SUMMARY NOTES: INTERNATIONAL SECURITY LAW
WEEK 1: COLLECTIVE SECURITY
Week Readings
Lecture What is collective peace and security?
Traditional view: Peace traditionally understood as the absence of war
o Viewpoint no longer shared
Copenhagen School: the absence of existential threats against states,
other security actors, peoples and individuals
o Initially individuals were not understood in this concept
o Security mechanisms revolved around inter-state disputes
o However, international law today is concerned with non-state actors and
subjects, protection of individuals.
Thakur: “the concept of ‘security’ is politically powerful, weakly
conceptualised and intensely contested”
o Declaring a state of emergency or not, using your army or not
o The concepts are used to develop certain narratives
o Security is not just the absence of threats, but also a powerful
political tool.
o Do not review peace and security from a narrow legal perspective – the
moment it is used, you trigger a certain legal framework.
Who can threaten peace and security?
Traditional view:
o States were • Legally, this is important – international law is clear that the
practice of the GA (as an international organisation) shapes the legal rules
pertaining to its own competence the main actors who can threaten peace
and security.
o UNC reflects this traditional view point
o It was developed for prevention of the next world war.
Evolving view:
o NSAs and individuals or groups of individuals can threaten peace and
security.
o Other phenomena threaten peace + security – climate change, pandemic.
The UN and Collective Security (CS)
Does the UN = CS?
o UN Preamble: to save succeeding generations from the scourge of war,
which twice in our lifetime has brought untold sorrow to mankind
o Takes the view of a world government, to legislate on matters of any sort.
o The ambition of the UN is very big – It is a different kind of treaty regime
o The purposes help understand the competences of the organisation:
Article 1(1): 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…
, Article 1(2): To develop friendly relations among nations based on
respect for the principle of equal rights and self-determination of
peoples, and to take other appropriate measures to strengthen
universal peace;
Article 1(3): To achieve international co-operation in solving
international problems of an economic, social, cultural, or
humanitarian character, and in promoting and encouraging respect
for human rights…
o The UN goes beyond the traditional concepts of peace and security. It
works on prevention and facilitating the kind of world that addresses issues
before they emerge
UN Charter also regulates non-members states and regional
organisations:
o Article 2(6): [UN] shall ensure that states which are not members…act in
accordance with these Principles (i.e. Switzerland not a member until 2002
but it had to comply with certain sanctions)
o Article 53: No enforcement action shall be taken under regional
arrangements…without authorisation of the [SC]
o Article 54: SC shall be kept fully informed of activities undertaken or in
contemplation under regional arrangements.
Security Council
Functions and powers:
Article 24(1): Members confer on the SC primary responsibility for the
maintenance of IP+S
Article 24(2): In discharging these duties, SC shall act in accordance with the
Purposes and Principles of the UN
Article 25: Members agree to accept and carry out the decisions of the SC in
accordance with the present Charter.
Article 27(2) (P5 Veto Right): On all matters but procedural matters, the votes of
all 5 permanent members are required.
o Non-amendment reform is a practical and creative solution in the absence
of being able to seek direct amendment of UN Charter (given Article 108
requires 2/3 of all Members including all permanent members).
What can the SC do?
Article 39: SC shall determine the existence of any threat to the peace, breach
of the peace, or act of aggression and shall make recommendations, or decide
what measures shall be taken (Article 41-42) to maintain or restore IP+S
o Some argue threat to the peace, breach of the peace, or act of
aggression required to enliven Article 41-42 power. Others argue this is
not the case in practice – broad power to deal with any questions of
IP+S: e.g. creation of ICTY
o ICTY + Tadic: SC has a wide discretion under Article 39, but its powers are
not unlimited.
Issue was whether the ICTY was ‘established by law’ as is required
for the determination of a criminal case under ICCPR, Article 14.
Held, Article 39 leaves the choice of means and their evaluation to
the SC UN does not have clear division between executive,
judicial and legislative functions. The Tribunal was established in
accordance with the rule of law.
Article 41: SC may decide what measures not involving the use of armed
force are to be employed to give effect to decisions…may call upon
Members...to give effect to such measures. [Measures] may include…
interruption of economic relations and rail, air, sea, postal, telegraphic, radio,
, and other means of communication, and the severance of diplomatic relations.
Article 42: If Article 41 measures inadequate, SC may take such action by air,
sea, or land forces as may be necessary to maintain or restore IP+S
General Assembly
The SC is not the sole organ of the UN and not the only body competent to deal
with IP+S
Argument the SC has been more dysfunctional than functional in its lifetime
Due to SC inaction, the GA has stepped up over the years. Issue here is
whether it has the power to do this.
