What Are The Concepts Of Collective Security International Law Essay

Collective Security can be understood as a security arrangement where a group of countries pledge co-operative joint action in the eyes of threat to their economic or territorial sovereignty. This threat may be thwarted in the form of sanctions or use of armed force. The concept of Collective Security is seen as the basis of many international peace agreements in the face modern international relations.

Philosopher John Locke’s theory of civil society metaphorically contains important insights for attempts to form civil society among nations. [1] As per Locke's well known "state of nature," individuals prior to civil society stood in a position of equality to each other, in the sense that they had no superior force to govern relations between them. [2] Drawing parallels from this analogy it may be safe to say that subjects of international law, i.e. the nations were equally poised to be at conflict if there was no superior body to govern their relations. Thus, international bodies such as the League of Nations [3] and the U.N. were formed. [4] 

Inter alia other concepts, Collective Security has formed the foundation of international bodies such as the U.N. and the League of Nations. The member states of accepted certain limitations on self-defence which are the reciprocal of its promise of collective security. [5] They placed reliance on the belief that the Charter’s scheme of Collective Security would afford them at least as much protection for their national security as they had agreed to relinquish. Collective Security as a concept contrasts with retaliatory strategies of engaging in war for immediate national interest.

The U.N. Charter though, also recognizes the “inherent" right of individual and collective self-defence. [6] This has been often used by the member states as a way to circumvent the binding obligations In the modern day the way this inherent right has been put to use especially in the ‘War against Terror’ has led to some strict scrutiny of the concept of Collective Security. Conflicting opinions exist in the modern day qua the interpretation of the aim of Collective Security. The United States stands for a broadened understanding of the article 51 right so that it can be construed to permit “Collective Self-Defence" in a range of circumstances. [7] Contrarily, the International Court of Justice (ICJ) has an increasingly restrictive view of Article 51. By construing it to prohibit the said Collective Self-Defence against attacks that do not reach a certain level of gravity or whose source is not identified by convincing evidence. [8] The debate that needs to be resolved is whether Collective Security is being relegated to the background by Collective Self-Defence.

Aim of the paper:

The paper attempts to trace the path of the evolution of the concept of Collective Security.

Legal Implications of Collective Security. The researcher through this paper puts forth the hypothesis that despite the mandate in the U.N. Charter and prior to it, the League of Nations, Collective Security as an integrated whole has failed.

Lastly, the researcher intends to draw a comparison between two similar sounding yet starkly contrasting concepts of Collective Security and Collective Self Defence.

Part 1: Inception of ‘Collective Security’:

Collective Security and the League of Nations

A method of achieving Collective Security would be through the collective renunciation of force and the undertaking to resolve disputes peaceably as a matter of moral and legal obligation. That vision appeared most forcefully after World War I in the collective security arrangement of the League of Nations [9] , and particularly the 1928 Kellogg-Briand Pact renouncing war. [10] 

The League of Nations though, hit hurdles from the word GO! Two primary reasons were Firstly, the nations could not agree on the formation of a supranational "police" force. Collective Security depended upon the collective moral and legal renunciation of the use of force. However, rather than an aim at building international consensus, the Covenant of the League granted veto powers to all members. [11] As a result the idea was scrapped because even one vote against it meant the dialogue would resume again. Secondly, WW-I ensured that most of the stronger nations faced military, infrastructural and economic exhaustion to actually rebuild world peace. [12] 

The League however, could be termed as a body with its heart in the right place but not its mind. With its failure to impose binding obligations upon the members it only required attempts at peaceful legal settlement first and didn’t allow the collective use of force. [13] The system of collective security envisaged in the Covenant rested, essentially, on the notions of disarmament, [14] a collective guarantee of the independence of each member [15] , and sanctions et al. [16] But the lack of consensus and co-operation ensured that none of these notions were actually materialised. The League lacked the power to function as an enforcer, and because it rested in substantial part on the belief that collective force would not be necessary.

Despite having an aim for achieving collective security the League failed time and again; for e.g. its failure during the Manchurian Crisis. [17] After the invasion, the League passed a resolution reprimanding Japan to withdraw or face dire consequences. Japan promptly vetoed the resolution in pursuance of its rights under Article 5, thereby limiting the League's ability to respond. After 2 years, the League passed another resolution condemning the invasion though without any armed action or any imposition of sanctions. The Japanese subsequently, simply walked out of the League of Nations. [18] 

Collective Security and the United Nations

The term "collective security" has also been cited as a principle of the United Nations, and the League of Nations before that. By employing a system of collective security, the UN hopes to dissuade any member state from acting in a manner likely to threaten peace, thereby avoiding any conflict.

