T1 - Chapter 2 - The collective use of force under the United Nations charter

Art. 11 UN CHARTER

“Discuss any questions or any matters within the scope of the Charter and, except as provided in article 12

May make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions

May call the attention of the Security Council to situations which are likely to endanger international peace and security.”

General assembly

• Prominent forum of global political discuss° / deliberat° (not for act° mainly) => DELIBERATIVE ORGAN

• Most representative organ of UN - Eqlt btwn State (indep of their terri / eco importance) (each state = 1 vote) (important q° = 2/3 majority // all other q° = simple majority)

• Cmptnce given to GA in order to discuss any matter in the scope of the Charter + advice on inter matters

Article 12 of the UN Charter

While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.

The Secretary-General, with the consent of the Security Council, shall notify the General Assembly at each session of any matters relative to the maintenance of international peace and security which are being dealt with by the Security Council and shall similarly notify the General Assembly, or the Members of the United Nations if the General Assembly is not in session, immediately the Security Council ceases to deal with such matters.

• No clear disposit° organizing the relat°ship btwn organs of UN (except Art 12 = orga relat° btwn GA & SC)

• Art 12 only applies with regard of dispute that threatened inter peace and security (limited applicat°)

Acheson resolution

"Resolves that if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore interna6onal peace and security. »

• SC = primary organ in charge of the maintenance of inter peace + security (if SC interv GA cannot make recommendation - avoid conflicts btwn recommendat°)

• EXCEPTION : Acheson resolution (interpret of Art 12) : GA intervern where SC is stuck (bcs of russia veto no SC res. => cmptnce GA)

• 1st application : agression of South Korea launched by North Korea agnst this Republic : SC could not adopt any sanctions => so interv of GA (= subsidiary regard on secu + peace)

  Last : GA res. in Feb 2023 to stop the Ukainian war

• Precision : SC resolution = binding // GA resolution =/= binding BUT sometimes res of GA = customary law so binding effect (GA res = important bcs dev + evidence of customary law)

Composition of the Security Council

15 members :

• 10 non permanent members (elected for 2 years) (ex : Algeria + Japan + Malta + Slovenia + Switzerland)

• 5 permanent members (with veto bcs some would have never enter UN Charter without it) (most influent States at the time)
  - China
  - France
  - Russia
  - United Kingdom
  - United States

Discussion abt the size of the SC :

• Small in order to be efficient (easier to take decision)

• Large in order to be more representative & legitimate

Q° about veto right : want to give veto right to more States + add new permanent mmbre (Germany + Japan) => Prblm to change compo of SC need to amend Charter (impossible du to 5 permanent mmbr which doesn’t want to extend veto right)

Main cmptnce of SC - articles

• Art 24

• Art 25

• Art 27

Article 24

“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.”

→ SC = primary resp of inter peace + security => act on the behalf of its mmbr

→ Obliged to give a decision (moral blig) even though such an action had never been done (no legal oblig)

Article 25

“The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”

Decis° by SC = binding over mmbr of UN (very important art - revolutionary in the dev of inter law bcs State already consent to be bound by SC decis°)

Q° about Non-Mmbr States ?

• Minimal prblm - majority of State = in UN except Palestine + Taïwan + Kosovo

• SC resolution = binding upon all States (including non-mmbr States)

  → Prblm bcs they didn’t agree to be bound as they didn’t ratify the Charter

  → Switzerland : not bound to SC res but bound to the Charter

Q° about Non-State actors ?

