Вы находитесь на странице: 1из 5

The Security Council Under Chapter VII of the UN

Charter: Problems Under the Rule of Law

H. Harry L. Roque, Jr.


Introduction

Chapter 7 lays the groundwork for implementing


collective security measures envisioned to
achieve international peace. The framers of the
charter thought that the provision of collective
security would render it unnecessary for States
to resort to self-help. Any unilateral use of force
would be limited to self-defense and would be
monitored by the Security Council.
What is this article about? Implementation of
Chapter 7 presents serious legal problems.

Implementation

Legal Framework

Article 39 opens the chapter, provides factors


which would allow the Security Council to
determine if there exists any threat to peace or
act of aggression
Article 40 Council may call upon parties to
comply with provisional measures or remedies
Article 41 Council may decide which peaceful
measures are to be employed, such as calling
upon members of the UN to enforce economic
sanctions
Article 42 Council may take military action
necessary to maintain or restore peace

Article 43 In order to implement Article 42, all


members of the UN shall make available to the
Security Council, in accordance with special
agreements, armed forces, assistance, and
facilities necessary
Article 47 Maintenance of international peace
shall be under the command of the Military Staf
Committee, constituting of the Chiefs of Staf of
the permanent members of the Security Council
or their representatives

Since the adoption of the UN Charter, Chapter 7


was implemented only once: deployment of a
UN military force to Korea. The Security Council
refused to interpret Russias denial to
participate in the vote as a negative vote. Here
we find the first and enduring question on
implementation: Does the unanimous vote of all
present members of the Security Council
require the physical presence of all such
countries or not?
Meanwhile, what we have had is the formation
by the UN General Assembly of peacekeeping
forces which, while analogous to the provisions
of Chapter 7, are distinct from it.
- UN peacekeeping force sent to the Suez
Canal: organized under the Uniting for
Peace Resolution, a resolution that justifies
UN General Assembly action whenever there
exists a paralysis within the Security Council

The UN Emergency Force (UNEF) is important


despite being a failure as to its goals
because it has the same purpose as the
collective security measures provided for
under Chapter 7, i.e. to promote/restore
international peace and security
- Distinctions of the UNEF:
(1) Authorized by the GA, not the Security
Council;
(2) Not participated in by the forces or
members of the UN whose composition
needed to be provided for by a special
agreement;
(3) Not under Council or Military Staf
Committee
(4) UNEF had to be requested expressly by
both the governments of Egypt and UAR
(parties who were in conflict)
Next implementation: the Congo, which is the
first instance when the ICJ was called to review
the legality of the expenses incurred not only of
the UN involvement in Congo (ONUC), but also
the UNEF. Russia and France had questioned the
expenses on the ground that the forces were
unconstitutional for not having been authorized
and constituted pursuant to Chapter 7.
- The ICJ did not expressly state that the
volunteer forces were constitutional, but it
did state that the Security Council only has
primary and not exclusive responsibility for
the maintenance of international peace and
security. Since the GA is authorized to

recommend
measures
for
peaceful
adjustment of any situation which might
impair the welfare of friendly relations
among nations, it can also authorize a peace
keeping operations.
Enter the second enduring problem: Are the
peacekeeping forces constitutional? Chapter
7 clearly provides that only the Security
Council shall authorize collective security
measures against threats to international
peace.
In other words, the only legal basis for the
creation of the peacekeeping forces is the
fact that they do not purport to be the
military force contemplated by Chapter 7
Sanctions

Under Chapter 7, non-military sanctions are


imposed before resorting to military sanctions.
What do we make then of military sanctions
which were imposed without resort first to nonmilitary sanctions? Example: Iraqi invasion of
Kuwait (the setting for Operation Desert Storm)
- The Council in Resolution 678 authorized all
member States to use all necessary means
to bring Iraq into compliance with previous
Resolutions
- Impliedly delegated to the US tasks which
pertain to the community of nations acting
through a UN military force: hence, Desert
Storm

