Roling[20] suggests “against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations” is indicative of a large-scale force.

In conclusion, therefore, the use of force is controlled by both customary international law and by the United Nations Charter, and the force meant by the pertinent provision here, Article 2, paragraph 4 of the Charter is military force. An exposition of this principle or reasoning that military force is the force meant in Article 2, paragraph 4 of the Charter is based on the rationale of all the considerations above. In parting, let me extensively reproduce part of Cassese’s[21] views to which I wholly subscribe in support of my interpretation of the meaning of force that has been the subject of this paper:

Both the textual and logical interpretation of Article 2.4 and its drafting history warrant the following propositions:

First, the ban on force is an ‘absolute all-inclusive prohibition’, as was stated by the US delegate at San Francisco (UNCIO, vi, at 355). The threat or use of force was banned in all circumstances except for those provided for in…

Secondly, only military force was proscribed. A Brazilian amendment calculated to prohibit also ‘the threat or use of economic measures in any manner inconsistent with the purposes of the UN’ was rejected (ibid. at 559; see also 720-1),…

Thirdly, only the threat or use of force in interstate relations was banned.

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