reframing the use of force model and situating the “purposes and principles” model in the “restrictivist”–“expansionist” debate

The ongoing contest to define the fabric of the contemporary jus ad bellum model, which is of course centred on the UN Charter, is ordinarily framed as a debate between restrictivists and expansionists. Matthew Waxman, for example, in a description that has been characterized separately as a portrayal of the “restrictivist” approach,Footnote ¹⁹ describes adherents to the “Bright-Liners” orientation as those who “favour governing states’ legal authority to use force unilaterally by clear and rigid rules that admit little case by case discretion.”Footnote ²⁰ In contrast to the “Bright-Liner” restrictivists, Waxman describes “Balancers” as those who “argue that the legality of unilateral resort to force should be judged by objective, but flexible, standards that call for weighing contextual factors, thereby vesting in states some discretion to account for competing values.”Footnote ²¹ This portrayal has been described separately as a depiction of the “expansionist” camp — those who “advance a more flexible approach to the matter.”Footnote ²²

Any number of unsettled issues that are vital to the theory and practice of public international and transnational law, such as the use of force against non-state actors located in the territory of another state and the parameters of the inherent right of a state to use force in self-defence more generally, are typically characterized as a debate between these two general “camps.” Across the debate, the scripture reflected in the UN Charter remains the anchor for the competing perspectives. The sixteen principles and the associated commentary published by Daniel Bethlehem in 2012,Footnote ²³ in what have since been described as the “Bethlehem Principles,” represent a central example of a “Balancer,” or expansionist, approach. Three of the comments,Footnote ²⁴ which are published together in the subsequent volume of the American Journal of International Law, that offer a critical assessment of the expansionist nature of the Bethlehem Principles are examples of scholarship that adheres to the “Bright-Liner,” or restrictivist, approach.

Along with the Purposes and Principles jus ad bellum model developed in this article, I propose a new approach to the discourse on this topic. This new approach developed herein is one that is not necessarily directly aligned with the “Bright-Liner” restrictivist approach or with the “Balancer” expansionist perspective. As a matter of distinguishing between the two prevailing, competing models, I describe this different perspective as the “Reframer” approach. On the spectrum between the two opposing perspectives, this Reframer approach is closer in proximity to the Balancer pole, but the approach is also aligned with central aspects of the Bright-Liner perspective.

The intent of the Reframer approach is to achieve a degree of clarity that has thus far been elusive regarding the conditions pursuant to which the UN Charter should remain the focal point of assessing the legality of a specific instance or general category of the threat or use of armed force. When conditions are such that the UN Charter is the standard by which to assess the legality of an actual or contemplated use of force by one state against another, I endorse the Bright-Liner approach to applying the provisions of the UN Charter. The very endeavour of looking beyond the scriptures of the Charter when the conditions are not appropriate, however, does align this Reframer approach more closely with the Balancer perspective. To the extent that the Balancer perspective remains centred on the UN Charter even when the central assumptions underpinning the Charter (explored below) are not necessarily applicable in a given context, however, the new Reframer approach can be differentiated from the expansionist Balancer perspective.

By way of illustration, I endorse the endeavour of the Bethlehem Principles to suggest a more holistic description of the contemporary use of force model than the restrictivist approach would accept. Where Bethlehem maintains that such an endeavour should account for prescriptions reflected in the UN Charter as well as relevant indications of customary international law on the issue, in contrast, I assess that Bethlehem’s suggested approach remains unsatisfactorily framed strictly in the principles and terminology reflected in the UN Charter. For example, his Principle no. 1, which provides the frame of reference for the remainder of the principles that follow, asserts: “States have a right of self-defense against an imminent or actual armed attack by nonstate actors.”Footnote ²⁵

While I endorse, in general terms, the sentiment expressed in this proposed principle, this standard is unsatisfactorily constrained by the textual prescription of self-defence reflected in the UN Charter for the observation to be a productive method of framing a description of customary law on the matter. This first Bethlehem Principle, of course, is founded textually upon the Charter Article 51 self-defence prescription that addresses “the inherent right of … self-defence if an armed attack occurs.” As a self-professed “Reframer,” I suggest that the debate regarding the scope of permissible use of force by a state against a non-state actor must be altogether decoupled from the “self-defence” prescription reflected in the UN Charter in order to be productive. If the context in question is compatible with the intended topical coverage of the UN Charter, such as a proposed or actual use of force by one state directed against another, the frame of reference should remain the black letter text of the Charter. In such an endeavour, my tendency is to align more closely with the Bright-Liner restrictivist camp. However, for matters beyond the topical confines of the UN Charter, such as the use of force by a state against a non-state actor, I suggest that the assessment should be “reframed” in a manner that does not draw directly from a textual application of the treaty.

Although it is unlikely (but not necessarily altogether implausible) that a state can permissibly initiate an armed conflict against an organized non-state armed group, for example, the endeavour of framing each proposed or actual use of force by a state against a member of the opposing armed group in terms of “self-defence” in response to an “armed attack” after such a non-international armed conflict has been initiated teeters on incredulity. This is no more an act of “self-defence” against a non-state actor than is a similar use of force against the military forces of an adversary belligerent state after an international armed conflict has been initiated. The permissibility of commencing and responding to a use of force in the latter condition (an international armed conflict) is addressed extensively in the text of the UN Charter.

As the analysis in the subsequent sections of this first part elucidates, however, the central textual provisions of the UN Charter were neither designed nor intended to account for the use of force in the former condition, a non-international armed conflict. Establishing the legal contours of this condition, then, should not be confined to the textual frame of the UN Charter. This sentiment represents the central conceptual foundation of the Reframer approach proposed and developed herein. As the below analysis describes, I suggest that the UN Charter use of force model should be framed in terms of protecting and promoting the supreme value of self-determination rather than in terms of promoting the values of territorial integrity and political independence as components of state sovereignty. With a new frame established, a more holistic application of the UN Charter — one that more accurately addresses the purposes and principles of the treaty — can be developed.

With the Reframer approach thus described and differentiated from the existing Bright-Liner restrictivist and Balancer expansionist camps, the endeavour to develop a more holistic jus ad bellum construct than the prevailing interpretation of the contemporary use of force model can proceed. The initial matter in this endeavour is to explore the origins and conceptual contours of the prevailing interpretation of the contemporary jus ad bellum model before then applying the Reframer approach in order to develop the competing Purposes and Principles model. This historical and conceptual dissection and inspection of the prevailing jus ad bellum is the primary focus of the section that follows.

describing the prevailing “alvarez” jus ad bellum model

The prevailing jus ad bellum model that is based on the UN Charter is centred exclusively on a textual interpretation of three specific provisions of the treaty. The first, reflected in Article 42, grants the UN Security Council the license to authorize members to “take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security” if the Council determines that measures not involving armed force, reflected in Article 41, “would be inadequate or have proved to be inadequate.”Footnote ²⁶ Article 42 is, of course, situated in the broader context of the responsibilities of the Security Council that are reflected in Chapter VII of the Charter. While Article 39 confers broad authority upon the Security Council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression,” it is Article 42 that is cited in practice by the Security Council to express consent related to the utilization of armed force to respond to such an act or threat. Article 42 is momentarily set aside for present purposes since there is rarely dispute regarding whether a use of force is authorized pursuant to this provision.Footnote ²⁷ Achieving consensus sufficient to permit a contemplated use of force pursuant to Chapter VII, particularly among the five permanent members of the Security Council, of course, is often challenging, but there is rarely controversy regarding whether a textual reading of a Security Council resolution provides a license for “all necessary means” to achieve a specified objective.Footnote ²⁸

This leaves two other primary provisions on which the prevailing UN Charter use of force construct is centred, and it is in interpreting these wherein most of the relevant ambiguity lies. The first interpretation, commonly considered the self-defence endorsement, specifies: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”Footnote ²⁹ In conjunction with this self-defence provision, the prevailing use of force model rests on the UN Charter “non-intervention” provision establishing the requirement that “[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”Footnote ³⁰

Read together, these two central provisions of the UN Charter seem to establish an exceptionally constraining use of force construct. If the territorial integrity of all member states is inviolable, pursuant to Article 2(4), and it can only be infringed if that state engages in an armed attack against another state, thereby activating the inherent right of self-defence of the victim state pursuant to Article 51, one would expect the threat or use of armed force to be extraordinarily rare. As long as all states comply with the Article 2(4) obligation to refrain from the threat or use of force against the territorial integrity or political independence of all other states, there should be no occasion for any state to invoke the inherent right of self-defence pursuant to Article 51.

While this application of the operative provisions of the UN Charter to form the foundation of the prevailing contemporary jus ad bellum model is a familiar tale in the theory and practice of contemporary public international law, so ubiquitous is the model that the origins of this construct may be decidedly less apparent. As the analysis immediately below suggests, the origins of the prevailing model can be traced to a separate opinion by Judge Alejandro Alvarez published as part of the International Court of Justice (ICJ) Corfu Channel case.Footnote ³¹ In recognition of the enduring influence of this model that was expressed by this prolific jurist of international law, the present article adopts the moniker of the “Alvarez model” as an alternative method by which to describe the prevailing contemporary jus ad bellum construct.

In the endeavour to summarize the jus ad bellum construct that was established in the then fledgling UN Charter, Alvarez J notes in his separate opinion in Corfu Channel that the “Charter of the U.N.O. [United Nations Organization] (para. 4 of Art. 2) forbids the employment of force except in case of legitimate self-defence (Art. 51).”Footnote ³² As part of this characterization, Alvarez J describes seven discreet factual scenarios, lettered “A” through “G,” as examples to facilitate an assessment regarding whether a state “must have recourse, not to force but to the Security Council or to the International Court of Justice” pursuant to this (then) new jus ad bellum construct.Footnote ³³ The limitations described by Alvarez J are consistent with what one might expect in applying what is now known as the “restrictivist” approach — that is, all limitations, save for one.

According to Alvarez J’s formulation, one exception to the requirement for a state to have recourse to the UN Security Council unless the state is acting in legitimate self-defence is a situation wherein a state “does not possess the right to perform certain acts in the territory of another State, but its vital interests, or the general interest, impel it to perform these acts, thus violating the sovereignty of the other State and international law.”Footnote ³⁴ The matter of whether violating the sovereign territory of another state is a per se violation of international law is examined below when exploring the contours of the Purposes and Principles jus ad bellum model established herein. For present purposes, however, the single seemingly expansionist provision reflected in the otherwise restrictivist interpretation of the contemporary jus ad bellum model that is based on the (then) new UN Charter is worthy of note, especially since the present prevailing interpretation of the contemporary use of force construct can be traced back to Alvarez J’s model.

Exactly what conditions qualify as a “vital” individual state interest or a “general” collective interest of the global community such that a state may infringe on the sovereignty of another state by using armed force without recourse to the Security Council even when doing so does not qualify as “legitimate self-defence” is, of course, the central controversy in the endeavour to interpret and apply the contemporary jus ad bellum use of force model. Present-day application of the restrictivist approach would suggest that no such conditions exist, but even reference to the original articulation of the prevailing interpretation indicates that the matter is not as bright of a line as restrictivists may prefer to portray. Whatever these conditions may be, the Alvarez jus ad bellum model that frames the conditions pursuant to which a state may utilize armed force in terms of a prohibition established by Article 2(4), and the self-defence provision reflected in Article 51 and the collective authority of the UN Security Council as the primary exceptions to this prohibition, is now a mainstay in contemporary discourse involving the use of force. What has coalesced and emerged as the prevailing interpretation of the contemporary use of force model thus began as merely one interpretation of the UN Charter — an interpretation that does not necessarily carry the force of law in the manner in which the model is so widely described and applied today.

By the time of the UN Security Council debate involving the Entebbe incident, nearly thirty years after publication of the ICJ Corfu Channel case merits opinion, for example, the Alvarez model had become the centrepiece of the restrictivist approach — though without the potential broadening effect of “vital” or “general” interests exception originally reflected in the model. In an application that is representative of the restrictivist approach that was employed throughout the Security Council meeting by states denouncing Israel’s limited incursion onto Ugandan territory, the representative of Cameroon asserted that the “Security Council, which is responsible for international peace and security, must vigorously condemn [Israel’s] barbaric act which constitutes a flagrant violation of the rules of international law and of the spirit and the letter of the Charter, Article 2(4).”Footnote ³⁵ While the representative of Cameroon does not directly address the matter of self-defence pursuant to Article 51, the characterization that Israel “deliberately initiated hostilities against Uganda, and for that reason is the aggressor in this affair, as defined by international law”Footnote ³⁶ seems to indicate that Cameroon did not assess the incursion by Israel to be a legitimate act of self-defence.

