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8/6/2019 5. the Law of the United Nations
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THE LAW OF THE UNITEDTHE LAW OF THE UNITED
NATIONSNATIONS
ASSOC. PROFESSOR
DR. ABDUL GHAFUR HAMID
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5.1 THE CHARTER AND THE5.1 THE CHARTER AND THE
FOUNDATION OF THE UNITEDFOUNDATION OF THE UNITED
NATIONSNATIONS [Chapter 15, p. 423][Chapter 15, p. 423] The United Nations is the most important
international organization of the present
day.
It officially came into existence on October
24, 1945, when its Charter had been ratified
by China, France, the Soviet Union, theUnited Kingdom, and the United States, and
by the majority of other signatories.
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5.1.15.1.1 The Charter as a TreatyThe Charter as a Treaty[pp. 424[pp. 424--25]25]
Origins of the United Nations Charter
Three successive international conferences:
(1) Dumbarton Oaks Conference: drafted the Charter
(2) Yalta Conference: agreed on veto power; Yaltavoting formula.
(3) San Francisco Conference: From 25 April, 1945;
50 States participated; 51 original members; theCharter was signed on June 26, 1945; entered intoforce on October 24, 1945.
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The rigidity of the Charter andThe rigidity of the Charter and
amendment procedureamendment procedure [p. 424][p. 424]
The Charter, of which the Statute of the ICJ is an
integral part, is a multilateral law-making treaty.
[Article 108]
Amendments to the Charter must be adopted by a
two-thirds majority of the General Assembly and
then ratified by two-thirds of the members of the
United Nations, including all the permanent
members of the Security Council (i.e., the
permanent members have veto power).
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Present trends to revise the CharterPresent trends to revise the Charter
[p. 424[p. 424--25]25]
The changes in the Charter is justified by the
following events:
The number of member states has tripled; [192]
The original ideological conflict between
capitalism and socialism, between East and West,
has been substituted by the conflict of interest
between industrialized and non-industrialized
countries, between North and South.
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Special CommitteeSpecial Committee
[Textbook, p. 129][Textbook, p. 129]
In 1974, the General Assembly created a
Special Committee for the United Nations
Charter and for Strengthening the Role of
the Organization.
There were many and varied proposals for
changes submitted to the Committee.
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Suggestions for changesSuggestions for changes
[p. 425][p. 425]
(1) Enforcing the role of the Assembly (where the
third world states have an overwhelming
majority)(2) Enlarging the Security Council in order to
guarantee greater representation to the Third
World Countries;
(3) Abolition or limitation of the veto (or extending
the veto in order that countries representing
different geo-political areas might enjoy it),
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Any changes possible?Any changes possible?
For the first time in its history, the UN held theSummit of World Leaders together with the 60th
UN General Assembly Annual Meeting andproposals for UN reforms were discussed.
It seems very unlikely that any radical changes inthe structure of the United Nations will be made in
the near future. The attitude of the permanent members of the SC
is decisive. They have the veto on anyamendments or revision, and they do not seemvery inclined to change the existing rules.
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5.1.2 Purposes and principles of5.1.2 Purposes and principles of
the UNthe UN [pp. 425[pp. 425--27]27]
Article 1 [Purposes]
To maintain peace and security is the primary and
the overriding purpose and to that end: to takeeffective collective measures for the preventionand removal of threats to the peace, and for thesuppression of acts of aggression or other breaches
of the peace, and to bring about by peaceful meansand in conformity with the principles of justiceand international law, adjustment or settlement ofinternational disputes [Article 1(1)]
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The other purposes include:
- to develop friendly relations among
nations based on equal rights and self-determination of peoples[Article 1(2)], and
- to achieve international cooperation in
solving international problems and inpromoting respect for human rights and forfundamental freedoms. [Article 1(3)]
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Article 2 [Principles]
(1) The Organization is based on the principle of
sovereign equality of all its Members.(2) All Members shall fulfil in good faith the
obligations assumed by them in accordance withthe present Charter.
(3) All Members shall settle their internationaldisputes by peaceful means in such a manner thatinternational peace and security, and justice, arenot endangered.
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Basic PrinciplesBasic Principles [Cont.][Cont.]
(4) All Members shall refrain in their internationalrelations from the threat or use of force against the
territorial integrity and political independence ofany state, or in any other manner inconsistent withthe Purposes of the United Nations.
(5) All Members shall give the UN every assistancein any action taken in accordance with the presentCharter, and shall refrain from giving assistance toany state against which the UN is takingpreventive or enforcement action.
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Basic PrinciplesBasic Principles [Cont.][Cont.]
