“The Charter of the United Nations was signed by States Members at San Francisco on 26 June 1945 and came into force on 24 October 1945. A corner stone of the Charter is the collective determination to “maintain international peace and security’ to save “succeeding generations from the scourge of war”. The Charter attempts to obtain this objective by providing in Article 2 five pillars on which the United Nations stands:

1. Sovereign equality of all its Members;
2. Obligation to settle their international disputes by peaceful means;
3. Commitment by Members to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations;
4. Non-interference, even by the United Nations, “in matters which are essentially within the domestic jurisdiction of any state”; and
5. To achieve international co-operation through, inter alia, promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.

In order to ensure the commitment by Members to maintain international peace and security, the Charter provides for collective action to address threat to international peace and security through the Security Council, established under Chapters V, VI and VII. Essentially, the Security Council is charged with the primary responsibility for the maintenance of International peace and security and its decisions are binding on Member States. The powers of the Security Council, include investigating disputes to determine whether they endanger the maintenance of international peace and security; making recommendations for settlement of disputes referred to it, including reference of the parties to the International Court of Justice in the case of legal disputes – now this includes reference to the International Criminal Court under the Statute establishing that Court. The Security Council, under Chapter VII, is required to 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”, under the Charter, to maintain or restore international peace and security. Such action may include economic sanctions, severance of diplomatic relations, interruptions of communications as well as such punitive actions as blockade, by air, sea or land forces of Members of the United Nations.

The powers conferred on the Security Council under the Charter, for the maintenance of international peace and security, override the other requirements under the same Charter to respect the sovereign equality of states, non-use of force against the territorial integrity of such states and non-interference in the domestic affairs of states. There are, however, two exceptions to the plenary authority of the Security Council and these are contained in Articles 51 (self-defense) and Article 52 (regional collective action). Another possible exception arising from the commitments by Members under the Charter to respect human rights and fundamental freedoms, is the right of humanitarian intervention, not specifically prescribed under the Charter.

The right of self-defense which is enshrined in Article 51 of the Charter, is formulated in the following terms:

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

The Charter preserves the right of states to form regional arrangements and agencies for dealing with “such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the Purposes and principles of the United Nations”. This provision in paragraph 1 of Article 52 would suggest that the primary role of these arrangements and agencies are to promote pacific settlement of disputes, leaving enforcement action to the Security Council. Article 52 reads:

1. Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations.
2. The Members of the United Nations entering into such arrangements or constituting such agencies shall make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council.
3. The Security Council shall encourage the development of pacific settlement of local disputes through such regional arrangements or by such regional agencies either on the initiative of the states concerned or by reference from the Security Council.
4. This Article in no way impairs the application of Articles 34 and 35.”

The article attached here, entitled: “The Primacy of Regional Organizations in International Peacekeeping: The African Example”, examines the scope of Article 52 and state practice and concludes that while the United Nations Charter preserves primacy of regional arrangements or agencies over pacific settlement of dispute for maintenance of international peace and security consistent with the Principles and Purposes of the United Nations, in the recent decades, however, regional organizations, rather than the UN Security Council, have also taken a first-instance role in peacekeeping involving the use of force, a development not foreseen under the Charter.

Comments on this discussion of an important aspect of International Law are cordially invited and will be reported here for the benefit of users. Please address your comments to: fsseka@jurisafrica.org.”

