ROLE OF SECURITY COUNCIL : AN APPRAISAL By Sachin

Introduction:

The United Nations was established following the conclusion of the Second World War and in the light of Allied planning and intentions expressed during that conflict.[1]  The United Nations is a pivotal organ of world government, and the most important of all international institutions. It is an organization of independent states which have accepted the obligations contained in the United Nations Charter signed at San Francisco on 26 June 1945. The body or main stem of the United Nations is represented by the organs expressly named in the Charter[2].

The United Nations is an association of States but like other organizations it carries out its functions through organs composed of individuals who in most cases act as representatives of member States; Security Council is one of such organs of the United Nations.[3]

Security Council is a principle organ of the United Nations.[4] The Council consisted of fifteen members[5], out of which five are permanent members. No decision can be taken by the Council on non-procedural matters if a dissenting vote is given by any permanent member.[6]

The main function of the Security Council is to maintain International peace and security by peaceful means or by taking enforcement action.[7] The Council may investigate any dispute, or any situation which might lead to international friction or give rise to dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of the international peace and security.[8]

In order to maintain international peace the Security Council has played an important role in the Korean Conflict, and the Congo and Rhodesian situations.[9] Security Council has been fulfilling its primary objective by solving the international conflicts time and again.

League of Nations –

As aptly pointed out by Philip Noel Baker, “The League of Nations is the first attempt in history to furnish the international society of nations with a permanent and organic system of Political Institution.” During the First World War certain committees relating to raw materials, food materials, fuel etc. were formed by the allied nations. The successful working of these committees encouraged the concept of international co-operation among States.[10]

Although the desire for establishment of an efficient international organization had been expressed long before the First World War, yet it took the real form in the treaty of Versailles, 1919. The proposal introduced at the Peace Conference of Paris in 1919. The League of Nations was established on January 10, 1920. The League’s objective was “to promote international co-operation and to achieve international peace and security.”[11]

The League had three principal organs: the Council, the Assembly and the Secretariat. The Council was designed as the organ of limited membership, comprising originally “representatives of the Principal Allied and Associated Powers together with the representatives of four other Members…”.[12] In practice the Council met four times a year and could be specially convened in an emergency. Its decisions were to be reached by unanimous vote, subject to the exclusion of the vote of the party to the dispute.[13] 

After an initial success in dealing with the Graeco-Bulgarian crisis of 1925, and a less spectacular achievement in the Chaco dispute of 1928, the League witnessed the invasion of Manchuria in 1931, the Italo-Abyssinian War of 1934-35, the German march into Rhineland in 1936, into Australia in 1938, the Soviet Union’s invasion of Finalnd in 1939 and, finally, the German invasion of Poland in 1939. Apart from sanctions against Italy in 1935, no sanctions were ever applied by the League.[14]

Professor Goodspeed has rightly remarked, “The League of Nations was abandoned by those who failed to abide by their solemn obligations.” In April 1946, the League of Nations was ultimately dissolved by a resolution of the Assembly.[15]

United Nations –

In order to achieve the desire to establish peace even when the War was in progress, frantic efforts were started in 1941 to create an International Organisation. First step towards the creation of a world organization was Declaration of St. James Palace. On June 12, 1941 the representatives of the Great Britain, Canada, Australia, New Zealand and the Union of South Africa and of the exiled governments signed the Declaration, commonly known as London Declaration, with an intention to work together both in war and peace.[16]

The meeting of the American President Roosevelt and the British Prime Minister Churchill, in August 1941 in Argentia Bay off Newfoundland was another step. Of the eight points of the Atlantic Charter, two bear directly on world organization.[17]

The next important event was the United Nations Declaration signed by President Roosevelt of America, Winston Churchill of Britain, Maxim Litvinov of Russia and T.V. Soong of China on January 1, 1942.[18]

San Francisco Conference was held on June 25, 1945. It was attended by a large number of States and was presided over by Lord Halifax. In this Conference, the U.N. Charter was voted and was ultimately unanimously adopted. Charter of the United Nations came into force on October 24, 1945 when China, France, Britain, America and Russia signed it and ratified it.[19]

