CHAPTER 12 CHAPTER 12

THE LAW OF THE UNITED THE LAW OF THE UNITED NATIONSNATIONS

PROFESSORPROFESSOR

DR. ABDUL GHAFUR HAMIDDR. ABDUL GHAFUR HAMID

5.1 THE CHARTER AND THE 5.1 THE CHARTER AND THE FOUNDATION OF THE UNITED FOUNDATION OF THE UNITED

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

important international organization important international organization of the present day.of the present day.

It officially came into existence on It officially came into existence on October 24, 1945October 24, 1945, when its Charter , when its Charter had been ratified by China, France, had been ratified by China, France, the Soviet Union, the United the Soviet Union, the United Kingdom, and the United States, and Kingdom, and the United States, and by the majority of other signatories.by the majority of other signatories.

5.1.1 5.1.1 The Charter as a TreatyThe Charter as a Treaty[pp. 424-25][pp. 424-25]

Origins of the United Nations CharterOrigins of the United Nations CharterThree successive international conferencesThree successive international conferences::(1) (1) Dumbarton Oaks ConferenceDumbarton Oaks Conference: drafted the : drafted the

CharterCharter(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; 50 States participated; 51 original members;

the Charter was signed on June 26, 1945; the Charter was signed on June 26, 1945; entered into force on October 24, 1945.entered into force on October 24, 1945.

The “rigidity” of the Charter and The “rigidity” of the Charter and amendment procedureamendment procedure [p. 424][p. 424]

The Charter, of which the Statute of the ICJ is The Charter, of which the Statute of the ICJ is an integral part, is a multilateral law-making an integral part, is a multilateral law-making treaty. treaty.

[Article 108] [Article 108]

“ “AmendmentsAmendments to the Charter must be adopted to the Charter must be adopted by a by a two-thirds majoritytwo-thirds majority of the General of the General Assembly and then ratified by Assembly and then ratified by two-thirds of two-thirds of the membersthe members of the United Nations, of the United Nations, including including all the permanent members of the Security all the permanent members of the Security CouncilCouncil” (i.e., the permanent members have ” (i.e., the permanent members have veto power). veto power).

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 The changes in the Charter is justified by the following events: the following events:

The number of member states has tripled; The number of member states has tripled; [192][192]

The original ideological conflict between The original ideological conflict between capitalism and socialism, between East capitalism and socialism, between East and West, has been substituted by the and West, has been substituted by the conflict of interest between conflict of interest between industrialized industrialized and non-industrializedand non-industrialized countries, between countries, between North and SouthNorth and South. .

Suggestions for changesSuggestions for changes[p. 425][p. 425]

(1) (1) Enforcing the role of the AssemblyEnforcing the role of the Assembly (where the third world states have an (where the third world states have an overwhelming majority)overwhelming majority)

(2) (2) Enlarging the Security CouncilEnlarging the Security Council in order to in order to guarantee greater representation to the guarantee greater representation to the Third World Countries;Third World Countries;

(3) (3) Abolition or limitation of the vetoAbolition or limitation of the veto (or (or extending the vetoextending the veto in order that countries in order that countries representing different geo-political areas representing different geo-political areas might enjoy it), might enjoy it),

Any changes possible?Any changes possible?

For the first time in its history, the UN held the For the first time in its history, the UN held the Summit of World Leaders together with the Summit of World Leaders together with the 6060thth UN General Assembly Annual Meeting and UN General Assembly Annual Meeting and proposals for UN reforms were discussed. proposals for UN reforms were discussed.

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

The attitude of the The attitude of the permanent memberspermanent members of of the SC is decisive. They have the the SC is decisive. They have the vetoveto on any on any amendments or revision, and they do not amendments or revision, and they do not seem very inclined to change the existing seem very inclined to change the existing rules.rules.