This formulation, of course, should be readily recognizable for those with even a passing familiarity with contemporary jus ad bellum discourse. According to the model utilized by Cameroon to describe the incursion by Israel into Uganda, the operationalization of the “non-intervention” clause of Article 2(4) of the UN Charter creates a presumption that Israel must not encroach upon the territorial integrity or political independence of Uganda unless one of two exceptions applies. The first potential exception is the exercise of legitimate self-defence pursuant to Article 51, a qualification that Cameroon appears to reject in this instance. The second potential exception is Security Council authorization, pursuant to Chapter VII of the Charter, which was not present in this instance.

What was the result of the “violation” of Uganda’s territorial integrity and political independence in the absence of legitimate self-defence or Security Council authorization? As the representative of Cameroon observes, “[t]here are no words strong enough to condemn Israel’s aggression against Uganda.”Footnote ³⁷ And the solution? “Africa and world opinion” expect the Security Council “to act firmly to deter future potential aggressors intoxicated with a sense of power from violating the sovereignty and territorial integrity of Member States of our Organization and from trampling underfoot the sacred principles of peace and international security which are enshrined in the Charter.”Footnote ³⁸

One would be forgiven for mistaking the characterization of the applicable jus ad bellum framework thus propounded by Cameroon on this occasion to be an inspiring specimen of grand geopolitical theatre rather than an earnest, dispassionate, and comprehensive articulation of a central component of international law. Similar articulations on that occasion by states adopting the Alvarez model in a restrictivist fashion to denounce Israel’s “aggression” likewise tend to present an appreciable degree of political flare.Footnote ³⁹ While this restrictivist characterization of the applicable jus ad bellum use of force model was invoked repeatedly during this UN Security Council meeting, it was not the only interpretation on offer, as the remarks by the representatives of FranceFootnote ⁴⁰ and Israel,Footnote ⁴¹ for example, project a rather more expansionist tone.

Nonetheless, the Alvarez jus ad bellum model — at least a version that disregards the potential exception for protection of a “vital” individual state interest or a “general” collective interest of the global community as it was articulated by the original architect — was a mainstay in the advocacy condemning Israel’s act of “aggression” during the Entebbe incident at the UN Security Council. It is this version of the jus ad bellum model centred on the UN Charter that has emerged today as the ubiquitous understanding of the contemporary expression of international law involving the permissible use of force. As the assessment of selected aspects of contemporary discourse in the third part of this article suggests, this prevailing interpretation of the UN Charter jus ad bellum model is not necessarily a complete and accurate application of conventional and customary international law.

With this prevailing reductive interpretation adopted as an authoritative expression of the “law,” and assuming all member states adhere to the law, when applied in practice, one would expect a world in which armed conflict does not exist. It is this exceptionally constraining character of the prevailing UN Charter interpretation, which effectively reduces contemporary international law involving the use of force to a mere three provisions of the Charter, that leads the present inquiry to characterize this model as “reductivist.” With the contours of the prevailing reductivist interpretation of the UN Charter use of force model thus in focus, the formulation can now be deconstructed in order to examine first the historical, and then the conceptual, constituent components.

tracing the historical development of the main components of the prevailing interpretation of the contemporary jus ad bellum construct

Application of the prevailing interpretation of the contemporary jus ad bellum model reveals that the values of self-determination, territorial integrity, and political independence are a trio elevated to super status among the principles reflected in the UN Charter. While this comingling entails certain identifiable conceptual implications, it is helpful to briefly examine the historical development of these central values in order to develop a useful context before exploring the conceptual implications. The intent of this section is not to present a comprehensive examination of the rich and extensive history of the central values as they exist in contemporary application. Rather, the objective here is simply to sketch some of the most salient historical developments in order to identify the roots of the core values as they apply in the contemporary international legal order.

The historical sketch begins with an unmistakably Euro-centric foundation, specifically with a focus on Western Europe. Such a focus on Western European history is understandably vulnerable to criticism as culturally biased. However, as a consequence of global exploration and cultural diffusion,Footnote ⁴² Western European notions of the relationship between the nation-state and the individuals governed thereby have helped shape the contours of what has now developed into the global legal order. Briefly sketching significant historical developments that inspired regional applications of ideals such as self-determination, political independence, and territorial integrity provides useful context for the role these principles perform in shaping the purposes and principles of the UN Charter.

While ascertaining the most appropriate starting point in a broad overview of historical developments such as this can be challenging, perhaps the most logical place to begin is the Peace of Westphalia. Though the precise role of this series of pacts, which were designed to end the Thirty Years’ War, in influencing the prominence of the nation-state is a matter of some discussion, there is no doubt that the nation-state solidified as the unit of geopolitical delineation in much of Europe during the succeeding decades. With the nation-state emerging as the basic unit of political measure, territorial borders solidified in order to demarcate and divide boundaries of sovereign authority.Footnote ⁴³ Scarcely two generations after the Peace of Westphalia, the cultural revolution that would become known as the Age of Reason, or the Enlightenment, began to take shape. Inspired in large part by the perceived subjugation of the interests of the individual as a result of prevailing feudal constructs and of customary monarchical absolutism, this cultural revolution prompted a gradual, though fundamental and systemic, reframing of the role of the relationship between sovereign and subject.Footnote ⁴⁴ One central hallmark of the liberal order that emerged is the almost sacred emphasis on individual self-determination and the corresponding role of the political sovereign in fostering, protecting, and promoting the supreme value of self-determination of the subjects governed thereby.Footnote ⁴⁵

Acknowledging the marked oversimplification of this brief consolidation of roughly two hundred years of European history, this epigrammatic sketch provides useful — though admittedly perfunctory — context to values that have fundamentally shaped the contemporary international order. From these historical developments, self-determination emerges as the supreme core value. The principle of political independence serves as the practical manifestation of the supreme value, functioning for the will of, and with the consent of, the governed. The principle of territorial integrity serves to delineate relative boundaries of authority and responsibility for exercising political independence in support of the supreme value of self-determination.

Were it not for several specific significant events that inspired the establishment of a global intergovernmental order, this brief account of history would simply constitute an interesting tale of Western European socio-political and geopolitical post-medieval development. At some point, however, European notions of self-determination, territorial integrity, and political independence helped shape the global legal order that exists today. While identifying one specific development as the source of this structure may not be possible, the textual manifestation of these central values as they are currently reflected in the UN Charter can be traced to the Fourteen Points manifesto published by Woodrow Wilson as the First World War was drawing to an end.

In describing his vision for ending the war and securing an enduring peace, Wilson describes specific goals that should be achieved as well as general principles designed to preserve the peace being sought. In this address, core values of the contemporary international legal order are discernable. In relation to the supreme value of self-determination, Wilson expresses his vision thus:

In order to support this wish for each nation to “live its own life” and “determine its own institutions,” according to Wilson’s vision, a “general association of nations must be formed under specific covenants for the purpose of affording mutual guarantees of political independence and territorial integrity to great and small states alike.”Footnote ⁴⁷ This suggested “general association of states,” of course, developed into the ill-fated League of Nations. Incorporated as the initial portion of the Treaty of Versailles, the Covenant of the League of Nations (Covenant) adopted the guiding principles of the Fourteen Points while expanding upon some of the detail necessary to institute the League.Footnote ⁴⁸

The supreme value of self-determination in concept underpins both the Fourteen Points and the Covenant, though the preamble of the Covenant directly reflects similar language in the Fourteen Points by emphasizing the intent to foster the “maintenance of justice and a scrupulous respect for all treaty obligations in the dealings of organised peoples with one another.”Footnote ⁴⁹ Like the Fourteen Points, the values adopted by the Covenant to protect the right of self-determination are territorial integrity and political independence. In the Westphalian tradition that had developed and coalesced in Europe during the preceding nearly three centuries, territorial boundaries formally defined divisions of sovereign authority, while the political structure that developed within the respective territorial boundaries manifested the value of self-determination as it was exercised by the subjects that were governed by the sovereign within those geophysical delineations. The Covenant of the League of Nations implemented these values by requiring each state party to “undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League.”Footnote ⁵⁰

While the philosophical and political ideals that formed the foundation of the contemporary international legal order pre-date the conclusion of the First World War, the lineage of the textual manifestations of the core values can be traced directly to Wilson’s Fourteen Points address and the Covenant of the League of Nations as part of the Treaty of Versailles. This lineage — from the Fourteen Points to the UN Charter — adopts and effectuates into the global legal construct the supreme value of self-determination among the community of sovereign nation-states. Like its predecessors, the UN Charter — in Article 2(4) — adopts the twin values of territorial integrity and political independence as the instruments by which to foster and operationalize the supreme value of self-determination. By formalizing in (now universal) international law the requirement for UN member states to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state,”Footnote ⁵¹ each individual member state is free, to draw from the preamble of the Charter, to “promote social progress and better standards of life in larger freedom” individually on behalf of the peoples governed by each respective sovereign.

This international legal construct is, in turn, a textual manifestation of the historical developments in Western Europe that gave rise to the so-called Enlightenment and the associated liberal tradition. As a result of this lineage, the twin values of territorial integrity and political independence were elevated to a position of super status along with the supreme value of self-determination. The near absolute inviolability of this exalted trio of values constitutes the foundation of the prevailing interpretation of the UN Charter use of force construct. With the historical development of these exalted values briefly traced, the inquiry now turns to assess the conceptual implications of the union of the three core principles.

inspecting the conceptual components of the prevailing use of force model

The conceptual inspection of the prevailing use of force model begins by extrapolating three primary assumptions upon which Article 2(4) of the UN Charter is built. The first assumption is that governments exercise sovereign authority across the entirety of the territory that exists within the boundary of the state, including any applicable territorial sea. A second central assumption is that governments exercise sovereign authority within the territorial border on behalf of the governed and for the benefit of the governed. The third central assumption to be addressed here is that the UN Security Council will operate effectually as designed to take the action necessary to promote the realization of the core purposes and principles of the Charter.

The first assumption is required by operation of the inviolability of territorial boundaries established in Article 2(4) in conjunction with the operation of a few related provisions to be examined herein. Within the recognized territory, the government of each state embodies the political independence of the country. If the UN as an organization is prohibited from intervening “in matters which are essentially within the domestic jurisdiction” of individual states,Footnote ⁵² and domestic governments implement political independence within the territorial integrity of each state as reflected in the inviolable character of Article 2(4), it follows that each state is conferred with exclusive authority to exercise this sovereign prerogative within the entirety of the territory assigned to that government. Failure to exercise sovereign authority across the entire territory means the government is not performing its role in fostering and manifesting the right of self-determinationFootnote ⁵³ or promoting respect for human rights and fundamental freedomsFootnote ⁵⁴ of the peoples in that given territory, and no external entity is conferred with secondary authority to do so. This emphasis on the coextensive, inviolable values of territorial integrity and political independence is essentially a textual implementation of the Westphalian nation-state model by the UN Charter, wherein territorial boundaries constitute the lines of demarcation between political sovereigns exercising equal and exclusive domestic authority. In this construct, ungoverned domestic territory is not conceptually contemplated.

The second central conceptual assumption to be addressed in the present inquiry is that the government operating exclusively within each parcel of sovereign territory is doing so on behalf of, and for the benefit of, the peoples present within the established territorial boundaries. Like the previous assumption, this is a required function of the inviolable character of Article 2(4) and a few related provisions of the UN Charter. If each individual government represents the exclusive political independence of the state, it follows that the government should not act in a manner that conflicts with the right of self-determination and the promotion and encouragement of respect for human rights and for fundamental freedoms for the peoples in each respective territory.

While the UN Charter is itself scant on details regarding the conceptual and legal relationship between sovereign and subject, such cursory treatment is to be expected from a treaty that is designed and developed as an outward-facing treaty to regulate relations among sovereigns rather than an inward-facing treaty intended to specify particular expectations related to the relationship between sovereign and the governed. Although specific mention of the aspiration to foster the “principle of equal rights and self-determination” among the global communityFootnote ⁵⁵ and to promote and encourage “respect for human rights and for fundamental freedoms for all”Footnote ⁵⁶ constitutes only a passing mention, these provisions can be considered in the same spirit as Woodrow Wilson’s characterization at the conclusion of the First World War that the “new world in which we now live” is one wherein each state remains free to “determine its own institutions, be assured of justice and fair dealing by the other peoples of the world as against force and selfish aggression.”Footnote ⁵⁷ Though the outward-facing UN Charter was cut from the same conceptual cloth as its ill-fated predecessor — the Covenant of the League of Nations — context for what was envisioned as the relationship between the sovereign and subject at the time of the development of the UN Charter can be drawn by reference to what history will undoubtedly judge to be one of the most significant developments that occurred in the aftermath of the Second World War: the establishment and eventual expansion and proliferation of human rights as an international body of law.

