The Use of Force by the United States after the End of the Cold War and Its Impact on International law: The Supremacy of Power over Law

Document Type : Original Independent Original Article

Author

International Relations Researcher and PhD. of Faculty of Law, Theology and Political Science, Islamic Azad University, Science and Research Branch, Tehran, Iran

Abstract

The rules relating to the prohibition on the use of force, including its exceptions, are at the core of the international legal order that emerged after the greatest human-made disaster of all times: World War II. In that legal order peace is perceived as the main value to be protected and the general prohibition on the use of force embodied in Article 2(4) of the UN Charter. The hopes for a new peaceful international order between 1945 and 1989 and also after the collapse of communism were soon disappointed. The resort to force in international relations is even more prevalent today than previous decades. Since the United States has become the only superpower with its overwhelming military supremacy and has been one of the States that has resorted to force the most, this begs the following question: how has the post- cold war US approach to the use of force challenged international law in this important sphere? To provide an answer to this research question, by using a Structural Realism framework and a qualitative-analytical method, the US legal arguments and practice relating to the rules governing the use of force, and the reactions of other countries to them are analyzed in order to show that the post- cold war US challenge on international law will lead to the governing the use of force in international relations and the supremacy of power over law.

Highlights

Introduction

The rules relating to the prohibition on the use of force, including its exceptions, are at the core of the international legal order that emerged after the greatest human-made disaster of all time: World War II. In that legal order, peace is perceived as the main value to be protected, and the prohibition on the use of force embodied in Article 2(4) of the UN Charter knows only one specific exception to the general prohibition encompassed in Article 51, which allows for individual and collective self-defense. Recourse to force in international relations is meant to be the prerogative of the Security Council; in 1945, the motto was “peace through collective security.”

   What happened in this field between 1945 and 1989 is well known. It is also well known that hopes for a new peaceful international order after the collapse of communism were disappointed. The resort to force in international relations is even more prevalent today than it was in previous decades. Recent world developments pose a direct challenge to the authority and effectiveness of international law. The US military actions in Afghanistan and Iraq, Russia’s invasion of Ukraine, and China’s military provocations in the South China Sea, represent a particular threat. These actions are in clear violation of international law, which are committed by permanent members of the UN Security Council – the body charged by the international community with maintaining international peace and security. For this reason, it is legitimate to inquire whether international law has undergone change in this important sphere.

 

Methodology

 Since the United States has become the only superpower with its overwhelming military supremacy and has been one of the States that has resorted to force the most, this begs the following question: how has the post-cold war US approach to the use of force challenged international law in this important sphere? To provide an answer to this question, we use a Structural Realism framework, which takes into consideration a combination of the external and systemic, as well as internal and unit-level factors influencing the foreign policy of states. However, internal characteristics do not shape state behavior in the international system; the anarchic structure of the international system itself does. For hypothesis testing, by relying on a qualitative-analytical method, the US legal arguments and practice relating to the rules governing the use of force, and the reactions of other countries to them are analyzed, in order to show the post- cold war US challenge on international law.

 

Results

The purpose of this paper is to analyze the impact of the American interpretation of, and practice relating to, the rules governing the use of force in international relations since the end of the Cold War. In order to do so, this paper will identify the different legal categories in which the use of force by the United States could be encapsulated. It will focus, however, on self-defense since that has been the main argument employed by different American administrations to justify the resort to force, most notably in situations generally not seen to be covered by self-defense. Special emphasis will be put on the terrorist attacks of 11 September 2001 and the reaction thereto. For the question is not only whether terrorist attacks open the way to self-defense, but also whether an armed conflict, within the meaning of international law, exists between the State and the terrorist organizations, with all the implications that follow for both the jus ad bellum and jus in bello.

Since American doctrines were comprehensive explanations of overall United States policy regarding the use of force, the relationship between these doctrines and international law will be analyzed. Although little insight can be derived from these doctrines which would shed light on the formulation or interpretation of the rules of international law relative to the use of force, these policy statements are nevertheless an essential starting point to understanding the instances in which the United States uses force and how the US government tries to explain its actions from a legal point of view. They primarily demonstrate that law comes after the fact, rather than serving as a basis for the decision to resort to force.

To see whether there is a new American interpretation and practice concerning the use of force, it is necessary to compare old and new legal justifications advanced by the United States. In this respect, five major categories of recourse to the use of force since the end of the Cold War can be identified: self-defense, military intervention by invitation, Security Council authorizations of the use of force, armed humanitarian intervention, and armed reprisals. Among these five categories, probably only the fourth deserves to be called a novelty.

The findings indicate that the major changes since the fall of the Berlin Wall concerning the use of force relate to Security Council practice and the collective security system enshrined by the UN Charter stands in a deep crisis. The United States, together with a number of other States, resorts to force outside this system, without any authorization, control by the Security Council.

 

Conclusion

Broad interpretations of Article 51 of the Charter have also been advanced, but enlarging the scope of self-defense is tantamount to curtailing both the scope of Article 2(4) and the powers of the Security Council. Nevertheless, the United States preferred not to alter its doctrine of self-defense, in order to maintain its freedom to use force unilaterally whenever it considers it necessary to do so. As is well known, the notion of preventive self-defense is controversial and, in any case, contrary to the wording of Article 51. There is no consensus in international community acknowledging such an extension of self-defense.

It also opens the way for unforeseeable uses of force in a great number of actual or potential situations in future. It amounts to the negation of Article 2(4) of the Charter and the collective security system and will lead to the governing the use of force in international relations and may lead ultimately to the consecration of the supremacy of power over law.

Keywords

Main Subjects

References

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