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Legal Basis for United Nations Armed Forces

Published online by Cambridge University Press:  28 March 2017

John W. Halderman
John W. Halderman*
Affiliation:
World Rule of Law Center, Duke University School of Law
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Extract

The question of the legal basis for United Nations armed forces is one of immense practical significance for the future effectiveness of the organization in keeping the peace.

Type
Research Article
Information
American Journal of International Law , Volume 56 , Issue 4 , October 1962 , pp. 971 - 996
Copyright
Copyright © American Society of International Law 1962

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References

1 Lie, , In the Cause of Peace 346 (1954)Google Scholar.

2 Ball, The Elements of Our Congo Policy at 3 (Department of State Publication 7326, African Series 25, December, 1961).

2a For consideration of some of these issues, see I.C.J. Advisory Opinion of July 20, 1962, on Certain Expenses of the United Nations (Art. 17, par. 2, of the Charter), [1962] I.C.J. Rep. 151, reported below, p. 1053.

3 Seyersted refers to Art. 1(1) in this connection as embracing an “inherent capacity” of the Organization. “Can the United Nations Establish Military Forces and Perform Other Acts Without Specific Basis in the Charter?” 12 österreiehische Zeitschrift für öffentliches Recht 188, 214–215 (1962).

4 U.N. Doe. S/1501, June 25, 1950; Repertoire of the Practice of the Security Council 1946–1951, at 355 (U.N. Doc. ST/PSCA/1) (U.N. Pub. Sales No. 1954. VII. 1).

5 U.N. Doc. S/1511, June 27, 1950, ibid. 356.

6 U.N. Security Council, 5th year, Official Records, 476th Meeting 3 (U.N. Doc. S/P.V. 476) (1950). Accord: Schachter, “Legal Issues at the United Nations,” in Annual Review of United Nations Affairs 1960–1961, at 142 (Swift ed., 1961).

7 Professor Leo Gross considers that it is an action of the United Nations at least to the extent of obliging Members, under Art. 2(5), to “give the United Nations every assistance in any action it takes in accordance with the present Charter.” “Voting in the Security Council: Abstention from “Voting and Absence from Meetings,” 60 Yale Law J. 209, 254–255 (1951). Professors Julius Stone and Lacharrière consider that the operation took place outside the United Nations and had the legal nature of war. Stone, Legal Controls of International Conflict 234 (London, 1954); Lacharrière, , “L’Action des Nations Unies pour la Sécurité et pour la Paix ,” 18 Politique Etrangère 307, 333–334 (1953)Google Scholar.

8 Res. 498 (V), Feb. 1, 1951, General Assembly, 5th Sess., Official Records, Supp. No. 20A, at 1 (U.N. Doc. A/1775/Add. 1) (1951).

9 For a comprehensive compilation, see Gunter Weissberg, The International Status of the United Nations 78–105 (1961).

10 Res. 500 (V), May 18, 1951, General Assembly, 5th Sess., Official Records, Supp. 20A at 2 (U.N. Doc. A/1775/Add. 1).

11 Res. 498 (V), note 8 above.

12 Res. 288 (IV), General Assembly, 4th Sess., Official Records, Resolutions 9 (U.N. Doc. A/1251) (1949).

13 The Assembly’s Res. 39 (I), Dec. 12, 1946, recommending that Member states withdraw their ambassadors and ministers from Spain (General Assembly, 1st Sess., Official Records, Resolutions (2nd Pt.) 63–64 (TJ.N. Doe. A/64/Add. 1) (1947)), shared some of the characteristics of the embargo resolutions in the Korean and Greek cases. While not comprising full “diplomatic sanctions” (which is specifically authorized in Art. 41), it was the application of a modified form of this type of pressure, directed against the Spanish Government and in favor of its replacement by a more democratic regime. The resolution does not conform to the objective criteria of collective measures here under discussion since, according to a finding of a subcommittee of the Security Council, the situation to which it was directed did not constitute a threat to the peace. Report of the Sub-Committee on the Spanish Question, May 31, 1946, Security Council, 1st Year, Official Records, 1st Ser., Spec. Supp., Rev. ed. 8 (U.N. Doc. S/75).

14 Res. 998 (ES-I), General Assembly, 1st Em. Spec. Sess., Official Records, Supp. No. 1, at 2 (U.N. Doc. A/3354).

15 Res. 997 (ES-I), ibid.

16 Legal problems involved in the establishment of UNEF are discussed in the Report of the Committee on Study of Legal Problems of the United Nations, in 1957 Proceedings, American Society of International Law 206–229.

