Is the collective security system a limitation to state sovereignty.
Papa Modou Diouf
Abstract
To overcome what international relations theorists call the anarchy of the international system,
which is explained by the absence of any supreme authority over the states, the United Nations
was set up after the second World War - to replace the League of Nations. The UN’s main role is
to gather states forming the international system around a social contract to maintain
international peace and security and encourage cooperation between sovereign state entities. In
this respect, the UN has created a system of collective security, which introduces a relative
balance of power and mutual respect between states. However, in recent decades, this system of
collective security scope has extended to challenge the member states sovereignty. Therefore it
seems relevant to analyze how the United Nations collective security system could be (is?) a
limitation to state sovereignty. Notions of collective security and sovereignty and their
determinants will be examined throughout the analysis with regard to the primary function of the
UN, which is the maintenance of international peace and security. This paper is divided in two
sections. The first section analyses the basis of the UN collective security system with regard to
the UN Charter and other sources of international law; the second section shows how state
sovereignty could eventually be limited when it comes to maintain international peace and
security.
INTRODUCTION
The collective security system is defined, according to the UN Charter, Article I (1), as the
maintenance of international peace and security by taking effective collective measures for the
prevention and removal of threats to the peace, by suppressing acts of aggression, and by
bringing about, in conformity with the principals of international law, settlement of international
disputes that might lead to a breach of the peace.
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The UN organizes collective security in light of international law contained in the United Nations
Charter of 1945 and customary international law. Therefore, the state signatories of the charter are
subjects of international law responsible for the preservation of peace and security in the world.
However, by signing this charter, don’t states voluntarily, abdicate a part of their national
sovereignty? Wouldn’t the UN Charter be the best means to strengthen states’ national
sovereignty in an international anarchy system? Furthermore, is a country that is no longer able to
ensure the safety and material wellbeing of its citizens really sovereign? Is a state, which does not
take into account its people’s will, really a sovereign state? What is the role of the guardians of
collective security against the violation of fundamental human rights and freedoms in a country
signatory to the UN Charter and therefore accountable to any international judicial bodies and the
international community? Faced with these questions on the topic, a priori, abstruse, we shall see
to what extent the collective security system of the United Nations can protect and strengthen
member-states’ sovereignty before showing how state sovereignty can be limited or called
challenged in specific situations.
I ° INTERNATIONAL LAW, A TOOL BY AND FOR STATES
The Collective Security System For a Pacified and United International Legal Order
Intersubjective relations at the international level have always been a dominant and influential
relationship both between individuals and between state entities. After the Thirty Years War, the
Treaty of Westphalia, 1648, enabled the recognition of the sovereignty of each state thus giving a
possibility to set up peaceful international relations and the prevention of war. However, this did
not prevent the outbreak of two World Wars in the modern world. These two wars, within the span
of one human lifetime, caused material and moral damage and led many to question human nature
and the meaning of all scientific and technical progress achieved so far.
After World War I, the League of Nations was established in 1919 as part of President Wilson's
Fourteen Points to prevent a repeat of history and protect future generations from similar
tragedies. Unfortunately the League of Nations, which would have ensured, alongside memberstates, international collective security, would not last long. The lack of interest of member states
and the economic crisis of the 1930s precipitated the failure of a collective security system. The
emergence of fascist movements and Nazism and their desire to dominate other sovereign
territories led to World War II. In the aftermath of the war, all "free" states reaffirmed their will
« to save succeeding generations from the scourge of war, which twice in our lifetime has brought
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untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and
worth of the human person, in the equal rights of men and women and of nations large and small,
and to establish conditions under which justice and respect for the obligations arising from
treaties and other sources of international law can be maintained, and to promote social progress
and better standards of life in larger freedom » in the preamble of the United Nations’ Charter in
San Francesco on June 26th, 1945. The state signatories of this charter establishing the United
Nations and collective security system have a duty « to maintain international peace and security,
and to ensure, by the acceptance of principles and the institution of methods, that armed force
shall not be used, save in the common interest ». Therefore, the collective security system, in
terms of international law, preserves states from any violation of their national sovereignty and
any other form of pressure from another third country.
