Symposium on Erin Pobjie’s Prohibited Force: Prohibited Force and Self-Determination

[Adil Ahmad Haque is a Professor of Law and Judge Jon O. Newman Scholar at Rutgers Law School. His first book, Law and Morality at War, was recently published by Oxford University Press.]

Erin Pobjie’s Prohibited Force is an extraordinary book. Its combination of theoretical sophistication and empirical rigor is both striking and rare. While some readers may be tempted to skip to the later chapters, which set out Pobjie’s substantive views, I would urge readers (especially students) to take their time thinking through the early chapters on the interaction and development of treaty and custom, the UN Charter and the customary prohibition on the use of force. These early chapters are not methodological throat-clearing. They are original and insightful, and firmly ground the later substantive conclusions. I expect to return to these early chapters often.

Having just said that, I will now jump to Pobjie’s conclusion that a use of force is prohibited only if the object or target of the use of force has a sufficient nexus to another State (88-92, 229). Pobjie briefly considers the use of force on terra nullius, on the high seas, and in outer space. Pobjie also briefly considers the use of force against polities whose statehood is disputed, such as Taiwan, concluding that ‘[t]he jus contra bellum does not require all States to recognize the statehood of the entity in question, and it is an open question if article 2(4) covers a use of force violating an ‘international demarcation line delimiting the territory of a non-State political entity’” (95). Pobjie discusses occupation at some length, but only the occupation of another State’s territory.

At the same time, Pobjie writes that the ‘most important and comprehensive subsequent agreement of UN Member States on the interpretation of article 2(4) of the UN Charter is the Friendly Relations Declaration’ of 1970. In that declaration, ‘UN Member States took a clear position on the interpretation of article 2(4) with respect to its scope of application to include … using force to deprive peoples of the right to self-determination’ (109-10, also 113). Now, the Declaration refers to ‘peoples’ subjected to alien subjugation, domination and exploitation, as well as peoples living in colonies and non-self-governing territories. It would seem to follow that using force to deprive such peoples of self-determination would violate article 2(4). Indeed, such force appears inconsistent with the purposes of the United Nations (art. 1(2)). And it seems plausible that subsequent practice in the application of the Charter could establish the agreement of the parties that ‘international relations’ includes relations between a State and a colony, non-self-governing territory, or other self-determination unit. On this view, a use of force is prohibited only if the object or target of the use of force has a sufficient nexus to another State or other self-determination unit.

I suspect that Pobjie considered this possibility but rejected it. I wonder why. One possibility is that the prohibition of force only extends to the forcible deprivation of the right of self-determination of the people of a State. This view would require a narrow reading of the text of the Declaration, given its historical context. But the alternative would be to give up either the view that the prohibition of force only applies between States or the view that the Declaration clarifies the meaning of the prohibition.

What are the practical stakes of this issue? Maybe there are none. But I will try to connect this issue to current problems.

First, many scholars believe that the right of self-defense is an exception to the prohibition of force, not a free-standing right. On this assumption, if the prohibition of force is not engaged, then neither is the right of self-defense. Consider Gaza. Some scholars take the view that Palestine is not a State and conclude that neither the prohibition of force nor the right of self-defense applies to Israel’s use of force in Gaza. But if the prohibition of force is engaged by the forcible deprivation of self-determination, then it might be engaged by Israel’s use of force in Gaza whether Palestine is a State or a self-determination unit. This would not mean that Israel’s right of self-defense is engaged by attacks by non-state actors arising from occupied territory, let alone that its military campaign is either necessary or proportionate. But it might shift the focus of legal analysis to these further questions.

Second, as Pobjie notes, the ICRC takes the view that any use of force within the meaning of the prohibition of force—whether ultimately lawful or unlawful—triggers an international armed conflict regulated by the law of international armed conflict (211). In Gaza, this seems to entail that, if Palestine is a State, then Israel’s use of force is regulated by the law of international armed conflict. But if a use of force includes forcible deprivations of self-determination, then Israel’s use of force should be regulated by the law of international armed conflict whether Palestine is a State or a self-determination unit. Sadly, logic does not make law. But, if widely adopted, this view would harmonize the prohibition of force with with General Assembly resolution 3103 and Additional Protocol I article 1(4).

Finally, in its recent advisory opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, the International Court of Justice described the prohibition of forcible acquisition of territory as a “corollary” of the prohibition of force itself. If the prohibition of force only applies to force against another State, then it might seem that its corollary only applies to forcible acquisition of another State’s territory. Yet the Court found that Israel’s continued presence in the Occupied Palestinian Territory violates the prohibition of forcible acquisition of territory, without finding that Palestine is a State under general international law. To some, this creates a problem in the Court’s reasoning.

One solution would be to determine that Palestine is a State. A second solution, proposed by Monica Hakimi and Ingrid Wuerth Brunk, is that the prohibition of forcibly acquiring territory is an independent legal rule, not a corollary of the prohibition of force. A third solution is that the occupation began with a use of force against other States, and this past use of force makes it unlawful to later exercise permanent control over the occupied territory.

In any event, another solution worth considering might be that the prohibition of force is not limited to force between States, but extends to force between States and other self-determination units. On this view, Israel’s occupation constitutes a ‘continued use of force’ (para. 253) engaging the prohibition of force, while its intent to exercise permanent control engages the corollary prohibition of forcible acquisition of territory, whether Palestine is a State or a self-determination unit.

Again, I don’t wish to exaggerate the practical stakes of the issue. Palestine is a State, in my view, so the problems described above may not arise. But some courts, States, and scholars may be reluctant to determine that Palestine is a State, so it may be useful to offer them an alternative line of reasoning.

To conclude, there seems to be a tension between Pobjie’s reliance on the Friendly Relations Declaration and her conclusion that the prohibition of force only applies between States. Perhaps that tension is illusory, or perhaps there is an easy way to resolve it. In any case, I look forward to learning from Pobjie’s reply, much as I have learned so much from Pobjie’s outstanding book.