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Who Killed Article 2(4)? or: Changing Norms Governing the Use of Force by States

  • Thomas M. Franck (a1)


Twenty-five years ago, the Allied nations gathered at San Francisco in the warming glow of victory and signed a solemn treaty giving effect to their determination “to save succeeding generations from the scourge of war …” and “to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest …” Specifically, they undertook in Article 2(4) to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state …” They also committed themselves to “settle their international disputes by peaceful means …”



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1 U.N. Charter, Preamble.

2 U.N. Charter, Art. 2(3).

3 Security Council Res. 143, U.N. Security Council, 15th Year, Official Records, Resolutions and Decisions at 5, U.N. Doc. S/4387 (1960).

4 Cf. Mao, Tse-Tung, Selected Works, Vol. 1, pp. 153-175 (International Publishers Co., Inc., 1954).

5 “All just wars should support each other and all unjust wars should be turned into just ones. . . .” Ibid. 174.

6 “On last Dec. 12, the Soviet Government newspaper Izvestia had warned that Czechoslovakia must not be a “bridge’ between west and east . . . The Russians want to prepare themselves and to take this initiative in Europe before the Marshall Plan can get started.” The New York Times, Sec. IV, Feb. 29, 1948, p. 1. “The announcement of the Truman doctrine and the Marshall Plan gave a fresh impulse to the Czechoslovak reactionaries. They decided to pass to the offensive. Through their agents in government and parliament they tried to sabotage the program of the National Front government . . . This was crude work. The real character of the Marshall Plan is already pretty widely known in Europe.” V. Medov, “The February Events in Czechoslovakia,” New Times, No. 10, March 3, 1948, at pp. 4-5. “Upon orders from Wall Street and the city, the Czechoslovak reactionaries from the National Socialist Party, the Slovak Democratic Party, and others, attempted with all their might to sabotage and to disrupt the social and economic reforms in the country.” Izvestia, Oct. 28, 1948, found in 4 Soviet Press Translations 15 at 17 (1949). Cf. Polevoy, B., “The Defeat of Reaction in Czechoslovakia,” Pravda, March 16, 1948 , found in 3 Soviet Press Translations 243 (1948), and Zhukov, E., “Marshall’s Chicago Address,” Pravda, Nov. 23, 1947 , in 3 Soviet Press Translations 39 (1948).

7 Letter dated March 10, 1948, from the Permanent Representative of Chile to the United Nations, addressed to the Secretary General, Security Council, 3rd Year, Official Records, Supp. for January, February and March, 1948, at 34, U.N. Doc. S/696 (1948).

8 Letter dated May 22, 1958, from the representative of Lebanon to the President of the Security Council, Security Council, 13th Year, Official Records, Supp. for April, May and June, 1958, at 33, U.N. Doc. S/4007 (1958).

9 U.N. Security Council, 13th Year, Official Records, 823rd meeting 4 (1958).

10 U.N. Security Council, 13th Year, Official Records, 825th meeting 17; Security Council Res. 128, ibid., Resolutions and Decisions at 5; U.N. Doc. S/4023 (1958).

11 Second Interim Report of the U.N. Observation Group in Lebanon, U.N. Security Council, 13th Year, Official Records, Supp. for July, August and September, 1958, 34 at 36-37, U.N. Doc. S/4052 (1958).

12 Ibid, at 37.

13 U.N. Press Release LEB/15 of July 7, 1958.

14 U.N. Security Council, 13th Year, Official Records, 827th meeting 6 (1958).

15 Ibid. 7.

16 Ibid.

17 Ibid. 8. Italics added.

18 Ibid., 831st meeting 5.

19 Ibid., 828th meeting 10.

20 Ibid., 830th meeting 9.

21 Agreement on the Cessation of Hostilities in Viet-Nam, July 20, 1954, Geneva Conference Doc. IC/42/Rev. 2; 60 AJ.I.L. 629 (1966); reprinted in Report on Indochina: Report of Senator Mike Mansfield on a Study Mission to Vietnam, Cambodia, Laos, Oct. 15, 1954, Senate Foreign Relations Committee, print, 83rd Cong., 2d Sess., pp. 16-26; and 1 Amer. For. Pol. 1950-1955 at 750 (1957); Final Declaration of the Geneva Conference on the Problem of Restoring Peace in Indo-China, July 21, 1954, Geneva Conference Doc. IC/43/Rev. 2; 60 A.J.I.L. 643 (1966); reprinted in Mansfield, above, at pp. 26-27; and Amer. For. Pol. 1950-1955, above, at p. 785; Statement by the Under Secretary of State at the Concluding Plenary Session of the Geneva Conference, July 21, 1954, Amer. For. Pol. 1950-1955, above, at p. 787; 31 Dept. of State Bulletin 162 (1954); 60 A.J.I.L. 645 (1966).

