The Global Prohibition Regime on the Use of Force: New

Challenges
Greg Moore (Oct. 2005)
International legal norms governing the use of force combine to form one of the
fundamental pillars of the international legal system. New developments in the last decades of
the 20th century, however, present unique challenges to these prohibitions. Through the previous
centuries, prohibitions and laws regarding the use of force developed haphazardly and often
failed to otherwise reflect a societys sophistication.1 Decisions to use force as a component of
international relations was traditionally considered a foundational right of the sovereign.
Machiavelli, speaking in the age prior to the Peace of Westphalia classically concluded, war is
justwhen it is necessary, and arms are righteous for those whose only hope remains in arms.2
Gradually, as a series of destructive wars ravaged the European continent, an effort was made
among the Great Powers to codify and control the use of armed conflict.
Development of international law as it relates to the recourse to force reveals a
complicated historical process. After the Napoleonic wars, the 1815 Concert of Europe
reconstructed the political map of the continent to maintain the peace between nations.3 The
failure of the great European powers to sustain this delicate balancing act gave way, after World
War I, to the Wilsonian idea of collective security.4 Before these tumultuous times, politics and
military adventure resembling those spoken of by Machiavelli, were regarded as a sovereign

See generally Ian Brownlie, International Law and the Use of Force by States 3-10 (Oxford University Press 1963)
(1961).
2
Niccol Machiavelli, Discourses on Livy bk. 3 ch. 12 para. 3 (Julia Bondanella & Peter Bondanella trans., Oxford
University Press 1997) (1517).
3
See Henry Kissinger, Diplomacy 78-102 (Simon & Schuster 1994).
4
See id. at 218-45.

right, and considered crucial to the realist sensibility in the balance of power among nations.5
International law on the use of force developed its fundamental tenets in these early struggles.
After the World War I, the modern regime of codified prohibitions on the use of force
began to consolidate. A natural beginning point to look at the modern era is the 1928 KelloggBriand Pact. The full text of article 1 states, 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.6 Article 2(4) of the United Nations Charter developed directly from the
language and intent of the pact and succinctly states:
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 other manner inconsistent with the Purposes of the United Nations.7
Though the charter, and many other documents and conventions produced by the U.N. are
aspirational in nature, article 2(4) has been found to embody active international law and is
considered valid treaty law, customary international law, and jus cogen.8
Additionally, in the landmark International Court of Justice (ICJ) case, Nicaragua v. The
United States of America, the court examined the status of article 2(4) and judged the following:
The Court has however to be satisfied that there exists in customary law an opinio
juris as to the binding character of such abstention. It considers that this opinio
juris may be deduced from, inter alia, the attitude of the Parties and of States
towards certain General Assembly resolutions. . . Consent to such resolutions is
one of the forms of expression of an opinio juris with regard to the principle of
non-use of force, regarded as a principle of customary international law.9

See generally Kenneth Waltz, Theory of International Politics (McGraw-Hill 1979).

Renunciation of War as an Instrument of National Policy art. 1, Aug. 27, 1928, 1928 U.S.T Lexis 6, 2 Bevans 732.
7
U.N. Charter art. 2, para. 4.
8
Christine Gray, International Law and the Use of Force 29 (2nd ed., Oxford University Press 2004).
9
Military and Paramilitary Activities para. 188 (Nicar. V. U.S.), 1986 I.C.J. 14 (June 27).
6

This finding seems to lend considerable weight to the notion that article 2(4) has moved beyond
aspiration and has taken on the substance of hard law. In the sixty years since the ratification of
the U.N. Charter and article 2(4), however, the ability of actors on the international stage to
project force globally has grown significantly.
With the completion of this exceptionally brief background on the development of
modern force prohibitions, the thrust of this survey now comes to the forefront. Although article
2(4) has contributed to the international prohibition regime against the use of force appreciably,
it fails to explicitly address several crucial developments in contemporary international relations.
This paper argues, without addressing obvious political obstacles, that a strict interpretation of
article 2(4) falls short of tackling emerging issues in the modern global society. Without the
intention of providing an exhaustive list, I find the major issues that challenge the current legal
regime developed by 2(4) as: (1) the use of Economic Coercion, (2) the rise of the Non-State
Actor, (3) a Pro-Democratic paradigm, and (4) the Doctrine of Pre-emptive Self-Defense. If the
United Nations and the charter are to continue as a viable component of international law, the
definition of force needs to be revised and a new way of initiating organized global response is
necessary. For these reasons, among others, U.N. Secretary-General Kofi Annan has declared
the United Nations at a point of decision as decisive as its founding in 1945.10
Prohibition of traditional military projection of force (armed aggression) is clearly
implicated under 2(4) and the current international regime. What is less clear is the extent to
which 2(4) prohibits or addresses the issues listed above. Each of the challenges outlined below
is a serious threat to the stability of the global prohibition regime on the use of force.