5.1.2 Purposes and principles of 5.1.2 Purposes and principles of the UN the UN [pp. 425-27][pp. 425-27]

Article 1 [Purposes]Article 1 [Purposes] To maintain peace and securityTo maintain peace and security is the is the

primary and the overriding purposeprimary and the overriding purpose and to and to that end: to take that end: to take effective collective effective collective measuresmeasures for the prevention and removal of for the prevention and removal of threats to the peace, and for the threats to the peace, and for the suppression of acts of aggression or other suppression of acts of aggression or other breaches of the peace, and to bring about breaches of the peace, and to bring about by by peaceful meanspeaceful means and and in conformity with in conformity with the principles of justice and international the principles of justice and international lawlaw, adjustment or settlement of , adjustment or settlement of international disputes … [Article 1(1)]international disputes … [Article 1(1)]

The other purposes include: The other purposes include: - to develop friendly relations among - to develop friendly relations among

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

- to achieve - to achieve international cooperationinternational cooperation in solving international problems and in solving international problems and in promoting in promoting respect for human respect for human rights and for fundamental freedomsrights and for fundamental freedoms.. [Article 1(3)][Article 1(3)]

Article 2Article 2 [Principles] [Principles](1) The Organization is based on the (1) The Organization is based on the principle principle

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

obligationsobligations assumed by them in accordance assumed by them in accordance with the present Charter.with the present Charter.

(3) All Members shall (3) All Members shall settle their international settle their international disputes by peaceful meansdisputes by peaceful means in such a in such a manner that international peace and manner that international peace and security, and justice, are not endangered.security, and justice, are not endangered.

Basic Principles Basic Principles [Cont.][Cont.]

(4) All Members (4) All Members shall refrain in their shall refrain in their international relations from the threat or international relations from the threat or use of forceuse of force against the territorial integrity against the territorial integrity and political independence of any state, or and political independence of any state, or in any other manner inconsistent with the in any other manner inconsistent with the Purposes of the United Nations.Purposes of the United Nations.

(5) All Members shall give the UN every (5) All Members shall give the UN every assistance in any action taken in assistance in any action taken in accordance with the present Charter, and accordance with the present Charter, and shall refrain from giving assistance to any shall refrain from giving assistance to any state against which the UN is taking state against which the UN is taking preventive or enforcement action.preventive or enforcement action.

Basic Principles Basic Principles [Cont.][Cont.]

(6) The Organization shall ensure that states (6) The Organization shall ensure that states which are which are not Members of the United Nationsnot Members of the United Nations act act accordance with these Principles so far as accordance with these Principles so far as may be necessary for the may be necessary for the maintenance of maintenance of international peace and securityinternational peace and security..

(7) (7) NothingNothing contained in the present Charter contained in the present Charter shall authorize the United Nations shall authorize the United Nations to to intervene in matters which are essentially intervene in matters which are essentially within the domestic jurisdiction of any within the domestic jurisdiction of any statestate…; …; butbut this principle shall not prejudice this principle shall not prejudice the application of the application of enforcement measures enforcement measures under Chapter VIIunder Chapter VII..  

5.1.3 5.1.3 Collective Security SystemCollective Security System [pp. 427-29][pp. 427-29]

There are two basic characteristics of the There are two basic characteristics of the UN: UN:

(1) The Organization is based on (1) The Organization is based on collective collective security systemsecurity system; and ; and

(2) (2) Great power unityGreat power unity is the foundation is the foundation stone of the Organization.stone of the Organization.

Collective Security systemCollective Security system

Two main concepts to maintain peace and avoid Two main concepts to maintain peace and avoid warwar: :

(1) (1) Balance of powerBalance of power [practised after the [practised after the congress of Vienna, 1815; the Concert of congress of Vienna, 1815; the Concert of Europe; the essence is : there must be 2 or 3 Europe; the essence is : there must be 2 or 3 powerful states or alliances whose powers are powerful states or alliances whose powers are almost equal; no single State or bloc is almost equal; no single State or bloc is allowed to become the most powerful];allowed to become the most powerful];

(2) (2) Collective securityCollective security [practised after the World [practised after the World War I; believed to be superior to balance of War I; believed to be superior to balance of power concept; started with the League of power concept; started with the League of Nations; and continued with the UN].Nations; and continued with the UN].

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

The original idea of collective security was The original idea of collective security was that any state which started an aggressive that any state which started an aggressive war would be opposed by the rest of the war would be opposed by the rest of the world. All third parties would come to the world. All third parties would come to the assistance of a victim of aggression. The assistance of a victim of aggression. The motto was: “motto was: “war against one is war against war against one is war against allall”.”.

