Collective Self-defence Research Articles

Sweden’s Collective Defence Obligations or this is Not a Collective Defence Pact (or Is It?): Considerations of International and Constitutional Law

Abstract This article analyses the content of the mutual defence obligation contained in the EU Treaty Article 42(7) in relation to the Swedish constitutional rule on the sending of armed forces abroad and the emerging ’deepened defence cooperation’ between Sweden and Finland. The article tries to understand the prevailing Swedish position in legal terms and suggests an alternative flexible way on Sweden’s part of conceiving the binding force of Article 42(7). The question is whether the EU Treaty contains an international obligation of a quality to activate a provision in the Swedish Constitution entitling the government to decide on its own, without having to seek the otherwise necessary approval by Parliament, to send Swedish armed forces to other countries for instance on a mission of collective self-defence. The possibility of looking at the EU Treaty and the Swedish Instrument of Government in this way is not considered in any of the Swedish official inquiries into the Swedish security and defence policy of which there have been quite a few recently.

Ewolucja albo substytucja, czyli jaka przyszłość NATO

The author analyses the North Atlantic Alliance through the prism of community of values as the foundation of the system of collective self-defence. The starting point of the discussion was the construction of a “security community” by the states of the western hemisphere in order to repel the direct existential threat from the USSR. This constructed ‘community’ proved to be an institution capable of transformation – after the end of the ‘Cold War’ – in the face of new security threats. The 21st century has confronted the Allies and NATO with new challenges. These challenges come both from counter-system states – strategic rivals – and from within the Alliance itself, from states rejecting common values. The subjects of an in-depth comparative analysis are: internal challenges, examined in the form of case studies; the “hub and spokes system”, treated as a possible alternative to the Alliance; and NATO’s internal study – a report on challenges and the possibilities of meeting them. The author presents a catalogue of existential internal challenges with which NATO is confronted and the organisation’s search for ways to cope with these challenges. He presents an alternative model of bilateral alliances as a way to ensure security of the western hemisphere in case of NATO’s inability to survive. The aim of the study is to answer the question within the framework of the disjunctive alternative: will it be possible to transform (by the parties to the Washington Treaty) NATO into a community of values? Or will it be necessary to replace NATO with a network of bilateral agreements, that is, to replace the plurilateral institution with structured bilateral cooperation? The study is based on the conclusions of a legal survey of primary sources and representative literature on the subject.

Imagining (in)security: NATO's collective self-defence and post-9/11 military policing in the Mediterranean Sea

AbstractHow do scenarios of dangerous futures imagined in the framework of the post-9/11 counterterrorism shape security institutions? Critical Security Studies (CSS)'s dominant answer is that state apparatus are significantly transformed by the use of new technologies of prediction that are very prolific in imagining potential risks. The present article questions this technologically determinist thesis. Introducing the notion of weak field in the study of pre-emption, it argues that the political sociology of transnational fields of power can help us in historicise and assess more precisely the impact of imagination over power and control in the pre-emptive era. The article analyses NATO's reaction to 9/11 as a case study. It shows how the fabrication of potential terrorist threats by NATO's practitioners, that served to justify the pre-emptive use of the collective self-defence clause of the Washington Treaty (Article 5), evolved into an ambiguous support for NATO's military policing of the Mediterranean basin and into its involvement in migration control.

Abe Shinzō’s Lasting Impact: Proactive Contributions to Japan’s Security and Foreign Policies

Abe Shinzō’s long duration in office brought to Japan strategic vision, international respect, and a forward-leaning commitment to strengthen Japan’s defenses and uphold the major tenants of the international order. This article examines Abe’s achievements in the security and foreign policy domains. Specifically, it examines his domestic achievements in establishing the National Security Strategy and National Security Council, reinterpreting Japan’s ability to exercise its right to collective self-defense, passing a suite of security legislation, and strengthening of Japan’s Self-Defense Forces. It also examines Abe’s foreign policy achievements of increasing Japan’s international presence and global role, expanding Japans’ strategic ties, creating and exporting a strategic framing vision called the Free and Open Indo-Pacific, and helping to establish the grouping of four maritime democracies called the Quad. The article argues that Abe’s desire for Japan to play a larger, more proactive role helped leave Japan—and the region—in a stronger place.