22 Roger, Hilsman, To Move a Nation 527-528 (Garden City, N. Y., Doubleday & Co., Inc., 1967).

23 Secretary Rusk’s News Conference of Feb. 25, 1965, 52 Dept. of State Bulletin 362 at 366 (1965).

24 Ibid at 362. See also “The Legality of United States Participation in the Defense of Viet-Nam,” Memorandum of Law, Legal Adviser of the Department of State, March 4, 1966, 54 Dept. of State Bulletin 474 (1966), 60 A.J.I.L. 565 (1966); Meeker, L., “Viet-Nam and the International Law of Self-Defense,” 56 Dept. of State Bulletin 54 (1967).

25 Franck, , “The Problem of Fact-Finding in International Disputes,” 18 Western Reserve Law Rev. 1483 (1967).

26 White House Statement, Feb. 7, 1965, “United States and South Vietnamese Forces Launch Retaliatory Attacks Against North Viet-Nam,” 52 Dept. of State Bulletin 238 (1965).

27 Secretary Rusk, “Some Fundamentals of American Policy,” ibid. 398 at 401.

28 For an analysis of the reports of the International Commission for Supervision and Control in Viet-Nam, cf. Younger, The Southeast Asia Crisis, The Eighth Hammarskjold Forum of the Association of the Bar of the City of New York, pp. 116-118 (Dobbs Ferry, N. Y., Oceana, 1966). According to this study “both parties had immobilized the activities of the Commission’s teams and hampered the Commission’s proper discharge of its obligation to supervise the (Geneva) agreement.” Ibid. 117-118.

29 Convention Concerning the Duties and Rights of States in the Event of Civil Strife, adopted by the Sixth International Conference of American States and signed at Habana, Feb. 20, 1928. 134 L. N. Treaty Series 47, No. 3082 (1932); 22 A.J.I.L. Supp. 159 (1928).

30 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty. General Assembly Res. 2131, U.N. Doc. A/6014 at 11 (1965); 60 A.J.I.L. 662 (1966).

31 Cf. Draft Report of the 1968 Special Committee, U.N. Doc. A/AC.125/L.64/Add. 1 (1968).

32 Ibid. 2.

33 Ibid. 3.

34 Ibid. 5.

35 Ibid., U.N. Doc. A/AC.125/L.64/Add 2 at 12-13.

36 Idem, passim. See also Report of the Special Committee on the Question of Defining Aggression, U.N. General Assembly, 23rd Sess., Official Records, U.N. Doc. A/7185/Rev. 1 (1968).

37 Report of the Special Committee on the Question of Defining Aggression, ibid, at 2-35. See also Hazard, “Why Try Again to Define Aggression?”, 62 A.J.I.L. 701 (1968).

38 “Nothing is better settled, as a canon of interpretation in all systems of law, than that a clause must be so interpreted as to give it a meaning rather than so as to deprive it of meaning.” Cayuga Indians Claims case, 20 A.F. (1926) at p. 587; A.D. 1925-6, No. 271. See McNair, , The Law of Treaties 383-385 (Oxford, Clarendon Press, 1961).

39 1963 Proceedings, American Society of International Law 164.

40 Cf. Miller, L., “Regional Organization and the Regulation of Internal Conflict,” 19 World Politics 582 (July, 1967).

41 Inis, L. Claude Jr., “The OAS, the UN and the United States,” International Conciliation, No. 547 (March, 1964), p. 5. See also Russell, and Muther, , A History of the United Nations Charter (Washington, D. C, Brookings, 1958).

