A Project

On
ARTICLE2(4) OF CHARTER

[Submitted as a partial fulfillment of the requirement for B.A. LL. B

(Hons.) 5year Integrated course]
Session: 2020-21

Submitted On: 30-01-2021

Submitted By: Submitted To:

Bhavishyat kumawat DR.ANITA JAIN

Roll No. – 24 Faculty

Class – VII – A
 DECLERATION

I Bhavishyat kumawat of Semester VII, hereby declare that this project work titled
‘Article2(4)charter ” based on the original research work and under the supervision and
guidance of concerned teacher.

The interpretations put forth are original and are based on my reading and understanding of the
original texts. The books, articles, and websites which have been relied upon by me and have
duly acknowledged at the respective places in the text.

For the present project which I am which I am submitting to the university, no degree or diploma
has been conferred on me before, either in this or in any other university.

Date: 30 January, 2021. Mr. Bhavishyat kumawat

Roll No.: 24

Semester: VII - A
 Certificate

This is to certify that Bhavishyat kumawat of Semester VII has carried out the project work
titled “Article2(4)charter” under my supervision and guidance. I certify that the student has
completed the work in stipulated time and the work is according to the norms specified for the
purpose.

Signature:
 ACKNOWLEDGEMENT

I have completed the project work on the topic “Article2(4)charter” under the guidance of
DR.ANITA JAIN, I want to extend my sincere gratitude for his encouraging efforts and able
guidance without which the work couldn’t be completed. I acknowledge him for the constant
efforts at every step.

Also, I would like to thank Director, Dr. Sanjula Thanvi for her constant motivation at every
step.

Bhavishyat kumawat
SEMESTER VII SEC A
 TABLE OF CONTENTS

CHAPTER – 1
INTRODUCTION………………………………………………………………….6-7

CHAPTER – 2
ARTICLE 2(4 )CHARTER………………………..……………………………8-12

BIBLIOGRAPHY……………………………………………………………………..13
CHAPTER 1

INTRODUCTION

The threatened ballistic missile attack upon Syria by the United States, in retaliation for the
Syrian government’s use of chemical warfare against its ownpeople, has elicited opinions from
international lawyers and scholars on thequestion whether such an attack would violate
international law. Invariably thelegal source that is cited is Article 2(4) of the United Nations
Charter. The language of Article 2(4), because it stands alone and is not tied to nor dependent
upon any of the other provisions of the UN Charter, is perhaps the most important rule of
international law in the modern era. The importance of each and every word in that Article is
beyond dispute. Yet it is often read hurriedly or impressionistically as if, for example, the terms
“territory” and “territorial integrity” mean the same thing. But as we shall see, a missile strike
against the territory of Syria is critically different from a missile strike against its territorial
integrity. The key terms in 2(4) are "territorial integrity" and "political independence." The threat
or use of force against either of these sovereign values is prohibited. What did these terms mean
to the drafters of the UN Charter in San Francisco in 1945?

The Australian delegates, who took the lead in proposing and drafting Article 2(4), certainly did
not rely on Webster’s Dictionary for the meaning of the key terms. Equally authoritative would
have been dictionaries in French, Russian, or Chinese. The Australian team did not consult
Shakespeare or works of fiction, or usage in domestic legal systems, or the writings of political
philosophers. The only defensible source of meaning of those terms was the meaning that they
had acquired in international diplomatic history. All the delegates at San Francisco— those who
proposed and those who ratified the draft of Article 2(4)—knew or can be charged with knowing
the meaning of these crucial terms as their meaning has come down through the history of
international treaties and other instruments. The delegates, in short, were continuing the common
diplomatic meaning of the terminology they used in the Charter much the same as customary
international law continues the lingua franca record of the resolution of past international
conflicts.1

1
https://www.un.org/en/sections/un-charter/chapter-i/index.html
CHAPTER 2

ARTICLE 2 (4) CHARTER

Article 2(4) reads as follows:

All Members shall refrain in their international relations from the threat or use of force against
the territorial integrity or political independence of any state, or in any other manner inconsistent
with the Purposes of the United Nations.

I. Treaties of Guaranty

One of the earliest uses of the terms we are investigating occurred in the Treaty of Paris of 30
March 1856, among Great Britain, Austria, France, Prussia, Russia,Sardinia, and Turkey:

Article VII. Their Majesties engage, each on his part, to respect the Independence and the
Territorial Integrity of the Ottoman Empire; Guarantee in common the strict observance of that
engagement; and will, in consequence, consider any act tending to its violation as a question of
general interest.