From Myths of Victimhood to Fantasies of Violence: How Far-Right Narratives of Imperilment Work

ABSTRACT Why is far-right rhetoric so dangerous? In recent years, scholars and policy makers alike have striven to unpack the black box of extremists’ online communication and the rise of far-right violence. Particularly the role of social media in spreading hate speech and fostering radicalization has caught a lot of attention; however, there has been little success in pinning down the drivers of violence. Drawing on the concept of dangerous speech, we take a step back from the violent effects of far-right online communication. Instead, we examine its logical functioning to illuminate the upstream processes that constitute hate and legitimize violence. More concretely, we study how far-right narratives employed on social media mobilize emotions that prepare for the acceptance or even use of violence. Analyzing the argumentative structures of two anti-immigration campaigns in Germany, we find a network of narratives where narratives of imperilment—supported by narratives of conspiracy and inequality—converge into a greater story of national threat and awakening. By constructing a situation of collective self-defense, violence becomes a logical option, even if violent action is not explicitly proposed. Counter-narrative efforts should thus not only focus on hate speech but also address the myths of victimhood, which are constitutive of (violent) palingenetic fantasies.

Intervention by invitation and collective self-defence: two sides of the same coin?

ABSTRACT Intervention by invitation and collective self-defence are often dealt with as two distinct justifications to the prohibition of the use of force, thus two separate reasons for states to use force lawfully. Upon closer scrutiny, however, the two concepts appear to be quite similar as both deal with a situation where a state invites/requests the military assistance of another state. This article analyses both concepts and their criteria. It subsequently determines whether they are substantially different or in fact two sides of the same coin.

Besieged sovereignty: The pandemic and the triple relation between state, international organizations and integral society

The theory of sovereignty has been challenged by the limits established by the international field and tensions, a likely subordination of the internal right to the global community that is governed by rules and principles and not simply by the exercise of power. The pandemic from COVID-19 has provided an opening in the theoretical field of fragmentation of the theory regarding state sovereignty. A new way to materialize sovereignty that, when put into practice, can assume the functions of global governance exercised by an international organization. This ability of exercising state sovereignty, named besieged sovereignty in this document, has the initial goal of justifying the use of this new concept that emerged from a state of global exception, in addition to presenting, briefly, the approach to the validity of legal norms. Two hypotheses will be presented for the field of this research: can there be unilateral and/or plurilateral intervention in state sovereignty in case there is a declaration of a state of emergency, of exception, in the global field? Can there be an authorization of the United Nations Charter for direct intervention on behalf of individual or collective self-defense, in the case of an armed attack upon the nation that represents imminent risk of transmission and spread of the pandemic? We will argue that besieged sovereignty represents a serious risk to state sovereignty and that the international community needs to be actively engaged in ensuring that governments observe the standards and quickly return to normal so that there is no “legitimate use of force ”and unilateral or plurilateral interventions, since the sovereign will be the one who is capable, over the abnormality, in order to suspend the legal order in whole or in part and with the purpose of restoring normality.

Responsibility to Protect dalam Kasus Genosida oleh ISIL terhadap Yazidi-Irak melalui Intervensi Militer Amerika Serikat

