The question this essay seeks to answer is: Have the prohibition against the use of force found in Art. 2(4) of the Charter of the United Nations1 (hereafter the UN Charter) been a success? In answering that question one have to figure out how to measure success. In determining this, it is relevant to look at which indicators the legal text set up for this. In the preamble of the UN Charter it clearly states that the aim of the regime is ‘to save succeeding generations from the scourge of war, which has twice in our lifetime has brought untold sorrow to mankind..’ With this reference to the two world wars, it can be argued that the regime is successful if there is no third world war. However, if we look in the first article of the UN Charter, it is clearly stated that the purpose of the United Nations (hereafter the UN) is ‘To maintain international peace and security..’ When the point of reference is if the regime has maintained peace and security, it is not hard to argue that since there have been lots of wars and atrocities, the provisions have been unsuccessful. As a point of reference it seems more accurate to use the later, however applied in a less restrictive way. The point of reference will therefore be if the prohibition against use of has made a significant difference in maintaining peace and security.
In this essay I will take a positivist look at the empirical data presented through different times in history. It will be argued that the provision was flawed from the very beginning. This argument is based on the fact that the presumption for cooperation between the big five has been false and the fact that the law has been breach on numerous occasions through its existence. It will also be examined how the provision has kept up with the changing types of warfare and if we even no what it prohibit. Lastly it will be argued that the prohibition has lost some of it significance, because if nobody follows the law, is it then law. First the essay will give a short introduction to the provision to place it in the historical context that the later analyses will draw to.
The history of Article 2(4) of the UN Charter
The Charter of the United Nations entered into force on October 24th 1945 and thereby created the United Nations. The backgrounds for its creation were the ruins of the Second World War and the fear of and wish to prevent at new devastating world war.2 From the entry into force the charter had 513 members states. This number has now grown to 193 member states as well as permanent two observers.4 5 The aim of the UN is according to the preamble of the UN Charter ’to save succeeding generations from the scourge of war’ and the main purpose is ’To maintain international peace and security..’6 Article 2(4) of the UN Charter prohibit the use of force against other states by stating that ‘All members shall refrain in their international relations from the treat or use of force against the territorial integrity of political independence of any State, or in any other manner inconsistent with the Purposes of the United Nation.’ The clear exceptions to this rule are authorised use of force by the Security Council (Art. 42) and self-defence (Art. 51) while it is more controversial if intervention by invitation, responsibility to protect, reprisals and protection of nationals abroad can be seen as a legal exception to the prohibition. The provisions in the UN Charter were not the first attempt to prohibit the use of force. This was tried in 1928 by treaty called the Briand-Kellogg pact.78 This pact did however not prevent the atrocities of the Second World War and was therefore overwritten by the current regime. The prohibition against use of force is not only written but also customary international law. It is also what we call a jus cogens norm i.e. a fundamental principle of international law that is accepted by the international community of states as a norm from which no derogation is...
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