Editors’ note: This post is a condensed version of the author’s keynote address at the conference “International Law and the Regulation of Resort to Force: Exhaustion, Destruction, Rebirth?” delivered at Palacký University in Olomouc, Czech Republic. It draws on Erika de Wet & Marko Svicevic, “The Military Clauses in the Treaty of Versailles and the Birth of a Collective Security System” in Société Française pour le Droit International / Deutsche Gesellschaft für Internationales Recht, The Versailles Treaty: French and German Perspectives in International Law on the Occasion of the Centenary (Pedone, Paris 2020) p. 149-67.
“The Charter of the United Nations continues to wilt under the relentless assault of the powerful . . . . In one moment it is invoked with reverence by the very same countries who then turn their backs on it in pursuit of objectives diametrically opposed to international peace and security.”
This quotation is from a statement by the Kenyan Ambassador to the United Nations in February 2022 on the eve of the Russian invasion of Ukraine. In so doing, Russia violated fundamental obligations under international law, ranging from the unlawful use of force and the violation of the territorial integrity of Ukraine to serious violations of international humanitarian and human rights law.
The subsequent condemnation of the invasion by the UN General Assembly (UNGA) as aggression in violation of article 2(4) of the UN Charter was therefore on point; as were statements issued by the members of the European Union (EU) describing the invasion as “grossly violat[ing] international law and the principles of the UN Charter.” The United States for its part condemned the invasion as a violation of the rules-based international order. However, as John Dugard illustrated in a 2023 article in the Leiden Journal of International Law (p. 223-32), the United States’ references to “rules-based international order” remains undefined. He, inter alia, notes that whereas EU member States tend to link this term to respect for international law, it is debatable whether the United States considers its notion of a “rules-based international order” as including the UN Charter system and other rules of international law.
In line with this concern, this post makes the claim that it is the persistent ambivalence and at times cynicism of all major powers that have posed the greatest threat to the notion of collective security over the past century and is likely to continue doing so in the immediate future.
At this juncture it is worth recalling that the Covenant of the League of Nations in Part I of the Treaty of Versailles has been described as the first serious attempt in modern times to institutionalize collective security (Tams, para. 1). However, with the vision of hindsight, the absence from the League Covenant of a centralized decision-making procedure for determining acts of aggression and imposing enforcement measures was one of its greatest weaknesses (Tams, para. 30). In addition, it never enjoyed the full support of all great powers, while fluctuating membership further undermined the League’s work. Ultimately the League’s members failed it (Tams, para. 4).
The following paragraphs will illustrate that similar challenges currently face the United Nations system of collective security that succeeded the League of Nations and constitutes the foundation of post-Second World War collective security. One of the biggest achievements of the UN Charter, compared to the League Covenant, was the centralization of decisions pertaining to the use of force with the UN Security Council (UNSC) in accordance with Chapter VII. Yet, major powers have systematically undermined this very achievement, in particular by underpinning seminal post-Cold War UNSC mandates with ambivalent legal bases that made them vulnerable to abusive interpretation. In addition, States, at times through regional…
This article was originally published by a lieber.westpoint.edu . Read the Original article here. .