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Realizing UtopiaThe Future of International Law$
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The Late Antonio Cassese

Print publication date: 2012

Print ISBN-13: 9780199691661

Published to Oxford Scholarship Online: September 2012

DOI: 10.1093/acprof:oso/9780199691661.001.0001

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Operationalizing the UN Charter Rules on the Use of Force

Operationalizing the UN Charter Rules on the Use of Force

(p.343) 28 Operationalizing the UN Charter Rules on the Use of Force
Realizing Utopia

Philippe Sands

Oxford University Press

More than six decades after the UN Charter was adopted it is difficult to see how the formulation of the Charter provisions on the use of force might usefully be altered. They are — on their merits — no more inadequate than those governing the prohibition of violence at the national level. There is little to be served in fine-tuning the language of Articles 2(4) and 51, and it is unlikely that states would easily reach agreement on a generalized meaning of ‘imminent attack’ legitimizing self-defence, a concept that will necessarily fall to be interpreted and applied by reference to the particular facts of a given situation. Utopian efforts must recognize that where vital interests are seen to be at stake no drafting exercise will be able to finesse away major differences, or impose real solutions. Instead, utopian efforts would do better to focus on the operationalization of the Charter rules, chiefly through: domestic legal debate; international judicial consideration; and international legislative efforts, such as the definition of the crime of aggression agreed upon in 2010 by the Assembly of the States Parties to the Rome Statute.

Keywords:   UN Charter, self-defence, imminent attack, Article 2, Article 51

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