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Some Reflections on Collective Security and the Use of Force: A Critical Review of Dinstein's War, Aggression and Self-Defence*

Published online by Cambridge University Press:  21 May 2009

Eric P. J. Myjer
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Brief Report
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Netherlands International Law Review , Volume 44 , Issue 1 , May 1997 , pp. 89 - 101
Copyright
Copyright © T.M.C. Asser Press 1997

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Footnotes

**

Dr. Eric P.J. Myjer is Associate Professor of Public International Law at the Europa Institute, Utrecht University and at the Institute of International Law of the University of Amsterdam. The author would like to thank Ige Dekker and Professor Bert Vierdag for their valuable comments.

References

1. The successful cooperation within the Security Council could already be seen with regard to the Soviet withdrawal from Afganhistan in 1988/89, Namibia's independence in 1990 and the Cuban withdrawal from Angola in 1989.

2. SC/Res/688 (April 5, 1991).

3. Compare the remarkable conclusion of two combined Dutch governmental advisory committees on the question of the use of force for humanitarian purposes, namely that in exceptional circumstances a State may be justified in intervening in another State for humanitarian purposes: ‘At present international law does not offer a well-defined legal foundation for the threat or use of force by states, without reference to Chapter VII of the Charter, to counteract large-scale violations of fundamental rights. The Committees do, however, believe that the commitment to international protection and promotion of the fundamental rights of individuals and groups has developed into a universal obligation which rests on every state in the world community, both individually and collectively. It is an obligation which is increasingly affecting the evolution and application of international law, which originally regulated the relations between states and served raison d'etat. In the opinion of the Committees, this obligation constitutes the first step towards a legal foundation for humanitarian intervention. A state may, in exceptional circumstances, be justified in intervening in another state for humanitarian purposes’.(5.7) and ‘If action is called for in the light of large-scale human rights violations, it should preferably be taken by the Security Council [sic] or by a regional organisation authorised by the Security Council. Only if the Security Council or a regional organisation is unable to decide on action, would it be possible for a state or group of states to take the decision on humanitarian intervention, provided certain very stringent conditions have been satisfied. Any state which does intervene should report its action immediately to the Security Council and should render account’.(5.10) (emphasis added), pp. 16–17: the official Netherlands Advisory Committee on Issues of Public International Law and the Advisory Committee on Human Rights and Foreign Policy in its report entitled The Use of Force for Humanitarian Purposes (18 June 1992).

4. ‘While Resolution No. 688 did not expressly support military intervention for humanitarian reasons, such was the actual outcome’, at p. 90.

5. The mandate being the insistence ‘… that Iraq ai/ow immediate access by international humanitarian organizations to all those in need of assistance in all parts of Iraq and to make available all necessary facilities for their operations;’ —operative paragraph 3 SC/Res/688 (April 5, 1991).

6. ‘The very fact that the coalition felt compelled to obtain from the Council a mandate for action on Iraqi territory demonstrates that there is no unilateral right of humanitarian intervention’, at p. 91.

7. Supra n. 4.

8. See for instance the International Herald Tribune (3 September 1996).

9. ‘Condems the repression of the Iraqi civilian population in many parts of Iraq, including most recently in Kurdish populated areas, the consequences of which threaten international peace and security in the region’ (emphasis added), SC/Res/688 (April 5, 1991).

10. Feinberg, N., Studies in International Law (1979) at p. 70.Google Scholar

11. ‘… after close to half a century, the key clause in the collective security system - Article 42 - has yet to be made use of’ (at p. 295).

12. ‘The core of the resolution was the prospective approval of future action’ (p. 273).

13. Note the progressive order of Security Council actions within the whole string of resolutions adopted, starting with the establishment of a breach of international peace and security and the demand for unconditional withdrawal (SC/Res 660/August 2,1990) via economic sanctions (SC/Res 661/August 6, 1990) and some use of military force (‘… to halt all inward and outward maritime shipping in order to inspect and verify their cargoes and destinations and to ensure strict implementation of the provisions related to such shipping laid down in resolution 661 (1990)…’) allowing for ‘maximum use of political and diplomatic measures’ (to ensure compliance with die provisions of Resolution 660(1990) (SC/Res 665/August 25, 1990) up to finally the mandate for full military power allowing ‘… to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area’ (SC/Res 678/November 29, 1990).