Artikel ini bertujuan untuk menjelaskan intervensi militer yang dilakukan oleh Amerika Serikat (AS) dalam menanggapi genosida yang dilakukan oleh Islamic State of Iraq and the Levant (ISIL) terhadap komunitas Yazidi di Irak. Peneliti menggunakan konsep Responsibility to Protect (R2P), yang merujuk pada laporan dari the International Commission on Intervention and State Sovereignty (ICISS) u
 This article aims to explain the military intervention carried out by the United States in response to the genocide carried out by the Islamic State of Iraq and the Levant (ISIL) against Yazidi community in Iraq. The researchers use the concept of Responsibility to Protect (R2P), which refers to a report from the International Commission on Intervention and State Sovereignty to see the procedure for procuring military intervention in the R2P framework in detail. This article found that besides several collateral damages, military intervention carried out by the United States was following the procedures set out by the International Commission on Intervention and State Sovereignty. The United States’ intervention was done by the Iraqi government's approval, which had previously requested assistance from the United States. This intervention can be seen as Iraqi collective self-defense as stated in Article 51 of the Charter of the United Nations or intervention based on approval as stipulated in Article 20 of the Responsibility of States for International Wrongful Acts 2001. This research was conducted qualitatively using sources in the form of a variety of documents and mass media reports.
 ntuk melihat prosedur intervensi militer dalam kerangka kerja R2P secara terperinci. Artikel ini menemukan bahwa meskipun telah terjadi sejumlah dampak sampingan (collateral damages), intervensi militer yang dilakukan oleh AS mengikuti prosedur yang ditetapkan oleh ICISS, antara lain, dilakukan AS atas persetujuan pemerintah Irak yang sebelumnya meminta bantuan dari AS. Intervensi ini dapat dilihat sebagai pertahanan diri kolektif Irak sebagaimana tercantum dalam Piagam Perserikatan Bangsa-Bangsa Pasal 51 atau intervensi berdasarkan persetujuan sebagaimana diatur dalam Pasal 20 Responsibility of States for International Wrongful Acts tahun 2001. Penelitian ini dilakukan secara kualitatif dengan menggunakan sumber-sumber berupa berbagai dokumen dan laporan media massa.

The United States and Individual and Collective Self-Defense in Northeast Asia

This Essay describes and assesses U.S. positions regarding the international law of individual and collective self-defense with respect to four present-day security imperatives in Northeast Asia: (1) North Korea’s possession of nuclear missiles, and the threats they pose to the United States and U.S. allies, namely Japan and South Korea, both of which host significant U.S. bases and troops; (2) Offensive cyber operations against the United States or U.S. nationals in Northeast Asia, by North Korea or China state actors; (3) China, and the threat it poses to Taiwan over which it asserts sovereignty; and (4) Island Disputes between Japan, China, and South Korea, which would implicate U.S. alliance treaty obligations This Essay proceeds in two parts. The first part reviews the historical background and current status of the international law of grounds for war—jus ad bellum. Particular emphasis is placed on the law of self-defense, both individual and collective, and the grounds for which preemptive defensive attacks are warranted. The second part applies the jus ad bellum elaborated in Part One to the four case studies.

Legal norms or ad hoc fixes? International legal aspects of Russian military involvement in conflict settlements in the Caucasus

ABSTRACT This article provides a comparative analysis of the legal grounds for the deployment of the Russian Armed Forces in a series of conflicts in the Caucasus, namely in the disengagement between North Ossetia and Ingushetia (1992–1994), South Ossetia/Georgia (1992–2008), Abkhazia/Georgia (1994–2008), and in the Russian–Georgian War of 2008. The difficulties in codifying certain actions from the point of view of international law are detailed. The article discusses whether the political and military actions of Moscow in various Caucasian conflicts were driven and interconnected by one and the same logic, or were purely ad hoc fixes. Cases where Russia’s actions have been legitimized by securing mandate from a regional intergovernmental organization are differentiated from cases where it has acted on the basis of intergovernmental agreements, as well as from the application in certain cases of Article 51 (“the right of individual or collective self-defence”) of the UN Charter. The legitimacy or illegitimacy of the deployment of the Russian Armed Forces abroad is considered in the context of, and in comparison with, a series of cases where force has been used in conflicts by coalitions under a UN mandate, as well as by NATO and some Western powers.

«Афганське питання» на шостій надзвичайній спеціальній сесії Генеральної асамблеї ООН (10–14 січня 1980 р.)

