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The Law of the United Nations
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  • 1. CHAPTER 12CHAPTER 12THE LAW OF THE UNITEDTHE LAW OF THE UNITEDNATIONSNATIONSPROFESSORPROFESSORDR. ABDUL GHAFUR HAMIDDR. ABDUL GHAFUR HAMID
  • 2. 5.1 THE CHARTER AND THE5.1 THE CHARTER AND THEFOUNDATION OF THE UNITEDFOUNDATION OF THE UNITEDNATIONSNATIONS [Chapter 15, p. 423][Chapter 15, p. 423]The United Nations is the most importantThe United Nations is the most importantinternational organization of the presentinternational organization of the presentday.day.It officially came into existence onIt officially came into existence on OctoberOctober24, 194524, 1945, when its Charter had been, when its Charter had beenratified by China, France, the Sovietratified by China, France, the SovietUnion, the United Kingdom, and theUnion, the United Kingdom, and theUnited States, and by the majority of otherUnited States, and by the majority of othersignatories.signatories.
  • 3. 5.1.15.1.1 The Charter as a TreatyThe Charter as a Treaty[pp. 424-25][pp. 424-25]Origins of the United NationsOrigins of the United NationsCharterCharterThree successive international conferencesThree successive international conferences::(1)(1) Dumbarton Oaks ConferenceDumbarton Oaks Conference: drafted the: drafted theCharterCharter(2)(2) Yalta ConferenceYalta Conference: agreed on veto power;: agreed on veto power;“Yalta voting formula”.“Yalta voting formula”.(3)(3) San Francisco ConferenceSan Francisco Conference: From 25 April,: From 25 April,1945;1945;50 States participated; 51 original members; the50 States participated; 51 original members; theCharter was signed on June 26, 1945; enteredCharter was signed on June 26, 1945; enteredinto force on October 24, 1945.into force on October 24, 1945.
  • 4. The “rigidity” of the Charter andThe “rigidity” of the Charter andamendment procedureamendment procedure [p. 424][p. 424] The Charter, of which the Statute of the ICJ is anThe Charter, of which the Statute of the ICJ is anintegral part, is a multilateral law-making treaty.integral part, is a multilateral law-making treaty.[Article 108][Article 108]““AmendmentsAmendments to the Charter must be adopted byto the Charter must be adopted byaa two-thirds majoritytwo-thirds majority of the General Assemblyof the General Assemblyand then ratified byand then ratified by two-thirds of the memberstwo-thirds of the members ofofthe United Nations,the United Nations, including all the permanentincluding all the permanentmembers of the Security Councilmembers of the Security Council” (i.e., the” (i.e., thepermanent members have veto power).permanent members have veto power).
  • 5. Present trends to revise the CharterPresent trends to revise the Charter[p. 424-25][p. 424-25] The changes in the Charter is justified by theThe changes in the Charter is justified by thefollowing events:following events: The number of member states has tripled; [192]The number of member states has tripled; [192] The original ideological conflict betweenThe original ideological conflict betweencapitalism and socialism, between East andcapitalism and socialism, between East andWest, has been substituted by the conflict ofWest, has been substituted by the conflict ofinterest betweeninterest between industrialized and non-industrialized and non-industrializedindustrialized countries, betweencountries, between North andNorth andSouthSouth..
  • 6. Suggestions for changesSuggestions for changes[p. 425][p. 425](1)(1) Enforcing the role of the AssemblyEnforcing the role of the Assembly (where the(where thethird world states have an overwhelmingthird world states have an overwhelmingmajority)majority)(2)(2) Enlarging the Security CouncilEnlarging the Security Council in order toin order toguarantee greater representation to the Thirdguarantee greater representation to the ThirdWorld Countries;World Countries;(3)(3) Abolition or limitation of the vetoAbolition or limitation of the veto (or(or extendingextendingthe vetothe veto in order that countries representingin order that countries representingdifferent geo-political areas might enjoy it),different geo-political areas might enjoy it),
  • 7. Any changes possible?Any changes possible? For the first time in its history, the UN held theFor the first time in its history, the UN held theSummit of World Leaders together with the 60Summit of World Leaders together with the 60ththUN General Assembly Annual Meeting andUN General Assembly Annual Meeting andproposals for UN reforms were discussed.proposals for UN reforms were discussed. It seems very unlikely that any radical changesIt seems very unlikely that any radical changesin the structure of the United Nations will bein the structure of the United Nations will bemade in the near future.made in the near future. The attitude of theThe attitude of the permanent memberspermanent members of theof theSC is decisive. They have theSC is decisive. They have the vetoveto on anyon anyamendments or revision, and they do not seemamendments or revision, and they do not seemvery inclined to change the existing rules.very inclined to change the existing rules.
