Collective Self-defence Research Articles

Short Shrift for the Long War

BARACK OBAMA'S PRESENT TENSEToward end of President Barack Obama's first year in office it had become a commonplace of commentary in Europe and North America that NATO's nation-building mission in Afghanistan had entered a critical phase. Indeed, informed observers on mission agreed that almost nothing in 2009 was going particularly well. They disagreed, to pick two most divergent nodes of opinion, over whether president should radically increase number of American combat troops dedicated to mission or set a timetable for graduated withdrawal and concede that United States and its NATO allies had no hope of prevailing against an insurgency operating from mountains in east and south ofthe country and increasingly capable of contesting territory assumed hitherto to be under control. On face of it, it seems absurd that NATO could lose a war with mujahid fighters spawned by madrasahs along Afghan- Pakistan frontier, purporting to bring Islamic rule to Afghanistan's people yet contemptuous of a millennium of Muslim spiritual and intellectual achievement. This was nonetheless a valid concern on day Obama was sworn into office, and policy choice before him ever since has been either to salvage mission or to fashion a plan for dignified withdrawal.There is nothing fair about burdens that newly elected leaders inherit from their predecessors. The Afghan circumstance of January 2009 was not of Obama's making, yet he more than anyone will bear responsibility for its rectification. As a candidate for presidency in August 2007 Obama actually embraced that challenge, deriding Bush administration's invasion of Iraq in March 2003 as a rash misadventure in contrast to the war that has to be won on the right battlefield in Afghanistan and Pakistan.1 The inclusion of Pakistan testified to an awareness of Afghanistan's regional and strategic significance and simultaneously ratcheted up expectation that Obama would, if elected, attempt a decisive turnaround. Since assuming office he has discovered how difficult such an attempt will be. His predecessor bears a large portion of responsibility for state of affairs, whether or not one agrees that commitment to Iraq was directly responsible for neglect of Afghanistan. A review of mission's origin, however, reveals that this is somewhat beside point. From outset, Afghan mission has enjoyed an political legitimacy that should have ensured robust support not only from United States but more importantly from what we now strain to call international community. This support has gone missing. This article will argue that Afghan mission has been victim of a failure of multilateralism, specifically inability of NATO alliance to evolve beyond strategic debates of early post-Cold War into a community of democratic states prepared to defend democratic way of life on its violent periphery.NATO FROM KOSOVO TO KABULThe opening phase of Afghan mission, operation Enduring Freedom, was immediate response to terrorist attacks in Washington, DC and lower Manhattan on n September 2001 carried out by al Qaeda organization of Osama bin Laden, to whom Taliban regime in Afghanistan had afforded territorial sanctuary. Those attacks prompted NATO to invoke article V of North Atlantic Treaty for first time in alliance's history and United Nations security council to adopt resolution 1368, recognizing the inherent right of individual or collective self-defence in accordance with article 51 of UN charter. Not only were there no legal controversies surrounding American-led action that followed, but it enjoyed blessing of multinational organizations most pertinent to it and met exacting standards of a just war.2 Enduring Freedom was initially a proxy war to topple Taliban regime, combining application of air power with deployment of both limited conventional and special operations forces by United States and United Kingdom, in support of Northern Alliance and anti-Taliban tribal forces. …

Mill’s moral theory: Ongoing revisionism

Revisionist interpretation of Mill needs to be extended to deal with a residue of puzzles about his moral theory and its connection with his theory of liberty. The upshot shows his reinterpretation of his Benthamite tradition as a form of ‘philosophical utilitarianism’; his definition of the art of morality as collective self-defence; his ignoring of maximization in favour of ad hoc dealing in utilities; the central role of his account of the justice of punishment; the marginal role of the internal sanction in his criterion of moral wrong; his deep respect for common-sense morality; and his restriction of the scope of morality so as to claim for the utilitarian tradition the whole realm of the aesthetics of conduct as part of a general theory of practical reason.