The U.N Charter, the Best Means to Protect Member-States Sovereignty
In many ways, the UN Charter established an international law that seems keen to respect and
protect national sovereignty of all signatory states. In fact, Article 2 (1) of the charter emphasizes
as the first basic principle of the UN that « The Organization is based on the principle of the
sovereign equality of all its Members ». This shows that each member state is sovereign, whatever
its surface area, population, and level of socio-economic development. In other words, no country
can legally claim to be superior in terms of voice or participation in UN bodies.
Furthermore, the Charter stipulates in paragraph Article 2 (4) that « All Members shall refrain in
their international relations from the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner inconsistent with the Purposes of the
United Nations. » The Organization of the United Nations forbids arbitrary interference in
member-states’ internal affairs without their explicit consent. Paragraph 7 of Article 2 stresses, in
this regard, that «Nothing contained in the present Charter shall authorize the United Nations to
intervene in matters which are essentially within the domestic jurisdiction of any state or shall
require the Members to submit such matters to settlement under the present Charter… ». These
provisions show that at no time is it legally permissible for a state to undermine the sovereignty
and territorial integrity of another. Therefore the state, which would violate the sovereignty of
another member-state of the organization, would have its act qualified as an "aggression" and be
sanctioned by the United Nations. In the same vein, Article 51, Chapter VII of the Charter, on
« action with respect to threats to the peace, breaches of the peace, and acts of aggression »,
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argues that « Nothing in the present Charter shall impair the inherent right of individual or
collective self-defense if an armed attack occurs against a Member of the United Nations, until
the Security Council has taken measures necessary to maintain international peace and
security… » This was clearly demonstrated during the illegal invasion of Kuwait by Iraq under
Saddam Hussein in August 1990. The invasion was quickly condemned by the U.N Security
Council in Resolution 660 of August 2, 1990, which “condemns the invasion of Kuwait by Iraq;
demands that Iraq withdraw immediately and unconditionally all its forces to the positions in
which they were located on 1 August 1990; undertakes Iraq and Kuwait to begin immediately
intensive negotiations to resolve their differences and supports all efforts in this regard,
particularly the Arab League; decided to reconvene, as appropriate, to consider further action to
ensure the implementation of this resolution. "
States as Rational Actors: Balance of Costs and Benefits of Adherence to the Collective
Security System
Since the signing of the peace treaties of Westphalia in 1648, the state is recognized as the only
sovereign entity that is important and influential on the international stage. The Charter of the
United Nations has successfully achieved and confirmed what the League of Nations failed to do:
a social contract including all the world’s legitimate state entities for an implementation of a real
peace project which results in the collective security mechanism. By signing the UN Charter, have
nation states voluntarily, abdicated some of their national sovereignty?
Indeed, beyond the fact that the UN Charter is placed in its principles, the principle of noninterference in member states’ internal affairs without their consent, we may consider states as
rational actors in the quest for security and the protection of their national interests in the
international arena.
In this respect, states agree to sign the UN Charter and all its principles and therefore become
responsible by binding themselves to that international legal order, for better protection of their
sovereignty at the international level. By direction « Pacta Sun Servanda », signing is not
synonymous with any abdication of national sovereignty. It would be even irrational for a state to
abdicate voluntarily its sovereignty to an international anarchic and unpredictable system. As
emphasized in a paper on “The UN And World Governance ‘’ (January 2009) by Arnaud Blin &
Gustavo Marin: « The UN does not in any way constitute such a system and states obviously have
absolutely no interest in setting norms that might limit their capacities to act ».
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So when the United Nations advance in Article 2 (2) of the charter that « All Members, in order to
ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith
the obligations assumed by them in accordance with the present Charter », it is clear that member
states undertake, knowingly, to respect the principles of international law embodied in the charter.
