5. the Law of the United Nations

8/6/2019 5. the Law of the United Nations

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THE LAW OF THE UNITEDTHE LAW OF THE UNITED

NATIONSNATIONS

ASSOC. PROFESSOR

DR. ABDUL GHAFUR HAMID


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5.1 THE CHARTER AND THE5.1 THE CHARTER AND THE

FOUNDATION OF THE UNITEDFOUNDATION OF THE UNITED

NATIONSNATIONS [Chapter 15, p. 423][Chapter 15, p. 423] The United Nations is the most important

international organization of the present

day.

It officially came into existence on October

24, 1945, when its Charter had been ratified

by China, France, the Soviet Union, theUnited Kingdom, and the United States, and

by the majority of other signatories.


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5.1.15.1.1 The Charter as a TreatyThe Charter as a Treaty[pp. 424[pp. 424--25]25]

Origins of the United Nations Charter

Three successive international conferences:

(1) Dumbarton Oaks Conference: drafted the Charter

(2) Yalta Conference: agreed on veto power; Yaltavoting formula.

(3) San Francisco Conference: From 25 April, 1945;

50 States participated; 51 original members; theCharter was signed on June 26, 1945; entered intoforce on October 24, 1945.


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The rigidity of the Charter andThe rigidity of the Charter and

amendment procedureamendment procedure [p. 424][p. 424]

The Charter, of which the Statute of the ICJ is an

integral part, is a multilateral law-making treaty.

[Article 108]

Amendments to the Charter must be adopted by a

two-thirds majority of the General Assembly and

then ratified by two-thirds of the members of the

United Nations, including all the permanent

members of the Security Council (i.e., the

permanent members have veto power).


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Present trends to revise the CharterPresent trends to revise the Charter

[p. 424[p. 424--25]25]

The changes in the Charter is justified by the

following events:

The number of member states has tripled; [192]

The original ideological conflict between

capitalism and socialism, between East and West,

has been substituted by the conflict of interest

between industrialized and non-industrialized

countries, between North and South.


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Special CommitteeSpecial Committee

[Textbook, p. 129][Textbook, p. 129]

In 1974, the General Assembly created a

Special Committee for the United Nations

Charter and for Strengthening the Role of

the Organization.

There were many and varied proposals for

changes submitted to the Committee.


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Suggestions for changesSuggestions for changes

[p. 425][p. 425]

(1) Enforcing the role of the Assembly (where the

third world states have an overwhelming

majority)(2) Enlarging the Security Council in order to

guarantee greater representation to the Third

World Countries;

(3) Abolition or limitation of the veto (or extending

the veto in order that countries representing

different geo-political areas might enjoy it),


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Any changes possible?Any changes possible?

For the first time in its history, the UN held theSummit of World Leaders together with the 60th

UN General Assembly Annual Meeting andproposals for UN reforms were discussed.

It seems very unlikely that any radical changes inthe structure of the United Nations will be made in

the near future. The attitude of the permanent members of the SC

is decisive. They have the veto on anyamendments or revision, and they do not seemvery inclined to change the existing rules.


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5.1.2 Purposes and principles of5.1.2 Purposes and principles of

the UNthe UN [pp. 425[pp. 425--27]27]

Article 1 [Purposes]

To maintain peace and security is the primary and

the overriding purpose and to that end: to takeeffective collective measures for the preventionand removal of threats to the peace, and for thesuppression of acts of aggression or other breaches

of the peace, and to bring about by peaceful meansand in conformity with the principles of justiceand international law, adjustment or settlement ofinternational disputes [Article 1(1)]


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The other purposes include:

- to develop friendly relations among

nations based on equal rights and self-determination of peoples[Article 1(2)], and

- to achieve international cooperation in

solving international problems and inpromoting respect for human rights and forfundamental freedoms. [Article 1(3)]


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Article 2 [Principles]

(1) The Organization is based on the principle of

sovereign equality of all its Members.(2) All Members shall fulfil in good faith the

obligations assumed by them in accordance withthe present Charter.

(3) All Members shall settle their internationaldisputes by peaceful means in such a manner thatinternational peace and security, and justice, arenot endangered.


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Basic PrinciplesBasic Principles [Cont.][Cont.]

(4) All Members shall refrain in their internationalrelations from the threat or use of force against the

territorial integrity and political independence ofany state, or in any other manner inconsistent withthe Purposes of the United Nations.

(5) All Members shall give the UN every assistancein any action taken in accordance with the presentCharter, and shall refrain from giving assistance toany state against which the UN is takingpreventive or enforcement action.


