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JOSEF MRÁZEK
CYIL 7 ȍ2016Ȏ
a government’s armed attacks on its own population” is a quite revolutionary idea,
evidently without any clear support in the UN Charter or general international law…
Prohibition of the use of force embodied in Art. 2 (4) is considered to be one
of the
ius cogens
norms binding individual states, coalitions of states, international
organizations, including NATO. Teleological and historical interpretation of
Art. 2 (4) was of a “comprehensive nature”, and “phrase” or “in any other manner
inconsistent with the purposes of the United Nations” was not enacted (despite
certain views) as an exception from this general prohibition.
8
Art. 2 (4) has become,
like Art. 51, the subject of a “certain misinterpretation”. B. Simma emphasized
that Art. 51 “unequivocally limits whatever farther – reaching right of self-defence
might have existed in pre-Charter customary law to the case of an armed attack.”
9
Art. 43 of the UN Charter, as it is known, has never been effected in practice. Instead
“authorization” or “recommendation resolutions” of the UNSC for the use of armed
force have substituted Art. 43 agreements. After having determined that a threat to
the peace, a breach of peace or an act of aggression occurred, the UNSC may take
military enforcement action under Art. 42. In practice such military action may
be carried out on the basis of an authorization or a “mandate” of the UNSC. This
“authorization”, “delegation” or “empowerment” by the UNSC may come through
individual states (exceptionally), a coalition of states, or international organizations
(mostly through NATO). The UNSC resolutions authorizing the use of military
force to states or an international organization in fact serve as “delegation” of the
UNSC powers, within limits designated by resolutions.
The ILA Report rightly refused the interpretation that the reference in Art. 2 (4)
to use force “against the territorial integrity or political independence of any state”
could be claimed as having permitted one to use armed force for other objectives,
e.g. humanitarian interventions. It was here rightly noted that
travaux preparatoires
of
the UN Charter demonstrates that inclusion of the reference to territorial integrity or
political independence was not intended to narrow the prohibition of the use of force.
The Report recalled that the intention of the authors of the UN Charter was to state
“an absolute, all-inclusive prohibition” and that the phrase “or in any other manner”
was designed to ensure that there should be no loopholes.”
10
The Report supports
a “
de minimis
treshold” of seriousness below which a use of force does not fall within
Art. 2 (4)’s “prohibition”. Reference was made in this assertion to “indication” from
state practice and case law. At the same time, the Report acknowledges that a law
enforcement situation may evolve into one of prohibited use of force. It seems rather
difficult to decide when the use of force is allowed and in what intensity. The Report
8
Supra note 2, p. 2.
9
Ibid., p. 3.
10
Ibid
., p. 4. The Report refers to U.N.C.I.O. Vol. 6, p. 334-335 see also BROWNLIE, I.
International
Law and the Use of Force by States.
Oxford: Clarendon Press, 1963, p. 267.