  • 8. 5.1.2 Purposes and principles of5.1.2 Purposes and principles ofthe UNthe UN [pp. 425-27][pp. 425-27]Article 1 [Purposes]Article 1 [Purposes]To maintain peace and securityTo maintain peace and security is theis the primaryprimaryand the overriding purposeand the overriding purpose and to that end: toand to that end: totaketake effective collective measureseffective collective measures for thefor theprevention and removal of threats to the peace,prevention and removal of threats to the peace,and for the suppression of acts of aggression orand for the suppression of acts of aggression orother breaches of the peace, and to bring aboutother breaches of the peace, and to bring aboutbyby peaceful meanspeaceful means andand in conformity with thein conformity with theprinciples of justice and international lawprinciples of justice and international law,,adjustment or settlement of internationaladjustment or settlement of internationaldisputes … [Article 1(1)]disputes … [Article 1(1)]
  • 9. The other purposes include:The other purposes include:- to develop friendly relations among- to develop friendly relations amongnations based onnations based on equal rightsequal rights andand self-self-determination of peoplesdetermination of peoples[Article 1(2)], and[Article 1(2)], and- to achieve- to achieve international cooperationinternational cooperation ininsolving international problems and insolving international problems and inpromotingpromoting respect for human rights and forrespect for human rights and forfundamental freedomsfundamental freedoms.. [Article 1(3)][Article 1(3)]
  • 10. Article 2Article 2 [Principles][Principles](1) The Organization is based on the(1) The Organization is based on the principle ofprinciple ofsovereign equalitysovereign equality of all its Members.of all its Members.(2) All Members… shall(2) All Members… shall fulfil in good faith thefulfil in good faith theobligationsobligations assumed by them in accordance withassumed by them in accordance withthe present Charter.the present Charter.(3) All Members shall(3) All Members shall settle their internationalsettle their internationaldisputes by peaceful meansdisputes by peaceful means in such a mannerin such a mannerthat international peace and security, andthat international peace and security, andjustice, are not endangered.justice, are not endangered.
  • 11. Basic PrinciplesBasic Principles [Cont.][Cont.](4) All Members(4) All Members shall refrain in their internationalshall refrain in their internationalrelations from the threat or use of forcerelations from the threat or use of force againstagainstthe territorial integrity and political independencethe territorial integrity and political independenceof any state, or in any other manner inconsistentof any state, or in any other manner inconsistentwith the Purposes of the United Nations.with the Purposes of the United Nations.(5) All Members shall give the UN every(5) All Members shall give the UN everyassistance in any action taken in accordanceassistance in any action taken in accordancewith the present Charter, and shall refrain fromwith the present Charter, and shall refrain fromgiving assistance to any state against which thegiving assistance to any state against which theUN is taking preventive or enforcement action.UN is taking preventive or enforcement action.
  • 12. Basic PrinciplesBasic Principles [Cont.][Cont.](6) The Organization shall ensure that states which(6) The Organization shall ensure that states whichareare not Members of the United Nationsnot Members of the United Nations actactaccordance with these Principles so far as mayaccordance with these Principles so far as maybe necessary for thebe necessary for the maintenance ofmaintenance ofinternational peace and securityinternational peace and security..(7)(7) NothingNothing contained in the present Charter shallcontained in the present Charter shallauthorize the United Nationsauthorize the United Nations to intervene into intervene inmatters which are essentially within the domesticmatters which are essentially within the domesticjurisdiction of any statejurisdiction of any state…;…; butbut this principle shallthis principle shallnot prejudice the application ofnot prejudice the application of enforcementenforcementmeasures under Chapter VIImeasures under Chapter VII..  
  • 13. 5.1.35.1.3 Collective Security SystemCollective Security System[pp. 427-29][pp. 427-29]There are two basic characteristics of the UN:There are two basic characteristics of the UN: (1) The Organization is based on(1) The Organization is based on collectivecollectivesecurity systemsecurity system; and; and (2)(2) Great power unityGreat power unity is the foundation stone ofis the foundation stone ofthe Organization.the Organization.
