AWE- INSPIRING FLAWS OF SECURITY COUNCIL By Dr. C.P. Gupta Dr. Sunil Kumar

AWE- INSPIRING FLAWS OF SECURITY COUNCIL

 

*Dr. C.P. Gupta **Dr. Sunil Kumar

 

“Trusting his images, he assumes their relevance mistrusting my images”

Robert graves

Security Council in Itself is a unique build in order to fulfill the pious objective of the United Nation Organization. Although the whole framework is developed as a byproduct of various treaties/agreement/conventions of the universal countries but being poor obligations having no sanction behind, it has not been able to achieve so much success as desired by the innovation formula accepted by the developed and developing Countries the world at large.

The Security Council is composed of 15 member States of the UN. There are five permanent members of the Council (USA, Russia, UK, France, and China and 10 which are elected by the Assembly for two-year terms (Article23). Its competence is mainly though not exclusively limited to issues concerning the maintenance of international peace and security, for which it bears primary responsibility within the UN system (Article 24). Although each member has one vote, decisions on non-procedural matters must be adopted by the affirmative vote of nine members and include the concurring vote of the permanent members who therefore possess a veto with respect to substantive decisions. Abstentions however are not deemed to be vetos.[1]The powers of the Security Council in the areas of peace and security dispute settlement are explored in Chs 19 and 21. It suffices here to note that the Council has the power to adopt decisions which are binding on members of the UN[2]

The debate about the limits of the Security Council Enforcement power dates back to the Dumbarton Oaks proposals and the travaux préparatoires  of the UN Charter. The Security Council was meant to be a political organ with broad police-like functions, endowed with the primary responsibility to maintain international peace and security, which is the main purpose of the United Nations. The UN itself was likewise structured at the outset to be ‘a universal instrument of geopolitics[3]. The post-Co1d War’ revival of the debate was not only due to the impressive quantitative[4] and qualitative[5] reactivation of the Security Council, but it was also seen as an essential component of the increasing endeavors to foster the rule of law in international relations. Although the question of legal limits on the Council’s powers is more properly discussed in conjunction with the question of judicial review, these are two separate issues[6]. Indeed, an ultra vires act of the Council can arguably have distinct legal consequences[7], notwithstanding its judicial review.

To sum up the main points of the debate and then focus on the Council’s controversial involvement in post-conflict Iraq. Part One will trace the legal basis for such restraints in the UN purposes and jus cogens norms. As a case-study, Part Two will then consider whether Security Council resolutions on Iraq which had any legalizing effect upon the US-led war of March 2003; secondly they were impermissibly at variance with the interactional law of occupation; or and thirdly impinged upon the right of the Iraqi people to self-determination.

Security Council Enforcement Action and the Legal Basis of Such Restraints

The initial question is whether the Security Council is bound by the law or whether it is omnipotent. The answer to this question is that the Council is not sovereign; it is not above the law.[8] Despite it’s predominantly and par excellence political character and functions, it is still an organ of international organizations deriving its very broad powers from a treaty concluded by States. It is very unlikely that an organization based on the principle of sovereign equality of its Member States would confer unlimited powers to any of its organs.[9] This has been reaffirmed in the early jurisprudence of the International Court of Justice[10] and more recently by the International Criminal Tribunal of Yugoslavia Appeals Chamber in the Tadic case.[11]

It is also maintained that article 25 of the UN Charter serves as a specific legal basis for the Council’s obligation to respect the Charter. Under such interpretation of article 25, States should accept and carry out only those decisions of the Council which are intra vires and consistent with the Charter.[12] In the Namibia Advisory Opinion, the International Court of Justice found that the relevant Security Council decisions were adopted in conformity with the purposes and principles of the Charter arid in accordance with Articles 24 and 25; the decisions were ‘consequently binding on all States Members of the UN, which were thus under obligation to accept and carry them Ouc.[13]

 The Substantive Limits

Indeed, it is article 24 of the Charter and the very purposes and principles of the UN to which it is referring that can serve as workable limits on the SC power.[14] Even if the UN purpose are ambiguous, conflicting and indeterminate,[15] the Council has to act in accordance with them and, thus, strike in all cases the concrete and proper balance between the primary goal of maintaining peace and security and the other UN purposes[16] This implies respect for core provisions of human rights[17] and humanitarian law[18] as well as the right to self-determination[19]and territorial integrity of States;[20] indeed, any violation of these would in all probability amount to a violation of a jus cogens norm.[21]

 The Power of the Security Council and Norms of International Law

“Law makes long spokes of the short stakes of men”William EmpsonInternational law as such is not the primary consideration when the UN is faced with issues of peace and security and adopts enforcement measures under its Chapter VII powers. In fact, international law is mentioned in Article I (1) of the Charter among the UN purposes but only with respect to the peaceful settlement of disputes. Indeed, fundamental rules of international law, such as the prohibition of the use of force, respect for State sovereignty or nonintervention do not apply in case of Chapter VII action. Yet, by virtue of Article 103 of the Charter binding Security Council decisions prevail only over treaty law, but not over customary law. Nevertheless, the Council is empowered to derogate temporarily from rules of both treaty and customary law, as long as it is acting under Chapter VII to maintain and restore international peace and security; this authority is inherent in the very nature of enforcement action and implicit in Chapter VII itself.[22] Under no circumstances, however, may the Council act in a way which would defeat the other purposes and principle of the UN, or override any other rules of jus cogens.

