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Abstract

In recent years the UN Security Council has entered the scene of action several times after a unilateral military intervention has already taken place. The Security Council has adopted comprehensive schemes for the reconstruction of the countries intervened in and has authorised both civil and military international presences. Kosovo, Afghanistan and Iraq are examples of such recent situations, and Liberia is an example from the early 1990s. This article makes the argument that, through its resolutions, the Security Council contributes to the legalisation ex post facto of the unilateral interventions, whether it wants to or not. The Security Council is caught in a trap set by those who undertake the intervention without prior Security Council authorisation.The only way the Security Council could escape the retroactive legalising effect of its resolutions would be by clearly stating in the resolution its intention not to authorise the preceding intervention. Even then, it may be that the Security Council could not escape the power of its own practice. A persistent practice of adopting reconstruction resolutions ex post facto would carry greater legal weight than the professed intention not to legalise the preceding unilateral intervention.Still, authorisation ex post facto may be better than no authorisation at all.

In: Nordic Journal of International Law

Abstract

This contribution explores Grotian Moments in the practice of the UN Security Council in three different but closely related subject areas. The three areas are, in turn, the way the Security Council interprets the concept of ‘threat to the peace’ or more generally ‘international peace and security’, the law-making by the Security Council, and the subjects – in the sense of legal or natural persons – that the Security Council chooses to address. It turns out that the interpretation by the Security Council of the UN Charter has been remarkably flexible, expanding the scope of action of the Council considerably. Whether its interpretation of the UN Charter also deserves to be labelled ‘Grotian’, however, is rather a matter of rhetoric than law.

Open Access
In: Grotiana

Abstract

This article analyses the content of the mutual defence obligation contained in the EU Treaty Article 42(7) in relation to the Swedish constitutional rule on the sending of armed forces abroad and the emerging ’deepened defence cooperation’ between Sweden and Finland. The article tries to understand the prevailing Swedish position in legal terms and suggests an alternative flexible way on Sweden’s part of conceiving the binding force of Article 42(7). The question is whether the EU Treaty contains an international obligation of a quality to activate a provision in the Swedish Constitution entitling the government to decide on its own, without having to seek the otherwise necessary approval by Parliament, to send Swedish armed forces to other countries for instance on a mission of collective self-defence. The possibility of looking at the EU Treaty and the Swedish Instrument of Government in this way is not considered in any of the Swedish official inquiries into the Swedish security and defence policy of which there have been quite a few recently.

Open Access
In: Nordic Journal of International Law

This article investigates the Swedish constitutional framework for international military action. The constitutional provisions on self-defence and on the sending of armed forces to other countries are in focus. The provisions mainly concern the division of powers between the government and parliament and generally contain little substance. In the context of a relatively recent revision of the entire Swedish Constitution also the constitutional provisions on the government’s power to deploy the armed forces were subject to review. In the end not much was changed, but several suggestions for change were put forward by the official commission of inquiry on constitutional reform. Even though the suggestions for change were for the most part rejected, they are discussed in this article as a backdrop to the rules that remained. An ambition to tie the Swedish constitutional regulation even closer to international law was part of the suggested change which was eventually approved.

In: Nordic Journal of International Law
In: International Law and Changing Perceptions of Security
In: Nordic Cosmopolitanism

Abstract

The Swedish defence policy has undergone a dramatic shift in recent years from focusing on defending Swedish territory to focusing on making the world a better place. The questions asked in this article relate to the Swedish constitutional regulation of the use of the Swedish armed forces and the potential impact of the European Security and Defence Policy on the interpretation of the Constitution. A fundamental revision of a policy central to the identity of the state has taken place, and the constitutional regulation as such stays intact. The old constitutional rules also function in the new defence policy environment, but new practice may entail a new interpretation. Different aspects of the change in defence policy will be weighed in relation to the existing Constitution. The Constitution sets limits to when Swedish armed forces may be sent abroad, but it also provides the opportunities. In a time of internationalisation and active use of military means to accomplish things around the world, the enabling aspect of the Constitution becomes important. The constitutional regulation accords the government and Parliament a lot of freedom, indeed unlimited freedom as long as they agree. Under the Constitution any coalition, context or cause is just.

In: Nordic Journal of International Law

Abstract

This article explores the development of a doctrine of humanitarian intervention and responsibility to protect among Swedish policy-makers. The doctrine may or may not include an authorization by the United Nations (UN) Security Council as a necessary component. The article investigates how the new doctrine fits with the Swedish constitutional regulation of the use of force and how the evolution of the new Swedish view of the jus ad bellum interacts with the regulation of the use of force in the European Union (EU). The responsibility to protect answers to many of the concerns voiced in Parliament; the doctrine caters both to those who wish a basis for action independent of the Security Council and to those who are faithful to the UN. The parliamentary debates as well as government documents point to a developing political consensus that unilateral humanitarian intervention may be justified under certain exceptional circumstances. The argument that decisions should be made by the Security Council is difficult to maintain in the face of grave human suffering which would otherwise warrant action by the international community. The increasing ability and willingness to intervene internationally in Sweden and the EU leads to a further question, namely: For what will the force be used?

In: Nordic Journal of International Law

Abstract

The Swedish parliament has a strong position in the decision-making on the international use of force. Still, its role is affected by the rapid internationalization of the Swedish defence. More and quicker decisions have to be taken on Swedish contributions to international peace operations. The origin of the decisions of the Swedish parliament, moreover, can be traced to international decision-making bodies on which the Swedish parliament and sometimes even the Swedish government have no influence at all. Parliament is conscious of its important role and looks after its interests in the domestic decision-making context. Sometimes it challenges the government on specific issues relating to the operations, but in the end parliament always tend to agree and unanimously as well. This article studies the involvement of the Swedish parliament in the decision-making on the contribution of armed troops to international peace operations since the end of the Cold War. The article gives particular attention to the use – or not – of the law delegating the decision-making power over troop contributions entirely to the government. The issue of self-defence against armed attacks on the Realm is also taken up and the potential impact of an expanded notion of self-defence on the decision-making role of parliament. Concerns of democratic accountability form the background to the reasoning in its entirety.

In: Nordic Journal of International Law