(6) The Organization shall ensure that states whichare not Members of the United Nations act
accordance with these Principles so far as may benecessary for the maintenance of internationalpeace and security.
(7) Nothing contained in the present Charter shallauthorize the United Nations to intervene inmatters which are essentially within the domesticjurisdiction of any state; but this principle shallnot prejudice the application of enforcementmeasures under Chapter VII.
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5.1.35.1.3 Collective Security SystemCollective Security System
[pp. 427[pp. 427--29]29]
There are two basic characteristics of the UN:
(1) The Organization is based on collective
security system; and
(2) Great power unity is the foundation stone of
the Organization.
Reference: Inis L. Claude, Jr. ,Sw
ords intoPlowshares: The Problems and Progress of
International Organization, 4th.ed., 1984.
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Collective Security systemCollective Security system
Two main concepts to maintain peace and avoid war:
(1) Balance of power [practised after the congress of
Vienna, 1815; the Concert of Europe; the essenceis : there must be 2 or 3 powerful states oralliances whose powers are almost equal; nosingle State or bloc is allowed to become the mostpowerful];
(2) Collective security [practised after the WorldWar I; believed to be superior to balance of powerconcept; started with the League of Nations; andcontinued with the UN].
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Collective Security systemCollective Security system [Cont.][Cont.]
The original idea of collective security was thatany state which started an aggressive war would
be opposed by the rest of the world. All thirdparties would come to the assistance of a victim ofaggression. The motto was: war against one iswar against all.
It is mainly designed to prevent or suppressaggression by presenting to potential aggressorsthe credible threat and to potential victims ofaggression the reliable promise of effectivecollective measures.
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Subjective requirementsSubjective requirements
The modern concept of collective security
depends upon a positive commitment to the
value of world peace by the greatest mass of
States.
Another requirement of collective security
is that it functions impartially. It is to bedirected against any aggressor, on behalf of
any violated State.
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Objective requirementsObjective requirements
The objective requirements of collective
security are:
(a) the existence of several powerful States of
roughly equal strength (the concentration of
power in a very few major States is the least
favourable situation); and(b) the assumption of partial disarmament.
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Collective Security systemCollective Security system [Cont.][Cont.]Strengths of the CharterStrengths of the Charter
[p. 428][p. 428]
The Charter of the UN is a more satisfactoryconstitutional basis for a collective security
system than the Covenant of the League ofNations.
(1) Comprehensive prohibition of the threat or useof force [Art. 2(4)];
(2) More elaborate and ambitious provisions forsanctions [Arts. 39-50];
(3) Enforcement power is entrusted to a single body:the Security Council [Arts. 24, 25 and 39].
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Collective Security systemCollective Security system [Cont.][Cont.]
Weaknesses of the CharterWeaknesses of the Charter[p. 429][p. 429]
The Charter falls significantly short of providingan ideal institutional system for the realization of
collective security.(1) No armed forces at the disposal of the UN (Art.
43 has become a dead law);
(2) No assurance for disarmament, which is a basic
prerequisite of collective security system;(3) The Security Council, enforcement arm of the
UN, is founded on the great Power unanimity[Art. 27] (Veto power is given to the Big Five).
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2.42.4 The United Nations SystemThe United Nations System
[Textbook, pp. 430[Textbook, pp. 430--31]31]
[Article 7]
There are six principal organs of the United
Nations: the General Assembly, the SecurityCouncil, the Economic and Social Council, theTrusteeship Council, the International Court ofJustice, and the Secretariat.
The United Nations system consists of the UNproper (the six principal organs) constituting itscenter, linked up with seventeen SpecializedAgencies(e.g. the ILO, the IMO, the WHO, theIMF, the IBRD).
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3.3. THE SECURITY COUNCILTHE SECURITY COUNCIL[Textbook, p. 436][Textbook, p. 436]
Composition [Article 23]
- The Security Council consists of 15
members of the United Nations.
- There are five permanent members: China,
France, the USSR, the UK, and the USA.
- The GA elects ten other members for 2
years term to be non-permanent members.
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3.13.1 Voting Procedure and the vetoVoting Procedure and the veto
[[Article 27]Article 27] [Textbook, p. 437][Textbook, p. 437]
1. Each member of the SC shall have one vote.
2. Decisions of the SC on procedural matters shall
be made by an affirmative vote of nine members.
3. Decisions of the Security Council on all other
matters [i.e. substantive matters] shall be made by
an affirmative vote of nine members including the
concurring votes of the permanent members;
provided that, in decisions under Chapter VI, a
party to a dispute shall abstain from voting.
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Veto powerVeto power
The effect of Article 27(3) is that each
permanent member of the Security Council
has a veto on non-procedural orsubstantive questions.
