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Discuss how Chapter VII of the U.N. Charter is structured and meant to operate. Point to potential systematic weaknesses/strong points while suggesting improvements

Seminararbeit 2010 14 Seiten

Politik - Internationale Politik - Thema: Int. Organisationen u. Verbände

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Table of Contents

Introduction

1. Underlying aspects of the UN Charter and Chapter VII

2. Legitimacy of the Security Council under Chapter VII
2.1 Unlimited discretion of the Security Council in terms of article
2.2 Economic sanctions as opposed to military measures (Art. 41)
2.3 The use of force as an exception of the UN Charter (Art.42)
2.4 Self-defense as a sine qua non response to terrorism (Art. 51)

3. Critical remarks

Bibliography

Introduction

The purpose of this paper is to explore the question of whether the United Nations when conceiving the idea of a collective security system did put their major efforts in chapter VII of the UN Charter to realize their conception for a safer world. Its unequivocal that thereby the Security Council was vested with broad competences as any other organ of the UN and its empowerment with the responsibility to restore and maintain peace and security by using all necessary available means allowed it to have the "last say" in many conflicts and situations.

Shifting from an "idle position" in the Cold War to an expanding integrative role after the 90es the Council has made a significant jump in the reinforcement of its activities. Nevertheless the question arises as to how it has developed the powers conferred to it from the UN Charter especially Chapter VII when the Charter itself does not provide for many limitations to these powers. Conspicuously the Council has tried for the time being to encompass all its discretionary powers conferred to it from Chapter VII and in doing so it has from time to time trespassed the "threshold" of its authority. A particular attention has been thus dedicated to the controversial role and action of the Security Council in this respect, which as shall be discussed in the subsequent chapters has provided for a lot of discussions and criticism among international law actors.

In the attempt to give an overview of the structure of Chapter VII a special emphasis is put on the interpretation of certain articles like article 39, 41, 42 and 51, which put in motion the functioning of the Chapter and that of the Security Council, with the scope to elucidate the methods and effect stemming from their application. Hence some resolutions of the Security Council based on Chapter VII are taken into consideration in order to point out the textual problems emerging from the Charter and the extent to which the Council invokes them in its decisions. Due diligence has been afforded to use of force as an exception of the Charter by means of article 42 where the Security Council makes the authorization for resorting to this measure and self-defense as a second exception emanating from article 51 invoked from the states independently from the Council´s authorization but still limited in its substance.

1. Underlying aspects of the UN Charter and Chapter VII

The United Nations, as a successor of the League of the Nations and a result of the Second World War, was created to develop effective instruments for a collective security system. Its decisions other than those of the League, which relied on the idea of self-executing obligations, had to be legally binding on the member states. This formation with more complex mechanisms against aggression traces back to the gathering of the Soviet Union, United Kingdom, United States and partially China´s contribution at the Dumbarton Oaks Conference in 1944, which one year later was finalized in the UN Charter at the San Francisco Conference.[1]

Beyond the notions of a common security system that the Great Powers were offering to the international community, Eagleton has analyzed the nature of the organization as follows: "Even more than the League of Nations, the United Nations was the consequence of war and the manufacture of the victors. It was conceived in fear of the enemy and in resentment against those who had not helped against the enemy, and it was prenatally "marked" by this feeling."[2]This is one undeniable aspect of the functioning of the Charter swirled within the rigid interests of the Great powers since its conception.

Notwithstanding the ideas and the interwoven interests lying behind its emergence, the creation of the United Nations as a supranational system signed an outstanding achievement in the history of international law since it officially crowned the endeavors and willingness of the states for a common safer environment and thus turned a new page in the international relationships. The UN Charter subsequently met the expectations of the member states for ensuring peace among the nations, by means of which its main purposes were accurately prescribed in Chapter I, Article 1 (1):

"To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace...".[3]

Unanimously at the Dumbarton Oaks Conference and then at the San Francisco Conference the states agreed that the Security Council as "the heart of the organization"[4]was to be entrusted with the main responsibility of maintaining peace and security. Chapter VII which constitutes the cornerstone of the activities of the Council consequently envisioned the powers of the Council with respect to action in the case of threats to the peace, breach of peace or acts of aggression.

