The Maintenance of Peace and Security: The Cooperation between the Security Council and Regional Organisations

The Maintenance of Peace and Security: The Cooperation between the Security Council and Regional Organisations

This essay provides a critical discussion of the functions that the Security Council had wielded for the maintenance of the peace and security according to the Charter of United Nation. The essay now begins by exploring the role of the Security Council within the international community. After that it discusses how the Council can exercise its functions to maintain international peace and security among States cooperating with the regional organisations.

According to the International Criminal Tribunal of the Former Yugoslavia (ICTY), “the Security Council is an organ of an international organisation, established by a treaty which serves as a constitutional framework for that organisation”.^[1] In other words, the Security Council is an organ of the United Nations created since its establishment in 1945. Article 23, paragraph 1 of United Nation Charter explicitly explains that:

“the Security Council shall consist of fifteen Members of the United Nations. The Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America shall be permanent members of the Security Council. The General Assembly shall elect ten other Members of the United Nations to be non-permanent members of the Security Council, due regard being specially paid, in the first instance to the contribution of Members of the United Nations to the maintenance of international peace and security and to the other purposes of the Organisation, and also to equitable geographical distribution”.^[2]

It is important to note that the Article cited above was amended in the early 1960s by a 1963 General Assembly resolution no. 1991-XVIII (let. A)^[3]. Its modification entered into force two years later and precisely in 1965.^[4] Through the resolution quoted above, the number of Council Members increased from eleven to the current number which is fifteen.

The fifteen Council Members, according to Article 24 of the UN Charter, have assigned the Security Council an important responsibility which is the maintenance of international peace and security. This purpose could be achieved by the Security Council using the powers that the Charter recognised to it.^[5] These powers are explicitly provided by Article 24, paragraph 2 which says that:

“the specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII”.^[6]

In my opinion, it is important to pay attention to what concerns the difference between the powers granted to the Security Council by Chapter VI and those granted by Chapter VII of the United Nations Charter. Chapter VI provides rules concerning the conciliatory function that the Council can perform. Indeed, Article 33 says that:

“the parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means”.^[7]

As it can be seen reading the provisions cited above, the power recognised to the Security Council under Chapter VI can be exercised in case an issue arose among Parties becomes potentially dangerous for the maintenance of international peace and security. Consequently, according to Article 33 cited above, the Security Council, encouraging the Parties involved in a dispute to solve it, acts as a peacemaker. Indeed, as it has been affirmed by the author Conforti, in this case the United Nations Charter gives the States the power to settle the dispute. Therefore the Council’s action is just marginal, potentially enforceable “when it deems necessary”.^[8]

By, contrast Chapter VII of the United Nations Charter provides rules relating the material actions that the Council could take in order to restore peace when the peace has been breached or threatened. It can be noticed that this Chapter distinguished two hypothetical types of action. The first one concerns measures that do not involve the use of armed force and that can be applied, under direction of the Security Council, by United Nations Members. According to Article 41, the first type of action “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”.^[9] The second type of action concerns the use of armed force in case of the measures mentioned in the previous Article, would not be appropriate to maintain or restore international peace and security. Indeed, Article 42 provides that:

“should the Security Council […] 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”.^[10]

It can be seen that, differently from Chapter VI, Chapter VII provides that the power granted to the Security Council can be wiled in case of ascertained threat to the peace, breach of the peace or act of aggression.^[11] According to Article 39 of the United Nations Charter, the right to determine when it is ascertained the existence of the threat to the peace, breach of the peace or act of aggression, is reserved to the discretionary of the Security Council.^[12] From the analysis of Chapter VII of the United Nations Charter, it can be seen that, compared to Chapter VI, the Security Council has a primary role which is to act against the Parties who have originated the crisis.^[13]

The different role that the Council can plays under the Chapters analysed above, determines the instruments that it has available to pursue its aim. Under Chapter VI, the United Nations Charter, recognises to the Security Council the possibility to adopt a recommendation. By this instrument, the Council suggests the Parties “appropriate procedures or methods of adjustment”^[14] to settle the dispute. According to Magliveras, it is important to highlight that the measures indicated in the recommendations potentially adoptable by the Security Council under Chapter VI, could be not followed by the Parties concerned. This situation could happen because the instrument of the recommendation has not binding force.^[15] A contrary opinion has been expressed by the International Court of Justice. The said Court suggests that:

“it is not possible to find in the Charter any support for the view that only enforcement measures adopted under Chapter VII of the Charter are binding”.^[16]

In other words, the Court, with its opinion, deemed that the measures mentioned by the recommendations provided under Chapter VI also have to be considered binding for the Parties concerned.