14. Geiger, R. in Simma, B., Charter of the UN (1994), see his comment on Art. 106, at pp. 1150–1151.Google Scholar See also my article ‘De Verenigde Naties als Collectieve Veiligheidsorgansatie’, in van der Graaf, H.J. et al. , eds., Het Vredesproces in beweging (1994) at p. 34.Google Scholar

15. Resolution 678.

16. Also Frowein, J.A., in Simma, op. cit. n. 14, at p. 634 et seq.Google Scholar

17. ‘Notwithstanding contrary views, it is clearly not enough (under article 51) for the Security Council to adopt just any resolution, in order to divest Member States of the right to continue to resort to force in self-defence against an armed attack. Even when the Council imposes economic sanctions in response to aggression, such measures by themselves cannot override the right of selfdefence. The only resolution mat will engender that result is a legally binding decision, whereby the cessation of the (real or imagined) defensive action becomes imperative’ (p. 209). ‘Once a Member State is instructed in a conclusive manner to refrain from any further use offeree, it must comply with the Council's directive’ (p. 207), and ‘Whenever the Council decrees in a binding manner a withdrawal of forces or a cease-fire, the legal position is unequivocal: every Member State is obligated to act as the Council ordains and it can no longer invoke self-defence’ (p. 208).

18. One could for instance allow for the following nuance. When, as in the case of the Iraqi invasion of Kuwait, there is a fait accompli situation because the territory of the defending State has already been fully occupied, the situation is markedly different from a situation in which there is still ongoing aggression. In the former case, militarily speaking, there is less urgency for a continued defence than in the latter. In the latter case it cannot be expected that already the very first involvement of the Security Council, one not yet involving any form of enforcement action, automatically has to lead to a unilateral cease-fire on the part of the defending State. For this would leave it without some alternative form of defence put into place by the Security Council. This would place the defending State at the mercy of the aggressor, for it would then be condemned, at least momentarily, to a ‘wait and see’ position until the aggressor State would be prepared to decide on a cease-fire as a result of, for instance, a mere call on the aggressor State to cease hostilities and/or withdraw its forces to status quo ante positions. The same argument, but with less force, could be made in relation to some provisional measure or economic boycott measures. In these latter cases, where the Security Council has decided on measures one cannot get around the question whether these measures are the ‘measures necessary to maintain international peace and security’ under Art. 51 of the Charter; in other words whether they are adequate. In my opinion, however, it is up to the Security Council to decide on this matter, provided it can so decide. And it can be held that it should, as a matter of principle, clarify this situation by pronouncing its standpoint on some minimal (objective) criteria it will take into consideration, when deciding on the adequacy of measures such as: whether the attacked State has already been completely overrun, whether there is a cease-fire or whether the Security Council is directly or indirectly involved militarily. In the absence of either a specific Security Council decision or such a general pronouncement (guideline) it could be argued that in these latter cases until the aggressor has decided on a cease-fire, selfdefence continues, irrespective of the fact that the Security Council has involved itself in the issue and parallel to the enforcement measures it has taken. The situation, however, changes substantially from the moment the Security Council has decided on military enforcement measures under Art. 42, whether mandated or not. Under those circumstances also the scope of the particular decision and the way in which it is carried out and the compatibility of both military operations simultaneously military enforcement measures and the self-defence operations—should be taken into consideration. As a rule, however, military involvement by the Security Council prima facie makes it a measure necessary to maintain international peace and security. This could be called the principle of military effectiveness.