Also raised the question as to whether the


US and UK could compel other member
nations to share in the costs of Desert Storm,
since the former were supposedly acting on
behalf of the latter
- The No-Fly Zones established in Iraq by the
UK, US, and Turkey were justified not as
measures under Chapter 7, but under the
same
formula
used
to
justify
the
peacekeeping forces:
(a) Invitation/call made by the afected
population
(b) Humanitarian element
In order to justify self defense, actual armed
attack must be shown to exist. In the nuclear
age, should one really wait before the trigger on
a nuclear warhead is actually pulled?
Humanitarian Intervention

The threshold question is whether a prevailing


situation warrants humanitarian intervention.
What is humanitarian? Extreme poverty? Civil
strife? It is gross human misery, man-made or
otherwise. The Council has in the cases of
Rhodesia, Somalia, Iraq, and Kosovo justified the
use of enforcement measures under Chapter 7
as valid exercises of humanitarian intervention.
Authorities are divided on this point: Brownlie,
Jimenez de Arechaga, and Henkin all argue
against
the
lawfulness
of
humanitarian

intervention because it has been widely abused


in the past.
Meanwhile, Reisman believes that norms are
instruments devised by human beings to
precipitate desired social consequences. One
should not seek a point for point conformity with
a rule without constant regard for the policy or
principle that animated its presumption.
Higgins: In a decentralized legal order, facts
must be looked at legal views applied in
context. Each claim of a valid exercise of
humanitarian intervention, be it made in good
faith or otherwise, should require individual and
contextual analysis. IL is capable of deciding on
the facts at disposal, which interventions were
bonafide, and which were not for reasons of
humanitarian necessity.
Murase: The issue of unilateral use of force is
not one of legality but of opposability. There are
times when unilateral use of force is not only
permitted but also required in order to prevent
the worse conceivable situation from taking
place. The question is not just whether an action
is legal, but whether it is necessary and
legitimate. Every efort must be made for
accommodating the ethical consideration for
necessity and legitimacy, as well as the
normative elements reflecting the actual power
relations.
Sirs particular questions (based on it, the article
was written while the Burnhams were still being
held by the Abu Sayyaf):

(1) Who will complain if the US forces invade


Basilan? There would be two violations: (a)
territorial sovereignty; and (b) proscription
against the use of force.
(2) Should we expect a superpower to do
nothing while its citizens are being held
captive by bandits? (The ICJ in the Tehran
Hostages case plainly stated that this kind of
intervention is inappropriate under IL.)
Prospects

End of Cold War = Russia more cooperative =


less deadlocks in the Security Council = YAAAAY
(e.g. enforcement measures against Iraq,
peacekeeping forces in East Timor, and the
creating of the War Crimes Tribunal for the
former Yugoslavia and Rwanda)
Conclusion

Biggest problem: conflict between international


practice and the literal provisions of the Charter,
e.g. the UN peacekeeping forces are not actually
what is contemplated by the Charter, but they
keep hanging around because they arent
prohibited by the UN Charter
Next problem: why are we even bothering with
the non-military sanctions under Chapter 7
when theyre historically failures? The Charter
uses the word shallmeaning imposing nonmilitary sanctions and then determining whether
theyve been inefective are preconditions to

imposing military sanctions. Except we dont


really do that.
Third: The question of humanitarian intervention
persists, and critics abound of the theory that
gross violations to human rights are threats to
peace.
Sirs comments on the authorities position on
P#3:
- On
Reisman:
no
amount
of
policy
consideration can negate a written, efective,
and acknowledged treaty obligation such as
the UN Charter
- On Murase: Norms under CIL could justify
what is deemed illegal under the UN Charter,
except
that
a
norm
not
otherwise
constituting jus cogens cannot prevail
against the term of a written agreement
consented to by the signatory states
- Higgins: Sir does not support her view that IL
as a vibrant process could result in the
crystallization of new norms of CPIL because
of the presence of a written agreement.
Perhaps it should be amended as new norms
crystallize.
- Sirs conclusion: IL is evolving and changed
circumstances bring about new norms.
However, it is necessary to amend the
written agreement pursuant to these
developments. When the UN Charter took
place in 1945, it had only a third of its total
membership at present. Things like the veto
power accorded to permanent members of

the Security Council should go. IL is indeed a


dynamic and ever-changing process, but if
that is not translated in terms of

amendments, the definition of what the law


is will always be obscured in uncertainty and
ambiguity.