241 / 464
227
YOU CAN’T HAVE ONE WITHOUT THE OTHER, CAN YOU? …
terms.
11
This step and the Charter itself struck the decisive blow to proponents of
just war theory and constitutes the underlying reason for the confronting views on the
right to use force in international relations,
12
as international peace and security, not
promoting justice, had become the overriding goal.
13
Consequentially, the international
and the non-international sphere were completely separated.
14
Neither the use of force
on humanitarian grounds,
15
be it in cases of non-international armed conflicts or
not, nor regime change, regardless of the tyrannical character of the government in
question,
16
or the restoration of democratic governments after violent overthrows were
on the minds of those that drafted the UN Charter; on the contrary, the sovereignty
principle and the domestic jurisdiction clause even seem to preclude such actions.
17
At least in theory, the decades that followed were the heyday of ‘traditional’ or
‘absolute’ sovereignty,
i.e.
sovereignty understood as an end in itself imposing a strict
prohibition on forceful interference that is not conditional upon the relationship
between the people living within a state and its government.
18
In particular the former
colonies, keen on their newly acquired status as independent sovereign states and
under a peculiar threat of intervention, provided additional impetus to this notion.
19
3. Piercing the Sovereign Veil
Classic inter-state warfare in the sense of Article 2(4) has indeed decreased ever
since 1945,
20
while the vast majority of these conflicts did not call into question
the basic assumptions regarding sovereignty, as they were usually not fought over
human rights matters but
Realpolitik
considerations.
21
Accordingly, UN-involvement
11
See Thomas M. Franck,
The Power of Legitimacy Among Nations
(OUP, 1990) 75-76, who describes
Article 2(4) as an ‘idiot rule’, as it enjoys ‘a high level of determinacy’ and ‘makes sense.’
12
Robert J. Delahunty and John Yoo, ‘From Just War to False Peace’ (2012) 13
Chicago Journal of
International Law
1, 35-44.
13
Tom J. Farer, ‘Human Rights in Law’s Empire: The Jurisprudence War (1991) 85/1
The American
Journal of International Law
, 117, 126.
14
W.-D. Eberwein and B. Badie, ‘Prevention and Sovereignty: A Vision and a Strategy for a New World
Order?’ (2006) 20
Global Society
1, at 12.
15
Jennifer M. Welsh, ‘The Responsibility to Protect and Humanitarian Intervention’ in Julia Hoffmann
and Andre Nollkaemper (eds),
Responsibility to Protect. From Principle to Practice
(Pallas Publications,
2012) 185, 186.
16
Louis Henkin, ‘International Law: Politics, Values and Functions’ (1989) 216
Recueil des Cours
154.
17
Thomas M. Franck,
Recourse to Force. State Action Against Threats and Armed Attacks
(CUP, 2002), 41.
18
Luke Glanville, ‘The Myth of ‘‘Traditional’’ Sovereignty’ (2013)
International Studies Quarterly
57, 79.
19
Maziar Jamnejad and Michael Wood, ‘The Principle of Non-intervention’ (2009) 22
Leiden Journal of
International Law
, 345, 350. See
e.g.
theDeclaration on the Granting of Independence toColonial Countries
and Peoples, UNGA Resolution 1514 (1960) or paras 6 and 7 of the Declaration on the Inadmissibility of
Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty,
UNGA Resolution 2131 (1965) or the Friendly Relations Declaration, UNGA Resolution 2625 (1970).
20
Christine Gray, ‘The Charter Limitations on the Use of Force: Theory and Practice’ in Vaughan Lowe
et al
(eds),
The United nations Security Council and War
(OUP, 2008) 86, 87-88.
21
See
e.g.
John J. Mearsheimer,
The Tragedy of Great Power Politics
(Norton and Co, 2003), chapter 10.