Realpolitik Versus Principled Politics: Nitobe, Shidehara, Shirasu and the Hollowing out of the Japanese Peace Constitution

It is argued that the current debate surrounding the revision of article 9 of the Japanese peace constitution has shifted from a debate on non-violent ideals and principles rooted in the pacifism of Shidehara, spiritual father of article 9, to a more pragmatic logic of military action and Realpolitik which lacks intellectual depth, foresight and historical awareness. The article questions the inherent logic that tries to give a purpose to the military and gain international reputation by reinterpreting article 9 indiscriminately. Since 2004, the overseas dispatch of SDF forces into the Iraq combat zone has split the nation more than ever and a national consensus on what article 9 should stand for is further threatened by Government attempts to extend the application of article 9 to military activities outside Japan under the banner of collective defense. Ahead of the 2009 general election for the Lower House opposition and ruling parties have apparently agreed that time has come to review the text of article 9 for the first time after the war based on the premises of Realpolitik. Article 9 in its current wording still represents a very cherished core principle to the nation as a whole despite the military buildup and despite the tacit acceptance of the SDF and of the right to limited self-defense. The current popular mood against collective self-defense, against the overseas deployment of SDF, against the unequitable US-Japan Security Treaty and against nuclear weapons- termed “negative pacifism”- differs from the voluntarist security policies in the election platforms of the LDP and DPJ. Ordinary citizens in and outside Japan have challenged the political elite by teaming up to preach the peaceful spirit of article 9 to the world. It is asserted that the intended revision of article 9 has caused lasting changes in civic political grass-root culture.

Can Romantics and Liberals be Reconciled?: Some Further Reflections on Defending Humanity

In their thought-provoking study, Defending Humanity: When Force is Justified and Why?, Fletcher and Ohlin investigate the analogies between individual self-defence in criminal law and collective self-defence in international law. This paper seeks to pursue this intriguing issue, by focusing on a tension between the normative aspiration to separate both components rigidly and social reality in which they are blurred. Obviously, the latter stems from man being a social animal, a situation which is reinforced in time of war, when he identifies himself — and is identified by others — with a collective. Like Fletcher and Ohlin, the author acknowledges international criminal law's mission to bridge the gap between the collective and individual aspects of warfare. But different from Fletcher and Ohlin, whose intellectual quest compels them to highlight the Romantic preoccupation with the collective aspects of warfare, the author emphasizes the need for an individualistic counterweight. In his opinion, such a reappraisal of the individual dimension deeply influences the assessment of both collective and individual self-defence as well as their mutual relationship.

Contemporary Political Violence and its Legitimation

The legitimation of contemporary political violence is central to its understanding. Whereas in earlier times, self or group interest narrowly defined, provided, in most cases, sufficient justification, in recent times demand has grown for loftier ones. This is not to suggest that crusades and other religious wars of the past could be explained by material interest or conflict over scarce resources, although the latter might have aggravated them in some instances. It has been since the beginning of the past century that voluminous and elaborate ideological justifications and rationalizations became central to the initiation and infliction of political violence—preceding, accompanying, or following it. Several circumstances seem to account for this development. One is the actual presence of ideological motivation and fervor spurring on political conflicts; the second is the emergence of political propaganda and the mass media of communications that disseminates it. Further explanation may be found in the growing numbers who participate in these conflicts either as conscripts in huge military forces or members of large and highly specialized political police forces which carry out the repression that often culminates in violence. Arguably when large numbers of people replace the far smaller, more selectively recruited groups of the past charged with these activities, the need for motivating these multitudes increases. Members of mass conscript armies or large police forces, and the public at large, need to be persuaded that the political violence is legitimated by some higher purpose, rather than merely by individual or group interest. More generally speaking political–ideological legitimation of violence might have also has increased as replacement of the divisive religious convictions which in pre-modern times often motivated combatants in various conflicts. But again this is not to argue that such religious motives became insignificant in our times as made clear by the rise of violence motivated by Islamic fundamentalism. As to the substance of the political–ideological currents animating and justifying violent conflicts in more recent times, it is nationalism and the attempts to recast societies in some utopian mold that are the most important. Nationalistic and ethnic hostilities are, of course frequently related. The third major force, in recent years, has been the fundamentalist Islamic religious-political beliefs providing powerful motivation and legitimation for terroristic political violence that often entails self-destruction. A common thread running through the legitimation of the major types of political violence—war, civil war, revolution, repression and decentralized terror—is an extended conception of collective self-defense. The Nazis felt mortally threatened by Jews and were convinced that only their complete eradication would make them secure. Communist regimes created and made much use of the mythical figure of the omnipresent and vicious Enemy of many social–political incarnations: members (sometimes even descendants) of the former ruling classes, priests and ministers; party politicians of parties no longer in existence; kulaks (i.e. more prosperous peasants, or any peasant who hired labor), as well as all those who expressed, or were thought of capable of expressing critical sentiments of the authorities and any of their policies. Communist regimes endlessly claimed being encircled, besieged, and potentially subverted by increasingly desperate, and dangerous adversaries at home and abroad; it was imperative to engage in “self-defense” of an exceptionally extended and aggressive nature against all those actually Soc (2009) 46:267–274 DOI 10.1007/s12115-009-9204-y