It is mainly designed to It is mainly designed to prevent or suppress prevent or suppress aggressionaggression by presenting to by presenting to potential potential aggressorsaggressors the the credible threatcredible threat and to and to potential victims of aggression the reliable potential victims of aggression the reliable promise of promise of effective collective measureseffective collective measures..

Subjective requirementsSubjective requirements

The modern concept of collective The modern concept of collective security depends upon a positive security depends upon a positive commitment to the value of world commitment to the value of world peacepeace by the greatest mass of States. by the greatest mass of States.

Another requirement of collective Another requirement of collective security is that it security is that it functions functions impartiallyimpartially. It is to be directed against . It is to be directed against any aggressor, on behalf of any any aggressor, on behalf of any violated State. violated State.

Objective requirementsObjective requirements

The objective requirements of The objective requirements of collective security are:collective security are:

(a) the (a) the existence of several powerful existence of several powerful States of roughly equal strengthStates of roughly equal strength (the (the concentration of power in a very few concentration of power in a very few major States is the least favourable major States is the least favourable situation); and situation); and

(b) the assumption of (b) the assumption of partial partial disarmamentdisarmament..

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 The Charter of the UN is a more satisfactory constitutional basis for a satisfactory constitutional basis for a collective security system than the collective security system than the CovenantCovenant of the League of Nations. of the League of Nations.

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

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

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

Collective Security systemCollective Security system [Cont.][Cont.]Weaknesses of the CharterWeaknesses of the Charter [p. 429] [p. 429]

The Charter falls significantly short of The Charter falls significantly short of providing an ideal institutional system for providing an ideal institutional system for the realization of collective security. the realization of collective security.

(1) No armed forces at the disposal of the UN (1) No armed forces at the disposal of the UN (Art. 43 has become a dead law);(Art. 43 has become a dead law);

(2) No assurance for disarmament, which is a (2) No assurance for disarmament, which is a basic prerequisite of collective security basic prerequisite of collective security system;system;

(3) The Security Council, enforcement arm of (3) The Security Council, enforcement arm of the UN, is founded on the the UN, is founded on the great Power great Power unanimityunanimity [Art. 27] (Veto power is given to [Art. 27] (Veto power is given to the Big Five).the Big Five).

2.4 2.4 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 United There are six principal organs of the United

Nations: the General Assembly, the Security Nations: the General Assembly, the Security Council, the Economic and Social Council, Council, the Economic and Social Council, the Trusteeship Council, the International the Trusteeship Council, the International Court of Justice, and the Secretariat.Court of Justice, and the Secretariat.

The United Nations system consists of the The United Nations system consists of the “UN proper” (the six principal organs) “UN proper” (the six principal organs) constituting its center, linked up with constituting its center, linked up with seventeen “seventeen “Specialized AgenciesSpecialized Agencies”(e.g. the ”(e.g. the ILO, the IMO, the WHO, the IMF, the IBRD). ILO, the IMO, the WHO, the IMF, the IBRD).

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 15 15 membersmembers of the United Nations. of the United Nations.

- There are - There are five permanent membersfive permanent members: : China, France, the USSR, the UK, and China, France, the USSR, the UK, and the USA.the USA.

- The GA elects ten other members for 2 - The GA elects ten other members for 2 years’ term to be non-permanent years’ term to be non-permanent members.members.

3.1 3.1 Voting Procedure and the Voting Procedure and the vetoveto

[[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 on 2. Decisions of the SC on procedural mattersprocedural matters shall be made by an affirmative shall be made by an affirmative vote of nine vote of nine membersmembers..

3. Decisions of the Security Council on 3. Decisions of the Security Council on all other all other mattersmatters [i.e. [i.e. substantive matterssubstantive matters] shall be ] shall be made by an affirmative made by an affirmative vote of nine membersvote of nine members including the concurring votes of the including the concurring votes of the permanent memberspermanent members; provided that, in ; provided that, in decisions under Chapter VI, … a party to a decisions under Chapter VI, … a party to a dispute shall abstain from voting.dispute shall abstain from voting.

Veto powerVeto power

The effect of Article 27(3) is that The effect of Article 27(3) is that each permanent member of the each permanent member of the Security Council has a ‘veto’Security Council has a ‘veto’ on non-on non-procedural or substantive questions.procedural or substantive questions.

The term ‘veto’ is a Latin derivative The term ‘veto’ is a Latin derivative which means ‘I forbid’.which means ‘I forbid’.

