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A Crisis of Legitimacy for the UN Collective Security System?

Published online by Cambridge University Press:  17 January 2008

Christine Gray
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Extract

The role of the UN and the legitimacy of its collective security system have been seriously challenged in recent years. First, because of the Security Council.s failure to act in cases of genocide or other humanitarian disaster. There has been much criticism of the limited and delayed response of the Security Council to events in Bosnia-Herzegovina and Rwanda, somewhat unfairly in so far as it was the lack of political will on the part of the Member States rather than any institutional failure that was responsible for the failure to act. Secondly, the UN's central role in collective security has been undermined by unilateral use of force by States. After the terrorist attacks of 11 September 2001 the UN was sidelined with regard to the forcible response against Afghanistan: in Operation Enduring Freedom the USA preferred not to act through the UN or even through NATO. Subsequently, the US National Security Strategy (September 2002) famously made no mention of the UN as a means of addressing perceived new threats from global terrorists. Most seriously, the US Operation Iraqi Freedom in 2003 was undertaken unilaterally, that is, without express Security Council authorization.1 This was often portrayed as a crisis of legitimacy for the UN as much as for the USA and the States which participated in the invasion. As the Deputy Secretary-General put it recently:

Type
Shorter Articles, Comments, and Notes
Information
International & Comparative Law Quarterly , Volume 56 , Issue 1 , January 2007 , pp. 157 - 170
Copyright
Copyright © British Institute of International and Comparative Law 2007

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References

1 Although the USA and the UK did in fact try to rely on Security Council authorization for their action, on the basis of a combination of Resolutions 678, 687 and 1441.Google Scholar

2 UN Press Release DSG/SM/250, 4 04 2005.Google Scholar

3 Secretary-General's address to the UN General Assembly, 23 09 2003.Google Scholar

4 Panel Report, A More Secure World: Our Shared Responsibility, UN Document A/59/565.

5 UN Document A/59/2005.

6 ibid para 23.

7 UN Press Release SG/SM/9978, 5 07 2005.Google Scholar

8 UN Document A/60/L.70

9 International Herald Tribune, 15 09 2005Google Scholar; The Guardian, 15 09 2005.Google Scholar

10 The Guardian, 26 and 27 08 2005.Google Scholar

11 Some States complained about the irregular procedures involved in the adoption of the Document: UN Document GA/10385, 16 09 2005.Google Scholar

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13 UN Documents GA/10379, 10380, 10384, 10385 (2005).Google Scholar

14 Art 51 provides: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the UN, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

15 High Level Panel Report, paras 188–92.Google Scholar

16 States and writers are not consistent in their use of language in this controversial area. For convenience in this paper I will speak of self-defence in response to an imminent threat as anticipatory or pre-emptive, and the use of force in response to non-imminent threats as preventive.

17 In Larger Freedom, at paras 122–6.Google Scholar

18 It is significant that he refers here to ‘lawyers’ rather than to States.

19 In the Oil Platforms case and in the Aerial Incident case the USA did not rely on anticipatory self-defence to justify its use of force; it preferred to argue that it had used force against armed attacks in an ongoing armed conflict.

20 7 Mar 2003 (2005) 54 ICLQ 767, 768.

21 High Level Panel Report, paras 189–92.Google Scholar

22 Assistant Secretary of State Kim Holmes, speech of 12 2004, 2005 (99) AJ 494.Google Scholar

23 See, eg, Garwood-Gowers, ‘Pre-emptive Self-Defence’, 23 Australian Yearbook of International Law 51.

24 After the USA denounced North Korea as part of the Axis of Evil, North Korea on the basis of reciprocity invoked the right of self-defence. This escalation of rhetoric illustrates vividly the danger of pre-emptive action and the abandonment of the language of diplomacy. The destabilizing impact of the ‘Bush’ doctrine and the perverse incentive it offers to States to hasten to acquire weapons of mass destruction may be seen. North Korea in withdrawing from the NonProliferation Treaty (NPT) regime in January 2003 said that it was entitled to take a pre-emptive strike against the USA because of US threats; it had withdrawn from the NPT as a measure of self-defence in the face of US threats (UN Document S/2003/91, 27 Jan 2003, Keesings Record of World Events (2003) 45238).

