CRANFIELD UNIVERSITY DAREN BOWYER JUST WAR DOCTRINE

Notwithstanding the significant steps represented by the Covenant of the League and
the Kellogg-Briand Pact, they fell short of firmly establishing a legal paradigm for use
of force. For a start, though the Covenant used the language of collective security, it
established no mechanism through which that was to be effected, nor did it offer
anything by way of enforcement. Although it required the referral of disputes to
arbitration, it appears in the final analysis to have left competence de guerre in the
hands of states. Moreover, it made specific reference only to ‘war’, thus being open to
the interpretation that lesser acts of use of force remained permissible. Similarly, the
Kellogg-Briand Pact offered nothing by way of collective defence or sanction against
breaches, and it too, Article II notwithstanding, has been taken generally to renounce
‘war’, specifically, rather than all forms of armed action 13 . So although the League
Covenant and the Kellogg-Briand Pact offered firm principles for the foundation of the
legal paradigm, they provided no mechanisms through which it could be made effective.
As was shown in the last Chapter, the UN Charter attempts to address the failings of its
precursors and to finally and definitively establish a legal paradigm for use of force.
Firstly, its scope is broader – it is the ‘use of force’ or at least use of ‘armed force’ (see
the discussion at p55) – that is prohibited, not merely ‘war’. With the exception of
‘individual or collective self-defence if an armed attack occurs’ and even then only
‘until the Security Council has taken measures necessary to maintain international peace
and security’ 14 (and with the further, now anachronistic, exception of a resumption of
hostilities by the Axis powers 15 ), the right to authorise the use of force was taken from
states and vested in a supranational body. That said, it is important to note that what is
being discussed here is a legal paradigm for the use of force; it is not to suggest that the
UN Charter represents the apogee of the domestic law analogy across international
relations as a whole. Indeed, its structure and organisation deliberately sought to
highlight a political rather than legal nature, recognising that one of the flaws of the
League system was a too overtly legalist character, which had not shown itself the most
effective way of resolving all international issues 16 . In terms of use of force, however,
there can be no questioning that the Charter, in theory at least, establishes an
unequivocal legal foundation for the use of force, and its prohibition in all other
circumstances. The reality, of course, has been somewhat different and it is worth
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