ESTABLISHING A MILITARY PRESENCE IN A DISPUTED TERRITORY: INTERPRETATION OF ARTICLE 2(3) AND (4) OF THE UN CHARTER

Abstract

AbstractIn its 2015 judgment in the Costa Rica v Nicaragua case, the International Court of Justice (ICJ) found that Nicaragua's establishment of a military presence in disputed territory violated the territorial sovereignty of Costa Rica. Two judges considered that Nicaragua's actions had constituted a breach of Article 2(4) of the United Nations (UN) Charter, but the majority of the judges chose not to pronounce on the issue. Whilst it has been clarified that the prohibition of the use of force applies to a disputed territory, it seems less clear as to whether such force has to be violent in nature, causing injury to human beings or damage to property, for it to be in breach of Article 2(4). The ICJ's Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory case strongly indicated that the construction of the wall breached Article 2(4). If a State establishes a military presence to change the status quo in a disputed territory, it would not be regarded as a ‘peaceful’ means of settling the territorial dispute. Therefore, such behaviour would violate Article 2(3), under which States shall settle their international disputes ‘exclusively’ by peaceful means. Furthermore, to constitute an unlawful use of force under Article 2(4), the establishment of a military presence in a disputed territory does not have to be violent but should involve coercion that makes it materially impossible for other claimants to restore the status quo ante without risking human injury or damage to property.