Deterrence and the Threat of Force Ban: Does the UN Charter Prohibit some Military Exercises?

AuthorMajor Matthew A. Myers, Sr.
Pages03

132 MILITARY LAW REVIEW [Vol. 162

DETERRENCE AND THE THREAT OF FORCE BAN: DOES THE UN CHARTER PROHIBIT

SOME MILITARY EXERCISES?

MAJOR MATTHEW A. MYERS, SR.1

"The pen is mightier than the sword."2

I. Introduction

With the stroke of a pen, the drafters of the United Nations (UN) Charter and creators of the United Nations attempted to ban the "threat or use of force" as a means of resolving disputes between nations.3 In an effort to ban wars,4 however, the drafters used language that arguably bans

all uses of force and even all threats to use force.5 If read and applied literally, the ban on threats of force might make a United States military exercise illegal when a purpose of the exercise is to threaten, deter, or send a warning message to another nation.6 That message is often underscored by a demonstration of the United States' ability to mass forces and project vast amounts of lethal combat power in a short period of time whenever and wherever necessary.7

This article explores the meaning of Article 2(4) of the UN Charter within the context of a military exercise that is designed to influence the behavior of another nation. The article specifically focuses on the joint and combined United States military exercise known as "TEAM SPIRIT," which took place in South Korea, or the Republic of Korea (ROK), each year from 1976 to 1996.8 The timing and scope of this exercise was often related to efforts by the United States Government to influence North Korean policymakers.9 The article identifies the relevant UN Charter provisions and provides some factual background about why the United States conducted the TEAM SPIRIT maneuvers in South Korea. The article then discusses the methods of interpreting international documents, and applies each of the steps from the various methods of interpretation. After analy

ing the relevant laws, rules, agreements, judicial opinions, practices of nations, and other considerations, the article reaches conclusions about whether U.S. military exercises designed, at least in part, to send a warning message to another nation are prohibited by Article 2(4).

II. Factual and Legal Background

To determine whether United States military activities in Korea are legal, it is necessary to identify the relevant law, the reasons the United States military is in South Korea, and what the U.S. military does there. This section addresses each of these areas in turn.

A. The Prohibition on Threats or Uses of Force

The UN Charter bans threats of force in Article 2(4): "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."10

States may only resort to threats or uses of force to exercise "individual or collective self-defense"11 pursuant to Article 51.12 The Charter addresses other uses of force when authorized by the Security Council in Chapter VII,13 Articles 39,14 41,15 and 42;16 and in Chapter VIII.17 Although there

are numerous defenses to alleged violations of Article 2(4), they are

beyond the scope of this article.18

The Charter provisions appear to be "absolutist."19 Article 2(4) apparently bans all threats or uses of force, except for individual or collective "self-defense" and collective actions authorized by the Security Council. If Article 2(4) is a complete ban, the TEAM SPIRIT exercises, when coupled with an intention to send a message, were illegal.

B. The North Korean Threat

According to U.S. defense analysts, North Korea is a threat to the South because of its strong military and weak economy.20 There is a risk "that the heavily armed North Korean Army on the verge of economic collapse might launch an invasion out of desperation."21 Analysts agree that the relative poverty of North Korea is directly related to its efforts to maintain one of the largest militaries in the world.22

There is also no dispute that North Korea's economy is in bad shape.23

Their economy has been declining by approximately five per cent each year since 1992.24 The UN World Food Program reports that North Korea cannot feed its people adequately.25 Foreign investment has declined to almost zero.26 North Korea's per capita income is only about $900 per year.27 The contrast with South Korea's annual income,28 foreign trade balance,29 and foreign assistance30 has created a barrier to reunification that may only be overcome by war.31

C. United States Military Activities in South Korea

Since the Korean War,32 the United States has defended South Korea33 with a policy of deterrence through forward deployment and power projection.34 Pursuant to that policy, the United States maintains a large and lethal military force in South Korea.35 As part of the "power pr

jection" prong of U.S. policy, the United States conducted the TEAM SPIRIT military exercises.36 The military maneuvers demonstrated our commitment to the Mutual Defense Treaty37 and to the prevention of a second Korean War.38 During the 1990s, the scope and timing of the TEAM SPIRIT exercises39 was coupled with political rhetoric40 in an attempt to

influence the North Korean government to abandon its nuclear weapons development program,41 participate in reunification and peace talks,42 and comply with international obligations.43

III. Interpreting the UN Charter

There has been little attention paid to the meaning of "threats of force," separate from "uses of force," as used in the UN Charter.44

Although "threats" may be based as expressed or implied military, economic, political, or other forms of coercion,45 the focus of this article will be on threats to use military force.46 "Threats" of using military force might include the following situations in a spectrum ranging from the most benign to the most aggressive:

(1) the mere fact or political reality that one nation has more military might than another nation;47

(2) having more military strength than other nations and making sure that the international community knows it;48

(3) having the power and making a general threat;49

(4) concentrating military or naval power near a foreign nation or foreign military force-the naval battle group moves in;50

(5) both concentrating power and warning the target state that military force will be used, if necessary, in self-defense or defense of another nation;51

(6) conducting large scale joint/combined military exercises with the intention of influencing the behavior of a potential adversary in the region;52 and

(7) concentrating power and issuing an ultimatum for yielding to demands.53

Assuming arguendo that all seven of the situations listed above are "threats," the next question is how to determine which of the threats, if any, are illegal under the UN Charter. Are they all banned by the Charter's prohibition against "threats of force"? Are any of them banned? At first glance, the extremes appear to be relatively easy to analyze. The benign end of the spectrum reflects a fact of life: some nations are more powerful than others.54 The opposite extreme reflects a "blatant and direct threat of force, used to compel another state to yield territory or make substantial political concessions (not required by law)" from a weaker adversary.55

Unfortunately, what at first appears to be an obviously illegal threat may not be a violation of the UN Charter when looked at more closely.56 Even an apparently extreme situation involving a coercive threat to annex all or part of another nation's territory is usually accompanied by a claim that the territory rightfully belongs to the party demanding the territory.57

This section reviews the various methods of interpreting international agreements, and uses each step of the various methods of interpretation to analyze the TEAM SPIRIT scenario.

A. How to Interpret Treaties and Other International Agreements

Among the numerous authorities on the interpretation of international agreements, international legal jurists and scholars look primarily to decisions of the International Court of Justice (ICJ) and to the Vienna Convention on the Law of Treaties, or the "Treaty on Treaties."58 In addition, international legal experts in the United States also consult the Restatement (Third) of the Foreign Relations Law of the United States and opinions from the United States Supreme Court.

1. ICJ Sources

The Statute of the International Court of Justice created the ICJ.59

The Statute lists "the interpretation of a treaty" as the first item on the list of international disputes over which the ICJ has jurisdiction.60 In practice, most of the judgments and advisory opinions of the Permanent Court of International Justice61 and the ICJ have been primarily concerned with interpreting treaties.62

Article 38 of the Statute lists the sources of law that the ICJ will apply in any treaty interpretation or other dispute:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations; [and]

d. subject to the provisions of Article 59,63 judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.64

The first item on the ICJ's list, "international conventions,"65 includes the Treaty on Treaties, discussed below.66 The second item, "international custom," refers to rules that are considered customary international law67

as well as practices that are legally permitted or authorized because of a widespread acceptance in the international community.68 The third item

on the ICJ list refers to domestic or national laws.69 The final source is the "other" or "miscellaneous" category: nonbinding or persuasive judicial opinions, treatises, and other legal publications.

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