Analysing the role in international law
International law is fluid, and “hard” sources of law like treaties can be shaped and even amended by the practice of nations. For example, the UN Charter contemplated that the United Nations itself would enforce Security Council authorizations to use force pursuant to military forces provided to it by member states. But these arrangements never materialized, and the relatively rare Security Council use-of-force authorizations are enforced by member states in an ad hoc fashion. Similarly, Article 51 of the Charter says: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence 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.” But through argumentation, interpretation and practice, this provision came to be seen as permitting self-defensive actions by states in (various modes of) anticipation of armed attacks. Follow-up “measures” by the Security Council have operated unevenly, at best.
These examples suggest that the text of the document is not always the last word on lawful uses of force under international law. It is also true that the prohibition on the use of force in Article 2(4) has been violated dozens, if not hundreds, of times since the UN Charter’s creation in 1945. Some people conclude from frequent violations of the UN Charter, and the absence of a reliable judicial or executive mechanism to enforce it, that the treaty’s prohibitions do little in influencing national behaviours. They certainly seem to do little if any work in cases like Ukraine, Crimea, Kosovo and Syria.
The fluidity and uncertainty about the UN Charter’s meaning presents an opportunity for those who want to argue that its meaning is changing to recognize a humanitarian intervention exception. The document’s text doesn’t support this conclusion. And the “responsibility to protect” doctrine that developed after the Kosovo invasion in 1999 is premised on compliance with the normal rules of the Charter.
Some people will point to the existence of a doctrine of developing humanitarian intervention – as suggested by the stance taken by the Great Britain, the United States and France that the strikes against Syria were “legitimate” – and scholarly support for humanitarian intervention, and so on.
These and related arguments are wholly inadequate, under any theory of international law, to overcome the document’s clear text. But still many people believe that practices and arguments like this can build up to change our understanding of international law, including the UN Charter.
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