Reforming the Security Council to Achieve Collective Security

Progress in International Law, 2008

20 Pages Posted: 7 Aug 2008

Date Written: August 4, 2008

Abstract

This article proposes a process for the UN Security Council to follow when deciding whether to use military force to address an international crisis. The process would help the Security Council determine, ex ante, whether military action is necessary and justified, and, if so, how it can be applied with the least possible cost in lives and property.

This article criticizes initiatives promoted by former UN Secretary-General Kofi Annan in 2004-05 to reform the jus ad bellum rules for failing to take larger steps. An effective process would mandate far-reaching fact-finding concerning whether force is necessary and whether there are ways to limit attendant damage, with a burden of proof of at least clear and convincing evidence; the Permanent Five nations would be required to withhold any veto until the process has been completed. Using counterfactuals, the article shows how the process it proposes could have helped prevent or at least helped minimize the damages from two instances where the Security Council was bypassed.

The article appears as a chapter in PROGRESS IN INTERNATIONAL LAW (Martinus Nijhoff 2008 (Russell A. Miller & Rebecca M. Bratspies, eds.)). The book was inspired by Harvard Law Professor and PCIJ Judge Manley O. Hudson's book PROGRESS IN INTERNATIONAL ORGANIZATION (1932), which contains his 1931 lectures at the University of Idaho to inaugurate the William Edgar Borah Outlawry of War Foundation. The article's references to Hudson's work are brief. The article was written under a 9,000 word limit, in late 2006. Minor revisions were made for the published version, sent to press in January, 2008.

Keywords: international law and use of force, jus ad bellum, Security Council reform, UN reform

Suggested Citation

Foley, Brian J., Reforming the Security Council to Achieve Collective Security (August 4, 2008). Progress in International Law, 2008. Available at SSRN: https://ssrn.com/abstract=1202882

Brian J. Foley (Contact Author)

Florida Coastal School of Law ( email )

8787 Baypine Rd.
Jacksonville, FL 32256
United States

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