Clearly this treaty constitutes an important gloss upon the term "territorial integrity." The parties
obviously had in mind a guarantee of the preservation of the Ottoman Empire, thus indicating
that if other states attempted to take away portions of that Empire the signatories might react in
concert against such an attempt. Hence the notion of "territorial integrity" begins to take on a
meaning equivalent to preventing the permanent loss of a portion of one’s territory. Under such a
meaning, the Israeli raid upon the Iraqi nuclear reactor in 1981 would not be a use of force
against Iraq's territorial integrity, because Israel neither attempted to take nor succeeded in
permanently taking away any portion of lraq's territory for the term "independence," in the above
quoted Treaty the term seems to be parallel to, and add very little to, the term "territorial
integrity."

Later treaties of guaranty seemed to bear out the rough equivalence of independence and
territorial integrity. The Treaty of Christiania of 2 November 1907 among Germany, France,
Great Britain, Norway and Russia stated in its preamble:
Animes du desir d'assurer a Ia Norvege, dans ses limites actuelles et avec sa zone neutre, son
independence et son integrite territorial [The parties agreed to safeguard Norway's integrity] "si
l'integrite de Ia Norvege est menacee ou lesee par une puissance.· . ."

However, a contemporary treaty seemed to suggest that when the word "independence" was used
alone, it was not incompatible with a notion of intervention. In the Havana Treaty (United States-
Cuba) of 2 May 1903, Article 3 states:

The government of Cuba consents that the United States may exercise the right to intervene for
the preservation of Cuban independence ..."

Intervention might also have been implied in the United States-Panama Treaty of 18 November
1903 in Article 1: "The United States guarantees and will maintain the independence of the
Republic of Panama."

It is not clear whether “territorial integrity" here would exclude the notion of intervention. In a
non-aggression treaty between Lithuania and the U.S.S.R. of 28 September 1926, Article 2 states
that the parties "undertake to respect in all circumstances each other's sovereignty and territorial
integrity and inviolability."

Would there be need for the term "inviolability" if "integrity" excludes intervention? In fact,
"inviolability" seems the stronger word: It would imply forbidding a brief attack such as Israel's
raid on the Iraqi nuclear reactor. Where "integrity" is used alone, without "inviolability," an
attack such as the Israeli raid might not be intended to be forbidden.

II. Article 10 of the League of Nations Covenant

The many historical treaties ·of guaranty in a sense fused and coalesced into Article 10 of the
Covenant of the League of Nations, which was a kind of collective security pact:

The Members of the League undertake to respect and preserve as against external aggression the
territorial integrity and existing political independence of all Members of the League .... Article
10 of the Covenant probably originated in the mind of Woodrow Wilson. In October 1914,
Colonel Edward M. House, writing to Walter H. Page, brought up Wilson's idea that a guarantee
of territorial integrity would be necessary in the peace settlement.5 In December 1914, Wilson
typed out three elements of a proposed Pan-American Pact: (1) mutual guarantee of political
independence under republican forms of government; (2) mutual guarantees of territorial
integrity; (3) (related to munitions). This Pan-American Pact proposal had earlier roots in
Wilson's original Far-Eastern and Latin-American policies in 1913.

The ideas underlying the Pan-American Pact proposal found their way into Wilson's first draft
of the Covenant. F. P. Walters writes that in January 1916, Wilson "had suggested that all the
States of the Western hemisphere should unite in guaranteeing to one another absolute political
independence and territorial

integrity; and he always insisted on the inclusion of a similar pledge in the Covenant." In May of
1916, Wilson delivered his major address on the League before the League to Enforce Peace:

We believe these fundamental things ... that the small states of the world have a right to enjoy the
same respect for their sovereignty and for their territorial integrity that great and powerful
nations expect and insist upon. He said that the people of the United States wish their
government to move along these lines:

Second, an universal association of the nations to maintain the inviolate security of the highway
of the seas for the common and un- hindered use of all the nations of the world,and to prevent
any war begin either contrary to treaty covenants or without warning and full submission of the
causes to the opinion of the world-a virtual guarantee of territorial integrity and political
independence.

Ill. The Notion of "Force Against"

The Covenant's Article 10 did not, as we have seen, employ the notion of "force against" or
"aggression against" territorial integrity or political independence, as does the later Article 2(4)
of the United Nations Charter. The question then arises whether the later language of the Charter
alters the meaning of "territorial integrity" or "political independence" by the inclusion of the
term "force against."

