Security Council Change
| Author | Vera Gowlland-Debbas |
| DOI | 10.1177/002070201006500108 |
| Published date | 01 March 2010 |
| Date | 01 March 2010 |
| Subject Matter | Article |
| International Journal | Winter 2009-10 | 119 |
Vera Gowlland-Debbas
Security council
change
The pressure of emerging international public policy
As international lawyers know, the concept of sanctions lies at the heart
of fundamental debates on the nature and function of international law.
Sanctions are of course linked to the general problem of compliance inherent
in the prescriptive nature of any legal order. Under general international
law, there was and still is no socially organized sanction along the lines of
states’ legal systems. Reactions to violations of the horizontal system that
is international law have traditionally been unilateral, i.e., have taken the
form of private justice. States enforced their own rights and, in invoking
responsibility, freely determined the legal consequences they ascribed
to other states’ infringement of their rights, having recourse to coercive
measures if necessary. In short, unpredictable decentralized reactions to
violations of international law were and still are, to a large extent, the rule in
international society.
However, the progressive institutionalization of international society
has had an impact not only on the structure and normative content of
international law, but also on its enforcement. On the one hand, there has
Vera Gowlland-Debbas is honorary professor of public international law at the Graduate
Institute of International and Development Studies, Geneva.
| 120 | Winter 2009-10 | International Journal |
been a progressive limitation of resort to unilateral measures, not only
through the regulation of the traditional sovereign right to use military
force—from the outlawry of war to the outlawry of military reprisals—
but equally with efforts to constrain non-military countermeasures such
as unilateral trade measures, whether through the establishment of prior
conditions or through subsequent control—under the law of international
economic institutions (World Trade Organization, European Union), the law
on state responsibility, or charter law.
On the other hand, beginning with the United Nations charter, we
have seen the growth of collective institutionalized responses to breaches of
international law. This has gone hand in hand with the creation and expansion
of a domain of public interest or international public policy, the emergence
of the legal notion (and legal fiction) of an international community, and the
“hierarchization” of rules due to a growing value-oriented international law,
i.e., the creation of a core of norms deemed fundamental in the sense that
they are directed to the protection of certain overriding community values,
or indispensable for the functioning of a highly complex and interdependent
international society, and the nonobservance of which would affect the very
essence of the international legal system. These norms may be assigned
different purposes: to maintain some semblance of an international public
order based on the need for stability; to ensure peaceful transformation of
that order based on notions of justice; to preserve a certain universal moral
foundation based on a minimum core of humanitarian or ethical norms; or,
more basically, to ensure the physical protection or very survival of mankind.
Hence they are wide-ranging and encompass the non-use of force, self-
determination, basic principles of human rights and humanitarian law, and,
perhaps, include the emerging norms relating to the global commons or the
protection of the natural environment.
The term “sanctions” as a term of art in international law is now
principally reserved for centralized mechanisms within the aegis of
international organizations, going beyond the usual mechanisms found
in certain constituent instruments of international organizations, such as
expulsion or suspension of membership rights. Sanctions are now said to
be:
reactive measures applied by virtue of a decision taken by an
international organization following a breach of an international
obligation having serious consequences for the international
| Vera Gowlland-Debbas |
To continue reading
Request your trial