Rewriting Histories of the Use of Force: The Narrative of ‘Indifference’,

Tom Ruys, Ghent University, Ghent Rolin-Jaequemyns International Law Institute (GRILI), Netherlands

In Rewriting Histories of the Use of Force: The Narrative of ‘Indifference’, Agatha Verdebout takes aim at the ostensible agreement among legal scholars that in the 19th century – the ‘golden age of positivism’ – international law neither prohibited nor authorized the use of armed force between states. Paradoxically, the consensus on this ‘theory of indifference’ stands in marked contrast with the endless contemporary debates on the interpretation of the rules on the use of force under the Charter of the United Nations (UN Charter) […]

The condemnation by the UN General Assembly of Russia’s large-scale invasion of Ukraine in February 2022 – with 141 votes in favour and only five states voting against – rather confirms that there is no place for such discourse in today’s international legal order and that any cross-border military action must fit within one of the narrow categories for permissible use of force provided for in the Charter framework. One could also refer to the wholesale rejection of preventive self-defence against ‘non-imminent’ threats as an indication that the ad bellum rules have grown more ‘determinate’ and far less ‘self-judging’ compared to the 19th century. By way of illustration, explaining why the USA had not invoked the right of self-defence at the time of the 1962 Cuban missile crisis, then US Legal Adviser Abram Chayes noted that such a claim would have made the recourse to force essentially a question for unilateral national determination and would have excluded any possibility of meaningful review. The International Court of Justice, for its part, has similarly emphasized that Article 51 of the UN Charter ‘does not allow the use of force by a State to protect perceived security interests beyond’ its strict confines. Läs artikel