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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

PAOLO PALCHETTI
PAOLO PALCHETTI*
Affiliation:
Department of Law, University of Macerata, Piaggia dell’Università 2, 62100 Macerata, Italy
*
*Email: palchetti@unimc.it
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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.

Keywords

international institutionsunilateralismUnited Nationsuse of force
Type
Special Articles
Information
Global Constitutionalism , Volume 7 , Issue 3 , November 2018 , pp. 358 - 367
Copyright
Copyright © Cambridge University Press 2018 

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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.

3 The reference is to Kennedy, D, ‘The Move to Institutions’ (1987) 8 Cardozo Law Review 841.Google Scholar

4 Hathaway and Shapiro (n 1) 195.

5 Ibid 195.

6 Kelsen, H, Collective Security under International Law (US Government Printing Office, Washington, DC, 1957) 39.Google Scholar

7 See, among others, Gray, CD, International Law and the Use of Force (Oxford University Press, Oxford, 2008) 254Google Scholar (‘The aim of the drafters of the UN Charter was not only to prohibit the unilateral use of force by states in Article 2(4) but also to centralize control of the use of force in the Security Council under Chapter VII’) and Frank, TM, Recourse to Force: State Action against Threats and Armed Attacks (Cambridge University Press, Cambridge, 2002) 2CrossRefGoogle Scholar (‘The Charter text embodies these two radical new concepts: it absolutely prohibits war and prescribes collective action against those who initiate it’).

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.

11 See Crawford, J and Nicholson, R, ‘The Continued Relevance of Established Rules and Institutions Relating to the Use of Force’ in Weller, M (ed), Oxford Handbook of the Use of Force in International Law (Oxford University Press, Oxford, 2015) 96, 108Google Scholar (‘If the institutionalized inequality of the collective security system does generate a problem of effectiveness, it is that its effectiveness is asymmetric.’).

12 Hathaway and Shapiro (n 1) 371ff.

13 See also Hathaway, OA and Shapiro, SJ, ‘Outcasting: Enforcement in Domestic and International Law’ (2011) 121 Yale Law Journal 252.Google Scholar

14 See J Crawford, Fourth Report on State Responsibility, UN Doc A/CN.4/517, 18. For the debate within the International Law Commission about the role of the UN system of collective security as an appropriate framework for dealing with the legal consequences of grave breaches of international law, see Arcari, M, ‘Parallel Words, Parallel Clauses: Remarks on the Relationship between the Two Sets of ILC Articles on International Responsibility and the UN Charter’ in Ragazzi, M (ed), Responsibility of International Organizations: Essays in Memory of Sir Ian Brownlie (Martinus Nijhoff, Leiden and Boston, MA, 2013) 97.Google Scholar

15 See the ‘Declaration of the Russian Federation and the People’s Republic of China on the Promotion of International Law’ of 25 June 2016 (‘The adoption of unilateral coercive measures by States in addition to measures adopted by the United Nations Security Council can defeat the objects and purposes of measures imposed by the Security Council, and undermine their integrity and effectiveness.’).

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.

18 Franck, TM, ‘Who Killed Article 2(4)? or: Changing Norms Governing the Use of Force by States’ (1970) 64 American Journal of International Law 809.CrossRefGoogle Scholar

19 Dörr, O and Randelzhofer, A, ‘Article 2(4)’ in Simma, B, Khan, D-E, Nolte, G and Paulus, A (eds), The Charter of the United Nations: A Commentary (3rd edn, Oxford University Press, Oxford, 2012) 218, 233.Google Scholar

20 Franck (n 7) 2 (‘New remedies, as we know from medicine, tend to produce unexpected side effects. Article 2(4) of the Charter seemingly cures the Covenant’s normative ambiguities regarding states’ “threat or use of force” against each other. It plugs the loopholes. But […] Has the pursuit of perfect justice unintentionally created conditions of grave injustice?’).

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