Microsoft Powerpoint - 12. the Law of the United Nat

8/11/2019 Microsoft Powerpoint - 12. the Law of the United Nat

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CHAPTER 12CHAPTER 12

THE LAW OF THE UNITEDTHE LAW OF THE UNITED

NATIONSNATIONS

PROFESSOR

DR. ABDUL GHAFUR HAMID

5.1 THE CHARTER AND THE5.1 THE CHARTER AND THEFOUNDATION 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, the United Kingdom, and the

United States, and by the majority of other

signatories.

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 CharterThree successive international conferences:

(1) Dumbarton Oaks Conference: drafted theCharter

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

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

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

TheThe rigidityrigidityof the Charter andof 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.

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.

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),

Any changes possible?Any changes possible?

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

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

It seems very unlikely that any radical changesin the structure of the United Nations will bemade in the near future.

The attitude of the permanent members of theSC is decisive. They have the veto on any

amendments or revision, and they do not seemvery inclined to change the existing rules.


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5.1.2 Purposes and principles of the5.1.2 Purposes and principles of the

UNUN [pp. 425[pp. 425--27]27]

Article 1 [Purposes]

To maintain peace and security is the primaryand the overriding purpose and to that end: totake effective collective measures for theprevention and removal of threats to the peace,and for the suppression of acts of aggression orother breaches of the peace, and to bring aboutby peaceful means and in conformity with theprinciples of justice and international law,adjustment or settlement of internationaldisputes [Article 1(1)]

The other purposes include:

- to develop friendly relations amongnations based on equal rights and self-determination of peoples[Article 1(2)], and

- to achieve international cooperation insolving international problems and inpromoting respect for human rights and forfundamental freedoms. [Article 1(3)]

Article 2 [Principles]

(1) The Organization is based on the principle ofsovereign equality of all its Members.

(2) All Members shall fulfil in good faith theobligations assumed by them in accordance withthe present Charter.

(3) All Members shall settle their internationaldisputes by peaceful means in such a mannerthat international peace and security, and

justice, are not endangered.

Basic PrinciplesBasic Principles [Cont.][Cont.]

(4) All Members shall refrain in their internationalrelations from the threat or use of force againstthe territorial integrity and political independenceof any state, or in any other manner inconsistentwith the Purposes of the United Nations.

(5) All Members shall give the UN everyassistance in any action taken in accordancewith the present Charter, and shall refrain fromgiving assistance to any state against which the

UN is taking preventive 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 actaccordance with these Principles so far as maybe necessary for the maintenance ofinternational peace and security.

(7) Nothing contained in the present Charter shallauthorize the United Nations to intervene inmatters which are essentially within the domestic

jurisdiction of any state; but this principle shallnot prejudice the application of enforcementmeasures under Chapter VII.

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. , Swords into

Plowshares: The Problems and Progress of

International Organization, 4th.ed., 1984.

Collective Security systemCollective Security system

Two main concepts to maintain peace and avoidwar:

(1) Balance of power [practised after the congressof Vienna, 1815; the Concert of Europe; theessence is : there must be 2 or 3 powerful statesor alliances whose powers are almost equal; nosingle State or bloc is allowed to become themost powerful];

(2) Collective security [practised after the World

War I; believed to be superior to balance ofpower concept; started with the League ofNations; and continued with the UN].

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

The original idea of collective security was thatany state which started an aggressive war wouldbe opposed by the rest of the world. All thirdparties would come to the assistance of a victimof aggression. The motto was: war against oneis war against all.

It is mainly designed to prevent or suppressaggression by presenting to potential aggressorsthe credible threat and to potential victims of

aggression 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 be

directed against any aggressor, on behalf

of any violated State.

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.

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 securitysystem 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 singlebody: the Security Council [Arts. 24, 25 and39].

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 realizationof 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 abasic prerequisite of collective security system;

(3) The Security Council, enforcement arm of theUN, 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 UnitedNations: 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 Specialized

Agencies(e.g. the ILO, the IMO, the WHO, theIMF, the IBRD).

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.

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.

Veto powerVeto power

The effect of Article 27(3) is that each

permanent member of the Security

Council has a veto on non-procedural or

substantive 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

could not reject the thesis that the United

Nations could function effectively only with

all the great powers as members.

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

Although the concept of great power unanimity isthe foundation stone of the UN, the unity hadcollapsed immediately after its emergence.

The world was divided into two power blocs: theWestern 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 inactual hostilities.


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.


Because of the veto, the SC was unable to take

enforcement action in many crises and major

incidents which might even be escalated to the

Third 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 and

that 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 actionby the UN, its Members confer on the SCprimary responsibility for the maintenance ofinternational peace and security, and agree thatin carrying out its duties under this responsibilitythe SC acts on their behalf.

In discharging these duties the SC shall act inaccordance with the Purposes and Principles ofthe UN.

Article 25

The Members of the United Nations agree to

accept and carry out the decision of the Security

Council in accordance with the present Charter.

This article clearly indicates that decisions

(resolutions) of the SC are mandatory and

binding on the member States.

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 anythreat to the peace, breach of the peace, or actof aggression and shall make recommendations,or decide what measures shall be taken inaccordance with Articles 41 and 42, to maintainor restore international 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].

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 be

employed 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

to maintain or restore international peace

and security.

The issue of establishing the UN armedThe issue of establishing the UN armed

forcesforces

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

of maintaining international peace and

security.


forcesforces [Cont.][Cont.]

Article 47

1. There shall be established a Military Staff

Committee to advise and assist the SC on all

questions 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


forcesforces [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

a report 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) armedforces invaded South Korea.

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

The Resolution was adopted with the concurringvotes of the four permanent members, while theUSSR was absent from the meeting.

The constitutionality of the resolution wasquestionable.

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 to

observe it and annexed Kuwait as part of its

territory.

On 29 November, the SC adopted Resolution

678, acting under Chapt. VII of the Charter,

authorized member States cooperating with

Kuwait, to use all necessary means to

implement SC resolutions.

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

When the deadline passed, the coalition forcesunder the leadership of the United States, beganthe Operation Desert Storm to attack Iraq.

It is arguable that the SC was not exactly actingunder Chapter VII, according to whichenforcement measures will be under the controlof the SC.

The broad discretion given to the coalitionforces without any control by the SC has led to

accusations that the SC was hijacked by theUS.

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 aloneStates, even the UN cannot intervene in adomestic matter of a State [Art. 2(7)]. But the

proviso is that the UN may intervene if it isnecessary to maintain international peace andsecurity (i.e. if there is an authorization by theSC under Chapt. VII).

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


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After September 11, the Rise ofAfter September 11, the Rise ofUnilateralism and the future of the UNUnilateralism and the future of the UN

[See[See ChaptChapt. 14]. 14]

The reactions of the US to September 11terrorist attacks 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 theSC, and deposed Saddam Hussein, alleging thatIraq had links with Al Qaeda and that SaddamHussein, with stockpiles of WMDs, was a

dangerous threat to the US and its allies.

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

State on the ground of failure to suppress

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 tobe untrue. Even if it was true, then there mustbe a resolution of the SC (under Chapt. 7) tothat effect 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.

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 apeople.


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Recent Israeli invasion of Lebanon (2006)Recent Israeli invasion of Lebanon (2006)

Arrest by Hizbollah of two Israeli soldiers;

Justification: Self-defence against

terrorists.

CommentsComments

- In each major incident discussed above, the useof force by the US was contrary to internationallaw.

- 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 failureof the UN enforcement machinery in the contextof the uni-polar world.

- What then is the solution? This is a food forthought for every international lawyer and

political scientist.

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