Abstract. Introduction . Soviet invasion to the Democratic Republic of Afghanistan in December 1979 and continued participation of the USSR in the Afghan crisis became the most high-profile event of international life of 1970 – 80-th. The world community perceived Soviet intervention as a significant threat to international peace and security. The Sixth emergency special session of the United Nations General Assembly was held to consider the situation in Afghanistan. Th e purpose of the article is to investigate the discussion of the «Afghan issue» at the Sixth emergency special session of the United Nations General Assembly 10 – 14 january 1980 and to analyze the impact of the «Afghan issue» on the system of international relations during the Cold War. Results. The Security Council met from 5 to 9 January 1980 to consider the situation in Afghanistan and its implications for international peace and security. A draft resolution calling for the immediate, unconditional and total withdrawal of the foreign troops was vetoed by the Soviets on 7 January. Two days later the Security Council adopted Resolution 462 acknowledging the lack of unanimity of its permanent members was preventing them from fulfilling their primary duty of maintaining peace and security, invoking the General Assembly’s «Uniting for Peace» resolution calling for an emergency special session. This was adopted with 12 supports, 2 opposes (USSR and German Democratic Republic), with 1 abstention (Zambia). At the Sixth emergency special session was dominated by questions of its legitimacy. Afghanistan and the Soviet Union denounced the meeting as interfering with domestic affairs of a Member State and that they were exercising their Treaty of Friendship and their right to collective self-defense under Article 51 of the UN Charter. Most of the delegations rejected the arguments of the Soviet and Afghan sides. 108 countries condemned the Soviet aggression on January, 14 (18 countries abstained, the same number supported the USSR). Conclusion. The General Assembly adopted Resolution ES-6/2 strongly deploring the recent armed intervention in Afghanistan and calls for the immediate, unconditional and total withdrawal of the foreign troops from Afghanistan. However, the decisions of the General Assembly were recommendatory. In addition, the consideration of the «Afghan issue » at the United Nations has shown the lack of a mechanism for influencing an aggressor country that has a veto power in the UN Security Council. These events also marked the transition to a new phase of the Cold War in international relations.

May the Force Be with You: The Legal Classification of Intervention by Invitation

It is a truth universally acknowledged that states can consent to the military presence of other states on their territory. This is better known as intervention by invitation. Yet many issues surrounding this concept remain unclear or are too easily accepted, e.g. its name and its place within the rules of jus ad bellum. This article seeks to clarify and resolve these issues. First, an analysis is conducted into what the two terms intervention and invitation actually entail. The term intervention is contrasted with the use of force and the entire concept of intervention by invitation is differentiated from collective self-defence. It is concluded that the threshold of force has been met and thus the focus should be placed on the rules regulating this field of law, rather than the rules of non-intervention. The concept would be more aptly labelled as the use of force by invitation. Second, this article examines where intervention by invitation finds its place in relation to the prohibition of the use of force. Alternative perspectives are investigated encompassing the scope of Article 2(4) UN Charter and the circumstances precluding wrongfulness under the rules of state responsibility, of which consent is of particular relevance here. This article concludes that intervention by invitation falls outside the scope of Article 2(4) as the force is not used within international relations. The prohibition of the use of force therefore does not apply to intervention by invitation. Consequently, an action of intervention by invitation is legal.

Conditions for the legal commencement of an armed attack

The Charter of the United Nations provides that: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs…”. In certain cases, it is difficult to find a clear answer to the question – what action is recognised as an armed attack according to the Article 51 of the UN Charter. The aim of the research is to analyze this problematic question, as well as the issue – when an armed attack begins, and as a result of the analyses of these issues, to describe the conditions for the legal use of force for self-defence.

German Constitutional Court Considers Self-Defence Against Non-State Actors a Tenable Interpretation of Article 51 of the Un Charter

In its Order of 17 September 2019, the Second Senate of the German Federal Constitutional Court considered the question of whether the right to individual or collective self-defence under Article 51 of the Charter of the United Nations included the use of armed force against non-State actors such as the so-called “Islamic State” (ISIL). The decision has been interpreted as condoning the use of force by Germany and other Western States against ISIL in Syria. However, this is not what the Court did. The Federal Constitutional Court simly held that neither the wording nor the object and purpose of Article 51 of the UN Charter preclude the application of the right of self-defence to attacks committed by non-state actors operating on the territory of a third country. The present paper presents the relevant parts of the Court's judgment (in English translation) and puts the decision in perspective. It shows that the Federal Constitutional Court’s contribution to the debate on the scope of the right to self-defence under Article 51 of the UN Charter is much more limited than suggested by commentators.