  • 14. Collective Security systemCollective Security systemTwo main concepts to maintain peace and avoidTwo main concepts to maintain peace and avoidwarwar::(1)(1) Balance of powerBalance of power [practised after the congress[practised after the congressof Vienna, 1815; the Concert of Europe; theof Vienna, 1815; the Concert of Europe; theessence is : there must be 2 or 3 powerful statesessence is : there must be 2 or 3 powerful statesor alliances whose powers are almost equal; noor alliances whose powers are almost equal; nosingle State or bloc is allowed to become thesingle State or bloc is allowed to become themost powerful];most powerful];(2)(2) Collective securityCollective security [practised after the World[practised after the WorldWar I; believed to be superior to balance ofWar I; believed to be superior to balance ofpower concept; started with the League ofpower concept; started with the League ofNations; and continued with the UN].Nations; and continued with the UN].
  • 15. Collective Security systemCollective Security system [Cont.][Cont.] The original idea of collective security was thatThe original idea of collective security was thatany state which started an aggressive war wouldany state which started an aggressive war wouldbe opposed by the rest of the world. All thirdbe opposed by the rest of the world. All thirdparties would come to the assistance of a victimparties would come to the assistance of a victimof aggression. The motto was: “of aggression. The motto was: “war against onewar against oneis war against allis war against all”.”. It is mainly designed toIt is mainly designed to prevent or suppressprevent or suppressaggressionaggression by presenting toby presenting to potential aggressorspotential aggressorsthethe credible threatcredible threat and to potential victims ofand to potential victims ofaggression the reliable promise ofaggression the reliable promise of effectiveeffectivecollective measurescollective measures..
  • 16. Subjective requirementsSubjective requirementsThe modern concept of collective securityThe modern concept of collective securitydepends upon a positivedepends upon a positive commitment tocommitment tothe value of world peacethe value of world peace by the greatestby the greatestmass of States.mass of States.Another requirement of collective securityAnother requirement of collective securityis that itis that it functions impartiallyfunctions impartially. It is to be. It is to bedirected against any aggressor, on behalfdirected against any aggressor, on behalfof any violated State.of any violated State.
  • 17. Objective requirementsObjective requirementsThe objective requirements of collectiveThe objective requirements of collectivesecurity are:security are:(a) the(a) the existence of several powerful Statesexistence of several powerful Statesof roughly equal strengthof roughly equal strength (the(theconcentration of power in a very few majorconcentration of power in a very few majorStates is the least favourable situation);States is the least favourable situation);andand(b) the assumption of(b) the assumption of partial disarmamentpartial disarmament..
  • 18. 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 satisfactoryThe Charter of the UN is a more satisfactoryconstitutional basis for a collective securityconstitutional basis for a collective securitysystem than the Covenantsystem than the Covenant of the League ofof the League ofNations.Nations.(1) Comprehensive prohibition of the threat or use(1) Comprehensive prohibition of the threat or useof force [Art. 2(4)]of force [Art. 2(4)];;(2) More elaborate and ambitious provisions for(2) More elaborate and ambitious provisions forsanctions [Arts. 39-50]sanctions [Arts. 39-50];;(3) Enforcement power is entrusted to a single(3) Enforcement power is entrusted to a singlebody: the Security Council [Arts. 24, 25 andbody: the Security Council [Arts. 24, 25 and39].39].
  • 19. Collective Security systemCollective Security system [Cont.][Cont.]Weaknesses of the CharterWeaknesses of the Charter [p. 429][p. 429] The Charter falls significantly short of providingThe Charter falls significantly short of providingan ideal institutional system for the realizationan ideal institutional system for the realizationof collective security.of collective security.(1) No armed forces at the disposal of the UN (Art.(1) No armed forces at the disposal of the UN (Art.43 has become a dead law);43 has become a dead law);(2) No assurance for disarmament, which is a(2) No assurance for disarmament, which is abasic prerequisite of collective security system;basic prerequisite of collective security system;(3) The Security Council, enforcement arm of the(3) The Security Council, enforcement arm of theUN, is founded on theUN, is founded on the great Power unanimitygreat Power unanimity[Art. 27] (Veto power is given to the Big Five).[Art. 27] (Veto power is given to the Big Five).
  • 20. 2.42.4 The United Nations SystemThe United Nations System[Textbook, pp. 430-31][Textbook, pp. 430-31][Article 7][Article 7]There are six principal organs of the UnitedThere are six principal organs of the UnitedNations: the General Assembly, the SecurityNations: the General Assembly, the SecurityCouncil, the Economic and Social Council, theCouncil, the Economic and Social Council, theTrusteeship Council, the International Court ofTrusteeship Council, the International Court ofJustice, and the Secretariat.Justice, and the Secretariat.The United Nations system consists of the “UNThe United Nations system consists of the “UNproper” (the six principal organs) constituting itsproper” (the six principal organs) constituting itscenter, linked up with seventeen “center, linked up with seventeen “SpecializedSpecializedAgenciesAgencies”(e.g. the ILO, the IMO, the WHO, the”(e.g. the ILO, the IMO, the WHO, theIMF, the IBRD).IMF, the IBRD).
