UN Charter Article Research Articles

Beyond Conventional War: Cyber Attacks and the Interpretation of Article 2(4) of the UN Charter

In this study, we delve into the connection between cyber-attacks and Article 2(4) of the UN Charter, which forbids the use of force. We investigate warfare's historical backdrop, the shift from traditional to nontraditional tactics, and cyber warfare's emergence. We classify various cyber-attack forms and showcase pivotal case studies that underscore their effects on national and global security. The paper delves into a comprehensive analysis of the UN Charter, particularly Article 2(4), discussing its intent, history, and interpretation. Our research tackles difficulties in applying Article 2(4) to nontraditional warfare like cyber-attacks. We scrutinize legal viewpoints and academic arguments regarding whether such attacks fall under force as per Article 2(4) while contemplating the potential consequences of interpreting it so. We explore how these findings may influence prospective cyber conflicts while offering suggestions for managing hurdles presented by such situations within international law's framework. This study deepens our comprehension of the interplay between cyber-attacks and the UN Charter's Article 2(4), enriching policy debates and promoting continued examination in this rapidly evolving domain.

Forever air wars and the lawful purpose of self-defence

ABSTRACT The 20-year Afghanistan conflict was called a ‘forever war’ but another significant use of military force has lasted much longer. Since 1986, US presidents have authorised air attacks beyond armed conflict zones. President Biden continued the practice beginning with a strike on Syria and later on Iraq, Somalia, and Afghanistan, where a drone cost the lives of seven children. US air wars are explained more by a policy of deterrence, than the lawful purpose of self-defence as permitted under international law. UN Charter Article 51 restricts force to when an armed attack occurs. The general principles of necessity, proportionality, and attribution provide further restrictions. The US has tried for 35-years to alter this law in line with deterrence policy but doing so is difficult under the doctrine of positive law. It is impossible under the doctrine of jus cogens that includes the prohibition on force and the exception for self-defence.

China-Taiwan Threats of Force and the Paradox of the ‘Nuclear Weapons Principle’

Abstract The People’s Republic of China (‘China’) has adopted legislation threatening to invade the Republic of China (‘Taiwan’) if the latter declares independence. Threats of force are prohibited by the UN Charter Article 2(4) and equivalent customary international law. This article proceeds along two apparently contradictory strands. On the one hand, the prohibition probably does not apply to non-State entities such as the Republic of China. One the other hand, the ICJ stated in the Nuclear Weapons opinion that ‘if the use of force itself in a given case is illegal […] the threat to use such force will likewise be illegal’. If the Republic of China declares independence it will become a State, making a PRC invasion illegal. Therefore, the PRC’s current threats should also be illegal. The best way to resolve this apparent paradox is to say that the ICJ’s ‘Nuclear Weapons principle’ must be nuanced.

Conduct and subsequent practice by states in the application of the requirement to report under UN Charter Article 51

ABSTRACT United Nations Charter Article 51 obliges states to immediately report the use of self-defence to the United Nations Security Council (UNSC). Besides the wording in Article 51, there are no (codified) rules or guidelines on how states should report or what should be included in the report to the UNSC. Reporting on self-defence is predominantly based on the conduct of UN member states and how these actors interpret their obligations. This article analyses whether there is common conduct that could indicate subsequent practice by parties to the Charter regarding the format of reporting, the notion of immediacy in reporting and the quality of reports submitted to the UNSC. It was found that there is subsequent practice identifiable regarding the format of reporting, that there are reliable indicators on parallel conduct regarding the immediacy of reporting and common conduct when reporting on measures taken in self-defence.