Pacifist Identity, Civics Textbooks, and the Opposition to Japan's Security Legislation

This article examines Japanese processes of self-formation as reflected in junior high school civics textbooks, comparing books published in 1990 and 2012. It demonstrates surprising continuity in how books from the two years construct a pacifist self in sharp contrast to Japan's prewar and wartime belligerence. We argue that this kind of antagonistic temporal othering has continued to socialize Japanese students into a "peace identity" and helps to explain the strong grassroots opposition to the Japanese government's 2015 announcement of laws to back up its position that Japan can exercise collective self-defense.

Security Paradigms and Social Movements

Abstract In 2014, Japan’s cabinet approved a significant change to national security policy. Previously barred from using military force, except in cases of self-defence, a constitutional reinterpretation by the cabinet allowed “collective self-defence”—using force to defend itself and its allies. The decision was controversial, considering post-war pacifism is firmly entrenched in Japanese national identity. I analyse how national security has been portrayed in the policymaking process for reinterpreting the Constitution. Meanwhile, since the early 2010s, Japanese society has been rocked by demonstrations opposing this. I explore the rise of a new youth activist movement in response to the proposed legislation. In particular, I argue that new ideologies and strategies appealed to young people in the organising of various protests, focusing on how they interpret the national security discourse and locating these social movements in Japanese post-war peace activism.

The Dynamic Evolution of International Law – The Case for the More Purposeful Development of Customary International Law

A fundamental underpinning of the ongoing relevance of international law is that of its ability to adapt and change to meet new developments and challenges including new technology, new (or newly developing) threats to both the public and the international order and newly developed practices, for example trans-border corporate and taxation practices. How then to effect that change? The timely negotiation of treaties to deal with the subject matter of these new developments and challenges would be ideal but can be difficult due to a number of factors. The answer could lie in the more purposeful and expeditious development of customary international law – that is, by taking coordinated action, and by publicising that action and its legal basis.This will not result in changes to the law of the detail that might be expected in a treaty, but it could address particular issues of moment. Indeed, individual states may well see themselves as having no option but to take action to meet time sensitive and critical aspects of new developments and global challenges either alone or in concert with others with a view to the development of a more widespread custom. Initial characterisation of some such action as "illegal but justified" (or words along those lines), whilst a contradiction in terms, does at the very least point to a real need for a change in the law. An example of such purposeful action may well be the development of the customary international law of self-defence to support the use of force against non-state actors in certain circumstances – such as the force used by a number of states against the Islamic State of Iraq and the Levant (ISIL) in Syria on the basis of the collective self-defence of Iraq.

The Right of Collective Self-Defense and Japan’s Reinterpretation of its Constitution

The Right of Collective Self-Defense and Japan’s Reinterpretation of its Constitution

К вопросу о правомерности применения воен- ной силы иностранными государствами (на примере Сирии).

