APPRAISAL OF THE SECURITY COUNCIL AS MACHINERY FOR THE MAINTENANCE OF INTERNATIONAL PEACE AND SECURITY UNDER THE UN

APPRAISAL OF THE SECURITY COUNCIL AS MACHINERY FOR THE MAINTENANCE OF INTERNATIONAL PEACE AND SECURITY UNDER THE UN

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CHAPTER ONE 

GENERAL INTRODUCTION 

    1.1       Background of the Study

During the twentieth century, the human race experienced two world wars. These wars left humanity with some horrifying experiences. Thus, before the expiration of the Second World War, Winston Churchill the former Prime Minister of Britain and Franklin Delano Roosevelt,   the former President of the United States of America, were already in agreement with regard to the formation of an international organization which should be responsible for the maintenance of international peace and security. Sequel to this, leaders of the United States of America, United Kingdom, the Soviet Union and Nationalist China met in Moscow and Teheran with the intention of the formation of the United Nations[1][2]. However the United Nations was formed after its Charter was drafted at the San Francisco conference which was held in April - June 1944. This Charter took effect on 24th of October 1945 when the United Nations began its operation. The United Nations was therefore formed to “save succeeding generations from the scourge of war which twice in our lifetime has brought untold sorrow to mankind”.[3]

In this vein, the Charter of the United Nations (UN) states that one of its purposes is the maintenance of international peace and security. In order to achieve this, the organization was structured to take collective measures so as to prevent and remove threats to the peace and to suppress acts of aggression or other breaches of the peace and to bring about by peaceful means and in conformity with the principles of justice and international law, adjustment or settlement of international disputes which might lead to a breach of the peace.[4] From the foregoing, there is no doubt that the founding fathers of the organization designed the world body to be a sort of security system.

However, disagreement among the Security Council (hereinafter, the SC) especially the five permanent members[5]vitiated the UN collective security system which has given way to UN peacekeeping missions. Moreover, there are new threats to international peace and security which were not contemplated by the founding fathers of the UN. Thus, extreme violence within a state resulting to some trans-border effects, gross violation of human rights, international terrorism and nuclear proliferation have been considered by the UN as threats to international peace and security.

    1.2       Statement of the Problem

Under the Charter, the SC has the primary responsibility in the maintenance of international peace and security. The SC consists of fifteen members.[6] Out of these fifteen members, five are permanent members who enjoy the veto right. The reason for according them such exclusive right is that, since the weight of maintaining international peace and security rests on their shoulders, they must have the final say on how to carry-out this responsibility. Again, by virtue of the veto right, no member will be forced to pursue a course of action which the five permanent members are not in agreement with.[7] Thus, at the formation of the UN, the possibility of a division among the permanent five in the SC was foreseen.7 It is this division that has contributed to the malfunction of the collective security system as designed under the Charter.

Apart from the disagreement among the five permanent members of the Security Council, there are other challenges being faced by the UN in the maintenance of the peace and security. Thus, it is necessary to observe that the range of threats to international peace and security being addressed by the UN are wider than those contemplated by the founders of the organization at Dumbarton Oaks, Yalta and San Francisco in 1945.[8]

    1.3       Objectives of the Research

    The objectives of this study are;          

    (i)              To determine how far has the UN succeeded in maintaining international peace and

security.

(1)               To ascertain whether the primary responsibility of the SC in the maintenance of international peace and security under the Charter implies exclusivity.

(2)               To analyze what role, if any is given to the other organs of the UN in the maintenance of international peace and security.

(3)               To determine what options are available to the SC upon a determination that there is a threat to the peace, breach of the peace or an act of aggression.

    1.4       Significance of the study

(i) At the formation of UN, threat to international peace and security was mainly limited to inter-state disputes based on the experiences of the international community in the two world wars. Inter- state wars are no longer the basic threat to international peace and security. 

(2)               To this end, in an era where inter-state wars and acts of aggression have been reduced to the barest minimum, one could then question the relevance of the United Nations with regard to its basic mission of the maintenance of international peace and security.