17 Decisions such as the following led to the establishment, organization and deployment of the Force: Establishment of the U.N. Command for UNEF, Res. 1000 (ES-I), Nov, 5, 1956, General Assembly, 1st Em. Spec. Sess., Official Records, Supp. No. 1, at 2–3 (U.N. Doc. A/3354); Appointment of the Chief of the Command, ibid.; Authorization of the latter to recruit an officer corps (ibid.) and to proceed with the full organization of the Force, Res. 1001 (ES-I), Nov. 7, 1956, ibid, at 3; Approval of the guiding principles and definitions of functions of the Force as expounded in a report of the Secretary General, ibid.; Authorization of the Secretary General to issue regulations and instructions for the Force and to take necessary executive and administrative measures, ibid.

18 Hula, , “The United Nations in Crisis,” 27 Social Research 387, 418 (1960)Google Scholar. To similar effect see Goodrich, and Rosner, , “ The United Nations Emergency Force,” 11 International Organization 413, 418 (1957)Google Scholar; Sohn, , “The Authority of the United Nations to Establish and Maintain a Permanent United Nations Force,” 52 A.J.I.L. 229, 234 (1958)Google Scholar.

19 An implication that the action was recommendatory might be drawn from the statement in the Secretary General’s early report on the Force, dated Nov. 6, 1956, that it was formed on the basis of a decision reached under the “Uniting for Peace” Resolution. Second and Final Report of the Secretary General on the Plan for an Emergency International United Nations Force Requested in the Resolution adopted by the General Assembly on 4 November, 1956, General Assembly, 1st Em. Spec. Sess., Official Records, Plenary Meetings and Annexes: Annexes, Agenda Item No. 5, at 19, 20 (U.N. Doe. A/3302) (1956). The resolution referred to provides only for recommendatory action on the part of the General Assembly. However in the later report of Oct. 9, 1958, it is merely indicated that UNEF was formed at a meeting called pursuant to the terms of the “Uniting for Peace” Resolution. United Nations Emergency Force: Summary Study derived from the establishment and operation of the Force: Report of the Secretary General, Oct. 9, 1958, General Assembly, 13th Sess., Official Records, Annexes, Agenda Item No. 65 at 8, 10 (U.N. Doc. A/3943) (1958).

20 Second and Final Report, note 19 above, at 21.

21 General Assembly, 1st Em. Spec. Sess., Official Records, Plenary Meetings 119–120 (U.N. Doc. A/P.V. 567) (1956).

22 Sehachter, loc. cit., note 6 above, at 142; Sohn, note 18 above, at 234–235; Chaumont, “La Situation Juridique des Etats Membres à l’Egard de La Force d’Urgence des Nations Unies,” 4 Annuaire Frangais de Droit International 399, 408—409 (1958). See also Frye, who regards UNEF as an extension of the General Assembly’s powers in the field of peaceful settlement of disputes: A United Nations Peace Force 13 (1957).

23 The Secretary General, in discussing with the Council possible methods of protecting the independence and territorial integrity of Lebanon, and of preventing infiltration of Lebanese borders, referred to a U. S. proposal, which had just been defeated by the veto, that an armed force be established and deployed by the Council for this purpose. The Secretary General indicated that such a force would be of the UNEF type, and while he emphasized its essentially defensive nature, he also reiterated the U. S. representative’s description of the proposed force as being empowered “ to fire in selfdefense in performance of [its] duties to prevent infiltration and to protect the integrity of the Lebanon.” Security Council, 13th Year, Official Records, 835th Meeting 8 (U.N. Doc. S/P.V. 835) (1958).

24 United Nations Emergency Force, note 19 above, at 31. Reports such as this by the Secretary General, in which he acted under instructions in formulating the principles applicable to UNEF (and later of the U.N. Force in the Congo), generally received the explicit or implicit approval of the Assembly or Council, and are herein regarded as representing official U.N. positions except as otherwise indicated.

25 Telegrams dated July 12 and 13, 1960, from the President and Prime Minister of the Republic of the Congo to the Secretary General, Security Council, 15th Year, Official Records, Supp. July-Sept., 1960, at 11 (U.N. Doc. S/4382) (1960).

26 Security Council, 15th Year, Official Records, 873d Meeting 3–5 (U.N. Doc. S/P.T. 873) (1960).

27 U.N. Doc. S/4387, July 14, 1960, Security Council, 15th Year, Official Records, Supp. July-Sept., 1960, at 16 (1960).

28 First Report by the Secretary General on the Implementation of Security Council Resolution S/4387 of 14 July, 1960, July 18, 1960, Security Council, 15th Year, Official Records, Supp. July-Sept., 1960 at 16, 19–20 (U.N. Doc. S/4389) (1960).

29 U.N. Doc. S/4741, Feb. 21, 1961.

30 See text accompanying note 52 below.

31 U.N. Doc. S/5002, Nov. 24, 1961.

32 First Report by the Secretary General on the Implementation of Security Council Resolution S/4387 of 14 July, 1960, note 28 above, at 17.