• Treaty = bounding only for States and not individuals BUT some SC res. includes other actors (terrorism + eco sanctions affect pop) => STILL individuals are not the main part of the resolution (State are btwn individuals & SC)

• Eg : when a resolut° can be binding directly upon individuals - when the authority of the State is to weak (= failed State  State is not present anymore) => Situation of civil war = only situation where SC and individuals are in direct contact

Article 27

“Each member of the Security Council shall have one vote.
Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members.
Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members”

• Define the veto right without using the term veto (important)

  Veto : only one vote can prevent the adoption of the res. even though all other States agree

• Res = binding upon all States (even if were agnst) (exception : permanent mmbr with veto right)

• Q° of abstention : Recent interpret - customary law (> Treaty Law) : abstention =/= obstacle to adopt a res. (agnst Art 27) => Veto State’s abstention is not considered as a veto use

Article 39

• SC = primary responsibility to maintain peace and security (main aim : prevent war / use of force)

• Determine the existence of any threat to the peace, breach of the peace or act of aggression and shall make recommendation or decide what measures shall be taken in accordance with articles 41 and 42, to maintain or restore international peace and security

Armed attack

Def given by ICJ in the Nicaragua case

Act of agression

Res 3314 of the GA in 1974 :
Art 1 : Aggression : use of armed forces by a State agnts the sovereignty, territorial integrity or political indep of another State or in any manner inconsistent with the Charter of the United Nations
Art 2 : Ex of act of aggression : invasion, attacks by the armed forces of another State + bombardments + blockade of ports + the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries which carry out acts of armed force against another State of such gravity as to amount to the acts listed above

=> Similar to def of armed attack given in Nicaragua Case (ICJ)

Threat to the peace

Res. 688 :

→ No agression but threat to peace

→ Res. by SC threatened the States if the States force the pop to leave the territory (= cross border mouvement) ⇒ can destabilize inter peace

Res. 794 :

→ SC consider that the situation in Somalia = threat to the peace and security — interesting to def threat to peace bcs :

• no agression has occurred

• humanitarian situat° = in itself a threat to international peace & security but without an international component (no other State)

  => SC authorized the use of force (strong)

Res. 2177 :

→ Epidemic virus causing impressive mortality = threat of peace & security (even if no civil conflict / no inter component such as cross border

Def of threat of peace evolution :

- Narrow : Agression of a State against an another one
- Civil conflict with international humanitarian consequences + domestic humanitarian consequences
- Epidemic virus disease which has caused significant mortality

Ex : Piracy + Cyber attacks + Coronavirus

Threat to peace qualif = at the discretion of the SC (quite free) (liberal approach)

Response to a threat

• Art 40 : SC can call for provisional measures (ex : calling for withdrawal of troops + suspension of hostilities)

• Art 41 : impose non military sentences (ex : economic sanction / embargoes / bans …)

  • Maj = eco sanct°

  • Since Cold War : Enforcemt act° become very common instrumt of peace maintenance

  • Beg of the 1990ʼs : SC use economic embargoes (important) force gov to comply to their oblig

    Embargoes have devastating side effect on civilian pop ⇒ use less (want to only punish responsible State but not its population)

• Art 42 : authorised the use of military force (hostility to use force so only few examples + need vote + need to ask mmbr States armies)

  • to avert aggression (Irak v. Kuwait - 1990)

  • to give authority to Peacekeeping forces to use force (Somalia - 1993)

  • assisting to maintain a government (Afghan Interim Authority - 2000)

THE KOREAN WAR (1950)

North Korea was easily able to invade South Korea (comporting Seoul - the capital) ⇒ invas° of St Korea by Nt Korea

Res. 83 : "the armed attack upon the Republic of Korea by forces from North Korea constitutes a breach of the peace and recommended that the Members of the United Nations furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area"

Res 84 establishing a Unified Military Command under the leadership of the United States.

• 1st time UN (SC) authorized a State (under control of UN) to use of force agnst an act of agress° (to end a conflict)

• Decision adopted thanks to the absence of the rpz of the Soviet Union mmbr (Soviet Union was boycotting the meeting of the SC to protest against the seating of the Republic of China [Taiwan] and not the Peopleʼs Republic of China in the SC) — Resolutions after that were not adopted because the USSR stopped its boycott and used its veto.

