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Home EJIL Analysis Questioning the Peremptory Status of the Prohibition of the Use of Force

Questioning the Peremptory Status of the Prohibition of the Use of Force

Published on March 17, 2011        Author: 

Dr James A. Green is lecturer in law at the University of Reading School of Law.

The prohibition of the unilateral use of force, as set out most crucially in Article 2(4) of the UN Charter, is often seen as the archetypal example of a jus cogens norm. Certainly, an overwhelming majority of scholars view the prohibition as having a peremptory character, as does the International Law Commission and the International Court of Justice.  It is understandable that a plethora of commentators have perceived the prohibition as a peremptory norm: the use of military force usually involves the systematic killing of human beings, often on a vast scale.  An underlying rationale for the entire jus cogens concept is the desire to impose some kind of fundamental standard of common values upon state interaction and to strengthen the effectiveness of international law in certain areas of common concern.  On this basis, the prohibition of the use of force is exactly the sort of norm that should be peremptory. Coupled with the fact that jus cogens and the jus ad bellum share common natural law underpinnings, one might view them as a perfect conceptual fit.

In ‘Questioning the Peremptory Status of the Prohibition of the Use of Force’ (2011) 32 Michigan Journal of International Law 215-257, I challenge this widely held view: is the prohibition of the use of force in fact a jus cogens norm?  The desirability of peremptory norms, and, indeed, their very existence, has been questioned in the literature, but it was not my aim in the Article to debate the existence of jus cogens norms per se.  Without making a value judgment as to the desirability of peremptory norms, the view is taken that there is certainly enough evidence to suggest that states have accepted the general notion of jus cogens flowing from Article 53 of the Vienna Convention on the Law of Treaties.

Based on this starting point, the Article does not argue that the prohibition is necessarily a norm that has failed to achieve peremptory status.  Rather, the intention is to demonstrate that there are significant difficulties with such a conclusion and that, as a result, the widespread uncritical acceptance of the prohibition as a jus cogens norm is concerning.  The aim is to test the prohibition against the criteria for the establishment of peremptory status—“a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”

By way of background, then, the Article sets out in more detail the legal criteria for identifying a peremptory norm of international law, and goes on to consider the majority view—prevalent in the literature—that the prohibition of the use of force is such a norm.  A number of problems with the conclusion that the prohibition is jus cogens are then set out.  The question of whether the prohibition is suitable, or even capable, of being viewed as a jus cogens norm is examined through various points of focus.

First, it is argued that the conjoined nature of the prohibition of the use of force with the prohibition of the threat of force in Article 2(4) leads to difficulties, given that the ban on the threat of force is clearly not peremptory in character.  Article 2(4) as whole, therefore, cannot be peremptory.  This is problematic, as the two prohibitions are generally viewed as being intertwined.  However, this would not necessarily stop the prohibition on the use of force (if divorced from the threat of force) from taking on peremptory status.

A more fundamental issue is then examined: the exceptions to the general prohibition of the use of force. Given that these exceptions – self-defence and collective security – are universally accepted, it is impossible to conclude that the prohibition is, in itself, peremptory (as peremptory norms allow for no derogation).  If one is to hold that the prohibition is jus cogens, a suitable norm must be constructed to take into account the right of self-defence and Security Council authorized collective security actions.  Yet any attempt to formulate such a norm is problematic given that certain aspects of the jus ad bellum are clearly not peremptory (e.g., the ‘reporting requirement’), while other rules must be for the norm to function (e.g., ‘proportionality’).  As such, the selection of rules for the avowed peremptory norm is a difficult process, and the number of interrelated rules involved makes any norm constructed overly long and unclear.  Adding to this lack of clarity is the fact that many of the rules that must necessarily form part of the peremptory norm are themselves uncertain in terms of content or scope, such as the inherent flexibility of the ‘necessity’ criterion for self-defence.

The Article then highlights that the restrictive nature of the jus cogens framework does not seem to fit with the reality of the development of the law on the use of force.  If jus cogens norms can only be altered by other jus cogens norms, and the prohibition has attain this status, then the future development of the jus ad bellum would be notably inhibited.  This does not seem to accord with the reality of the law on the use of force, which is continually developing.  Examples of current arguable shifts in customary international law—self-defence against non-state actors and cyber-attacks—are used to demonstrate this problem of a “frozen” jus ad bellum.

Finally, examples from state practice are examined to ascertain the extent to which states have in fact accepted the peremptory status of the prohibition.  It is argued that while some states have certainly affirmed the view that the rule is a jus cogens norm, it is unclear whether this acceptance has been enough to confer peremptory status on the prohibition.  The Article takes the positivist position that jus cogens norms can only be created through the consent of states, as evidenced by their practice.  That a claim as to peremptory status is advanced by writers, however frequently, is not enough to turn an “ordinary” norm of international law norm into a “supernorm” of jus cogens.  It is unclear whether the “international community of States as a whole” has truly “accepted and recognized” the peremptory status of the prohibition on the use of force as is so often claimed.  It is acknowledged, however, that the brief study of the state practice conducted in the Article does not establish a conclusive position on the issue either way.

