Legitimacy and Force: State Papers and Current Perspectives: Volume 1: Political and Moral Dimensions by Jeane J. Kirkpatrick
Author:Jeane J. Kirkpatrick [Kirkpatrick, Jeane J.]
Language: eng
Format: epub
Tags: International Relations, Political Science, General
ISBN: 9781351317948
Google: tCNHDwAAQBAJ
Goodreads: 38641100
Publisher: Routledge
Published: 1988-01-01T00:00:00+00:00
* âWith Jose Sorzano
37
The Limits of International Law*
American Society of International Law, New York, New York, April 12, 1984.
The idea that war would be effectively restrained by juridical means is peculiar to this century. In 1907, the Hague Convention first imposed limitations on the right to wage war. In 1919, the Covenant of the League of Nations obligated members of the League to submit any dispute likely to lead to a rupture to arbitration or to inquiry by the Council and, in no case, to resort to war until three months after the award by the arbitrators of the reported Council. In 1928, the Kellog-Briand Pact provided the high contracting parties solemnly to declare, in the name of their respective peoples, that they condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy in their relations with one another. The crowning achievement of this effort to constrain war by juridical means was, of course, the establishment of the United Nations and the promulgation of its Charter. In its preamble, the UN Charter declares its determination âto save succeeding generations from the scourge of war by requiring that its members act in accordance with the principles of respect for the sovereign equality of all states, peaceful resolution of disputes, the non-use or threat of force, and nonintervention in international affairs.â
The core of the United Nations Charter is Article 2(4), which enjoins all member states to ârefrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.â This prohibition on the use of force was never intended to stand on its own, but was to be seen in the context of the entire Charter. In particular, as stated in Article 51, 2(4) was not intended to âimpair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.â
Article 2(4) of the UN Charter prohibits violence, but must be seen in the context of and as complimentary to Article 51 and all other provisions of the UN Charter to do with the guarantee of human rights. The structure of the UN Charter was accepted by its members on the expectation of the member states that the effective functioning of collective peacekeeping measures; that is, that states would cooperate in the maintenance of world peace.
However, this vision was never realized. Instead of a world order operating according to the principles and procedures of the United Nations Charter, there emerged in the aftermath of the Second World War two contending orders, the differences between them being highly relevant to the conception and functions of law within them. The first was an order dominated by the Soviet Union, committed to and engaged in a process of continuing expansion through the use of violence. The second was a Western, democratic order, comprised of the Western, democratic states and was committed to the defense and the promotion of democratic values.
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