Functions and powers:
Article 10: GA may discuss any questions/matters within the scope of the
UNC…and, except as provided in Article 12, may make recommendations to
Members and the SC.
Article 11(1): GA may consider the general principles of co-operation in the
maintenance of IP+S…and may make recommendations with regard to such
principles to Members and/or the SC.
Article 11(2): GA may discuss any questions relating to the maintenance of
IP+S brought before it…and, except as provided in Article 12, may make
recommendations with regard to any such questions.
Article 11(2): GA may determine a threat to IP+S and bring it to the attention of
the SC.
Article 12(1): While the SC is exercising in respect of any dispute or situation
the functions assigned to it…the GA shall not make any recommendation re
that dispute or situation unless the SC requests.
Article 12(2): Secretary-General, with the SC consent, is to notify the GA when
IP+S matters being discussed in the SC, and then notify GA when this has
ceased.
GA developments – increasing power / role:
Uniting for Peace (U4P) Resolution 1950: Resolution 377(V) Emergency
Special Sessions
o Following outbreak of Korean War, SC was able to pass resolutions due to
Soviet Union boycott (protesting Taiwan in China’s seat).
o August 1950: SU resumed its place SC deadlock resumed.
o November 1950: GA adopted Resolution in response.
o The resolution stipulates that either the GA or SC can initiate an ESS
where, due to a “lack of unanimity of the permanent members,” the
SC “fails to exercise its primary responsibility for the maintenance of
international peace and security.”
o In this case, the GA “shall consider the matter immediately with a view to
making appropriate recommendations to Members for collective
measures, including in the case of a breach of the peace or act of
aggression the use of armed force when necessary, to maintain or
restore international peace and security.”
o An ESS was initiated for the 11th time in 2021 regarding Russia and
Ukraine: ES-11/1 (2021). In this resolution:
GA charactered actions as: aggression and deplored “in the
strongest terms the aggression…against Ukraine in violation of
Article 2(4) of the [UN] Charter
Condemned Russia’s declaration as to the necessity of this ‘special
military operation’.
Demanded Russia to “cease its use of force against Ukraine”.
Condemned “all violations of international humanitarian law and
, violations and abuses of human rights”
o Impact of GA findings of this nature:
Can augment legal action taken by other bodies (e.g. ICC exercise
of jurisdiction, ordering of provisional measures in ICJ)
Can justify the imposition of unilateral sanctions (e.g. issues of HR
violations are not within a state’s domaine reserve, they are of erga
omnes or even jus cogens character).
Recommendation / noting responsibility to ascertain facts and
expose aggressors vehicle/first step to creating a commission of
inquiry
International Impartial and Independent Mechanism (IIIM) – 2016
o In 2016, when the SC failed to refer the situation in Syria to the ICC, the
GA established the IIIM to assist in the investigation and prosecution of
persons responsible for serious crimes in Syria
o Unprecedented move – fact finding missions had been established but
never before a mechanism with quasi-prosecutorial powers
Responsibility to Protect (R2P) – June 2021 (SC linked)
o Procedural resolution aimed at strengthening the institutional framework for
the Assembly’s response to human rights and security crises
o This places a duty on states and international community to intervene in
certain cases of humanitarian crisis caused by international crimes.
o Recognised by UNGA, but collective action requires UNSC
Veto Initiative (Resolution 76/262) – 2022;
o Procedural resolution aimed at strengthening the institutional framework for
the Assembly’s response to human rights and security crises
o Mandates that whenever a veto is cast in the SC, the matter will
automatically be referred to the GA which will meet within 10 working days
to hold a debate on the situation.
o In response to Security Council vetoes of proposed resolutions to address
Ukraine and Gaza, the Veto Initiative automatically referred the vetoed
resolutions to the General Assembly.
Tsagourias What gives the UN authority for CS?
and White: o It is the presence of CS organs with differing membership and forms of
majority voting, and with competence in peace and security and
‘United concomitant powers, that gives the UN autonomy as a CS institution with
Nations’ in authority to make recommendations and take decisions, binding on states
Collective as CS actors, some of which lead to sanctions and other coercive
Security: measures.
Theory Law
and Practice Article 2(7) restriction on UN competence. Cannot interfere in the domestic
affairs of states.
o However, SC and GA both increasingly tackle domestic matters on the
basis that issues of denial and human rights and self-determination can
constitute a threat to the peace, and the promotion of these matters are
within the purposes and competence of the UN.
Primary concern of the SC is to tackle threats to the peace (Article 39)
The UN (both the SC and GA) has applied the Article 39 concept of a threat to
the peace to internal national situations.
GA’s roles in self-determination and human rights:
o The GA also has a major role of developing and promoting the self-
determination outlined in Article 1(2) and human rights mentioned in Article
1(3) (in addition to its secondary competence in Articles 10 and 11).
