The United Nations as principal embodiment of collective security

The establishment of the United Nations was an attempt by the international community to create a more effective collective security system. The ideal of

92 _{Inis Claude (Swords into Plowshares) (supra) 60-61.} 93 _{Hans Kelsen (Collective Security) (supra) 787.} 94 _{Hans Kelsen (Collective Security) (supra) 788.}

collective security, together with other areas of concern for the international community, is set out in Article 1 of the UN Charter:

‘The Purposes of the United Nations are:

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, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and

4. To be a center for harmonizing the actions of nations in the attainment of these common ends.’95

It is clear from Article 1 of the UN Charter that, although international peace and security is the primary objective of the organisation, the UN was also created, as Inis Claude put it, ‘as a general organization in the additional sense that it was to deal with a comprehensive range of subject matter.’96 _{While the UN Charter, like}

its predecessor the Covenant of the League of Nations, represented the old liberal ideal of international co-operation and collective security, the Charter also signalled the development of a new understanding of the liberal ideal: a far more

95 _{Art 1 UN Charter.}

active role for international organisations like the UN to enhance the ideals set out in the UN Charter.97

Apart from peace ands security, the UN is also active in the fields of human rights,98 _{refugees and migration,}99 _{the emancipation of women,}100 _{labour issues,}101

economic relations and development,102 _{the environment and sustainable}

development,103 the law of the sea,104 outer space,105 and international and transnational substantive and procedural criminal justice issues (notably terrorism,

97 _{Inis Claude (Swords into Plowshares) (supra) 79.}

98 _{For a concise discussion of the ‘three stages’ of international protection of human rights by the UN, see}

Antonio Cassese International Law in a divided world (1986) Oxford University Press, Oxford, 293-316. See further the work and publications of the UN Centre for Human Rights (www.un.org). The most important instruments in this regard are the Universal Declaration of Human Rights, GA Res 217A (III) UN Doc A/810 (1948); International Covenant on Civil and Political Rights (ICCPR) of 16 Dec 1966, 999 UNTS 171 (1966); and the International Covenant on Economic, Social and Cultural Rights of 16 Dec 1966, 999 UNTS 3 (1966).

99 _{The most important instrument in this regard is the Statute of the Office of the UN High Commissioner for}

Refugees, GA 428 (V) (Annex) (Dec 14, 1950). The UNHCR is based in Geneva, Switzerland. For a discussion of the work of the UNHCR see David Martin ‘Refugees and Migration’ in Christopher Joyner (ed) The United

Nations and International Law (1997) Cambridge University Press, Cambridge 155-180.

100 _{Notably the Convention on the Elimination of All Forms of Discrimination against Women, Dec 18, 1979, UN}

GAOR, 34th _{Sess, Supp No 21, at 193, UN Doc A/Res/34/180; 19 ILM 33 (1980). See further discussion of efforts}

to combat trafficking in persons (especially women and children) in Gerhard Kemp ‘The United Nations Convention Against Transnational Organized Crime: A milestone in international criminal law’ 2001 2 SACJ 152.

101 _{Especially through the work of the International Labour Organisation (ILO), which is a specialised agency of}

the UN. For ILO documents visit www.ilo.org.

102 _{See Art 55 UN Charter on the UN’s role in socio-economic sphere. International trade is a specialised area of}

international law, with the work of the World Trade Organisation (WTO) at the centre. See in general

www.wto.org.

103 _{Especially through the UN Environment Programme (UNEP), UN Doc A/8730 (1972). See further Draft}

Principles on Human Rights and the Environment (Final Report of the Special Rapporteur, Sub-Commission on Prevention of Discrimination and Protection of Minorities) UN Doc E/CN.4/Sub.2/1994/9, Annex I (1994) and Commission on Human Rights (Res 2003/71) on human rights and the environment as part of sustainable development.

