McNair Paper Number 33 Chapter 5, January 1995
Like its predecessor, World War II shocked the consciousness of mankind. The governments of the victorious nations had many conflicting objectives at the end of the war but they were able to find a least common denominator: the United Nations Charter. The Charter goes further than any document before to bring together the world's resources in the cause of peace. The United Nations has not been an unqualified success, but it has stood for some time as a mechanism for peaceful settlement of disputes and sometimes has found a route back to peace when disputes turn violent. The tool itself is worthwhile and should not be condemned for its lack of use during the Cold War. As Grotius explained:
Right does not necessarily lose its nature from being in he hands of wicked men. The sea still continues as a channel of lawful intercourse, though sometimes navigated by pirates, and swords are still instruments of defence, though sometimes wielded by robbers or assassins.(Note 2)
The United Nations is the world's attempt to improve upon
the noble experiment begun by the League of Nations. The League had stronger mechanisms to ensure peace, but could not produce the consensus necessary to use those tools. The framers of the Charter did not reassert the broader authority of the Covenant in the hope that the tool would be used more often. Indeed, many provisions found objectionable to the United States when the Covenant was first considered (and later to League members who had initially accepted them) were changed in the drafting of the United Nations Charter to encourage the new organization to function where its precursor had faltered. Like the League, however, the United Nations was still to be the instrument by which the victors managed peace in the postwar world. Consequently, the Axis states and the "non-belligerent" Spanish were, at first, precluded from membership.(Note 3)
One other major difference from the League should be noted. Both the executive and the legislative branches of the U.S. Government actively sought membership in the United Nations. Preserving international peace was seen as a prerequisite for a successful postwar world economy. Paradoxically, the realization that the United States had worldwide interests and responsibilities in the postwar period was coincident with reduction of the armed forces to little more than one-tenth of their wartime strength. Although this reduction was required by domestic political and economic imperatives its breadth and depth also represented an act of faith in the efficacy of the United Nations.(Note 4)
The most notorious aspect of the Charter, in that it stood as a bar to effectiveness, is the much maligned veto power of the Permanent Members of the Security Council. The authority to wield the veto, combined with the politics of the Cold War, cast the United Nations into a somewhat different role than anticipated by its drafters. Determinations of aggression and decisions to confront it were frequently impossible to attain.
Since the end of the Cold War, consensus has been easier to come by. This has allowed the United Nations to take significant strides in the area of collective security. Unprecedented cooperation has put the organization back into unfinished growing pains, despite its five decades of experience. Only time will tell if the problems identified by "first time" operations will be afforded a chance to be solved by a "next time."
The provisions of the Charter of the United Nations regarding the use or threat of force by states bear directly on this discussion of U.S. neutrality.
Article 2 (3) requires the peaceful settlement of international disputes and Article 2 (4) proscribes the use or threat of force against the territorial integrity or political independence of any state. The Charter does not outlaw war. In fact, the provisions of Chapter VII make it clear the framers believed war would be necessary to confront aggression and make its victims whole again.
The commitments made by Member-States of the United Nations have not stopped the use of force. The wording of the Charter has only caused states to look elsewhere for a rationale to use force. At the same time, however, the wording clearly placed some actions outside the Charter. The practice of states over the nearly five decades since the Charter came into force clearly demonstrates that Article 2 (4) remains a rule "for" rather than a rule "of" the behavior of states. While this may be lamentable, it does not modify the legal effect of the proscription, only its political effectiveness.(Note 5)
Under Article 2 (5), member states may be called upon to demonstrate partiality in a dispute should the United Nations decide upon enforcement action under the provisions of the Charter. This requirement is inconsistent with the conception of neutrality expressed in the Hague and Havana Conventions, but this does not mean impartial neutrality is never appropriate.
To explain the legal relationship of Article 2 (5) and neutrality, an examination of the process for deciding upon enforcement actions and their likely implementation is required. Article 39 is the gateway to enforcement action. It charges the Security Council to determine if the peace has been threatened or breached and which of the contending parties to the dispute has violated its obligations under the Charter. Only when this has been agreed upon by a qualified majority can enforcement measures be taken.
These very provisions were cited by Switzerland as a basis for refusing to join the organization, arguing that they could require a compromise of Swiss neutrality. Neutrality within the United Nations was thought to be entering desuetude, based upon the principle cessante ratione legis, cessat et ipsa lex--the reason of the law ceasing, the law itself also ceases.(Note 6) It seems clear that the reason for the law has not ceased.
Claims of outlawed neutrality take a stilted view of the Charter. While Article 2 (5) can be understood to require partiality, it must be considered in light of the entire text that clearly anticipates the possibility force will be threatened or used by states in contravention of the Charter. Article 2 (3) requires members to settle international disputes by peaceful means. Article 33 (2) envisages the Security Council calling upon parties to a dispute to undertake methods of peaceful settlement.
Should the Security Council achieve the consensus required to take forcible action or require partiality, it could also require impartial neutrality. If all states were members of the United Nations and had foregone their neutrality in compliance with an interpretation of Article 2 (5), there would be no states to provide impartial candidates or to serve as mediators or arbitrators to provide "good offices" for the parties to the dispute. (Even after enforcement action might be deemed appropriate, the resolution of a dispute will need to use the peaceful settlement procedures described in Article 33 (2)). While the Secretariat has sometimes fulfilled the role of objective third party, it would be difficult for the United Nations to take enforcement action and still be viewed as objective and impartial by the offending party.
Further, if enforcement action is taken through armed force against a state, it might still prove to be in the best interest of the organization for the Security Council to require some states to observe impartial neutrality. This could prevent the spread of fighting to the aggressor's weak neighbors that might otherwise be easily defeated and only worsen the task of those charged with the re-establishment of the status quo ante.
For example, during Desert Storm Jordan and Iran both claimed to be neutral. In fact, the problems in the region might have been much more difficult if both states had engaged Iraq or even been merely openly non-belligerent. Had Iraq crossed their borders during the 6 months of Desert Shield, political and tactical complications would have ensued. Combat operations might have had to begin before preparations were complete. Iran might have needed to be removed from the eastern regions of Iraq after the fighting ceased. King Hussein might have been unseated by Palestinians and their sympathizers in Jordan. As it was, as neutrals, both states could be expected to prevent the use of their territory by Iraqi forces. They would be obliged to hold any belligerent forces or equipment entering their jurisdiction, as Iran did with the Iraqi air force. Clearly, there were advantages to the belligerent forces operating under the aegis of the United Nations of having the border states declare their neutrality.
Another consideration that might require neutrality within the Charter is the period during which armed conflict has already begun and the Security Council is deliberating what action it should take. During these periods, since the Charter bestows the authority and responsibility for determining whom to be partial for and against upon the Security Council, third states should remain impartial to avoid complicating the situation.(Note 7)
Practice of states proved that while the law may have changed, the states that agreed to it had not. Throughout the Cold War it was impossible for all Permanent Members of the Security Council to agree on almost any issue in the context of Article 39, and and without such agreement it is impossible to meet the procedural prerequisites to take enforcement action-- and therefore the partiality requirements of Article 2 (5) do not come into play either.
There are no guarantees that all future conflicts will find consensus in the Security Council just because the Cold War is over. Each of the Permanent Members still has national interests and it is improbable they will always align closely enough to provide consensus for an effective solution. When the Security Council fails to decide, each state is free to make this decision for itself. In that case, neutrality remains a valid option. Further, as Austria has argued, the behavior of the world in relation to great powers and the pattern that evolved regarding the veto in the Security Council allow neutral states within the organization to make a real contribution to peace.(Note 8)