International Law and Politics and Collective Security

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International Law and Politics In the 20th century, the hope that international organisation to safeguard the peace and security by preventing war or failing that, to defend States which subjected to armed attack in an organised and collective manner is now embodied in the concept of collective security.[1] Art1 of UN Charter[2] emphasises on the maintenance of international peace and security, and this is achieved by ‘effective collective measures’ as mentioned in the same paragraph. Claude illustrated the importance of this mechanism to maintain peace by using the example that the society cannot educate the children without an operating system of school. Collective security system has been given chance to come in play after the disintegration of East Block and the end of cold war, however its effectiveness is still subjected to controversy. On one hand, it has provided framework to minimise the conflicts from becoming major threats to world peace and conversely this system is hijacked by the world big powers sitting in the UN Security Council (SC) with their personal interests in mind.[3] Varieties of legal problems that have practical importance were surfaced due to political difficulties and ambiguities of the language of the UN Charter.[4] The UN Charter introduced a new solution to the use of force by imposing the limits and qualifying the used of it.[5] Firstly, Art2(4)[6] extended the doctrine of non-intervention to all states and turning it into a universal norm. At the same time, it allows the members act in self-defence if an armed attack occurs in the States under Art.51.[7] This must be reported to the SC and SC retains its responsibility to take such action as it deems fit. Furthermore, the use of force is allowed under Chapter VII of the Charter in terms of collective security measures. Art42[8] permits the SC to take action by air, sea or land forces to maintain or restore international peace and security. Additionally, the council can adopt measures under Art41[9] such as disruption of economic relations or the severance of diplomatic relations. Before these actions could be taken, the council must first determine the existence of any threat or breach of the peace or act of aggression’ under Art39.[10] Besides, Art40[11] requires the SC to take provisional measures to prevent the aggravation of the situation. After the determination of any measures, Art.43[12] indicates that UN members to contribute forces to the council by way of formal agreement. The first success of collective security mechanism is in the Gulf crisis 1990 whereby the sanctions were adopted for humanitarian ends. In the case of Iraq’s invasion of Kuwait, the forces from member countries are available to stop and search vessels so that economic embargo in the Gulf can be effective. This was authorised by SC under Resolution 661[13]. Resolution 687[14] that contained conditions for the ending of the conflict in the Gulf was agreed to by Iraq as part of the ceasefire arrangement.[15] This includes giving up certain types of weapons, not to develop or acquire nuclear weapons and liable for all damages as a result of the unlawful invasion. Due to non-compliance of Resolution 687[16], the SC continues to apply sanctions on Iraq. Prior to implementation of Resolution 687, the SC has adopted Art42 in Resolution 678 as Iraq failed to withdraw the forces from Kuwait after the invasion as required under Resolution 660[17]. This resulting the authorisation of member states co-operating with the Government of Kuwait to use all necessary means to evade Iraq forces from the territory of Kuwait. This effectively delegates the enforcement power to the states that willing to carry out necessary measures to achieve the objective.[18] The response shows that UN is ready to respond to aggression. The UN is now prepared to follow the steps under the Charter to resolve the disputes peacefully before resorting to the use of armed force.[19] Operation of collective security can be seen in various situations as the SC actively engages themselves in the wider role of enforcement in regards to threat to the peace. During cold war period, the functionality of SC was affected as there is strong rivalry between the superpowers, any collective efforts through the UN is difficult to realise.[20] Therefore, any instances of humanitarian intervention were all unilateral actions by States individually without express authorization by the SC. The expanding scope of global human rights regimes in the post-Cold War era creates a suitable timing for a wider interpretation of the ‘threat of peace’ which given to SC under Art.39. This development lead to authorisation of SC in regards to humanitarian intervention starting from Resolution 688[21].