19. Starting on the basis of Resolution 836 (S/Res/836 (1993) (‘… acting nationally or through regional organizations or arrangements …’). For an extensive analysis of the question whether NATO can act as a regional arrangement and its involvement in Bosnia as an instrument of the Security Council, both from the point of view of the NATO Treaty and from that of the Charter, see Dekker, I.F. and Myjer, E.P.J., ‘Het NAVO-optreden in Bosnië — Een juridische Analyse van de NAVO als Instrument van de VN-Veiligheidsraad’, 24 Transaktie (1995) pp. 487–508.Google Scholar An English translation of a shortened version and the ensuing discussion in the Nederlands Juristenblad has appeared in 9 LJIL (1996) p. 422. An extensive English language version of their article will appear in the 1996 Polish YIL.Google Scholar

20. See for instance Beckett, Sir Eric, The North Atlantic Treaty, The Brussels Treaty and the Charter of the United Nations (1950) at p. 16.Google Scholar

21. This makes it important to know what is meant by ‘region’. Dinstein writes, quoting Thomas, A. V. W. and Thomas, A.J. (Non-intervention (1956) p. 78)):Google Scholar ‘A region in the sense of Article 52 should not be construed narrowly, along lines of “geographical propinquity’, and it may comprise any limited community of States “joined together by ties of interest”’ (at p. 252). This is obviously based on Kelsen, H., The Law of the United Nations (1951) at p. 320.Google Scholar Stone, J., Legal Controls of International Conflict (1959) at p. 247, takes a different view: ‘Certain of the qualifications of such a regional arrangement or agency are clear. Obviously a standing agreement between States Members of the United Nations, constituting a more limited community than that of the United Nations itself, is presupposed. It must deal, at least, with “matters relating to the maintenance of international peace and security”. Finally some relation to a “region” is implied; but what it is is obscure’. With regard to the latter he then takes side with Kelsen's view that ‘all the Parties need not be within the region’ (at p. 247).Google Scholar

22. See Art. 52.

23. ‘The participating States, reaffirming their commitments to the Charter of the United Nations as subscribed to by them, declare their understanding that the CSCE is a regional arrangement in the sense of Chapter VIII of the Charter of the United Nations and as such provides an important link between European and global security …’ 31 ILM(1992)p. 1392. But it should be remembered that in contradistinction to NATO the CSCE — OSCE at present — is not treaty based.Google Scholar

24. Bevin, Ernest, Hansard, Vol. 464, col. 2018–9,12 05 1949.Google Scholar Also see Goodhart, A.L., ‘The North Atlantic Treaty of 1949’, 79 Hague Recueil (1951) at p. 221.Google Scholar

25. Bevin at col. 2018 ‘… It is designed to secure the parties against aggression from outside until such time as the Security Council has taken the necessary measures’.

26. In this vain Stone, , op. cit. n. 21, at p. 248; ‘[… it is only by reference to this self controlling nature of the ‘region’ that plain absurdities in article 52–53 can be avoided]. If an alliance for defence against a Permanent Member from outside the region were a “regional arrangement” even military staff plans would have to be disclosed in advance to the potential aggressor; and the potential aggressor's own consent obtained before he could be resisted’. See below.Google Scholar

27. P. 253.

28. Kelsen, H., The Law of the United Nations (1954) at p. 918.Google Scholar

29. Ibid. p. 920.

30. Stone, , op. cit. n. 21, at p. 251.Google Scholar

31. Interestingly Kelsen refers to (collective) self-defence also as enforcement action (‘the enforcement action taken in the exercise of collective self-defence being different from the enforcement action which may be taken under a regional arrangement …’) (Kelsen, , op. cit. n. 28, at p. 922). This may have confused the debate on this issue.Google Scholar

32. Stone, , op. cit. n. 21, at pp. 248–249.Google Scholar

33. ‘Wahrend die regionalorganisationen vorwiegend bestrebt sind, den Frieden innerhalb ihrer Region zu sichern und eine Verteidigung gegen von aussen kommende Angriffe als eine logische Weiterentwicklung ihres primaren Zielesauffassen, dienendie Regionalen Verteidigungsorganisationen vor allem der Verteidigung gegen Angriffe von aussen’…, Seidl-Hohenveldern, I. and Loibl, G., Das Recht der internationalen Organisationen einschliesslich der supranationalen Gemeinschaften (1992) at p. 306.Google Scholar

34. Review of the first edition of Dinstein, Y., War, Aggression and Self-defence (1988) in 2 LJIL (1989) pp. 278–284.Google Scholar

35. ICJ: Advisory opinion on the legality of the threat or use of nuclear weapons (July 8,1996), 35 ILM (1996) p. 809 et seq.Google Scholar