Regional Organisations and the Development of Collective Security Beyond Chapter VIII of the UN Charter

by Abass, Ademola

• ISBN13: 9781841134802
• ISBN10: 1841134805
• Format: Hardcover
• Copyright: 2004-12-01
• Publisher: Hart Publishing

Summary

This book examines the development of collective security by regional organisations particularly after the Cold War. It analyses the various constitutional developments that have occurred within regional arrangements such as ECOWAS, African Union, SADC, OAS, and NATO and critically analyses how these developments have propelled regional organisations to depart from the normative framework of regional arrangement contained in Chapter VIII of the UN Charter. Through a comprehensive examination of practice, the book evaluates the impact of regional organisations newly asserted powers to authorise enforcement action and determine when situations within member states warrant their intervention. It inquires into the legal justifications for these developments both from within the UN Charter and regional treaties and practice and asks whether consensual intervention, that is the use of force by regional organisations on the basis of their members consent, contravenes or constitutes an exception to the prohibition of the use or threat of force under Article 2(4) of the Charter. The book also analyses the regime of complementarity between the UN and regional organisations.

Author Biography

Ademola Abass is a Senior Lecturer in Law at the University of the West of England in Bristol.

Table of Contents

Preface	vii
Acknowledgements	xiii
Table of Cases	xv
Table of Treaties, Conventions and Declarations	xvii
Introduction	xix
The Meaning of Regionalism	1	(26)
Introduction	1	(1)
Regional Organisations: An Historical Overview	1	(6)
Regions, Regional Organisations and Regionalism: Conceptual Issues	7	(2)
Criteria for Conceptualising a Region	9	(11)
Geographical Proximity	9	(3)
The Multidimensional Conception	12	(3)
The Neofunctionalist Approach	15	(1)
The Teleological Approach	16	(2)
The Structuralist Perspective	18	(1)
The 'Diversity' Approach	19	(1)
Regionalism and the Discipline of International Law	20	(1)
The Place of Regionalism in Collective Security	21	(3)
Conclusion	24	(3)
Regional Organisations and Chapter VIII of the UN Charter	27	(38)
Introduction	27	(1)
The Normative Framework of Chapter VIII	28	(6)
Pacific Settlement of Disputes	28	(6)
Regional Arrangements or Agencies: Characterisation and Practice	34	(8)
Enforcement Action by Regional Organisations	42	(4)
Enforcement Action under Chapter VIII: Analysis of Factors Responsible for the Weakening of the Charter Framework for Regional Arrangements	43	(3)
Do/Should Economic Sanctions Constitute Enforcement Action under Chapter VIII?	46	(6)
The Requirement of 'Authorisation' under Chapter VIII and its Effect on the Charter Scheme of Collective Security	52	(7)
Retroactive Authorisation and its Impact on Chapter VIII	54	(3)
The Competence of Regional Organisations to Determine the Existence of a Threat to Peace under Chapter VIII and its Effect on Decentralised Enforcement Action	57	(2)
Complementarity between the UN and Regional Organisations under Chapter VIII	59	(2)
The Legal Limits of Regional Organisations when Authorised by the Security Council to Undertake Enforcement Action	61	(3)
Conclusion	64	(1)
A Decentralised Enforcement Action: An Evaluation of Surrogate Collective Security under Chapter VII	65	(42)
Introduction	65	(1)
Chapter VII of the UN Charter: Centralised Collective Security	66	(5)
Decentralised Military Action: A 'Surrogate' Collective Security System	71	(1)
The Regulatory Framework of Decentralised Enforcement Action	71	(12)
The Legal Bases	71	(8)
Enforcement Action through the General Assembly: Analysis of its Collective Security Powers under the Charter	79	(4)
The Problems of Decentralised Enforcement Action	83	(5)
Command and Control	83	(4)
Absence of Obligation to Report	87	(1)
The Factors Militating Against the Centralised Collective Security System	88	(16)
The Veto Power: A Critique of Existing Proposals for Reform	88	(3)
The Selectivity of Collective Security	91	(2)
The Security Council and the Legitimacy Crisis	93	(2)
Legitimacy in the Context of the Security Council's Functioning	95	(2)
Proving the Loss of Legitimacy by the Security Council	97	(3)
Implications of Loss of Legitimacy for Centralised Collective Security	100	(4)
Conclusion	104	(3)
Regional Organisations and Residual Responsibility for Collective Security	107	(34)
Introduction	107	(2)
Collective Security: A General Overview	109	(1)
The Meaning of 'Collective Security'	110	(5)
The 'Collectivity' of a Collective Security Action: The Period before the UN Charter	110	(2)
Collective Security and Enforcement Action: A Distinction	112	(2)
The Benefit of a Broader Definition of Collective Security to Regional Organisations	114	(1)
States and Collective Security before the UN Charter	115	(4)
Collective Security and Bilateral and Multilateral Treaties	115	(2)
Regionalisation of Collective Security before the UN Charter	117	(2)
Collective Security and Contemporary International Law	119	(5)
The League of Nations and the Kellogg-Briand Pact	119	(3)
The UN Charter and Collective Security	122	(2)
Collective Security and Article 24 of the Charter	124	(15)
Authority of the Security Council's Collective Security Powers	125	(3)
The UN Collective Security and the Protective Mechanism	128	(3)
Who Possesses Residual Responsibility for International Peace and Security Under Article 24(1)?	131	(8)
Conclusion	139	(2)
Regional Intervention after the Cold War	141	(42)
Introduction	141	(2)
An Overview of Regional Collective Security after the Cold War	143	(10)
An Assessment of the Debate about the Relationship between the UN and Regional Organisations	153	(3)
Subsidiarity, Burden-sharing, Burden-shifting and Subcontracting: Different Concepts, Common Mistakes	153	(3)
Regionally Authorised Enforcement Actions or Decentralised Collective Security	156	(5)
ECOWAS' Justifications for Beyond Chapter VIII Action and Third States' Responses	157	(4)
The Rationale for Regionally Authorised Enforcement Action	161	(17)
The Emerging Principles in the Law and Practice of Regional Collective Security	161	(17)
The Preference for Decentralised rather than Centralised Collective Security	178	(3)
Conclusion	181	(2)
Regional Enforcement Action and the Prohibition of the Use of Force	183	(26)
Introduction	183	(5)
Consensual Intervention by Regional Organisations: A Constitutional Principle?	188	(3)
Determining the Peremptory Character of Article 2(4)	191	(10)
The Tests of Peremptory Norms under Article 2(4)	192	(2)
What Norms are Exactly Peremptory Under Article 2(4)?	194	(7)
Can Consent Preclude the Operation of Article 2(4) in Respect of Regional Actions not Violating Peremptory Norms?	201	(7)
Consent in the ILC Articles on State Responsibility	205	(2)
State Consent and the ICJ	207	(1)
Conclusion	208	(1)
Conclusion	209	(8)
Bibliography	217	(18)
Index	235