Articles:

• The Primacy of Regional Organizations in International Peacekeeping: The African Example

1. Constitutive Act of the African UnionWe begin in this database by producing the text of the Constitutive Act of the African Union adopted at Lusaka, Zambia 2001. The Act is unique not only for its brevity but also for the extraordinary provisions incorporated in it for an African blue print. The Act espouses democratic governance and sanctions military takeovers with sanctions for defiant States. It provides for collective action to prevent humanitarian catastrophes such as occurred in Sierra Leone and Rwanda, and other acts of genocide. The Union will, however, be judged on its success to incorporate the ambitious program of the African Economic Community Treaty which called for progressive eradication of trade barriers and eventual economic integration of Africa. Left without institutions, the AEC Treaty still remains a mere set of aspirations, dependent on the success of the regional economic unions, which it supports. It thus remains to be seen if the African Union institutions will act to make the AEC Treaty a reality. Please see AU Constitutive Act and African Economic Community.
2. The Banjul CharterThe database also includes the African Charter on Human and Peoples’ Rights, popularly referred to as the ‘Banjul Charter’, the capital city of The Gambia, where the Charter was drafted, or just ‘The African Charter’. The African Charter is unique among the other regional human rights instruments, such as the Latin American Charter of Human Rights and the European Human Rights Charter, which take as their point of reference the rights of the individual person. The African Charter, while acknowledging the rights of the individual, identifies and deposits as universal norms, not only the rights of the individual but also the duties of such individual to his/her family, community, country and the international community. Thus the individual has a duty to respect and care his/her parents and to serve the interests of hi/her country. The African Charter then goes farther to recognize the rights of groups, which in itself is an innovation, especially, as regards such groups national as liberation movements, in their struggle to attain the right to self-determination, another right not universally acknowledged. The Charter also proclaims additional rights such as the right to development and states that civil and political rights cannot be dissociated from economic, social and cultural rights. There is currently moves to establish a Human Rights Court, which it is hoped will have the jurisdiction to interpret, develop and implement the rights postulated in the Charter, although given the aversion for adversarial dispute resolution mechanisms, Governments in Africa might not be as amenable to this form of human rights enforcement as the more conciliatory method established in the Charter, through investigations by the Human Rights Commission and diplomatic representations. Please refer to Banjul Charter.
3. East African CommunityThe East African Economic Community, which brings together Tanzania, Kenya and Uganda is one of the oldest regional economic groupings in Africa. The current Treaty which was concluded on 30 November 1999 was a revival of the Treaty which had been concluded in 1967, setting up the East African Community but which was dissolved in 1977. Prior to independence, Tanzania, Kenya and Uganda, operated a common customs union under the East African High Commission, established in 1947, with subsequent revisions, until it was replaced by the East African Community. The three countries had common railways, harbours, an airline, and customs arrangements including a common currency and University Council. The push for sovereign independence led to gradual disbandment of these institutions until the total rupture of the carefully nurtured East African Common Market in 1977.The revival of the Community has given hope to possible closer economic ties and even a political union some day. There is also a movement to include other states in the Great Lakes region such as Rwanda and Burundi. A greater political union would be a solution to the civil strife which has plagued the region. The free exchange of goods and freedom of movement would spur economic development and eliminate petty differences among largely homogenous peoples.

   The East African Community Treaty, as currently constituted, aims essentially at reducing trade barriers through tariff reductions for locally manufactured goods and establishing a common customs union for imported goods. The Treaty establishes an East African Court for resolution of disputes arising from implementation of the Treaty provisions. This court, however, is a far cry to the court of the same name which heard appeals from the superior courts of the three territories. The current court has no such jurisdiction.

   It is hoped that the three countries will explore and develop those areas where there is common interest and gradually find common ground to unite the peoples of Eastern Africa in a political federation that can generate economic prosperity for the region. Please see East African Community Treaty.

4. New River Nile AgreementThe signing of the Nile River Agreement (see attached newspaper article), by the riparian States, Uganda, Rwanda, Kenya and Ethiopia, marks a milestone in this international controversy between states using the waters of the Nile River that has occupied the best minds in resource management and regulation of international waterways. Please see The Nile River Agreements: New Vision and Nile River Agreement by Valerie Knobelsdorf.

Articles:

• Nile River Agreements
• Trade and Development
• 27-trips
• Banjul Charter
• Constitutive Act
• TREATY+ESTABLISHING+SADC.Abridged.06.06
• TRIPS and Development.4