(3)               The significance of this research is therefore, to highlight the notion that threat to international peace and security has undergone a considerable dynamics. Thus, what could constitute a menace to international peace and security is not limited to inter-state disputes.

    1.5       Scope of the Study

It is trite that the primary purpose of the UN is the maintenance of international peace and security. The Charter provides some means for the realization of this objective such as pacific settlement of international disputes and collective action in dealing with disputes and situations which pose serious threat to the peace, breaches of the peace, or acts of aggression.  The Charter also provides for an informal approach to international peace and security such as the emplacement of political, social and economic conditions conducive to international peace and security. However, it is to the former that this work is concerned. Therefore, this dissertation is primarily concerned with the action of the UN to disputes which are likely to endanger international peace and security. It also deals with the responses of the UN in the face of threat to the peace, breaches of the peace and acts of aggression.

    1.6       Methodology

In this research, we adopted a descriptive and a critical approach. The primary sources employed in this research include the Charter of the United Nations, Statutes, International Treaties and Conventions.  The secondary sources relied upon include case law, books, journal articles and legal periodicals.   

    1.7       Literature Review

The basic text for this work is the Charter of the United Nations. Article 1 outlines the purposes of the United Nations. The primary purpose of the organization is the maintenance of international peace and security. In order to achieve this, the United Nations is to take collective measures for the prevention and removal of threats to the peace and for the suppression of acts of aggression or other branches of the peace.

Article 24(1) places the primary responsibility for the maintenance of international peace and security on the Security Council. It also provides that the members of the UN are in agreement that in carrying out this responsibility, the Security Council acts on their behalf. In our humble view, the phrase “primary responsibility” is susceptible to interpretational problems. Thus one could ask if this primary responsibility of the Security Council in the maintenance of international Peace and Security implies exclusivity as regards other organs of UN especially the General Assembly.

In his work, The Charter of the United Nations:ACommentary, B. Simma outlines the different meanings of the term “primary responsibility”. Firstly it could mean that in principle, the organs charged with the maintenance of international peace and security under the Charter that is, the SC and the GA would act in parallel and concurrently but that in discharging its peacekeeping function in a given circumstance, the SC would be granted priority over the GA as regards the time of taking the first step.[9] Secondly the term may also be understood in a qualitative sense which means that the most important powers in the area of the maintenance of peace are placed exclusively on the SC.[10] It is our humble opinion that both meanings of the term “primary responsibility” are not correct as such literal interpretation is not consistent with the intendment of the Charter.

Therefore, the correct interpretation of the phrase primary responsibility is that offered by the following writers consulted in the course of the work. Hence for B. Simma ,the term “primary responsibility” means that in the realm of the maintenance of peace and security the SC enjoys priority over the GA not merely in terms of time and procedure, but that the SC has stronger powers than the other organs, namely the GA. This is of course without prejudice to the fact that the GA may also concern itself with such questions as the maintenance of international peace and security under Article 10 of the Charter.[11]He therefore concludes that, the Charter placing the primary responsibility for the maintenance of international peace and security on the SC means that the SC and the GA have a parallel or concurrent competence in this area but that the SC has an exclusive competence with regard to taking effective and binding actions when it comes to enforcement actions.[12]

Like Simma, J. G. Stake opines that although the primary responsibility for the maintenance of international peace and security is located in the SC, the GA is invested in this regard, certain facultative and permissive powers of consideration and recommendation.[13] Corroborating this point, A. Kaczorowska maintains that, although Article 24(1) of the Charter gives the UNSC primary responsibility for the maintenance of international peace and security, it does not exclude the UNGA from exercising a secondary and residual role.[14] In his views, Hossain opines that in the maintenance of global peace and security, the GA plays an important role especially when the SC is handicapped because of the veto of the five permanent members. However, he maintains that this residual power is narrowly interpreted as the GA does not have the power to make binding decisions in this regard.[15]

Similarly, Kelsen’s view is very insightful and consistent with the purpose of the United Nations. For him therefore, the Charter speaks in Article 24(1) of a primary responsibility and not of an exclusive responsibility of the SC. Thus, it does not prevent the GA from assuming a secondary responsibility in the maintenance of international peace and security in order to ensure prompt and effective action by the United Nations within its competence as determined by Articles 10 and 11 of the Charter. Thus a recommendation by the GA to members to a use of force could not be considered as a recommendation inconsistent with the purposes of the United Nations.16