  

Criticism against the vetoCriticism against the veto

The veto was born with a bad name. The veto was born with a bad name. It was bitterly It was bitterly opposed by small opposed by small countriescountries at San Francisco although at San Francisco although these countries could not reject the these countries could not reject the thesis that the thesis that the United Nations could United Nations could function effectively only with all the function effectively only with all the great powers as membersgreat powers as members. .

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

Although the concept of Although the concept of great power great power unanimityunanimity is the foundation stone of the UN, is the foundation stone of the UN, the unity had the unity had collapsedcollapsed immediately after immediately after its emergence.its emergence.

The The world was divided into two power blocsworld was divided into two power blocs: : the Western Bloc headed by the USA and the Western Bloc headed by the USA and the Communist Bloc led by the USSR.the Communist Bloc led by the USSR.

The period between 1946 and 1989 is called The period between 1946 and 1989 is called the “the “Cold WarCold War” due to the bitter rivalry ” due to the bitter rivalry between the two blocs in all matters short between the two blocs in all matters short of engaging in actual hostilities.of engaging in actual hostilities.

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

If a draft resolution was submitted to the If a draft resolution was submitted to the SC by the Western Bloc, the Communist SC by the Western Bloc, the Communist Bloc would veto it and Bloc would veto it and vice versavice versa..

The SC during the Cold War period, The SC during the Cold War period, therefore, was in effect paralyzed by the therefore, was in effect paralyzed by the use of vetoes by the permanent members.use of vetoes by the permanent members.

The veto has The veto has frustrated the Security frustrated the Security Council ‘s enforcement powerCouncil ‘s enforcement power which is the which is the core of the collective security systemcore of the collective security system of of the United Nations. the United Nations.

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

Because of the veto, the Because of the veto, the SC was unable to SC was unable to take enforcement action in many crises take enforcement action in many crises and major incidentsand major incidents which might even be which might even be escalated to the Third World War.escalated to the Third World War.

The only major incident during the Cold The only major incident during the Cold War, in which the SC could decide to take War, in which the SC could decide to take action involving armed forces was the action involving armed forces was the Korean WarKorean War and that was in fact possible and that was in fact possible due to the absence of the USSR in the SC due to the absence of the USSR in the SC meetings.meetings.

3.2 3.2 Functions and powersFunctions and powers

Article 24Article 241. In order to ensure prompt and effective 1. In order to ensure prompt and effective

action by the UN, its Members confer on action by the UN, its Members confer on the SC the SC primary responsibility for the primary responsibility for the maintenance of international peace and maintenance of international peace and securitysecurity, and agree that in carrying out its , and agree that in carrying out its duties under this responsibility the SC acts duties under this responsibility the SC acts on their behalf. on their behalf. 

In discharging these duties the SC shall act In discharging these duties the SC shall act in accordance with the Purposes and in accordance with the Purposes and Principles of the UN….Principles of the UN….

Article 25Article 25

The Members of the United Nations The Members of the United Nations agree agree to accept and carry out the decision of the to accept and carry out the decision of the Security CouncilSecurity Council in accordance with the in accordance with the present Charter.present Charter.

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

3.3 3.3 Enforcement ActionEnforcement Action

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

Article 39Article 39 The SC The SC shall determineshall determine the existence of any the existence of any

threat to the peacethreat to the peace, , breach of the peacebreach of the peace, or , or act of aggressionact of aggression and shall make and shall make recommendations, or recommendations, or decide what measures decide what measures shall be takenshall be taken in accordance with Articles 41 in accordance with Articles 41 and 42, to maintain or restore international and 42, to maintain or restore international peace and security.peace and security.

- There are two types of action:- There are two types of action:- (1) Action not involving armed forces (1) Action not involving armed forces

(economic sanction) [Art. 41]; and (economic sanction) [Art. 41]; and - (2) Action involving armed forces [Art. 42].(2) Action involving armed forces [Art. 42].

Action not involving armed forcesAction not involving armed forces

Article 41Article 41

The Security Council may decide what The Security Council may decide what measures not involving the use of armed measures not involving the use of armed forceforce are to be employed to give effect to are to be employed to give effect to its decisions, …These may include its decisions, …These may include complete or partial complete or partial interruption of interruption of economic relationseconomic relations and of rail, sea, air, and of rail, sea, air, postal, telegraphic, radio, and other postal, telegraphic, radio, and other means of communicationmeans of communication, and the , and the severance of diplomatic relationsseverance of diplomatic relations..

