humanitarian law to peace support operations
3.5 C ONSTITUENT INSTRUMENTS
In general, the constituent instrument of an international organization is a treaty and as such the organization and its organs must respect the division of competences and limitations on power in the treaty.32 In this sense the
constituent instrument of the organization performs a role similar to a constitu- tion in domestic law. Though extreme care is required when comparing international organizations to states, the constitutional character of the United
29 Where an international authority – by the terms of the Article (Final Provisions) -- would state its acceptance of all or some of the provisions of the present Convention, which it would be capable of applying, the High Contracting Parties shall be bound, in relation to the said international authority, by the provisions of the Convention accepted in the terms of the aforementioned statement, English translation, Actes de la Conférence Con- voquée par l’Organisation des Nations Unies pour l’Education, la Science et la Culture tenue à la Haye du 21 Avril au 14 Mai 1954, at 187 (1954).
30 Actes de la Conférence Convoquée par l’Organisation des Nations Unies pour l’Education, la Science et la Culture tenue à la Haye du 21 Avril au 14 Mai 1954, at 274-275 (1954). 31 United Nations Economic Social and Cultural Organization, Final Act of the Intergovern-
mental Conference on the Protection of Cultural Property in the Event of Armed Conflict 80 (1954).
Nations Charter has recently been asserted in literature and in practice.33The
Appeals Chamber of theICTYaffirmed that:
The Security Council is an organ of an international 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 may be, those powers cannot, in any case, go beyond the limits of the jurisdiction of the Organization at large, not to mention other specific limita- tions or those which may derive from the internal division of power within the Organization. In any case, neither the text nor the spirit of the Charter conceives of the Security Council as legibus solutus (unbound by law).34
The assumption that an international organization is limited by its constituent instrument, is in itself generally accepted. Problems arise, however, in defining the content of those limitations. This is primarily a matter of treaty interpreta- tion, because the constituent instrument is generally a treaty.
TheUNCharter contains a number of provisions which some writers have
interpreted as imposing an obligation on the organization, and the Security Council in particular, to respect international humanitarian law. Legal limita- tions on the Security Council are of principal concern because in practiceUN
peace support operations are subsidiary organs of the Council.35
Article 24, paragraphs 1 and 2 of theUNCharter provide that:
In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.
In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations.
The purposes and principles of theUNare set out in Article 1 and 2 of the Charter. Article 1, paragraph 1, provides that one of the purposes of the organization is:
To maintain international peace and security, and to that end: to take effective collective measures for the prevention of threats to the peace, and for the suppres- sion of 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
33 Seee.g.B. Fassbender,The United Nations Charter as Constitution of the International Com- munity, 36 Columbia Journal of Transnational Law 529 (1998); P.M. Dupuy,The Constitutional Dimension of the Charter of the United Nations Revisited, 1 Max Planck Yearbook of United Nations Law 33 (1997).
34 Prosecutorv.Duško Tadic´,Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1-AR72, A. Ch., 2 October 1995, para. 28.
law, adjustment or settlement of international disputes which might lead to a breach of the peace.
The ordinary meaning given to the terms of this article makes clear that the Security Council is only bound by the obligation to act in conformity with the principles of justice and international law in the adjustment or settlement of international disputes, and not when it takes 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.36 The latter is clearly a
reference to action under ChapterVIIof the Charter.
Thetravaux préparatoiresconfirm this interpretation. The Dumbarton Oaks Proposals that laid the groundwork for the UN Charter did not include a reference to international law in its provisions on Purposes and Principles. A proposal was made at the United Nations Conference on International Organization by China, supported by the United Kingdom, the United States and the Soviet Union, to add that peaceful settlement of disputes must be brought about “with due regard for principles of justice and international law”.37Other delegations thought that this phrase was inadequate, and that
“a more explicit requirement for strict observance of the principles of justice, international law, and morality should be written into the Declaration of Purposes in the Charter.”38In the subcommittee that was drafting the Pur-
poses, it was proposed that the words “in conformity with the principles of justice and international law” be placed in the first line after the words “peace and security.” This amendment received 19 votes in favor and 15 against, not enough for the two-thirds majority required.39 The same amendment was
later again introduced by the Egyptian delegation in Commission I. The Egyptian delegate said in support of the amendment that the “last argument with which we were today confronted was that if we asked the Security Council to respect justice and international law it might make the burden of the Organization heavier.”40 The delegate of the United Kingdom who
opposed the amendment used:
the illustration of the policeman or the gendarme who is concerned with dealing with a wrong that he sees arising. He does not stop at the outset of what he does
36 See R. Wolfrum,Article 1, in B. Simma (Ed.), The Charter of the United Nations: A Com- mentary 49 (1995), at 52, M. Bedjaoui,Article 1, in J.P. Cot & A. Pellet (Eds.), La Charte des Nations Unies 23 (1985), at 25.