Japan's Constitutional Pacifism between Collective Security and Collective Self-Defense

Japan's Constitutional Pacifism between Collective Security and Collective Self-Defense

Japan's Dilemma and a Problem of the Right to Collective Self-Defense Under the 1997 Guidelines

Abstract This paper argues that closer defense cooperation between the Self-Defense Forces (SDF) of Japan and United States forces under the 1997 Guidelines for United States-Japan Defense Cooperation has brought about an issue of exercise of the right to collective self-defense, which might infringe on Article 9 of Japan's Constitution. The article explores Japan's options in cases of emergencies such as those in Japan, the Taiwan Strait, and the Korean peninsula and concludes that Japan has no choice but to follow U.S. policy as long as it maintains a Treaty of Mutual Cooperation and Security between the United States of America and Japan. The United States fully understands the importance of Japan's strategic location to its security, particularly Okinawa's. From Okinawa, U.S. forces could easily cover the Korean peninsula, China, and Taiwan. Therefore, the United States will not give up its bases in Japan, and so the argument of a “fear of abandonment” on the side of Japan is a myth. The article furth...

Segurança hemisférica: uma discussão sobre a validade e atualidade de seus mecanismos institucionais

As profundas mudanças que ocorreram no sistema internacional com o término da Guerra Fria provocaram revisão de seus padrões, em especial, dos parâmetros de segurança coletiva hemisférica baseados em mecanismos que visavam garantir a segurança dos Estados-membro mediante a legítima defesa individual ou coletiva. Os Estados-membros indicaram a necessidade de repensar estes arranjos de maneira que os mecanismos estivessem apropriados para enfrentar as novas e difusas ameaças à segurança hemisférica.

Article 51 Self-Defense as a Narrative: Spectators and Heroes in International Law

The subsequent three parts of this article take the following form. Part II introduces Article 51. Part III considers the manner in which Article 51 produces a narrative of spectatorship for the West. I draw on Al-Radi's narrative to highlight the massive gap between the narratives of Article 51, as it is perceived in mainstream academic accounts of Operation Desert Storm, and the reality of living with the consequential force. I am particularly concerned with the legal features of proportionality, collective self-defense, and the state as a "self" defending. In Part IV, I use the work of Mclnnes, Orford, and Salecl to demonstrate how the West use a form of self-projection to become both spectator and hero in internal cultural narratives. Drawing on the methodology developed by Gunning, I attend to the inherent essentialism of these narratives rather than attempting to offer alternative non-Western narratives. Finally, in Part V, I return to the force/violence distinction contained in Article 51. How does this regulator of force as legal, and violence as illegal, interact with recent claims that there is also "legitimate" force that can be used, for example, to halt humanitarian crises? I take the words of Arendt and question the shift from force as justified to force as legitimate, to conclude with further questions about emerging narratives of force that currently preoccupy Western cultures.'

Some Thoughts on the NATO Position in Relation to the Iraqi Crisis

NATO is a collective self-defence regional organization that was established at the time of the Cold War, and the end of East–West confrontation gave rise to the debate about its future role. In the 1999 Washington summit a new strategic concept was promulgated, according to which NATO was to act as a collective security organization as well. The community of interest previously represented by the Eastern bloc has not been unequivocally replaced by a new one. Hence there is room for national interest to play greater role in the decision-making by the alliance. This decision-making is based on consensus, which is incompatible with assertions of strictly national policy. The institutional crisis within NATO in early 2003 was largely due to the transfer to within NATO of the disagreement among its member states in the UN Security Council over dealing with Iraq's alleged weapons of mass destruction. The crisis was ultimately resolved, but it exposed the serious limitations of the NATO decision-making process. While claims about the likelihood of NATO's survival seem premature, the recent institutional crisis may be a legitimate ground for considering institutional reform.

