Back to San Francisco: Explaining the Inherent Contradictions of Article 2(4) of the UN Charter

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Abstract

Article 2(4) of the United Nations Charter, detailing the prohibition of the threat or use of force between states, is undoubtedly one of international law’s most fundamental norms. Yet, its phrasing is awkward and ‘unhappy’, as one Delegate described it during the drafting of the Charter at San Francisco in 1945. Over 70 years of debate has yet to settle on an explanation of how the provision operates, and even the scope of the prohibition itself. While some argue that the prohibition is general and all-encompassing, others prefer a more narrow interpretation—often in an attempt to find undesirable loopholes in the rule. However, this author is not satisfied with either extreme position. This article investigates a more pragmatic interpretation of Article 2(4) that seeks to explain its mechanics and the inherent contradictions that come with the more popular wide interpretation of the provision, while also avoiding the undesirable consequences of an extremely narrow interpretation. It is the result of research that has looked back to the original intentions of the drafters of the UN Charter, and has uncovered revealing intentions and nuances in the debates therein that can clarify the doctrinal operation of the prohibition of force. In particular, instead of interpreting Article 2(4) as prohibiting all uses of force, with the powers of the Security Council and the right of self-defence as ‘exceptions’ to this, it is suggested that the prohibition was only ever one outlawing unilateral uses of force, and the so-called ‘exceptions’ are in fact circumstances that were never precluded by the prohibition in the first place. This may seem a semantic distinction, but the effects of this original interpretation are more substantive, and indeed help to explain some of the long-debated problems with Article 2(4).
Original languageEnglish
Pages (from-to)229-267
Number of pages39
JournalJournal of Conflict and Security Law
Volume23
Issue number2
Early online date24 May 2018
DOIs
Publication statusPublished - 1 Jul 2018

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    PATRICK BUTCHARD, PhD

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