33 Annex VII to Report of the Secretary General on Certain Steps Taken in Regard to the Implementation of the Security Council Resolution Adopted on 21 February, 1961, at 2 (U.N. Doc. S/4752, Feb. 27, 1961).

34 Res. 1600 (XV), General Assembly, 15th Sess., Official Records, Supp. No. 16A, at 17, 18 (U.N. Doc. A/4684/Add. 1) (1961).

35 See note 23 above.

36 There appears to be, in fact, no contradiction in principle between “collective measures” and the rule of non-intervention. The former are, by definition, concerned wholly with international situations while the latter applies to “essentially domestic” matters.

37 E. M. Miller is in accord as far as concerns specific language, but holds that it was not the kind of armed force contemplated in the corresponding Charter articles. Miller, , “Legal Aspects of the United Nations Action in the Congo,” 55 A.J.I.L. 1, 7–8 (1961)Google Scholar.

38 Doc. No. 628, III/3/33, 12 U.N.C.I.O. Docs. 379, 380 (1945).

39 United Nations Conference on International Organization: Selected Documents 764 (1946).

40 See note 47 below and accompanying text.

41 Sohn, note 18 above, at 237; Schmidt, , “The Charter of the United Nations: An Instrument to Re-Establish International Peace and Security?” 33 Indiana Law J. 322, 337 (1958)Google Scholar; Seyersted, note 3 above, at 216.

42 Schachter, , “The Place of Law in the United Nations,” in 1950 Annual Review of United Nations Affairs 221 Google Scholar(Eagleton and Swift, editors, 1951). See also comment of Professor Hayton in Schaehter, loc. cit. note 6 above, at 156.

43 12 TJ.N.C.I.O. Docs. 507 (1945).

44 The corresponding provision of the Charter is Art. 36(1), in Ch. VI (on “Pacific Settlement of Disputes”), which reads: “The Security Council may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature, recommend appropriate procedures or methods of adjustment.”

45 The original French text of the Committee’s Rapporteur, M. Paul-Boncour, is: “règlement pacifique du différend ou de la situation.” Doc. No. 881 (French), III/3/46, 12 U.N. C. I. O. Docs. 522 (1945).

46 The ensuing paragraph of the comment, not reproduced here, makes it clear that the discretionary authority to resort to procedures of peaceful settlement or to invoke provisional measures in no way derogates from the duty of the Council to employ all necessary measures, including the possible use of force, in the event of actual aggression or other breach of the peace.

47 This line of thought was evidently precipitated by the proposal that the Council should establish an armed force to play a rôle in the Lebanese-Jordanian crisis of 1958. See note 23 above. In the Secretary General’s report on UNEF of Oct. 9, 1958, the distinction is noted in par. 179 between UNEF-type operations and combat operations, and it is said that the latter “would require a decision under Chapter “VTI of the Charter and an explicit, more far-reaching delegation of authority to the Secretary-General than would be required for any of the operations discussed here.’’ United Nations Emergency Force, note 19 above, at 31. A more affirmative description of the concept of the “UNEF-type” force is contained in the Secretary General’s annual report on the work of the organization, 1957–1958:

“It should, of course, be clear that any such force, unless it were to be called into being by the Security Council under Chapter VII of the Charter, must constitutionally be a non-fighting force, operating on the territories of the countries concerned only with their consent and utilized only after a decision of the Security Council or the General Assembly, regarding a specific ease, for those clearly international purposes relating to the pacific settlement of disputes which are authorized by the Charter. . . .” General Assembly, 13th Sess., Official Records, Supp. No. 1A at 2 (U.N. Doc. A/3844/ Add. 1) (1958). In an oral statement to the Assembly on Nov. 5, 1958, the Secretary General confirmed the implication of this statement that a force of this type, formed by the Council, would find its Charter authority in Ch. “VI. Ibid. Spec. Pol. Committee 63 (U.N. Doc. A/SPC/SR. 100) (1958).

48 This conclusion is derived from the official statement that it found its juridical basis, in part, in the existence of a threat to the peace in the Congo. Schachter holds that the operation is based on Ch. VII, basing this conclusion generally on the Council resolution of July 14, 1960, and subsequent resolutions, and mentioning particularly the Council’s action in its resolution of Aug. 9, 1960 (U.N. Doc. S/4426, Aug. 9, 1960, Security Council, 15th Year, Official Records, Supp. July-Sept., 1960, at 91–92 (I960)), calling upon Member states to accept and carry out the decisions of the Council as required by Arts. 25 and 49 of the Charter. Schachter, loc. cit. note 6 above, at 143.

49 First Report by the Secretary General on the Implementation of Security Council Resolution S/4387 of 14 July, 1960, note 28 above, at 19–20.