  • 21. 3.3. THE SECURITY COUNCILTHE SECURITY COUNCIL[Textbook, p. 436][Textbook, p. 436]CompositionComposition [[Article 23]Article 23]- The Security Council consists of- The Security Council consists of 1515membersmembers of the United Nations.of the United Nations.- There are- There are five permanent membersfive permanent members: China,: China,France, the USSR, the UK, and the USA.France, the USSR, the UK, and the USA.- The GA elects ten other members for 2- The GA elects ten other members for 2years’ term to be non-permanentyears’ term to be non-permanentmembers.members.
  • 22. 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.1. Each member of the SC shall have one vote.2. Decisions of the SC on2. Decisions of the SC on procedural mattersprocedural matters shallshallbe made by an affirmativebe made by an affirmative vote of ninevote of ninemembersmembers..3. Decisions of the Security Council on3. Decisions of the Security Council on all otherall othermattersmatters [i.e.[i.e. substantive matterssubstantive matters] shall be made] shall be madeby an affirmativeby an affirmative vote of nine membersvote of nine members includingincludingthe concurring votes of the permanent membersthe concurring votes of the permanent members;;provided that, in decisions under Chapter VI, …provided that, in decisions under Chapter VI, …a party to a dispute shall abstain from voting.a party to a dispute shall abstain from voting.
  • 23. Veto powerVeto power The effect of Article 27(3) is that eachThe effect of Article 27(3) is that eachpermanent member of the Securitypermanent member of the SecurityCouncil has a ‘veto’Council has a ‘veto’ on non-procedural oron non-procedural orsubstantive questions.substantive questions. The term ‘veto’ is a Latin derivative whichThe term ‘veto’ is a Latin derivative whichmeans ‘I forbid’.means ‘I forbid’.  
  • 24. Criticism against the vetoCriticism against the vetoThe veto was born with a bad name. ItThe veto was born with a bad name. Itwas bitterlywas bitterly opposed by small countriesopposed by small countries atatSan Francisco although these countriesSan Francisco although these countriescould not reject the thesis that thecould not reject the thesis that the UnitedUnitedNations could function effectively only withNations could function effectively only withall the great powers as membersall the great powers as members..
  • 25. Criticism against the vetoCriticism against the veto [Cont.][Cont.] Although the concept ofAlthough the concept of great power unanimitygreat power unanimity isisthe foundation stone of the UN, the unity hadthe foundation stone of the UN, the unity hadcollapsedcollapsed immediately after its emergence.immediately after its emergence. TheThe world was divided into two power blocsworld was divided into two power blocs: the: theWestern Bloc headed by the USA and theWestern Bloc headed by the USA and theCommunist Bloc led by the USSR.Communist Bloc led by the USSR. The period between 1946 and 1989 is called theThe period between 1946 and 1989 is called the““Cold WarCold War” due to the bitter rivalry between the” due to the bitter rivalry between thetwo blocs in all matters short of engaging intwo blocs in all matters short of engaging inactual hostilities.actual hostilities.
  • 26. Criticism against the vetoCriticism against the veto [Cont.][Cont.] If a draft resolution was submitted to the SC byIf a draft resolution was submitted to the SC bythe Western Bloc, the Communist Bloc wouldthe Western Bloc, the Communist Bloc wouldveto it andveto it and vice versavice versa.. The SC during the Cold War period, therefore,The SC during the Cold War period, therefore,was in effect paralyzed by the use of vetoes bywas in effect paralyzed by the use of vetoes bythe permanent members.the permanent members. The veto hasThe veto has frustrated the Security Council ‘sfrustrated the Security Council ‘senforcement powerenforcement power which is thewhich is the core of thecore of thecollective security systemcollective security system of the United Nations.of the United Nations.
  • 27. Criticism against the vetoCriticism against the veto [Cont.][Cont.] Because of the veto, theBecause of the veto, the SC was unable to takeSC was unable to takeenforcement action in many crises and majorenforcement action in many crises and majorincidentsincidents which might even be escalated to thewhich might even be escalated to theThird World War.Third World War. The only major incident during the Cold War, inThe only major incident during the Cold War, inwhich the SC could decide to take actionwhich the SC could decide to take actioninvolving armed forces was theinvolving armed forces was the Korean WarKorean War andandthat was in fact possible due to the absence ofthat was in fact possible due to the absence ofthe USSR in the SC meetings.the USSR in the SC meetings.
