Posted by Joseph Klingler – November 11, 2013 @ 01:13.
Responding to the August 21, 2013, use of chemical weapons in Syria—what the United Nations Secretary-General stated clearly amounted to a war crime—the United States came to the brink of violating a norm no less sacrosanct than that embodied in the Chemical Weapons Convention itself: the prohibition on the use of force.
As U.S. forces prepared to strike, UN Secretary-General Ban Ki-Moon added his voice to those insisting that the use of force is prohibited absent Security Council approval or a valid exercise of the right to self-defense. The eventual U.S. about-face on military intervention was undoubtedly grounded more in politics than law. Nonetheless, the administration’s restraint helped insulate the norm of non-use of force from those who might have pointed to a military intervention in Syria as further support for the argument that article 2(4) is dead.
Article 2(4) is not dead, and such claims would have remained premature even had the U.S. moved forward with illegal military strikes. But the focus on the use of force can obscure a larger point: that article 2(4) prohibits the threat of force no less than its use. How, it is reasonable to ask, should one reconcile this fact with Secretary of State Kerry’s own open and continued insistence that the “threat of force remains”? Applying the doctrine of desuetude, one could argue that developing custom has eclipsed the Charter’s prohibition of threats, leaving intact only its prohibition of actual uses of force. A better conclusion may be that while the prohibition remains intact, in many cases the political costs of violating it are low enough to be outweighed or overlooked by decisionmakers. In either case, the message to unilateralists may well be that states can often get away with threatening force all they want—so long as they don’t use it.