Until today, positions on concrete proposals could not be reconciled. Many states, among them the members of the African Group, seek an increase in both permanent and nonpermanent membership; they constitute a majority some delegations in particular Argentina. Canada. Italy, Libya. Mexico, Pakistan. and Turkey have supported an increase in nonpermanent membership only, and others like South Korea and Sweden propose a reform process in stages, the first stage being an enlargement limited to nonpermanent members. However, criteria and modalities for the election of nonpermanent members remain to be agreed upon. Proposals aiming at an introduction of new categories or types of Council membership, which had some importance in the early discussions of the Open-Ended Working Group, remain on the agenda but appear to enjoy very limited support Views are divided on how, if there is to be an expansion in permanent membership, such members should he elected, and whether formal criteria such as those contained in Article 23(1) should guide such an election. In the event that there is agreement on an increase in the permanent membership, an increase only by industrialized countries is widely regarded as unacceptable.

If one takes a general look at the proposals, the question of reform of the Security Council is first of all a North-South issue. The industrialized states of the Northern Hemisphere, which make up four of the five permanent members and to which, according to the 1963 allocation, are assigned three of the ten nonpermanent seats leaving aside the two Latin American seats, acknowledge that the increase in the general membership from fifty one in 1945 to 113 in 1963 to 191 in 2002 suggests that the number of Council seats should again be increased. However, they want to limit an increase in the overall membership of the Council, since any such expansion necessarily amounts to a certain restraint on their influence and, according to the official reasoning, might impede the Council’s ability to fulfill its mission speedily and effectively the “efficiency and effectiveness” argument. The developing nations of the Southern Hemisphere, by contrast, tend to promote a stronger increase in the Council’s membership in order to improve their representation on the body.

CONCLUSION

The contrasting of North and South holds good only in very genera1 terms, because there are numerous differences of opinion within the two camps and overlapping of views that give developed and developing nations some common ground. There is in particular, general agreement about the fact that the number of nonpermanent members should be increased and that the criteria contained in Article 23, (1) of the Charter should by and large remain valid. Different opinions exist as to whether additional criteria and, if so which should be applied and whether the chances of smaller states being selected for nonpermanent membership by their regional groups should be enhanced. Some delegations pointed to the lack of uniformity in the way regional groups select candidates and suggested that the selection procedures could be unified to ensure quality of treatment across regions. Proposals for a new distribution of sears among regional groups, and for a new definition of these groups, usually favor the developing countries and seek to reduce the number of European and Western seats. Other proposals intend to regularize the practice of selecting certain states more often for nonpermanent member ship. Views have also been expressed in support of, and against, Lifting the ban on immediate reelection of nonpermanent members.[23]

As regards the overall size of the Council after its reform, there was a certain convergence of positions. The figures most commonly quoted in the discussions of the Open-Ended Working Group seem to be between twenty and twenty-five, the lowest and highest figures being twenty and thirty. The African Group favors a Council of twenty-six members.

Already the George H. W. Bush administration had favored permanent membership for Japan and Germany, and President Clinton adopted this policy. Pointing to the two states’ “record of constructive global influence and their capacity to sustain heavy global responsibilities.” the U.S. representative even said in 1995 that the United States “enthusiastically endorses the candidacies of Japan and Germany” and that it “could not agree to a Council enlargement that did not result in their permanent membership.” The United States regards both countries as economically potent Western democracies that expect substantially to share the burden the United States has to carry in the post-cold War world. Very cautiously, the United States intimated that it could also agree to a permanent membership of other states if they were to enjoy universal support. The United States has, however, strictly opposed the idea of granting any developing country the right of veto.

For their part, Great Britain and France initially were reluctant to accept the idea of additional permanent seats. It was clear from the begin-fling that any such addition would give testimony to a relative loss of global power of the United Kingdom and France and might also increase Germany’s regional influence in Europe thus adding to the perceived, imbalance that was brought about by Germany’s reunification in 1990.However, in the 1990s both states became strong supporters of Germany and Japan’s candidacies. France later also decided to support India’s aspiration to become a permanent member. In this regard the welcome stapes taken by Prime Minister Mr. Narendra Modi are to be given a applauded and it will be befitting to hope for a golden morning in recent future.

“Not enjoyment, and not sorrow,

Is our  destined end or way

But to act, that each tomorrow

Find us further than today”

(H.W. Long fellow)

 

*LL.M., DLL, DCL, Ph.D., PDF, Department of law, University of Rajasthan, Jaipur, E-mail : drcpgupta97@gmail.com

[1] Legal Consequences for the Continued Presences of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971,p 16, paras 20-22

[2](Articles 24 & 25)

** Lecturer Govt. Law College, Ajmer

[3]Falk, ‘The United Nations and the Rule of Law’, 4 TLCP (1994) 625.

