Introduction

In June 1919, a year before Yeats penned his sorrowful lament to the collapse of European order and Christian civilization in the First World War, Article 16 of the Covenant of the League of Nations came into force. Article 16 encapsulated the theory implicit in the Covenant and the Pact of Paris that war is illegitimate as an instrument of policy or of justice, or indeed for any purpose, except individual or collective defense against a state which has already resorted to or is immediately threatening war. It provided, in part, as follows:

Whether viewed as a socio-legal project gently civilizing states away from an older politics of diplomacy, deterrence, self-help and legitimate warfare, or as an institutional project establishing a collective security system premised on the rule of law, the primary purpose of the United Nations today remains the maintenance of international peace and security and the abolition of the “scourge of war.” During the four long decades of the Cold War, the practice of the Security Council was shaped, and often thwarted, by superpower deadlock and the paralysis of veto. In nine major interstate uses of force between 1956 and 1982, the Council played only a marginal role. But with the ebbing of the Cold War in the late 1980s, and with a revitalized Council unanimously condemning Iraq's invasion of Kuwait in August 1990, the possibility of collective security arose anew.

The 1990s thus witnessed major shifts in multilateral efforts to maintain peace and security. Seemingly unnoticed, the permanent five began working together on major issues. The Security Council approved enforcement actions on a non-originalist interpretation of “threats to peace,” now read to include humanitarian considerations in principally internal conflicts. Following a modest record of authorizing force and employing sanctions, the Council greatly expanded its use of Chapter VII enforcement measures. And over the grave of the moribund Trusteeship Council, the UN resurrected a series of modern trusteeships in the form of transitional administrations.

In late 2004, the United Nations High-Level Panel Report on Threats, Challenges, and Change proclaimed that the central challenge for the twenty-first century is to fashion a broader understanding of the notion of “collective security.” In addition to various far-reaching proposals for reform within the United Nations, the panel emphasized the linkages between economic development, security, and human rights, and the imperative of collective action and cooperation between states. In a world deeply divided by differences of power, wealth, and geography, a central question in the fields of international law and organization is whether reaffirmation of the concept of collective security, and a workable consensus on the means of its realization, is possible.

This book brings together a distinguished and diverse group of scholars and practitioners from Europe and the United States to examine these questions and to consider critically the findings and recommendations of the High-Level Panel and ensuing reports. The volume does so by assessing the various responsibilities, commitments, strategies, and institutions necessary for any meaningful conception of collective security both as a matter of practice and as a normative ideal in the fast-changing spheres of international law and organization and amongst a wide array of actors and interests.

The book is organized in four parts, each part considering a contested aspect of the current UN reform process. Part I begins by considering the current impetus for and likely success of UN institutional reform and, in particular, the place of collective security in international legal theory.

Introduction

The chapters in this volume address different aspects of the same basic dilemma: how to understand the conceptual relationship between the rights of states and the rights of individuals. Classic Westphalianism offers a relatively clear picture. The fundamental rights and duties of states, regardless of their ‘private’ belief systems, forms of political organisation or cultures, are to be determined by that body of customary and consensual norms known as ‘public’ international law. The fundamental rights and duties of individuals, regardless of their ‘private’ comprehensive religious, philosophical or moral doctrines, are to be determined by that body of constitutional, administrative and criminal norms known as ‘public’ law. The former defines the ‘sovereignty’ of states as subjects of an international community; the latter defines the ‘liberty’ of individuals as subjects of a national community in the form of a state.

In each case a particular distinction between ‘public’ and ‘private’ spheres, and a particular conception of fundamental rights, is advanced. These approaches in turn generate the distinctive internal/external dichotomies and contradictions that characterise both fields of law. It is critical to realise at the outset, however, that the underlying rationale of the move to ‘public law’, whether domestic or international, is to establish the conditions necessary for community and social order by limiting the freedom of legal subjects.

Introduction

This chapter examines the project of transformative occupation undertaken by the United States and its allies following the invasion of Iraq in 2003. More specifically, it considers the US occupation in light of two competing sensibilities in international legal argument. On one view, which I term ‘legal formalism’, the purpose of international law is eclectic, intersubjective and value-pluralist: to create the conditions for peaceful coexistence between different political orders and ways of life. This view is commonly associated with the liberalism of the United Nations (UN) Charter, which posits both the subject of international law and its liberty in formal terms as ‘the state’ and ‘sovereign equality’ respectively. On a rival view, which I term ‘instrumental anti-pluralism’, the purpose of international law is to project a universal regime based on a rationally reconstructed and universally authoritative morality. Here the identity of the sovereign as a subject of international law is understood in material terms as ‘the liberal democratic state’ and sovereignty is understood as the equal treatment of legal subjects so defined.

The defining feature of the anti-pluralist view is the notion that the internal characteristics of a state determine its standing in the family of nations. Undemocratic, illiberal, or so-called ‘rogue’ states such as Iraq are not to be regarded as full members of international society and are seen to lie outside of the zone of law.