At face value, the various concerns expressed could well be regarded as boiling down to a single issue of semantics.  The prohibition of the use of force is undeniably accepted by all states prima facie, and applies universally.  Therefore, what difference does it make whether the norm is labelled “jus cogens” or not?  It is unlawful to use force if the peremptory character of the rule is accepted, but then, it is also patently unlawful if it is not.  The importance of the peremptory status (or lack thereof) of any given rule can therefore be overstated.

Nonetheless, a jus cogens norm potentially has an additional “compliance pull” to it.  The widespread acceptance of the jus cogens concept means that states are more likely to take special note of peremptory norms and will potentially comply with them more often than with other rules. More practically, a jus cogens rule does not merely find contrary practice unlawful, it voids the formation of new contrary norms ab initio.  Whether these implications of peremptory status are seen as “good” depends on one’s views as to the desirability and functionality of the jus cogens project in international law.

If one takes the view that jus cogens plays, or can play, a positive role in securing world order—strengthening and protecting fundamental values, as well as restraining unchecked power—then it is surely desirable that any purported jus cogens norms are clear, identifiable, and properly constituted.  If one subscribes to the desirability of value-based “supernorms” in the international system, then the prohibition of the use of force would surely be a norm that one would want to ascribe such a character to.  The problems highlighted in this Article have implications for the legitimacy of that rule, and thus its compliance pull, at least in a relative sense when it is found to be in opposition to other, potentially less “fundamental,” norms.

Conversely, if one takes the view that jus cogens norms represent a creeping imposition of a particular value-set and an unwarranted and dangerous erosion of state sovereignty, it is equally desirable that the peremptory status of the prohibition be properly tested and critiqued. For those that argue against the “relative normativity” of rules within the international legal system, the analysis of the peremptory status of the prohibition of the use of force in this Article may usefully highlight more pervading problems inherent in the jus cogens concept.

Thus, the Article leaves it to the reader to take his or her own view as to the utility of its critique. Ultimately, this is because neither “desirability” nor “undesirability” have any legally constituting effect with regard to the creation of jus cogens norms.  For all of jus cogens’ natural law gloss, the concept remains grounded in positivist international law.  Indeed, it must remain so if it is to have any credibility or weight in a system that, for better or worse, remains primarily premised upon state consent.  For a norm to be seen as a rule of jus cogens, it must meet certain positivist criteria.  Without entirely excluding the possibility that the prohibition of the use of force is a peremptory norm, the Article aims to highlight that the rule’s jus cogens status—when tested against these criteria—is extremely problematic.  At the very least, it must be said that the widespread uncritical acceptance of the prohibition’s peremptory nature is concerning, particularly as the norm is one that forms a cornerstone of the modern international legal system.

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8 Responses

  1. ==Conversely, if one takes the view that jus cogens norms represent a creeping imposition of a particular value-set and an unwarranted and dangerous erosion of state sovereignty, it is equally desirable that the peremptory status of the prohibition be properly tested and critiqued.==

    I just wonder, if the prohibition of the use of force is an unwarranted and dangerous erosion of state sovereignty, how would a state be able to invade another state without eroding the invaded state’s sovereignty.

  2. James Green

    The article at no point says that the prohibtion on the use of force is an unwarranted and dangerous erosion of state sovereignty – just that some argue that jus cogens norms generally (or, perhaps more accurately, the concept of jus cogens norms or the ‘jus cogens project’) is. I actually don’t take that view, personally – I’m simply noting it. I actually fall into the other group mentioned – those who see the peremptory status of the prohibition as desirable, but feel if peremptory norms are to actually mean anything (rather than just an exercise of he/she who shouts loudest gets his/her norms on the list), then they have to be properly tested/constituted.

    In any event, even if one concludes that the prohibtion on the use of force isn’t jus cogens (which my article stops short of doing), then this doesn’t make unalwful uses of force lawful, nor does it mean invasions are suddenly not an erosion of the invaded state’s soverignty…

  3. @James

    Thanks for the reply.

    ==some argue that jus cogens norms generally (or, perhaps more accurately, the concept of jus cogens norms or the ‘jus cogens project’) is. ==

    Well, in this case what is true of the whole is true of the part. Those who argue that jus cogens norms are generally an unwarranted and dangerous erosion of state sovereignty, should admit that it follows from their argument that this should also be the case for the prohibition of the use of force. Unless they sustain that some beasts are more sovereign than others, they should explain the magic of invading states without eroding their sovereignty.