[4]Since 1990 the Security Council has adopted more than 900 resolutions as compared to the 646 resolutions it had adopted in the first forty-five years of its function.

[5]Acting under Chapter VII of the Charter, the Security Council has gone as far as, inter alia, to establish a Compensation Commission for Iraq.

[6]Skubiszewski, ‘The International Court of Justice and the Security Council’, in V. Lowe and M. Fitzmaurice (Eds.). Fifty Years of the International Court of Justice.

[7]For instance, this can be the case of the controversial ‘right of last resort’ of Member States to refuse, wider certain conditions, to abide by an ultra vires decision of the Council. Earlier proponents of this right include Virally, ‘L’ONU devant le droit’, 99 JDI (1972) 531; D. Ciobanu, Preliminary’ Objections Related to the Jurisdiction of the United Nations Political Organs (1975) 174. Contra Wright, ‘The Strengthening of International Law’, 98 RCADI (1959-III)125; Osieke, ‘The Legal Validity of Ultra Vires Decisions of International Organizations’, 77 AJIL (1983) 255.

 

[8]See, i.a., Pellet, ‘Peut-on et doit-on controller les actions du Conseil de Security?’, in SFDI (Ed.),Le Chapter VII de la charte des Nations Unies (1995) 233.

[9]Simma ‘From Bilateralism to Community Interest in International Law’, 250 RCADI (1994-VI)270.

[10]Conditions of Admission of a State to Membership in the United Nations (Article 4 of theCharter), ICJ Reports (1948) 64

[11]Prosecutor y. Tadic, No.IT-94-1-AR72, a para. 28 (‘the Security Council is an organ of aninternational organization, established by a treaty which serves as a constitutional framework for“ that organization. The Security Council is thus subjected to certain constitutional limitations,however broad its powers under the constitution may be’).

[12]See, eg., Schilling. ‘Die ‘neueWeltordnung’ und die Souveranitat der Mitglieder der Vereinten National’. 33 AVR (1995) 68, 94, 96; Zemanek,

[13]Legal Consequences for Stales of the Continued Presence of South Africa in Namibia (SouthWest Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Reports (1971) 53, at115 (emphasis added).

[14]See to that effect, J. Verhoeven, Droit international public (2000) 826; Angelet, ‘International Law limits to the Security Council’, in Gowlland-Debbas (Ed.), supra note 4, at 74-75.According to Frowein, Krisch, “Introduction to Chapter VII’, in B. Simma (Ed.), the Charter ofthe United Nations. A Commentary 2002) 710, UN purposes and principles ‘establishguidelinesrather than concrete limits for SC action’.

[15]Kciskennierni, The Police in the Temple — Order, Justice and the UN: A Dialectical View’, 6EJIL (1995) 327; Martenczuk, ‘The Security Council, The International Court of Justice andJudicial Review: What Lessons from Lockerbie?’, 10 EJIL (1999) 537.

[16]Cf. with respect to human rights, Paust peaceMaking and Security Council Powers: Bosnia-Herzegovina Raises International and Constitutional Questions’, 19 Southern Illinois ULJ (1994)141-142: Frowein, Krisch, supra note 1.2, at 711.

[17]See. i.a, Cohen-Jonathan.‘Le Conceal de Security et les droids de l’homme’, in J.-F.Flauss andP. Wachsmann (Eds., Le droit des organizationinternationals.Recueildetudes a la memoire de Jacques Schwob (1997) 40: de Wet, ‘Human Rights Limitations to Economic EnforcementMeasures under Article 41 of the United Nations Charter and the Iraqi Sanctions Regime’ 14  LJIL (2001) 279.

[18]See Gardam, ‘Legal Restraints Of Security Council Military Enforcement Action’, 17Michigan JIL (1996) 302; Reinisch, ‘Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions’, 95 AJIL(2001) 860-861.

[19]See infra notes 37—38 and accompanying text.

[20]See Bowett, The Impact of Security Council Decisions On Dispute Settlement Procedures’, 5EJIL (1994) 96; Herdegen, ‘The ConstitUtiOnalit0tt’ of the UN Security System’s 27 Vanderbilt HL (1994) 156.

[21]Gill, ‘Legal and some Political Limitations on the Power of the UN Security Council to Exercise its Enforcement Powers under Chapter VII of the Charter’, 26 NYIL (1995) III.

[22]See Gowiland-Debbas, ‘Security Council Enforcement Action and Issues of State Responsibility’, 43 ICLQ (1994) 78; Arangio-Ruiz.‘On the Security Council’s Law-Making’,133 Rivista dl DirittoInternazionale (2000) 627; Gill, supra note 19, at 62. Cf. Cohen-Jonathan,supra note 15. at 40.

[23]Article 23, paragraph 2 of the Charter.

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