The U.N. though it seems has learned from the mistakes made by the League. The system post WW-II was to protect a wronged state by all the members and the wrongdoer was to be punished by all. [19] The Collective Security system of the Charter is based on two elements. Firstly, there is the prohibition against inter-state threat or use of force under Article 2(4). The primary organ of the United Nations for the maintenance of international peace is the Security Council. [20] It propounds the sovereignty-centred approach to Collective Security. [21] Secondly, the Council's "primary responsibility for the maintenance of international peace and security, that in carrying out its duties under this responsibility the Security Council acts on their behalf" [22] and in those Charter provisions which establish a legal obligation on member states to carry out the Council's decisions. [23] The decisions of the Security Council intend to fulfil a dynamic executive function and are by virtue of Article 25 binding upon all member states.

The framers of the U.N. Charter give a binding role to the breach of international peace by imposing obligations under Chapter VII. In addition to this, Article 103 of the Charter allows the obligations to the U.N. to hold a higher pedestal than other treaties. [24] It is this binding obligation upon all the members that the League Covenant lacked. Also, there existed no machinery on the part of the League to actually initiate an armed campaign against an offender. However, one aspect that has not been dealt with by the U.N. is the fact that by virtue of the inherent “collective self-defence" mechanism [25] , several smaller collective defence mechanisms have come up. [26] 

In addition to this, the U.N. Charter doesn’t let the veto power vest in all the members, thereby leaving some scope of consensus to develop between the members. [27] The U.N. has to at first determine what constitutes ‘aggression’, breach or threat to peace before taking any constructive action. [28] Though it is a hotly debated topic whether, its determination is adequate or not?

Part 2: Collective Security: Legally Speaking

A distinction has been drawn into the nature of Collective Security as a legal principle, while terming the balance of power that has shifted to an international body as a principle of political convenience. [29] Collective Security has been seen as a Utopian legalistic experiment that has yielded nothing but failure despite mandates under the U.N. and the League of Nations. [30] Most lawyers accept that if there is a legal role in matters of security, it has to be handmaid to state power and interest, a facilitator for politics to take its natural course "by rationalizing and stabilizing the existing and improvised means of collaboration between Powers." [31] 

As has already been stated, the U.N. Charter envisages that the obligations to the Charter in maintaining global peace and security are binding upon all members. The present part of the essay deals with what are the legal implications under the U.N. Charter qua Collective Security and how is it that legally the mandate of Collective Security has failed.

For a purposeful setup under the U.N. the most pertinent legal aspect would be the definition of aggression. [32] This definition allows, the U.N. to differentiate between situations where there is a ‘threat to peace’ or a ‘breach of peace’. This though, is highly subjective. As questions would always arise as to which situations are threats to peace and which are not. But, with the loopholes in the charter, there arises greater chances of circumventing the rules.

It needs to be noted that the mandate of collective security are failing. Firstly, due to ambiguous determination of situations of what constitutes threat or not allows the members to indulge in self-defence wars. [33] Secondly, despite the fact that there are binding obligations upon all members to maintain peace and aid the U.N. in its endeavours, the U.N. simply backs out of situations where smaller collective self-defence groups act. Lastly, the failure of a legal mechanism may be seen in the scenario where the rate of wars, inter-state and intra-state conflicts have grown higher than that of the League of Nations. [34] 

Part 3: Collective Security & Collective Self-Defence

The evolution of the concept of Collective Security has seen 4 distinctive periods. First, the Post WW-I scenario, with the inception of the League of Nations; Second, Post the signing of the U.N. Charter; Third, during the Cold War and Lastly, Post 9-11 attacks in New York. All the four periods bring about a particular threat that the world had never been seen before. Be it, the proliferation of the Axis Powers and the failure of the League to check it in the first period; or the conflict between the 5 permanent members of the U.N. and their rise as nuclear powers during the Cold War in the second and the third periods. The world also saw the rise of non-state actors (read terrorists) as a threat to global peace in the fourth era.

The present chapter is an attempt for comparing the starkly contrasting concepts of Collective Security and Collective Self Defence. The chapter seeks to prove the hypothesis put forth initially by the researcher that despite the mandate in the U.N. Charter and prior to it, the League of Nations, Collective Security in its aims as an integrated whole has failed. The chapter mainly focuses on the last two periods that have been highlighted.

