Explain the historical underpinnings behind Articles 2 (4) and 51 of the UN charter.

Are they
different sides of the same coin in the conduct of international relations?

Introduction: The Historical Underpinnings Behind Articles 2(4) and 51 of the UN Charter

The fundamental clauses governing the use of force in international relations are contained in
Articles 2(4) and 51 of the United Nations (UN) Charter. Adopted in 1945, these articles
represent the rights to self-defense and the prohibition of force, respectively. One must
investigate the historical background, the development of international standards on the use of
force, and the practical interactions between the two articles in order to completely appreciate the
relevance of these provisions. State practice and seminal court judgments influence the
discussion on whether these rules reflect two sides of the same coin in the conduct of
international affairs1.

Historical Background of Article 2(4)

Article 2(4) forbids the use or threat of force against a state's political independence or territorial
integrity, as well as any action that would be contrary to the UN Charter's goals 2. This clause was
a reaction to the catastrophic destruction brought about by unrestrained military aggression
during the two world wars, especially World War II. The United Nations Charter's authors aimed
to establish a framework that would protect world peace and security by forbidding the use of
force by one party without a stated and limited purpose3.

In the past, the Peace of Westphalia, which created the current structure of independent nations
in 1648, is credited with helping to evolve the ban of force. Although wars were still regarded as
acceptable diplomatic instruments during the 19th century, attempts to control armed conflict
started to take shape with the adoption of the Hague Conventions in 1899 and 1907 4. Despite
lacking any methods of enforcement, the Kellogg-Briand Pact of 1928 represented a significant
turning point in international conflict resolution as it forbade the use of force. The League of

1 Orakhelashvili, A. Akehurst’s Modern Introduction to International Law (9th. Edn.2019)

2 The United Nations Charter [1945]. Article 2(4).
3 Orakhelashvili, A. Akehurst’s Modern Introduction to International Law (9th. Edn.2019)
4 Ibid
Nations' failure, mostly as a result of its incapacity to stop aggression, highlighted the necessity
for a stronger legal system5.

The intention to create a complete ban on the use of force that makes a distinction between
legitimate and illegal uses of force was reflected in the formulation of Article 2(4). The UN
Security Council was supposed to be the principal judge of when force may be used legitimately,
as part of the framers' intention to centralize the ability to maintain peace 6.

Diverse interpretations exist on the extent and constraints of Article 51. A key component of
practicing self-defense is determining the "armed attack" threshold. Numerous court rulings have
expounded on this, including the 1986 International Court of Justice (ICJ) judgment in the
Military and Paramilitary Activities in and against Nicaragua case, which established that not all
uses of force qualify as "armed attacks" that warrant self-defense 7. Similarly, the International
Court of Justice (ICJ) upheld the necessity and proportionality requirements for the legitimate
use of self-defense in the Oil Platforms decision8.

The Caroline Case and Customary Self-Defense

The Caroline case is one of the first examples of self-defense under international law (1837). In
this instance, American ship Caroline was destroyed by British soldiers in retaliation for
Canadian rebels using it. U.S. Secretary of State Daniel Webster outlined the requirements for
necessity and proportionality in self-defense, stressing that using force must be decisive and
swift, providing no time for consideration or choice of tactics 9. The Caroline formula has
emerged as a crucial yardstick for determining whether self-defense is legal.

5 Ibid
6 Crawford, J. (2019). Brownlie's Principles of Public International Law (9th ed.). Oxford University
Press.
7 International Court of Justice. (1986). Military and Paramilitary Activities in and against Nicaragua.
ICJ Reports, p. 14.
8 International Court of Justice. (2003). Oil Platforms (Islamic Republic of Iran v United States of
America). ICJ Reports, p. 161.
9 Moore, J. B. (1837). The Caroline Case. 2 Moore Digest, p. 412.
Corfu Channel Case and the Prohibition on Force

The 1949 Corfu Channel case brought state sovereignty and non-intervention to light. In this
case, the United Kingdom was deemed to have infringed Albania's sovereignty by employing
force without agreement to remove mines in the Corfu Channel. The International Court of
Justice declared that the United Kingdom's conduct was not compliant with international law,
stressing that using force without a valid reason—such as an armed attack or Security Council
authorization—was illegal10. The wide application of Article 2(4)—which forbids both smaller-
scale and larger-scale armed invasions—was upheld in this case.

Two Sides of the Same Coin?

Since Articles 2(4) and 51 together govern the circumstances in which force may be employed in
international affairs, they are sometimes seen as two sides of the same coin. The only exception
to the general ban on using force is provided by Article 51, which only permits it when necessary
to defend oneself against an armed attack. Article 51 protects state sovereignty in this way by
making sure that nations don't become helpless while they wait for the UN Security Council to
take action as a whole11.

But there is conflict in their connection. There have been contentious applications of the right to
self-defense, especially when it comes to preemptive and preventive strikes. For instance, the
United States defended some of its 2003 activities against Iraq with the claim of preemptive self-
defense, even though this reading of Article 51 was not widely agreed upon 12. As reiterated in
Nicaragua (ICJ, 1986) and Oil Platforms (ICJ, 2003), the ICJ has made clear in a number of
judgments that self-defense must satisfy the requirements of necessity and proportionality and
that it must react to an actual armed assault, not just the prospect of one.

Armed Activities on the Territory of the Congo

In the 2003 case of Armed Activities on the Territory of the Congo, the International Court of
Justice ruled that Uganda had infringed upon the Democratic Republic of Congo's sovereignty by

10 International Court of Justice. (1949). Corfu Channel case. ICJ Reports, p. 4.

11 Crawford, J. (2019). Brownlie's Principles of Public International Law (9th ed.). Oxford University
Press.
12 Ibid
conducting military operations without an armed attack taking place in Uganda. The Court
reiterated that an armed attack must occur in order for the use of force under the pretext of self-
defense to be lawful13. This case served as more evidence of Article 51's limited application and
the need of upholding the necessity and proportionality criteria.

Conclusion

The UN Charter's Articles 2(4) and 51 strike a precarious balance between the right to self-
defense and the ban on using force. Article 51 acknowledges a state's inalienable right to self-
defense in the event of an attack, whereas Article 2(4) prohibits the use of force in an effort to
preserve world peace. State practice and judicial rulings that have attempted to define the
parameters of legitimate self-defense have influenced how these rules interact. Despite being two
sides of the same coin when it comes to controlling the use of force, these provisions'
interpretations and applications are always evolving in response to shifting security dynamics.

13 International Court of Justice. (2003). Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v Uganda). ICJ Reports, p. 168.