The United Nations has a distinct legal personality of its own apart from those of its members. It has it’s headquarter and officials. According to Article 104 of the Charter, the Organisation shall enjoy in the territory of each of its members such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purpose. Thus the United Nations is a legal person and is a subject of International Law.[20]

The main purposes of the United Nations, as per Article 1, are to maintain International Peace and Security and to develop friendly relations among States. In pursuit of achieving its purposes the Organisation shall act in accordance with principles of sovereign equality of all members, peaceful settlement of international disputes, principle of non-intervention etc.[21]

According to Charter of United Nations, there may be two types of members: (i) Original members, and (ii) States which may be admitted to the United Nations in accordance with the provisions of Article 4 of the Charter.

Principal Organs of the United Nations –

Following are the six principal organs of the United Nations –

        i.            The General Assembly,

      ii.            The Security Council,

    iii.            The Economic and Social Council,

    iv.            The Trusteeship Council,

      v.            The International Court of Justice, and

    vi.            The Secretariat.

 The Security Council –

The Dumbarton Oaks proposals had envisaged the need for an executive organ of limited membership which would be entrusted with the “primary responsibility for the maintenance of international peace and security.”[22] The increased degree of decentralization of the procedure for maintaining international peace and security made Security Council even more essential than the Council of the League.[23]

Composition –

In accordance with the provision of Article 7 of the Charter of United Nations, the Security Council is one of the Principal Organs of the United Nations. It comprises of 15 members (5 permanent members and 10 non-permanent members). China, Russia, America, France and Britain are the permanent members of the Security Council. The first Security Council came into being on 12^th January, 1946, when the general assembly elected its 6 members. On 17^th December, 1963 amendment to Article 23 of Charter was adopted by the General Assembly. It provided that Security Council would consist of 15 members – 5 permanent and 10 non-permanent members. This amendment came into force on 31^st August, 1965. Non-permanent members are elected by General Assembly for the period of 2 years[24] and are not immediately eligible for re-election.[25]

The five permanent members enjoy an exceptional status not only by virtue of their permanency but also by reason of special voting rights amongst which the most important is the power of “veto”. The basic premise was that upon these members would fall the brunt of the responsibility for maintaining international peace and security and, therefore, to them must be given the final or decisive vote in determining how the responsibility should be exercised.[26]

The Council has currently three permanent committees, being a Committee of Experts on Rules of Procedure, a Committee on Admission of New Members and a Committee on Council meeting away from Headquarters. There are also a number of ad hoc committees, such as the Governing Council of the United Nations Compensation Commission[27], the Counter-Terrorism Committee[28] and the Committee established by resolution 1540 (2004), which obliges states inter alia to refrain from supporting by any mean non-state actors from developing, acquiring, manufacturing, possessing, transporting, transferring or using nuclear, chemical or biological weapons and their delivery systems.[29]

Voting Procedure –

The voting procedure is stated in Article 27 of the United Nations Charter. Decisions in the 15-member Security Council on all substantive matters require the affirmative votes of nine members. A negative vote, a veto, by a permanent member prevents adoption of a proposal, even if it has received the required number of affirmative votes. Abstention is not regarded as a veto. Since the Security Council’s inception, China (ROC/PRC) has used 5 vetoes; France, 18; Russia/USSR, 122; the United Kingdom, 32; and the United States, 81.

The permanent members may use the veto power in two different occasions; firstly, at the time of deciding the nature of the matter and, secondly, when the Council is taking any decision on a non-procedural matter. The combined effect of the above is that the Council cannot take a decision even on a procedural matter if the same has been made non-procedural by the exercise of the right of veto by any permanent member. The exercise of veto power on two different occasions has been referred to as ‘double veto’.[30]

A state that is a member of the UN, but not of the Security Council, may participate in Security Council discussions when the Council agrees that this country’s interests are particularly affected. In recent years, the Council has interpreted this loosely, enabling many countries to take part in its discussions. Non-members are invited to participate in the Council’s discussions when they are parties to disputes being considered by the Council.[31]

 Functions and Powers –

These are stated in Articles 24-26 of the Charter. The Council’s primary function, the maintenance of international peace and security, is to be exercised by two means; the first is the pacific settlement of such international disputes as are likely to endanger international peace and security, and the second (which presupposes the failure or inapplicability of the first) is the taking of enforcement action.[32]