10

The Secretary-General, The Secretary General Address to the General Assembly, 13, delivered to the General
Assembly of the United Nations (Sept. 23, 2003), http://globalpolicy.igc.org/ secgen/annan/2003/0923gaaddress.htm.

The Use of Economic Coercion

Prohibition of the use of force through economic coercion is one of the most
controversial expansion areas of international law. States are understandably reluctant to include
economic coercion on the list of illegal uses of force. Generally, one of the principal reasons
for restricting "force" to physical or armed force was the conviction that to enlarge it to include,
e.g., economic coercion, as urged by some, would necessarily license the use of force to defend
against such conduct.11 Brownlie presents this countervailing argument concisely:
Subversion and economic pressure will present really serious dangers to a state
only in exceptional circumstances and it is not being realistic to deprive the law of
its general efficacy by demanding a new legal regime based on vague criteria
solely to deal with rare circumstances. In any case, states need not submit to
subversion and economic pressure, but may take all possible counter-measures in
their territory12
Still, if economic coercion amounts to a violation of the sovereignty of a state, as it often
does, that state should be allowed some legitimate recourse under international law. Whether
that recourse must rise to the level of armed force is a related, but separate question.
The later half of the twentieth century provides ample examples of coercive economic
interference rising to a level serious enough to threaten the sovereignty of the target state. Some
argue that the Chilean coup of 1973 in which President Allende was killed in an assault on the
presidential palace and subsequently replaced by General Augusto Pinochet was the intended
result of U.S. economic manipulation. The US$6 billion in aid given to opponents of Allende,
combined with pressure on global financial institutions to cut off lending to Chile, 13 was enough
to disrupt the balance of politics within the country and leave Allende vulnerable to overthrow.14
11

John Lawerence Hargrove, Appraisals of the ICJs Decision: Nicaragua v. United States (Merits), 81 A.J.I.L. 135,
140 (1987).
12
Brownlie, supra note 1, at 435.
13
See William D. Rogers & Kenneth Maxwell, Fleeing the Chilean Coup, Foreign Affairs, Jan.-Feb. 2004 at 160.
14
See also CIA Reveals Covert Acts in Chile (Sept. 19, 2000), http://cbsnews.cbs.com/stories/2000/09/11/
world/main232452.shtml.

Secretary of State Henry Kissinger reportedly said, I don't see why we need to stand by and
watch a country go communist due to the irresponsibility of its own people. The issues are much
too important for the Chilean voters to be left to decide for themselves.15
Yet another form of economic coercion operates to keep target states under a heavy debt
burden and subject to the will of their creditors. The scheme, described by a former operative, is
notorious as it is simple. A team of experts is sent to a third-world beneficiary under the guise of
aiding economic development. The team recommends a grand system of public works projects:
highways, electric grid enhancement, airports, etc. Economic growth forecasts are then wildly
exaggerated by team economists both to reinforce the need for such improvements and to
demonstrate the ability of the projects to generate revenue and pay for themselves. Leaders of
the developing country take the bait, often along with some economic incentives for themselves,
and the projects are contracted to firms in the visiting teams home country. The unfortunate, but
planned, result is that the forecasts of economic boom turn out to be way off base, and the debtor
nation surrenders some of its sovereignty to the creditor nation, typically by way of support in
the international arena for controversial moves by the creditor nation. In exchange, the target
country receives leniency in servicing the overwhelming debt created by the projects.16
When we remind ourselves that the United Nations Charter in article 2(4) prohibits force
that threatens the territorial integrity or political independence17 of a nation, certain forms of
economic coercion rise in violation 2(4). Yet the international community is reluctant to give its
acquiescence to a self-defense entitlement under such situations. The International Court of
Justice has generally declined to do so except when the funds are used for armed intervention,18
yet, Subversion and economic pressure may in certain circumstances be very effective
15

Salvador Allende, http://en.wikipedia.org/wiki/Allende (last visited Oct. 4, 2005).

