Radical changes are taking place in the world and international law must change with them. Sovereign states still predominate and power remains the decisive element in the prevailing international order. International organizations still have to operate within their mandates and are under the sway of powerful states or voting majorities. And yet, there is room for structural change in the content and procedures of international law of the future, which must become an international law of security and protection with the United Nations indispensably in the forefront.
THE CHANGING NATURE OF THREATS TO INTERNATIONAL SECURITY
In the third edition of The Charter of the United Nations: A Commentary, edited by Bruno Simma and others, the authors refer to the report of the former SecretaryGeneral Kofi Annan "In Larger Freedom: Towards Development, Security and Human Rights for All", noting that "the threats to peace and security in the twenty-first century include not just international war and conflict, but civil violence, organized crime, terrorism and weapons of mass destruction. They also include poverty, deadly infectious disease, and environmental degradation since these can have equally catastrophic consequences. All of these threats can cause death or lessen life chances on a large scale. All of them can undermine States as the basic unit of the international system".1
The term "international security", in turn, they continue, requires "a transformation of international relations so that every State is assured that peace will not be broken, or at least that any breach of the peace will be limited in its impact. International security implies the right of every State to take advantage of any relevant security system, while also implying the legal obligations of every State to support such systems". The General Assembly, the authors further noted, "has stated that national and international security has become increasingly interrelated, which accordingly makes it necessary for States to approach international security in a comprehensive and cooperative manner".2
The authors commented: "Traditionally, the concept of international security was perceived as primarily a problem of State security. Within recent years, however, an additional concept has emerged—that of human security, acknowledging that threats cannot only come from States and non-State actors, hut can also exist to the security of both States and the people."3
They proceeded to point out that "International security can he promoted and achieved through various policies or measures, two of which are referred to in para 1 [of Article 1 of the Charter], namely measures of collective security and adjustment or settlement of international disputes.... [I]nternational peace and security may Be endangered not only by acts of aggression, but also by any other threat to the peace."4
What do the changing threats to international security signify for the future of international law and order? Nick Butler of the Policy Institute at King's College London explored these issues in "Action on Climate Change Is Self-defence Not Altruism", published in the Financial Times on 20 October 2015. He reported that, in the middle of October that year, at the École Militaire in Paris, military and civilian leaders debated the risks and the defence and security implications of climate change at a seminar organized jointly by the French Senate and the Defence Ministry. Many of the risks were well-known—such as the possibility of desertification in particular regions, or water shortages leading to inadequate harvests and a lack of food supplies, and on the other hand, the prospect of floods or sudden surges in temperature; and the risk of diseases and epidemics spread by dirty water.
Climate "change", the article commented, sounded too mild a description and implied a gradual, linear shift over decades to a temperature 2˚C higher than we are used to. The more likely reality, however, is climate disruption—erratic shifts in one direction or another. These raised the need for what the French call "green defence". The changing climate would drive even more people to migrate. Epidemics can spread rapidly in an age of global travel and trade. "In these circumstances it is hard to see how national and European security can he preserved without active intervention to deal with the problems at source. That means that European and possibly other countries will have to put people on the ground, and invest seriously in a process of development that helps to manage each of the risks and encourages the local population to stay instead of migrating".5
The French, Butler added, "are right to see the challenges associated with climate change as issues not just of energy policy and environmental protection but also as major defence and security challenges."6
FUTURE CHALLENGES OF INTERNATIONAL PROTECTION
A month before Nick Butler's article on "green defence" was published, Martin Rees, the British Astronomer Royal, wrote an opinion piece entitled "Scientists and Politicians Alike Must Rally to Protect Life on Earth" for the Financial Times.7 The author warned: "Heat stress will most hurt those without air conditioning, crop failure will most affect those who already struggle to afford food, extreme weather events will most endanger those whose homes are fragile...Climate change is aggravating a collapse in biodiversity that could eventually he comparable to the five mass extinction events in Earth's history. We are destroying the hook of life before we have read it....To design wise policies, we need all the efforts of scientists, economists and technologists, and the best knowledge that the 21st century can offer. But to implement them successfully, we need the full commitment of political leaders and the full support of the voting public."8
On 2 February 2011, United Nations Secretary-General Ban Ki-moon delivered the fourth Cyril Foster lecture at Oxford University on the topic, "Human Protection and the 21st Century United Nations". He noted that "the founders of the United Nations understood that sovereignty confers responsibility, a responsibility to ensure protection of human beings from want, from war, and from repression. When that responsibility is not discharged, the international community is morally obliged to consider its duty to act in the service of human protection."
"The task of human protection", he acknowledged, "is neither simple nor easy. We don't always succeed. But we must keep trying to make a difference. That is our individual and collective responsibility. People like myself, as Secretary-General, and the leaders of the world have a moral and political responsibility to protect populations." He continued: "The challenges facing us have changed, but our core responsibility to maintain international peace and security has not. Slowly but surely, sometimes by trial and error, we have learned to use the instruments available under the Charter in new ways, adapting to evolving circumstances. Through this evolution, the need to operationalize a concept of human protection has emerged." "Undoubtedly", the Secretary-General acknowledged, "the UN needs to perform its protection duties more effectively....The best form of protection is prevention. Prevention saves lives as well as resources."9
"Beyond the immediate protection agenda", he continued, "the United Nations was addressing the 'creeping vulnerabilities'. They also put populations at risk and weaken societies, and also plant the seeds of violence and conflict: water scarcity, food insecurity, corruption, transnational crimes, the effects of climate change. Often, this impact of climate change, water scarcity, has become the source of conflict, regional conflict, very serious regional conflict. So it is not surprising that these human security issues are finding their way onto our peacebuilding agenda, and specifically that ofthe Peacebuilding Commission."