Action involving armed forcesAction involving armed forces

Article 42Article 42

Should the Security Council consider Should the Security Council consider that measures provided for in Article that measures provided for in Article 41 would be inadequate or have 41 would be inadequate or have proved to be inadequate, it may take proved to be inadequate, it may take such such action by air, sea, or land forcesaction by air, sea, or land forces as may be necessary to maintain or as may be necessary to maintain or restore international peace and restore international peace and security….security….

The issue of establishing the UN The issue of establishing the UN armed forcesarmed forces

Article 43Article 43

1. All Members of the UN,… undertake 1. All Members of the UN,… undertake to make available to the Security to make available to the Security Council, … in accordance with a Council, … in accordance with a special agreement or agreements, special agreement or agreements, armed forcesarmed forces, assistance, and , assistance, and facilities, … facilities, … necessary for the necessary for the purpose of maintaining international purpose of maintaining international peace and security.peace and security.

The issue of establishing the UN The issue of establishing the UN armed forces armed forces [Cont.][Cont.]

Article 47Article 47

1. There shall be established a 1. There shall be established a Military Staff Military Staff CommitteeCommittee to advise and assist the SC on to advise and assist the SC on all questions relating to the SC’s military all questions relating to the SC’s military requirements…, and the employment and requirements…, and the employment and command of forces placed at its command of forces placed at its disposal….disposal….

2. The Military Staff Committee shall consist 2. The Military Staff Committee shall consist of the Chiefs of Staff of the permanent of the Chiefs of Staff of the permanent members of the SC…members of the SC…

The issue of establishing the UN The issue of establishing the UN armed forces armed forces [Cont.][Cont.]

The SC directed the Military Staff Committee The SC directed the Military Staff Committee to examine Article 43 from a military point of to examine Article 43 from a military point of view.view.

In 1947, the Military Staff Committee In 1947, the Military Staff Committee presented a report but which clearly proved presented a report but which clearly proved that it was that it was impossible to reconcile the impossible to reconcile the differences among the permanent membersdifferences among the permanent members. .

Member states have Member states have never made any of the never made any of the special agreementsspecial agreements envisaged in Article 43 envisaged in Article 43 and thus the Article and thus the Article remains a dead letterremains a dead letter. . 

Practice duringPractice during the Cold War:the Cold War: The Korean WarThe Korean War [1950] [1950]

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

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

The Resolution was adopted with the The Resolution was adopted with the concurring votes of the four permanent concurring votes of the four permanent members, while the USSR was absent from members, while the USSR was absent from the meeting.the meeting.

The constitutionality of the resolution was The constitutionality of the resolution was questionable.questionable.

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 On 2 August, 1990, Iraq forces invaded Kuwait. By Kuwait. By resolution 660resolution 660, the SC demanded , the SC demanded that Iraq withdrew all its forces from Kuwait. that Iraq withdrew all its forces from Kuwait. Iraq failed to observe it and annexed Kuwait Iraq failed to observe it and annexed Kuwait as part of its territory. as part of its territory.

On 29 November, the SC adopted On 29 November, the SC adopted Resolution 678Resolution 678, acting under Chapt. VII of , acting under Chapt. VII of the Charter, authorized member States the Charter, authorized member States cooperating with Kuwait, to use all cooperating with Kuwait, to use all necessary means to implement SC necessary means to implement SC resolutions.resolutions.

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

When the deadline passed, the coalition When the deadline passed, the coalition forces under the leadership of the United forces under the leadership of the United States, began the “Operation Desert Storm”States, began the “Operation Desert Storm” to attack Iraq.to attack Iraq.

It is arguable that the SC was not exactly It is arguable that the SC was not exactly acting under Chapter VII, according to which acting under Chapter VII, according to which enforcement measures will be under the enforcement measures will be under the control of the SC.control of the SC.

The broad discretion given to the coalition The broad discretion given to the coalition forces without any control by the SC has led forces without any control by the SC has led to accusations that the SC was ‘hijacked’ by to accusations that the SC was ‘hijacked’ by the US.the US.