Collective Security vis-à-vis Collective Self Defence

As has been illustrated in the preceding chapters the concept of "collective security" forwarded by scholars and political scientists, are deemed to apply global security interests in a broad manner, to "avoid grouping powers into opposing camps, and refusing to draw dividing lines that would leave anyone out. [35] " However, keeping the John Locke analogy [36] in mind, there should have been only one global sovereign which should have governed the security of its subjects.

Posts the signing of the U.N. Charter, tenets of Collective Security, continue to form the basis colourably of famous military alliances/blocks, most notably NATO. [37] During the Cold-War various treaties were formalized as a part of bloc formations in case the U.N. too failed. [38] Under these arrangements participant states committed support in defence of a member state the latter was attacked by another state outside the organization. Such treaties formed the base of a newer concept which seemed similar to Collective Security but it was termed as Collective Self-Defence.

On an comparative analysis Collective Security is differentiated from Collective Self-Defence by the pledge that the defence would be against a threat from an external country. It in some ways vitiates the principle behind the existence of something such as the U.N. as in John Locke’s analogy; the citizens would adhere to another pseudo-sovereign being dissatisfied with the existing setup. The most relevant example of Collective Self-Defence is Article V of the NATO treaty. [39] This article was invoked after the 9-11 attacks in the U.S. after which other NATO members provided assistance to the US War on Terror in Afghanistan. The only advantage that may be seen in favour of Collective Self-Defence in the modern day is the fact that it also takes the presence of non-state actors into account. Thus, the countries can take action against terrorists even in the backdrop of failing U.N. action.

Collective Self-Defence as an alternative to Collective Security

Collective Self-Defence finds its foundation in multilateral alliances such as NATO, the presence of which entails benefits as well as risks. In the modern day with terrorism rising as a challenge in the face of Collective Security principles, the persistent inability of the U.N. to provide and maintain a functioning system can reasonably be viewed as a massive, radical multilateral failure of consideration. [40] To add to the wounds of the U.N. the affected members choose to suspend or even terminate their performance of the restrictions encapsulated in Article 51, the U.N. would be reduced to a mere vegetable like presence. [41] 

Collective Self-Defence also allows countries in smaller groups to, at their own initiative perform complementary functions of the U.N. On one side, collective pooling of resources reduces a single state's cost of providing fully for its security. Smaller groups such as NATO ensure that funding collectively allows them to build infrastructure, education or health, since they can count on other members to come to their defence, if needed. In addition to this, since they have already taken aggressive action they also can have peacekeeping missions at lower costs in those countries something which the U.N. finds difficult when it enters to rebuild conflict hit areas. [42] 

On the other hand, it may be too premature to call Collective Defence as an alternative to the concept of Collective Security as it also involves risky commitments. Member states can become embroiled in costly wars in which neither the, direct victim nor the aggressor benefit. [43] The policy of non-interference of the U.N. and it sticking to just peacekeeping missions for security on the other hand has ensured a better result with budgets almost a 10th of what the NATO spent in Iraq alone. [44] 

Conclusion

Collective Security can be understood as a security arrangement where a group of countries pledge co-operative joint action in the eyes of threat to their economic or territorial sovereignty. With shrinking global boundaries and the concept of a global village, the states have become subjects of one global body. This global body is to act as a superior force to govern relations between the individual units. It is this idea that led to the formation of international bodies such as the League of Nations and the U.N. were formed. Inter alia other concepts, Collective Security has formed the foundation of international bodies of these bodies.

The member states of accepted certain limitations on self-defence which are the reciprocal of its promise of collective security. Collective Security as a concept contrasts with retaliatory strategies of engaging in war for immediate national interest. However, in both the cases of the League and the U.N. the most important thing that has lacked is the fact that member states have not co-operated with each other. It was this lack of co-operation that replaced the League in the first place.

The fact that the U.N. Charter recognizes the inherent right of individual and collective self-defence is now being used by member nations to circumvent the binding obligations. This has garnered legitimacy in the light of the U.N.’s inability in the modern day to apply Collective Security against non-state actors who sponsor terrorism.

At the beginning, the paper aimed at tracing evolution of the concept of Collective Security. The researcher has been led to the conclusion that Kelsen’s view of Collective Security being a legal aspect of a political balance of power has been segregated at the hands of the few superpowers. The very legal framework to ensure Collective Security, has failed as an integrated whole thereby, proving the researcher’s initial hypothesis.

Though contrasting concepts, Collective Security and Collective Self Defence are synonymous in a lot of ways. Smaller group of countries with singular political aims, such as NATO, are justifying similar security interests in the wake of the presence of the U.N. and performing similar functions has undermined global consensus and overall security. Though with no other alternative, it seems that theoretically, self-defence may be the new security.