By contrast, the instruments that the Council can wield under Chapter VII, can be obtained by a close reading of Articles 41 and 42 of the United Nations Charter. Article 41, provides that:

“The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures”.^[17]

This Article highlights the power by which the Security Council can addresses its decision directly to the Member States and, consequently, bind them. Moreover, according to Article 42 previously cited, the Security Council, in the case of the unsuccessful application of Article 41, can itself decide to take particular action. Under Chapter VII, therefore, the United Nations’ organ mentioned above, has received the power not only to adopt a binding force decision, but also to decide when some measures have to be taken and consequently which types of measures should be more appropriate to deal with a specific situation.^[18] In other words, the main difference between Chapters VI and VII is that the Security Council, under Chapter VII, may impose measures on States that have mandatory legal force, and, therefore, do not need to depend on the consent of the States involved. However, in order to act as described above, the Security Council has to determinate that a particular situation represents a threat or breach of peace.^[19]

The Chapters explored above, have not expressly cleared the methods by which the Security Council applies such measures. In order to make this point clear, Sarooshi said that it is important to take into account the economic or political sanctions that the Security Council, in order to maintain the international peace and security, imposed in the past against State or non-Sate entity.^[20] Sarooshi’s statement implies that, to ensure the application of the sanctions mentioned above, the Council has cooperated with UN organs, UN Members States, and with regional arrangements and agency.

The existence of the regional arrangements and agency, has been explicitly recognised under Chapter VIII of the United Nation Charter. As affirmed by Zwanenburg, the Chapter cited above can be considered the legal framework “between the regional arrangements and the United Nations in the maintenance of international peace and security”.^[21] In fact, Article 52, which opens the cited Chapter, stated that:

“nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations. The Members of the United Nations entering into such arrangements or constituting such agencies shall make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council. The Security Council shall encourage the development of pacific settlement of local disputes through such regional arrangements or by such regional agencies either on the initiative of the states concerned or by reference from the Security Council”.^[22]

It is important to note, based on this statement, that Article 52 recognises and supports organisations created at regional level that could be used in the settlement of local disputes arose between States that are their member. Moreover, in my opinion it is important to underline that, during the San Francisco Conference in 1945, the delegates used the broader expression, ‘regional arrangements and agency’, in order to make the provisions of the Article 52, applicable to a large number of regional organisations.^[23] According to Zwanenburg, the phrase, ‘regional organisations’, is often used in practice by States Member and “appears to be used as a shorthand for the regional arrangements and agency”.^[24]

[...]

^[1] Prosecutor v. Duško Tadic Case No. IT-94-1-I, 1995, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, Par. 28.

^[2] United Nations Charter, Article 23, www.un.org.

^[3] Resolution no. 1991-XVIII (let. A), 1963, General Assembly, www.un.org/Depts/dhl/resguide/resins.htm.

^[4] E. Schwelb, “Amendments to Article 23, 27 and 61 of the Charter of the United Nations” 1965, American Journal Of International Law, p. 834.

^[5] See note 2, Article 24.

^[6] See note 5.

^[7] See note 2, Article 33.

^[8] B. Conforti, “The Law and Practice of the United Nations”, 1995, Martinus Nijhoff Publishers, pp. 149-154

^[9] See note 2, Article 41.

^[10] See note 2, Article 42.

^[11] See note 2, Article 39; See also N. D. White, “Keeping The Peace: The United Nations and the Maintenance of International Peace and Security”, 1997, Manchester University Press, pp. 32-63.

^[12] See note 10.

^[13] J. Schott, “Chapter VII as Exception: Security Council Action and the Regulative Ideal of Emergency”, 2007, Northwestern Journal of International Human Rights, Vol. 6, pp. 24-49.

^[14] See note 2, Article 36.

^[15] K.D. Magliveras, “Exclusion from Participation in International Organisations”, 1999, Martinus Nijhoff Publishers, p. 113, See also J. Werksman, “Greening International Institution”, 1996, Earthscan Publications Limited, pp. 11-20.

^[16] Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276, 1970, Advisory Opinion, ICJ Reports 1971, pp. 52-53, www.icj-cij.org.

^[17] See note 9.

^[18] G. Kirk, “The Enforcement of Security”, 1946, Yale LJ, Vol. 55, pp. 1081-1089.

^[19] M.J. Matheson, “Possible Extension of the UN Mandate for Iraq: Options”, 2008, USGPO, pp. 1-6, www.gpo.gov.

^[20] D. Sarooshi, “The United Nation and the Development of collective Security: the Delegation by the UN Security Council of its Chapter VII Power”, 1996, Clarendon Press Oxford, pp. 3-4.

^[21] M. Zwanenburg, “Regional Organisation and the Maintenance of Peace and Security”, 2006, JCSL, p. 487.

^[22] See note 2, Article 52.

^[23] C. Walter, “Security Council Control over Regional Action”, 1997, Max Plank Year Book of United Nations Law, Vol. 1, p.131

^[24] See note 21, p. 491.