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This, of course, implies an almost insurmountable difficulty.
The independence of the armed force of the international security organization may be seriously endangered by the fact that both the manufacturing of armaments and the raw material necessary for the execution of a military action would remain under the control of the national governments. The transfer of this control to the international organization would imply a restriction of the sovereignty of member states and consequently constitutes another difficulty.
The question of the composition of the international armed force that is, whether it should comprehend all three arms of the service, land, sea and air forces, or whether there should be a preponderance of one, especially of the air force, over the others—is a purely militarytechnical problem. More important from the point of view of this study is the financial question. There can be no doubt that the cost of a permanent and separate armed force is very high. This cost must be covered by contributions from member states as long as an organization does not have the power of direct taxation, a power incompatible with its international character. However, the contribution of a state would not be larger than the cost to a state of its own armament, and the establishment of a permanent and separate armed force of a security organization allows, and even imperatively requires, a radical reduction of the armament of the member states. This is an advantage which this method of organizing military sanctions shares with no other. Because they are not exposed to the danger of being weakened by the withdrawal of a member state and its armed forces from the organization, enforcement measures taken by a separate and permanent armed force may really achieve the ideal purpose of a sanction: to prevent the violation of the law against which it is provided. As the danger of aggression is reduced, to the extent that this is possible at all, the right of self-defense can be restricted to a degree which makes its misuse very difficult. Only individual and not collective self-defense may be permitted, and permitted only against external aggression actually carried out by the armed forces of another state.
If the international security organization has a permanent and separate armed force at its disposal far superior to the armed forces of the member states which are reduced to the minimum necessary to maintain internal order and to offer initial resistance to external aggression, the danger of intervention by the organization in the domestic affairs of the members must not be underestimated. Certain institutions protecting the member states against such intervention should be established in the constituent treaty, e. g., the opportunity of invoking an international court competent to decide the question
of whether or not an action of the organization constitutes such intervention and to order the organization to cancel it if the action is declared illegal. However, it must be admitted that within such a system there is no absolutely effective guarantee for maintaining the distribution of competence between the organization and its members laid down in the constituent treaty. As has been said before, this system appears to imply a strong tendency of becoming transformed into a super-state. The central organ which is in control of the permanent and separate armed force has a character not very different from that of a state government, for the concentration of the means of force in the hands of a central organ has, more than anything else, the effect of conferring on this organ the power of a government in the specific sense of the term.
If the central organ of a security organization has the character of a government or quasi-government, the question of the form of government, the dilemma: democracy or autocracy, becomes paramount. This question is of little or no importance as long as the central organ of a security organization has no real governmental power. If an international community is supposed to be organized on a democratic basis, the problem of the representation of the member states in the organs and especially in the main organ of the security organization arises. The democratic principle of equal representation can be applied in two quite different ways: on the basis of the equality of states, or on the basis of the equality of the individuals who are subjects of the states. If the equality of states is accepted as the basic principle, the vote of each state, regardless of the number of its subjects, must have the same weight as that of any other state. If the equality of the individual subjects is accepted as the basic principle, the vote of each state must be in proportion to the number of its subjects. The application of both principles implies grave inconveniences, and the choice as well as the attempt to find an acceptable compromise between them involves difficulties which seem to be insurmountable in view of the circumstances that exist at present and probably will exist in the foreseeable future.
It is therefore understandable that even the most enthusiastic defenders of an international police force do not dare to suggest a radically centralized armed-force monopoly of the security organization, which means that a permanent and separate armed force be at the direct disposal of the organization and that there be complete disarmament of the member states. What can be suggested as a politically possible scheme is combining the quota system with a relatively small permanent and separate armed force of a security organization. The main function of the latter would be to come to
the immediate assistance of a victim of aggression. In the course of military operations the armed force of the security organization would be supported by the contingents of the armed forces of the member states which had been placed at the disposal of the security organization.28
It stands to reason that under such a system no complete disarmament of the member states and not even a considerable reduction of national armament, could be achieved. However, it has been suggested that this scheme be based on the principle of differentiation of armament.
.29 The most destructive and most mobile arms would be reserved for the use of the permanent and separate armed force of the security organization, the less destructive and less mobile arms left to the armed forces of the member states. The most destructive and, at the same time, most mobile weapons are those used by the air force. Hence, an air-force monopoly of the security organization becomes a consideration. In view of the fact that civil aircraft can easily be adapted to military purposes, such a monopoly is hardly possible without the internationalization of civil aviation.30 It is more than doubtful that this internationalization of civil aviation is politically feasible on a universal basis. If restricted to a regional security organization, a combination of the quota system and a permanent and separate armed force of the organization may be nearer to political reality than a completely centralized armed-force monopoly of a universal or even regional security organization. However, it must be admitted that this combination combines the difficulties of both with the disadvantages of the quota system.si (D) THE PROCEDURE PRECEDING THE EXECUTION OF SANCTIONS
The execution of a sanction must be preceded by a procedure to ascertain the delict, i. e., to ascertain the violation of the law against which a sanction is provided as a reaction. This is especially true if the delict is an act of aggression. The procedure is then referred to as determining the aggressor. The execution of a sanction to be directeed against the aggressor may also be preceded by a procedure to put into operation certain provisional measures to prevent the aggravation of the situation created by the delict, especially if this delict is an act of aggression, actually committed or expected.