50 Annual Report of the Secretary General on the Work of the Organization 16 June 1960–15 June 1961, General Assembly, 16th Sess., Official Records, Supp. No. 1 at 27 (U.N. Doc. A/4800) (1960).

51 Statement made by the Secretary General at the 839th meeting of the Fifth Committee on 17 April 1961 (U.N. Doc. A/C.5/864).

52 Report of the Offieer-in-Charge of the United Nations Operation in the Congo to the Secretary General Relating to the Implementation of Paragraph A-2 of the Security Council Resolution of 21 February 1961 (U.N. Doc. S/4940, Sept. 14, 1961).

53 The Security Council based its acceptance of certain responsibilities vis-a-vis Trieste, as requested in the draft Peace Treaty with Italy, upon its responsibility for the maintenance of peace and security pursuant to Art. 24 of the Charter, notwithstanding that the functions in question seemed to go beyond Charter provisions specifically cited in Art. 24 as furnishing the Council’s powers for the discharge of its duties in this respect. Security Council, 2nd Tear, Official Records, 89th and 91st Meetings (1947).

54 Relations between the United Nations Palestine Commission and the Security Council. Ibid., 3d Tear, Supp., Jan.-March, 1948, at 14, 23 (TJ.N. Doc. A/AC. 21/13) (1948).

55 A comparable interpretation of Art. 24 appears to have been made by the Security Council with respect to the Trieste case. See note 53 above. See also note 3 above.

56 Res. 377 (V), Nov. 3, 1950, General Assembly, 5th Sess., Official Records, Supp. No. 20, at 10–12 (U.N. Doc. A/1775) (1950); 45 A.J.I.L. Supp. 1 (1951).

57 This general view was exemplified in the statements of the United States, Chile, France , Peru and Cuba, General Assembly, 5th Sess., Official Records, 1st Committee 64, 67, 70, 75, 79–80 (U.N. Doc. A / C . 1/SR. 354–357) (1950).

58 Ibid. 84–85.

59 Ibid. 90.

60 Ibid. 92. See also statement of Pakistani Delegation, ibid. 127.

61 A similar distinction is drawn in Vallat, “The General Assembly and the Security Council of the United Nations,” 29 Brit. Yr. Bk. of Int. Law 63, 97–100 (1952); and in Woolsey, “ T h e ‘Uniting for Peace’ Resolution of the United Nations,” 45 A.J.I.L. 129, 134 (1951). Some authorities consider that the resolution properly contemplates “collective measures” under the Charter, though it is not always clear as to whether these are regarded as taken by the United Nations, or by Member states acting outside the Organization. Bowett, “Collective Self-Defense under the Charter of the United Nations,” 32 Brit. Yr. Bk. of Int. Law 130, 156, note 3 (1955–1956); Kelsen, Recent Trends in the Law of the United Nations 974–975 (1951) ; McDougal and Gardner, “The Veto and the Charter: An Interpretation for Survival,” 60 Yale Law J. 258, 288–291 (1951); Sohn, note 18 above, at 234.

62 Some delegations thought that the measures contemplated in the resolution could best be classified as “collective self-defense” under Art. 51 of the Charter. General Assembly, 5th Sess., Official Records, 1st Committee 113 (Colombia), 130 (United Kingdom), 134 (Australia) (U.N. Docs. A/C. 1/SR. 361–364). That this was the view of the Secretary General was indicated in his Annual Report on the Work of the Organization for 1956–1957, ibid., 12th Sess., Supp. No. IA at 2, 3 (U.N. Doc. A/3594/Add. 1) (1957). To similar effect see Verdross, “ T h e Charter of the United Nations and General International Law,” in Law and Politics in the “World Community 153, 159–160 (Lipsky ed., 1953); Kunz, “Sanctions in International Law,” 54 A.J.I.L. 324, 336 (1960). See also Stone, 02?. cit. note 7 above, at 273–275. Contra: Woolsey, note 61 above, at 135; Waldock, “ The Regulation of the Use of Force by Individual States in International Law,” 81 Hague Academy Recueil des Cours 451, 505 (1952, II).

63 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, [1949] I.C.J. Rep. 174, at 182; 43 A.J.I.L. 589 (1949).

64 See introductory sentence of Secretary General’s letter of Feb. 8, 1957, included in Report of the Secretary General on Arrangements concerning the Status of the United Nations Emergency Force in Egypt, General Assembly, 11th Sess., Official Records, Annexes, Vol. II, Agenda Item No. 66, at 52–53.

65 New York Times, Feb. 1, 1961, p. 13, col. 3. See also Annual Report of the Secretary General on the Work of the Organization 16 June 1960–15 June 1961, op. cit. note 50 above, at 33, 37 (U.N. Doo. A/4800) (1961).