• SC was blocked / not able to adopt any resolution concerning the Korean War

  ⇒ Dev of Acheson resolut° in order to give cmptnce to another organ (Gen Ass) when SC is blocked / canʼt act (bcs of disagreemt btwn permanent mmbr)

NO RESOLUTION OF THIS KIND FOR 40 YEARS (btwn 1950 & 1991 : no use of military force bcs of the Cold War (USSR & USA))

THE GULF WAR (1991)

• Res 662 : Ask Irak to withdraw immediately all its forces from Kuwait and decided that the annexation by Iraq under any form and whatever pretext has no legal validity.=> eco sanctions (not efficient)

• Res 678 : authorized Member States co-operating with the government of Kuwait to use all necessary means to implement previous resolutions and to restore international peace and security in the area. ⇒ world force or military act° are not used in the resolut° (but clear that SC authorized use of force)

• Res 687 : to destroy chemical, biological and nuclear weapons facilities in Iraq.

• Res 688 : which condemned the repression of the Iraqi civilian population in many parts of Iraq

=> Important role of SC in the area

=> 1st time all agree to stop agression (SC)

THE SOMALIAN CIVIL WAR (1991)

→ UN organized an assistance for the people but diffi to be sure that the assistance was reaching at the people in need

Res. 794 : "Member States to use all necessary means to establish as soon as possible a secure environment for humanitarian relief operations in Somalia"

→ Failure bcs US (mmbr in charge of the operat°) removed / stopped the operat° after multiple loses in its military troop (attacked by the rebels)

THE LIBYA WAR (2011)

→ In response to a civil war (large interpret of what is a threat to inter peace & security) (suspiscion of crime agnst humanity here)

→ Here = application of the responsibility to protect (= necessary to help the people threatened by gov) (but the resolution never refer to the responsibility to protect directly - can be a prblm)

Res 1973 : authorized Member States, acting nationally or through regional organizations or arrangements, to take all necessary measures to protect civilians under threat of attack in the country, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory

→ Res adopted thanks to abstention of Russia & China

Problems with the charter framework

• The inability of the Security Council to act

• The inability to establish formal mechanisms for collective action

The inability of the Security Council to act

Q° of the veto :

• UN = pure collective security arrangement so why some State can exempt itself from the collective syst

• Veto right = violation of the Charter (even if it is a legal right) (ex : Russia + China prevent any interv of UN in Syria with veto)

Reason to use veto right :

• The situation concerns its own national interest (ex : SC unable to act in the Russian invasion due to Russian Federation veto)

• The situation concerns an ally

• Situat° = minimal threat for the all interest of permanent mmbr (so no interv)

Before = affirmative vote of the 5 permanent mmbr // Now = authorised abstent° (permit interv in Lybia)

The inability to establish formal mechanisms for collective action

Art 43 : “All Members of the UN, in order to contribute to the maintenance of inter peace and security, undertake to make available to the SC, on its call and in accordance with a special agreemt or agreemts, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security. “

→ Agreemt with SC to make available use in inforcemt act° but none of these agreemt were ever concluded bcs of the disagreemt btwn the Soviet Un° & Western World (USSR = afraid to see Western world army agnst its own interest)

• Military action = possible but remain under State operational authorities / control

• UN need to ask State to use their army

• 1992 : report to SC with a proposal to establish a UN army (but no result following his proposal)

Efforts to respond to these problems

• The use of other institutions (General Assembly and Regional organisation to intervene in inter conflict)

• Peace-keeping operation

The General assembly - use of other institutions as an effort to respond to these problems

Acheson resolution used during :

• Korean War

• Res of March 2022 : concerning aggress° agnst Ukraine (interv of GA bcs concerns Russia (veto)) => ask Russian Federation to cease the use of force

Regional organisation - use of other institutions as an effort to respond to these problems

Art 52 : allows regional orga to dealt with maintenance of inter peace & security if in accordance with principles of UN

Art 53 : “The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council”

=> Cmptt to enforce SC or res. or oblig to respect peace & secu => they canʼt act without an authorisat° given by SC

Exception of the prohibition of the use of force : Self-defence (SD)

Collective SD = legal (in conformity with UN Charter)

Operation « allied force » :

Humanitarian situation was very hard, NATOʼs (regional orga) intervention to prevent murders of others Albanians people => Collective SD without SC authorisation ?