Message from the chairman: “on the occasion of our 15th anniversary”

The inspiration for establishing the Institute for International Policy Studies (IIPS) came to me while I was prime minister. At that time I was acutely aware of the dearth of effective public research institutions that were dedicated to the formulation of political and economic policy, yet which were free from the influence of government subsidy. Thus I decided that, as soon as I had completed my term as prime minister, I would establish just such an organization and help Japan develop into a leading world power.In 1988, with assistance from the worlds of finance and academia, I was fortunate enough to be able to establish IIPS. Since then, IIPS has steadily grown in size and capability. As a result of the hard work of its directors and research fellows (and thanks in particular to the devoted efforts of our former vice-president, Mr Akazawa, who passed away a short while ago), IIPS has become active in many areas. We have given advice to the government in various fields, including security and foreign affairs, finance and economics, government reform, and educational policy. We have made policy announcements to newspapers and general-interest magazines. By staging seminars and symposia, we have sought intellectual exchange with people from all over the world. Through our advice we have drawn the attention of political parties and the government to numerous issues vital to Japan, including the formulation of general strategic principles, the importance of educational reform, measures for combating terrorism, and revision of the constitutional interpretation of collective self-defense.

The “Renunciation of War as an Instrument of National Policy”

AbstractNo Abstract

Constitutionality of Execution of the Right of Collective Self-Defense

Constitutionality of Execution of the Right of Collective Self-Defense

Victimhood in Our Neighborhood: Terrorist Crime, Taliban Guilt, and the Asymmetries of the International Legal Order

This Article explores international and criminal law issues involved in U.S. and transnational responses to the tragic events of September 11, 2001. The thesis is raised that the September 11 attack constitutes a non-isolated war-like attack undertaken against a sovereign state by individuals operating through a non-state actor. This means that the attack is more appropriately categorized as a criminal or outlaw attack, not an armed attack or act of war. Under traditional public international law, this finding may problematize the legality of the military strikes initiated by U.S. and British forces on October 7, 2001. However, on a more prospective note, state practice and international organization response to the strikes suggest: (1) a transformation in the treatment by international law of the use of lethal force when undertaken for humanitarian or security purposes (in this regard, building upon the precedent set by NATO's intervention in Kosovo); (2) an expansion of state responsibility for individual criminals who may not be effectively controlled by a state; (3) a diminution of the role of the Security Council and United Nations on matters of global peace and security; and (4) an increase in the elasticity of individual and collective self-defense under Article 51 of the Charter of the United Nations. However, categorizing the violence as criminal does not end the inquiry. Actually, this only begins the process of reflection. How should criminal law respond to egregious behavior by non-state actors? Should punishing such behavior be the task of domestic criminal law or, rather, international criminal law? If international criminal law is the appropriate paradigm, how ought it to be applied to the September 11 attacks? Under what methods and procedures, and in which fora, should alleged terrorists or conspirators be tried? This Article suggests that trials will have to be carefully designed in order to deter future terrorist violence. This may necessitate the inclusion of culturally pluralist approaches. The need for this cultural contextualism may clash with the increasing hegemony of Western criminal trials as the mechanism to implement putatively universal criminal justice.