See John Perkins, Confessions of an Economic Hit Man 12-33 (Berrett-Koehler 2004).
17
U.N. Charter art. 2, para. 4, (emphasis added).
18
See generally Military and Paramilitary Activities (Nicar. V. U.S.), 1986 I.C.J. 14 (June 27).
16

instruments of national policy and yet the law. . .does not permit a forcible action to neutralize
such threat to states.19 International law on the use of force has yet to codify an effective
response to economic coercion when it threatens the sovereignty and existence of the state.
There is no equivalent trigger action like that set forth in article 51 dealing with armed attack.

The Rise of the Non-State Actor

The nation-state remains the dominate actor in international relations and international
law, yet the non-state actor plays an increasingly influential role.20 The four factors of statehood
identified by the 1933 Montevideo Convention on the Rights and Duties of States were found as,
The state as a person of international law should possess the following qualifications: (a) a
permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into
relations with the other states.21 For actors that fall outside of this definition, international law
is poorly developed and only rarely does it give legal personality to these actors. Groups like Al
Qaeda, multi-national corporations, and most disturbingly, the private military industry, operate
outside any legitimate authority. Private Military Firms (PMFs as they are sometimes called),
comprise one remaining industry whose behavior is dictated not by the rule of law, but by
simple economics.22 The lack of regulation and enforcement mechanisms in international law
results in oversight attempts being deferred to the national level and the courts of the nationstate. This approach is highly problematic and generally ineffective because of the
extraterritorial nature of non-state actors. Projecting legal power into the sovereign territory of
19

Brownlie, supra note 1, at 435.

See Thomas D. Grant, Defining Statehood: The Montevideo Convention and its Discontents, 37 Colum. J.
Transnat'l L. 403 (1999).
21
Montevideo Convention on the Rights and Duties of States art 1, Dec. 26, 1933, available at http://www.
yale.edu/lawweb/avalon/intdip/interam/intam03.htm.
22
P.W. Singer, War, Profits, and the Vacuum of Law: Privatized Military Firms and International Law, 42 Colum. J.
Transnat'l L. 521, 524 (2004).
20

another state, even in a legitimate effort to combat a belligerent non-state actor, is troublesome
under the current global regime. In a nation-state system developed out of the circumstances
existing at the time of the 1648 Peace of Westphalia, the territorial foundation of sovereignty
produces special challenges for international law and non-state actors.

Pro-Democratic Paradigm
Some scholars, notably Franck, have begun to support the idea that that a pro-democratic
regime, or democratic entitlement, has come into being in the international order.23 An extreme
point of view authorizes force against illegitimate governments (read: non-democratic) to bring
the citizens of that country into the democratic world community. As a current example,
statements by the Bush administration provide justification for the 2003 invasion of Iraq as, in
part, a pro-democratic expedition. Franck has observed:
[S]ome governments have argued that the international community's jurisdiction
to intervene in the domestic affairs of states to secure compliance with the
democratic entitlement is (or should be) limited to cases where its violation has
given rise to breaches of the peace. Others have disagreed, claiming that the
jurisdiction to intervene is also based on broader human rights law, which
authorizes various intrusive forms of monitoring and even envisages sanctions
against gross violators.24
This new order of eliminating illegitimate regimes, according to many, however, has not
yet solidified and Clark and Beck report, there is clearly no consensus developing on the
efficacy of the use of force to remove such a regime.25 Gray echoes this argument that a prodemocratic regime is not yet supported by state practice.26 Pro-democratic justification for the

23

See Thomas Franck, The Emerging Right to Democratic Governance, 86 A.J.I.L. 46, 46 (1992).
Thomas Franck, supra note 22, at 89.
25
Anthony Clark & Robert J. Beck, International Law and the Recourse to Force, in International Law: Classic and
Contemporary Readings 299 (Charlotte Ku and Paul Diehl eds., Lynne Rienner 2003).
26
See Gray, supra note 8, at 50.
24

use of force, however, is a growing challenge to existing norms in international law. Its
unpredictability is likely to result in controversy in the coming years.

