The True Meaning of Force

Mary Ellen O’connell

doi:10.1017/s2398772300002038

Abstract

Tom Ruys’s article in the latest issue of the American Journal of International Law is an erudite study of the prohibition on the use of force in UN Charter Article 2(4). Ruys makes many points with which I wholeheartedly agree. In note 241, he says that the case for cross-border drone attacks by the United States “verges on stretching criteria for necessity, proportionality, and armed attack to the point of absurdity . . . .” He is also right to reject emerging claims that the defense of necessity provides a basis for the lawful resort to force. Indeed, there is much that is truly excellent about the article—just not, unfortunately, its central thesis.

Highlights

Tom Ruys’s article[1] in the latest issue of the American Journal of International Law is an erudite study of the prohibition on the use of force in UN Charter Article 2(4)
In note 241, he says that the case for cross-border drone attacks by the United States “verges on stretching criteria for necessity, proportionality, and armed attack to the point of absurdity . . . .” He is right to reject emerging claims that the defense of necessity provides a basis for the lawful resort to force
Ruys indicates his thesis is that Article 2(4) prohibits all force in international relations no matter how minor: a navy vessel firing a single shot across the bow of a foreign ship is covered by Article 2(4) because “excluding small-scale or ‘targeted’ forcible acts from the scope of Article 2(4) is conceptually confused, inconsistent with customary practice, and undesirable as a matter of policy.” 2 Ruys is opposed to the position taken by Olivier Corten, Robert Kolb, the Independent International Mission on the Conflict in Georgia, this author, and many others that Article 2(4) excludes minor uses of armed force from its scope

Summary

Introduction

Tom Ruys’s article[1] in the latest issue of the American Journal of International Law is an erudite study of the prohibition on the use of force in UN Charter Article 2(4). It seems that Ruys may not be as concerned about accurately interpreting Article 2(4) as he is in advocating for an expansion of the right to use armed force. A prime reason for his interest in expanding the right to resort to armed force is something he calls the “‘gap’ conundrum.”[6] Ruys is concerned that if a state is the victim of an unlawful but minor use of force it does not currently have the right to respond with force prohibited by Article 2(4).

Results

Conclusion