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Basic PrinciplesBasic Principles [Cont.][Cont.]

(6) The Organization shall ensure that states whichare not Members of the United Nations act

accordance with these Principles so far as may benecessary for the maintenance of internationalpeace and security.

(7) Nothing contained in the present Charter shallauthorize the United Nations to intervene inmatters which are essentially within the domesticjurisdiction of any state; but this principle shallnot prejudice the application of enforcementmeasures under Chapter VII.


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5.1.35.1.3 Collective Security SystemCollective Security System

[pp. 427[pp. 427--29]29]

There are two basic characteristics of the UN:

(1) The Organization is based on collective

security system; and

(2) Great power unity is the foundation stone of

the Organization.

Reference: Inis L. Claude, Jr. ,Sw

ords intoPlowshares: The Problems and Progress of

International Organization, 4th.ed., 1984.


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Collective Security systemCollective Security system

Two main concepts to maintain peace and avoid war:

(1) Balance of power [practised after the congress of

Vienna, 1815; the Concert of Europe; the essenceis : there must be 2 or 3 powerful states oralliances whose powers are almost equal; nosingle State or bloc is allowed to become the mostpowerful];

(2) Collective security [practised after the WorldWar I; believed to be superior to balance of powerconcept; started with the League of Nations; andcontinued with the UN].


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Collective Security systemCollective Security system [Cont.][Cont.]

The original idea of collective security was thatany state which started an aggressive war would

be opposed by the rest of the world. All thirdparties would come to the assistance of a victim ofaggression. The motto was: war against one iswar against all.

It is mainly designed to prevent or suppressaggression by presenting to potential aggressorsthe credible threat and to potential victims ofaggression the reliable promise of effectivecollective measures.


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Subjective requirementsSubjective requirements

The modern concept of collective security

depends upon a positive commitment to the

value of world peace by the greatest mass of

States.

Another requirement of collective security

is that it functions impartially. It is to bedirected against any aggressor, on behalf of

any violated State.


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Objective requirementsObjective requirements

The objective requirements of collective

security are:

(a) the existence of several powerful States of

roughly equal strength (the concentration of

power in a very few major States is the least

favourable situation); and(b) the assumption of partial disarmament.


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Collective Security systemCollective Security system [Cont.][Cont.]Strengths of the CharterStrengths of the Charter

[p. 428][p. 428]

The Charter of the UN is a more satisfactoryconstitutional basis for a collective security

system than the Covenant of the League ofNations.

(1) Comprehensive prohibition of the threat or useof force [Art. 2(4)];

(2) More elaborate and ambitious provisions forsanctions [Arts. 39-50];

(3) Enforcement power is entrusted to a single body:the Security Council [Arts. 24, 25 and 39].


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Collective Security systemCollective Security system [Cont.][Cont.]

Weaknesses of the CharterWeaknesses of the Charter[p. 429][p. 429]

The Charter falls significantly short of providingan ideal institutional system for the realization of

collective security.(1) No armed forces at the disposal of the UN (Art.

43 has become a dead law);

(2) No assurance for disarmament, which is a basic

prerequisite of collective security system;(3) The Security Council, enforcement arm of the

UN, is founded on the great Power unanimity[Art. 27] (Veto power is given to the Big Five).


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2.42.4 The United Nations SystemThe United Nations System

[Textbook, pp. 430[Textbook, pp. 430--31]31]

[Article 7]

There are six principal organs of the United

Nations: the General Assembly, the SecurityCouncil, the Economic and Social Council, theTrusteeship Council, the International Court ofJustice, and the Secretariat.

The United Nations system consists of the UNproper (the six principal organs) constituting itscenter, linked up with seventeen SpecializedAgencies(e.g. the ILO, the IMO, the WHO, theIMF, the IBRD).


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3.3. THE SECURITY COUNCILTHE SECURITY COUNCIL[Textbook, p. 436][Textbook, p. 436]

Composition [Article 23]

- The Security Council consists of 15

members of the United Nations.

- There are five permanent members: China,

France, the USSR, the UK, and the USA.

- The GA elects ten other members for 2

years term to be non-permanent members.


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3.13.1 Voting Procedure and the vetoVoting Procedure and the veto

[[Article 27]Article 27] [Textbook, p. 437][Textbook, p. 437]

1. Each member of the SC shall have one vote.

2. Decisions of the SC on procedural matters shall

be made by an affirmative vote of nine members.

3. Decisions of the Security Council on all other

matters [i.e. substantive matters] shall be made by

an affirmative vote of nine members including the

concurring votes of the permanent members;

provided that, in decisions under Chapter VI, a

party to a dispute shall abstain from voting.