Turning, then, to the Universal Declaration of Human Rights (Declaration) can provide useful conceptual context for references in the UN Charter — a contemporary of the Declaration — to notions of “self-determination,” “human rights,” and “fundamental freedoms.”Footnote ⁵⁸ Although the instrument does not constitute a binding source of law, it of course laid the groundwork for the twin foundational international human rights treaties (the International Covenant on Civil and Political Rights Footnote ⁵⁹ and the International Covenant on Economic, Social, and Cultural Rights Footnote ⁶⁰) and the many related human rights treaties and declarations developed since. While the purpose of the present inquiry is not to engage in a thorough review of the foundations of human rights as an international body of law, a brief study of some components of the inward-facing Declaration can provide useful context for relevant terms reflected in the outward-facing UN Charter.

The connection between the two foundational texts begins in the preamble of the Declaration, which associates directly with the UN Charter by observing that the “peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights” and that “Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms.”Footnote ⁶¹ In adopting the Declaration, the UN General Assembly proclaimed that the content of the Declaration constitutes a “common standard of achievement for all peoples and all nations” and that “every individual and every organ of society” shall strive to promote respect for the rights described in the Declaration “both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.”Footnote ⁶² What follows thereafter is an inspiring collection of aspirational prescriptions to establish “a common understanding of” the “rights and freedoms” that are “of the greatest importance for the full realization” of the pledge reflected in the Declaration.Footnote ⁶³

This brief foray into the foundations of international human rights law provides useful context for the meaning of such terms as “self-determination,” “human rights,” and “fundamental freedoms” that are addressed briefly in the outward-facing UN Charter. In this context, “sovereignty” as a concept is implemented exclusively not only as a right of a government to exercise authority within the territorial boundaries assigned to it but also as a responsibility to promote, protect, and implement the supreme right of self-determination for the benefit of, and on behalf of, the peoples within the relevant geophysical boundaries. This assumption is required in order “to establish conditions under which justice and respect for obligations arising from treaties and other sources of international law can be maintained.”Footnote ⁶⁴ A government that acts contrary to this assumption is not functioning in accordance with the exclusive obligation to act on behalf of the governed, which is an essential responsibility of the state pursuant to the fundamental purposes of the UN Charter.

The third and final conceptual assumption to be addressed here is that the UN Security Council will operate effectively as designed in order to foster and promote the core values of self-determination, territorial integrity, and political independence on behalf of the individual members of the organization. As the manifestation of the collective authority for concluding that a given situation involves a threat to international peace and securityFootnote ⁶⁵ and for determining the action that may be undertaken in response,Footnote ⁶⁶ the Security Council is designed and intended to give function to the abstract purposes and principles reflected in the UN Charter. If the Council is not able to achieve adequate procedural consensus, including no contrary vote by any of the permanent five members,Footnote ⁶⁷ a particular situation will not be deemed to be a threat to international peace and security even if it in actuality constitutes such a threat.

In the conceptual framework that develops from applying these central assumptions, territorial boundaries emerge as something more than mere geophysical partitions. Rather, geographical borders constitute metaphysical boundaries that are utilized to delineate parcels of exclusive domestic political authority. Each sovereign state is conferred with the authorization to exercise the degree of coercive force necessary to foster the right of self-determination and to promote and encourage human rights and fundamental freedoms in the entirety of the territory assigned to the state, and the expectation is that the minimum force necessary to do so will be applied by the state.Footnote ⁶⁸ The state must achieve a monopoly on the use of force domestically in order to satisfactorily perform the essential functions of the state, and the coercive force applied domestically must be exercised on behalf of the governed rather than, for example, for the private benefit of those entrusted to apply this sovereign authority. By operation of Article 2(4) and 2(7) of the UN Charter, only the Security Council operating pursuant to Article 42 may authorize armed force to be employed on behalf of the collective international community across recognized geophysical and metaphysical boundaries.

Inspection of this conceptual structure reveals that infringement upon sovereign territory is regarded as the equivalent of encroaching upon the political independence of the territorial state since the respective government alone is conferred with the authority to promote and protect the right of self-determination on behalf of, and for the benefit of, the peoples governed in the relevant territory. If the supreme right of self-determination is the conceptual equivalent of political independence as the manifestation of that right, and territorial integrity demarcates the geophysical boundaries within which political independence is exercised, both political independence and territorial integrity are elevated to the same super status as the supreme right of self-determination. The hyper-emphasis on the values of territorial integrity and political independence that is characteristic of the prevailing interpretation of the contemporary use of force construct operates to narrow and simplify the conceptual conditions by which an extraterritorial use of force is assessed to be “lawful.” As the next section in the present inquiry examines, this simplification prevails in practice — for better and for worse.

conceptual application of the prevailing reductivist use of force interpretation

The prevailing interpretation of the contemporary use of force construct functions admirably well in concept, provided that the underlying fundamental assumptions operate as envisioned. If so, each individual state exercises full sovereign authority and control over all territory within the recognized territorial boundaries of the state and does so on behalf of the peoples governed by the state. In this conceptual application, a threat or use of force against the territorial integrity of the state actually does jeopardize the political independence of the state, which in turn infringes upon the supreme right of self-determination being promoted and implemented by the government of the state. This conceptual image is required in order to rationalize elevating territorial integrity and political independence to super status as an inviolable manifestation of the supreme value of self-determination. To consider the practical viability of the over-emphasis of Article 2(4) that is inherent in the prevailing interpretation, this section ponders what effect follows if these conceptual foundations are not functionally present in application. This functional feasibility is facilitated by considering a central question: are there circumstances under which a threat or use of force against the territorial integrity or political independence of a state does not jeopardize the supreme right of self-determination that the state is assumed to promote?

One such conceptual prospect materializes when a state is unable or unwilling to exercise sovereign authority within the entirety of the recognized territorial boundaries of the state. A practical consequence of this conceptual scenario is that no government is capable of promoting the value of self-determination on behalf of those present in the ungoverned or ungovernable territory. This is a matter of significant concern for the affected domestic population, though it is not in itself necessarily a matter of direct concern for the international community as a whole. This characterization changes, however, if conditions in the ungoverned or ungovernable territory evolve to constitute a threat to international or transnational peace and security. If a use of force is directed by an external entity towards a target that is present in an ungoverned or ungovernable space within the territorial boundaries of the state, the attack does not necessarily constitute a threat to the supreme value of self-determination within the territorial state simply because the recognized boundaries of the state have been infringed. The geographical boundaries that demarcate the relevant state from the surrounding states have no intrinsic value if the government exercising sovereign authority in this territory is not able to perform this function on behalf of the peoples governed thereby. In this case, the attack is not directed “against” the government that manifests the supreme value of self-determination on behalf of the governed or “against” the supreme value that is being exercised directly by the peoples in that state simply because the attack infringes upon the recognized geographical boundaries of the state.

A second conceptual prospect in which a threat or use of force does not necessarily jeopardize the right of self-determination for the peoples in the “victim” state emerges if the tools typically utilized by a government to maintain domestic peace and security or to defend geopolitical interests abroad are instead used systematically against the domestic population. In this scenario, the political independence of the state is not analogous with the supreme value of self-determination. Rather, the elevation to super status of the values of territorial integrity and political independence by operation of Article 2(4) of the UN Charter functions to frustrate, rather than promote and protect, the supreme value of self-determination. Under these circumstances, it is conceptually possible that an external threat or use of force may encourage or accomplish restoration of the value of self-determination for the domestic population of the “victim” state in a manner that is not possible if the values of territorial integrity and political independence remain elevated to be equivalent with the value of self-determination.

A final conceptual prospect to be addressed here in which an external use of force does not necessarily pose a considerable threat to the supreme value of self-determination is when the external use of force involves limited objectives that do not constitute a profound challenge to the political independence of the “victim” state. Conceptualizing this prospect requires consideration of what has become known as the spectrum of conflict. At one extreme end of the spectrum is major theatre war, which now in the nuclear age involves the global threat of mass destruction that is without precedent in human history. At the other extreme on the spectrum of conflict, at least as it exists between states, is back channel diplomatic negotiations performed with the objective to resolve a contentious matter that is limited in scope and of minimal strategic importance for the negotiating parties.

Any specific, precise point on this spectrum involves some degree of conflict between two or more states that some form of international relations is being utilized to resolve. While all discrete points involve a degree of conflict, not all involve armed conflict. Some points involving armed conflict constitute a systemic and manifest threat to the supreme value of self-determination of the peoples present within a given state, such as a full-scale external invasion conducted with the intent to permanently annex the territory and subjugate the population to the rule of the invading state. Another point on the spectrum, such as a single air strike against a member of an opposing non-state organized armed group while the target is located in ungoverned or ungovernable territory of the “victim” state, constitutes only negligible, if any, threat to the political independence or to the self-determination of the affronted state. Even an attack that is intended to affect the political independence of a state, such as the missile strike by Iran against a US military base in Iraq that was carried out as retribution for the attack against General Soleimani, may not constitute a discernible threat to the self-determination of the peoples of the “victim” state.Footnote ⁶⁹ The prevailing interpretation of the UN Charter use of force construct functionally treats all attacks by one state against another as conceptual equals, even though limited infringements upon the territorial integrity or political independence of a state may have no or negligible impact on the supreme value of self-determination.

The three settings described above represent situations in which territorial integrity and political independence are not necessarily conceptually equivalent to the supreme value of self-determination. Nonetheless, the tendency to narrow the conceptual scope of the UN Charter use of force model to Article 2(4) elevates territorial integrity and political independence to the status of primary values alongside self-determination. While it is possible that this conflation might be appropriate, a competing interpretation is that the values of territorial integrity and political independence are conceptual proxies for, rather than equivalents to, the supreme value of self-determination. If this is the case, an interpretation of the Charter use of force construct that is not centred on territorial integrity and political independence and that, instead, accounts for a broader collection of values may be appropriate. Such a possibility is incorporated directly into the text of Article 2(4) in the concluding clause, which proscribes an infringement of territorial integrity or political independence of any state “in any other manner inconsistent with the Purposes of the United Nations.”

The “Purposes of the United Nations” Charter are not to elevate territorial integrity or political independence to inviolable status just for the sake of promoting respect for geophysical boundaries in the abstract or the sovereign authority of governments that are demarcated and delineated thereby. It is the “purpose of the United Nations” Charter to protect and promote the supreme value of self-determination that is presumed to be implemented by respective governments (political independence) on behalf of the peoples governed within the recognized geophysical boundaries (territorial integrity). The current prevailing interpretation of the use of force model unsatisfactorily elevates territorial integrity and political independence to the same supreme status as the value of self-determination by fixating on the territory and independence clause without accounting for the “Purposes of the United Nations” clause situated at the conclusion of Article 2(4).

The development of a more comprehensive use of force model is possible by treating the values of territorial integrity and political independence as markers of, but not direct proxies for, the supreme value of self-determination. Such an endeavour would permit territorial integrity and political independence to be situated as components in the broader context of the purposes and principles reflected in the UN Charter. Describing such an alternative model is the focus of the third part of this article. Before turning to the endeavour of developing the Purposes and Principles model suggested in this article, a brief reflection regarding the limitations inherent in centring the UN Charter use of force model on the supreme value of self-determination rather than on territorial integrity and political independence as components of state sovereignty is in order.

This brief reflection begins by drawing on a recent observation by Jens David Ohlin regarding the relationship between self-determination and sovereignty in the context of election interference. After suggesting that the prevailing sovereignty lens for analyzing the issue of external election interference should be exchanged in favour of a self-determination lens, Ohlin poses a rhetorical question involving the failure of contemporary literature to analyze the issue of election interference fundamentally as a matter of self-determination. Specifically, Ohlin observes: “If self-determination is a more compelling framework than sovereignty for analyzing election interference, there is one obvious question: why have international lawyers failed to appreciate the significance of self-determination in this case?”Footnote ⁷⁰

In providing a summarized answer to his rhetorical question, Ohlin offers four observations before addressing each in turn. The summarized answer that Ohlin provides is that “international lawyers disfavor references to self-determination for at least four reasons.”Footnote ⁷¹ These reasons, as explained by Ohlin, are: “the category of ‘peoples’ is frustratingly indeterminate; peoples are inconsistent with international law’s prevailing methodology of positivism; self-determination’s status as a collective right fits uncomfortably within the prevailing individualism that reigns in human rights law; and self-determination is falsely assumed to be limited to the process of decolonization.”Footnote ⁷² After addressing each of these reasons in turn, Ohlin offers a concluding reflection on the tendency of “international lawyers” to spurn focusing on the concept of self-determination while engaging with international law.