WEEK 1: COLLECTIVE SECURITY
Week Readings
Lecture What is collective peace and security?
Traditional view: Peace traditionally understood as the absence of war
o Viewpoint no longer shared
Copenhagen School: the absence of existential threats against states,
other security actors, peoples and individuals
o Initially individuals were not understood in this concept
o Security mechanisms revolved around inter-state disputes
o However, international law today is concerned with non-state actors and
subjects, protection of individuals.
Thakur: “the concept of ‘security’ is politically powerful, weakly
conceptualised and intensely contested”
o Declaring a state of emergency or not, using your army or not
o The concepts are used to develop certain narratives
o Security is not just the absence of threats, but also a powerful
political tool.
o Do not review peace and security from a narrow legal perspective – the
moment it is used, you trigger a certain legal framework.
Who can threaten peace and security?
Traditional view:
o States were • Legally, this is important – international law is clear that the
practice of the GA (as an international organisation) shapes the legal rules
pertaining to its own competence the main actors who can threaten peace
and security.
o UNC reflects this traditional view point
o It was developed for prevention of the next world war.
Evolving view:
o NSAs and individuals or groups of individuals can threaten peace and
security.
o Other phenomena threaten peace + security – climate change, pandemic.
The UN and Collective Security (CS)
Does the UN = CS?
o UN Preamble: to save succeeding generations from the scourge of war,
which twice in our lifetime has brought untold sorrow to mankind
o Takes the view of a world government, to legislate on matters of any sort.
o The ambition of the UN is very big – It is a different kind of treaty regime
o The purposes help understand the competences of the organisation:
Article 1(1): 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…
, Article 1(2): To develop friendly relations among nations based on
respect for the principle of equal rights and self-determination of
peoples, and to take other appropriate measures to strengthen
universal peace;
Article 1(3): To achieve international co-operation in solving
international problems of an economic, social, cultural, or
humanitarian character, and in promoting and encouraging respect
for human rights…
o The UN goes beyond the traditional concepts of peace and security. It
works on prevention and facilitating the kind of world that addresses issues
before they emerge
UN Charter also regulates non-members states and regional
organisations:
o Article 2(6): [UN] shall ensure that states which are not members…act in
accordance with these Principles (i.e. Switzerland not a member until 2002
but it had to comply with certain sanctions)
o Article 53: No enforcement action shall be taken under regional
arrangements…without authorisation of the [SC]
o Article 54: SC shall be kept fully informed of activities undertaken or in
contemplation under regional arrangements.
Security Council
Functions and powers:
Article 24(1): Members confer on the SC primary responsibility for the
maintenance of IP+S
Article 24(2): In discharging these duties, SC shall act in accordance with the
Purposes and Principles of the UN
Article 25: Members agree to accept and carry out the decisions of the SC in
accordance with the present Charter.
Article 27(2) (P5 Veto Right): On all matters but procedural matters, the votes of
all 5 permanent members are required.
o Non-amendment reform is a practical and creative solution in the absence
of being able to seek direct amendment of UN Charter (given Article 108
requires 2/3 of all Members including all permanent members).
What can the SC do?
Article 39: SC shall determine the existence of any threat to the peace, breach
of the peace, or act of aggression and shall make recommendations, or decide
what measures shall be taken (Article 41-42) to maintain or restore IP+S
o Some argue threat to the peace, breach of the peace, or act of
aggression required to enliven Article 41-42 power. Others argue this is
not the case in practice – broad power to deal with any questions of
IP+S: e.g. creation of ICTY
o ICTY + Tadic: SC has a wide discretion under Article 39, but its powers are
not unlimited.
Issue was whether the ICTY was ‘established by law’ as is required
for the determination of a criminal case under ICCPR, Article 14.
Held, Article 39 leaves the choice of means and their evaluation to
the SC UN does not have clear division between executive,
judicial and legislative functions. The Tribunal was established in
accordance with the rule of law.
Article 41: SC may decide what measures not involving the use of armed
force are to be employed to give effect to decisions…may call upon
Members...to give effect to such measures. [Measures] may include…
interruption of economic relations and rail, air, sea, postal, telegraphic, radio,
, and other means of communication, and the severance of diplomatic relations.
Article 42: If Article 41 measures inadequate, SC may take such action by air,
sea, or land forces as may be necessary to maintain or restore IP+S
General Assembly
The SC is not the sole organ of the UN and not the only body competent to deal
with IP+S
Argument the SC has been more dysfunctional than functional in its lifetime
Due to SC inaction, the GA has stepped up over the years. Issue here is
whether it has the power to do this.
Functions and powers:
Article 10: GA may discuss any questions/matters within the scope of the
UNC…and, except as provided in Article 12, may make recommendations to
Members and the SC.
