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United Nations Peacekeeping and Host State Consent

Published online by Cambridge University Press:  28 March 2017

Jack Israel Garvey
Jack Israel Garvey*
Affiliation:
Illinois Bar; A.B., 1964, J.D., 1968, Harvard University
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Extract

In the evolution of United Nations peacekeeping, the United. Nations Emergency Force, which was created in 1956 and withdrawn from the Middle East in 1967, is of special importance. The UNEF is now the archetype for peacekeeping based on the “consent” of the state on whose territory a United Nations force is stationed; and this concept of consent has become the central characteristic of United Nations peacekeeping. It has been the heart of the peacekeeping capacity that has devolved on the General Assembly acting through its “Uniting for Peace” procedure, and it has been a primary element in the legal and political foundation of peacekeeping forces authorized on the basis of Security Council resolutions.

Type
Research Article
Information
American Journal of International Law , Volume 64 , Issue 2 , April 1970 , pp. 241 - 269
Copyright
Copyright © American Society of International Law 1970

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References

1 Examples of the latter implementation are the Congo and Cyprus operations; and in confirmation of the importance of the concept of consent even where Security Council authorization is involved, the International Court of Justice in its Advisory Opinion on Certain Expenses of the United Nations, [1962] I.C.J. Rep. 151, focused on “consent“ as a critical factor on the basis of which the Congo Force was characterized by the Court as not involving “enforcement action” under Ch. VII of the Charter.

2 United Nations Emergency Force, Special Report by the Secretary-General, U.N. Doc. A/6669, p. 9, May 18, 1967.

3 New York Times, May 26, 1967, 1:3.

4 A former deputy U. S. Representative to the United Nations.

5 6 Int. Legal Materials 581 (1967).

6 New York Times, June 20, 1967, 17: 2-7.

7 The Secretariat's justification for its action includes the following documents: Report of the Secretary-General on the Withdrawal of the United Nations Emergency Force, U.N. Doc. A/6730/Add. 3, June 26, 1967; General Assembly, 22nd Sess., OfBcial Records, United Nations Emergency Force, Special Report by the Secretary-General, U.N. Doc. A/6669, May 18, 1967; Security Council, Official Records, Report by the Secretary-General, Doc. 7896, May 19, 1967; and Report by the Secretary-General, U.N. Doc. S/7906, May 26, 1967; General Assembly, 22nd Sess., Official Records, UNEF, Special Report of the Secretary-General, Doc. A/6669/Add. 2, June 19, 1967; and UNEF, Report of the Secretary-General, Doc. A/6672, July 17, 1967.

8 General Assembly, 11th Sess., Official Records, Annexes, Agenda item 66, U.N. Doc. A/3375, Annex.

9 6 Int. Legal Materials 595 (1967).

10 Ibid.595.

11 Ibid.599.

12 Ibid.600.

13 Ibid. 602.

14 General Assembly, Official Records, Res. 1000 (ES-I), 565th plenary meeting, Nov. 5, 1956.

15 General Assembly, Official Records, Res. 1125 (XI), 652nd plenary meeting, Feb. 2, 1957 (U.N. Doc. A/3512).

16 See, e.g., U Thant's comments in his letter to the New York Times, June 20, 1967, p. 19. Reprinted in 6 Int. Legal Materials 603.

17 General Assembly, Official Records, Res. 997 (ES-I), 562nd plenary meeting, Nov. 2, 1956.

18 Ibid.

19 General Assembly, 11th Sess., Official Records, First Special Sess., Annexes, Agenda item 5, U.N. Doc. A/3302, par. 8, Nov. 6, 1956, as cited in U.N. Doc. A/6730/Add. 3, p. 24.

20 In his recently published volume, The UN and the Middle East Crisis, 1967, Professor A. Lall has similarly understood the early resolutions. He has written that the final amendment of Res. 1000 “was to bring within the terms of Egypt's acceptance of Resolution 1000 (ES-I) such matters as scrupulous observance of the provisions of the Armistice Agreement and refraining from introducing military goods into the area of hostilities. There is no time limit on these obligations, and their strict meaning would entail restraint by Egypt from deploying concentrations of forces close to the Israeli border in the Sinai and elsewhere. A corresponding obligation rests on Israel. [Citing Art. VII, pars. 4 and 5, of the Egyptian-Israeli General Armistice Agreement of Feb. 24, 1949.] Egypt's obligation may be regarded as somewhat greater because it voted for Resolution 997 and signified its acceptance of Resolution 1000 (ES-I).” [“Signified” by telegraphing its acceptance to the Secretary General on Nov. 5, 1956, after abstaining in the vote. See U.N. Doc. A/3295 (1956).] A. Lall, The UN and the Middle Easf Crisis, 1967, pp. 16-17 (1968).