[22] Under this Resolution, SC claimed that Iraq’s repression of Kurdish as creating a threat to international peace and security.[23] This effectively creates a legal authority for other nations to intervene Iraq for humanitarian purposes. The reaction of SC in Iraq situation represents the trend that principles of state sovereignty have lost the privileged status particularly when fundamental human rights are disregard.[24] The expansion of the interpretation of Chapter VII by SC is discovered in their efforts in domestic democracy building. In the post-Cold War, reduction of ideology friction enables SC to exercise its Chapter VII powers more frequently, in which it undertakes more ambitious peace building activities.[25] The strong western values in the SC resulting from the political influence of three permanent members (US, UK and French) led to the wide interpretation of Chapter VII in order to intervene in States for democracy building. The SC did not oppose the request by Nicaragua for electoral assistance in 1989. As a result, UN had created a large-scale election verification mission to oversee the entire electoral process.[26] Additionally, the SC had used the power under Chapter VII to authorise the use of force to re-establish deposed democratic regimes.[27] Resolution 940[28] is passed allowing ‘necessary forces’ to restore Aristide government in Haiti where they were democratically elected but overthrew by a coup.[29] The recurrent use of sanctions by SC in exercising the power under Chapter VII shows effectiveness in maintaining international peace and security. Sanctions include embargo on international flight, arms embargo and reduction of diplomatic personnel under Resolution 748 were imposed on Libya as they failed to comply with extradition requests and provisions in Resolution 731.[30] SC had further expand the sanctions by freezing the asset of Libyan government, ban on imports of oil-transporting equipment and further reduction of diplomatic personnel under Resolution 883 as Libya failed to respond to the requests. This was effective as the objectives of the sanction measures were satisfied when Libya had finally agreed to fulfil the request of Resolution 731. [31] Another successful sanction is seen in the case of Federal Republic of Yugoslavia (FRY) as stated by Cartright and Lopez (2000). In light of deteriorating economic situation in Yugoslavia and threat of tighter regimes of sanctions, President Milosevic had agreed to stop the fighting in Bosnia and Resolution 1022[32] was lifted.[33] Towards the end of 90’s, there are a series of events that challenge the collective security system established in Gulf crisis. The intervention by NATO’s ‘Operation Allied Force’ in respond to massive gross violation of human rights against the Kosovar population without authorisation of SC lead to controversy.[34] On 24 March 1999, NATO began its air strike on FRY without raising the matter in SC. This raises the question of legality of the NATO intervention. The reasons put forward by NATO were the enforcement of resolutions (Resolution 1160[35], 1199[36], 1203[37]) by SC with unspecified sanctions in case of non-compliance and prevention of humanitarian disaster.[38] Hanspeter criticised that the arguments are not convincing as even though the SC determine the existence of threat based on Chapter VII, it does not allowed the Member States to take any actions without the endorsement of the SC beforehand.[39] After the air raids, Resolution 1244[40] was subsequently passed by the SC to allow deployment of forces in Kosovo. This resolution was viewed as indirect and subsequent authorisation; however, it is argued that nothing in the resolution pronounce the legality of the NATO’s air strike. Some commentators contended that Resolution 1244 endorsed NATO’s action ex post facto in a cautious manner.[41] It remains doubtful on whether humanitarian intervention can be fully endorsed by the international law as being a third exception of Art4(2). British Foreign and Commonwealth Office in 1986 contest the legality of humanitarian intervention and ICJ rejected US humanitarian intervention in Nicaragua.