Benefits, in any case, exceed marginal costs and by signing this charter each legitimate state
would behave rationally. Indeed the state signatory is protected by international law, against any
aggression from a third party and any other form of violation of its territorial integrity - whatever
its size and military capacity to defend itself- and, therefore, agree to comply with respect to the
sovereignty of other member-States. In this context, the international legal order established by the
U.N Charter allows states to maintain peaceful relations without any desire for domination or
exploitation.
II° THE COLLECTIVE SECURITY SYSTEM COULD ALSO LEAD TO AN ALIENATION
OF MEMBER-STATE NATIONAL SOVEREIGNTY
Maintaining International Peace and Security, the UN Charter and International
Obligations of States
As affirmed and accepted by all state signatories, the primary mission of the United Nations is to
maintain international peace and security. Its role is to prevent any threat to collective security
from a state entity or another organization whatsoever. As evidenced in Article 1 (1) of the
charter, it is to « maintain international peace and security, and to that end: to take effective
collective measures for the prevention and removal of threats to the peace, and for the
suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful
means, and in conformity with the principles of justice and international law… ». In this context,
the elimination of threats to the stability of international order can lead to a certain limitation of
member-states’ sovereignty. This limitation is however legal and is based on the logic of the UN
charter or any other international treaty that is source of international law. Under the Treaty on the
Non-Proliferation of Nuclear Weapons, for example, the state signatories are obliged to submit to
inspection of their nuclear facilities by the UN through the International Atomic Energy Agency
without any form of restriction: " Pacta Sun Servanda” obliges them to do so. This provision of
control of nuclear facilities of all contracting parties is underlined in Article III (1) of the NonProliferation Treaty.
Moreover, the case of Iraq is another interesting example. Indeed, accused of possession of
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Weapons of Mass Destruction on its territory such as chemical and biological weapons prohibited
by the Geneva Protocol (signed in June 1925, ratified in 1928) that "Prohibited the use of
chemical and biological weapons" and the Non-Proliferation Treaty, Iraq was said to be violating
theses treaties as well as its obligations while threatening international peace and security. In its
resolution 1441 (2002), the UN Security Council gives the State of Iraq « a final opportunity to
comply with its disarmament obligations » after several other resolutions that the Iraqi State has
not complied with. UN Security Council resolution 707 requiring Iraq to fully comply with the
inspection of its military facilities by the International Atomic Energy Agency and United Nations
Special Commission. However, Resolution 678 authorized military interventions in Iraq due to the
Persian Gulf War and Iraq’s reluctance to retire its troops from Kuwait. In fact, it stipulates that
UN Member-States are authorized « to use all necessary means to uphold and implement
Resolution 660 and all subsequent relevant resolutions and to restore international peace and
security in the area ».
The Protection of Individuals Under International Law
Beyond the limits of sovereignty (inherent to the conclusion of international treaties, membership
in an international organization like the UN and the obligations it entails) and voluntary
acceptance, States face a new right (duty?) of the international community. Indeed, the concept of
"right of humanitarian interference" in a State’s internal affairs appeared in the 1980s. This
concept replaces the protection of individuals in the heart of international law debates in line with
what has already been stated in the preamble of the UN charter: « (…) reaffirm faith in
fundamental human rights, in the dignity and worth of the human person… »
The right of humanitarian interference for the UN and non-governmental organizations will allow
the international community to provide emergency humanitarian assistance to populations in
distress with or without the consent of the concerned State, when such assistance is sine qua non
for targeted people’s survival. This directly questions State sovereignty. In that optic, the UN
General Assembly adopted the resolution 43/131 (1988) "on the humanitarian assistance to
victims of natural disasters and same order emergencies." This resolution was quite moderated on
state sovereignty by just inviting states to facilitate humanitarian action when needed. Resolution
45/100 (1990) created the concept of "Humanitarian Corridors" to allow rapid assistance to
individuals who are in need while respecting the concerned state sovereignty. However, the
International Court of Justice has already stated, in a judgment, in 1986 (relatives to the military
and paramilitary activities in Nicaragua) that "the provision of humanitarian assistance cannot be
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illegal in condition to be provided without any discrimination and without using force." In
addition, facing the obstacle of States’ national sovereignty, some interventions have been
authorized by the United Nations Security Council without the consent of concerned states, on the
basis of Chapter VII of the charter (UNSC Resolution 770 (1992) for the intervention in BosniaHerzegovina, UNSC Resolution 794 (1993) in the case of Somalia). Otherwise, what about the
intervention in Kosovo, even, without a UN Security Council resolution?