Res. 1203 : “Affirming that the unresolved situation in Kosovo, Federal Republic of Yugoslavia, constitutes a continuing threat to peace and security in the region,”

Absence of authorisat° to use force BUT NATO interpreted it as given the authorizat° to intervene and use military action, to implemt a cease-fire agreemt and protect civilian to Kosovo.

• Air campaign (approximately 2 month)

• Bombing campaign multilateral peace keeping operation without any SC autorisation

• interesting situat° : NATO intervene to implement a SC res.1203 but without SC authorisat° (but in this kind of situat° is implicit authorisat° is enough ?) => NATO intervn bcs know that it would be difficult to obtain a SC authorisat° (veto by Russia & China)

• Humanitarian argument of possibility / obligation agnts crime agnst humanity or genocide => NATO based its action on humanitarian justification to use force

  NATO moved from a specific military organisation to a one which is involved in humanitarian situations. Obligation to help people might be an authorisation to use force with the SD.

The use of peacekeeping operations

• Def : Imposition of a neutral force in an area of conflict => no use of force (exception = SD)

  Conditions : consent of the parties + non use of force except in SD

• Legal basis : ICJ, 1962, Certain Expenses Case

  • Security Council authorization

  • General Assembly authorization

    • Inaction of the SC (SC = blocked so GA can authorized peace-keeping action with consent of the States)

    • Only recommendation

• SD exception :

  • Personal SD : everybody can defend themselves from being attacked

  • UN SD : UN defend itself or its functionality as an orga

• 11 peace-keeping operation nowadays (many in Africa)

Peace-keeping operation’s component

• Military operation

• Civil operation

• Mixed operation

Military operations

No UN army => UN relies on State military component bcs of its lack of military component

• Monitor a disputed border

• Monitor and observe peace processes in post-conflict areas

• Provide security across a conflict zone

• Protect civilians

Civil operations

=> support the development of social and civil conditions necessary to a sustainable peace

• Support the restoration and extension of State authority

• Provide electoral assistance : (holding election)
  - Cambodia (1992-1993)
  - Timor-Leste (2001)
  - South Sudan (2011)

Mixed operations

=> Both military and civil

UNOCI (UN Operat° in Côte dʼIvoire) : Res. 1479 (2003) : “Acting under Chapter VII of the Charter of the United Nations, the Security Council // Decides to establish the UNOCI which will comprise, in addition to the appropriate civilian, judiciary and corrections component, a military strength of a maximum of 6,240 United Nations personnelˮ

Peace-keeping persons

UN = responsible for the behaviour of all mmbr of a peace-keepong operation

Prblm : How to ensure an appropriate behaviour from the peacekeepers ?

The UN canʼt pronounce communal penalties on individuals (bcs it doesnʼt have jurisdict° to do it). So enforce sanct° when the UN personal have violated some important rule like destruct° of houses.

Possible to punish ? SC adopt guidelines to assure cooperat° with national state. + UN adopted a code for blue helmets (= 10 rules (ex : do not consume excessive alcool + respect the law / culture / tradition of the country they are in) - National state of the blue helmet that didnʼt respect the Code can prosecute him – decided after an agreement between UN and States.)

Prblm : Victims - the exclusive attribut° of the UN have disadvantages (victim have no possibility to act)

Solut° : for justice = consent of the parties (local pop need to accept the presence of the peacekeeper) + settlemt organ for the victims + increase the number of female peacekeepers

1998 : peacekeeping forces awarded by the Peace Nobel Price