The concept of collective security comes from the idea of a multilateral institution set up by states to preserve and maintain world peace and while the first attempt was the League of Nations, a successful endeavor to world peace and security has been the United Nations. A unique reason why it has been successful in averting another world war is its ability to create a de jure use of force which are mainly collective security and self-defence. While the League of Nations under its Charter Article 10 was only to act under the commitment of an act of aggression, the Charter of the United Nations created a principal organ, the Security Council, which had the ability to determine the existence of any threat to peace, breach of peace and any act of aggression under Article 39. In fact, unlike its predecessor, it further sets forth that in light of any breach of peace, the Security Council shall either decide measures to complete interruption of economic relations, means of communication and diplomatic relations under Article 41 or use military force under Article 42 in pursuit to achieving international peace and security. However, in light of an act of aggression, until the Security Council has taken measures to act, it gives the responding state or states every right to pursue self-defence under Article 51. With 193 Member States in the United Nations, one could argue that these norms of use of force have developed as well accepted treaty law but that does not take away instances where the use of force was beyond the mandate of the Charter, such as NATO intervention of Kosovo which sidelined the legally binding UNSC Resolutions acted under Chapter VII. Thus, the question arises if Article 39, 41, 42, and 51 remain the only permissible uses of force in practice.

THE UNITED NATION’S WAY OF USING FORCE AS COLLECTIVE SECURITY

With regards to collective security, Chapter VII of the UN Charter has a three layered approach to the idea of using force in response to an act of aggression guided by Article 3 of GA resolution 3314. The first layer is where the matter of necessity comes to light under Article 39 which gives the Security Council a foothold in assessing if there has been a breach of peace or an act of aggression. The UNSC Resolutions 82 on the North Korean invasion of South Korea and 660 which determined that invasion of Kuwait by Iraq become are examples of the first layer of approach in using force as collective security.

In response to this act of aggression, the second layer of approach would be to coerce the nation into peace under the directive of the Security Council pursuant to Article 42.  It gives the Security Council the ability to implement partial or complete interruption of trade, communication and diplomatic relations. Such an approach has been widely used over the past years in the hopes of maintaining international peace and security through various sanction regimes such as the UNSC Resolution 661 on Iraq in response to its invasion of Kuwait, which put countries under a legal obligation through Article 25 of the Charter to:

i. Ban imports of products and commodities originating from Iraq and Kuwait

ii. Ban any activity which might promote or increase export from their nation

iii. Ban sale and supply of weapons.

However, according to Article 42, if such measures seem inadequate, then the Security Council may use of force in restoring peace through air, land and water with forces made available by States pursuant to Article 43, 44 and 45. Such a measure of collective security has been used often in used as the last resort to restore peace and sovereignty in a region. An example of such practice was the UNSC Resolution 84 (para 5) which authorized the use of force against the aggressor North Korea during the Korean War. It created a unified force under the leadership of the United States with the banner of the UN.Thus, this becomes the third and penultimate layer of using force under the United Nations Charter. Although one might argue that neither Article 39 nor 41have a direct role in this practice, they serve as the jus ad bellum for any use of force by the United Nations. Terms such as “shall make recommendations” under Article 39 and “would be inadequate” or “have proved to be inadequate” under Article 43, could be interpreted as principles of just cause, proportionality and last resort and thus, following the customary rules of using force.

SELF DEFENCE AND ITS COMPLEXITIES

Although the former creates the basis for Article 1 and 2 of the Charter, an exception to this three layered approach is the individual or self ability to use force immediately as self defence pursuant to Article 51 of the Charter. It gives the state the right to counter any armed attack that has occurred against it, thus, overriding principle clauses such as 2(4) in Chapter which put a strict ban national sovereignty infringement. However this is guided by the principles of proportionality which in simple words would mean that intensity of attack must be in proportion. For instance,a state attacking another state under the banner of self defence before any attack has been launched by the other would be a classic example of a violation of the principle of proportionality under the international system. Thus, in the case of Israeli invasion of Egypt in 1956, the General Assembly rejected Israel’s argument for invasion as a self defence in light of Egyptian Fedayeen. Further, paragraph 41 of the 1996 Advisory Opinion on the Nuclear Weapons Case rule out that the concept of self defence in Article 51 is guided by proportionality i.e. only to repeal the incoming attack. But paragraph 195 of the 1986 Advisory Opinion on the Nicaragua Case broadened the scope of Article 51 by accepting the practice of sending armed groups and mercenaries to carry out acts of armed attacks against another state as a reason under the umbrella of an “armed attack” on the sovereignty of another state. Thus, both the treaty law and advisory opinion on Article 51 cater to the short comings of collective security under the UN Charter.

A DIFFERENT PRACTICE?

Although members to the United Nations are bound by its principles of using force under Article 26 of the Vienna Convention on Laws of Treaties, both these principles have had a complete different practice that it contrary to the provisions of the UN Charter. For example, in March 1999, the NATO launched aerial bombings against the Federal Republic of Yugoslavia in response to the Serbian ethnic cleansing of Kosovo Albanians. This however, was done contrary to the Security Council’s decision to use article 41 in Resolution 1160 which put an arms embargo in the region. While the NATO issued a statement citing humanitarian grounds as a mechanism for intervention, it was neither authorized by the Security Council nor an act of self defence. Further, the Independent International Commission report on Kosovo noted that humanitarian grounds for use of force is situated in this gray zone of ambiguity between international law and international moral consensus. Thus, this goes beyond strict ideas of legality into the more flexible views of legitimacy.Another instance where use of force was contrary to the provisions of the Charter was the Bush Doctrine of Pre-emptive Self Defence in Iraq. When the UNSC Resolution 1441 cited that Iraq has been a material breach in context to its obligations on Weapons of Mass Destruction, this gave United States and a coalition of other states to launch a pre-emptive strike under the banner of self defence. Although this became contrary to the provisions of Article 51, Taft and Buchwald, renowned legal scholars noted in their article Pre-emption Iraq and International Law, that the international community’s argument over the intervention was not the doctrine of pre-emptive strike per se, but a necessity over Iraq’s aggression over its neighbors, proliferation and use of Weapons of Mass Destruction and continuous defiance of Security Council decisions. Thus, they conclude that pre-emptive strike over self defence depends on the circumstances of its use. Further regional organisational structures such as that of the African Union continue to challenge these principles of the UN Charter.According to the Article 4(h) of the Constitutive Act of the African Union has the right to intervene in situations of war crimes, genocide and crimes against humanity and in Article 4(g) it gives member states the right to request for an intervention to create peace. Thus, by assuming responsibilities equivalent to the Security Council, it denies the essence of primary responsibilities of maintaining peace and security under Article 25 of the UN Charter.

Thus, to conclude my argument, I intend to believe that although the United Nations has been a successful mechanism to prevent a World War 3, there exists complexities that continue to trigger such events that might amount to another. Although one might argue that the structure and the vastness could a reason for its short coming in maintaining a uniformity in the use of force practice, it still does not provide a definitive model to judge whose side "the force really is with".