Ohlin’s reflections directly relate to the matter being examined in this article, so his reflections are endorsed and adopted here. Specifically, Ohlin observes: “All of this is to say that international lawyers are wrong to dismiss the significance of self-determination, both in general and in the particular case of election interference. International lawyers avoid the rights of peoples at their own risk.”Footnote ⁷³ Ohlin continues this reflection by observing that self-determination as a concept “is central to many other areas of international law which could not function without heavy reliance on the concept of a people or some other collective entity (other than the state).”Footnote ⁷⁴ In concluding this reflection, Ohlin asserts: “The stranglehold that the concept of statehood has on modern international law is unfortunate.”Footnote ⁷⁵

The present inquiry draws heavily on Ohlin’s reflections by regarding the relationship between sovereignty and self-determination because the “stranglehold that the concept of statehood has on modern international law” is starkly apparent in the prevailing interpretation of the UN Charter use of force model. As markers of statehood, territorial integrity and political independence are, of course, central components of the contemporary international legal framework. However, in purporting to protect and promote these markers of state sovereignty just for their own sake, as does the prevailing reductivist interpretation of the Charter use of force model, the supreme value of self-determination that is intended to be protected and promoted by providing for the inviolability of territorial integrity and political independence is overlooked.

In suggesting a reframing of the contemporary use of force model by expanding beyond Article 2(4) to the rest of the purposes and principles of the UN Charter, I acknowledge in the present inquiry the sense of ambiguity and the potential for manipulation that accompanies the suggested reframing. As described below in the concluding reflections, the intent of the present endeavour is not to fully develop the specific contours of the self-determination use of force frame suggested herein. That goal will constitute the subsequent aim of establishing the foundation for the string outline of the approach and model being developed in this article. However, demonstrating the need for an alternative approach and outlining the new approach and model, which are the central aspirations of this article, represent an important first step. With some limitations inherent in the present and future endeavours to reframe the contemporary use of force model as a function of self-determination rather than of state sovereignty thus addressed, the present inquiry turns now to develop an initial outline for a use of force model that incorporates a broader collection of the purposes and principles of the UN Charter than does the prevailing reductivist model.

the un charter as an international covenant

The preliminary observation is that the UN Charter establishes an international, rather than a transnational,Footnote ⁷⁶ organization. It was representatives from the “respective Governments” who met in San Francisco in 1945 and “exhibited their full powers” to agree upon and “establish an international organization to be known as the United Nations.”Footnote ⁷⁷ The legal entity with capacity to ratify the treaty is the state, and, upon ratification, the conventional rights, duties, and obligations established in the text for “Members” of the “Organization” become effective. This preliminary observation may seem rather elementary, and, indeed, it is, but this reflection is indispensable in the endeavour to accurately assess what subject matter pertains to the UN Charter and what does not.

When the first two provisions and the second two provisions of Article 1 of the UN Charter are consolidated, the twin purposes for the organization that emerge are to establish a permanent, standing forum for international dispute resolution and to promote the economic and social advancement of all peoples. The principles described in the preamble and the remainder of Chapter I provide essential context for these twin central purposes, while the rest of the Charter — including the annexed Statute of the International Court of Justice Footnote ⁷⁸ — establishes the mechanism by which the organization will achieve the core principles while fulfilling the twin purposes. This observation is also elementary, but it nonetheless facilitates the assessment of what the Charter is and, just as importantly, is not.

While the central purpose of promoting the economic and social advancement of all peoples is laudable and of great consequence, it is largely set aside in favour of the international dispute resolution process, given the subject matter and scope of the present examination. Fostering and protecting international peace and security, of course, contributes to the central purpose of promoting the economic and social advancement of all peoples. However, establishing a standing international dispute resolution process and thereby fostering international peace and security constitutes a standalone purpose even were the associated central purpose of promoting the economic and social advancement of all peoples to be excluded. After all, it is “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind” that originally animated the determination of “we the peoples of the United Nations” to establish the organization in the first instance.Footnote ⁷⁹

The emphasis above on the exclusive legal personality of states combined with the description of the primary purposes of the UN Charter leads to the first central observation regarding what is not addressed by the scope of the multilateral treaty. The requirement for members to “settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered” does not in any way account for “relations” with non-state actors — at least, not directly.Footnote ⁸⁰ In the Westphalian construct implemented by the Charter, only nation-states and the intergovernmental organizations such as the UN duly established by a collection of states have the legal capacity to settle disputes between states. Each individual state is, in turn, presumed to represent the supreme value of self-determination of the peoples governed by the state, and it is the representatives of the state with whom similar representatives of other states are expected to interact when, among other activities, settling international disputes.

As a permanent centre for “harmonizing the actions of nations”Footnote ⁸¹ and settling “international disputes by peaceful means,”Footnote ⁸² non-state actors have no individual legal recognition except to the extent thus conferred and recognized by the organization of states. The extensive harmonization and dispute resolution framework reflected in the UN Charter creates an elaborate set of processes by which representatives of states can engage in diplomacy and negotiation in order to, among other objectives, avoid the “scourge of war.”Footnote ⁸³ This is a fundamental purpose of the UN because the scourge of war threatens the supreme value of self-determination of the peoples governed by conflicting states.

In this regard, the UN and its predecessor, the ill-fated League of Nations, represent a monumental development in human history. However, it is international disputes — potential clashes between nation-states — that are addressed by the UN Charter. This scope does not extend to relations with non-state actors such as organized armed groups. Such relations between states and non-state actors can be accounted for by other applicable multilateral treaties involving the relationship between the state and the governed, and the state-individual relationship is addressed by customary law. However, non-international relations — those that are not between states — are beyond the scope of the UN Charter.

By considering the role presumed to be performed on behalf of the governed by individual member states in achieving the twin central purposes of the organization and by examining the principles described in the preamble and Chapter 1 of the UN Charter, the individual principle that emerges from among the collection of principles established to foster the twin central purposes is the value of self-determination. This is the supreme value that is collectively jeopardized by an identified threat to peace and security in relations between nation-states, and it is, incidentally, the improved prospect for the progressive realization of this supreme value to which the purpose of promoting economic and social advancement is directed. A holistic account of the preamble and Chapter I of the Charter, in true Westphalian fashion, establishes a presumption that the territorial integrity and political independence of each member are a manifestation of the supreme value of self-determination of the peoples governed by each state. When considered in connection with the historical and conceptual foundations examined in the first part of this article, this presumption emerges as rebuttable rather than incontestable.

Identifying, describing, and applying the potential circumstances by which the exalted values of territorial integrity and political independence are to be dissociated from the supreme value of self-determination is a defining feature of the use of force model based on a holistic assessment of the purposes and principles of the UN. The exalted values of territorial integrity and political independence materialize as proxies for the supreme value of self-determination, but territorial integrity and political independence have no intrinsic value when dissociated from the supreme value. Territorial boundaries lose their metaphysical super status when decoupled from the individual implementation of the supreme value of self-determination the borders are presumed to delineate. So decoupled from the supreme value, the borders represent inconsequential geophysical boundaries.

Similarly, a government that does not foster, promote, and protect the collective interests of the peoples governed thereby does not represent the supreme value of self-determination on behalf of the governed as it is presumed to do in the international order reflected in the UN Charter. A government that functions in such a manner acts contrarily, to borrow from the preamble of the Charter, to the “faith in fundamental human rights” and “the dignity and worth of the human person” that is reaffirmed by the treaty.Footnote ⁸⁴ The same is true if the exercise of political independence of one state implementing the supreme value of self-determination on behalf of the governed threatens the supreme value as it is exercised by the governed in another nation-state.

The exercise of political independence, like the recognition of geophysical boundaries, is merely a proxy for the supreme value of self-determination. A holistic approach to examining the UN Charter allows for a more nuanced assessment of whether an actual or proposed threat or use of force is consistent with the purposes and principles reflected in the UN Charter, rather than implementing a rigid devotion to values such as territorial integrity and political independence that have no intrinsic value when they are dissociated from the supreme value of self-determination. This rigid devotion creates inefficiencies in the application of international law that are inconsistent with the purposes and principles of the UN Charter. As the next section examines, a related observation is that defining the term “aggression” is not among the purposes and principles of the UN Charter.

the un charter as a proxy for “aggression”

One significant consequence of the suggested interpretive flexibility is that the use of force model established by the text of the UN Charter is not considered to be a proxy for the term “aggression” as it is commonly portrayed in contemporary discourse. Despite the assertion of the delegation of Bolivia, which proposed inclusion of a definition of aggression when negotiating the text of the Charter, that “failure to specify [acts of aggression] detracts from the effectiveness and celebrity of the system of world security for the urgent and timely repression of aggression,”Footnote ⁸⁵ no such definition is reflected in the Charter. Records from the negotiations that occurred in San Francisco reveal that delegates expressed concern that capturing some activities in such a definition while omitting others “would encourage the aggressor to distort the definition or might delay intervention by the Council,” while, in other cases, “automatic intervention by the Council might bring about a premature application of enforcement measures.”Footnote ⁸⁶ This record indicates that the prevailing sentiment expressed among delegates was that “a preliminary definition of aggression went beyond the possibilities of this Conference and the purpose of the Charter.”Footnote ⁸⁷

The opinion in San Francisco in 1945 that consensus could not be reached on a universal definition for aggression is consistent with the prevailing sentiment expressed during discourse involving the League of Nations nearly twenty years earlier. This perspective is perhaps best captured by the remarks of Sir Austen Chamberlain, who famously described during House of Commons debates the attempt to define the crime of aggression as “a trap for the innocent and a sign-post for the guilty.”Footnote ⁸⁸ This widely cited description is accompanied by a less quoted rhetorical question. As Sir Chamberlain queried, “[i]f you lay down, far in advance, for circumstances that you cannot foresee, rigid definitions by which the aggressor is to be determined, are you quite sure that in thus making these strict rules for circumstances which are unknown to you, you may not find, when the occasion arises, that by some unhappy turn in your definition you have declared to be the aggressor that party which, to the knowledge of all men at the time, is the aggressed and not the offender?”Footnote ⁸⁹

The Covenant of the League of Nations, as a result of this sentiment, does not establish a binding definition for aggression, just as the UN Charter does not and instead leaves such an endeavour to the UN Security Council to be undertaken on a case-by-case basis. Notwithstanding the definition derived by the General Assembly twenty-five years after the United Nations Conference,Footnote ⁹⁰ sufficient consensus could not be achieved during negotiations for what would become the Additional Protocols to the 1949 Geneva Conventions to include a definition for aggression in treaty form.Footnote ⁹¹ This lack of consensus in Geneva persisted despite the vociferous lobbying in favour of inclusion in the Additional Protocols of a legally binding definition.Footnote ⁹²

Twenty years on from the Geneva conference that gave rise to the Additional Protocols, sufficient consensus to include a binding definition for the crime of aggression in the text of a multilateral treaty also could not be reached among the delegates from 160 states that gathered to negotiate what would become the Rome Statute of the International Criminal Court. Footnote ⁹³ Notwithstanding the recent activation of the crime of aggression for the Rome Statute based on the text agreed in Kampala in 2010,Footnote ⁹⁴ the current count of forty extensively recognized states plus Palestine that have ratified the amendment makes the status of this definition as a binding provision of international law far from customary. Even if all 123 current states party to the treaty were to ratify the amendment, the conspicuous absence of states such as Russia, China, Israel, Turkey, Iran, and the United States from the list of states party would render the assertion that the definition now established in Article 8 bis of the Rome Statute constitutes a binding provision of customary international law inherently dubious.

