Irrelevant or Indispensable?: The United Nations in the Twenty-first Century

9. Legal and Legitimate Use of Force under the UN Charter: A Critical Analysis of the Report of the High-level Panel

introduction Contemporary conflict over the meaning and the legal status of use-of-force constraints in the Charter and the problématique of the original understanding Within the past few years, a number of international lawyers, mostly from the United States, have argued that Charter norms purporting to regulate the use of force have become so inconsistent with state practice that they can no longer be deemed legally binding.1 These Charter skeptics (as I call them) do not appear to be claiming that practice has modified the original interpretation of those norms. Their claim, rather, is that practice has demonstrated the collapse of the interstate consensus, assuming a real one ever existed, necessary to sustain the Charter normative scheme. Precisely what legal conclusions follow from this notionally empirical observation is unclear. One possible conclusion is that the question of when a state can employ force has become entirely political in character. Hence, it is possible to condemn particular uses of force only on the grounds that they are immoral or imprudent. An alternative possibility is that certain broad legal prohibitions persist, in particular the preclusion of force where its only justification is to impose the value system of the aggressor or to increase its wealth and power. Or, to put the test in slightly different terms, the use of force is legal whenever it can be plausibly characterized as a good-faith defence of vital interests of the aggressor threatened by its target or in defence of Charter values like basic human rights. tom farer 9 LEGAL AND LEGITIMATE USE OF FORCE UNDER THE UN CHARTER a critical analysis of the report of the high-level panel 89 Are these chroniclers of the supposed demise of the use-of-force regime telling a true story? If so, where can we go from here, and how do we get there? The Report of the High-level Panel casts some light on these questions.2 In order to appreciate its conclusions and omissions, it helps to see them in light of the interpretation of the Charter that prevailed in the immediate aftermath of the Charter’s adoption. At the birth of the United Nations, a majority of legal scholars and probably of governments subscribed to the view that taking into account the language and structure of the Charter, in particular Articles 2(4) and 51 in conjunction with Chapter VII as a whole, and taking into account also the document’s negotiating history, it should be read as dividing the universe of cross-border military coercion and intervention into three categories. Category 1 is self-defence against an armed attack. Category 2 is force (or the threat thereof) authorized by the Security Council (SC) under Chapter VII to prevent a threat to the peace, a breach of the peace or an act of aggression. The domain of the illegal is Category 3—call it the default category, which is occupied by every act of state-initiated or tolerated cross-border violence that does not fall into the first two categories.3 However, it was not long before states with the capacity to project force across frontiers began proposing additional categories, based in part on curious readings of the Charter, that happened to legitimate their uses of force, and they invariably found some scholars who sympathized with their claims. What follows is a sketch of the areas of ambiguity and contention. What constitutes an “armed attack” for purposes of activating the right of individual and collective self-defence? a. Do activities short of launching troops, planes, or missiles across a frontier, for instance giving material assistance to an insurgency in another state or a terrorist group, ever trigger the right of self-defence? During the Cold War, primarily with respect to the guerrilla wars against pro-Western regimes in Latin America and Southeast Asia, the US argued that where State A provided weapons or training to opponents of the recognized government of State B, the latter and allied states could treat that assistance as an armed attack. The World Court rejected this claim in the Nicaragua case insofar as it purported to justify US acts of war within Nicaragua. b. At what point, if any, do activities that could reasonably be construed as preparations to launch an armed attack, justify pre-emption? 90 tom farer Perhaps because on a number of occasions during the Cold War, mechanical and electronic devices...