Some limited light may be thrown upon this question by examining treaty language in treaties
concluded in the 1930s and 1940s. The notion of using the phrase ''territorial integrity and
political independence" as the object of a prepositional phrase "force against" or its equivalent
seems to have first come into use in 1931 and 1932 in a series of bilateral treaties concluded by
the U.S.S.R. and other powers. These were all non-aggression treaties, differing in wording. The
treaties with Afghanistan and France refer only to territorial integrity, so these may be
considered first:

The non-aggression pact between Afghanistan and the U.S.S.R. of 24 June, 1931, Article 3,
reads in part:

The Contracting Parties shall not tolerate and shall prevent in their territory the organizations and
activities of groups of persons and the activities of private persons that might be prejudicial to
the other Contracting Party or prepare the overthrow of its form of government or make an
attempt on the integrity of its territory or proceed to the mobilization or recruitment of armed
forces to be used against it.

This new idea of an "attempt on the integrity" of territory is thus formulated amidst several other
proscriptions which might or might not be included within its general scope. The following
phraseology is deserving of closer scrutiny in the non-aggression pact between France and
Russia of 29 November 1932:

Article V. Each of the High Contracting Parties undertakes to respect in every connection the
sovereignty or authority of the other Party over the whole of that Party's territories as defined in
Article I [i.e., "territories which are placed under that Party's sovereignty or which it represents
in external relations or for whose administration it is responsible"], not to interfere in any way in
its internal affairs, and to abstain more particularly from action of any kind calculated to promote
or encourage agitation, propaganda or attempted intervention designed to prejudice its territorial
integrity or to transform by force the political or social regime of all or part of its territories.
Each of the High Contracting Parties undertakes in particular not to create, protect, equip,
subsidise or admit in its territory either military organizations for the purpose of armed combat
with the other Party or organizations assuming the role of government or representing all or part
of its territories.
IV. The Travaux Preparatoires of Article 2(4)

Against the entire legal background described so far, the framers of the United Nations Charter
began their negotiations that led to the signing of the Charter in San Francisco in 1945.

The tentative proposals put forth by the United States in 1944 that eventuated in Article 2(4) had
no mention of the phrases "territorial integrity" or "political independence." V-1. All States,
whether members of the international organization or not, should be required (a) to settle
disputes by none but peaceful means, and (b) to refrain from the threat or use of force in their
international relations in any manner inconsistent with the purposes envisaged in the basic
instrument of the organization.

Russell comments that "an earlier draft had obligated members 'not to use force ... except under
the authority of the international organization.' This phraseology had been questioned as
affecting the right of self-defense."

The formal Dumbarton Oaks proposals had as the precursor of Article 2 Section 4: All members
of the Organization shall refrain in their international relations from the threat or use of force in
any manner inconsistent with the purposes of the Organization.

Commenting on this section, the Right Honorable Peter Fraser said on 3 May 1945:

There is in the Dumbarton Oaks plan no clear statement that the security of the individual
members of the organization is the objective . . . New Zealand

would wish that in the Charter we are about to draft there should be ·placed in the core of the
undertakings which members will assume the unequivocal pledge to resist all acts of external
aggression against any member of the organization ... I should add that while the territorial
integrity and political independence of each member should be preserved against external
aggression, changes in the status quo should at the same time be possible, although not under
force or threat of force.

The Deputy Prime Minister of Australia, Francis M. Forde, was even more explicit:

In the Charter should also be inserted a specific undertaking by all members to refrain in their
international relations from force or the threat of force against the territorial integrity or political
independence of another state. The application of this principle should insure that no question
relating to a change of frontiers or an abrogation of a state's independence could be decided other
than by peaceful negotiations. It should be made clear that if any state were to follow up a claim
to extended frontiers by using force or the threat of force, the claimant would be breaking a
specific and solemn obligation under the Charter.

What apparently was in this speaker's mind was that "territorial integrity" meant that frontiers
could not be extended, while "political independence" meant that a "state's independence" could
not be "abrogated" (probably with Hitler's conquests in mind). Bolivia's proposals spelled out
these terms a little more, but added to their vagueness at the same time:

[The Charter should have] a double and reciprocal guaranty among its members: the first,
concerning the territorial inviolability of the states, the legal validity of acquisitions of territory
which may originate in acts of force or other means of compulsion not being recognized; and the
second, concerning respect for the political independence of the states and the right which they
possess to develop freely in their internal life, without the intervention of any other state.

Here of course the word "inviolability" instead of "integrity" is used. Perhaps the delegate of
Bolivia was unaware of any possible difference, although years later the argument was made that
fedayeen raids against Israel, while they might have violated the latter's territorial inviolability,
did not violate her integrity, since the raids did not demonstrate a purpose of conquest.2

2
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2321806
BIBLIOGRAPHY

 https://www.un.org/en/sections/un-charter/chapter-i/index.html
 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2321806