NATO transformed: the Alliance's new roles in international security

NATO TRANSFORMEDThe Alliance's New Roles in International SecurityDavid S. YostWashington: US Institute of Peace, 1998, xvii, 450pp, US$19.95 paperWinston Churchill once observed that if we do not take change by the hand, it will one day seize us by the throat. One can hardly think of a more fitting adage for the North Atlantic Treaty Organization (NATO). As the Alliance lurches into its fiftieth year it seems at once united and divided, resolute and timid, decisive yet paralyzed. One could attribute this rather bizarre state of affairs to the pseudo-war in Kosovo, which is a departure from not only the Alliance's core activity (that is, self-defence) but also from the practice of defining goals in a clear and strategic (that is, long-term) manner. These four works on NATO's future do not explore these issues, as each was published before the outbreak of fighting. They do, however, provide as comprehensive an examination of the political and military factors affecting the Alliance's longevity as one is likely to encounter. Together, they examine the issue from a variety of angles ranging from the future orientation of United States foreign policy, efforts to forge a more solid (and competing?) European defence identity, and relations with the other major player in the European security equation: Russia.David Yost's NATO Transformed focuses on what is perhaps the most fundamental question underpinning the Alliance's future. He asks whether NATO has transformed itself from an organization dedicated to collective self-defence into one with a wider, more inclusive mandate which will contribute to, rather than detract from, post-cold war security in Europe. By surveying its efforts to reach out to the states in the former Soviet orbit and its pre-occupation with crisis management in the Balkans, he concludes that NATO has demonstrated the attributes of a collective security body. Although there is little doubt that its core purpose remains intact, its 'open-door' policy toward central and eastern Europe and its sojourn into the world of peacekeeping illustrate both the internal 'push' for a new strategic rationale and the external 'pull' exerted by those regions of Europe which crave peace and stability.Yost is careful not to paint an overly optimistic picture. American hesitancy to take the lead and Europe's decades-old habit of deferring to United States leadership on security matters has compounded the difficulty of forging a strategic identity in the absence of the Soviet threat. He points put that new and enduring objectives - namely, enlargement and collective action based on consensus - are bound to clash since the former will almost inevitably make the latter more difficult. Another challenge will be accommodating Russian sensitivities without fatally compromising either autonomy or the timeliness of a response to emerging crises. Clearly, 'NATO Transformed' is an ironic choice of title. As Yost makes clear, the transformation of the institution and its strategic mind-set is quite unfinished. The volume, therefore, serves as a timely warning to policy-makers on both sides of the Atlantic: the cold war may be over but the amount of work yet to be done should not be underestimated.One would think that the question of NATO's role in any future European security architecture would be more problematic if examined from the perspective of states on the periphery of the Alliance. Surprisingly, the contributors to NATO Looks East see few problems and stress that enlargement presents virtually unlimited opportunities for co-operation and confidence-building. …

Is there a Legal Basis for the NATO Intervention in Kosovo?

The atrocities committed by the Federal Republic of Yugoslavia against the civilian population in Kosovo are clearly contrary to international law. They constitute grave violations of human rights and amount to crimes against humanity. Attempts by the Yugoslav authorities to characterize the events there as internal affairs and to hide behind the concept of sovereignty lack legal foundation. These events are of deep concern to the international community. Does it follow that a group of States or a military alliance has the right to use force in reaction to this Situation? The prohibition of the use of force, as embodied in Article 2(4) of the Charter of the United Nations, is one of the cornerstones of contemporary international law. The Charter provides for certain limited exceptions. One is the right to self-defence provided for in Article 51 of the Charter. But the application of Article 51 requires an attack . . . against a Member of the United Nations. Even the most generous interpretation of the right to collective self-defence cannot cover assistance to an ethnic minority that suffers repression at the hands of its government. Another exception to Article 2(4) of the Charter is enforcement action by the Security Council under Chapter VII, specifically Article 42. Before taking enforcement action, the Security Council has to determine the existence of a threat to the peace, a breach of the peace or an act of aggression under Article 39 of the Charter. The Security Council has repeatedly characterized massive human rights violations or grave humanitarian situations as threats to the peace. With regard to Kosovo, the Security Council already stated in Resolution 1160 (1998) of 31 March 1998 that it was acting under Chapter VII of the Charter. In Resolution 1199 (1998) of 23 September 1998 and in Resolution 1203 (1998) of 24 October 1998 it affirmed that the situation in Kosovo constitutes a threat to peace and security in the region. In this context, the Security Council imposed an embargo on military supplies in Resolution 1160 (1998) in accordance with Article 41 of the Charter. But it has not taken or authorized military enforcement action. A determination under Article 39 that the conditions for enforcement action exist does not authorize member States to use force to implement the Security Council's decision. The Council must take a separate decision under Article 42. The veto of one or several Permanent Members of the Security Council in a situation of this kind may well be in violation of article 55(c) of the Charter which enjoins the United Nations to promote universal respect for, and observance of, human rights. But the casting of a veto or the mere prospect of a veto in the Security Council does not free other member States to do individually or collectively what only the Security Council can do. In 1950, the General Assembly of the United Nations, in response to the prospect of continuing paralysis of the Security Council, adopted the so-called Uniting for Peace Resolution, 377(V). It foresees recommendations for collective measures, including the use of armed force when necessary, if the Security Council fails to exercise its primary responsibility for the maintenance of international peace and security. No such recommendation was passed by the General Assembly in the present case. It is doubtful whether an attempt to do so would have attracted the necessary majority. The Security Council, by emphasizing at the end of