미국 대통령의 헌법상 전쟁권한에 대한 국제법 규범 통합에 의한 입법적 규제

The U.S. Constitution accords the President the power to serve as the commander-in-chief of U.S. armed forces and also grants the Congress the power to declare war and the power to provide for and maintain military forces and traditionally brought about debates on the division of war powers between the President and the Congress. The key issue is whether either the President or the Congress has the superior war power. The 9/11 terrorist attacks on the United States in 2001 spurred the Bush doctrine. As the debates go through the impact of the 9/11 terrorist attacks, the pendulum has considerably swung to the president-centered view.BR In international law, the use of armed force by a state is generally prohibited under UN Charter Article 2(4) and only exceptionally allowed in such a case as self-defense under UN Charter Article 51. The Bush doctrine has caused serious controversies because its underpinning is the expansive view of the right to self-defense: the pre-emptive self-defense. The Bush doctrine justifies the use of force even in the absence of, or not necessarily in an immediate response to, armed attack by a state.BR The U.S. Constitution does not clearly set out whether the President can initiate war in the absence of congressional declaration of war and has left the question unsettled. In practice, the President has exercised his war power expansively and initiated almost all of the wars that the United Stated conducted thus far. This practice has been supported by the inherent prerogative theory and the theory of repetition-based validity.BR In addressing the question of the division of war powers, Judge Jackson’s three-prong test has been able to shed lights on the issue of the constitutionality of the president’s exercise of war powers. This test sets forth three kinds of situation when the constitutionality of the president’s exercise of war power is debated. The President may exercise the war power (i) in pursuance of congressional permission, whether explicit or implicit, (ii) in the absence of congressional permission or opposition, or (iii) in defiance of congressional intention, whether explicit or implicit. Through these three situations, the presumption of constitutionality of the President’s power ranges from the maximum to the minimum.BR The U.S. Congress enacted the War Powers Resolution in the aftermath of the Vietnam War in order to restrain the President’s exercise of war powers and also passed the Authorization for the Use of Military Force(AUMF) in response to the 9/11 terrorist attacks. The critical loophole has been that the Supreme Court in practice has avoided to carry out the judicial review on presidential acts of war on the basis of the political question doctrine.BR Given that the UN Charter and rules of international law specify conditions under which the right of self-defense can be limitedly exercised, an alternative way of restraining the president’s exercise of war power may be to incorporate such rules as necessity and proportionality into domestic legislations. It can harmonize both the needs for addressing new security threats such as terrorism and the regulatory demand for restraining the use of armed force, in a manner that respects the principle of separation of powers and the principle of checks and balances.

UN SECRETARY-GENERAL NORMATIVE CAPABILITY TO INFLUENCE THE SECURITY COUNCIL DECISION-MAKING PROCESS

The present article studies the issue of the interrelation between the senior UN official - the Secretary-General and the main UN body - the Security Council. The nature of the Secretary-General role is ambiguous since the very creation of the UN. On one hand, the Secretary-General leads the Secretariat - the body that carries out technical and subsidiary functions in relation to other UN Main Bodies. This is the way the Secretary-General position was initially viewed by the UN authors. On the other hand, the UN Charter contains certain provisions that, with a certain representation, give the Secretary-General vigorous powers, including political ones. Since the very beginning of the UN operation the Secretary-Generals have tried to define the nature of these auxiliary powers, formalize the practice of their use. Special place among these powers have the provisions given in the Charter article 99. This article give to the Secretary-General the right to directly appeal to the Security Council and draw its attention to the situation that, in his (Secretary-General's) opinion may threaten the international peace and security. This right was used by some Secretary-Generals during different crises occurred after the creation of the UN. This article covers consecutively the crisis in Congo, Iran hostage crisis and the situation in Lebanon. These are three situations that forced Secretary-Generals Hammarskjold, Waldheim and de Cuellar to explicitly use their right to appeal to the Security Council. Other cases in UN history involving the Secretary-General appealing to the Security Council while mentioning article 99 cannot be considered as the use of the nature of this article in full sense of its spirit. Such cases were preceded by other appeals to the Council on the same situations by other subjects (notably, the UN member states) or other actions that made Secretary-General to merely perform its technical function. The main research problem here is the search for the UN instrument that could grant the Secretary-General with political powers I addition to existing administrative ones. The outcomes of the analysis show that the main instrument of such kind is the UN Charter Article 99. However, the degree of its usage activity is decreasing over time.

Non-state actors and self-defence: a relook at the UN Charter Article 51

The UN Charter Article 51 provides for the inherent right of self-defence against any use of force as an exception, which is otherwise prohibited under Article 2(4). Exercise of right of self-defence is however subject to customary law requirements of necessity and proportionality. It is considered operative only until and otherwise subject to any ‘action’ the UN Security Council is empowered to take in case of threats to peace, breach of the peace or act of aggression under Chapter VII of the Charter. The UN Charter of 1945 envisaged use of force only among States, but did not expressly limit its application only to such cases. Given this fact, considerable authority now exists to treat use of force by non-State actors as prohibited under Article 2(4) on par with the ‘armed attacks’ by regular armed forces giving rise to the right of self-defence in favor of the targeted States; provided that acts in question are not mere border incidents. This article deals with cases of the ICJ in the light of some contemporary proposals and principles identified as relevant. It also examines issues of State responsibility for wrongful acts of non-State actors operating from its territory, causing injury to third States.