There were newspaper reports that Japan asserted that it would take pre-emptive action against North Korea if it feared imminent attack (Keesings Record of World Events (2003) 45239). Interestingly, this is not included in the Japanese Annual of International Law. There is some uncertainty as to whether the States concerned were arguing for a very wide preventive right, or merely for a still controversial anticipatory or pre-emptive right.

25 Attorney-General's Advice on the Iraq War, 7 03 2003 (2005) 54 ICLQ 767, 768.Google Scholar

26 Dutch Government positions on the US National Security Strategy, 15 11 2002, Parliamentary Papers 28. 600 V, No 12.Google Scholar

27 Government's Response No 32, 29 10 2004; Report on Pre-emptive Action, Advisory Council on International Affairs and the Advisory Committee on Issues of Public International Law, Report No.36, AIV/No 15, CAVV, July 2004.Google Scholar

28 Response of the Secretary of State for Foreign and Commonwealth Affairs to the Second Report of the Foreign Affairs Committee, Session 2003–4, Cm 5793 at 8.Google Scholar

29 (2005) 54 ICLQ 767, 768.Google Scholar In 2004 he repeated this view that the concept of imminent armed attack would develop to meet new circumstances and new threats, 21 April 2004, See Foreign Affairs Committee 7th Report 2003–2004, 29 07 2004, para 423.Google Scholar

30 Foreign Affairs Committee 7th Report, 29 07 2004, paras 415–29.Google Scholar

31 Summit Outcome Document, para 79.

32 UN Document GA/10337, 10338, 10339, 6–804 2005. For a full account of the debates on the Report of the High Level Panel and on In Larger Freedom, see Chevenier (forthcoming).Google Scholar

33 Liechtenstein, Switzerland, Singapore and Australia had also spoken in favour of anticipatory self-defence in discussion of the High Level Panel Report (see discussion by Chevenier, forthcoming); and Russia supported a right of defence against imminent attack in the General Assembly general debate, 18 09 2005, UN Document GA/10389.Google Scholar

34 See its lengthy Comments on the High Level Panel Report, UN Document A/59/565, 28 02 2005, paras 26–8Google Scholar; and also UN Document A/59/PV.85, pp 14–15.Google Scholar

35 Gray, , ‘The principle of the non-use of force’ in Lowe, V and Warbrick, C (eds), The UN and the Principles of International Law (Routledge, New York, 1994) 33.Google Scholar

36 High Level Panel Report, paras 193–8.Google Scholar

37 See discussion by A-M Slaughter, ‘Security, Solidarity and Sovereignty: the Grand Themes of UN Reform’ (2005) 99 AJIL 619, 626Google Scholar; Brunnee and Toope, ‘The Use of Force: International Law after Iraq’ (2004) 53 ICLQ 785, 804.Google Scholar

38 High Level Panel Report, 204–209.Google Scholar

39 In Larger Freedom, para 126.

40 UN Document GA/10337, 10338, 10339.

41 Speech at the Lauterpacht Centre for International Law, University of Cambridge, 10 2005.Google ScholarSee also Blokker, and Schrijver, (eds), The Security Council and the Use of Force (Martinus Nijhoff, Boston, Leiden, 2005).Google Scholar

42 Summit Outcome Document, para 79.

43 UN Documents SG/SM/10089, 13 09 2005Google Scholar; SG/SM/10170, 17 10 2005.Google Scholar

44 High Level Panel Report, paras 199–203.Google Scholar

45 In Larger Freedom, paras 122 and 135.Google Scholar

46 ibid para 139.

47 UN Document A/59/565, 28 02 2005, para 17.Google Scholar

48 UN Document GA/10337, 10338, 10339, 6–804 2005.Google Scholar

49 Ukraine, Poland.

50 The AU Constitutive Act Art 4(h) provides for intervention. In so far as this may be interpreted as allowing the AU to intervene without Security Council authority it is controversial whether it is compatible with the UN Charter. The AU operation in Sudan was carried out with the consent of the Government.

51 UN Press Release DSG/SM/257, 4 04 2005.Google Scholar

52 State of the Union Address, 20 01 2004, <http://www.whitehouse.gov/news/releases/2004/01/20040120-7.html>..>Google Scholar

53 See Gray (n 35) 33.Google Scholar