  • 28. 3.23.2 Functions and powersFunctions and powersArticle 24Article 241. In order to ensure prompt and effective action1. In order to ensure prompt and effective actionby the UN, its Members confer on the SCby the UN, its Members confer on the SCprimary responsibility for the maintenance ofprimary responsibility for the maintenance ofinternational peace and securityinternational peace and security, and agree that, and agree thatin carrying out its duties under this responsibilityin carrying out its duties under this responsibilitythe SC acts on their behalf. the SC acts on their behalf.  In discharging these duties the SC shall act inIn discharging these duties the SC shall act inaccordance with the Purposes and Principles ofaccordance with the Purposes and Principles ofthe UN….the UN….
  • 29. Article 25Article 25The Members of the United NationsThe Members of the United Nations agree toagree toaccept and carry out the decision of the Securityaccept and carry out the decision of the SecurityCouncilCouncil in accordance with the present Charter.in accordance with the present Charter. This article clearly indicates that decisionsThis article clearly indicates that decisions(resolutions) of the SC are mandatory and(resolutions) of the SC are mandatory andbinding on the member States.binding on the member States.
  • 30. 3.33.3 Enforcement ActionEnforcement ActionChapter VII (Articles 39 to 50)Chapter VII (Articles 39 to 50) [pp. 442-45][pp. 442-45]Article 39Article 39The SCThe SC shall determineshall determine the existence of anythe existence of anythreat to the peacethreat to the peace,, breach of the peacebreach of the peace, or, or actactof aggressionof aggression and shall make recommendations,and shall make recommendations,oror decide what measures shall be takendecide what measures shall be taken ininaccordance with Articles 41 and 42, to maintainaccordance with Articles 41 and 42, to maintainor restore international peace and security.or restore international peace and security.- There are two types of action:- There are two types of action:- (1) Action not involving armed forces (economic(1) Action not involving armed forces (economicsanction) [Art. 41]; andsanction) [Art. 41]; and- (2) Action involving armed forces [Art. 42].(2) Action involving armed forces [Art. 42].
  • 31. Action not involving armed forcesAction not involving armed forcesArticle 41Article 41The Security Council may decide whatThe Security Council may decide what measuresmeasuresnot involving the use of armed forcenot involving the use of armed force are to beare to beemployed to give effect to its decisions, …Theseemployed to give effect to its decisions, …Thesemay include complete or partialmay include complete or partial interruption ofinterruption ofeconomic relationseconomic relations and of rail, sea, air, postal,and of rail, sea, air, postal,telegraphic, radio, and othertelegraphic, radio, and other means ofmeans ofcommunicationcommunication, and the, and the severance of diplomaticseverance of diplomaticrelationsrelations..
  • 32. Action involving armed forcesAction involving armed forcesArticle 42Article 42Should the Security Council consider thatShould the Security Council consider thatmeasures provided for in Article 41 wouldmeasures provided for in Article 41 wouldbe inadequate or have proved to bebe inadequate or have proved to beinadequate, it may take suchinadequate, it may take such action by air,action by air,sea, or land forcessea, or land forces as may be necessaryas may be necessaryto maintain or restore international peaceto maintain or restore international peaceand security….and security….
  • 33. The issue of establishing the UN armedThe issue of establishing the UN armedforcesforcesArticle 43Article 431. All Members of the UN,… undertake to1. All Members of the UN,… undertake tomake available to the Security Council, …make available to the Security Council, …in accordance with a special agreement orin accordance with a special agreement oragreements,agreements, armed forcesarmed forces, assistance,, assistance,and facilities, …and facilities, … necessary for the purposenecessary for the purposeof maintaining international peace andof maintaining international peace andsecurity.security.
  • 34. The issue of establishing the UN armedThe issue of establishing the UN armedforcesforces [Cont.][Cont.]Article 47Article 471. There shall be established a1. There shall be established a Military StaffMilitary StaffCommitteeCommittee to advise and assist the SC on allto advise and assist the SC on allquestions relating to the SC’s militaryquestions relating to the SC’s militaryrequirements…, and the employment andrequirements…, and the employment andcommand of forces placed at its disposal….command of forces placed at its disposal….2. The Military Staff Committee shall consist of the2. The Military Staff Committee shall consist of theChiefs of Staff of the permanent members of theChiefs of Staff of the permanent members of theSC…SC…
  • 35. The issue of establishing the UN armedThe issue of establishing the UN armedforcesforces [Cont.][Cont.] The SC directed the Military Staff Committee toThe SC directed the Military Staff Committee toexamine Article 43 from a military point of view.examine Article 43 from a military point of view. In 1947, the Military Staff Committee presentedIn 1947, the Military Staff Committee presenteda report but which clearly proved that it wasa report but which clearly proved that it wasimpossible to reconcile the differences amongimpossible to reconcile the differences amongthe permanent membersthe permanent members.. Member states haveMember states have never made any of thenever made any of thespecial agreementsspecial agreements envisaged in Article 43 andenvisaged in Article 43 andthus the Articlethus the Article remains a dead letterremains a dead letter. . 