The term veto is a Latin derivative which
means I forbid.
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Criticism against the vetoCriticism against the veto
The veto was born with a bad name. It was
bitterly opposed by small countries at San
Francisco although these countries couldnot reject the thesis that the United Nations
could function effectively only with all the
great powers as members.
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Criticism against the vetoCriticism against the veto [Cont.][Cont.]
Although the concept of great power unanimity isthe foundation stone of the UN, the unity had
collapsed immediately after its emergence. The world was divided into two power blocs: the
Western Bloc headed by the USA and theCommunist Bloc led by the USSR.
The period between 1946 and 1989 is called theCold War due to the bitter rivalry between thetwo blocs in all matters short of engaging in actualhostilities.
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Criticism against the vetoCriticism against the veto [Cont.][Cont.]
If a draft resolution was submitted to the SC by
the Western Bloc, the Communist Bloc would
veto it and vice versa. The SC during the Cold War period, therefore,
was in effect paralyzed by the use of vetoes by the
permanent members.
The veto has frustrated the Security Council s
enforcement power which is the core of the
collective security system of the United Nations.
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Criticism against the vetoCriticism against the veto [Cont.][Cont.]
Because of the veto, the SC was unable to take
enforcement action in many crises and major
incidents which might even be escalated to theThird World War.
The only major incident during the Cold War, in
which the SC could decide to take action
involving armed forces was the Korean War andthat was in fact possible due to the absence of the
USSR in the SC meetings.
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3.23.2 Functions and powersFunctions and powers
Article 24
1. In order to ensure prompt and effective action by
the UN, its Members confer on the SC primaryresponsibility for the maintenance of internationalpeace and security, and agree that in carrying outits duties under this responsibility the SC acts ontheir behalf.
In discharging these duties the SC shall act inaccordance with the Purposes and Principles of theUN.
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Article 25
The Members of the United Nations agree to
accept and carry out the decision of the SecurityCouncil in accordance with the present Charter.
This article clearly indicates that decisions(resolutions) of the SC are mandatory and binding
on the member States.
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3.33.3 Enforcement ActionEnforcement Action
Chapter VII (Articles 39 to 50)Chapter VII (Articles 39 to 50) [pp. 442[pp. 442--45]45]
Article 39
The SC shall determine the existence of any threat
to the peace, breach of the peace, or act of aggression and shall make recommendations, ordecide what measures shall be taken in accordancewith Articles 41 and 42, to maintain or restoreinternational peace and security.
- There are two types of action:
- (1) Action not involving armed forces (economicsanction) [Art. 41]; and
- (2) Action involving armed forces [Art. 42].
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Action not involving armed forcesAction not involving armed forces
Article 41
The Security Council may decide what measures
not involving the use of armed force are to beemployed to give effect to its decisions, These
may include complete or partial interruption of
economic relations and of rail, sea, air, postal,
telegraphic, radio, and other means of communication, and the severance of diplomatic
relations.
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Action involving armed forcesAction involving armed forces
Article 42
Should the Security Council consider that
measures provided for in Article 41 would
be inadequate or have proved to be
inadequate, it may take such action by air,
sea, or land forces as may be necessary tomaintain or restore international peace and
security.
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The issue of establishing the UNThe issue of establishing the UN
armed forcesarmed forces
Article 43
1. All Members of the UN, undertake to
make available to the Security Council,
in accordance with a special agreement or
agreements, armed forces, assistance, and
facilities, necessary for the purpose ofmaintaining international peace and
security.
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The issue of establishing the UNThe issue of establishing the UN
armed forcesarmed forces [Cont.][Cont.]
Article 47
1. There shall be established a Military Staff
Committee to advise and assist the SC on allquestions relating to the SCs military
requirements, and the employment and
command of forces placed at its disposal.
2. The Military Staff Committee shall consist of the
Chiefs of Staff of the permanent members of the
SC
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The issue of establishing the UNThe issue of establishing the UN
armed forcesarmed forces [Cont.][Cont.]
The SC directed the Military Staff Committee to
examine Article 43 from a military point of view.
In 1947, the Military Staff Committee presented areport but which clearly proved that it was
impossible to reconcile the differences among the
permanent members.
Member states have never made any of the special
agreements envisaged in Article 43 and thus the
Article remains a dead letter.
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Practice duringPractice during the Cold War:the Cold War:
The Korean WarThe Korean War[1950][1950]
In 1950, North Korean (communist) armed forcesinvaded South Korea.
The SC adopted a resolution asking memberStates to send forces to repel the aggression undera unified command. [16 States sent armed forces].