Article 11(1): GA may consider the general principles of co-operation in the
maintenance of IP+S…and may make recommendations with regard to such
principles to Members and/or the SC.
Article 11(2): GA may discuss any questions relating to the maintenance of
IP+S brought before it…and, except as provided in Article 12, may make
recommendations with regard to any such questions.
Article 11(2): GA may determine a threat to IP+S and bring it to the attention of
the SC.
Article 12(1): While the SC is exercising in respect of any dispute or situation
the functions assigned to it…the GA shall not make any recommendation re
that dispute or situation unless the SC requests.
Article 12(2): Secretary-General, with the SC consent, is to notify the GA when
IP+S matters being discussed in the SC, and then notify GA when this has
ceased.
GA developments – increasing power / role:
Uniting for Peace (U4P) Resolution 1950: Resolution 377(V) Emergency
Special Sessions
o Following outbreak of Korean War, SC was able to pass resolutions due to
Soviet Union boycott (protesting Taiwan in China’s seat).
o August 1950: SU resumed its place SC deadlock resumed.
o November 1950: GA adopted Resolution in response.
o The resolution stipulates that either the GA or SC can initiate an ESS
where, due to a “lack of unanimity of the permanent members,” the
SC “fails to exercise its primary responsibility for the maintenance of
international peace and security.”
o In this case, the GA “shall consider the matter immediately with a view to
making appropriate recommendations to Members for collective
measures, including in the case of a breach of the peace or act of
aggression the use of armed force when necessary, to maintain or
restore international peace and security.”
o An ESS was initiated for the 11th time in 2021 regarding Russia and
Ukraine: ES-11/1 (2021). In this resolution:
GA charactered actions as: aggression and deplored “in the
strongest terms the aggression…against Ukraine in violation of
Article 2(4) of the [UN] Charter
Condemned Russia’s declaration as to the necessity of this ‘special
military operation’.
Demanded Russia to “cease its use of force against Ukraine”.
Condemned “all violations of international humanitarian law and
, violations and abuses of human rights”
o Impact of GA findings of this nature:
Can augment legal action taken by other bodies (e.g. ICC exercise
of jurisdiction, ordering of provisional measures in ICJ)
Can justify the imposition of unilateral sanctions (e.g. issues of HR
violations are not within a state’s domaine reserve, they are of erga
omnes or even jus cogens character).
Recommendation / noting responsibility to ascertain facts and
expose aggressors vehicle/first step to creating a commission of
inquiry
International Impartial and Independent Mechanism (IIIM) – 2016
o In 2016, when the SC failed to refer the situation in Syria to the ICC, the
GA established the IIIM to assist in the investigation and prosecution of
persons responsible for serious crimes in Syria
o Unprecedented move – fact finding missions had been established but
never before a mechanism with quasi-prosecutorial powers
Responsibility to Protect (R2P) – June 2021 (SC linked)
o Procedural resolution aimed at strengthening the institutional framework for
the Assembly’s response to human rights and security crises
o This places a duty on states and international community to intervene in
certain cases of humanitarian crisis caused by international crimes.
o Recognised by UNGA, but collective action requires UNSC
Veto Initiative (Resolution 76/262) – 2022;
o Procedural resolution aimed at strengthening the institutional framework for
the Assembly’s response to human rights and security crises
o Mandates that whenever a veto is cast in the SC, the matter will
automatically be referred to the GA which will meet within 10 working days
to hold a debate on the situation.
o In response to Security Council vetoes of proposed resolutions to address
Ukraine and Gaza, the Veto Initiative automatically referred the vetoed
resolutions to the General Assembly.
Tsagourias What gives the UN authority for CS?
and White: o It is the presence of CS organs with differing membership and forms of
majority voting, and with competence in peace and security and
‘United concomitant powers, that gives the UN autonomy as a CS institution with
Nations’ in authority to make recommendations and take decisions, binding on states
Collective as CS actors, some of which lead to sanctions and other coercive
Security: measures.
Theory Law
and Practice Article 2(7) restriction on UN competence. Cannot interfere in the domestic
affairs of states.
o However, SC and GA both increasingly tackle domestic matters on the
basis that issues of denial and human rights and self-determination can
constitute a threat to the peace, and the promotion of these matters are
within the purposes and competence of the UN.
Primary concern of the SC is to tackle threats to the peace (Article 39)
The UN (both the SC and GA) has applied the Article 39 concept of a threat to
the peace to internal national situations.
GA’s roles in self-determination and human rights:
o The GA also has a major role of developing and promoting the self-
determination outlined in Article 1(2) and human rights mentioned in Article
1(3) (in addition to its secondary competence in Articles 10 and 11).
