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2. COLLECTIVE SECURITY UNDER PARTICULAR

INTERNATIONAL LAW

(a) Defining the Use of Force To Be Prohibited Since collective security in international relations means primarily protection against that use of armed force which is called war, and since general international law does not prohibit war, if the bellum justum principle is not considered to be part of it, international security can be established only by treaties imposing upon the contracting states the obligation to refrain from resorting to war. In an ideal case, war would be prohibited under all conditions with the exception of war as a sanction—that is, with the exception of war as a reaction against a violation of the law in general and the treaty constituting the international security organization in particular. If war is exceptionally permitted as a sanction, it is also permitted in the exercise of self-defense, for self-defense is a reaction against an illegal use of armed force. However, a constituent treaty may permit war not only as a sanction (including its use in self-defense) but also for other purposes, or, what amounts to the same thing, a constituent treaty may prohibit war only under definite conditions. For example, the contracting parties may assume only the obligation not to resort to war against each other without having previously submitted their conflict to a special agency competent to make recommendations for a peaceful settlement and not before a certain period of time after the decision of this agency has expired. If these conditions are fulfilled, a war resorted to by one of the parties is not illegal."

Even if war is prohibited under all conditions (with the exception of war as a sanction against an illegal resort to war), international security is not satisfactorily established. Acts involving the use of armed force but not having the character of acts of war—as, for example, so-called pacific blockades—are left outside the system of collective security—that is, they are not under the specific sanctions provided for by the treaty constituting this system as reactions against the use of force prohibited by it. If a member of the security organization is a victim of the use of armed force short of war, the treaty constituting the security system does not apply. Only general international law applies, under which the use of armed force short of war is permitted only as a reprisal—that is, only as a reaction against a violation of the law. However, reprisals are the only sanctions which may be taken by the members of a security organization against such an illegal use of force short of war if a resort to war is permitted only as a reaction against an illegal resort to war. Moreover, the use of armed force is an objectively ascertainable fact. However, there is no objective cri

terion by which an act of war can be distinguished from an act involving the use of armed force which is not to be considered as an act of war. An act is an act of war if the state performing the act does not intend to restrict its action against the other state to this act, if its. intention is an unlimited interference by the use of armed force in the sphere of interests of the other state. If only acts of war are prohibited, the application of the specific sanctions, and this means the operation of the security system, depends on the answer to the question concerning the intentions of the state concerned. In many cases, it is impossible to answer this question immediately after the act has been performed but only after this act is followed by other acts of armed force which have done irreparable damage to the victim. There can be no doubt that if a security organization is intended to be effective, at least to a certain extent, not only the resort to war but every use of armed force must be prohibited by the constituent treaty—that is, the specific sanctions of the security system must apply not only in case of a resort to war but in case of any use of armed force. Any use of armed force may be considered to be a breach of the peace, and the very purpose of a system of international security is to guarantee peace.

However, there is a certain tendency not to agree with such a fargoing prohibition of any use of armed force. This tendency is based on the opinion that an unconditional renunciation of the use of armed force by an individual state in its relations with other states is not an essential element of a system of international security and that preventive measures, such as procedures for the peaceful settlement of conflicts and measures for the removal of the causes of war, are more important. This opinion is not very different from that advocated by those who are opposed in principle to the idea of international security. As we shall see later, an obligation imposed upon states to settle their conflicts by peaceful means is, so to speak, like a blank cartridge, if it is not combined with an obligation to refrain from the use of any kind of armed force. Furthermore, as has been noted, if they are applicable at all, measures for removing the causes of war have a rather limited effect.

If a treaty constituting a system of collective security prohibits not only the resort to war but also the use of armed force short of war, it parallels general international law as far as the second prohibition is concerned. In this respect, the only difference between the situation under the security treaty and that under general international law is that the special sanctions provided for by the treaty as reactions against an enforcement action short of war are more effective than those provided for by general international law. In addition, a se

curity treaty may also place under its specific sanctions violations of general international law other than the use of armed force short of war, e. g., the violation of the rules concerning the treatment of aliens or of the rule pacta sunt servanda. It may attach its specific sanctions to all violations of international law, as it exists at the moment the treaty enters into force, committed by members of the security organization, and even to a conduct which was not a delict under general international law as it existed prior to the treaty, e. g., to conduct which constitutes a mere threat to the peace, such as a concentration of troops or an armament exceeding the limits prescribed by the treaty. In other words, in addition to the obligation not to resort to war and the obligation to participate in the execution of sanctions, a security treaty may impose other obligations not established by general international law upon the members of a security organization. This means that under such a security system a greater sphere of interests of the state may be legally protected than under general international law. It stands to reason that the further a system of international security goes in this direction, the more restricted the freedom of action of the member states, and the greater the resistance of all those who insist on the sovereignty of the state. As has been noted,' an extension of a security system from the protection of interests only against their violation by the use of armed force to the protection of interests against their violation in any way including a way other than by the use of armed force, goes hand in hand with an extension of the concept of force. “Force” is meant to include not only armed force, but any illegal action of one state which violates the legally protected interests of another and which is undertaken against the will of this other state. Hence, enforcement actions involving the use of armed force are distinguished from enforcement actions not involving the use of armed force. This change in the meaning of the concept of force implies a change in the meaning of the concept of aggression. This latter concept is an essential element of a system of international security insofar as the purpose of such a system is protection against aggression.