104 _{Notably in terms of the Law of the Sea Convention of 1982, (1982) 21 ILM 1261.}

105 _{It is generally assumed that international law also applies in space. There are a number of specific treaties}

dealing with specific outer space related issues, eg The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, GA Res 2222 (XXI) Dec 19, 1966, 610 UNTS 205. Some international treaties have implications for activities in outer space, eg the Multilateral Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space, and Under Water, 5 Aug 1963, 480 UNTS 43.

drug trafficking and organised crime)106_{. It is submitted that the role of the UN is}

by no means limited to issues of peace and security. Indeed, the role of the UN as an agent for the advancement of human development and human rights prompts the suggestion that the UN Charter should not be seen as a static document, set in the time-frame of 1945. Issues of security and social development; the environment and security; and socio-economic issues, trade and human rights are all interrelated. It would therefore be wrong to regard the role of the UN’s primary organ for collective security, the Security Council, as a very limited role – only concerned with questions of interstate aggression. International practice, especially since the early 1990’s, has shown that the Security Council is willing to view for instance human rights violations to be a threat to international peace and security, thus triggering the collective security machinery of the UN Charter. The latter is also relevant for purposes of the debate on so-called humanitarian intervention107, which is dealt with below108.

From the above it is clear that the present collective security system, which is dominated by the UN, has its roots in liberal ideals and efforts to foster international peace and security; first attempted through the failed League of Nations. Authors like Inis Claude regarded the Charter of the UN as a more satisfactory basis for collective security than the Covenant of the League. With reference to the core provisions of the Charter that constitute the essence of the limits put on the use of force by states, namely Article 2(4) (prohibition on the threat or use of force by states), Article 51 (individual or collective self-defence by

106 _{For this vast area of international law, see in general Cherif Bassiouni International Criminal Law}

Conventions and their penal provisions (1997), Transnational Publishers, New York.

107 _{See G Barrie ‘Forcible intervention and international law: legal theory and realities’ 116 (4) SALJ (1999)}

791-809, 804.

states) and Article 53 (regional enforcement action with Security Council authorisation), Claude concluded as follows:

‘[The Charter] leaves no such convenient gaps in the legal fence for aggressors to crawl through as did the [Covenant of the League]; it substitutes for a limited prohibition of war the more comprehensive proscription of the threat or use of force, and it even undertakes to close the gap of fictitious defensive and law- enforcement measures by subjecting all coercive activity to the control and supervision of the Security Council.’109

The most important legal framework for the maintenance of international peace and security by the UN can be found in Chapter VII of the UN Charter. The key provision is Article 39, which provides as follows:

‘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.’

Once the Security Council has determined under Article 39 that there exists a violation of or threat to international peace and security or an act of aggression, Articles 40 to 42 can potentially take effect. According to Erika de Wet, it is clear that the Security Council has a discretion both in terms of the determination of a threat or breach of peace or an act of aggression, and a further discretion as to what measures should be taken in response to these situations. She has also identified three schools of thought on the full extent of the Security Council’s discretion:

‘Some authors claim that both types of action fall within the absolute discretion of the Security Council. Others argue that the decision as to when the Security Council should intervene in terms of Article 39 lies purely within its discretion, but that general international law, in particular ius cogens, as well as the purposes and principles of the United Nations would pose limits to the type of action that may be taken by the Security Council. Yet others argue the exact opposite and state that once the Security Council is acting in terms of Article 39, there are no limits as to what it can do. However, whether it has passed the threshold constituted by Article 39 is something that can be measured by means of judicial criteria.’110

There seems to be an underlying divide between those who view the discretionary powers of the Security Council as primarily of a political nature and those who regard the exercise of the powers as closely resembling a judicial function involving legal interpretation. De Wet points out that supporters of the view that the Security Council is basically acting in terms of political considerations when interpreting Article 39, would point to the fact that the phrases ‘threat to the peace’, ‘breach of the peace’ and ‘and act of aggression’ as used in Article 39, are not defined – not in Article 39 or anywhere else in the Charter. Thus, the modus

operandi of the Security Council would be to look at the factual situation and

political realities when exercising its discretion. This, coupled with the veto power of the five permanent members of the Security Council (France, Russia, China, United Kingdom and United States) underpins the ‘clear indication that decisions in the interest of peace and security will be based exclusively on (national) political considerations’.111 Another indication of the political nature of the Article 39 discretionary powers of the Security Council is the fact that there is no obligation