According to K. Hossain,[16] A. Kaczorowska[17], D. Zaum,[18] and others, the restricted powers allotted to the General Assembly under the Charter has been-extended in the resolution adopted during the Cold – War.[19] This resolution which is known as the Uniting for Peace Resolution enables the General Assembly to play a new role in the collective security system. Thus,in a situation whereby the Security Council is deadlocked by a veto of one or more of its members, the General Assembly is empowered to act independently of the Security Council. Hence, that the General Assembly under the Uniting for Peace Resolution can authorize collective measures which include the recommendation of coercive measures for the maintenance of international peace and security.However it is the view of Kelsen which we are in sympathy with that, “the interpretation of the use of armed force may lead to serious conflicts between the General Assembly and the Security Council in Security matters.”[20]

Under the Charter, there are basically two approaches available to the SC in discharging its primary responsibility, namely peaceful settlement of disputes and enforcement measures. As regards the former most literatures[21]available have the major defect of not providing a detailed discussion on the subject matter. Some writers like A. Kaczorowska[22] and others who attempted a seemingly detailed discussion limited their treatment on the subject to the obligation of members of the UN to adopt the procedures outlined in the Charter. The role of the UN in this regard is not given a fair treatment. 

The collective enforcement measures outlined under the Charter are dependent in the

determination of the Security Council that there is in existence, a threat to the peace breach of the peace or act of aggression. Once this threshold is crossed, the provisions of Articles 40, 41, and 42 of the Charter can be put in place.  One obvious flaw in the provisions dealing with the enforcement measures is the lack of a definition as to what constitute threat to the peace, breaches of the peace and acts of aggression. The result of thislacuna is that the SC has been given a wide discretion in the matter. At least a working definition should have been attempted in order to guide the SC in this regard. And we make haste to say that such lacuna is prone to political maneuverability. 

For many authors such as T. G. Weiss et al,[23]J. M. Hamhimaki,[24] B. Simmaet al,[25] A. Kaczorowska,27 M. N. Shaw,[26] etc. the collective security system as envisaged by the Charter has not been realizable due to some obvious reasons as we shall see in the course of this work. In place of this, the UN has resorted to an alternative means of maintaining international peace and security which has come to be known as peacekeeping operations. The various authors consulted in the course of this work are in agreement that the concept of peacekeeping is not mentioned in the Charter. However, peacekeeping has become an improvised mechanism of confronting

threats to international peace and security.

Further, this dissertation identifies some challenges to international peace and security. Hence, for T.G. Weiss,29 M. J. Peterson,[27]R. Thakur,[28] J. M. Hanhimaki[29]etc, violations of human rights, international terrorism and proliferation of nuclear weapons are some of the challenges to the peace. In this connection, J. Crawford,[30] N. D. White,[31] B. Simmaet al,[32] E. Andankian,36 and others are of the opinion that the notion of threat to the peace has undergone a co[33]nsiderable evolution as it is no longer limited to the absence of the use of armed force.


[1] B. V. Rao, World History from early Times to AD 2000 3rd edn. (New) Delhi: Sterling Publishers Prt. Ltd., 2007) p.

[2]

[3] See the preamble of the Charter of the United Nations.

[4] See Art. 10 of the Charter 

[5] China, France, Soviet Union ( now Russia), the United Kingdom and the United States of America  

[6] China, France, Soviet Union ( now Russia), the United Kingdom and the United States of America, Angola, Chad, Chile, Jordan, Lithuania, Malaysia, New Zealand, Nigeria, Spain, Venezuela.      

[7] J. G. Starke, Introduction to International Law 10thedn. (New Delhi: Aditya Books,1994) p. 644 7Ibid  

[8] E. C. Luck, “A Council For All Seasons: The Creation of the Security Council and Its Relevance Today” in V.

Lowe et al (eds.),The United Nations Security Council and War (Oxford: University Press, 2008) p. 61. 


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