Reappraising article 2(4)'s blind spot

What do the results of chapter 8 imply for the regime of force? The present study was started with the aim not only of exploring the legal meaning of the no-threat principle but also of arriving at some conclusions on how it operates in practice: by operation I mean qualities that are assets for states in their international dealings with one another, so that UN Charter law serves its primary objective – peaceful settlement of disputes and the avoidance of major war.

An early theory, expressed in chapter 1, was that little legal impact on state behaviour could be expected for the simple reason that the no-threat rule has remained poorly understood, grossly underdeveloped and rarely invoked. Operation of the law implies that a rule may be appealed to positive effect. It also, intuitively, pre-conditions that the operation of law is understood by relevant actors. Rules cannot have instrumental effect unless they are communicated to relevant actors, and these actors are legal advisors, judges and academics assisting governments in their decision-making process. If these members of the ‘invisible college of international lawyers’ practise omission, then, surely, the UN and individual states can hardly be blamed for not relying on it.

Omission accordingly appears to be the mark of practice.