110 _{Erika de Wet The Chapter VII Powers of the United Nations Security Council (2004) Hart Publishing, Portland}

133 – 134.

on the Security Council to act, despite the apparent seriousness of a given situation. The Security Council can in other words act ‘selectively and with discretion’112.

However, there are those who argue that Article 39 does not provide the Security Council with an unlimited discretion.113 _{The fact that the Security Council can}

muster the political will (and overcome the veto threshold) to act on a specific situation that might constitute and act of aggression or a breach of peace, does not imply that it also has unlimited discretion to act. De Wet points to the fact that the ‘imprecision and vagueness’ of the terms used in Article 39 does not necessarily support the argument that the exercise of the Article 39 discretion by the Security Council is essentially a political act: ‘The concretisation of vague terms is, in the first instance, a matter of legal interpretation.’114 And further:

‘There is nothing inherently special about the terms used in Article 39 that would

ab initio remove them from the ambit of legal interpretation. On the contrary, the

mere fact that Article 39 distinguishes between three criteria that trigger binding resolutions of the Security Council, implies that it does not have an unbound discretion. If an unbound discretion had been intended, such a distinction would have been obsolete. The Charter would only have contributed to the Security Council the general power to adopt binding measures in the interest of international peace and security and nothing more.’115

112 _{Erika De Wet (Chapter VII Powers) (supra) 136.} 113 _Ibid.

114 _{Erika De Wet (Chapter VII Powers) (supra) 136.} 115 _{Erika De Wet (Chapter VII Powers) (supra) 136-137.}

Erika de Wet pointed out that the International Court of Justice has not yet taken a position on the meaning of Article 39.116 However, in Prosecutor v Tadic117, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia, did have the opportunity to address not only the meaning of Article 39 but also the broader question of Security Council powers under Chapter VII. The ICTY was established by the Security Council in 1993118 _{to try persons ‘responsible for serious}

violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991’.119 At the Trial Chamber, one of the three grounds on which the appellant attacked the jurisdiction of the ICTY was the ‘illegal foundation’ of the Tribunal. The other two grounds were the ‘wrongful primacy’ of the ICTY over national courts and the ‘lack of jurisdiction ratione materiae’. The motion challenging the jurisdiction of the Tribunal was denied in the Trial Chamber. The matter came before the Appeals Chamber, and for present purposes the focus will be on the first aspect of the motion on jurisdiction, namely the foundation of the ICTY in terms of the Chapter VII powers of the Security Council of the UN. The Appeals Chamber accepted that the Security Council has a ‘very wide discretion’ under Article 39 of the UN Charter. But the Appeals Chamber also stated that these discretionary powers are not unlimited.120 The UN Charter cannot be interpreted in such a way as to depict the Security Council as ‘legibus solutus

116 _{Erika De Wet (Chapter VII Powers) (supra) 135.}

117 _{Decision on the Defence Motion for interlocutory appeal on jurisdiction, Prosecutor v Dusko Tadic, Case No}

IT-94-1-AR72, Decision of 2 Oct 1995, reproduced in Andre Klip & Göran Sluiter (eds) Annotated Leading Cases

of International Criminal Tribunals – Student Ed (2005) Intersentia, Antwerp 9. Decision also available on

http://www.un.org/icty.

118 _{SC Res 827 (1993) on Establishing an International Tribunal for the Prosecution of Persons Responsible for}

Serious Violations of International Humanitarian Law committed in the Territory of the Former Yugoslavia, ILM (1993) 1192 (Statute) and 1203 (Resolution); Amended by S C Res 1166 of 13 May 1998, Res 1329 of 30 Nov 2000, Res 1411 of 17 May 2002, Res 1431 of 14 Aug 2002 and Res 1481 of 19 May 2003 – see

http://www.un.org/icty.