NOTES

1. This was the case under the Covenant of the League of Nations which declared in its preamble that a purpose of the organization was:... "international peace and security by the acceptance of obligations not to resort to war ..." It imposed upon the members not an unconditional obligation not to resort to war but only the obligation not to resort to war under the particular conditions set forth in the following Articles of the Covenant:

ARTICLE 12.-1. The Members of the League agree that, if there should arise between them any dispute likely to lead to a rupture, they will submit the matter

either to arbitration or judicial settlement or to inquiry by the Council, and they agree in no case to resort to war until three months after the award by the arbitrators or the judicial decision, or the report by the Council. 2. In any case under this Article the award of the arbitrators or the judicial decision shall be made within a reasonable time, and the report of the Council shall be made within six months after the submission of the dispute.

ARTICLE 13.-1. The Members of the League agree that, whenever any dispute shall arise between them which they recognize to be suitable for submission to arbitration or judicial settlement, and which can not be satisfactorily settled by diplomacy, they will submit the whole subject matter to arbitration or judicial settlement." .. 4. The Members of the League agree that they will carry out in full good faith any award or decision that may be rendered, and that they will not resort to war against a Member of the League which complies therewith. In the event of any failure to carry out such an award or decision, the Council shall propose what steps should be taken to give effect thereto.

ARTICLE 15.--1. If there should arise between Members of the League any dispute likely to lead to a rupture, which is not submitted to arbitration or judicial settlement in accordance with Article 13, the Members of the League agree that they will submit the matter to the Council. Any party to the dispute may effect such submission by giving notice of the existence of the dispute to the SecretaryGeneral, who will make all necessary arrangements for a full investigation and consideration thereof. 2. For this purpose the parties to the dispute will communicate to the Secretary-General, as promptly as possible, statements of their case with all the relevant facts and papers, and the Council may forthwith direct the publication thereof. 3. The Council shall endeavour to effect a settlement of the dispute, and, if such efforts are successful, a statement shall be made public giving such facts and explanations regarding the dispute and the terms of settlement thereof as the Council may deem appropriate. 4. If the dispute is not thus settled, the Council either unanimously or by a majority vote shall make and publish a report containing a statement of the facts of the dispute and the recommenations which are deemed just and proper in regard thereto. 5. Any Member of the League represented on the Council may make public a statement of the facts of the dispute and of its conclusions regarding the same. 6. If a report by the Council is unanimously agreed to by the Members thereof other than the Representatives of one or more of the parties to the dispute, the Members of the League agree that they will not go to war with any party to the dispute which complies with the recommendations of the report. 7. If the Council fails to reach a report which is unanimously agreed to by the Members thereof, other than the Representatives of one or more of the parties to the dispute, the Members of the League reserve to themselves the right to take such action as they shall consider necessary for the maintenance of right and justice. 8. If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendation as to its settlement. 9. The Council may in any case under this Article refer the dispute to the Assembly. The dispute shall be so referred at the request of either party to the dispute, provided that such request be made within 14 days after the submission of the dispute to the Council. 10. In any case referred to the Assembly, all the provisions of this Article and of Article 12 relating to the action and powers of the Council shall apply to the action and powers of the Assembly, provided that a report made by the Assembly, if concurred in by the Representatives of those

Members of the League represented on the Council and of a majority of the other Members of the League, exclusive in each case of the Representatives of the parties to the dispute, shall have the same force as a report by the Council concurred in by all Members thereof other than the Representatives of one or more of the parties to the dispute."

2. Professor Bourquin, op. cit., p. 481, correctly asserted that if the differentiation between acts of war and acts involving the use of armed force not having the character of acts of war, so-called "pacific measures of coercion,” were introduced in a system of collective security, it would endanger the fundamental principle of this system which he defined as the prohibition of violence exerted for the purpose of imposing one's own will on others. He referred to the fact that "actually there is no external difference between an act of armed force and an act of war. The materiality of the facts is exactly the same in both cases; it is only the intention of the Parties which makes the difference. In order to remain within the limits of pacific measures of coercion the two states concerned must have the willingness not to allow a state of war to be born among them.” He went on to say: "To authorize armed coercive measures means to permit the states to apply certain forms of coercion which may or may not be war according to circumstances not yet ascertained at the moment the event takes place."

Professor Bourquin seems to ignore the fact that even if enforcement actions short of war are not prohibited by the treaty constituting a system of collective security, they are prohibited by general international law and are permitted only exceptionally as reprisals.

3. Cf. Collective Security, p. 10. 4. Cf. p. 11.

5. Article 2, paragraph 4 of the Charter of the United Nations imposes upon the members the obligation to "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 wording of this Article can be interpreted to mean that members are obliged to refrain from not only the use of armed force but the use of any kind of force. A distinction between armed force and other kinds of force necessarily follows from the provisions of Articles 39, 41, 42 and 50, concerning the measures to be taken by the Security Council for the maintenance of international peace and security. According to the provisions of Articles 41 and 42, two kinds of measures are to be distinguished, and according to Article 50 both are to be considered as "enforcement measures": measures “not involving the use of armed force” (Article 41), and measures involving the use of armed force (Article 42). If there are "enforcement” measures involving the use of armed force and "enforcement” measures not involving the use of armed force, armed force—that is, force exercised by the use of arms—must be distinguished from force exercised in another way-that is, force not exercised by the use of arms. There are two kinds of force not exercised by the use of arms: (1) an action of a state directed against another state which constitutes a violation of international law but which is not performed by the use of arms; (2) a reprisal which does not involve the use of armed force. Article 2, paragraph 4, refers to the “use of force.” It therefore prohibits both kinds of force. Hence, not only is the use of armed force prohibited but any action of a member state illegal under general international law which is directed against another state is prohibited by the Charter, and the member states are forbidden to resort not only to war but also to reprisals.

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