After September 11, the Rise of After September 11, the Rise of Unilateralism and the future of the UNUnilateralism and the future of the UN

[See Chapt. 14][See Chapt. 14] The reactions of the US to September 11 The reactions of the US to September 11

terrorist attacks on World trade Centre: terrorist attacks on World trade Centre: First, the US used military force in Afghanistan First, 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 alleging that the Taliban Government harboured and gave safe havens to Al Qaeda harboured and gave safe havens to Al Qaeda terrorists. terrorists.

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

US attack on Afghanistan US 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 to Rebuttal: According to Art. 51Art. 51 of the Charter, of the Charter,

there must be an armed attack by a State. In there must be an armed attack by a State. In September 11 incident, the attack was made by September 11 incident, the attack was made by individual terrorists, none of whom were individual terrorists, none of whom were Afghans. Afghans.

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

terrorism. In the absence of authorization by the terrorism. In the absence of authorization by the SC, no State can use force against another State SC, no State can use force against another State on the ground of failure to suppress terrorism.on the ground of failure to suppress terrorism.

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) WMDs WMDs – – threat to peace and securitythreat to peace and security.. Rebuttal: It was a false accusation Rebuttal: It was a false accusation

proved to be untrue. Even if it was true, proved to be untrue. Even if it was true, then there must be a resolution of the SC then there must be a resolution of the SC (under Chapt. 7) to that effect and to (under Chapt. 7) to that effect and to take action against Iraq.take action against Iraq.

(2) (2) Self-defenceSelf-defence (anticipatory); Iraq was a (anticipatory); Iraq was a threat to US (and Israel) and in threat to US (and Israel) and in anticipation of attack by Iraq, the US anticipation of attack by Iraq, the US could attack first as a self-defence.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 Rebuttal: Anticipatory self-defence is not legal under IL by virtue of the requirement legal under IL by virtue of the requirement under Art. 51 of “an armed attack’.under Art. 51 of “an armed attack’.

(3) (3) Regime changeRegime change; US attacked Iraq to help ; US attacked Iraq to help Iraqi people to taste the fruits of democracy.Iraqi people to taste the fruits of democracy.

Rebuttal: No State can use force against Rebuttal: No State can use force against another State to change its government. another State to change its government. This is a blatant violation of two most This is a blatant violation of two most sacred principles of IL: “sovereignty”and sacred principles of IL: “sovereignty”and “self-determination of a people.“self-determination of a people.

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

Arrest by Hizbollah of two Israeli Arrest by Hizbollah of two Israeli soldiers;soldiers;

Justification: Self-defence against Justification: Self-defence against terrorists.terrorists.

CommentsComments

- In each major incident discussed above, the - In each major incident discussed above, the use of force by the US was contrary to use of force by the US was contrary to international law.international law.

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

- These cases are clear indications of the These cases are clear indications of the failure of the UN enforcement machinery in failure of the UN enforcement machinery in the context of the the context of 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 for thought for every international lawyer and thought for every international lawyer and political scientist.political scientist.

ICJ versus SCICJ versus SCCan the ICJ judicially review decisions of the Can the ICJ judicially review decisions of the

SC? [Textbook pp. 394-399]SC? [Textbook pp. 394-399] The end of the Cold War has given rise to a more The end of the Cold War has given rise to a more

powerful and activated SC. powerful and activated SC. Turned from helpless inaction in the Cold War Turned from helpless inaction in the Cold War

years to the very often application of sanctions years to the very often application of sanctions under Chapter VII of the Charter.under Chapter VII of the Charter.

Whether the Court, the principal judicial organ of Whether the Court, the principal judicial organ of the UN, can judicially review the decisions of the the UN, can judicially review the decisions of the SC, the enforcement arm.SC, the enforcement arm.

Two questions: (1) whether there are limits to the Two questions: (1) whether there are limits to the powers of the SC; and powers of the SC; and

(2) whether the Court has the authority for (2) whether the Court has the authority for judicial review.judicial review.

(1) Are there Limits to the Powers of the (1) Are there Limits to the Powers of the Security Council?Security Council?

It is true that Chapter VII of the Charter confers It is true that Chapter VII of the Charter confers very broad powers on the Council. very broad powers on the Council.

But the SC is not a sovereign authority. The But the SC is not a sovereign authority. The powers of the SC are not unlimited.powers of the SC are not unlimited.