42 Claude, he. tit., p. 6.

43 Claude, he. cit., p. 7.

44 Doc. 576, III/4/9, XII U.N.C.I.O. Docs. 680 (1945).

45 Ibid. 680.

46 Ibid. 681-682.

47 Ibid. 684.

48 Ibid. 685.

49 Ibid. 686.

50 Hearings before the Committee on Foreign Relations, U. S. Senate, 79th Cong., First Sess., on the Charter of the United Nations, p. 650 (Washington, D. C, GPO, 1945).

51 Cf. Ambassador Lodge (U.S.A.). U.N. Security Council, 9th Year, Official Records, 675th meeting 29 (1954).

52 The blockade of Cuba was defined by Ambassador Stevenson as “anticipatory” self-defense, U.N. Security Council, 17th Year, Official Records, 1025th meeting 4 (1962), and by the State Department Legal Adviser as an action short of actual enforcement, cf. 1963 Proceedings, American Society of International Law 10 at 12.

53 “Our goal, in keeping with the great principles of the inter-American system, is to help prevent another Communist state in this hemisphere. And we would like to do this without bloodshed or without large-scale fighting.” President, Johnson, Statement of May 2, 52 Dept. of State Bulletin 744 at 747 (1965).

54 Doc. 576, III/4/9, XII U.N.C.I.O. Docs. 680, 682 (1945).

55 Ibid. 688.

56 Doc. 889, III/4/12, XII U.N.C.I.O. Docs. 689, 705 (1945).

51 Ambassador Sobolev (U.S.S.R.), U.N. Security Council, 11th Year, Official Records, 754th meeting 10 (1956); also Mr. A. Gromyko, addressing the U.N. General Assembly, U.N. Doc. A/PV.1679, p. 26 at 30-31, Oct. 3, 1968.

58 Legal Aspects of the Invasion and Occupation of Czechoslovakia. Statements made on Sept. 12 by U. S. Representative Herbert Reis in the U.N. Special Committee on Principles of International Law. 59 Dept. of State Bulletin 400 (1968); 63 A.J.I.L. 324,331 (1969).

59 This comparison assumes, as it must, that a regional organization is to be found in a patchwork of treaties, establishing legal, administrative and informal working arrangements achieved by overlapping layers of functional integration among states in a geographically contiguous area. In this respect, the inter-American system is neater in that its two principal components, the Bogotá Charter and Rio Treaty, cover exactly the same constituents, while NATO is not so exactly coextensive with the European Communities. Nevertheless, since all members of the E.E.C. are also members of NATO, it would be unrealistic not to see their mutual collective defense obligations as complementary to their economic integration. NATO was, after all, formed first; and, since it establishes a defense relationship among all the members of the European Communities, it would have been redundant for them to set up a separate, parallel mutual defense arrangement unless the Western European Powers were prepared to develop a much closer military unity among themselves to the exclusion of the United States. The defeat of the European Defense Community proposal showed that this was not desired.

60 Inter-American Treaty of Reciprocal Assistance, signed at Rio de Janeiro on Sept. 2, 1947. 21 U.N. Treaty Series 93 (1948); 43 A.J.I.L. Supp. 53 (1949). Cf. Arts. 3, 6, 17.

61 North Atlantic Treaty, signed at Washington April 4, 1949. 34 U.N. Treaty Series 244 (1949), Art. 5; 43 A.J.I.L. Supp. 159 (1949).

62 Treaty of Friendship, Co-operation and Mutual Assistance Between the People’s Republic of Albania, the People’s Republic of Bulgaria, the Hungarian People’s Republic, the German Democratic Republic, the Polish People’s Republic, the Romanian People’s Republic, the Union of Soviet Socialist Republics and the Czechoslovak Republic, signed at Warsaw on May 14, 1955. 119 U.N. Treaty Series 24 (1955), Art. 4; 49 A.J.I.L. Supp. 194 (1955).