The observation that emerges from this brief overview of attempts to develop and implement a binding definition for aggression is that, despite enthusiasm that may be expressed for the idea, states have been far more reluctant to consent to being bound by any specific definition in practice. Despite universal ratification of the UN Charter and now seventy years of applying the accompanying use of force construct, consensus regarding a legally binding definition of aggression remains just as elusive now as it was during discussions involving the League of Nations nearly one hundred years ago. Treating the three provisions of the UN Charter that have emerged as the prevailing interpretation of the contemporary use of force model as a proxy for the concept of aggression and thereby denouncing any ostensibly non-compliant example of the use of force as aggression, then, constitutes a gross misapplication of the Charter and is inconsistent with the understanding of the term that dates at least to the negotiations that gave rise to the Covenant of the League of Nations. This prevalent contemporary narrative is an important example of what the UN Charter is not intended to accomplish and, as such, must be rejected by a Purposes and Principles interpretation of the text of the Charter.

the un charter and the inherent right of self-defence

A similar conclusion is mandated when critically assessing the manner in which the self-defence provision of the UN Charter, specifically Article 51, has come to be construed in the prevailing reductivist interpretation of the contemporary use of force model. According to the popular approach, any extraterritorial use of force is “illegal” if it is not authorized by the UN Security Council pursuant to Article 42 or by the territorial state (an exercise of the political independence reflected in Article 2(4)) or conducted in response to an armed attack pursuant to Article 51. While allowance may be made for a use of force in response to a threat of an armed attack since members must “refrain in their international relations from the threat or use of force” pursuant to Article 2(4) of the Charter, as Mary Ellen O’Connell observes when applying the prevailing model, “the exception [to a Security Council authorization] is narrow.”Footnote ⁹⁵ When utilized in this manner, the text of Article 51 itself becomes an independent basis for the lawful use of force. According to the prevailing application, the text constitutes a comprehensive expression of this independent basis. By virtue of the inflexible elevation of territorial integrity and political independence to supreme status alongside self-determination and by operation of the explicit reference to “armed attack,” the prevailing understanding of the “exception” to UN Security Council authorization that is reflected in Article 51 truly is narrow, as O’Connell observes.

While the prevailing application is reasonable, it by no means represents the only rational understanding of the self-defence provision. A textual reading of Article 51 indicates that the provision is intended to be a limiting clause that confirms the customary “inherent right” that exists outside of the Charter. This plain reading of the “Nothing in this Charter” provision, though unpopular, is better supported by an assessment of the negotiating history than is the prevailing perspective that Article 51 constitutes an independent and comprehensive legal basis for the use of force.

In the endeavour to assess the contemporary scope of the “inherent right of self-defence,” perhaps the most logical starting point is the Dumbarton Oaks proposal that served as the preliminary draft of what would become the UN Charter. Footnote ⁹⁶ Intended as an initial manuscript from which subsequent negotiations would begin, the text of the Dumbarton Oaks proposal provides useful insight involving important matters to be addressed by the international organization from the perspective of the initial architects. The proposal does address matters such as the purposes and principles of the UN, the structure and role of the UN General Assembly and the UN Security Council, matters of general procedure, and the like.

Conspicuously missing from the Dumbarton Oaks proposal, however, is any mention of the inherent right of self-defence. One way of interpreting this noticeable omission is to conclude that the initial architects intended to supplant any existing individual “right” to use force, even in self-defence, and, instead, to vest all such authority in the Security Council. While this is possible, a competing interpretation is that matters of self-defence were considered beyond the scope of the Charter, which was focused on collective security and that, as such, there was no need to address the individual inherent right as it exists in custom.

The latter interpretation — that self-defence was omitted because it was considered to be beyond the scope of the multilateral treaty — is supported both by practice related to the predecessor to the UN and, as the analysis below demonstrates, by the negotiations that led to the final text of Article 51 as it appears in the UN Charter. In relation to the predecessor to the UN, the Covenant of the League of Nations does not address the right of self-defence. In this regard, the Covenant and the original Dumbarton Oaks proposal are alike. Nearly a decade after the League of Nations was formally instituted, conventional and customary contours of the use of force were explored as states negotiated and deliberated the General Treaty for the Renunciation of War. Footnote ⁹⁷ While negotiating what would become known as the Kellogg-Briand Pact, US Secretary of State Frank Kellogg observed in a letter to the ambassador from France that because “no treaty provision can add to the natural right of self-defense, it is not in the interest of peace that a treaty should stipulate a juristic conception of self-defense since it is far too easy for the unscrupulous to mold events to accord with an agreed definition.”Footnote ⁹⁸ The French Chargé d’Affaires reportedly agreed with this sentiment, indicating that self-defence is “an inalienable attribute of sovereignty” and that, as such, “there was no necessity for its specific mention” in what would become known as the Kellogg-Briand Pact. Footnote ⁹⁹

These sentiments are similar to an observation expressed by Sir Austen Chamberlain in a letter to Secretary Kellogg agreeing that the treaty being negotiated “does not restrict or impair in any way the right of self-defence” and that “each State alone is competent to decide when circumstances necessitate recourse to war for that purpose.”Footnote ¹⁰⁰ After the General Treaty for the Renunciation of War was signed and was being deliberated in the US Senate, Secretary Kellogg expressed the understanding that self-defence “is an inherent right of every sovereign, as it is of every individual, and it is implicit in every treaty.”Footnote ¹⁰¹ These observations collectively indicate the prevailing sentiment of the time that not only is specific mention in the text of a treaty of the inherent right of self-defence not necessary since it exists in custom but also attempting to specifically define the term would be ill-advised.

The prevalence of this sentiment provides valuable context for the conspicuous absence of a provision related to self-defence in the original Dumbarton Oaks proposal for what would become the UN Charter. Like the Covenant of the League of Nations and the General Treaty for the Renunciation of War that preceded the Charter, there was no need to explicitly address self-defence in conventional form because the inherent right is already protected by custom. If the intent of the delegates who negotiated the original draft of the UN Charter had been to alter this pre-existing customary right, the Dumbarton Oaks proposal would reflect this intent.

During the plenary negotiations that followed the original Dumbarton Oaks draft, of course, a provision explicitly involving self-defence, now known as Article 51 of the Charter, was recommended and included. Rather than intending a fundamental revision of existing customary practice, however, the provision now reflected in Article 51 was initially recommended in the much more modest context of confirming the acceptability of regional defense and cooperation arrangements. In this context, two similar proposals regarding regional arrangements were amalgamated into one. The first proposal began with language that is now familiar in the present Charter by indicating: “Nothing in this Charter impairs the inherent right of individual or collective self-defense if an armed attack occurs against a member state, until the Security Council has taken the measures necessary to maintain international peace and security.”Footnote ¹⁰² The related proposal indicated: “Nothing in the Charter should preclude the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided such arrangements or agencies and their activities are consistent with the purposes and principles of the Organization.”Footnote ¹⁰³

The primary issue of concern, then, was confirming that members of regional arrangements could exercise collective self-defence if one member of the regional arrangement became the victim of an armed attack. During deliberations leading to these twin recommendations that were amalgamated into one, the delegate from Colombia expressed the perspective that “if at any time an armed attack should ensue, that is, an aggression against a state which is a member of the regional group, self-defense, whether individual or collective, exercised as an inherent right, shall operate automatically within the provisions of the Charter, until such time as the Security Council may take the appropriate punitive measures against the aggressor state.”Footnote ¹⁰⁴ When this proposal left committee discussions and was deliberated by the commission responsible for provisions of the UN Charter involving the Security Council, what became Chapter VII, the amalgamated proposal was met with enthusiastic support. Perhaps the most fervent expression of support is reflected in the remarks provided by the delegate from France, who applauded that the proposed amendment to the Dumbarton Oaks text “indicates the right of the signatories of regional understandings or treaties of mutual assistance to act immediately without awaiting the execution of the measures taken by the Security Council.”Footnote ¹⁰⁵ At the same commission meeting, the delegate from the United States took the opportunity to emphasize that the “sound and practical formula for putting regional organizations into effective gear with the global institution which we here erect on behalf of the world’s peace and security” represents one of “two or three of the new landmarks in international relationships.”Footnote ¹⁰⁶

These and similar remarks of the delegates involved with negotiating the text of the UN Charter indicate that the “new landmark” reflected in what became Article 51 is the confirmation of the legitimacy of regional security and cooperation agreements. As the text makes clear, “[n]othing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member.”Footnote ¹⁰⁷ There was no need to address the existing customary right of individual self-defence in detail, and the delegates involved in negotiating the Charter expressed no interest in doing so. The original Dumbarton Oaks proposal, continuing in the same manner as its predecessors, did not address the matter of individual self-defence in conventional text and, instead, left the issue to custom. The purpose of the articulation of the inherent right of self-defence, rather, was to confirm in conventional text that the individual right can be exercised collectively, and this constituted a “new landmark in international relationships.”

Consolidating the development of treaty law involving self-defence in this manner indicates that the text of Article 51 of the UN Charter constitutes the port of embarkation, rather than the terminus, in the endeavour to investigate the contours of the inherent right. Even as a conventional description, the provision does not itself qualify as comprehensive. A plain text reading indicates that the purpose of the treaty is not to alter or infringe upon the existing inherent customary right, and the official records of the San Francisco conference reveal that the true significance is that Article 51 extends by convention the individual right to one that can be exercised collectively. The endeavour to divine a sense of the precise contours of the inherent right must look instead to customary law. When combined with the observations, explored above, that the treaty addresses only international relations, that the use of force provisions reflected in the UN Charter are not designed or intended to serve as a proxy for a definition of aggression, and that there may be circumstances in which the exalted values of territorial integrity and political independence should be dissociated from the supreme right of self-determination, the customary landscape appears much more expansive than it does when surveyed through the lens of the prevailing reductivist approach.

Muddled though it may appear at first glance, applying the UN Charter in a more holistic manner than the rigid devotion to three textual provisions characteristic of the prevailing approach may bring a sense of clarity that thus far has remained elusive. Applying the Charter in a manner that is consistent with its purposes and principles, and turning to custom when conventional text provides only limited direction, if any at all, may bring sharper focus to contemporary international law rather than disarray. Though inherently limited based on the scope of the present endeavour, the inquiry turns now to consider how the Purposes and Principles model might apply in the broader jus ad bellum context.

the prevailing interpretation of the un charter as a proxy for the definition of aggression

One attribute that is particularly prevalent in contemporary discourse involving the jus ad bellum is a contention that a use of force that does not comply with the inherently reductivist interpretation of the UN Charter model defines the concept of aggression. This perspective can be traced at least as far back as the UN Security Council meetings in 1976 at which the Entebbe incident was debated. As the representative of Mauritania observed during his remarks, for example, “[n]ow, it is clear that Israel used force against the sovereignty and territorial integrity of Uganda. It is clear also that this act of aggression is incompatible with Article 2 of the Charter, and particularly paragraph 4 of that Article.”Footnote ¹⁰⁸ The representative of Cameroon offered a similar characterization by asserting: “There are no words strong enough to condemn Israel’s aggression against Uganda,”Footnote ¹⁰⁹ while going on to define the “aggression” as “a flagrant violation of the rules of international law and of the spirit and the letter of the Charter, Article 2 (4).”Footnote ¹¹⁰

A common theme among these and similar observations is that the purported definition of “aggression” is distilled to align with what amounts to a stringently restrictivist application of the foundational Alvarez model that has emerged as ubiquitous today. Pursuant to this application, in the absence of UN Security Council authorization pursuant to Chapter VII (which did not exist in relation to the Entebbe incident) and in the absence of a legitimate claim of self-defence pursuant to Article 51 (which is not addressed by proponents of this approach but is rejected by implication), the use of force by Israel “against” Uganda constitutes a violation of the UN Charter. This violation is, in turn, characterized as “aggression.”

Another common theme in this discourse is the invocation of the definition of aggression that was “established” by the UN General Assembly less than two years before the Entebbe incident.Footnote ¹¹¹ The relevant General Assembly resolution does define “aggression” as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations,”Footnote ¹¹² and this definition is centred on Article 2(4) of the UN Charter by reference to territorial integrity and political independence. However, invocation of this definition for aggression that is “established” by the cited UN General Assembly resolution does not support the categorical reliance on Article 2(4) for which proponents of this formulation advocate. There are two primary provisions of this definition of aggression that, both individually and in unison, function to ensure that a degree of ambiguity remains in the application of this definition.

