War as a measure of self-defence, is largely destructive. It is resorted to in self-defence because of the weakness of the international legal order. War is in the place that should be occupied by police actions had the international legal order been powerful. And police actions, though small in operation, are more powerful than the destruction of war because it is made possible by the unchallengeable power of legal order. That is the irony. Such police actions require a powerful universal legal order. That powerful universal legal order can relieve nations from reliance on individual, and collective self-defence through self-help war, and collective security defence and enforcement operations by war.

 GLOBAL TOTAL WAR AND ARTICLE 51.

Starting with Article 51, the logic of self-defence means that states must possess a preponderance of military power for the purpose of self-defence. Collective self-defence also hangs on the logic that collective self-defence alliance or allies’ organizations possess preponderant military power. The outsourcing of collective security enforcement power to the UNSC for collective security system defence also demands that the permanent members of the Security Council increase their respective military power to the utmost degrees possible. This pursuit to possess the strongest military power inevitably set in what in international politics is termed the ‘security dilemma’. It is a situation in which the military power of all threatens all as the intention for which military capabilities may be employed can never be certain[7]. A defensive military capability augmentation by one nation is suspected by the others of being capable of being turned into an offensive power. All nations are therefore insecure from the military power of all others due to uncertainties and distrust of intensions[8]. This dilemma has serious and grave implications and consequences for the inevitability of global total war as long as Article 51 remains based on the institution of war. And those implications are made more dangerous by the nuclear weapons Age. For the phenomenon of the security dilemma makes the struggle to increase one’s power and the power of an alliance to the highest military power proportions possible, and to exert all efforts, by war, if necessary, at decreasing the power of the others to the lowest degree as to maintain a margin of safety against the uncertain intentions of others[9]. This is compounded with the emerging debate on pre-emptory and preventive war of self-defence doctrine which all together makes the probability of large-scale war very high.

With the international legal order edging its way to fundamental transformation of self-defence along the line of pre-emptory and preventive self-defence, the High-Level Panel set up by the UN in December 2004 to deal with challenges to the collective security system accepted the controversial right of anticipatory self-defence in its report[10]. While formally rejecting pre-emptory self-defence doctrine, saying that there is no right to self-defence except the threat of armed attack is imminent[11]. And that preventive action in self-defence arguments should be put to the UNSC if there are good arguments and evidence supporting taking such action for the UNSC to authorize the action it chooses[12]. And further, that unilateral right of pre-emptory self-defence would be dangerously destabilizing to the international legal order[13]. Similarly, the International Court of Justice in the Armed Activities on the Territory of the Congo case, (2005), held that the use of force under Article 51 is only justifiable within the strict confines laid down in the Article[14].However, the UNSC functions only according to the national interest of each of the permanent members and it will be impossible for it to act if argument and evidence for pre-emptory and preventive war presented are from one of the permanent member of the UNSC against another member because of the veto power they each possess. Some might argue that any pre-emptory or preventive war cannot constitute an act of self-defence but will be an act of aggression. And that act of aggression which is interpreted as ‘first use’ of force is prohibited under international law[15]. But the international legal order history proves that states have breached that fire wall with argument and information proving necessity ad bellum that most often turn acts of aggression into action of self-defence. And the justness or unjustness of any war waged is something that the international legal theory in history has not been able to settle as all states in war always claim a justifiable ground for resorting to war[16]. The question and issue of pre-emptory, and preventive war remains insufficiently addressed and has gone underground because there exists no universal parliament and court to channel the debate of those doctrines through. It will resurface in the unpredictable high global politics of war and peace and will be too late to address. As long as states possess the inherent right of self-defence by war, pre-emptory and preventive war remains a justifiable possibility if evidence and information produce necessity Ad Bellum. For with the right of self-defence, states ultimately must make the judgement of what constitutes threats to them, and they must act prohibitions in international law notwithstanding. One of the purposes of this work is to make sure such a situation of necessity Ad Bellum never occurs. And the best way to accomplish this is by the withdrawal of war from states’ inherent right of self-defence through a transformative universal order that provides for nations’, regions’, and universal peace and security and which will make it unnecessary for states to have a right of self-defence that reposes on war and self-help. If not done, the continuation of the contemporary international legal order based on war will produce a war of pre-emptory and preventive self-defence among the major powers from the current pervading changing and developing circumstances in global politics. It is a race against time to prevent such war which will inevitably result from the security dilemma’s fear and insecurity that is posed by the military power possessed by nations. Addressing the problem of security dilemma is of major importance. The creation of some laws requires accompanying institutions or else those laws will lose their power as they can be justifiably breached when the legal order fails to address the underlying reasons why some actions are resorted to. As such, the security dilemma problem must be faced. It is sometimes not enough to fill up gaps in law with legal rules and principles. The conditions in which those legal rules can operate must be built. The context under which certain law violations are probable should be removed.