63 Ibid., Art. 5.

64 Southeast Asia Collective Defense Treaty, signed at Manila on Sept. 8, 1954. 209 U.N. Treaty Series 28 (1955), Art. 4; 60 A.J.I.L. 646 (1966). If these regions are not, at least in terms of legal obligation, as integrated for purposes of defense as the Americas, other regional arrangements are militarily even more tenuous. The Treaty establishing the Arab League, also by way of contrast, only prescribes that, in the event of aggression by a state against a member state, the Council of the League, on which all members are represented, “shall determine the necessary measures to repel” the aggressor, but that this “decision shall be taken unanimously.” Pact of the League of Arab States, signed at Cairo March 22, 1945. 70 U.N. Treaty Series 248 (1950), Art. 6; 39 A.J.I.L. Supp. 266 (1945). In one dramatic case, that of the Lebanon intervention, the League did meet and take decisions, but the members were subsequently unable to agree on what these were. What actually was or was not voted at the meeting of the Council is in dispute, as is the veracity of the meeting’s minutes. Cf. contradictory statements by Ambassadors Loutfi (U.A.R.) and Malik (Lebanon) in U.N. Security Council, 13th Year, Official Records, 824th meeting, June 10, 1958, pp. 9-19. Neither does the Charter of the Organization of African Unity bind the parties to defend each other. It merely states, in its preamble, a determination “to safeguard and consolidate the hard-won independence as well as the sovereignty and territorial integrity of our States.” Charter of the Organization of African Unity, done at Addis Ababa on May 25, 1963. 479 U.N. Treaty Series 70 (1963); 58 A.J.I.L. 873 (1964). While the O.A.U. Charter makes provision for decisions by two-thirds majority of the Assembly of Heads of State and Government (ibid., Art. 10), and by simple majority of the Council Ministers (ibid., Art. 14), it severely limits these principal organs’ powers to discussion, co-ordination and harmonization (ibid., Art. 8).

65 Treaty establishing the European Coal and Steel Community, 261 U.N. Treaty Series 140 (1957), Arts. 13-16, 28; 46 A.J.I.L. Supp. 107 (1952); Treaty establishing the European Atomic Energy Community, 298 U.N. Treaty Series 249 (1958), Arts. 118, 119, 132; 51 A.J.I.L. Supp. 955 (1957); Treaty establishing the European Economic Community, 298 U.N. Treaty Series 11 (1958), Arts. 148-163; 51 A.J.I.L. 865 (1957).

66 Charter of the Council for Mutual Economic Assistance (COMECON Treaty), signed at Sofia Dec. 14, 1959, 368 U.N. Treaty Series 264 (1960). Note, however, Art. 4(3) which states that “All recommendations and decisions of the Council shall be adopted only with the consent of the member countries concerned . . .”

67 Revised Charter of the Organization of American States, Revised by the Protocol of Buenos Aires, Feb. 27, 1967. Pan American Union, Treaty Series, No. 1-B; O.A.S. Official Records, OEA/SER.A/2, Add. 2 (1967); T.I.A.S., No. 6847; printed below, p. 996. See also Charter of the Organization of American States, signed at Bogotá, April 30, 1948. 119 U.N. Treaty Series 48 (1952); 46 A.J.I.L. Supp. 43 (1952).

68 Two Inter-American Councils subordinate to the General Assembly of the O.A.S., one for economic and social, the other for cultural, scientific and educational matters, have powers to recommend, promote, foster, study, co-ordinate and encourage, but not to implement or enforce. A sole exception is noteworthy: the Inter-American Council for Education, Science and Culture may “adopt . . . pertinent measures to give effect to the standards contained in Chapter IX . . .” Protocol of Buenos Aires, cited above, Art. 101(b). This largesse is, however, elsewhere vitiated by the provision that both Councils’ powers are clearly limited to making “recommendations on matters within their authority,” and that they may only “present . . . studies and proposals, drafts of international instruments, and proposals on the holding of specialized conferences, on the creation, modification, or elimination of specialized organizations and other Inter-American agencies, as well as the co-ordination of their activities . . .” Ibid., Arts. 70, 71.

69 E.E.C. Treaty, cited above, Arts. 145-154; COMECON Treaty, cited above, Arts. 1, 3, 4, 5. For a recent assessment of the COMECON (CMEA) cf. V. Shelepin, “Socialist Integration,” New Times, No. 46, Nov. 19, 1969, p. 9.

70 E.E.C. Treaty, he. cit., Arts. 164-188.

71 Ibid., Arts. 155-163, esp. 163.

72 Note 64 above.

73 O.A.U. Charter, ibid., Arts. 20, 21.

74 Ibid., Art. 10.

75 Ibid., Art. 2(2). Cf. Cervenka, The Organization of African Unity (Prague, Academia Nakladatelstvi Czeckoslovenske, 1968).