37 UNCIO III, at 622, Doc. 2 G/29.
38 Summary Report of Third Meeting of Committee I/1, doc. 197, 10 May 1945, UNCIO Documents vol. 6, at 281, at 282.
39 Summary Report of the Ninth Meeting of Committee I/1, Doc. 742, I/1/23/ 1 June 1945, UNCIO vol. 6 at 317, at 318.
to inquire where exactly lies the precise balance of justice in their quarrel. He stops it, and then, in order to make adjustment and settlement, justice comes into town.41 The United States delegation shared this opinion.42This opposition was an
important element leading to the defeat of the Egyptian amendment by a vote of 21 for and 21 against.43
That Article 1, paragraph 1, may be interpreted to mean that the Security Council may derogate from the principles of international law when it acts under ChapterVIIof theUNCharter was also understood by the Dutch govern-
ment. It reported to parliament on the drafting of the article that:
In the meanwhile the Delegations of Egypt, Panama and Uruguay had … intro- duced two amendments, to the effect of naming the principles of justice and international law in the first part of paragraph 1, so that they could be considered to regard all the functions of the Organization, which, it seemed, could be doubted in the case of the proposed text. For the Dutch Delegation, which had been content with the amendment to paragraph 1 proposed by the Sponsoring Governments, there was initially no reason to support these amendments. When, however, the British Delegate challenged these amendments with the argument that in main- taining international peace and security one could not always respect these prin- ciples because the maintenance of international peace and security had a political dimension, the Dutch Delegation considered this so dangerous that it lent its support to the amendments. These were however unable to carry the required two- thirds majority in Committee 1.44
41 Id. 42 Id:
It is our view that this Security Council … will have two very important functions … Those might be characterized somewhat as being the functions of a policeman and the functions of a jury. … When you begin to function as a jury you must do so in conformity with justice and international law.
43 Id.
44 “Intussen waren door de Delegaties van Egypte, Panama en Uruguay … twee amendemen- ten ingediend, welke de strekking hadden om de grondslagen van rechtvaardigheid en van internationaal recht in lid 1 direct in de aanvang te noemen, zodat zij geacht konden worden op alle functies van de Organisatie betrekking te hebben, hetgeen, naar het scheen, van de voorgestelde bepalingen kon worden betwijfeld. Voor de Nederlandse Delegatie, die zich bevredigd had geacht door het door de Delegaties der Uitvoerende Mogenheden vastgestelde amendement op lid 1, bestond aanvankelijk geen aanleiding om deze amende- menten te steunen. Toen echter bij het debat de Britse vertegenwoordiger die amendementen bestreed met het argument, dat men bij het handhaven van de internationale vrede niet altijd van deze grondslagen zou kunnen uitgaan, omdat het handhaven van de international vrede en veiligheid een politieke kant had, achtte de Nederlandse Delegatie dit betoog zo gevaarlijk, dat zij haar steun aan de amendementen gaf. Deze vermochten evenwel niet de vereiste tweederde meerderheid der stemmen in Comité 1 te behalen.” Ministerie van Buitenlandse Zaken, Het Ontstaan der Verenigde Naties: San Francisco, 25 April – 25 Juni 1945, at 20-21 (1950) (English translation by the author).
In short, the Security Council, when acting under ChapterVIIof theUNCharter can derogate from certain principles of international law.45Article 1, para-
graph 1, simply does not require, as a report submitted to theUNSub-commis- sion for the Promotion and Protection of Human Rights by Bossuyt states, that sanctions or other measures undertaken to maintain international peace and security must be in conformity with the principles of justice and inter- national law and that sanctions must be evaluated to ensure that they are not unjust or that they do not in any way violate principles of international law stemming from sources outside the Charter.46 On the contrary, as Judge
Schwebel stated in his dissenting opinion in the 1998 judgment in theLockerbie case, the omission of principles and justice of international law “was deliberate- ly so provided to ensure that the vital duty of preventing and removing threats to and breaches of the peace would not be limited by existing law.”47Judge
Oda stated in the same vein that under the positive law of the United Nations Charter “a resolution of the Security Council may have binding force, irres- pective of the question whether it is consonant with international law derived from other sources.”48
The principle that theUNSecurity Council can derogate from international law that would otherwise be applicable, is supported by Article 103 of the Charter. This Article provides that in case of conflicting obligations of member states under theUNCharter and under another international agreement, the obligations under the Charter prevail.49Obligations ‘under the Charter’ are
understood to be not only obligations arising directly from provisions of the Charter, but also obligations arising from binding decisions of theUNSecurity Council.50This was confirmed by the
ICJin its order on provisional measures in the Lockerbie case.51 The question arises whether in the latter case the
45 G. Oosthuizen,Playing the Devil’s Advocate: the United Nations Security Council is Unbound by Law, 12 Leiden Journal of International Law 549 (1999), at 552-553; H. Kelsen, The Law of the United Nations 294-295 (1951); B. Martenczuk,The Security Council, the International Court and Judicial Review: What Lessons from Lockerbie?, 10 European Journal of International Law 517 (1999), at 545.