21 Report of the Secretary-General: United Nations Emergency Force, Summary Study of the experience derived from the establishment and operation of the Force, U.N. Doc. A/3943, p. 60, Oct. 9, 1958.

22 Ibid.63.

23 That such was the way Dag Hammarskjöld himself conceived the problem is reflected in another instance by his statement that “it is further clear that the General Assembly, in its resolution of 5 November 1956, by the reference to its resolution of 2 November, had wished to reserve for itself the full determination of the tasks of this emergency force, and of the legal basis on which it must function in fulfillment of its mission.” U.N. Doc. A/3302, p. 4, Nov. 6, 1956.

24 Hammarskjöld had said that “the question which is not yet fully clarified is how far in the practical cases under consideration the duties of the Force go, and how far, therefore, certain arrangements for the Force are covered or not by the consent given by Egypt as qualified by its assurance of interpretation in good faith of the basic decisions of the General Assembly.” General Assembly, 11th Sess., Official Records, 649th plenary meeting (Feb. I, 1957), Vols. II-III, p. 1040.

25 A statement to this effect by the Secretary General was that “the stationing of the Force at Sharm-el-Sheikh, under such terms as those mentioned in the question posed by Israel, would require Egyptian consent.” U.N. Doc. A/3527, par. 5, Feb. 11, 1957. But it must be noted that the Secretary General was replying to an Israeli request for guarantees of freedom of navigation, and the Secretary General had always maintained that the deployment of UNEF could not result in any change of the status juris, and that any such change could be settled only by consent of the disputing parties.

26 6 Int. Legal Materials 595.

27 U.N. Doc. A/3375, Annex.

28 Report of the Secretary-General in pursuance of the Resolution of the General Assembly of 2 February 1957, U.N. Doc. A/2527, p. 5, par. 14, Feb. 11, 1957.

29 6 Int. Legal Materials 596.

30 Ibid.600.

31 General Assembly, 11th Sess., Official Records, 639th, 641st, 645th, 660th plenary meetings. See statements by New Zealand, France, Israel, and the Soviet Union.

32 General Assembly, 11th Sess., Official Records, 592nd meeting, Nov. 23, 1956, p. 268.

33 36 Dept. of State Bulletin 597 (1957).

34 The principle is reflected in an early report on UNEF where Hammarskjöld stated: “It follows from its terms of reference that there is no intent in the establishment of the force to influence the military balance in the present conflict and, thereby, the political balance affecting efforts to settle the conflict.” U.N. Doc. A/3302, p. 4, par. 8, Nov. 6, 1956. Or again it appears in another report where he said that the use of the consent force ”… must … be impartial, in the sense that it does not serve as a means to force settlement in the interest of one party, of political conflicts or legal issues recognized as controversial.” U.N. Doc. A/3512, p. 2, par. 56, Jan. 24, 1957.

35 U.N. Doc. A/6730/Add. 3, p. 15, June 26, 1967.

36 It should be noted that this statement was made at the end of 1958, well after all the resolutions establishing UNEF were voted by the General Assembly, including Res. 1125. Here, then, is also another confirmation that the Good Faith Accord was the legal heart of the mature as well as the infant UNEF. See also pp. 245-247 above.

37 From the beginning, similar official understanding of binding obligation appears. On Nov. 7, 1956, Dag Hammarskjöld stated: “ I have been asked for an interpretation of what I have said about the length of the assignment of the Force being determined by the need arising out of the present conflict. I am sure the Members will appreciate that, in the still unclear situation, it would be premature for me to say how the needs might develop after the end of the immediate crisis. However, the Force being under the ultimate authority of the General Assembly, I think that the point need not give rise to worries.” General Assembly, 11th Sess., Official Records, 567th plenary meeting, p. 115, Nov. 7, 1956. And as late as 1959, there appears another significant instance when the Secretary General officially declared in the General Assembly that heregarded Egypt's freedom of action as qualified. Referring to the thesis that use of military force other than under Ch. VII of the Charter requires the consent of the state on which the U.N. force is to operate, he said: “however, I fully agree that if this were the whole story, the situation would be most unsatisfactory. In practice the consent obviously must be qualified in such a way as to provide a reasonable basis for the operation of the United Nations Force. This is exactly the reason why, in November 1956, an arrangement was agreed upon with the Government of Egypt, according to which the Government of Egypt declared that when exercising its sovereign rights on any Emergency Force, it would be guided by its acceptance of the General Assembly resolution (1000 ES-1) of 5 November 1956.” General Assembly, Official Records, 649th meeting, Feb. 1, 1959, pp. 1039-1040, par. 111.

38 Canada, in fact, tabled a proposal to this effect. Moreover, the General Assembly effectively recognized the political fact by its statement in the founding resolution of UNEF that the plan in 1956 was “for the setting up with the consent of the Nations concerned, of an emergency United Nations Force.” General Assembly Res. 998 (ES-I), U.N. Doc. A/3354, Nov. 4, 1956. Emphasis added.

