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

Abstract

The practice of the states has so severely shattered the mutual confidence which would have been the sine qua non of an operative rule of law embodying the precepts of Article 2(4) that, as with Ozymandias, only the words remain. Perhaps the nations, given the changed realities of the postwar quarter-century, could not realistically have been expected to live with Article 2(4). In the absence of some universally credible fact-determination procedures, the effort to establish whether a use of force is illegal under Article 2(4) or legal under Article 51 is stymied by contradictory allegations of fact by the parties to the dispute and their allies. Articles 2(4) and 51 together seem to require a state to await an actual nuclear strike against its territory before taking forceful counter-measures. The most significant factor in complicating the "simple" right of self-defense accorded by Article 51 has been the changing nature of warfare itself.

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