Collective Security and the Maintenance of International Peace and Security
Administrative Notes and Assessment Feedback
Feedback Release: Feedback for the practice-based task (the midterm assessment essay) will be released on iLearn immediately after the lecture (originally planned for the following day).
Location: The feedback will be available under the "Midterm Assessment" tab.
Content Focus:
The feedback focuses primarily on the substance of the law and what was expected to be covered in the essay.
Students should note that final marks also reflect structure, writing style, and strict compliance with the Australian Guide of Legal Citation (AGLC).
Introduction to Collective Security and the Maintenance of Peace
Core Context: This topic is inextricably linked to the previous lectures regarding the use of force.
General Prohibition: Under Article 2(4) of the UN Charter, the use of force in international relations is prohibited.
Exceptions to the Prohibition:
Self-Defense: Found in Article 51 of the UN Charter and established as a norm of customary international law (as discussed in previous weeks).
Collective Security Authorization: Authorization of the use of force by the UN Security Council under Article 42 of the UN Charter.
The United Nations System: Purpose and Structure
Historical Origins: Created at the end of World War II to promote peaceful relations and prevent future wars.
Founding Purpose: Expressed in Chapter 1, Article 1 and the preamble, the primary aim is to "save succeeding generations from the scourge of war."
Influence of the Victors: The structure reflects the 1945 geopolitical reality; the Allied powers (the victors) possess the most influence, which is institutionalized through the permanent membership of the Security Council.
The UN Organogram (Principal Organs)
General Assembly: The main deliberative, policymaking, and representative organ.
Security Council: Holds primary responsibility for international peace and security.
International Court of Justice (ICJ): The principal judicial organ.
Economic and Social Council (ECOSOC): Coordinates economic, social, and related work.
The Secretariat: Functionally the "public service" of the UN.
Related Organizations and Specialized Agencies: Examples include UNICEF, World Food Program (WFP), World Trade Organization (WTO), World Bank, UNESCO, and the International Maritime Organization (IMO).
Conceptualizing Collective Security
Definition: A method and process where the responsibility for maintaining security is shifted from individual states to a collective body of states.
Precursors and Modern Equivalents:
The League of Nations: The precursor to the UN, based on this principle.
NATO (North Atlantic Treaty Organization): Specifically Article 5, which dictates that an armed attack on one member is an attack on all.
The Supremacy of the UN Charter: Regional organizations like NATO must act within the UN Charter framework.
They can act in self-defense under Article 51.
If they use force without being attacked (e.g., the intervention in Libya), they must obtain authorization from the Security Council under Article 42.
Composition and Reform of the Security Council
Membership (15 Total):
Permanent Members (P5): United States, China, Russia, France, and the United Kingdom. They possess veto power and significant "institutional knowledge."
Non-Permanent Members (10): Elected for two-year terms with a staggered rotation (5 new members every year). They lack veto power.
Geographical Allocation: Seats are distributed by region. Australia sits in the "Western Europe and Other States" category (two seats available).
Australia’s Participation: Australia has served on the Council five times. It is currently campaigning unopposed for the 2029–2030 term.
Reform Debates: There have been calls for reform for over 20 years to reflect modern economic and population realities. Contenders for permanent seats include Japan, Brazil, India, and various African states. The Charter was last amended in the 1970s to increase non-permanent members, but current reform is stalled.
Legal Authority and Binding Decisions
Primary Responsibility: Article 24 assigns the primary responsibility for peace and security to the Security Council.
Binding Nature: Under Article 25, member states agree to accept and carry out Council decisions.
Supremacy Clause: Article 103 maintains that Security Council decisions prevail over any other international treaty obligations (e.g., a state must follow Council sanctions even if they conflict with rights in the European Charter of Human Rights).
Linguistic Nuance:
"Decides": Indicates a binding decision.
"Calls upon": Typically indicates a recommendation, which is not strictly binding.