  • 36. Practice duringPractice during the Cold War:the Cold War:The Korean WarThe Korean War [1950][1950] In 1950, North Korean (communist) armedIn 1950, North Korean (communist) armedforces invaded South Korea.forces invaded South Korea. The SC adopted a resolution asking memberThe SC adopted a resolution asking memberStates to send forces to repel the aggressionStates to send forces to repel the aggressionunder a unified command. [16 States sent armedunder a unified command. [16 States sent armedforces].forces]. The Resolution was adopted with the concurringThe Resolution was adopted with the concurringvotes of the four permanent members, while thevotes of the four permanent members, while theUSSR was absent from the meeting.USSR was absent from the meeting. The constitutionality of the resolution wasThe constitutionality of the resolution wasquestionable.questionable.
  • 37. 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.On 2 August, 1990, Iraq forces invaded Kuwait.ByBy resolution 660resolution 660, the SC demanded that Iraq, the SC demanded that Iraqwithdrew all its forces from Kuwait. Iraq failed towithdrew all its forces from Kuwait. Iraq failed toobserve it and annexed Kuwait as part of itsobserve it and annexed Kuwait as part of itsterritory.territory. On 29 November, the SC adoptedOn 29 November, the SC adopted ResolutionResolution678678, acting under Chapt. VII of the Charter,, acting under Chapt. VII of the Charter,authorized member States cooperating withauthorized member States cooperating withKuwait, to use all necessary means toKuwait, to use all necessary means toimplement SC resolutions.implement SC resolutions.
  • 38. Iraqi invasion of KuwaitIraqi invasion of Kuwait [1990][1990] [Cont.][Cont.] When the deadline passed, the coalition forcesWhen the deadline passed, the coalition forcesunder the leadership of the United States, beganunder the leadership of the United States, beganthe “Operation Desert Storm”the “Operation Desert Storm” to attack Iraq.to attack Iraq. It is arguable that the SC was not exactly actingIt is arguable that the SC was not exactly actingunder Chapter VII, according to whichunder Chapter VII, according to whichenforcement measures will be under the controlenforcement measures will be under the controlof the SC.of the SC. The broad discretion given to the coalitionThe broad discretion given to the coalitionforces without any control by the SC has led toforces without any control by the SC has led toaccusations that the SC was ‘hijacked’ by theaccusations that the SC was ‘hijacked’ by theUS.US.
  • 39. After September 11, the Rise of UnilateralismAfter September 11, the Rise of Unilateralismand the future of the UNand the future of the UN[See Chapt. 14][See Chapt. 14] The reactions of the US to September 11The reactions of the US to September 11terrorist attacks on World trade Centre:terrorist attacks on World trade Centre: First, the US used military force in AfghanistanFirst, the US used military force in Afghanistan(2001) without the authorization of the SC,(2001) without the authorization of the SC,alleging that the Taliban Government harbouredalleging that the Taliban Government harbouredand gave safe havens to Al Qaeda terrorists.and gave safe havens to Al Qaeda terrorists. Secondly, the US invaded and occupied IraqSecondly, the US invaded and occupied Iraq(2003), again without the authorization of the(2003), again without the authorization of theSC, and deposed Saddam Hussein, alleging thatSC, and deposed Saddam Hussein, alleging thatIraq had links with Al Qaeda and that SaddamIraq had links with Al Qaeda and that SaddamHussein, with stockpiles of WMDs, was aHussein, with stockpiles of WMDs, was adangerous threat to the US and its allies.dangerous threat to the US and its allies.