Louis Sohn: Grandfather of International Human Rights Law in the US

Louis Sohn: Grandfather of International Human Rights Law in the United States* Jo M. Pasqualucci (bio) “Louis Sohn has been affected by history as much as history has been affected by Louis Sohn.” 1 Introduction Dr. Louis Sohn has played a preeminent role for more than fifty years in the development of international law and the formation of international institutions. For the last half of this century he has patiently worked to build an international system that will protect individual human rights and provide for the peaceful settlement of international disputes. As a conciliator with a daunting intellect and an engaging nature, he brought divergent viewpoints together when it appeared that irreconcilable differences threatened a breakdown of international negotiations. His first such contributions proved important at the San Francisco Conference to draft the Charter of the United Nations and at the preceding Dumbarton Oaks Conference on the International Court of Justice. His suggestions for compromise at those conferences resulted in the passage of important provisions on the right to collective self-defense and the continuation of jurisdiction from the Permanent Court of International Justice to the International Court of Justice. As a professor at [End Page 924] Harvard Law School for more than thirty-five years, he mentored current leaders in international law such as Thomas Buergenthal, Thomas Franck, and Richard Bilder. Buergenthal said about Sohn: “His influence on our lives has been profound; he has affected our thinking and our professional careers in ways only truly great teachers do.” 2 Finally, as a meticulous researcher and scholar, Sohn has contributed to the codification and expansion of the law of the sea, international dispute resolution, and environmental law. In the words of the late Dean Rusk, former Secretary of State, “[Sohn] is a giant among international lawyers and has left a major imprint upon his chosen profession.” 3 Sohn is more than respected; he is loved. His kindness, willingness to mentor students, frequent laughter, and humble nature have endeared him to the many who have studied under him or worked with him. James Silkenat, the former Chairman of the International Law Section of the ABA, wrote: It has happened more times than I can count. There is a meeting with some dignitary: a Finance Minister in Africa, a small town mayor in Arizona, or the partner of a large law firm in London. As we walk across a room, a courtyard or an open field our conversation is interrupted by my host saying, “Oh, my gosh [or words to that effect]. Is that Professor Sohn over there? I must run over and say hello.” Almost no one in legal education, in legal practice, or in legal “anything” inspires more respect, admiration, and affection than Louis Sohn. 4 Jose Alvarez, Professor of Law at the University of Michigan, said of Sohn: “Here is someone who truly is owed deference, yet refuses to solicit it. Here is that rarity in our field—a giant whose humility and generosity to colleagues and students has no equal, yet who refuses to be treated as the giant that he truly is.” 5 II. Personal History Louis Bruno Sohn was born on 1 March 1914 to a Jewish family in Lwów, Poland. 6 His parents were both medical doctors. 7 He had one sister. When Louis was a young boy, his father insisted that he study languages. He was taught German and Latin at school and he learned French from a Swiss woman who lived nearby. It was much more difficult to study English. To do [End Page 925] so, he used an old-fashioned radio, holding a filament to a crystal and listening to the BBC over headphones. Sohn was an exceptional student. He graduated first in his high school class, and went on to study at John Casimir University. Again, his father influenced his choice of study. Louis would have chosen history, but his father wanted him to pursue a more practical course of study. Sohn made a “bargain” with his father. He agreed to study the more practical field of law because the law school at that university was connected with a special school of diplomatic and international studies, an area that...

