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Outlawry but with teeth: The problem of enforcing peace through international institutions
Published online by Cambridge University Press: 14 November 2018
Abstract:
If the main merit of The Internationalists is to shed light, in a powerful and convincing way, on the transformative power of rules, the role of institutions – and in particular of the United Nations and its collective security system centred around the activity of the Security Council – does not come out of the book as clearly as it might. It is submitted that the decision to concentrate upon the rule – the prohibition to use force – while limiting the attention paid to the institution – the United Nations and its collective security system – is not without consequence, particularly given the strict link existing, in the common perception, between the rule and the institution. This brief comment will focus on certain ambivalences emerging from the book about the contribution of the United Nations, as a peace-enforcing organisation, to fostering the emergence of a New World Order, as well as its continuing relevance for preserving the effectiveness of the principle on non-use of force.
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References
1 Hathaway, OA and Shapiro, SJ, The Internationalists: How A Radical Plan to Outlaw War Remade the World (Allen Lane, London, 2017) 106.Google Scholar
2 Ibid 193ff.
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5 Ibid 195.
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8 Suffice here to mention art XXI of GATT 1947 (‘Nothing in this Agreement shall be construed […] (c) to prevent any contracting party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security’).
9 Thus, art 11 of the Italian Constitution, adopted in 1948, first affirms that Italy ‘rejects war as an instrument of aggression’ and ‘as a means for the settlement of international disputes’; it then adds that ‘Italy agrees, on conditions of equality with other states, to the limitations of sovereignty that may be necessary to a world order ensuring peace and justice among the Nations’ and ‘promotes and encourages international organizations furthering such ends’. Art 24 of the Constitution of the Federal Republic of Germany, adopted in 1949, provides that ‘with a view to maintaining peace, the Federation may enter into a system of mutual collective security’.
10 Hathaway and Shapiro (n 1) 369.
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16 Hathaway and Shapiro (n 1) 415.
17 Ibid 419. However, the view that ‘the United States has served an important – indeed, leading – role in policing the system’ and that ‘the success of the system depends on the willingness of the United States to continue to play a central role in maintaining the legal order in the face of these many challenges’ (ibid 418) can hardly be regarded as an accurate description of the current situation, given the unilateralism that has increasingly (and not only under the present administration) characterised the international action of the United States and of its Western allies on many issues, including on matters related to the use of force. The non-UN-authorised interventions in Kosovo in 1999 and in Iraq in 2003 are the first examples that come to mind.
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21 For a restrictive interpretation of the scope of art 2(4) of the UN Charter, that is based upon the consideration of the emergence of communitarian values, see Picone, P, ‘La “guerra del Kosovo” e il diritto internazionale generale’ (2000) 83 Rivista italiana di diritto internazionale 309.Google Scholar