(i) Pacific settlement of Disputes –

Under Chapter VI of the Charter, “Pacific Settlement of Disputes”, the Security Council “may investigate any dispute or any situation which might lead to international friction or give rise to a dispute”. The Council may “recommend appropriate procedures or methods of adjustment” if it determines that the situation might endanger international peace and security. These recommendations are not binding on UN members.[33]

The following have a right to submit disputes to the Council: the General Assembly[34], the Secretary-General[35], member States[36], and non-member States[37]. There is also a duty imposed on parties to a dispute likely to endanger international peace and security to submit the dispute to the Council if they cannot settle it by traditional means.[38]

In dealing with a dispute the Council has a number of alternative ways of proceeding open to it. It may simply call upon the parties to utilize the traditional means of settlement, leaving the choice of any particular means to the parties.[39] Or it may, under Article 36(1), recommend a particular means of settlement. The council may even go further and, under Article 37(2), recommend the actual terms of a settlement in addition to the means or procedures for settlement.

(ii) Enforcement Action –

Under Chapter Seven, the Council has broader powers to decide what measures are to be taken in situations involving “threats to the peace, breaches of the peace, or acts of aggression”. In such situations, the Council is not limited to recommendations but may take action, including the use of armed force “to maintain or restore international peace and security”. This was the basis for UN armed action in Korea in 1950 during the Korean War and the use of coalition forces in Iraq and Kuwait in 1991. Decisions taken under Chapter Seven, such as economic sanctions, are binding on UN members.[40]

The Security Council has two forms of enforcement action available to it; those described in Article 41, i.e. not involving the use of armed forces, and those prescribed in Article 42, i.e. involving actions by air, sea or land forces.

(i) Measures involving non-use of Force –

These measures include ‘complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio and other means of communication and severance of diplomatic relations.’[41] In order to take measures provided under Article 41, States have made provisions in their municipal laws. India in 1947 enacted the United Nations Act[42] which provided that if the Security Council calls upon the Central Government to apply any measures not involving the use of armed forces the Central Government may make such provisions as appear to it necessary for enabling those measures to be effectively applied.

Measures under Article 41 have been taken in the following cases –

·         After the Iraq’s invasion of Kuwait in 1990, the Council imposed mandatory economic sanction against Iraq.[43]

·         Following the destruction of the two civilian aircrafts – Pan American which exploded over Scotland and UTA explosion in Niger, the Security Council adopted a resolution wherein it condemned the Libyan act.[44]

·         The former Yugoslavia consisted of six constituent Republics, but following the internal disorder and crisis three of the Republics were seceded from Yugoslavia. The fighting between Yugoslavia and the new States deteriorated the situation in the region. The Council by adopting a resolution[45] urged parties to end conflict and abide by the cease-fire. When the fighting did not stop, the Council imposed both economic and diplomatic sanctions including a flight ban.

·         A complete embargo on the delivery of weapons and military equipment to Libya was imposed by the Security Council on November 19, 1992[46] after condemning the cease-fire violation and attacks on West-African peace-keeping forces.

·         In Haiti the first democratically elected president was ousted by the military coup in 1991. Thereafter violation of Human Rights began to occur in large scale. When the situation deteriorated in Haiti the International Civil Mission was approved by General Assembly to Haiti. When the situation did not improve, the Council unanimously adopted a resolution[47] by which oil and arms embargo was imposed.

·         On April 26, 1996, the Security Council by adopting resolution 1054 (1996) imposed diplomatic sanction against Sudan for giving shelter to three Egyptians who were wanted in connection with the assassination attempt on the life of Egyptian President.

·         The Security Council adopted a resolution[48] on March 31, 1998 and decided that ‘all States shall for the purposes of fostering peace and stability in Kosovo, prevent the sell and supply to Yugoslavia, from their territories, of arms and related materials of all types.’