The first provision, which is a component of the preamble, confirms that “the question whether an act of aggression has been committed must be considered in the light of all the circumstances of each particular case.”Footnote ¹¹³ The second relevant provision confirms: “Nothing in this Definition [of aggression] shall be construed as in any way enlarging or diminishing the scope of the Charter, including its provisions concerning cases in which the use of force is lawful.”Footnote ¹¹⁴ Both of these provisions, individually and in unison, protect a degree of ambiguity that is necessary to prohibit a strict definition of aggression from becoming “a trap for the innocent and a sign-post for the guilty,” as Sir Austen Chamberlain famously characterized the endeavour to define the term nearly a century ago.Footnote ¹¹⁵

The observation reflected in Article 6 of the definition for aggression endorsed by the UN General Assembly in 1974 that the entirety of the Charter must be considered when evaluating whether a particular use of force qualifies as “aggression” is wholly consistent with the Reframer approach and the Purposes and Principles model established in the present inquiry. This provision and the requirement to consider a use of force “in light of all the circumstances of each particular case” is also consistent with the original articulation of the Alvarez model, which is centred on Article 2(4) and Article 51 of the Charter but which contemplates a situation in which a state “does not possess the right to perform certain acts in the territory of another State, but its vital interests, or the general interest, impel it to perform these acts” without Chapter VII Security Council authorization.Footnote ¹¹⁶

Setting aside the fact that the UN General Assembly does not possess primary authority to establish binding international law,Footnote ¹¹⁷ the definition for aggression “established” by the General Assembly does not support the assertion that infringement of the territorial integrity or political independence of a state categorically constitutes an act of aggression. Nor does “violation” of a reductivist formulation of the use of force model, which reduces the treaty to a restrictivist application of the original Alvarez model, establish a definition for the concept of aggression — whether or not the definition for the term that was “established” by the General Assembly is referred to in support of the formulation. This reductivist, restrictivist method of defining the term “aggression” featured prominently in the UN Security Council debate involving the Entebbe incident, whereby the model was invoked to support a characterization that the incursion by Israel constituted the crime of aggression.Footnote ¹¹⁸ In this context, the depiction that the incident qualifies as an act of aggression more closely resembles indictments that are carefully crafted for the purposes of high geopolitical theatre than for reasoned and well-supported legal analysis.

In the more than five decades since the UN Security Council meetings at which the Entebbe incident was debated, this reductivist, restrictivist application of the UN Charter use of force model as a proxy for “aggression” has become a mainstay in contemporary discourse. As but one example from contemporary scholarship, Olivier Corten, while articulating his opposition to the so-called unwilling or unable doctrine, invokes Article 2(4) and Article 51 of the UN Charter in support of his assertion that “[e]very time state A crosses the boundary of a state B, bombs its territory or uses any weapon against it, an ‘aggression,’ according to the definition annexed to GA Resolution 3314 (XXIX), can be presumed.”Footnote ¹¹⁹ In a similar observation, this reductivist, restrictivist interpretation of the UN Charter use of force model was invoked in scholarship not long after the US invasion of Afghanistan to denounce that use of force as an act of aggression.Footnote ¹²⁰

More recently, the reductivist, restrictivist approach to defining aggression was invoked by Russian President Vladimir Putin to condemn the missile strikes by the United States, France, and the United Kingdom against targets in Syria. The collaborative series of strikes, which were launched in 2018 in response to the allegation that Syrian forces utilized chemical weapons against the Syrian population, was met with a mix of approval, mild concern, and outright condemnation by world leaders.Footnote ¹²¹ President Putin’s reaction, while condemning the strikes, describes the use of force as an act of aggression. Specifically, Putin asserted in a New York Times opinion piece that, “[u]nder current international law, force is permitted only in self-defense or by the decision of the Security Council. Anything else is unacceptable under the United Nations Charter and would constitute an act of aggression.”Footnote ¹²²

Given the lack of consensus involving an authoritative and specific definition of the term “aggression,” it is difficult to conclude with confidence whether the Entebbe incident, or the US invasion of Afghanistan, or the 2018 missile strike against Syria, or any examples of the seemingly hundreds of similar limited uses of force that have occurred in the era of the UN Charter truly qualify as acts of aggression.Footnote ¹²³ Reasonable and persuasive arguments can be constructed to support either perspective. If these and similar limited uses of force do qualify for characterization as acts of aggression, however, the affirmative conclusion is not supportable by an analysis that reduces the entirety of the UN Charter and at least a century of state practice to three provisions of a multilateral treaty in order to derive the controlling definition for “aggression.”

Whatever aggression does mean, relying on Articles 2(4), 51, and 42 of the UN Charter as a comprehensive proxy for the definition of the concept of aggression is not a plausible exercise considering the persistent lack of consensus involving the term. Considering Russia’s adventurous use of force in Crimea in 2014 and in light of Putin’s choice of a legal standard by which to denounce the 2018 missile strikes against Syria as “an act of aggression,” it would seem that this reductivist, restrictivist approach to defining the term truly has become a “a trap for the innocent and a sign-post for the guilty.” Better clarity and precision are required if a persuasive definition for aggression is to be developed and implemented. The pursuit of such clarity and precision is a central driving force for the Reframer approach and the Purposes and Principles model developed in the present inquiry. With the widespread practice of invoking the prevailing interpretation of the UN Charter use of force construct as a proxy to define the concept of aggression addressed, the present inquiry now turns to consider the application of the suggested approach and model to the matter of the unwilling or unable doctrine before transitioning to address some comparative strengths and limitations of the prevailing approach and that developed herein.

the unwilling or unable doctrine and the use of force against non-state actors

Among the most contentious unsettled issues in contemporary jus ad bellum scholarship and practice are the legitimacy and the acceptable moral and legal boundaries of what has become known as the unwilling or unable doctrine. At issue are the circumstances, if any, under which a state may employ force in the territory of another state to address a security threat that the attacking state perceives to be present in the “host” state, which the host state is unwilling or unable to adequately mitigate. In one sense, there is little new about the debate: the now-famous Caroline incident, which continues to animate contemporary jus ad bellum theory and practice, can be conceptualized as an early (in terms of “modern” international law) dispute involving the unwilling or unable doctrine.Footnote ¹²⁴ In another sense, though, developments in international and transnational law in the wake of the 9/11 attacks have generated new dimensions to this long-running debate.

It is the debate involving the unwilling or unable doctrine, in fact, that initially inspired the endeavour of the present author to examine the prevailing understanding of the contemporary jus ad bellum model with a view towards deconstructing the constituent components to facilitate a fresh understanding of the UN Charter use of force model. It is the arena of the debate involving the unwilling or unable doctrine, along with discussions of the doctrine of humanitarian intervention and of the use of emerging technologies such as cyber and space capabilities in applications short of traditional armed conflict, in which the approach and model established and suggested in the present article may find the most utility. While a comprehensive assessment of the application of the Reframer approach and Purposes and Principles model to the unwilling or unable doctrine is not feasible in the present inquiry, this section provides some preliminary observations on the matter before exploring some comparative strengths and limitations inherent in the reductivist and Reframer approaches.

One initial reflection is that, contrary to a perspective that is prevalent in contemporary scholarship, the unwilling or unable doctrine is not a novel interpretation or reformulation of international law that was developed by the United States to justify the extraterritorial use of force following the 9/11 attacks. One example of this characterization of the long-standing unwilling or unable doctrine was suggested by Craig Martin when he recently asserted that the United States, in response to the security challenges faced after 9/11, “turned to an old doctrine from the pre-UN system of international law, now famously known as the ‘unwilling or unable’ doctrine, to justify [the] use of force against NSAs [non-state actors] operating within nonconsenting states.”Footnote ¹²⁵ According to this revisionist account, the unwilling or unable doctrine “was reformulated to apply to the circumstances of states that are the victims of armed attacks (referred to here as target states) mounted by NSAs from within the territory of some other state (territorial states).”Footnote ¹²⁶ As Martin characterizes the unwilling or unable construct, “[t]he updated doctrine suggested that the target states have the right, under the doctrine of self-defense in the jus ad bellum regime, to use force against the NSAs within that territorial state in response to imminent or actual armed attacks, so long as the territorial state is unwilling or unable to prevent the NSA attacks, and is unwilling to consent to the target state using force to do so itself.”Footnote ¹²⁷

While this description by Martin of the components of the unwilling or unable doctrine is uncontentious, the assertion that the doctrine has been “reformulated” in the wake of 9/11 is rather less tenable. As the above characterization of the notorious Caroline affair demonstrates, Martin’s description of the unwilling or unable doctrine could just as accurately be adopted to describe the factual circumstances of that incident that predates the 9/11 attacks and the ensuing security challenges by over a century and a half. Expanded implementation of the unwilling or unable doctrine by selected affected states may be a distinguishing characteristic of the post-9/11 era, but the doctrine itself as a jus ad bellum construct has a long history in customary international law — a history that both precedes and succeeds adoption of the UN Charter as well as the 9/11 attacks.

If the “imminent or actual attacks” component of Martin’s description of the doctrine is applied to the endeavour to protect citizens of the “target state” being held by non-state actors in the territory of a state that is unwilling or unable to protect the nationals of the target state, for example, Martin’s characterization of the unwilling or unable doctrine could aptly be applied to describe the use of force by Israel in Uganda during the Entebbe incident twenty-five years before 9/11. Twenty years before the 9/11 attacks, Israel defended the then-escalating campaign of the use of force against factions of the Palestinian Liberation Organization located in Lebanon by observing during a UN Security Council meeting, “Members of the Council need scarcely be reminded that under international law, if a State is unwilling or unable to prevent the use of its territory to attack another State, that latter State is entitled to take all necessary measures in its own defense.”Footnote ¹²⁸ In a 1995 letter to the president of the Security Council regarding the extraterritorial use of force against members of the Kurdistan Workers’ Party located in Iraq, Turkey observed: “No country could be expected to stand idle when its own territorial integrity is incessantly threatened by blatant cross-border attacks of a terrorist organization based and operating from a neighbouring country, if that country is unable to put an end to such attacks.”Footnote ¹²⁹

Despite the common refrain that contemporary state practice in relation to the unwilling or unable doctrine represents an unwelcome legal aberration developed by the United States in the post-9/11 era and adopted by a selection of other states to justify the extraterritorial application of force in a manner that, at least according to the restrictivist account, contravenes the UN Charter jus ad bellum model,Footnote ¹³⁰ then, the unwilling or unable doctrine has deep and sprawling roots in the fertile soil of historical and contemporary state practice. A brief selection of specific instances of the use of force that are consistent with the unwilling or unable doctrine that spans nearly two hundred years, for example, is summarized by Ashley Deeks in a 2012 article on the topic.Footnote ¹³¹ Technological advancements, especially the development and proliferation of armed remotely piloted aircraft with global reach, have undoubtedly led to innovations in relation to the manner in which such force is often applied in the post-9/11 era. However, well over two centuries of state practice that predates and succeeds both the adoption of the UN Charter and the 9/11 attacks supports the legitimacy of the unwilling or unable doctrine. As such, attempts to characterize the practice as a recent vintage of international law, and one of a rather disagreeable tannin at that, are, on the whole, untenable.

On a related point, condemnation of the unwilling or unable doctrine by virtue of the invocation of a reductive interpretation of the territorial integrity and political independence aspect of Article 2(4) of the UN Charter is similarly unsustainable. Corten develops a reductivist, restrictivist perspective in opposition to the unwilling and unable doctrine, for example, when he draws exclusively on Article 2(4) to assert that the “drafters” of Article 51 of the UN Charter “never envisaged a situation in which a state A, victim of an armed attack by a non-state actor (or even a state) B, could invoke self-defence to riposte against a state C.”Footnote ¹³² Based on the exploration of the relevant negotiating history of the UN Charter conducted above, it is conceivable that the “drafters” of Article 51 “never envisioned” such a situation. However, the characterization that this constitutes evidence of the illegitimacy of the unwilling or unable doctrine is not sustainable.

A more supportable conclusion is that such a scenario would have been envisioned to remain the province of existing customary international law. State practice that both predates and succeeds the development of the UN Charter supports this characterization. The error in Corten’s description of the scenario is that, to retain his alphabetical formula of describing the relevant actors, state A is not invoking self-defence against non-state actor (or even state) B to riposte against state C. Such a characterization treats the territory of state C as a direct and inseverable proxy for the supreme right of self-determination exercised by the government on behalf of the people of state C. Without such a conceptual equivalence, the territorial border of state C that was infringed by state A is simply a geopolitical marker that delineates boundaries of relative sovereign authority and responsibility. The boundary itself has no intrinsic metaphysical value if it is decoupled from the supreme value of self-determination that is exercised by the people of state C.