International legal order and law should be able to keep ahead of changing and developing circumstances, and law and legal order should not be developed after global total war has occurred as was the case after World War II. Therefore, the existence of a universal constitutional order is important for having one would have shaped and enacted law from the public opinion of such doctrine as the ‘Bush Doctrine’ toward which global politics is developing. The Bush Doctrine is a US national security strategy to resort to pre-emptory war against perceived threat from weapons of mass destruction[17]. Development continuously chips away at the international legal order and law. In the Cuban missile crisis of 1962, the US decided against resort to self-defence because it held that there was no legal basis for pre-emptory action in the absence of an imminent threat of attack[18]. Isreal went a step further with its bombing of the Iraqi reactor in 1981 and justified it on self-defence against the possibility of the Iraqi government developing nuclear weapons in the future[19]. With the 2003 invasion of Iraq, the US exceeded even the limits of Isreal’s action in 1981[20]. It is therefore necessary to keep the international legal order and law ahead of changing and developing circumstances and this is only possible in a constitutional order. The prohibition of war under Article 2(4) of the UN Charter was late. For two World Wars occurred before the development of international law was codified in Article 2(4) of the Charter. Given nuclear weapons, further development on the international legal order and law cannot afford the occurrence of a third global total war for it to progress ahead of the changing international circumstances for it is the existence of humanity that is at stake with the destructive nature of nuclear weapons if used.

GLOBAL TOTAL WAR AND ARTICLE 2(4) OF THE UN CHARTER.

In the maintenance of international peace and security, the enforcement of Article 2(4) breaches, and protecting the Article from being breached is also, in the failure of non-forceful measures, based on UN collective security system of war. The UN Charter is based on an international legal order that is conditioned by pacta sunt servanda as the basic norm on which the legal order rest[21]. Pacta sunt servanda standing for ‘promise once made must be kept’ or performed in good faith. This means that the performance of the Charter law on the use of force in international legal order is a self-obligating promise to abide by the Charter, there being no universal government to secure conformity to obligations. In an international legal order where states’ practice is based on international legal positivism of state’s will or what the state want and want to do, and their consent to laws, and the voluntary performance of those laws[22]. Under the radically changing and developing global circumstances and the emerging pre-emptory, and preventive war of self-defence global political development, states will assert their will, withdraw consent for the Charter law on the use of force, and will abstain from the voluntary performance of the law because it restricts their will to act and survive. They are likely to invoke fundamental changes of circumstances as provided for in Article 62 of the Vienna Convention on the Law of Treaties (VCLT) which read:

“A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may be invoked as a ground for terminating a treaty”[23].

The security dilemma inherent in the Mutual Assured Destruction, MAD, balance of terror, the antagonism among major great powers, the emerging pre-emptory and preventive war of self-defence doctrine will continuously chip away at the international legal order and law up to the stage when the UN Charter prohibition on the threat and use of force will shatter and crumble and be suspended as carnage of war unfolds as those who will breach Article 2(4) are confronted by those who want to enforce the violation and those that are victims of its breach. And this, given that the enforcement of the Article is based on the institution of war and not on police enforcement action. It was the alignment of great powers against one another on the eve of World War 1 that created an environment conducive to war[24]. Their prior rearmament struggle, their alliances and counter-alliances built a momentum that coupled with the pressures built up by armies’ mobilizations and arms racing, dragged European nations into war[25]. The 21st century developing circumstances are moving toward the repetition of that history. Over a hundred major conflicts have occurred since 1945, since Article 2(4) came into force. Its prohibition on the threat and use of force does not have a corresponding commensurate international legal order power to make the prohibition effective. Further, the permanent members of the UNSC are outside whatever power the international legal order has, except when they self-obligate themselves. And it is from them that the risk of large-scale war emanates. Apart from what Article 2(4) stipulates, there is no power behind that law to prevent its violation. Some commentators assert that no law is immune to occasional violation. However, it must be the goal of a legal order to aim for the maximum power of deterrence that makes breaches impossible, and when breaches do occur, the consequences from enforcement against the delict should have such a deterring effect as to reduce further breaches to the barest minimum.

GLOBAL TOTAL WAR AND CHAPTER VII OF THE UN CHARTER

The collective security system, when its article 41 proves inadequate, is based on war under Article 42. And war as an institution must be abolished from the international legal order. The collective security system is also not neutral compared to the overwhelming monopoly of force for enforcement found in the municipal legal order. Collective security is susceptible and vulnerable to the separate interest of the states of the collective security system. And collective security theory and practice is a system that should be abolished all together because of the global total war risks inherent in the collective security system if it is based on the institution of war. For under that collective security system of war, localized war is impossible[26]. For it is the supreme paradox of collective security that attempt to make it work have the opposite effect from what is intended, and peace will not be preserved, but rather, war will be unavoidable, and not only unavoidable, but the collective security system will also make war global[27]. For it is unlikely, and extremely so, that in an actual conflict situation, only one single nation would be found on the side of the aggressor[28]. More than one nation, generally, will actively oppose the order the collective security system is defending, and with other nations that are sympathetic to that opposition[29]. Especially if the parties to conflict are great powers as they all have cross-cutting alliances across the world. In such a situation, a war that would have been between one nation and another as localized war when one attack the other in the absence of collective security system, would be transformed into global war fought between the collective security system and the opposing block across the world[30].