76 Pact of the League of Arab States, note 64 above, Arts. 2, 4. See also Franck, East African Unity Through Law (New Haven, Yale University Press, 1965); Franck (ed.), Why Federations Fail, Ch. 1 (New York, New York University Press, 1968).

77 “The events taking place in Czechoslovakia are a matter for the Czechoslovak people and the States of the socialist community, linked together as they are by common responsibilities, and are a matter for them alone . . . they consider the matter as lying outside the purview of the Security Council.” Mr. Malik, U.S.S.R., addressing the Security Council, U.N. Doc. S/PV.1441, Aug. 21, 1968, pp. 48-50.

78 Czechoslovakia “is responsible not only to its own people, but also to all the socialist countries . . .” It cannot follow a sovereign policy “opposed to the interests of the world of socialism” because the “weakening of any of the links of the world system of socialism directly affects all the socialist countries which cannot look indifferently upon this.” Pravda, reprinted in the translation of the Soviet Press Agency, The New York Times, Sept. 27, 1968, p. 3.

79 When “a danger arises to socialism itself in a particular country . . . “ an “encroachment on the foundations of socialism, on the principles of Marxism-Leninism,” when “anti-socialist and revisionist elements . . . under the guise of ‘democratization’ . . . befog the minds of the masses, stealthily hatching a counter-revolutionary coup” and they are “not duly rebuffed inside the country,” then the family of states may act to restore normality and to defeat the forces of “world imperialism.” Pravda, reprinted ibid. “The countries of the socialist commonwealth have . . . their own socialist principles of mutual relations based on fraternal assistance, solidarity and internationalism.” Foreign Minister A. Gromyko, addressing the U.N. General Assembly, U.N. Doc. A/PC.1679, Oct. 3, 1968, p. 26 at 30-31. “This [socialist] commonwealth constitutes an inseparable entity cemented by unbreakable ties such as history has never known . . . The Soviet Union and other socialist countries have on many occasions warned those who are tempted to roll back the socialist commonwealth, to snatch at least one link from it, that we will neither tolerate nor allow that to happen.” Ibid.

80 The New York Times series on CIA Operations, April 28, 1966, p. 25, col. 8.

81 Ambassador Lodge (U.S.A.). U.N. Security Council, 9th Year, Official Records, 676th meeting 28-29 (1954).

82 Ibid., 675th meeting 32.

83 Ambassador Lodge (U.S.A.). U.N. Security Council, 15th Year, Official Records, 874th meeting 27 (1960).

84 Ambassador Stevenson (U.S.A.). U.N. Security Council, 20th Year, Official Records, 1204th meeting 17 (1965).

85 Bowdler, , “Report on the Tenth Inter-American Conference,” 30 Dept. of State Bulletin 634 (1954).

86 Ibid.

87 Inter-American Treaty of Reciprocal Assistance, Applications, Vol. 1, 1948-59 (Washington, D. C, Pan American Union, General Secretariat), Part One, Resolution VI of the Eighth Meeting of Consultation, Punta del Este, Uruguay, January, 1962, p. 9; U.N. Security Council, 17th Year, Official Records, Supp. for January, February and March, 1962, at 63, U.N. Doc. S/5075 (1962); 56 A.J.I.L. 611 (1962).

88 Ibid.

89 “The Soviet Threat to the Americas,” 47 Dept. of State Bulletin 715, 716 (1962).

90 Meeker, L. C., “Legal Basis for the United States Actions in the Dominican Republic,” in 2 Chayes, Ehrlich and Lowenfeld, International Legal Process: Materials for an Introductory Course 1179 at 1182 (New York, Little Brown and Co., 1969). Italics added.

91 Statement by President Johnson, May 2, 52 Dept. of State Bulletin 744 at 745- 746 (1965).

92 Ibid, at 746.

93 Introduction to the Annual Report of the Secretary General on the Work of the Organization covering the period 16 June 1967 to 15 June 1968. Sept. 24, 1968, 23rd Sess., Supp. No. 1A (U.N. Doc. A/7201/Add. 1 (1968)), at 21-22.


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