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The Authority of the United Nations to Establish and Maintain a Permanent United Nations Force

Published online by Cambridge University Press:  06 June 2017

Louis B. Sohn
Louis B. Sohn*
Affiliation:
Harvard Law School
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Extract

The establishment of the United Nations Emergency Force (UNBF) during the Middle Eastern crisis in November, 1957, has been generally accepted as being a proper exercise of the powers of the United Nations. Proposals have been made, however, to establish a more permanent force, either on a full-time or stand-by basis, for use in future emergencies.

Type
Research Article
Information
American Journal of International Law , Volume 52 , Issue 2 , April 1958 , pp. 229 - 240
Copyright
Copyright © American Society of International Law 1958

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References

1 For an analysis of the problems involved in the establishment of the United Nations Emergency Force, see the Report of the Committee on Study of Legal Problems of the United Nations in 1957 Proceedings of the American Society of International Law, pp. 206-229.

2 Pearson, “Force for U.N.,” 35 Foreign Affairs 395, 401-402 (1957); Foreign Minister of Pakistan (Mr. Firaz Khan Noon), statement before the General Assembly on Nov. 29, 1957, 11th Sess., Official Records, Plenary Meetings, p. 417; Hammarskjold, in the Introduction to the Annual Report of the Secretary-General on the Work of the Organization, 1956-1957, General Assembly, 12th Sess., Official Records, Supp. No. 1A (Doc. A/3594/Add. 1), pp. 1-2.

3 U.N. Charter, Arts. 1, 24, 39. See United Nations Conference on International Organization, Documents, Vol. 12, pp. 502-514.

4 U.N. Charter, Art. 2, par. 7.

5 Id., Art. 25.

6 Id., Arts. 40-42.

7 [1949] I.C.J. Rep. 174, 182.

8 Even the Soviet Delegation seems to agree that the Security Council could establish a TJ.N. Force; it raised objections, however, to the establishment of the U.N. Emergency Force by the General Assembly. General Assembly, 1st Emergency Spec. Sess., Official Records, Plenary Meetings, p. 127. For a broad interpretation of the powers of the Security Council to establish an international armed force for Palestine, see the working paper of the U.N. Secretariat of Feb. 9, 1948, U.N. Doc. A/AC.21/13, pp. 7-11.

9 U.N. Charter, Art. 24.

10 Id., Art. 11, par. 1.

11 But a state is not entitled simply to ignore a recommendation of the Assembly, and it is at least bound to explain to the Assembly why it cannot comply with the recommendation. States must give due consideration to the recommendations of the Assembly; their discretion to refuse compliance is always limited by their duty, under par. 2 of Art. 2 of the Charter, “ t o fulfil in good faith the obligations assumed by them in accordance with” the Charter. Cf. the separate opinion of Judge Lauterpacht in the case of the “Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South-West Africa,” [1955] I.C.J. Rep. 67, 117-120.

12 Res. 377 A (V) of Nov. 3, 1950, General Assembly, 5th Sess., Official Records, Supp. No. 20, pp. 10-12 (Doc. A/1775); 45 A.J.I.L. Supp. 1 (1951). It does not seem necessary to discuss here all the problems raised by the Uniting for Peace Resolution, as only some of its provisions are relevant to the subject of this memorandum. For a discussion of these problems see J. Andrassy, “Uniting for Peace,” 50 A.J.I.L. 563-582 (1956); L. M. Goodrich and A. P. Simons, The United Nations and the Maintenance of International Peace and Security, pp. 406-423, 430-433 (Washington, 1955); H. Kelsen, Recent Trends in the Law of the United Nations, pp. 953-990 (London, 1951). It may be noted that the Soviet Union, in the Middle East crisis of 1956, acquiesced in the use by the General Assembly of its powers under the Uniting for Peace Resolution, at least in a case of an attack by one state on another. The Soviet opposition to the action of the Assembly in the Hungarian question was not related to the Uniting for Peace Resolution, but was based primarily on the ground that an issue of domestic jurisdiction was involved there.

13 Res. 377 A (V); last par. of Preamble.

14 Ibid., par. 7.

15 U.N. Charter, Preamble and Art. 1. See also Arts. 43, 45.

16 For a tabulation of these replies, see First Report of the Collective Measures Committee of 1951, Annex II ; General Assembly, 6th Sess., Official Records, Supp. No. 13, pp. 37-48 (Doc. A/1891).