"The UN", he acknowledged, "recognizes that human protection stands at the centre of both its purposes and principles."10
The United Nations will have to change its approaches dramatically if it is to rise to the challenges of international protection. This will require great daring. In his acclaimed book, World Order, Henry Kissinger observed that "the idea that ... countries will identify violations of peace identically and be prepared to act in common against them is belied by the experience of history.... Collective security has repeatedly revealed itself to be unworkable in situations that most seriously threaten international peace and security".11 He asked the question, "Were the rules and principles themselves the international order, or were they a scaffolding on top of geopolitical structure capable of—indeed requiring—more sophisticated management?"12
Kissinger did not factor into his thinking the evolving challenges of international security and of human protection. The contemporary and future threats to international security and the challenges of international protection are such that even the mighty powers will have to recognize that United Nations action is necessary to save humanity and its habitat.
We shall need to turn to the United Nations as a system of public order, as advocated by the late Ian Brownlie:
"The design of the United Nations constitutes a comprehensive public order system. In spite of the weakness involved in multilateral decision-making, the assumption is that the Organization has a monopoly on the use of force, and a primary responsibility for enforcement action to deal with breaches of the peace, threats to the peace or acts of aggression. Individual Member States have the exceptional right of individual or collective self-defence. In the case of regional organizations the power of enforcement action is in certain conditions delegated by the Security Council to the organizations concerned.
Enforcement action may involve the use of force on behalf of the community against a State. However, the practice has evolved of authorizing peacekeeping operations which are contingent upon the consent of the State whose territory is the site of the operations. In recent history the roles of peacekeeping and enforcement action have on occasion become confused, with unfortunate results."13
We shall need to transform international law into a law of international security and protection.
A NEW INTERNATIONAL LAW OF SECURITY AND PROTECTION
The foundations of a new international law of security and protection are already in place. They consist of:
- The competences of the Security Council under Chapter 7 of the United Nations Charter: the Security Council must transform itself into the world's executive authority.
- The competences of the United Nations SecretaryGeneral under Article 99 of the Charter: the SecretaryGeneral must increasingly make submissions, including legal submissions, to the Security Council under Article 99 of the Charter and invite it to issue mandatory orders under Chapter 7 of the Charter.
- The recommendatory competences of the United Nations General Assembly combined with the process of the formation of international customary law: the Secretary-General must use his Annual Reports to the General Assembly to draw its attention to threats to human security and to indicate policies and recommendations that can, through widespread consensus, crystallize into norms of international customary law.
- The interpretative role of the International Court of Justice to clarify the role of the law in meeting the circumstances of contemporary society: the Security Council and the General Assembly should use their competences to submit requests to the International Court of Justice for Advisory Opinions on the duties of States to cooperate for the security and protection of humanity and its habitat.
There is also room for:
- Security advisories by heads of United Nations agencies.
- Protection alerts by the United Nations High Commissioner for Human Rights.
- Security and protection actions by regional organizations.
The urgent need for progressive development of international law in key areas has also been identified by scholars and practitioners. In his recent book, An Unfinished Foundation: The United Nations and Global Environmental Governance, Ken Conca calls upon the international community to urgently:
- Find an explicit human right to a safe and healthy environment.
- Acknowledge an environmental responsibility to protect.
- Infuse the law-and-development approach with stronger peace-and rights practice.
- Find a legitimate (and clearly limited) environmental role for the United Nations Security Council.
- Exploit opportunities for environmental peacebuilding.
- Reconceive and strengthen what it means for the United Nations to make a “system-wide” response on environmental problems.14
How is the international community to proceed in this reconceptualizing of international law to meet the new challenges of security and human protection? The place to start would be for the United Nations Security Council to hold an urgent debate on the need for a new international law of security and protection. An enlightened member of the Council could submit a concept paper and advocate such a debate.
1 As cited in Bruno Simma and others, eds., The Charter of the United Nations: A Commentary vol. I., 3d ed.(Oxford, Oxford University Press, 2012), p.111.
4 Ibid., p.112.
5 Nick Butler, “Action on climate change is self-defence not altruism”, Financial Times, 20 October 2015.
7 Martin Rees,"Scientists and politicians alike must rally to protect life on Earth", Financial Times, 5 September 2015.
9 Ban Ki-moon, Secretary-General of the United Nations, “Human protection and the 21st century United Nations”, Cyril Foster Lecture at Oxford University, Oxford, United Kingdom, 2 February 2011. Available from http://www.un.org/sg/selected-speeches/statement_full.asp?statID=1064 .
11 Henry Kissinger, World Order (New York, Penguin Press,2014), p.264.
12 Ibid., p.266.
13 Ian Brownlie, Principles of Public lnternational Law, 6th ed. (Oxford, Oxford University Press, 2003), p.706.
14 Ken Conca, An Unfinished Foundation: The United Nations and Global Environmental Governance (Oxford, Oxford University Press, 2015), p. 14.