2. Legitimacy of the Security Council under Chapter VII

Chapter VII of the UN Charter provides the Security Council with the authority to maintain the collective security system by according it a far-reaching authority and less limitations. This is enshrined as well in article 24 (1) of the Charter and constitutes the primary responsibility of the Council. In accomplishing this task articles 39-51 of Chapter VII envision how and when the Security Council shall operate in cases that pose an international threat to the peace.

Foremost the Council has to make the leading determination of whether a threat or breach to the peace, or acts of aggression exists. Upon this determination it can then decide on the types of measures to be employed in this regard, which may take the form of recommendations, economic measures or military enforcement action. To deal with threat or breach of peace and acts of aggression the Council obtains on its call and upon special agreements with the member states a few facilities in assuming force as contemplated in article 43 of the Charter. Moreover by means of article 47 a Military Staff Committee, that consists of the Chiefs of Staff of the permanent members of the Security Council assists and advices the Council on aspects of maintaining peace and security. By means of article 25 of the Charter the decisions of the Council are binding on all member states.

For the sake of Chapter VII the duties of the Council should rely solely on collective security matters, i.e. it isn't meant to act as a "law-enforcement body" (Schachter 1991: 390), it has only to comply with its primary scope of activity: maintain peace and security. An exemplification of the character of its powers is enabled with reference to the single articles of Chapter VII and the connotations emanating from their formulation in the subsequent chapters.

2.1 Unlimited discretion of the Security Council in terms of article 39

Article 39 of the UN Charter stipulates: "The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security."

The criteria of article 39 more or less catalyzes the operation of the Council since it grants it a broad array of powers and does not merely provide for explicit restrictions in its functions. The two contemplated conditions in article 39 that trigger the Council´s activity have to be consecutive, i.e. the Council should first make the determination of the existence of the threat, breach to the peace or acts of aggression and then decide upon the necessary measures that it will apply for restoring the pre-existing situation. This determination considered even as "a caveat which bestows upon the Security Council a power of appreciation not easily subject to control"[5]paves the way for the employment of article 41 and 42 by means of which the Council deploys its powers further. To determine whether there is a breach of peace or acts of aggression may be considered to some extent easier than to determine a threat to the peace because the substantial basis for making such a finding provides only that a breach of peace or an act of aggression has taken place. In this regard exists even a definition of acts of aggression established from the General Assembly: "Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State or in any other manner inconsistent with the Charter of the United Nations as, as set out in this Definition."[6]

[...]


[1]Kirgis, F. L. Jr.: The Security Council´s First Fifty Years, The American Journal of International Law, Vol. 89, No. 3 (Jul., 1995), pp. 506-539, http://www.jstor.org/stable/2204171

[2]Eagleton, Clyde: The United Nations : Aims and Structure, The Yale Law Journal, Vol. 55, No. 5 (Aug., 1946), pp. 974-996, http://www.jstor.org/stable/792749

[3]UN Charter, Article 1, par. 1.

[4]Raynor, G. Hayden: The United Nations: Our Challenge, Virginia Law Review, Vol. 31, No. 4 (Sep., 1945), pp. 888-912,

http://www.jstor.org/stable/1068744

[5]Aznar-Gómez. Mariano J. , A Decade of Human Rights Protection by the U.N. Security Council: A

Sketch of Deregulation?, 13 EUR. J. INT'L. L. 223, 234 (2002).

[6]GA Res. A/RES/3314(XXIX),2319the Plenary Meeting 14 Dec.1974

Details

Seiten
14
Jahr
2010
ISBN (eBook)
9783656375333
ISBN (Buch)
9783656375685
Dateigröße
480 KB
Sprache
Deutsch
Katalognummer
v209760
Institution / Hochschule
Freie Universität Berlin
Note
1.7
Schlagworte
discuss chapter charter point

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Titel: Discuss how Chapter VII of the U.N. Charter is structured and meant to operate. Point to potential systematic weaknesses/strong points while suggesting improvements