However, as the concept of a new right was highly contested, the international community
redefined it, after the Rwandan genocide, within the framework of "Responsibility to Protect"
populations whose fundamental rights and freedoms are endangered. State sovereignty obliges,
therefore, the state, itself, to effectively protect its population. Otherwise it is the duty of the
"international community, through the UN, to protect populations from genocide, war crimes,
cleansing and crimes against humanity.”
Therefore, in term of individual protection under international law, the notion of human dignity
comes before any nationality criterion. With the 1949 Geneva Conventions, the international
humanitarian law becomes, as pointed out by Lauri Hannikainen, a peremptory norm of nature: a
jus cogens norm. However, is a state that can no more protect the fundamental rights and freedoms
to ensure the physical and psychological well-being of its population really sovereign? Beyond its
legality, which is definitely apparent, is a state that fails to protect its citizen even legitimate?
Necessity To Take Into Account New Challenges of Global Security: Updating International
Law?
Facing such an accelerated process of globalization and its various stakeholders, it is important for
states to participate in the collective effort to better maintain international peace and security.
Indeed, the advanced development of transnational criminal enterprises has also been facilitated
by the phenomenon of globalization. These actors that are part of globalization are a threat to State
security and sovereignty. Therefore, they require consideration since their activities might directly
affect national interests and sovereignty of States thus international peace and security.
Beyond the “failed-States” theories, international terrorism is being building bases in some states
despite the appearance of inviolable sovereignty. Some of these states are developing countries,
with no strong democracies that often tend to cooperate with terrorist groups. Thus, we see why
some states, which may become potential targets for Al-Qaeda on their own territory or diplomatic
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representation like embassies, defend the idea of pre-emptive war and, to a lesser extent, of
preventive war against international terrorism. Some scholars of international law, such as
Fernando Tesòn, emphasized the necessity to update international law in order to take into account
new security challenges imposed by the globalization phenomenon.
However, is a state that becomes a sanctuary for criminal groups really sovereign? Is a state,
which is actually unable to extend its authority over its entire national territory sovereign? Could
the State of Mali, which part of the territory and the people who live there are under the control of
rebel groups still claim its sovereignty? Therefore, an update of international law can, for an
effective maintenance of international peace and security, help put an end to international
terrorism and minimize its effects on States’ national and international interests. The idea of preemptive war, if accepted by the international community, would facilitate the identification of
criminal groups wherever they may be and interventions to capture them. These interventions
could be initiated under the auspices of the United Nations with regard to Chapter VII of the
Charter for the sustainability of the collective security system. This would also avoid the political
will that can be hidden behind unilateral interventions of certain world powers. Moreover, how
shall we deal with new issues, of global warming and its corollaries that threaten the continued
existence of human beings on earth?
CONCLUSION
To sum up, we have seen that the collective security system may, to some extent, be an effective
way to protect State sovereignty in an international anarchic system. And in terms of international
law, the collective security system introduces a relative balance of power and ensures international
peace and security and, thus, peaceful relations between States. However, beyond the obligations
imposed on states and limitations inherent to the conclusion of a treaty, the history of international
relations has shown that in certain specific situations, State sovereignty has been challenged for
various reasons, which are, nevertheless, legally acceptable. In addition, it seems necessary to take
into account the new challenges of global security in international law in order to better deal with
transnational security issues inherent to the globalization process.
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