Examples of the practical application of this conceptual decoupling abound in relevant state practice dating back at least to the Caroline affair. As Lord Ashburton (Alexander Baring) of Great Britain asserts in a letter to Secretary Daniel Webster during the political discourse that followed the destruction of the Caroline, for example, “above all … no slight of the authority of the United States was ever intended” as a result of the incident.Footnote ¹³³ In the same letter, Ashburton goes on to frame the matter as a rhetorical question posed to Webster by observing, first, that “[t]he intentions of the parties must mainly be looked to” and then asking: “[C]an it for a moment be supposed that Great Britain would intentionally and wantonly provoke a great and powerful neighbour?”Footnote ¹³⁴

While this exchange predates the development of the UN Charter by over a century, the conceptual decoupling of the value of territorial integrity from the self-determination interests of the general population of the state demarcated by the relevant national boundary continues to be a prevalent feature of state practice in the Charter era. Returning to the limited incursions into Iraq in 1998–99, for example, Turkey made clear that “resorting to legitimate measures which are imperative to its own security cannot be regarded as a violation of Iraq’s sovereignty.”Footnote ¹³⁵ Similar expressions were offered by Israel with the assertion that “Israel’s actions are specifically directed against concentrations of PLO-terrorists in Lebanon”Footnote ¹³⁶ and that “Israel has no fight with Lebanon [and] sincerely desires peace with and in Lebanon.”Footnote ¹³⁷ As but one more recent example in the context of the multinational campaign against the Islamic State of Iraq and the Levant (ISIL), Canada expressed in a letter directed to the UN Security Council that “Canada’s military actions against ISIL in Syria are aimed at further degrading ISIL’s ability to carry out attacks” and that the “military actions are not aimed at Syria or the Syrian people.”Footnote ¹³⁸

These and similar examples of state practice related to the unwilling or unable doctrine demonstrate that a use of force directed into the territory of a state should not necessarily be described or considered as an attack directed against the territorial state simply by virtue of the infringement of the national boundary. While members of the UN are obliged to “settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered,”Footnote ¹³⁹ a use of force that is consistent with the unwilling or unable doctrine does not qualify as an international dispute because the conflict does not exist between the attacking and the territorial state. The infringement of the national border of the territorial state by the attacking state does not categorically change this condition. To be sure, such a prospect is not contemplated by the prevailing application of the UN Charter use of force model, which is reduced to consider Article 42 and a narrow interpretation of Article 51 to be the only legitimate exceptions to the “inviolability” of territorial integrity and political independence. Notwithstanding the seemingly scripture-like status of the prevailing interpretation of the UN Charter use of force model, the prevailing understanding is rather untenable in the face of state practice that seems to contradict the interpretation.

This inadequacy is perhaps nowhere more apparent than in practice and discourse involving the application of the unwilling or unable doctrine. A substantial collection of state practice demonstrates that there are circumstances pursuant to which the use of force directed into the territory of a state is not an attack that is directed against that state.Footnote ¹⁴⁰ Returning to Lord Ashburton’s observation in relation to the Caroline affair nigh on two centuries ago, the “intentions of the parties must mainly be looked to” in order to discern whether an attack is directed “against” the territorial state or some other compelling interest that happens to be located within the territorial boundaries of the state.Footnote ¹⁴¹

Although this assertion predates the development of the UN Charter by over a century, state practice in the Charter era continues to support this characterization. One of the guiding principles of the Reframer approach and the Purposes and Principles model developed and described herein is to identify the contours of this international legal landscape in a manner that allows for better fidelity and precision than does the prevailing interpretation of the contemporary jus ad bellum model. Defining the scope of the unwilling or unable doctrine constitutes an area of specific emphasis in the development and application of the approach and model suggested in this article. With discourse and practice involving aggression and the unwilling or unable doctrine thus briefly examined, the present inquiry turns now to engage in a comparison of some strengths and limitations inherent in the prevailing jus ad bellum approach and the approach and model being developed and suggested herein.

invasion of kuwait by iraq as a paradigmatic example of the efficient operation of the prevailing interpretation

The efficiency of the prevailing interpretation of the contemporary use of force model was impeccably demonstrated in the UN Security Council’s response to the invasion of Kuwait by Iraq in 1990. In this scenario, there was no indication that the government of Kuwait posed a grave threat to the people of Kuwait. Likewise, there was no indication that Kuwait was unable to effectively govern the entirety of the territory within its recognized national boundaries or that a legitimate threat of the use of armed force against Iraq was emanating from Kuwait.

Nonetheless, Iraq conducted a full-scale military invasion of Kuwait that formally began on 2 August 1990. On the same day, the UN Security Council unanimously adopted a resolution condemning the invasion.Footnote ¹⁴² Just four days later, the Security Council again adopted a resolution implementing specified measures to support the determination expressed to “bring the invasion and occupation of Kuwait by Iraq to an end and to restore the sovereignty, independence and territorial integrity of Kuwait,” while affirming “the inherent right of individual or collective self-defence, in response to the armed attack by Iraq against Kuwait, in accordance with Article 51 of the Charter.”Footnote ¹⁴³ Among the indications that the infringement of territorial sovereignty and encroachment on political independence involved in the invasion were an affront to the supreme right of self-determination was the “grave concern” expressed by the Security Council regarding the “ongoing attempt by Iraq to alter the demographic composition of Kuwait and to destroy the civil records maintained by the legitimate Government of Kuwait.”Footnote ¹⁴⁴

Although governments could have employed armed force at the request of Kuwait pursuant to Article 51 of the UN Charter in response to the armed attack by Iraq, the Security Council remained seized of the matter and eventually authorized member states to utilize “all necessary means” to “restore international peace and security in the area.”Footnote ¹⁴⁵ Four months after authorizing “all necessary means,” the Security Council adopted a resolution welcoming “the restoration to Kuwait of its sovereignty, independence and territorial integrity and the return of its legitimate Government.”Footnote ¹⁴⁶ All three conceptual assumptions upon which the conventional use of force construct reflected in the UN Charter operated as intended, and the Security Council fulfilled the role it was created to perform.

With this paradigmatic example in focus, a brief comparison of examples of extraterritorial uses of force is in order to allow an assessment of some limitations that are inherent in the prevailing interpretation. Is there a difference, for example, between the invasion of Kuwait by Iraq and the NATO military intervention in Kosovo in 1999? Is Iraq’s invasion of Kuwait any different than the counter-ISIL armed intervention by several states that occurred in Syria before the ambiguous endorsement (but not explicit authorization) of the Security Council in November 2015?Footnote ¹⁴⁷ Is there a difference between Iraq’s invasion and the missile strikes in 2018 by France, the United Kingdom, and the United States, which were reportedly against targets associated with the Syrian chemical weapon program in response to allegations that the government attacked the Syrian population with chemical weapons?Footnote ¹⁴⁸ Is the attack by the US government on US citizen Anwar al-Awlaki in Yemen in 2011 different from the attack on General Soleimani in Iraq in early 2020? Is there a difference between these strikes and the invasion of Kuwait by Iraq?

According to the prevailing interpretation of the jus ad bellum provisions reflected in the UN Charter, there is no difference in any of the armed attacks noted above. They are all, according to the prevailing approach, equally illegal. That may be so. It is perhaps possible that every one of these specific examples and the seemingly hundreds of similar extraterritorial armed attacks conducted in the UN era without Chapter VII authorization and not in compliance with the “narrow” self-defence exception are “illegal,” but they are not the same.

Of these and similar incidents, only the invasion of Kuwait by Iraq in 1990 reflects the historical development and conceptual assumptions upon which the UN Charter is founded. The infringement of territorial integrity and encroachment on political independence constituted a manifest threat to the supreme value of self-determination exercised by the people of Kuwait. That this type of invasion is incredibly rare in the UN era and that a “successful” response by the Security Council is possible in such a scenario is a testament to the effectiveness of the Charter and of the current state of international law. However, the UN Charter is not a comprehensive jus ad bellum construct that addresses with efficiency every possible scenario involving the extraterritorial use of force. It is designed to provide an international framework that protects and promotes the supreme value of self-determination for “we the peoples of the United Nations,” to borrow from the opening line of the Charter. The exalted values of territorial integrity and political independence are elevated to super status along with the supreme value of self-determination, but only because these exalted values are presumed to protect and promote the supreme value.

The current prevailing application of the UN Charter jus ad bellum construct does not permit a nuanced assessment of what the effect may be if the conceptual assumptions upon which the Charter is founded are not valid in a given actual or proposed example of extraterritorial use of force. No allowance is made for the possibility that the supreme value of self-determination may be dissociated from the exalted values of territorial integrity and political independence in certain circumstances. Certainly from the prevailing restrictivist perspective, nearly all examples of the use of force look the same, and they are nearly all illegal.

The application of the prevailing interpretation allows for a checklist-ready method by which to assess the lawfulness of a proposed or actual use of force. The evaluation, according to the checklist, progresses in a manner as follows: was there a threat or use of force that infringed upon the territorial integrity or political independence of a state, values that are made sacrosanct by Article 2(4) of the Charter? If yes, did the Security Council authorize the threat or use of force pursuant to Article 42? If it did not, was the threat or use of force in response to an actual armed attack or (perhaps) a threat thereof such that the inherent right of self-defence was activated pursuant to Article 51? If not, the threat or use of force in question was illegal. Simple — perhaps unproductively so. With such a simple and restrictive checklist, it is little wonder that nearly all uses of force by a state outside its own borders are described as “illegal.”

Although this approach may be normatively laudable, it does not reflect reality. In order to develop a more accurate model, a holistic approach to the UN Charter must be adopted. The Reframer approach described herein constitutes, by design, a description rather than a doctrine. While the prevailing model shines in simplicity, it is neglectful of nuance. The approach and model developed in this article represent the reverse — they eschew simplicity in favour of nuance. The approach begins with the text of the UN Charter, but it does not end there. It allows the Charter to be applied in the manner in which it was and remains intended to function, while looking to custom to expand upon the details described in the text of the treaty. If the intent of the delegates that negotiated the text of the Charter and the intent of the states that ratified the treaty on behalf of the respective governed truly was to derive an incredibly simple use of force formula such as the one that has become prevalent since the treaty was agreed upon and to thereby displace all custom that exists beyond the four corners of the treaty in 1945 and forever thereafter, the present inquiry would be misguided. This was not the intent, however, and the prevailing use of force model is not faithful to that intent.

The Reframer approach and the Purposes and Principles model developed herein are, by design, less rigid and more nuanced than the prevailing approach — just like state practice and transnational circumstances that have developed since the text of the Charter was negotiated in 1945. As described near the beginning of the article, the intent of the present inquiry is to establish a string outline for the foundation and edifice that will be constructed through future endeavours on the topic. A comprehensive assessment of seventy-five years of state practice and scholarship in the UN Charter era, and the same related to the two centuries or more that preceded the Charter, is not possible in the present format. In the next section, I examine some limitations inherent in the approach and model developed herein that future endeavours will be able to address.

addressing some limitations inherent in the present account of the reframer approach and purposes and principles model

One of the most significant gaps in both the approach and model that are presented in this article that must be addressed in future endeavours is the shift away from the concept of sovereignty, which characterizes the prevailing approach, towards the supreme value of self-determination, which represents the focal point of the Purposes and Principles model established herein. If the present inquiry establishes the string outline for the foundation that will follow, a more comprehensive treatment of the supreme value of self-determination constitutes the actual foundation upon which the edifice of the model can be constructed. To continue the running analogy to the masonry profession, pouring, levelling, and finishing this foundation will be no small feat.

One of the principal limitations inherent in the Reframer approach and Purposes and Principles model initially developed herein is that both are centred on the principle of self-determination, which itself is a term that is often disfavoured in contemporary discourse. To return to Jens Ohlin’s rhetorical question regarding why “international lawyers [have] failed to appreciate the significance of self-determination” and instead tend to “disfavor references to” the concept, one of the four main factors that accounts for this phenomenon, according to Ohlin, is that “self-determination is falsely assumed to be limited to the process of decolonization.”Footnote ¹⁴⁹ While the value of self-determination provided the conceptual foundation for the slow but steady process of decolonization in the aftermath of the Second World War, this is by no means the sole context in which the concept of self-determination plays a central role.

In connection with the steady emergence of the supreme value of self-determination over the last three centuries or so of human social and political development, the UN Charter and other central conventional sources of international law that have been developed in the post-Second World War era represent a new chapter. This new chapter is characterized by an increasing willingness to curb the concept of absolute governmental sovereignty in favour of protecting values that are considered to be fundamental human rights. In short, the post-Second World War era of international human rights has fundamentally altered the Lotus-style conception of absolute state sovereignty that preceded the Second World War.Footnote ¹⁵⁰

The subtle, yet monumental, evolution in characterizing and engaging with the fundamental concept of sovereignty is attributable to the emergence and proliferation of international human rights law, which itself can be traced to the UN Charter and the Universal Declaration of Human Rights, a contemporary of the Charter. What was once merely implied by articulations of the right of a sovereign to remain free from external interference in the pursuit of the supreme value of self-determination on behalf of the governed is now, in the era of the UN Charter and international human rights law, also finding expression as an obligation of the state to carry out sovereign functions on behalf of, and in the interests of, the population governed thereby. Seen in this light, the central fundamental components of sovereignty — territorial integrity and political independence — derive importance from their role in protecting the supreme value of self-determination from external interference (territorial integrity) and in faithfully implementing the supreme value on behalf of the governed (political independence).