  4. James Green

    I don’t believe in this context that “what is true of the whole is true of the part”, at least, not necessarily in this case. I think a key argument made here – and again this is me playing devil’s advocate, I don’t necessarily take this view myself – is that jus cogens in a general sense can be viewed as an erosion of sovereignty because it is based on consensus and not consent (ie, no persistent objection is possible) – it is usually agreed that states are bound by a jus cogens norm even if they object during the norm’s formation. But, this is not the case with regard to the specific norm of the prohibition of the use of force, because no state is a persistent objector – its binding force as a conventional and customary norm is pretty much universally agreed. While jus cogens generally may be viewed as an erosion of sovereignty by some writers, a finding of peremptory status of the use of force probably wouldn’t act as an erosion of sovereignty as such in itself, as states have already consented to being bound by it. What I question is whether they have also consented to it being peremptory in nature.

    As I say, though, I don’t think any writers are claiming – and I am certainly not claiming – that the unlawful use of force is anything other than a violation of the attacked state’s sovereignty. Questions as to the peremptory status of the prohibition do not, as I see it, change this.

  5. @James

    ==jus cogens in a general sense can be viewed as an erosion of sovereignty because it is based on consensus and not consent ==

    Let’s look at what norms are “jus cogens”: prohibition of genocide, maritime piracy, slavery, torture, and prohibition of aggression. States might find their feelings hurt that they cannot commit those acts, but why should we as individuals, and as new actors of international law, care? Why should I permit a state to genocide me, take me as slave, torture me, and invade my state? At the same time states demand from us individuals not to commit acts of terrorism. How can they demand from us to refrain from terrorism if they reserve for themselves the right to do such things to us? It would be absurd to make such claims.

  6. James Green

    On what basis are you saying that the norms you list are jus cogens? If it is because writers say they are, because they are ‘moral’ (which, of course, they are), because the ILC say they are, or because you want them to be, or any combination of those things, then – in my view – you misunderstand the positivist nature of international law. I’m not saying those norms are not jus cogens (they all may well be), just that I am very concerned about the way norms are claimed as jus cogens without any consideration of the process by which such peremptory norms come into being.

    Such an approach leads, for example, to the claim that the prohibition on ‘cyber attacks’ (are area of international law barely yet evolved into custom) is peremptory: one writer recently argued this. Or, similarly, that a comprehensive nuclear test-ban (based, after all, on a treaty not yet even in force) has become jus cogens: this too has recently cropped up in the literature.

    The point is that for jus cogens norms to matter they have to be properly constituted and tested as such. If not – if norms are just said to be peremptory without any evidence to support the claim – then the whole exercise of the ‘jus cogens project’ is doomed. Subjective claims as to value or worth are easily dismissed – this might not be true at the most serious end of the scale (genocide, aggression etc), but the same objective approach in establishing peremptory status has to be taken with these norms as with the more controversial jus cogens candidates – otherwise soon all norms will be called jus cogens by someone or other and no state will pay any attention to a claim of peremptory status at all.

  7. Remy Jorritsma

    First off, thank you very much for your insightful article, with a challenging title I must say.

    This issue indeed makes a very good trick question on a moot court: “If you argue that article 2(4) is ius cogens, how is it possible that two exceptions exist?”

    Exactly because of the existence of the two exceptions to the prohibition on the use of force (excluding the possibility that the ius cogens norm is “the prohibition on the use of force”), I suggest in tutorial groups to students that the ius cogens is rather “the use of force in a manner which is incompatible with the Charter”. Now after reading your analysis I realize this formulation has at least one weakness as well: not every use of force which is incompatible with the Charter is a breach of the ius cogens norm (e.g. when a state fails to report to UNSC in exercise of art. 51).

  8. Umberto

    Your argument seems to be similar to Linderfalk’s one in the 2007 article: “The Effect of Jus Cogens Norms: Whoever Opened Pandora’s Box, Did You Ever Think About the Consequences?” – EJIL. However you present a more balanced argument which specifically deals with the use of force. Linderfalk was preoccupied with the “chain effect” caused by a hierarchical superiority of said norms which do not take into account rights that, as you said, are intertwined like self-defence, nor do they consider exceptions. Yet, I think unless we start from a common threshold to identify peremptory norms, each of us can speculate on the status of the prohibition of slavery, the prohibition to use force and so on. An analysis of state practice would show that states have always tried to justify in various ways the illegal use of force. In so doing they also highlighted the superior opinio juris of such norm. Jus congens is problematique mainly because it is not yet clear whether there is a hierarchy among peremptory norms. Does the prohibition of genocide trump the prohibition to use force? In my opinion it does as the use of force in protection of people from a possible genocide would certainly be superior (it would seem to be an obligation towards the International Community as a whole. An obligation erga omnes as provided by Art.48 of the ILC draft articles on state Responsibility and in the Barcelona Transaction Case).