The True Challenge to the United Nations System of the Use of Force: The Failures of Kosovo and Iraq and the Emergence of the African Union

Since the end of the Cold War, much international attention has been focused on the use of force outside the parameters of the United Nations Charter. While attempts have been made to justify actions in Kosovo and Iraq based on evolving – customary – norms of international law; little consensus has emerged regarding State practice or opinio juris which would allow for an expansion of legal recourse to the use of force beyond self-defence or actions undertaken by the United Nations Security Council to ensure international peace and security. Yet, quietly, a much more fundamental challenge to the United Nations system has materialized which institutionalizes exceptions to the use of force which go beyond both the scope of self-defence and actions undertaken by UN Security Council. Fundamental, because these exceptions are not based on the ill-defined vagaries of customary law but are constituted by an international treaty; the coming into force of a Protocol which operationalizes the provisions of the Constitutive Act of the African Union which overrides the provisions of Chapter VII of the UN Charter, is thus the first true blow to the constitutional framework of the international system established in 1945 predicated on the ultimate control of the use of force by the United Nations Security Council.