46 UN Doc. E/CN.4/Sub.2/2000/33, para. 24. 47 Supranote 9, at 627.
48 Supranote 8. But see the dissenting opinion of Judge Bedjaoui,Id, para. 26. See also the dissenting opinion by Judge Fitzmaurice in theSouth West Africacase, in which he stated that even when acting under Chapter VII of the Charter the Security Council is bound by principles of international law including the prohibition of abrogating or altering territorial rights, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ Reports 6, at 294, para. 115.
49 Article 103 reads:
In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.
50 R. Bernhardt,Article 103, in B. Simma (Ed.),supranote 36, at 1120. 51 Supranote 8, at 16, para. 39.
Security Council must actually use the verb ‘to decide’ in the relevant para- graph of a resolution under ChapterVIIof theUNCharter. This does not seem to be the case. Here it is important to recall that Article 25 concerns binding decisions of the Security Council. Speaking to that Article, theICJstated in its advisory opinion in theNamibiacase:
The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council.52
Consequently, although the Security Council need not use the verb ‘to decide’, there needs to be a clear indication that it intended to bind member states. Reisman has advocated that not only decisions, but also recommendations by the Security Council should prevail over treaty obligations.53This seems
a dangerous road to take. First, it overlooks the natural and close relationship between Article 103 and Article 25. Second, it gives much leeway to states to argue that their actions have the Council’s blessing under ChapterVIIof the Charter, at a a time when there have been questionable invocations of Council Resolutions to justify the use of force. Finally, it is not in conformity with the principle that exceptions should be interpreted narrowly.
It is striking that the wording of Article 103 only refers to treaty obligations and not to customary international law. At the San Francisco conference, a proposal to formulate the article in a such a way that all other commitments, including those arising under customary law, were to be superseded by the Charter, was ultimately not included.54Judge Bedjaoui concluded in his dis-
senting opinion in theICJ’s order on provisional measures in theLockerbiecase, that Article 103 “does not cover such rights as may have other than conven- tional sources and be derived from general international law.”55Combacau
on the other hands offers another, and more probable, interpretation of the article, according to which its specific purpose is to set aside the rule that a later treaty prevails over an earlier treaty (lex posterior derogat legi priori).56
If this is the specific purpose of the article, there is no need for it to refer to customary international law.
52 Supranote 48 at 53, para. 114.
53 M. Reisman, The Constitutional Crisis in the United Nations, 87American Journal of Inter- national Law83 (1993), at 89.
54 R. Bernhardt,supranote 50.
55 Supranote 8, Dissenting Opinion of Judge Bedjaoui, para. 29.
56 J. Combacau, Le Pouvoir de Sanction de l’O.N.U.: Étude Théorique de la Coercition non Militaire 282 (1974).
In any event, Article 103 must be seen in the broader system of the Charter. Article 1 (1), Article 25 and Article 103 together make clear that theUNSecurity Council can derogate from customary international law. As Reisman states, “[t]he synergy of Articles 25 and 103 ... trumps all contrary non-Charter legal obligations.”57This is confirmed by Judge Oda in his declaration in theLocker-
biecase, in which he states that “under the positive law of the United Nations Charter a resolution of the Security Council may have binding force, irres- pective of the question whether it is consonant with international law derived from other sources.”58
Certain writers argue that the Security Council is bound by peremptory norms of international law, also referred to as ius cogens. The concept of peromptory norms was first codified in the Vienna Convention on the Law of Treaties. Article 53 of that convention provides:
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremp- tory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
It is argued that the non-derogatory character of peremptory norms means that all subjects of international law, including the Security Council, have to abide by them.59
Judge Lauterpacht declared in his separate in theGenocidecase that: The concept ofjus cogensoperates as a concept superior to both customary inter- national law and treaty. The relief which Article 103 of the Charter may give the Security Council in case of conflict between one of its decisions and an operative treaty obligation cannot – as a matter of simple hierarchy of norms – extend to a conflict between a Security Council resolution andjus cogens.60
It has been argued that the concept ofius cogens partly explains the lack of reference to customary international law in Article 103 of theUNCharter.61
However, at the time of drafting of the Charter this concept was not widely recognized, and it is therefore unlikely that the drafters took it into account.
57 M. Reisman,supranote 53, at 93.
58 Supranote 8, Declaration of Acting President Oda, under I. 59 Seee.g.D. Schweigman,supranote 12, at 197.
60 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovinav.Yugoslavia (Serbia and Montenegro), Separate Opinion of Judge Lauterpacht, 1993 ICJ Reports 4, at 440.
61 M. Shaw,The Security Council and the International Court of Justice: Judicial Drift and Judicial