From non-intervention to R2P

This note examines the legal framework of the doctrine of humanitarian intervention and R2P. It begins by briefly describing the debate on the legality of the doctrine, including the early opinions of International Law Association, the ICJ, and the UN General Assembly as they serve as indicators of the attitudinal and perceptual changes that materialized in later stages. The note then describes how the UN Charter Article 2(4) ideals have been defeated by an expansive use of self-defence by powerful states. It is notable that the arguments in favour of self-defence originated in the pre-UN world only to be misused later with impunity after decolonisation. The birth of the notion of R2P in 2001 has served the powerful states with an opportunity to use human rights discourse to intervene in Third World countries.

The Meaning of “Force” and the Boundaries of theJus ad Bellum: Are “Minimal” Uses of Force Excluded from UN Charter Article 2(4)?

Are there forcible acts that, because of their small scale or confined purposes, are not covered by the prohibition of the use of force in Article 2(4) of the UN Charter? The argument that there exists a “gravity threshold,” below which the prohibition of the use of force is inapplicable, appears to be gaining ground in legal doctrine. In a similar vein, the Independent International Fact-Finding Mission on the Conflict in Georgia stated in its report that the “prohibition of the use of force covers all physical force which surpasses a minimum threshold of intensity” and that “[o]nly very small incidents lie below this threshold, for instance the targeted killing of single individuals, forcible abductions of individual persons, or the interception of a single aircraft.” Other types of acts that have sometimes been characterized as insufficiently “grave” include operations aimed at rescuing nationals abroad, “hot pursuit” operations, small-scale counterterrorist operations abroad, and localized hostile encounters between military units. This article investigates relevant practice and legal statements from many such situations, while adding a number of conceptual observations. It concludes that 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.

UN Charter Article 51 and the Right to ‘Anticipatory Self-defense’: Validity of the US Preventive War Doctrine against Al Qaeda

This article investigates whether the US war against Al Qaeda in Afghanistan is a customary ‘inherent right’ under the right to force doctrine as codified in Article 51 of the UN Charter. While its fool-proof nucleus covers national states inter partes relations, the provision's applicability to non-governmental organizations (NGOs) is unclear, especially in cases of conflicts, where a NGO is a party in an international conflict, such as the US-Al Qaeda conflict in Afghanistan. Because Article 51's foundation is in ‘a defensive strategy,’ states that deploy military troops across borders under the cover of self-defense must notify the UN Security Council immediately and must justify their actions. The distinction between armed attack and armed defense is the most important element defining the legality of a state's conduct. However, the Article 51 inherent right of self-defense arises solely to protect against ‘armed attacks,’ and under international law, an ‘armed attack’ alone triggers the right of self-defense. This raises the question as to whether a terrorist attack undertaken by a NGO qualifies as an armed attack? What guidance do the UN Security Council resolutions of September 2001 provide to support the US claim of anticipatory self-defense, as they do not invoke the notions of war, armed attack, or military measures, as they refer only to ‘terrorist attack,’ a term that is not a defined and internationally accepted term of war?

The True Meaning of Force—A Reply to Mary Ellen O’Connell

In her comment on my piece in the latest issue of the American Journal of International Law (The Meaning of “Force” and the Boundaries of the Jus ad Bellum: Are “Minimal” Uses of Force Excluded from UN Charter Article 2(4)? ), Mary Ellen O’Connell expresses strong objections to the piece’s central thesis, notably that small-scale or “targeted” forcible acts are not as such excluded from the scope of the prohibition on the use of force in UN Charter Article 2(4). What is more, she sees the central thesis and narrative of the piece as a mere veil, behind which hides the true aim of the article, notably to set forth an extensive reading of the right of self-defense—which was allegedly also the point of my book on armed attack of 2010. In other words, an argument pleading for a broad interpretation of the prohibition on the use of force is in reality used as a Trojan horse, to lure the unsuspecting reader into accepting a broader right of states to use force, doing considerable damage to the Charter regime on the use of force.

He Got It Almost Right

Larry Johnson’s answer to his own question is a qualified “no.” Surely he is correct when he says that the General Assembly does not need the Uniting for Peace resolution in order to consider a matter that is on the UN Security Council’s agenda. The International Court of Justice made that clear in its Advisory Opinion on the Construction of a Wall. It is only when the Security Council is actively pursuing the matter that UN Charter Article 12(1) requires the General Assembly to defer to the Council.Johnson is also correct when he says that Uniting for Peace does not serve to enhance the authority that the UN Charter itself supplies to the Assembly to adopt non-binding resolutions intended to keep or restore peace. The ICJ also made that clear in its Advisory Opinion on the Construction of a Wall. Without relying on the Uniting for Peace resolution, the ICJ in paragraphs 27 and 28 of its Opinion approved the practice of the General Assembly to deal with matters concerning maintenance of international peace and security. The Court turned to the Uniting for Peace resolution only in the ensuing paragraphs of its Opinion, dealing with procedural matters related to the Assembly’s request for an Advisory Opinion.