INTRODUCTION. Military interventions in Syria by the US and its allies confirm a tendency in the policy of Western countries to ignore international law and to act in accordance with the “rule of force”, without the sanction of the UN Security Council. Russia, as a state that respects its sovereignty and international law, does not accept this approach. Russia stands for diplomatic dialogue at all venues in order to stop destabilization in international relations, including the confrontation in Syria, and to find proper legal solutions. The article recommends specific options for such solutions. MATERIALS AND METHODS. The study relies on such legal sources as the UN Charter, generally recognized principles of international law, UN Security Council resolutions, the Joint Statement of the Presidents of Russia and the United States on Syria of November 11, 2017, the joint press conference of the Presidents of Russia and the United States in Helsinki on July 17, 2018 as well as scientific studies of Russian and foreign researches. The research involved general scientific and comparative legal and historical methods of study. RESEARCH RESULTS. The author concludes that the United States and its allies using military force in Syria act in violation of the UN Charter. Russia, on the contrary, uses its military contingent in Syria in full accordance with the provisions of the UN Charter on the collective self-defense, at the request of the legitimate government of Syria. DISCUSSION AND CONCLUSIONS. The author makes a concrete proposal for the search of a peaceful settlement in Syria on the basis of the Joint Statement, which was approved by the Presidents of Russia and the United States in November 11, 2017 following their meeting on the margins of the Asia-Pacific Economic Cooperation summit meeting in Danang, Vietnam. The author advocates that Russian and American experts jointly reconsider main elements of this document and provide an up-dated version with due account of new realities, and submit it to the UN Security Council for the adoption of a consensus resolution that would lay down the international legal framework for a peaceful settlement in Syria.

A Study on the Limitation and Controls of the Presidential Armed Forces Command Division

한반도 주위의 일본, 러시아, 중국 등 강대국은 자국의 이익을 최우선으로 여기고 있으며, 당면한 문제를 해결하기 위한 방법으로 인류의 보편적 가치인 평화적인 방법을 구사하기 보다는 무력을 불사하겠다는 의지로 군사력 증강에 몰입하고 있다. 우리나라 또한 북한의 공격에 대비하기 위해 평화적인 대화의 자세를 견지하면서도 한편으로는 군사력 증강이 불가피하다고 인식하고, 군사적 무장력을 강화하고 있다. 그러나 이러한 상황의 전개는 전쟁이라는 국가적 폭력이 발생할 수 있기 때문에 통제되어야 한다. 이를 위해서는 국가 내․외적으로 평화의 가치가 정착되도록 다양한 노력을 기울여야 하고, 군사와 관련한 정부정책에 대한 견제를 강화하여 무력이 남용되지 않도록 해야 한다. 대통령이 국군통수권을 바람직하지 않게 사용하면 국가에 큰 위기가 닥칠 수 있기 때문이다. 헌법은 대통령의 국군통수권을 규정하면서 국무회의를 통하도록 하고 있으나, 이것만으로는 국군통수권을 효과적으로 통제하기 어렵다. 가장 효과적인 방안을 국군통수권을 헌법의 가치에 부합하도록 만들어야 한다. 이를 위해서는 헌법의 평화의 원리를 국군통수권에 전파하여 이에 입각하도록 해야 한다. 먼저 헌법의 평화권을 열거하지 아니한 자유권의 하나로 도출하고, 헌법 전문과 헌법 제4조, 제5조 등에 규정된 평화주의 원리를 통해 대통령이 국군통수권으로 행사할 수 없는 군사적 행위의 한계를 설정해야 한다. 이럴 경우 집단적 자위권의 행사나 정당성 없는 국군의 해외파병 등은 국군통수권으로 인정하기 어렵게 된다. 그리고 사법부 및 입법부에서 국군통수권을 적극 통제하는 방법으로 이를 구현할 수 있다. 결국 헌법의 평화주의 원리의 군사영역으로의 확산과 국가기관에 의한 통제로서 대통령의 국군통수권은 상당부분 견제될 수 있다.Powerful leaders about the Korea Peninsula appeared recently. These countries are Japan, Russia, and China. They have a tendency Strong nationalism. they are not trying to solve the problem peacefully. they can exercise force. To prevent this, the international community should emphasize the rule of law also control and pressure. Our country also did not do our best for peace. Instead, it was important to increase armaments. In this situation the commander of the Armed Forces Command may not be rational. And the president can abuse this. As an alternative, the judicial branch and the legislature should control the president’s action. But basically, The Presidential Armed Forces should be consistent with the Constitution. This is stipulated in Article 4 of the Constitution and Article 5 of the Constitution. In other words, it should be prudent to exercise the right to collective self-defense and troop dispatch. This will play a major role in protecting the basic rights of the people.