From Korea to Kuwait: The Legal Basis of United Nations' Military Action

international law as established by the United Nations' Charter of 1945, a state, or group of states, is allowed to use military force in only three situations: self-defence (the sovereign right being embodied in Article 51); if authorized by the Security Council itself under Article 42; or acting through a regional agency under Article 53. There is disagreement about the legal basis of the only two operations authorized by the Security Council to combat aggression, in Korea in 1950 and Kuwait in 1990. It is claimed that the states responding to aggression were simply exercising, with the encouragement of the Security Council, their inherent right of collective self-defence. This explanation is incorrect, however, as the actions taken against North Korea and Iraq were United Nations' operations empowered under Article 42. Although the Security Council's military actions have not followed the text of the Charter, UN practice, and its acceptance by members, has created an alternative system inevitable in a world in which powerful states jealously guard their military strength and only allow its collective use within a system that respects their interests. Furthermore, the decentralized security system one relying on volunteers1 that has emerged deals not only with aggression but also with threats to the peace arising out of events within states (Somalia, Bosnia, Rwanda, Haiti, Zaire, and Albania). Thus, it is no longer possible to view the United Nations' involvement in military enforcement operations as aberrant or ad hoc. Paradoxical though the statement may seem, the decentralized military option has been institutionalized. If the legal basis for the invasions of North Korea and Kuwait were provided by Article 51 of the Charter, authorization by the Security Council would become legally superfluous, as the military action would be founded upon the right of self-defence. It would merely take the form of collective defence as other states co-operated with the victim to repel the attack.2 It

Developing a code of conduct for conventional weapons

Mitsuro Donowaki is an ambassador in Japan’s Ministry of Foreign Affairs and a member of the U.N. SecretariatGeneral’s Advisory Board on Disarmament Matters. Previously, he served as Ambassador to the Conference on Disarmament (1989-92), as Ambassador for Arms Control and Disarmament Affairs in Tokyo (1992-93), and, most recently, as Ambassador of Japan to Mexico. He was also a member of the 1992 Panel and 1994 Group of Governmental Experts of the United Nations on the implementation and development of the U.N. Register of Conventional Arms. Unlike weapons of mass destruction, on which there is more or less a consensus that they should be rigorously regulated and eventually eliminated, conventional weapons are regarded as legitimate means with which states are entitled, in time of need, to exercise their sovereign right to individual or collective self-defense. Indeed, a tacit quid pro quo may exist between the goal of prohibiting weapons of mass destruction and the continuing availability of conventional weapons. As a result, conventional weapons have seldom been treated as objects for a global control. For example, even the Coordinating Committee for Multilateral Export Controls (COCOM) was not a global control mechanism. Instead, it was a mechanism for denying certain technologies only to one group of nations. Another example may be the Conventional Forces in Europe (CFE) Treaty, in which the North Atlantic Treaty Organization (NATO) and former Warsaw Pact states agreed to put ceilings on various types of conventional weapons and to reduce them. In spite of its historic significance and success in reducing conventional arms, this agreement is largely a regional arrangement that reflects a drastic change in the power structure of the world, rather than an indicator of a new trend toward the global reduction of conventional weapons. Today, it is a recognized fact that conventional arms can be legitimately produced, developed, deployed, traded, and even used by any U.N. member state under Article 51 of the U.N. Charter. However, the end of the Cold War has brought new attempts to modify and limit the previous “sanctuary” of conventional weapons. Three such efforts (transparency, small arms limitations, and bans on dual-use transfers) are discussed at the outset, along with their difficulties to date. Then, a fourth and more promising route—the notion of creating a “code of conduct” for conventional arms transfers—will be examined in greater detail. In light of the problems facing existing efforts, it may be time for us to start thinking about a code of conduct, rather than a legally-binding instrument, on the transfer and production of conventional weapons. TRANSPARENCY IS NOT ENOUGH

The Rule of Law in Small Wars

Small wars are often mixed civil-international wars characterized by extremes of mutual hatred. Still, the international law of war sets the standards for all armed conflicts. War-decision law regulates recourse to armed force. War-conduct law governs belligerent practice. There are two justifications for recourse to armed force: enforcement action ordered by the U.N. Security Council and individual and collective self-defense. Despite the principle of nonintervention, interventions have been frequent in small wars. The difficulty with applying war-decision law to small wars arises from the fact that such wars are often not conventional wars, making determination of aggression difficult. Application of war-conduct law confronts difficulties with determining belligerent status, dealing with guerrilla and terror tactics, preserving the ban on chemical and biological weapons, and protecting prisoners of war and occupied populations in small wars. The best sanction for the laws of war is self-enforcement by responsible belligerents.