Under a relatively primitive system of international security, the ascertainment of the act of aggression and hence the determination of the aggressor is left to the states who are members of the security organization and who are authorized or obliged to apply the nonmilitary or military sanctions provided for by the constituent treaty without any interference on the part of a central organ.32 The dis
advantages of such a decentralization of the legal function have been discussed in a previous chapter of this study.83
One of the fundamental conditions of an effective system of international security consists of conferring upon a central organ the ascertainment of the act of aggression against which a sanction in the constituent treaty is provided. This may be the same executive organ as that competent to apply the sanctions, an organ composed of representatives of some or all of the states who are members of the organization, whereby these representatives are bound by the instructions. of their respective governments.34 However, this central organ may also be an international court composed of individuals who are not representatives of any state but are independent judges. In view of the fact that the ascertainment of the delict is a specifically legal function, the fulfillment of which in strict conformity with the law established by the constituent treaty is essential to the security to be achieved by the international organization, an independent court would seem to be the most appropriate organ. If the ascertainment of the delict, and especially of the act of aggression, is conferred upon a court, in applying sanctions the executive organ must conform to the decisions of the court.
This solution of the problem is strongly opposed by governments as well as by writers on international law, especially with respect to the determination of the aggressor. In the main, their arguments are that the political interests involved in this function do not allow decisions to be based only on legal considerations, and that a judicial procedure is too slow if, as in case of an act of aggression, immediate action is necessary. The first argument may be rejected by referring to the fact that, as pointed out in another connection, political considerations are not excluded from the procedure in which an international court decides that an act of aggression has taken place. Of course, this is not so as far as the finding of facts is concerned. In this respect the truth and nothing but the truth must be disclosed, and it can hardly be denied that in this respect an independent and impartial court is more reliable than an agency which is exclusively influenced by political motives. However, in qualifying the facts as aggression, in deciding that the facts constitute aggression as determined by the law to be applied, the discretion left to a court by the law may be very wide, and within the limits of this discretion political considerations may legitimately be introduced and actually are introduced in all judicial decisions. Hence, it is probably not the possibility of introducing political considerations in general which is behind the argument against a court as the organ competent to determine the aggressor, but the wish to protect definite political interests of
particular governments having decisive influence within the international organization. Indeed, these interests can be defended only by the representatives of these governments as members of the organ competent to determine the aggressor and not by independent judges. However, this is not a legitimate argument as far as an organization is concerned which has to guarantee security equally for all its members.
The second argument concerning the slowness of the judicial procedure is more serious. However, it is possible to solve this problem by authorizing the executive organ to act without waiting for a judicial decision in case of a prima facie aggression and at the same time obliging this organ to submit the case to the court immediately after action has been taken and to cancel the action if the court so decides. This is the only way to guarantee the legality of the execution of sanctions.
Provisional measures, as, for instance, a call to cease hostilities, may be taken prior to or after the determination of the aggressor, and they may be taken by a court as well as by an executive organ. If the act of the central organ has the character of a decision legally binding on the parties, non-compliance with this decision constitutes a delict entailing a reaction on the part of the security organization.3
(E) SANCTIONS CONSTITUTING INDIVIDUAL RESPONSIBILITY FOR
VIOLATIONS OF INTERNATIONAL LAW As pointed out in a previous chapter, the economic and military sanctions usually established within an international security system are directed against a state as such and thus constitute collective responsibility. This means that the forcible deprivation of life, freedom, property and other values, implied in these sanctions, in the last instance affects individual human beings who by their own voluntary acts have not committed the delicts against which the sanctions are directed. This is one of the main objections to military sanctions in general. However, as has been pointed out, this objection could also be raised against economic sanctions. The only way to avoid the injustice of making individuals responsible for a delict which they have not committed is to provide for sanctions which, unlike economic and military sanctions, are not directed against a certain group of individuals, namely, individuals belonging to the state the organ of which has committed the delict, but only and exclusively against a definite individual, especially against that individual who in his capacity as the organ of a state or as a private person has committed the delict. Such sanctions, capital punishment, imprisonment and fine, for example, are usually provided for in national law, especially