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Veto powerVeto power

The effect of Article 27(3) is that each

permanent member of the Security Council

has a veto on non-procedural orsubstantive questions.

The term veto is a Latin derivative which

means I forbid.


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Criticism against the vetoCriticism against the veto

The veto was born with a bad name. It was

bitterly opposed by small countries at San

Francisco although these countries couldnot reject the thesis that the United Nations

could function effectively only with all the

great powers as members.


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Criticism against the vetoCriticism against the veto [Cont.][Cont.]

Although the concept of great power unanimity isthe foundation stone of the UN, the unity had

collapsed immediately after its emergence. The world was divided into two power blocs: the

Western Bloc headed by the USA and theCommunist Bloc led by the USSR.

The period between 1946 and 1989 is called theCold War due to the bitter rivalry between thetwo blocs in all matters short of engaging in actualhostilities.


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If a draft resolution was submitted to the SC by

the Western Bloc, the Communist Bloc would

veto it and vice versa. The SC during the Cold War period, therefore,

was in effect paralyzed by the use of vetoes by the

permanent members.

The veto has frustrated the Security Council s

enforcement power which is the core of the

collective security system of the United Nations.


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Because of the veto, the SC was unable to take

enforcement action in many crises and major

incidents which might even be escalated to theThird World War.

The only major incident during the Cold War, in

which the SC could decide to take action

involving armed forces was the Korean War andthat was in fact possible due to the absence of the

USSR in the SC meetings.


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3.23.2 Functions and powersFunctions and powers

Article 24

1. In order to ensure prompt and effective action by

the UN, its Members confer on the SC primaryresponsibility for the maintenance of internationalpeace and security, and agree that in carrying outits duties under this responsibility the SC acts ontheir behalf.

In discharging these duties the SC shall act inaccordance with the Purposes and Principles of theUN.


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Article 25

The Members of the United Nations agree to

accept and carry out the decision of the SecurityCouncil in accordance with the present Charter.

This article clearly indicates that decisions(resolutions) of the SC are mandatory and binding

on the member States.


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3.33.3 Enforcement ActionEnforcement Action

Chapter VII (Articles 39 to 50)Chapter VII (Articles 39 to 50) [pp. 442[pp. 442--45]45]

Article 39

The SC shall determine the existence of any threat

to the peace, breach of the peace, or act of aggression and shall make recommendations, ordecide what measures shall be taken in accordancewith Articles 41 and 42, to maintain or restoreinternational peace and security.

- There are two types of action:

- (1) Action not involving armed forces (economicsanction) [Art. 41]; and

- (2) Action involving armed forces [Art. 42].


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Action not involving armed forcesAction not involving armed forces

Article 41

The Security Council may decide what measures

not involving the use of armed force are to beemployed to give effect to its decisions, These

may include complete or partial interruption of

economic relations and of rail, sea, air, postal,

telegraphic, radio, and other means of communication, and the severance of diplomatic

relations.


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Action involving armed forcesAction involving armed forces

Article 42

Should the Security Council consider that

measures provided for in Article 41 would

be inadequate or have proved to be

inadequate, it may take such action by air,

sea, or land forces as may be necessary tomaintain or restore international peace and

security.


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The issue of establishing the UNThe issue of establishing the UN

armed forcesarmed forces

Article 43

1. All Members of the UN, undertake to

make available to the Security Council,

in accordance with a special agreement or

agreements, armed forces, assistance, and

facilities, necessary for the purpose ofmaintaining international peace and

security.


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armed forcesarmed forces [Cont.][Cont.]

Article 47

1. There shall be established a Military Staff

Committee to advise and assist the SC on allquestions relating to the SCs military

requirements, and the employment and

command of forces placed at its disposal.

2. The Military Staff Committee shall consist of the

Chiefs of Staff of the permanent members of the

SC


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armed forcesarmed forces [Cont.][Cont.]

The SC directed the Military Staff Committee to

examine Article 43 from a military point of view.

In 1947, the Military Staff Committee presented areport but which clearly proved that it was

impossible to reconcile the differences among the

permanent members.

Member states have never made any of the special

agreements envisaged in Article 43 and thus the

Article remains a dead letter.


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Practice duringPractice during the Cold War:the Cold War:

The Korean WarThe Korean War[1950][1950]

In 1950, North Korean (communist) armed forcesinvaded South Korea.

The SC adopted a resolution asking memberStates to send forces to repel the aggression undera unified command. [16 States sent armed forces].

The Resolution was adopted with the concurring

votes of the four permanent members, while theUSSR was absent from the meeting.