[42] Through the example of Kosovo intervention by NATO, it shows that States will go beyond the agreed perimeter of security system to achieve something they think is politically inevitable. Other criticisms of the collective security system are seen in the Afghanistan crisis 2001. In relation to terrorist attack on US, the SC had taken up the role under Chapter VII to proclaim that the attack amount to threat to international peace under Resolution 1368[43]. In Resolution 1373[44], SC further imposes measure on the Member States to adopt measures under their criminal law to prevent financial support for terrorism acts. The SC in responding to this crisis merely adopt non-military measures, while US on the other hand adopt military measures against Afghanistan to remove Al-Qaeda and even Taliban government, claiming inherent self-defence under Art51 of the Charter. Academics have identified few ambiguities in which the SC failed to address even though they are within the Chapter VII.[45] Firstly, it is found that there are lacks of factual evidence of Al Qaeda and Taliban’s culpability when US is directing self-defence.[46] Besides, in exercising self-defence, the force required to be proportionate and immediate. The immediacy appears to lost where the response appeared to be in the shape of punitive reprisals instead of purely self-protection. Proportionality remains in doubt given that the attack on US was minor as it only involved building, but the responses by US were massive which includes removal of Taliban government. SC did not come out with further resolution to respond their finding of threat to international peace under Chapter VII. There is no clear indication of whether SC treats this as solely an Art.39 situation where authorisation measures are required or a Chapter VII Self-defence where they can come out with measures in appropriate time. The failure of SC in addressing the status of US self-defence amounts to its ambiguity to satisfy competing political demands. It appears that US is in control of the international peace instead of SC using its mechanism in dealing collectively. This response jeopardise the functionality of SC in regards to Chapter VII as self-defence is treated as outside the context and limits of the UN charter.[47] The case of war against Iraq in 2003 appears to challenge the collective security mechanism. The coalition of countries (US, UK and Australia) claims that Resolution 678 authorised the restore of international peace and security in the area. Resolution 687 outlined the condition that Iraq would have to accept for a cease-fire to come into effect, which includes disarmament. Subsequently, Resolution 1441[48] found Iraq to be in material breach of Resolution 687 and warned of ‘serious consequences’ for non-compliance. The coalition relied on the justification of the reactivation of Resolution 678. Majority of the Member states view that this resolution did not provide automatic authority for the use of force; it should be for the council to decide whether Iraq was in breach of Resolution 1441.[49] There is a further argument that pre-emptive self-defence validly legitimises the intervention. It is however argued that the pre-emptive self-defence would not work as US had failed to demonstrate a clear link between Iraqi and Al-Qaeda terrorist.[50] Clearly, SC in post-Iraq case is irrelevant in exercising limited ability to exert a pull towards compliance.[51] Glennon stated that this lead to states to consider whether it is wise to use force rather than whether it is lawful.[52] Lately, there are discussions on whether Libya intervention demonstrates a resurgence of international law through Resolution 1973[53]. This resolution authorised ‘all necessary means to protect civilians under the threat of attack’. Pierre identified that generally Libya intervention was done in accordance to international law under Resolution 1973.[54] However, this resolution was being criticised, as the language was vague to the extent that wide interpretation was adopted in regards to the intervention. It is unclear whether the extend of the intervention was within the confinement that intended by the SC in the resolution. In conclusion, the collective security system has its relevancy in solving the world’s biggest problem relating to peace. Its effectiveness can be seen in the instances where SC expanded its power through wide interpretation of ‘threat to the peace’ that allows collective security efforts to address humanitarian crisis and democracy building. After Gulf crisis, SC in few cases did not effectively enforce the power under Chapter VII in controlling used of force due to political reasons. The Libya intervention is seen as a return to a more traditional collective security. In this regards, SC should exercise their power accurately to allow the use of force by the member states within the perimeter that is best suited with the particular crisis. This will increase the confidence of member states in SC when they deal with international crisis. 