The Resolution was adopted with the concurring
votes of the four permanent members, while theUSSR was absent from the meeting.
The constitutionality of the resolution wasquestionable.
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Practice after the Cold War:Practice after the Cold War:
Iraqi invasion of KuwaitIraqi invasion of Kuwait [1990][1990]
On 2 August, 1990, Iraq forces invaded Kuwait.
By resolution 660, the SC demanded that Iraq
withdrew all its forces from Kuwait. Iraq failed toobserve it and annexed Kuwait as part of its
territory.
On 29 November, the SC adopted Resolution 678,
acting under Chapt. VII of the Charter, authorizedmember States cooperating with Kuwait, to use all
necessary means to implement SC resolutions.
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Iraqi invasion of KuwaitIraqi invasion of Kuwait [1990][1990] [Cont.][Cont.]
When the deadline passed, the coalition forcesunder the leadership of the United States, began
the Operation Desert Storm to attack Iraq. It is arguable that the SC was not exactly acting
under Chapter VII, according to whichenforcement measures will be under the control ofthe SC.
The broad discretion given to the coalition forceswithout any control by the SC has led toaccusations that the SC was hijacked by the US.
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NATO intervention (bombing) in KosovoNATO intervention (bombing) in Kosovo
(1999)(1999)
[pp. 449[pp. 449--50]50]
US justification: Humanitarian intervention.
Rebuttal: Principle of non-intervention is a well
established rule of customary IL. Let alone States,even the UN cannot intervene in a domestic matterof a State [Art. 2(7)]. But the proviso is that theUN may intervene if it is necessary to maintaininternational peace and security (i.e. if there is anauthorization by the SC under Chapt. VII).
Therefore, a single State or a group of States has noright to use force to intervene even onhumanitarian ground.
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AfterSeptember 11, the Rise ofAfterSeptember 11, the Rise of
Unilateralism and the future of the UNUnilateralism and the future of the UN
[See Chapt. 17, pp. 523[See Chapt. 17, pp. 523--32]32]
The reactions of the US to September 11 terroristattacks on World trade Centre:
First, the US used military force in Afghanistan(2001) without the authorization of the SC,alleging that the Taliban Government harbouredand gave safe havens to Al Qaeda terrorists.
Secondly, the US invaded and occupied Iraq(2003), again without the authorization of the SC,and deposed Saddam Hussein, alleging that Iraqhad links with Al Qaeda and that Saddam Hussein,with stockpiles of WMDs, was a dangerous threat
to the US and its allies.
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US attack on AfghanistanUS attack on Afghanistan (2001)(2001)
[[See pp. 524See pp. 524--27]27]
Two main justifications invoked by the US:
(1) It was an act of Self-defence.
Rebuttal: According to Art. 51 of the Charter,there must be an armed attack by a State. InSeptember 11 incident, the attack was made byindividual terrorists, none of whom were Afghans.
(2) It was a war on terrorism.Rebuttal: No universally accepted definition of
terrorism. In the absence of authorization by theSC, no State can use force against another State on
the ground of failure to suppress terrorism.
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US invasion and occupation of IraqUS invasion and occupation of Iraq
(2003)(2003) [pp. 527[pp. 527--30]30]
Three main justifications made by the US.
(1) WMDs threat to peace and security.
Rebuttal: It was a false accusation proved to beuntrue. Even if it was true, then there must be aresolution of the SC (under Chapt. 7) to thateffect and to take action against Iraq.
(2) Self-defence (anticipatory); Iraq was a threat toUS (and Israel) and in anticipation of attack byIraq, the US could attack first as a self-defence.
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US invasion and occupation of IraqUS invasion and occupation of Iraq
[Cont.][Cont.]
Rebuttal: Anticipatory self-defence is not legal
under IL by virtue of the requirement under Art.
51 of an armed attack.(3) Regime change; US attacked Iraq to help Iraqi
people to taste the fruits of democracy.
Rebuttal: No State can use force against another
State to change its government. This is a blatant
violation of two most sacred principles of IL:
sovereigntyand self-determination of a people.
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Recent Israeli invasion ofLebanon (2006)Recent Israeli invasion ofLebanon (2006)
Arrest by Hizbollah of two Israeli soldiers;
Justification: Self-defence against terrorists.
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CommentsComments- In each major incident discussed above, the use of
force by the US was contrary to international law.
- The US, taking advantage of the position as thesole super-power, bypassed the SC, ignored theUN, and used force on its own.
- These cases are clear indications of the failure of
the UN enforcement machinery in the context ofthe uni-polar world.
- What then is the solution? This is a food forthought for every international lawyer andpolitical scientist.