Questioning the peremptory status of the prohibition of the use of force

Abstract

It is incontrovertible that the prohibition of the unilateral use of force is a fundamental aspect of the United Nations (U.N.) era system for governing the relations between states. Given this fact, the prohibition, as set out most crucially in Article 2(4) of the U.N. Charter, is often seen as the archetypal example of a jus cogens norm (a "peremptory norm" of general international law). Certainly, an overwhelming majority of scholars view the prohibition as having a peremptory character. Similarly, the International Law Commission (ILC) has taken this view and it is arguable that the International Court of Justice (ICJ) has also done so. Indeed, one judge of the ICJ stated in an individual opinion that "[t]he prohibition of the use of force.... is universally recognized as a jus cogens principle, a peremptory norm from which no derogation is permitted." This Article questions this widely held view: Is the prohibition of the use of force in fact ajus cogens norm?

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