The constitutionality of the resolution wasquestionable.


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Practice after the Cold War:Practice after the Cold War:

Iraqi invasion of KuwaitIraqi invasion of Kuwait [1990][1990]

On 2 August, 1990, Iraq forces invaded Kuwait.

By resolution 660, the SC demanded that Iraq

withdrew all its forces from Kuwait. Iraq failed toobserve it and annexed Kuwait as part of its

territory.

On 29 November, the SC adopted Resolution 678,

acting under Chapt. VII of the Charter, authorizedmember States cooperating with Kuwait, to use all

necessary means to implement SC resolutions.


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Iraqi invasion of KuwaitIraqi invasion of Kuwait [1990][1990] [Cont.][Cont.]

When the deadline passed, the coalition forcesunder the leadership of the United States, began

the Operation Desert Storm to attack Iraq. It is arguable that the SC was not exactly acting

under Chapter VII, according to whichenforcement measures will be under the control ofthe SC.

The broad discretion given to the coalition forceswithout any control by the SC has led toaccusations that the SC was hijacked by the US.


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NATO intervention (bombing) in KosovoNATO intervention (bombing) in Kosovo

(1999)(1999)

[pp. 449[pp. 449--50]50]

US justification: Humanitarian intervention.

Rebuttal: Principle of non-intervention is a well

established rule of customary IL. Let alone States,even the UN cannot intervene in a domestic matterof a State [Art. 2(7)]. But the proviso is that theUN may intervene if it is necessary to maintaininternational peace and security (i.e. if there is anauthorization by the SC under Chapt. VII).

Therefore, a single State or a group of States has noright to use force to intervene even onhumanitarian ground.


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AfterSeptember 11, the Rise ofAfterSeptember 11, the Rise of

Unilateralism and the future of the UNUnilateralism and the future of the UN

[See Chapt. 17, pp. 523[See Chapt. 17, pp. 523--32]32]

The reactions of the US to September 11 terroristattacks on World trade Centre:

First, the US used military force in Afghanistan(2001) without the authorization of the SC,alleging that the Taliban Government harbouredand gave safe havens to Al Qaeda terrorists.

Secondly, the US invaded and occupied Iraq(2003), again without the authorization of the SC,and deposed Saddam Hussein, alleging that Iraqhad links with Al Qaeda and that Saddam Hussein,with stockpiles of WMDs, was a dangerous threat

to the US and its allies.


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US attack on AfghanistanUS attack on Afghanistan (2001)(2001)

[[See pp. 524See pp. 524--27]27]

Two main justifications invoked by the US:

(1) It was an act of Self-defence.

Rebuttal: According to Art. 51 of the Charter,there must be an armed attack by a State. InSeptember 11 incident, the attack was made byindividual terrorists, none of whom were Afghans.

(2) It was a war on terrorism.Rebuttal: No universally accepted definition of

terrorism. In the absence of authorization by theSC, no State can use force against another State on

the ground of failure to suppress terrorism.


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US invasion and occupation of IraqUS invasion and occupation of Iraq

(2003)(2003) [pp. 527[pp. 527--30]30]

Three main justifications made by the US.

(1) WMDs threat to peace and security.

Rebuttal: It was a false accusation proved to beuntrue. Even if it was true, then there must be aresolution of the SC (under Chapt. 7) to thateffect and to take action against Iraq.

(2) Self-defence (anticipatory); Iraq was a threat toUS (and Israel) and in anticipation of attack byIraq, the US could attack first as a self-defence.


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US invasion and occupation of IraqUS invasion and occupation of Iraq

[Cont.][Cont.]

Rebuttal: Anticipatory self-defence is not legal

under IL by virtue of the requirement under Art.

51 of an armed attack.(3) Regime change; US attacked Iraq to help Iraqi

people to taste the fruits of democracy.

Rebuttal: No State can use force against another

State to change its government. This is a blatant

violation of two most sacred principles of IL:

sovereigntyand self-determination of a people.


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Recent Israeli invasion ofLebanon (2006)Recent Israeli invasion ofLebanon (2006)

Arrest by Hizbollah of two Israeli soldiers;

Justification: Self-defence against terrorists.


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CommentsComments- In each major incident discussed above, the use of

force by the US was contrary to international law.

- The US, taking advantage of the position as thesole super-power, bypassed the SC, ignored theUN, and used force on its own.

- These cases are clear indications of the failure of

the UN enforcement machinery in the context ofthe uni-polar world.

- What then is the solution? This is a food forthought for every international lawyer andpolitical scientist.

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