The SC enjoys powers only insofar as they are The SC enjoys powers only insofar as they are conferred on it by or implied in the Charter.conferred on it by or implied in the Charter.

The main limitation on the powers of the SC is The main limitation on the powers of the SC is the duty the duty to act in accordance with the Purposes to act in accordance with the Purposes and Principles of the UN and Principles of the UN [See Art. 24(2)].[See Art. 24(2)].

The Purposes and Principles are those stated in The Purposes and Principles are those stated in Articles 1 and 2.Articles 1 and 2.

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 the One of the Purposes of the UN under Article 1(1) of the Charter is: to bring about by peaceful means and in Charter is: to bring about by peaceful means and in conformity with the “conformity with the “principles of justice and principles of justice and international lawinternational law”, adjustment or settlement of ”, adjustment or settlement of international disputes or situations which might lead to international disputes or situations which might lead to a breach of the peace.a breach of the peace.

Referring to this, some conclude that Referring to this, some conclude that the SC is bound the SC is bound to act in accordance with international law and may to act in accordance with international law and may not disregard or derogate from it.not disregard or derogate from it.

However, it is arguable that Art. 1(1) requires However, it is arguable that Art. 1(1) requires observance of general international law only with observance of general international law only with respect to the peaceful settlement of disputes, but not respect to the peaceful settlement of disputes, but not

for collective measures taken under Chapter VII. for collective measures taken under Chapter VII.

The SC at least has to comply with principles The SC at least has to comply with principles of IL as enshrined in the Charterof IL as enshrined in the Charter

Hans Kelsen argued that the Council need not act in Hans Kelsen argued that the Council need not act in accordance with existing international law when it is accordance with existing international law when it is acting to maintain or restore international peace and acting to maintain or restore international peace and security. security.

It is, however, not correct to say that the SC is not at It is, however, not correct to say that the SC is not at all restrained by principles of international law when it all restrained by principles of international law when it is taking enforcement action. is taking enforcement action.

The SC, as an organ of the UN, is bound by the The SC, as an organ of the UN, is bound by the Charter. Although it is doubtful whether the SC is Charter. Although it is doubtful whether the SC is necessary to comply with general international, what necessary to comply with general international, what is certain is that the SC is bound by the principles of is certain is that the SC is bound by the principles of international law as enshrined in the Charter. [See Art. international law as enshrined in the Charter. [See Art. 2: seven principles of the UN] 2: seven principles of the UN]

The SC cannot decide against a The SC cannot decide against a jus cogensjus cogens

Another limitation on the powers of the SC relates Another limitation on the powers of the SC relates to the observance of to the observance of jus cogensjus cogens, peremptory , peremptory norms of general international law from which no norms of general international law from which no derogation is permitted. derogation is permitted.

Any SC decision in conflict with a norm of Any SC decision in conflict with a norm of jus jus cogenscogens must necessarily be null and void. [ must necessarily be null and void. [See See Arts. 53 and 64 of the VCLT].Arts. 53 and 64 of the VCLT].

In the In the Application of the Genocide Convention Application of the Genocide Convention case case , the ICJ ruled that an SC resolution which is , the ICJ ruled that an SC resolution which is contrary to a contrary to a jus cogensjus cogens principle was not valid. principle was not valid.

Is the Court competent to decide on the Is the Court competent to decide on the legality of decisions of the Security legality of decisions of the Security

Council?Council? No express provision in the Charter allowing judicial No express provision in the Charter allowing judicial

review by the Court. review by the Court. Lack of an express power of review, however, is not Lack of an express power of review, however, is not

determinative. What is more important is a lack of an determinative. What is more important is a lack of an express prohibition from engaging in judicial review.express prohibition from engaging in judicial review.

The ICJ is the principal judicial organ of the UN. Its The ICJ is the principal judicial organ of the UN. Its task is to ensure respect for international law. task is to ensure respect for international law.

Thus nothing can prevent the Court from deciding on Thus nothing can prevent the Court from deciding on the legality of such a decision if this becomes the legality of such a decision if this becomes necessary when the matter is brought before it. necessary when the matter is brought before it.

Nevertheless, the power of judicial review of the Court Nevertheless, the power of judicial review of the Court is limited, the extent of which is yet to be defined.is limited, the extent of which is yet to be defined.