2197 words Bibliography Primary Resources Statutes and Statutory Instruments Charter of the United Nations 1945 Council of Europe: Parliamentary Assembly, Resolution 1022 (1994) on the Humanitarian Situation and Needs of the Displaced Iraqi Kurdish population UNSC Res 660 (2 August 1990) S/RES/660 UNSC Res 661 (6 August 1990) S/RES/661 UNSC Res 687 (9 March 1991) S/RES/689 UNSC Res 678 (29 November 1990) S/RES/678 UNSC Res 688 (5 April 1991) S/RES/688 (1991) UNSC Res 940 (31 July 1994) S/RES/940 UNSC Res 1160 (31 March 1998) S/RES/1160 UNSC Res 1199 (23 September 1998) S/RES/1199 UNSC Res 1203 (14 October 2011) S/RES/2013 UNSC Res 1368 (12 September 2001) S/RES/1368 UNSC Res 1373 (28 September 2001) S/RES/1373 UNSC Res 1441 (8 November 2002) S/RES/1441 Secondary Resources Books Higgins Rosslyn, Problems and Process: International Law and How We Use It (1st edn, OUP, Oxford 1994) Oisín Tansey, Regime-building: Democratization and International Administration: Democratization and International Administration (1st edition, OUP 2009) Cassis Antonio, International Law (2nd edition, OUP 2005) Dixon Martin, Textbook on International Law (7th edition, OUP 2013) Shaw Malcolm, International Law, (6th edition, CUP 2008) Journal Articles Pierre Thielbörger , ‘The Status and Future of International Law after the Libya Intervention’ (2012) GJIL 11,48 Glennon, Michael J, 'Why the Security Council Failed' (2003) Foreign Affairs 82(3): 16–35. Franck, Thomas M. ‘The power of legitimacy among nations’ (1990) OUP Vol. 3. Malone, D.M., ‘The International Struggle Over Iraq: Politics in the UN Security Council 1980–2005’ (2006) OUP Eric P.J. and Nigel D., ‘The Twin Tower Attack: An Unlimited Right to Self-Defence?’ (2002) OUP 7 J. Conflict & Sec. L. 5 Thomas M. Frank, ‘Terrorism and the Right of Self-Defense’ (2001)The American Journal of International Law Vol. 95, No. 4 839,843 Neuhold, Hanspeter. ‘Collective Security after “Operation Allied Force”’ Max Planck Yearbook of United Nations Law (2000) 1, 102 V. Popovski, ‘Fighting the Colonel: Sanctions and the Use of Force’ (2011) Jindal Journal of International Affairs Vol 1 148, 153 Judy A Gallant, ‘Humanitarian Intervention and Security Council Resolution 688: A Reappraisal in Light of a Changing World Order’ (1992) American University International Law Review Vol 7 881, 882 Kelly Kate Pease and David P. Forsythe, ‘Human Rights, Humanitarian Intervention, and World Politics’ (1993) HRQ Vol 15 1, 303 Saban Kardas, ‘Examining the Role of UN Security Council in Post-Cold War interventions: The Case for Unauthorized Humanitarian Intervention’ (2010) USAK Yearbook Vol3 55, 75 Christopher M. Ryan, ‘Sovereignty, Intervention, and the Law: A Tenuous Relationship of Competing Principles’ (1997) MJIS Vol.26 1, 79. Online Journals Claude Jr, Inis L, ‘Collective security as an approach to peace’ (2006) < https://blackboard.angelo.edu/bbcswebdav/institution/LFA/CSS/Course%20Material/SEC6302/Readings/Lesson_8/Claude.pdf> accessed 15 March 2015 Joseph C. Ebegbulem , ’The Failure of Collective Security in the Post World Wars I and II International System’ (2011) < http://www2.hu-berlin.de/transcience/Vol2_Issue2_2011_23_29.pdf> accessed 16 March 2015 Stephen M. De Luca, ‘The Gulf Crisis and Collective Security under the United Nations Charter’ (1991) < http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1021&context=pilr> accessed 15 March 2015 Victor D, ‘Pressuring Milosevic: Financial Pressure Against Serbia and Montenegro Part 1’ (2012) <http://www.isn.ethz.ch/Digital-Library/Articles/Special-Feature/Detail/?lng=en&id=154572&tabid=1453376834&contextid774=154572&contextid775=154574> accessed 16 March 2015 Jeremy Farrall, ‘Building Democracy and Justice after Conflict: Working Paper No. 1 The Role of the UN Security Council’(2010) < http://regnet.anu.edu.au/sites/default/files/BD-WorkingPaper1.pdf> accessed 16 March 2015 Alex J Bellamy, ‘Feature-Legality of the Use of Force Against Iraq, International Law and the War with Iraq’ (2002) MJIL http://www.law.unimelb.edu.au/files/dmfile/downloadd4651.pdf accessed 16 March 2015 International Law and Politics CW 3 334743