While the Reframer approach and the Purposes and Principles model suggested herein will require additional work to more fully develop the contours of each, the suggested approach and model are designed to address the need for a more holistic use of force framework than is allowed by operation of the prevailing interpretation. The concept of self-determination, of course, already forms a central aspect of theoretical discourse involving the use of force. As Michael Walzer famously observed when describing the crime of aggression, for example, the “wrong the aggressor commits is to force men and women to risk their lives for the sake of their rights [and] to confront them with the choice: your rights or (some of) your lives!”Footnote ¹⁵¹ In this context, it is the affront to the victims’ right to peaceable self-determination that constitutes the conceptual international wrong. As such, according to Walzer, “[a]ggression is the name we give to the crime of war.”Footnote ¹⁵²

In this influential conceptual discourse, Walzer hints at the practical limitations of the prevailing interpretation of the contemporary use of force construct. After pointing out a perceived “strange poverty in the language of international law,” Walzer queries why it is that “[e]very violation of the territorial integrity or political sovereignty of an independent state is called aggression.”Footnote ¹⁵³ The prevailing “refusal of differentiation,” according to Walzer, “makes it difficult to mark off the relative seriousness of aggressive acts.”Footnote ¹⁵⁴ The “strange poverty in the language of international law” that frustrates efforts to “mark off the relative seriousness of aggressive acts” can be attributed to the prevailing devotion to an inherently reductive interpretation and application of the contemporary use of force construct.

Future endeavours to further expand upon the approach and model suggested and developed herein will necessarily seek to situate the nascent positivist construct within the existing rich conceptual discourse involving the relationship between self-determination and the use of force. Centring a positivist use of force construct on the presently nebulous concept of self-determination will undoubtedly erode the appearance of simplicity that makes the prevailing approach particularly appealing, but challenging the existing use of force orthodoxy may well help assuage the current difficulty of demarcating “the relative seriousness of aggressive acts.” Although the prevailing propensity is to articulate and implement an inherently reductivist interpretation of the contemporary UN Charter use of force model in order to, at least nominally, limit as much as possible the range of permissible uses of force, this inclination is not without considerable risk. That risk, to which the present inquiry now turns to consider, is that contemporary international law involving the use of force, including the UN Charter itself, may be rendered obsolete if a more nuanced and adaptive model than the prevailing interpretation is not developed and implemented.

the risk of obsolescence in relation to contemporary international law involving the use of force

For the final substantive section of the present inquiry, it is fitting to draw on the title of the article since the sentiment that sparked the initial inspiration for the current endeavour is reflected therein. The manifold inadequacies of the prevailing reductivist approach to the UN Charter use of force model present a risk that the existing use of force construct will be rendered obsolete when applied to the contemporary landscape of international relations and transnational law. Because the prevailing reductivist approach has been presented to the community of states as the sole legitimate interpretation of the contemporary use of force model and because the use of force construct constitutes a central component of the UN Charter, the risk that the prevailing interpretation may be rendered obsolete carries with it the attendant risk that the Charter itself may be rendered so by extension. Likewise, endeavours to develop productive solutions to challenges such as the development of the doctrine of humanitarian intervention, the application of international law to the context of emerging technologies such as cyber and space capabilities, the international response to transnational terrorism, and the characterization of clandestine interference by states with the internal domestic political affairs of other states, among a host of other contemporary challenges, are afflicted by the inadequacies of the prevailing interpretation of the contemporary use of force model.

In a related observation, there is a growing divergence between the use of force model that is presented to states as the sole legitimate interpretation of the model and the realities of the contemporary geopolitical world in which states must operate. Mary Ellen O’Connell is undoubtedly correct when she observes: “Judging by actual practice … scholarship respecting the current law [involving the use of force] is shaping government thinking.”Footnote ¹⁵⁵ The trouble is that the interpretations being developed in subsidiary sources such as opinions of international tribunals, particularly the ICJ, and the pages of scholarly tomes and law journals often bear little resemblance to the contemporary geopolitical landscape in which representative governments actually operate in reality. This disconnect between the world that has been created in scholarship and the world as it truly exists diminishes the effectiveness of subsidiary sources in articulating and shaping formulations that can actually be applied as a function of state practice.

The central motivating factor for the perspectives that have become predominant in contemporary scholarship are noble and quite understandable. In suggesting a new approach, I should be clear that I do not propose a “radical rewrite” (to borrow from one characterization of the Bethlehem Principles) of contemporary international law.Footnote ¹⁵⁶ The current proposals are, in fact, not truly a “rewrite” at all. Rather than presenting a novel construct in the character of lex ferenda, the intent is to develop a more faithful interpretation of existing lex lata. My assertion is that the approach and model suggested and being developed in this article constitute a more accurate, though nascent, articulation of the actual state of contemporary international and transnational law involving the use of force than does the prevailing interpretation that has slowly emerged and crystalized over the past seven decades or so.

In the field of the law involving armed conflict alone, recent defections from the Rome Statute,Footnote ¹⁵⁷ Russia’s withdrawal of the declaration to Additional Protocol I to the 1949 Geneva Conventions accepting ipso facto competence of the International Humanitarian Fact-Finding Commission,Footnote ¹⁵⁸ and the collapse of the bilateral Intermediate-Range Nuclear Forces Treaty Footnote ¹⁵⁹ serve as reminders that states make and remain committed to international agreements only to the extent that such agreements are deemed to be in the best interests of the peoples governed thereby. Lest we take the continued existence and relevance of the venerable UN Charter for granted, the dissolution of its predecessor Covenant and the failure of the League of Nations to preclude the calamitous Second World War should remain in our collective consciousness as a cautionary tale. The UN Charter was developed with the lessons of the failures of its predecessor and with the scourge of two world wars fresh in mind, but the sense of unity in international relations that inspired the ambitious Charter then has been battered and tattered — though not entirely vanquished — in the intervening seventy-five years.

The UN Charter emerged from the ashes of the Second World War as an expression of a commitment to learn from past failings and to do two things exceedingly well. One main ambition is to provide a robust and effective forum for states to resolve disputes and vindicate rights without resorting to war as was the prevalent practice, at least among European states and their competitors, until the early twentieth century. A second central ambition for the Charter was to prevent actual wars of aggression and to provide for a robust international framework to respond to aggression if it truly were committed. Both of these endeavours can be characterized as endeavours to preserve and protect the supreme value of self-determination within individual states and among the global community as a whole, as rampant warfare and breaches of international peace and security threaten the pursuit and realization of self-determination by individual states and the community of states as a collective.

Whatever “aggression” truly means, it certainly is not so inextricably tied to the values of territorial integrity and political independence that every infringement of these values that does not comply with an exceptionally constraining interpretation of the inherent right of self-defence or is not authorized by the UN Security Council qualifies for characterization as an act of aggression. To draw from a description of aggression that was suggested during the work of the International Military Tribunals that followed the Second World War, “[t]o initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”Footnote ¹⁶⁰ Assessing the framework that was developed in the UN Charter through this lens, it is not an infringement of a territorial boundary that contains “the accumulated evil” of all other “war crimes” and thus qualifies as the “supreme international crime.” Seen in this light, it is the infringement upon the right of self-determination of the peoples governed by the sovereign within the relevant territorial bounds that truly constitutes the supreme international crime.

In current scholarship and practice, which elevates the values of territorial integrity and political independence to equivalence with the supreme value of self-determination without contemplating circumstances under which the equivalence is not warranted, the nuance that is necessary is being stunted by an overly broad characterization that nearly all uses of force are “illegal” because they do not comply with the prevailing reductivist interpretation of the model of the UN Charter. Given that state practice is a primary component of customary law, the repeated characterization as “illegal” of nearly all uses of force for failure to comply with the prevailing interpretation of the contemporary use of force model, at some point, must call into question the continued credibility of that interpretation.

As but one practical example of this phenomenon, consider the twin assertions by Marko Milanovic in relation to the attacks against Syria in 2017 and 2018, following allegations that the Syrian government utilized chemical weapons against the Syrian population during the ongoing armed conflict there. In applying the prevailing interpretation of the UN Charter use of force model, Milanovic observes that the unilateral attack by the United States in 2017 was “the first time that the US has directly used force against the Syrian regime” and that it was “also the first time that its use of force in Syria is clearly illegal.”Footnote ¹⁶¹ Almost exactly one year later, following a similar attack for similar reasons that was mounted collaboratively by the United Kingdom, France, and the United States, the verdict, while applying the same prevailing interpretation of the contemporary use of force model, was the same: the attack in 2018 was “still clearly illegal.”Footnote ¹⁶²

Milanovic was correct to observe in the comments section of the 2018 post that there currently “is no coherent positivist theory of international law under which [such an attack] could be lawful.”Footnote ¹⁶³ This is undoubtedly so, but it should be considered more as an indictment of the prevailing scholarship related to the use of force than as a condemnation of the attacks in question as clearly illegal. These specimens of state practice join the NATO-Kosovo intervention as examples of uses of force that conform to the humanitarian intervention doctrine, notwithstanding the tortuous insistences by the United States that the interventions do not support the legitimacy of the doctrine.Footnote ¹⁶⁴

In that these three examples of humanitarian intervention do not comply with the prevailing reductivist interpretation of the UN Charter use of force model and are therefore ostensibly illegal per se, they join examples of state practice such as the first known airstrike by the Biden administration against non-state fighters in Syria in February 2021, the counter-ISIL campaign in Syria (before the UN Security Council resolutionFootnote ¹⁶⁵ ambiguously endorsing, but not quite authorizing, such an intervention), the Soleimani strike, the raid that killed Osama bin Laden in Pakistan, the attack against al-Awlaki in Yemen, the initial invasion of Afghanistan by the United States in 2001, the incursion by Turkey into Iraq in 1998–99, the incursion by Turkey into Syria in 2019 (and the preceding similar incursions), the 2009 Stuxnet cyber attack, the occasional strikes attributed to Israel against Hezbollah targets in Lebanon, the 1976 Entebbe incident, and so on, as “clearly illegal” by virtue of failing to comply with the prevailing interpretation of the contemporary use of force model.

That there is currently not a positivist theory that can account for such extensive state practice is the result of a persistent insistence on adhering to an inherently reductivist interpretation of the contemporary use of force model. As but one explicit example of this perspective in existing literature, Mary Ellen O’Connell, while condemning the 2012 Bethlehem Principles, draws from an observation from the 1991 commentary related to the Reagan doctrine of foreign policy asserting that in “our decentralized international political system, … it is important that Charter norms — which go to the heart of international order and implicate war and peace in the nuclear age — be clear, sharp, and comprehensive [and] as independent as possible of judgments of degree and of issues of fact.”Footnote ¹⁶⁶ As O’Connell asserts in adopting this perspective, these observations from nearly three decades ago “apply equally to the Bethlehem proposals” which suggest a less restrictivist application of the UN Charter use of force model today.Footnote ¹⁶⁷

There can be no doubt that the prevailing interpretation of the use of force model that has emerged over the last seven decades or so is “clear” and “sharp,” but the reductivist nature of the prevailing interpretation makes this model anything but “comprehensive.” There also can be no doubt that there is some fundamental difference between, to borrow but three examples, the Soleimani attack, the al-Awlaki airstrike, and the collaborative “humanitarian intervention” strike against Syria in 2018. The productive conversations that need to take place to explore the differences in a meaningful way are being stifled in favour of an interpretation of the contemporary use of force model that is clear and sharp. However, this clear, sharp interpretation is neither consistent with prevailing state practice nor adequate to effectively assess and evaluate seemingly contrary state practice.

The world in which agents of states operate requires “independent … judgments of degree and of issues of fact” when deciding whether to use force in a particular instance and when balancing the interests potentially affected. If existing international law involving the use of force cannot adapt to contemporary geopolitical realities, there is a risk that the law will be rendered obsolete and discarded in favour of a framework that is capable of being applied more realistically in practice. As an alternative to this risk, perhaps it is the case that existing law is adequate, even if the prevailing interpretation of that law is not. In rendering the prevailing use of force interpretation obsolete, it is possible that the contemporary jus ad bellum model and its textual foundation — the UN Charter — can continue to be effective, credible, and relevant for another seventy-five years or more. There is significant normative value to be found in this prospect, even if the prevailing interpretation of the contemporary use of force model must be rendered obsolete to achieve this preferable outcome.