  • 40. US attack on AfghanistanUS attack on Afghanistan (2001)(2001)[[See pp. 524-27]See pp. 524-27]Two main justifications invoked by the US:Two main justifications invoked by the US:(1)(1) It was an act of Self-defence.It was an act of Self-defence.Rebuttal: According toRebuttal: According to Art. 51Art. 51 of the Charter,of the Charter,there must be an armed attack by a State. Inthere must be an armed attack by a State. InSeptember 11 incident, the attack was made bySeptember 11 incident, the attack was made byindividual terrorists, none of whom wereindividual terrorists, none of whom wereAfghans.Afghans.(2)(2) It was a war on terrorism.It was a war on terrorism.Rebuttal: No universally accepted definition ofRebuttal: No universally accepted definition ofterrorism. In the absence of authorization by theterrorism. In the absence of authorization by theSC, no State can use force against anotherSC, no State can use force against anotherState on the ground of failure to suppressState on the ground of failure to suppress
  • 41. US invasion and occupation of IraqUS invasion and occupation of Iraq(2003)(2003) [pp. 527-30][pp. 527-30]Three main justifications made by the US.Three main justifications made by the US.(1)(1) WMDsWMDs –– threat to peace and securitythreat to peace and security..Rebuttal: It was a false accusation proved toRebuttal: It was a false accusation proved tobe untrue. Even if it was true, then there mustbe untrue. Even if it was true, then there mustbe a resolution of the SC (under Chapt. 7) tobe a resolution of the SC (under Chapt. 7) tothat effect and to take action against Iraq.that effect and to take action against Iraq.(2)(2) Self-defenceSelf-defence (anticipatory); Iraq was a threat to(anticipatory); Iraq was a threat toUS (and Israel) and in anticipation of attack byUS (and Israel) and in anticipation of attack byIraq, the US could attack first as a self-Iraq, the US could attack first as a self-defence.defence.
  • 42. US invasion and occupation of IraqUS invasion and occupation of Iraq[Cont.][Cont.]Rebuttal: Anticipatory self-defence is not legalRebuttal: Anticipatory self-defence is not legalunder IL by virtue of the requirement under Art.under IL by virtue of the requirement under Art.51 of “an armed attack’.51 of “an armed attack’.(3)(3) Regime changeRegime change; US attacked Iraq to help Iraqi; US attacked Iraq to help Iraqipeople to taste the fruits of democracy.people to taste the fruits of democracy.Rebuttal: No State can use force againstRebuttal: No State can use force againstanother State to change its government. This isanother State to change its government. This isa blatant violation of two most sacred principlesa blatant violation of two most sacred principlesof IL: “sovereignty”and “self-determination of aof IL: “sovereignty”and “self-determination of apeople.people.
  • 43. Recent Israeli invasion of Lebanon (2006)Recent Israeli invasion of Lebanon (2006)Arrest by Hizbollah of two Israeli soldiers;Arrest by Hizbollah of two Israeli soldiers;Justification: Self-defence againstJustification: Self-defence againstterrorists.terrorists.
  • 44. CommentsComments- In each major incident discussed above, the use- In each major incident discussed above, the useof force by the US was contrary to internationalof force by the US was contrary to internationallaw.law.- The US, taking advantage of the position as the- The US, taking advantage of the position as thesole super-powersole super-power, bypassed the SC, ignored the, bypassed the SC, ignored theUN, and used force on its own.UN, and used force on its own.- These cases are clear indications of the failureThese cases are clear indications of the failureof the UN enforcement machinery in the contextof the UN enforcement machinery in the contextof theof the uni-polar worlduni-polar world..- What then is the solution? This is a food for- What then is the solution? This is a food forthought for every international lawyer andthought for every international lawyer andpolitical scientist.political scientist.
  • 45. ICJ versus SCICJ versus SCCan the ICJ judicially review decisions of the SC?Can the ICJ judicially review decisions of the SC?[Textbook pp. 394-399][Textbook pp. 394-399] The end of the Cold War has given rise to a moreThe end of the Cold War has given rise to a morepowerful and activated SC.powerful and activated SC. Turned from helpless inaction in the Cold War years toTurned from helpless inaction in the Cold War years tothe very often application of sanctions under Chapter VIIthe very often application of sanctions under Chapter VIIof the Charter.of the Charter. Whether the Court, the principal judicial organ of the UN,Whether the Court, the principal judicial organ of the UN,can judicially review the decisions of the SC, thecan judicially review the decisions of the SC, theenforcement arm.enforcement arm. Two questions: (1) whether there are limits to theTwo questions: (1) whether there are limits to thepowers of the SC; andpowers of the SC; and(2) whether the Court has the authority for judicial(2) whether the Court has the authority for judicialreview.review.