17 No clear reference is contained in any resolution on the subject, and the Secretary General, in his final report of Nov. 6, 1956, refers only to the fact that the Force would be functioning “on the basis of a decision to be reached under the terms of the Resolution 337 (V) ‘Uniting for Peace',” without specifying the relevant section of the resolution. U.N. Doc. A/3302, par. 9.

18 See Res. 377 A (V) (loc. cit. note 12 supra), par. 1.

19 Introduction to the ‘’ Regulations for the United Nations Emergency Force'’ of Feb. 20, 1957, U.N. Doc. A/3552; Agreement between the United Nations and Egypt of Feb. 8, 1957, U.N. Doc. A/3525, pp. 2, 7.

20 General Assembly, 1st Sess., Official Records, First Pt., Resolutions, p. 25 (Doc. A/64); 43 A.J.I.L. Supp. 1 (1949).

21 See Regulations (loo. cit. note 19 supra), par. 19 (a); Agreement (Joe. oit. note 19 supra), pp. 8-9.

22 See, for instance, the Report of the Secretary General on the United Nations Guard of Sept. 28, 1948. U.N. Doc. A/656, pars. 10-11, and Appendix A (Legal Basis of the Guard).

23 Res. 1001 of Nov. 7, 1956, General Assembly, 1st Emergency Spec. Sess., Official Records, Supp. No. 1, p. 3 (Doc. A/3354).

24 Ibid., pars. 6-8.

25 Ibid., par. 9.

26 Statement by the Secretary General, Nov. 7, 1956. General Assembly, 1st Emergency Spec. Sess., Official Records, Plenary Meetings, p. 119.

27 Regulations for the U.N. Emergency Force of Feb. 20, 1957, U.N. Doc. ST/SGB/ UNEF/1, pars. 11, 15, 16.

28 In his report of Feb. 11, 1957, the Secretary General made the distinction “between recommendations which implement a Charter principle, which in itself is binding on Member States, and recommendations which, although adopted under the Charter, do not implement any such basic provision. A recommendation of the first kind would have behind it the force of the Charter, to which collective measures recommended by the General Assembly could add emphasis, without, however, changing the legal character of the recommendation. A decision on collective measures referring to a recommendation of the second kind, although likewise formally retaining its legal character, would mean that the recommendation is recognized by the General Assembly as being of such significance to the efforts of the United Nations as to assimilate it to a recommendation expressing an obligation established by the Charter.” TJ.N. Doc. A/3527, par. 20.

29 U.N. Charter, Art. 18, par. 2.

30 Second Report of the Secretary General on the Plan for the TJ.N. Emergency Force, Nov. 6, 1056, TJ.N. Doc. A/3302, par. 9. See also his statement as to the stationing of troops on the Egyptian-Israeli armistice line, of Jan. 24, 1957, TJ.N. Doc. A/3512, pars. 5 (b), 20.

31 See, for instance, the statements by the U. S. representative (Mr. Johnson) in the Greek Case in July, 1947, Security Council, Official Records, 2nd Year, Nos. 61, 63 and 64, pp. 1423, 1523, 1540-1541. But the proposed XI. S. resolution -was vetoed by the Soviet Union.

32 Cf. Arts. 12, 37, 38, 54 (1) and (m) 57, 90 of the Convention on International Civil Aviation of Dec. 7, 1944, 15 TJ.N. Treaty Series 295; and Arts. 21-22 of the Constitution of the World Health Organization of July 22, 1946, 14 ibid. 185.

33 See the statement by the Foreign Minister of Egypt of Nov. 27, 1956, General Assembly, 11th Sess., Official Records, Plenary Meetings, p. 348.

34 See note 20 above.

35 See note 19 above.

36 T.I.A.S., No. 2846; 48 A.J.I.L. Supp. 83 (1954).

37 If the U.N. Force should be composed of volunteers rather than of national contingents, it might be necessary to combine in the hands of the U.N. Command the powers which are divided in the Egyptian agreement between the Command and the states which have contributed contingents to the U.N. Emergency Force. In addition, it would be necessary to establish more detailed military regulations for the Force and appropriate procedures and tribunals for the trial of violators.