It is also perceivable that with self-defence, collective self-defence, and collective security system based on war in the final analysis, any such war has the propensity of escalating from the use of conventional weapons to that of war with nuclear weapons. The Russia war in Ukraine in which Russia threatened the use of nuclear weapon if its existence is threatened is a case in point[31].

The primitiveness and archaism of the institution of war in the international legal order, humanity’s-tired experiences of the scourge of wars, the inevitability of global total war if war is retained as an institution of the international legal order all mean that the institution of war must be abolished and banished as an institution of the international legal order. And that abolition and banishment is impossible in an international legal order without power. And this lack of power is a result of the absence of a centralized constitutional order of an organization of legislative, adjudicative, and neutral overwhelming enforcement powers exhibited by the international legal order. Such constitutional order of the organization of power is what preserves the order of peace and security within nations. Therefore, a centralized universal constitutional order of universal legislature, adjudicature, and neutral enforcement organization of power creating a powerful universal legal order is by necessity demanded to enable the abolition of war as an institution, and to make war impossible and preserve universal order of peace and security. The creation of that powerful universal legal order is through the universal agglomeration of power that is a universal Kingdom order of monarchical government juxtaposed to a world order constitutional government. As the community that is called states or Kingdom are in essence, all legal orders[32].

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[1] R. Kolb. International Law on the Maintenance of Peace: Jus Contra Bellum. (2019 Edward Elgar Publishing)

[2] M. Shaw. International Law. (2017 Cambride University Press)

[3] S. Casey-Maslen et al. Nuclear Weapons Under International Law. (2014 Cambridge University Press)

[4] K. Szabo. Anticipatory Action in Self-Defence: Essence and limits under international law. (2011 Springer)

[5] N. Tsagourias and N. White. Collective Security: Theory, law, and practice. (2013 Cambridge University Press)

[6] N. Tsagourias and N. White. Collective Security: Theory, law, and practice. (2013 Cambridge University Press)

[7]R. Jervis in C. Elman, and M. Jensen. Realism Reader. (2014 Routledge)

[8] R. Jervis in C. Elman and M. Jensen. Realism Reader. (2014 Routledge)

[9] H. Morgenthau. Politics Among Nations: The struggle for power and peace. (1973 Alfred Knopff)

[10] C. Gray in M. Evans. International Law (2010 Oxford University Press)

[11] C. Gray in M. Evans. International law. (2010 Oxford University Press)

[12] C. Gray in M. Evans. International Law. (2010 Oxford University Press)

[13] C. Gray in M. Evans. International Law. (2010 Oxford University Press)

[14] C. Gray in M. Evans. International Law. (2010 Oxford University Press)

[15] A. Cassese. International Law. (2005 Oxford University Press)

[16] W. Grewe. The Epochs of International Law. (2000 Walter De Gruyter)

[17] C. Gray in M. Evans. International Law. (2010 Oxford University Press)

[18] K. Szabo. Anticipatory Action in Self-Defence: Essence and limits under international law. (2011 Springer)

[19] K. Szabo. Anticipatory Action in Self-Defence: Essence and limits under international law. (2011 Springer)

[20] K. Szabo. Anticipatory Actions in Self-Defence: Essence and limits under international law. (2011 Springer)

[21] H. Kelsen. General Theory of Law and State. (2009 Lawbooks Limited)

[22] J. Kammerhofer and J.D’Aspremont. International Legal Positivism in a Post-Modern World. (2014 Cambridge University Press)

[23] Vienna Convention on the Law of Treaties. (1969)

[24] C. Kegley and S. Blanton. World Politics: Trends and Transformation. (2011 Wadsworth, Cengage Learning)

[25] C. Kegley and S. Blanton. World Politics: Trends and Transformation. (2011 Wadsworth, Cengage Learning)

[26] H. Morgenthau. Politics Among Nations: The struggle for power and peace. (1973 Alfred Knopf)

[27] H. Morgenthau. Politics Among Nations: The struggle for power and peace. (1973 Alfred Knopf)

[28] H. Morgenthau. Politics Among Nations: The struggle for power and peace. (1973 Alfred Knopf)

[29] H. Morgenthau. Politics Among Nations: The struggle for power and peace. (1973 Alfred Knopf)

[30] H. Morgenthau. Politics Among Nations: The struggle for power and peace. (1973 Alfred Knopff)

[31] L. Brown. Russia Could Use Nukes if Putin Suspect ‘Existential Threat’: Kremlin Spokesman. (2022 New York Post)

[32] Ibid. (2009)