  • 46. (1) Are there Limits to the Powers of the Security(1) Are there Limits to the Powers of the SecurityCouncil?Council? It is true that Chapter VII of the Charter confers veryIt is true that Chapter VII of the Charter confers verybroad powers on the Council.broad powers on the Council. But the SC is not a sovereign authority. The powers ofBut the SC is not a sovereign authority. The powers ofthe SC are not unlimited.the SC are not unlimited. The SC enjoys powers only insofar as they are conferredThe SC enjoys powers only insofar as they are conferredon it by or implied in the Charter.on it by or implied in the Charter. The main limitation on the powers of the SC is the dutyThe main limitation on the powers of the SC is the dutyto act in accordance with the Purposes and Principles ofto act in accordance with the Purposes and Principles ofthe UNthe UN [See Art. 24(2)].[See Art. 24(2)]. The Purposes and Principles are those stated in ArticlesThe Purposes and Principles are those stated in Articles1 and 2.1 and 2.
  • 47. SC’s power and purposes of the UNSC’s power and purposes of the UN One of the Purposes of the UN under Article 1(1) of theOne of the Purposes of the UN under Article 1(1) of theCharter is: to bring about by peaceful means and inCharter is: to bring about by peaceful means and inconformity with the “conformity with the “principles of justice and internationalprinciples of justice and internationallawlaw”, adjustment or settlement of international disputes”, adjustment or settlement of international disputesor situations which might lead to a breach of the peace.or situations which might lead to a breach of the peace. Referring to this, some conclude thatReferring to this, some conclude that the SC is bound tothe SC is bound toact in accordance with international law and may notact in accordance with international law and may notdisregard or derogate from it.disregard or derogate from it. However, it is arguable that Art. 1(1) requiresHowever, it is arguable that Art. 1(1) requiresobservance of general international law only with respectobservance of general international law only with respectto the peaceful settlement of disputes, but not forto the peaceful settlement of disputes, but not forcollective measures taken under Chapter VII.collective measures taken under Chapter VII.
  • 48. The SC at least has to comply with principles of ILThe SC at least has to comply with principles of ILas enshrined in the Charteras enshrined in the Charter Hans Kelsen argued that the Council need not act inHans Kelsen argued that the Council need not act inaccordance with existing international law when it isaccordance with existing international law when it isacting to maintain or restore international peace andacting to maintain or restore international peace andsecurity.security. It is, however, not correct to say that the SC is not at allIt is, however, not correct to say that the SC is not at allrestrained by principles of international law when it isrestrained by principles of international law when it istaking enforcement action.taking enforcement action. The SC, as an organ of the UN, is bound by the Charter.The SC, as an organ of the UN, is bound by the Charter.Although it is doubtful whether the SC is necessary toAlthough it is doubtful whether the SC is necessary tocomply with general international, what is certain is thatcomply with general international, what is certain is thatthe SC is bound by the principles of international law asthe SC is bound by the principles of international law asenshrined in the Charter. [See Art. 2: seven principles ofenshrined in the Charter. [See Art. 2: seven principles ofthe UN]the UN]
  • 49. The SC cannot decide against aThe SC cannot decide against a jus cogensjus cogens Another limitation on the powers of the SC relates to theAnother limitation on the powers of the SC relates to theobservance ofobservance of jus cogensjus cogens, peremptory norms of general, peremptory norms of generalinternational law from which no derogation is permitted.international law from which no derogation is permitted. Any SC decision in conflict with a norm ofAny SC decision in conflict with a norm of jus cogensjus cogensmust necessarily be null and void. [must necessarily be null and void. [See Arts. 53 and 64See Arts. 53 and 64of the VCLT].of the VCLT]. In theIn the Application of the Genocide Convention caseApplication of the Genocide Convention case , the, theICJ ruled that an SC resolution which is contrary to aICJ ruled that an SC resolution which is contrary to a jusjuscogenscogens principle was not valid.principle was not valid.
  • 50. Is the Court competent to decide on theIs the Court competent to decide on thelegality of decisions of the Securitylegality of decisions of the SecurityCouncil?Council? No express provision in the Charter allowing judicialNo express provision in the Charter allowing judicialreview by the Court.review by the Court. Lack of an express power of review, however, is notLack of an express power of review, however, is notdeterminative. What is more important is a lack of andeterminative. What is more important is a lack of anexpress prohibition from engaging in judicial review.express prohibition from engaging in judicial review. The ICJ is the principal judicial organ of the UN. Its taskThe ICJ is the principal judicial organ of the UN. Its taskis to ensure respect for international law.is to ensure respect for international law. Thus nothing can prevent the Court from deciding on theThus nothing can prevent the Court from deciding on thelegality of such a decision if this becomes necessarylegality of such a decision if this becomes necessarywhen the matter is brought before it.when the matter is brought before it. Nevertheless, the power of judicial review of the Court isNevertheless, the power of judicial review of the Court islimited, the extent of which is yet to be defined.limited, the extent of which is yet to be defined.