The True Meaning of Force

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.

IS STUXNET PHYSICAL? DOES IT MATTER?

Cyber-weapons are software and software, at least intuitively, is non-physical. Several authors have noted that this potentially renders problematic the application of normative frameworks like UN Charter Article 2(4) to cyber-weapons. If Article 2(4) only proscribes the use of physical force, and if cyber-weapons are non-physical, then cyber-weapons fall outside the purview of Article 2(4). This article explores the physicality of software, examining Stuxnet in particular. First, I show that with a few relatively uncontroversial metaphysical claims we can secure the conclusion that Stuxnet is physical. In particular, there exist instances of Stuxnet that are both located in space and causally efficacious, and this is very strong evidence for their being physical. Second, I argue that the question of physicality is actually irrelevant for the moral evaluation of an attack like Stuxnet because of its undeniably physical effects. Finally, I argue that some features of Stuxnet should make us optimistic about the prospects for discrimination and proportionality in cyberwarfare.

The John W. Holmes Lecture: Reinvigorating the International Civil Service

PEOPLE MATTER IS A CENTRAL CONCLUSION FROM THE UNITED NATIONS Intellectual History Project and penultimate sentence of first of seventeen published volumes. (1) Yet critical contributions by individuals who work at world organization are usually overlooked or downplayed by analysts who stress politics of 192 member states and supposedly ironclad constraints placed by them on international secretariats. However, I have devoted considerable professional energy to international administration, both as an analyst and as a civil servant. (2) My proposition is straightforward: United Nations should rediscover idealistic roots of international civil service, make room for creative idea-mongers, and mark out career development paths for a twenty-first century secretariat with greater turnover and younger and more mobile staff. This essay explores origins of concept, problems, logic of reform, and specific improvements. Examples come from UN's three main areas of activity--peace and security, human rights, and sustainable development. (3) Overwhelming Bureaucracy and Underwhelming Leadership: The If conceptual UN is unitary, real organization consists of three linked pieces. The consists of heads of secretariats and staff members who are paid from assessed and voluntary budgets. Inis Claude long ago distinguished it from arena for state decisionmaking, First of member states. The Third of nongovernmental organizations (NGOs), experts, commissions, and academics is a more recent addition to analytical perspectives that first appeared in these pages. (4) The possibility of independently recruited professionals with allegiance to welfare of planet, not to home countries, remains a lofty but contested objective. During World War II, Carnegie Endowment for International Peace sponsored conferences to learn from great experiment of League of Nations (5). One essential item of its legacy, international civil service, was purposefully included as UN Charter Article 101, calling for securing highest standards of efficiency, competence, and (6) The Second UN's most visible champion was Dag Hammarskjold, whose speech at Oxford in May 1961, shortly before his calamitous death, spelled out importance of an autonomous and first-rate staff. He asserted that any erosion or abandonment of the international civil service ... might, if accepted by Member nations, well prove to be Munich of international cooperation. (7) His clarion call did not ignore reality that international civil service exists to carry out decisions by member states. But Hammarskjold fervently believed that UN officials could and should pledge allegiance to a larger collective good symbolized by organization's light-blue-covered laissez-passer rather than narrowly perceived national interests of countries that issue national passports in different colors. Setting aside senior UN positions for officials approved by home countries belies that integrity. Governments seek to ensure that interests are defended inside secretariats, and many have even relied on officials for intelligence. From outset, for example, Security Council's five permanent members have reserved right to nominate (essentially select) nationals to fill key posts in secretary-general's cabinet. The influx in 1950s and 1960s of former colonies as new member states led them to clamor for their quota or fair share of patronage opportunities, following bad example set by major powers and other member states. The result was downplaying competence and exaggerating national origins as main criterion for recruitment and promotion. Over years, efforts to improve gender balance have resulted in other types of claims, as has age profile of secretariats. …

