Colby K. Clark. Essay 1. Winship.

20 January 2009

THE “GRAY” AREA OF INTERPRETATION AND APPLICATION OF THE USE OF

FORCE IN THE UN CHARTER

In her essay, “The Use of Force and the International Legal Order,” Professor Christine
Gray offers a penetrating overview of the complexities and difficulties that are inherent in
the interpretation and application of the rules on the use of force in the UN Charter. She
explicates how international law has evolved under the influence of both state practice
and opinio juris to confront the problems of balancing the interpretation of Article 2(4)
with the other stated purposes and goals of the UN Charter. While at times her essay is
antiquated, and might be revised in some parts in light of current developments, her essay
provides the reader with what I would consider a balanced insight into the problems
surrounding the debate on use of force in international law. In my essay I will briefly
explore her discussion on the evolving doctrine of humanitarian intervention in
customary international law.
Humanitarian intervention has been defined as, “The threat or use of force across state
borders by a state aimed at preventing or ending widespread and grave violations of the
fundamental human rights of individuals other than its own citizens, without the
permission of the state within whose territory force is applied (Keohane p. 16).” The
emerging doctrine of humanitarian intervention juxtaposes our ideas of national
sovereignty and nonintervention with a growing collective awareness of human rights,
responsibility, and solidarity. Professor Gray provides as a historical backdrop the
NATO action over Kosovo in 1999. Her analysis underscores one of the problems of
humanitarian intervention, the dubious influence of national interests and political
sympathy of Member States who defend the use of force in humanitarian terms (p. 596).
As she does throughout her essay, Professor Gray analyzes the arguments behind the
justification for the use of force proffered by those who support intervention with those
whose sovereignty is being encroached while offering a contextual analysis of the
opposing sides of a strict and a wider interpretation of the UN Charter. While
humanitarian intervention in international law is still a hotly contested debate and the
scope of the doctrine is unclear at best, I feel that what we learn from Professor Gray’s
analysis is the dire need for a contextual and pragmatic approach to interpreting the
specific facts of a conflict when trying to balance a state’s right of sovereignty with a
collective international concern for humanitarian crisis.
Professor Gray also discusses the problem of hindsight in the justification of use of force
under humanitarian intervention. In writing about Kosovo she states, “There is an
attempt to re-write history in order to justify the action in Kosovo (p. 595).” This “re-
writing of history” has led some international legal scholars to argue that the death knell
of humanitarian intervention was the United States action in Iraq. If Professor Gray’s
essay had been written or revised after 2006 she might have supplemented her discussion
with the development of this convolution of self-defense justification and humanitarian
arguments for intervention. While she writes, “It is noteworthy that it (humanitarian
intervention) was not used to justify the use of force…against Iraq in Operation Iraqi
Freedom…(pg. 597),” one should note that while it wasn’t a justification for the war, the
 Colby K. Clark. Essay 1. Winship. 20 January 2009

use of humanitarian intervention has been used to continue support for the war after there
were no weapons of mass destruction found in Iraq.
There are significant problems with the use of force based on humanitarian justifications.
These include national interests, exit strategy, unilateral versus multilateral intervention,
and politics in the UN Security council. One of the biggest problems that needs to be
addressed is how does the international community enforce action through humanitarian
intervention when there is a real humanitarian catastrophe, such as a Holocaust, genocide
or “crimes against humanity” as the UN has described the conflict in Darfur? Professor
Gray discusses the increasing international interest in the development of a framework
for humanitarian intervention and the increasing sense of duty to intervene in crises
involving catastrophic human rights abuse (pg. 596). Attempts to construct universalist
creeds and doctrines are always difficult and run the inherent risk of exclusion and
dissimilation. Its approach must be contextual, nuanced and open-minded.
While there is still no consensus on what a feasible framework should look like, it is
paramount that such a framework balance the dignity of a state’s right to nonintervention
from foreign state and non-state actors while supporting and enforcing an indispensable
and principle aim of the UN Charter, “universal respect for, and observance of, human
rights and fundamental freedoms for all without distinction as to race, sex, language, or
religion (art. 55(c)).” Professor Gray’s article also discusses some other recourses to a
unilateral use of force when confronted with human rights challenges, including those
outlined in Article 39 and 41 of the UN Charter, the ICJ’s interpretation and enforcement,
General Assembly Resolutions, and the Charter’s provision of “regional arrangements or
agencies” in Chapter VIII of the Charter (pg. 614).
The article provides insightful analysis of many of the complexities behind the
interpretation and application of the use of force rules in the UN Charter. Her essay is
helpful in understanding the disagreements and divisions between States on the
ambiguities of Article 2(4) and particularly useful in understanding some of the
fundamental issues at work in the evolving doctrine of humanitarian intervention.
(900 words)