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Abstract

The governing principle of the collective security system created by the United Nations Charter in 19451 is the rule prohibiting the use of force in Article 2(4), which provides that "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purpose of the United Nations." This rule prohibiting the use of force was considered revolutionary at the time because it transformed into international law ideas which had for centuries, if not millennia, preoccupied the minds of people obliged to accept with fatalism the horrors of continual war as a scourge much like the plague or famine which from time to time decimated whole populations. The Charter, however, expressly recognized two exceptions to the rule prohibiting the use of force: the right of self-defense permitted by Article 51; and collective action against threats to the peace, breaches of the peace, and acts of aggression pursuant to Chapter VIl. Collective action is to be undertaken and managed by an organ called the Security Council. Thus, beginning in 1945 with the creation of the collective security system, two types of rules have coexisted in the international legal order. Some rules are 'relative'; they arise out of situational or needs-driven relationships. Other rules are 'institutional'; they arise out of institutional relationships and are based on recognition by member states of their common interests. These two types of rules coexist and confront each other in a dialectical tension. It appears that even today the 'institutional' dimension of international law has not displaced its 'relational' character. The coexistence of "relational" and "institutional" rules in the international legal system of today respects no law of equilibrium-sometimes one type prevails to the detriment of the other, and at other times the other type predominates. Ever since the emergence of new threats to international peace and security it seems that the imbalance favors 'relational' rules. In fact, in overturning the traditional paradigms of international security by the dissolution of the traditional boundary between international security and national security, new threats to the peace have occasioned the emergence of state practice that disregards an international legal order which regards itself as supranational and supreme. Some states have recently reminded the world that in 1945 they did not abandon their right to have recourse to the use of force, one of sovereignty's essential attributes. They merely gave the impression of doing so. These new threats to international peace and security consist mainly of terrorism and the proliferation of weapons of mass destruction. In reality there exist two types of preventive self-defense: one implicitly forbidden by the Charter and the other explicitly authorized by it. The first, or forbidden, type is that which is implemented unilaterally by states outside of the U.N. framework. It is prohibited by the Charter and thus is in no way capable of being considered as an exception to the rule prohibiting the use of force, but rather as a violation of this rule. The second type is, on the contrary, expressly authorized by Chapter VII of the Charter. It is activated by the Security Council alone in the case of a threat to the peace and it falls within a multilateral framework. A threat to the peace in and ofitself suffices to justify action by the Security Council. The first type of preventive selfdefense is unilateral; the second is multilateral. United States action in intervening in Iraq, citing a threat to the peace, illustrates the first type of preventive self-defense. On the other side of the Atlantic, France was exhausting itself by repeatedly emphasizing the traditional role of the Security Council, that ofintervening in cases of threats to the peace, even new ones.

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