Chapter VI: Peaceful Settlement of Disputes
Article 33: Lists tools such as negotiation, mediation, arbitration, and judicial settlement.
Article 33(2): The Security Council shall, when it deems necessary, call upon parties to settle disputes by these means.
Interaction with ICJ: The Council can refer legal disputes for adjudication at the International Court of Justice.
Chapter VII: Collective Security and Response to Threats
Article 2(7) Exception: Collective security measures are an exception to the prohibition on UN intervention in the internal affairs of member states.
Article 39 (The Gateway): Before acting under Chapter VII, the Council must determine the existence of a threat to the peace, a breach of the peace, or an act of aggression.
Breach/Aggression Examples: Rare historical determinations, including the 1980s Iraq-Iran war and the 1990 invasion of Kuwait.
Threat to the Peace (Evolution): This has expanded beyond interstate conflict to include:
Nuclear proliferation.
Terrorism.
Gross human rights violations (e.g., Rwanda 1994).
Internal conflict and mass population displacement (e.g., Syria, Ukraine).
Epidemics: The 2014 Ebola outbreak in Africa was formally declared a threat to international peace and security.
Implementation Mechanisms: Articles 40 and 41
Article 40 (Provisional Measures): Measures taken to prevent the aggravation of a situation (e.g., ceasefires, establishing humanitarian aid delivery conditions). There is an expert consensus that an Article 39 determination should precede these.
Article 41 (Non-Forcible Measures): These include the interruption of economic relations, communications (rail, sea, air, etc.), and the severance of diplomatic relations.
The Sanctions Regime
Comprehensive Sanctions: Broad impacts on a country's entire economy. Example: Iraq (1990–2003). These were heavily criticized for damaging civilian populations who had no control over leadership.
Targeted / "Smart" Sanctions: Strategic measures aimed at specific individuals, groups, or commodities:
Travel bans.
Asset freezes.
Commodity Bans: Examples include "Blood Diamonds" in Sierra Leone and the Democratic Republic of Congo (linked to the Kimberley Process).
Arms Embargoes: Preventing access to weapons.
Hybrid Cases: The North Korea (2017) sanctions regime is so extensive that it functionally resembles a comprehensive regime.
Other Article 41 Measures
Ad Hoc Tribunals: Creation of the International Criminal Tribunal for the former Yugoslavia (ICTY) and for Rwanda (ICTR).
ICC Referrals: Under Article 13(B) of the Rome Statute, the Security Council can refer cases to the International Criminal Court (e.g., Darfur 2005, Libya 2011).
Article 42: Forcible Measures (The Use of Force)
Last Resort: Force is authorized if the Council considers Article 41 measures inadequate or if they have proven to be inadequate. The Council does not have to exhaust sanctions first; it only needs to turn its mind to whether they would be sufficient.
Article 43 (The Failed Provision): Originally intended for members to provide a standing military force to the UN. This never materialized as states wished to maintain control of their own militaries.
Practical Implementation: The Council authorizes volunteer states or coalitions to use force in specific situations.
Operation Desert Storm (1990/91): Coalition led by the US against Iraq's invasion of Kuwait.
Language of Authorization: The Council uses the phrase "all necessary means" rather than explicitly saying "use force."
Diverse Applications of Force:
Internal Conflicts: Somalia, Haiti, Albania.
Protection of Civilians: Libya (enforcement of no-fly zones).
Repression of Piracy: Off the coast of Somalia.
Controversy: Revived or Implied Authorization
The Iraq 2003 Case: The US, UK, and Australia invaded Iraq without a specific new authorization for force.
The "Revived Authorization" Argument: Proponents argued that Resolution 678 (from 1990) was "revived" because Iraq breached the ceasefire terms regarding weapons of mass destruction (linked to Resolution 1441, which threatened "serious consequences").
Global Response: This theory was highly controversial; while the US-led coalition used it as justification, the majority of states did not agree with this interpretation of legal authority.