Application of International Law in Cyber Warfare Operations

In the not-so-distant future, a concerted ‘Cyber Attack’, effectuated via the Internet, could cause massive destruction to any society dependent on computer networks, especially in key target fields of transport, energy supply and communication infrastructures, leading to human casualties and serious destruction of property – reproducing the same, if not more, damage that would be caused by conventional armed attacks. Despite last decade’s abundant legal literature on the subject, not only is a clear and unambiguous international consensus regarding the legal status of Cyber Warfare Operations hitherto nonexistent, but also the views of international law scholars present a peculiarly high level of heterogeneity. Are Cyber Attacks prohibited under the non-use of force doctrine or permitted within the concept of self-defence? Are they even subject to the Law of War? In order to find answers to questions such as the aforementioned, various aspects of International Law will be applied, underlining the need for a reform of notions such as armed conflict, use of force and attack. This paper will attempt to ‘navigate’ through the ‘sea’ of multitudinous and farraginous papers written by lawyers from military, humanitarian and academic backgrounds, by dividing its corpus into the following distinct sections. In the first part, a delineation of the terms Cyberspace and Cyber Warfare Operations will be attempted, coupled with an examination of the various hacking techniques and the typology of potential attacks. Secondly, the jus ad bellum will be applied in Cyber Attacks with the goal of classifying them under the existing ‘costumes’ of ‘use of force’ and/or ‘aggression’. Their relationship with the concept of self-defence will be examined in a two-fold way. Is a Cyber Attack tantamount to an ‘armed attack’, in order to trigger the lawful right of self-defence, according to UN Charter article 51? And vice-versa, is it possible for self-defence to be waged in the form of a Cyber Attack? State responsibility will be subsequently addressed, using as a ‘compass’ the 2001 Draft Articles on State Responsibility and the relative jurisprudence by international tribunals. Thirdly, certain bedrock rules of the jus in bello will be applied in Cyber Attacks, concluding that the cardinal principles of distinction, humanity and proportionality are outdated albeit essential. Lastly, this paper will address the existing international treaty systems in the quest of determining a satisfactory framework under which Cyber Attacks can be regulated. Separate emphasis is to be laid upon on the need for the creation of a jus novum, specifically tailored to modulate this novel and multifaceted method of warfare.

Anticipatory Self-Defence and International Law--A Re-Evaluation

Traditional state v state war is largely a relic. How then does a nation-state defend itself, pre-emptively, against an unseen enemy? Existing international law—the Caroline Doctrine, UN Charter Article 51, Security Council Resolutions 1368 and 1373—does not provide sufficiently clear guidelines regarding when a state may take pre-emptive or anticipatory action against a non-state actor. This article proposes rearticulating international law to allow a state to act earlier provided sufficient intelligence is available. After examining international law, this article proposes a process-based ‘strict scrutiny’ approach to self-defence. Under this approach, the executive will have to convince a court, based on relevant, reliable, viable and corroborated intelligence, that pre-emptive action is appropriate. This process leads to a check on the power of the executive by placing a judicial check on pre-emptive action, consequently establishing objective legal criteria for operational counterterrorism.

Internationalism Stillborn

In the summer of 1945, freshman Senator J. William Fulbright (D-AR) rose on the floor of the U.S. Senate to express doubt about America's commitment to internationalism. It was a strange speech coming from the author of the Fulbright-Connally resolution. Moreover, only days before, the Senate had unanimously ratified the charter of the newly established United Nations. But it was precisely that unanimity that worried Fulbright. What had happened to Robert Taft (R-OH) and his isolationist/nationalist followers who had fought tooth-and-nail against the Bretton Woods agreements and the British loan and ultimately succeeded in weighing them down with provisions that preserved America's freedom of action and its preeminent economic position in the non-Communist world? Could it be, Fulbright asked, that the charter recreated the old system of power politics and spheres-of-interest diplomacy, simply dressing it up in internationalist clothing? The answer, he concluded, was yes. In his tightly reasoned, carefully researched study of the Dumbarton Oaks Conference of 1944, Robert Hilderbrand comes to exactly the same conclusion as Fulbright. Hilderbrand argues convincingly that British, American, and Soviet architects of the United Nations fashioned not a truly internationalist organization but rather a version of Roosevelt's Four Policemen concept. The absolute great-power veto, the provision for regional collective security arrangements, and part seven of the UN Charter's Article 2, which reserved to member nations “matters which are essentially within the domestic jurisdiction of any state,” ensured complete freedom of action for the Big Three. Nowhere in the Dumbarton Oaks document or the UN Charter did nations relinquish any part of their national sovereignty or agree to be bound by majority rule or the will of an international agency. There would be no standing multinational military force, and the world court was to be merely a body advisory to the Security Council without compulsory jurisdiction. The key to understanding the impotence of the United Nations, Hilderbrand argues, lies not in the history of the organization since 1945 but in the events of 1944–45. The United Nations was a continuation of the Grand Alliance, and in late 1944 when the Dumbarton Oaks Conference was going on, the wartime coalition was falling apart. The dream of a new world body capable of establishing a lasting peace fell victim to the nationalism of the founders and to the developing rivalry between the Soviet Union and Anglo-America. Indeed, Hilderbrand argues, the United Nations's shortcomings were intentionally built in at Dumbarton Oaks.