A crisis of legitimacy for the UN collective security system?

International and Comparative Law Quarterly

Volumn 56, Issue 1, 2007, Pages 157-170

  Gray, Christine ^a  

^a UNIVERSITY OF CAMBRIDGE   (United Kingdom)

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EID: 33846068900     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1093/iclq/lei154     Document Type: Article

References (56)

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.
2. UN Press Release DSG/SM/250, 4 April 2005.
3. Secretary-General's address to the UN General Assembly, 23 Sept 2003.
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 July 2005.
8. UN Document A/60/L.70
9. International Herald Tribune, 15 Sept 2005
10. The Guardian, 15 Sept 2005.
11. The Guardian, 26 and 27 Aug 2005.
12. Some States complained about the irregular procedures involved in the adoption of the Document: UN Document GA/10385, 16 Sept 2005.
13. Schrijver, Speech at the Lauterpacht Centre for International Law, University of Cambridge, Oct 2005.
14. UN Documents GA/10379, 10380, 10384, 10385 (2005).
15. 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.
16. High Level Panel Report, paras 188-92.
17. 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.
18. In Larger Freedom, at paras 122-6.
19. It is significant that he refers here to 'lawyers' rather than to States.
20. 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.
21. 7 Mar 2003 (2005) 54 ICLQ 767, 768.
22. High Level Panel Report, paras 189-92.
23. Assistant Secretary of State Kim Holmes, speech of December 2004, 2005 (99) AJ 494.
24. See, eg, Garwood-Gowers, 'Pre-emptive Self-Defence', 23 Australian Yearbook of International Law 51.
25. 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 Non-Proliferation 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.
26. Attorney-General's Advice on the Iraq War, 7 Mar 2003 (2005) 54 ICLQ 767, 768.
27. Dutch Government positions on the US National Security Strategy, 15 Nov 2002, Parliamentary Papers 28. 600 V, No 12.
28. Government's Response No 32, 29 Oct 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.
29. 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.
30. 5) 54 ICLQ 767, 768. In 2004 he repeated this view that the concept of imminent armed attack would develop to meet new circumstances and new threats, 21 Apr 2004, See Foreign Affairs Committee 7th Report 2003-2004, 29 July 2004, para 423.
31. See Foreign Affairs Committee 7th Report 2003-2004, 29 July 2004, para 423.
32. Foreign Affairs Committee 7th Report, 29 July 2004, paras 415-29.
33. Summit Outcome Document, para 79.
34. UN Document GA/10337, 10338, 10339, 6-8 April 2005. For a full account of the debates on the Report of the High Level Panel and on In Larger Freedom, see Chevenier (forthcoming).
35. 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 Sept 2005, UN Document GA/10389.
36. See its lengthy Comments on the High Level Panel Report, UN Document A/ 59/565, 28 Feb 2005, paras 26-8; and also UN Document A/59/PV.85, pp 14-15.
37. Gray, 'The principle of the non-use of force' in V Lowe and C Warbrick (eds), The UN and the Principles of International Law (Routledge, New York, 1994) 33.
38. High Level Panel Report, paras 193-8.
39. See discussion by A-M Slaughter, 'Security, Solidarity and Sovereignty: the Grand Themes of UN Reform' (2005) 99 AJIL 619, 626
40. Brunnee and Toope, 'The Use of Force: International Law after Iraq' (2004) 53 ICLQ 785, 804.
41. High Level Panel Report, 204-209.
42. In Larger Freedom, para 126.
43. UN Document GA/10337, 10338, 10339.
44. Speech at the Lauterpacht Centre for International Law, University of Cambridge, Oct 2005. See also Blokker and Schrijver (eds), The Security Council and the Use of Force (Martinus Nijhoff, Boston, Leiden, 2005).
45. Summit Outcome Document, para 79.
46. UN Documents SG/SM/10089, 13 Sept 2005; SG/SM/10170, 17 Oct 2005.
47. High Level Panel Report, paras 199-203.
48. In Larger Freedom, paras 122 and 135.
49. ibid para 139.
50. UN Document A/59/565, 28 Feb 2005, para 17.
51. UN Document GA/10337, 10338, 10339, 6-8 Apr 2005.
52. Ukraine, Poland.
53. 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.
54. UN Press Release DSG/SM/257, 4 Apr 2005.
55. State of the Union Address, 20 Jan 2004, .
56. See Gray (n 35) 33.