The Doctrine of Preemptive Self-defense

The limits of the use of force and the self-defense principle are some of the most
contested areas of international law. None of these principles are more disputed than the notions
of preemptive and preventive self-defense. Essentially, these doctrines describe a policy of
employing armed force before an issue becomes an imminent threat. The U.S. attack of Iraq in
2003 and Israels 5 June 1967 Operation Red Sheet strike against the mobilizing Egyptian air
force27 illustrate varying degrees of the doctrine.
These strategies of self-defense lie along a continuum of hesitantly-accepted to highlychallenged. Self-defense against armed attack is accepted globally and encoded into the United
Nations Charter,
Nothing in the present Charter shall impair the inherent right of individual or
collective self-defense if an armed attack occurs against a Member of the United
Nations, until the Security Council has taken measures necessary to maintain
international peace and security. Measures taken by Members in the exercise of
this right of self-defense shall be immediately reported to the Security Council
and shall not in any way affect the authority and responsibility of the Security
Council under the present Charter to take at any time such action as it deems
necessary in order to maintain or restore international peace and security.28
Whether preemptive self-defense is legitimate within the charter is now back in the
spotlight as the Bush Doctrine. The concept is not new, however. Vattel wrote about
preemption as early as 1758.29 Predating Vattel by almost a century, Thomas Hobbes found,
27

The Israeli strike of 5 June 1967 more accurately reflects an anticipatory strike because an Egyptian threat was
being mobilized against Israel. The 2nd Gulf War, as justified by the search for weapons of mass destruction, is more
correctly termed preemption, in that the threat was not imminent, but could possibly develop. The continuum from
anticipatory, to preemptive, to preventive self-defense becomes more attenuated and more controversial as the threat
is seen as less imminent.
28
U. N. Charter art. 51.
29
See Emmerich de Vattel, The Law of Nations (1758), available at http://www.constitution. org/vattel/vattel.htm.

And from this diffidence of one another, there is no way for any man to secure himself so
reasonable as anticipation, that is, by force of wiles to master the persons of all men he can, so
long till he see no other power great enough to endanger him.30
Preemptive military action has become the policy of the United States in the years since
the 9/11 attacks and is clearly advocated in the National Security Strategy of the United States,
2002. This report outlines a policy in which the U.S. will [defend] the United States, the
American people, and our interests at home and abroad by identifying and destroying the threat
before it reaches our borders.31 The document also states that the United States can no longer
solely rely on a reactive posture as we have in the past,32 and that, to forestall or prevent such
hostile acts by our adversaries, the United States will, if necessary, act preemptively.33
The stability of the current regime of restrained force is severely threatened by a
preemptive, or even worse preventive, use of force norm. Under such a norm actors operate
contained only by their own authority and justification. Prevailing law, based on articles 2(4)
and 51 of the U.N. Charter, become effectively moot in such a self-help system.

30

Thomas Hobbes, Leviathan ch. 13 para. 4, (Edwin Curley ed.. Hackett Publishing 1994) (1668).
National Security Strategy of the United States of America 6 (Sept. 2002), available at http://www.whitehouse.
gov/nsc/nss.html.
32
Id. at 15.
33
Id. (emphasis added).
31

Conclusions
Individual states in the state system must rely on each other for order. Up until this point,
I have suggested that the United Nations is the fulcrum upon which the success of dealing with
these emerging issues will turn. Indeed, the United Nations has the predominate role to play in
keeping international law and use of use prohibitions relevant in the 21st century.
The current international order is imperfect and real threats do exist, but dealing with
these threats in an unjustified way threatens the international order to an even greater extent. The
United States unfortunately undermines use of force norms, employing in varying degrees each
of the four modern challenges mentioned above. These actions are a significant danger to the
legitimacy of the U.N.s authority:
The hegemon promotes, by word and deed, new rules of law, both treaty based
and customary. It is generally averse to limiting its scope of action via treaty;
avoids being constrained by those treaties to which it has adhered; and disregards,
when inconvenient, customary international law, confident that its breach will be
hailed as a new rule.34
Each of these areas need to be more effectively addressed by international law, through the
support of the United States, the advocacy of the United Nations, and the awareness of the global
community.

34

Jose E. Alvarez, Hegemonic International Law Revisited, 97 A.J.I.L. 873, 873 (2003).

10