119 _{Art 1 ICTY Statute.}

(unbound by law)’121_{. The structure of the UN Charter is such that the Security}

Council is indeed given wide powers to maintain international peace and security, but these powers are specifically laid down in Chapters VI, VII, VIII and XII of the Charter. Regarding the Chapter VII powers, the Appeals Chamber acknowledged the complex political and legal dimensions to an Article 39 determination, as also pointed out above. But importantly, the Appeals Chamber emphasised that the exercise of the discretion by the Security Council is ultimately still bound by the letter and spirit of the UN Charter:

‘While the “act of aggression” is more amenable to a legal determination, the “threat to the peace” is more of a political concept. But the determination that there exists such a threat is not a totally unfettered discretion, as it has to remain, at the very least, within the limits of the Purposes and Principles of the Charter.’122

The Appeals Chamber in Tadic had to consider whether the establishment of an international criminal tribunal (such as the ICTY) was within the Chapter VII powers of the Security Council – powers aimed at the maintenance or restoration of peace after a determination under Article 39 that there was a threat to peace or an act of aggression occurred. The Chamber noted that ‘[t]he establishment of an international criminal tribunal is not expressly mentioned among the enforcement measures provided for in Chapter VII, and more particularly in Articles 41 and 42.’123 The Appeals Chamber held that Article 41 provides the necessary legal grounds for the Security Council to establish an international criminal tribunal in response to a threat to peace or an act of aggression. Article 41 of the UN Charter provides as follows:

121 _{Prosecutor v Tadic (Appeal on Jurisdiction) supra par 28.} 122 _{Prosecutor v Tadic (Appeal on Jurisdiction) supra par 29.} 123 _{Prosecutor v Tadic (Appeal on Jurisdiction) supra par 33.}

‘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. These 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.’

The Appeals Chamber held that the measures listed in Article 41 are merely illustrative examples of appropriate measures; the use of armed force clearly excluded. Thus, the establishment of an international tribunal can also be an appropriate way of responding to an act of aggression or a threat to peace and security.124

The primary role of the Security Council as guardian of international peace and security is not only to determine whether the acts listed in Article 39 have occurred, but also to decide on appropriate responses to maintain peace and security. From the Tadic decision of the ICTY Appeals Chamber discussed above, it is clear that the creation of international criminal tribunals can also be an appropriate measure to restore peace and security. It is however prudent to guard against the view that international criminal tribunals can by themselves bring about peace. Michael Reisman has pointed out that the ICTY, for instance, was created as a Chapter VII measure, to ‘stop the war’ in Yugoslavia and not in the first instance to ‘prosecute persons responsible for serious violations of international humanitarian law’.125 Reisman’s criticism is that the Security Council, with the creation of the ICTY in the midst of a conflict, has abdicated its primary function of

124 _{Prosecutor v Tadic (Appeal on Jurisdiction) supra para 35 – 36.}

125 _{Michael Reisman ‘Stopping wars and making peace: Reflections on the ideology and practice of conflict}

maintaining international peace and security. Reisman stated the following about the apparent paradoxical role of the ICTY as a Chapter VII measure:

‘In the ordinary course of events, it is precisely at the end of a conflict that the operation of an international criminal tribunal kicks into operation. However, the purpose and essential design of the former Yugoslav Tribunal was to use it to accomplish other goals; it was to be terminated as soon as those goals were secured. Meanwhile, efforts at securing a political settlement had to continue, for no outsider was then willing to invest what was militarily necessary to force one of the parties to relent. However, the same people who should have been agreeing to a political solution were also the individuals who were assumed to be the prime candidates for indictment and trial. With two contradictory political strategies being pursued, the possibility of contribution by the Tribunal was not