·         The Council by adopting the resolution 1333 (2000) imposed sanctions which included arms embargo covering all types of weapons and related matters, as well as ban on the provision of technical training or advice related to the military activities of armed personnel under Taliban Control.[49]

·         North Korea became a party to Non-Proliferation Treaty in 1985 but it withdrew from NPT in 2003. Later, in 2006, it conducted a test of a nuclear weapon which the Security Council considered that it poses danger to peace and stability in the region and beyond. The Council adopted a resolution[50] wherein it was laid down that all members shall prevent the direct or indirect supply, sale or transfer to North Korea, through their territories or by their nationals any battle tanks, armored combed vehicles, large caliber artillery systems etc.

 

(ii) Measures involving Use of Armed Force –

If the Security Council considers that measures provided for in Article 41 are not adequate or they have proved to inadequate, ‘it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.’[51] These may include demonstration, blockade, and other operations by air, sea or land forces of Members of United Nations.

The above implies that the United Nations’ system of collective security presupposes the conclusion of military agreements supplementary to the Charter. In the absence of agreements there is no guarantee that the Council will ever be able to apply military sanction.[52]

 

Miscellaneous Functions –

Besides performing its main responsibility of maintaining international peace and security, the Council performs a number of other functions which have been conferred to it under the Charter –

·         The Council may recommend the Assembly for admission of a State in the United Nations.[53] The Assembly may admit a member only when the Council gives a favourable recommendation.

·         The Council has been empowered to recommend the Assembly to suspend[54] or expel[55] a member of the United Nations.

·         The council is empowered to control and supervise the strategic areas of the trust territories.[56]

·         The Council recommends the Assembly for the appointment of the Secretary-General of the United Nations.[57]

·         The Security Council may convoke a special session or an emergency special session of the General Assembly by making a request to the Secretary-General.[58]

Collective Security –

By the term ‘collective responsibility’ is meant the measures taken by the United Nations with the application of tangible pressure in situations amounting to threat to the peace, breach of peace or acts of aggression. A system of collective security is formalized legally through a treaty.

If the Council determines under Article 39 that there exists threat to the peace, breach of the peace of an act of aggression, it may take an action as provided under Article 41 and 42 of the Charter. This action is taken by the members of United Nations collectively in order to maintain international peace and security.[59]

The UN’s role in international collective security is defined by the UN Charter, which gives the Security Council the power to:

·         Investigate any situation threatening international peace;

·         Recommend procedures for peaceful resolution of a dispute;

·         Call upon other member nations to completely or partially interrupt economic relations as well as sea, air, postal, and radio communications, or to sever diplomatic relations; and

·         Enforce its decisions militarily, if necessary.

Conclusion –

The failure of the Council in its primary responsibility to preserve world peace stimulated a number of other developments. It encouraged the General Assembly to assume a residual responsibility for maintaining international peace and security, it encouraged the Secretary-General to take upon himself a more active role and it hastened the development of peacekeeping operations. It also encouraged in some measure the establishment of the military alliances, such as NATO and the Warsaw Pact, which arose as a consequence of the onset of the Cold War and constituted, in effect, regional enforcement systems bypassing the Security Council.[60]

The failure of Security Council to fulfill its primary purposes of maintaining international peace and security has led to three major developments. The first is the assumption by the Assembly of a role which was certainly never intended for it, namely that of determining a breach of the peace or an act of aggression and recommending action by members, including the use of armed forces. The second is the development of powerful regional security systems or alliances outside the UN, such as NATO or Warsaw Treaty Organisation, a development symptomatic of the breach of unity between the permanent members and lack of confidence in the efficacy of the general collective security system based on the Security Council. The third is the development of “peace-keeping” operations under either Chapter VI or Chapter VII of the Charter, using limited military forces, voluntarily contributed by Member States, for observation and fact finding (e.g. UNTSO, UNMOGIP(Kashmir)) or maintain law and order in a situation involving an actual or incipient threat to peace. [61]

The UN has helped prevent many outbreaks of international violence from growing into wider conflicts. It has opened the way to negotiated settlements through its service as a center of debate and negotiation, as well as through UN-sponsored data collecting missions, mediators, and truce.

Submitted by:
SACHIN
B.A LL.B (HONS)
H.N.L.U RAIPUR

 
 

I.S.S.N No:-2321 6417

 

 

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