[1] Claude Jr, Inis L, ‘Collective security as an approach to peace’ (2006) < https://blackboard.angelo.edu/bbcswebdav/institution/LFA/CSS/Course%20Material/SEC6302/Readings/Lesson_8/Claude.pdf> accessed 15 March 2015 [2] Charter of the United Nations 1945, Article 1 [3] Joseph C. Ebegbulem , ’The Failure of Collective Security in the Post World Wars I and II International System’ (2011) < http://www2.hu-berlin.de/transcience/Vol2_Issue2_2011_23_29.pdf> accessed 16 March 2015 [4] R Higgins, Problems and Process: International Law and How We Use It (1st edn, OUP, Oxford 1994) 53 [5] Christopher M. Ryan, ‘Sovereignty, Intervention, and the Law: A Tenuous Relationship of Competing Principles’ (1997) MJIS Vol.26 1, 79. [6] Charter of the United Nations 1945, Article 2(4) [7] Ibid Article 51 [8] Charter of the United Nations 1945, Article 42 [9] Ibid Article 41 [10] Ibid Article 39 [11] Ibid Article 40 [12] Ibid Article 43 [13] UN Security Council, Resolution 661 (1990) Adopted by the Security Council at its 2933rd meeting, on 6 August 1990, 6 August 1990, S/RES/661 (1990) [14] UNSC Res 687 (9 March 1991) S/RES/689 [15] Malcolm N Shaw, International Law, (6th edition, CUP 2008) 1248 [16] UNSC Res 678 (29 November 1990) S/RES/678 [17] UNSC Res 660 (2 August 1990) S/RES/660 [18] Neuhold, Hanspeter. ‘Collective Security after “Operation Allied Force”’ Max Planck Yearbook of United Nations Law (2000) 1, 84 [19] Stephen M. De Luca, ‘The Gulf Crisis and Collective Security under the United Nations Charter’ (1991) < http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1021&context=pilr> accessed 15 March 2015 [20] Saban Kardas, ‘Examining the Role of UN Security Council in Post-Cold War interventions: The Case for Unauthorized Humanitarian Intervention’ (2010) USAK Yearbook Vol3 55, 75 [21] UNSC Res 688 (5 April 1991) S/RES/688 (1991) [22] Kelly Kate Pease and David P. Forsythe, ‘Human Rights, Humanitarian Intervention, and World Politics’ (1993) HRQ Vol 15 1, 303 [23] Judy A Gallant, ‘Humanitarian Intervention and Security Council Resolution 688: A Reappraisal in Light of a Changing World Order’ (1992) American University International Law Review Vol 7 881, 882 [24] Ibid 882 [25] Jeremy Farrall, ‘Building Democracy and Justice after Conflict: Working Paper No. 1 The Role of the UN Security Council’(2010) < http://regnet.anu.edu.au/sites/default/files/BD-WorkingPaper1.pdf> accessed 16 March 2015 [26] ibid [27] Tansey Oisín. Regime-building: Democratization and International Administration: Democratization and International Administration (1st edition, OUP 2009) 29 [28] UNSC Res 940 (31 July 1994) S/RES/940 [29] Tansey Oisín. Regime-building: Democratization and International Administration: Democratization and International Administration (1st edition, OUP 2009) 29 [30] V. Popovski, ‘Fighting the Colonel: Sanctions and the Use of Force’ (2011) Jindal Journal of International Affairs Vol 1 148, 153 [31] ibid [32] Council of Europe: Parliamentary Assembly, Resolution 1022 (1994) on the Humanitarian Situation and Needs of the Displaced Iraqi Kurdish population, 27 January 1994, 1022 (1994) [33] Victor D, ‘Pressuring Milosevic: Financial Pressure Against Serbia and Montenegro Part 1’ (2012) <http://www.isn.ethz.ch/Digital-Library/Articles/Special-Feature/Detail/?lng=en&id=154572&tabid=1453376834&contextid774=154572&contextid775=154574> accessed 16 March 2015 [34] Antonio Cassis, International Law (2nd edition, OUP 2005) 351 [35] UNSC Res 1160 (31 March 1998) S/RES/1160 [36] UNSC Res 1199 (23 September 1998) S/RES/1199 [37] UNSC Res 1203 (14 October 2011) S/RES/2013 [38] Neuhold, Hanspeter. ‘Collective Security after “Operation Allied Force”’ Max Planck Yearbook of United Nations Law (2000) 1, 98 [39] Ibid 99 [40] European Union: European Commission, Kosovo (under UNSCR 1244) 2007 Progress Report, 6 November 2007, SEC(2007) 1433 [41] Antonio Cassis, International Law (2nd edition, OUP 2005) 351 [42] Neuhold, Hanspeter. ‘Collective Security after “Operation Allied Force”’ Max Planck Yearbook of United Nations Law (2000) 1, 102 [43] UNSC Res 1368 (12 September 2001) S/RES/1368 [44] UNSC Res 1373 (28 September 2001) S/RES/1373 [45] Eric P.J. and Nigel D., ‘The Twin Tower Attack: An Unlimited Right to Self-Defence?’ (2002) OUP 7 J. Conflict & Sec. L. 5 [46] Thomas M. Frank, ‘Terrorism and the Right of Self-Defense’ (2001)The American Journal of International Law Vol. 95, No. 4 839,843 [47] Eric P.J. and Nigel D., ‘The Twin Tower Attack: An Unlimited Right to Self-Defence?’ (2002) OUP 7 J. Conflict & Sec. L. 5 [48] UNSC Res 1441 (8 November 2002) S/RES/1441 [49] Malone, D.M., ‘The International Struggle Over Iraq: Politics in the UN Security Council 1980–2005’ (2006) OUP [50] Alex J Bellamy, ‘Feature-Legality of the Use of Force Against Iraq, International Law and the War with Iraq’ (2002) MJIL http://www.law.unimelb.edu.au/files/dmfile/downloadd4651.pdf accessed 16 March 2015 [51] Franck, Thomas M. ‘The power of legitimacy among nations’ (1990) OUP Vol. 3. [52] Glennon, Michael J, 'Why the Security Council Failed' (2003) Foreign Affairs 82(3): 16–35. [53] UNSC Res 1973 (17 March 2011) S/RES/1973 [54] Pierre Thielbörger , ‘The Status and Future of International Law after the Libya Intervention’ (2012) GJIL 11,48
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