United Nations

“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