Authorizing the Member States to recourse Authorizing the Member States to recourse to force. to force.

Theory and Practice.Theory and Practice.

INTRODUCTION

Art 43 §1:

All Members of the United Nations, in order to contribute to the maintenance of international peace

and security, undertake to make available to the Security Council, on its call and in accordance with a

special agreement or agreements, armed forces, assistance, and facilities, including rights of passage,

necessary for the purpose of maintaining international peace and security.

I. ENFORCEMENT MEASURES IN THE CHARTER SYSTEM

A. CHAPTER VII PROVISIONS: BASIS FOR THE USE OF FORCE• Chapter VII envisaged a step-by-step system in which the use of force should

only be used after other means have been unsuccessful.

• Art 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. Such action may include

demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”

A. CHAPTER VII PROVISIONS: BASIS FOR THE USE OF FORCE

Art 51: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an

armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to

maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be

immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security

Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore

international peace and security.”

B. THE SECURITY COUNCIL’S POWER TO INTERPRET PROVISIONS RELATING TO IT

“(…)the Court considered that it could not be said that the Charter had left the Security Council

impotent in the face of an emergency situation when agreements under Article 43 had not been

concluded.”-ICJ, AO, 20 July 1962, Certain Expenses of the United

Nations

II. THE EVOLUTION OF AUTHORIZATION OF THE USE OF FORCE BY THE SECURITY COUNCIL PRACTICE

A. THE GULF WAR: RESPONSE TO AGGRESSIONFACTS:

• 2 August 1990: Iraq invades Kuwait

• Same day, the SC adopts R660 which issues an order to Iraq “Demands that Iraq withdraw immediately and unconditionally all its forces to the positions in which they were located on 1 August 1990”.

• R661, 6 August 1990: embargo.

•R678 29 Nov 1990= Authorization to use force. “Authorizes Member States (..) unless Iraq on or before 15 Jan 1991 fully implements (…) the above-mentioned resolutions, to use all necessary means to uphold and implement R660 and all subsequent relevant resolutions and to restore international peace and security in the area”.

B. YUGOSLAVIA : HUMANITARIAN INTERVENTIONFACTS:• 25 September 1991, SC R713: the crisis constitutes a threat to peace

• 30 May 1992, SC R757: adoption of an embargo and of coercive measures

• 13 august 1992, SC R770: spoke of measures to facilitate humanitarian assistance, and worded to allow US support of the operation without UN command of the operation

• 31 March 1993, SC R816: authorized no fly zone

• 6 May 1993, SC R824: instituted “safe areas”

• 14 June 1993, SC 836: authorized UNPROFOR to use all means to protect safe areas and MS all necessary actions to support UNPROFOR.

C. HAITI 1994: PROTECTING DEMOCRACY?

Facts:• December 1990, Jean-Bertrand Aristide is over-whelmingly elected President.

•29 September 1991, coup d’Etat led by Army General Raoul Cédras takes place, and Pr. Aristide is sent to exile.

•Reaction from the OAE (Organization of American States), and from the GA R46/7 11 October 1991.

•SC’s first resolution 841, 16 June 1993, decides to make “universal and mandatory the trade embargo recommended by the OAS”

•SC R917, 6 May 1994: coercive measures that don’t involve the use of force.

•SC, R940, authorization to recourse to force. “Authorized MS to form under unified command and control and in this framework, to use all necessary means to facilitate the departure from Haiti the military leadership (…)”

III. CONCLUSIONS

A.THE ‘THIRD WAY’ AND FLEXIBLE PRAGMATISM

- The UN has developed a new mechanism to “fill the gap” between the collective security system and situations where collective self-defense cannot be applied.

- Failure of 43-48 system, rising expectations coupled with State reluctance to act means that “flexible pragmatism” and a case-by-case basis for action become ideology behind SC actions

- We’re in presence of a “pseudo-multilateralism” by replacing unilateral violence with multilaterally authorized enforcement.

DEBATEArt 51

« There is a higher degree of collective security if there is a centralized structure, but with the

limitation of self defense (…) Self-defense is the minimum requirement that must be permitted. »

Kelsen.

Political interest key in the collective security system"Without power, security is just a word. The design of a realistic international security system cannot ignore how power is actually distributed". W.M.

Reisman

B. SLOPPY LEGAL JUSTIFICATIONS OR A WIDER INTERPRETATION OF THE CHARTER?

- Increasing lack of references to legal basis of action, instead only reference to previous resolutions.

- Careless and inconsistent practice, lack of discussion of legal basis of actions. Only conclusion can be that in States opinio juris, ‘words don’t matter’.

- Could be seen as a regard that there is no need to justify by trying to fit action into “Procrustean bed” of Ch. VII, instead just in fitting with aims of Charter.

C. THE ABSENCE OF A CENTRALIZED ENFORCEMENT MECHANISM AND POLITICAL PRESSURES

Lack of art 43-48 mechanism means need to rely on States’ willingness to act. As in Yugoslavia crisis, this willingness may not be forthcoming nor only based on interests of maintaining peace & security, but on national interests and political willingness.

D. STATE JUSTIFICATIONS REINFORCING THE ROLE OF THE UNKosovo ’99: treated as exceptional situation; States still worry about keeping to the Charter framework: does this in fact strengthen role of the UN?