39 The Israeli delegate said in the General Assembly: ‘Interference by armed force, with ships of Israel flag exercising free and innocent passage in the Gulf of Aqaba and through the Straits of Tiran, will be regarded by Israel as an attack entitling it to exercise its inherent right of self-defense under Article 51 of the United Nations Charter and to take all such measures as are necessary to ensure the free and innocent passage of its ships in the Gulf and in the Straits.” General Assembly, 11th Sess., Official Records, 666th plenary meeting, p. 1276, March 1. 1957.

40 It was, in fact, reported of the blockade of the Strait of Tiran: ‘Israeli leaders now agree that war, from that moment, seemed inevitable.” New York Times, July 10, 1967 14: 1.

41 For example, in the United Nations’ initial response to the 1956 war, the Secretary General was entrusted with arranging for a cease-fire and the withdrawal of military forces. Res. 997 (ES-I), 999 (ES-I), and 1123 (XI). The General Assembly then asked the Secretary General to submit a plan for the creation of UNEF. Res. 999 (ES-I), General Assembly, 11th Sess., Official Records, 1st Emergency Special Sess., Supp. No. I (U.N. Doc. A/3354), p. 2. He subsequently submitted two reports which were approved by the General Assembly as the basic plan for the Force. First Report, General Assembly, 11th Sess., Official Records, Agenda item 5, U.N. Doc. S/3289; Second Report, ibid., Doc. A/3302. In the later implementation of UNEF the General Assembly delegated to the Secretary General the primary responsibility for the administration of the Force, Res. 1000 (ES-I), 1001 (ES-I), while the General Assembly itself remained only in the background for review and approval of the actions taken and decisions made by the Secretary General in interpreting his broad mandate. A particularly good example of the Secretary General's primary position is that the agreements with countries contributing contingents—agreements of critical importance—were concluded under the authority of the Secretary General. The same is true of the Agreement on the presence and functioning of UNEF in Egypt and the subsequent Agreement on the status of UNEF in Egypt. Report of the Secretary-General on Basic Points for the Presence and Functioning in Egypt of the United Nations Emergency Force, U.N. Docs. A/3375, Nov. 20, 1956, and 5 ST/SGB/UNEF. 1 Reg. 15. Perhaps the best example of all is the Good Faith Accord itself, which was drawn up at the initiative of the Secretary General and was the agreement that the parties regarded as the critical basis for the existence of the Force on Egyptian soil.

42 See p. 243 above.

43 Memorandum of important points in the discussion between the Representative of Israel and the Secretary-General on 25 February, 1957, U.N. Doc. A/3563, Annex, p. 1, Feb. 26, 1957, General Assembly, 11th Sess., Official Records, Annexes, Vols. II-III, Agenda item 66, p. 11.

44 General Assembly, Official Records, Res. 1001, 567th plenary meeting, Nov. 7,1956.

45 Hammarskjöld wrote: “In the case of UNEF, the General Assembly decided to organize an Advisory Committee under the chairmanship of the Secretary-General, to assist the operation. In practice, this arrangement has proved highly useful. In principle, it should be accepted as a precedent for the future. Extensive operations with serious political implications, regarding which, for practical reasons, executive authority would need to be delegated to the Secretary-General, require close collaboration with authorized representatives of the General Assembly. However, it would be undesirable for this collaboration to be given such a form as to lead to divided responsibilities or to diminished efficiency in the operation. The method chosen by the General Assembly in the case of UNEF seems to be the most appropriate one if such risks are to be avoided. The Committee is fully informed by the Secretary-General and his associates. There is a free exchange of views in closed meetings where advice can be sought and given. But ultimate decisions rest with the Secretary-General as the executive in charge of carrying out the operation. Dissenting views are not registered by vote, but are put on record in the proceedings of the Committee.” U.N. Doc. A/3943, p. 71, Oct. 9, 1958.

46 U.N. Doc. A/6730, par. 6, subpar. 3a.

47 U.N. Doc. A/6730, at subpar. 3(c), or as summarized by U Thant in U.N. Doc. A/6669, p. 5

48 See, e.g., James Reston in the New York Times, June 5, 1967, 1: 5. Yost, “How the Arab-Israeli War Began,” 46 Foreign Affairs 313-314 (1968). Both Reston and Yost refer to information received from “highly placed Egyptian sources.” It is notable that U Thant and also Ralph Bunche have paid the story the respect of a public reply. See New York Times, June 11, 1967, IV, 13: 1-2. Moreover, this version of the events is supported by public statements made by President Nasser at the time of the withdrawal. See May 25 speech by President Nasser on the blockade of Aqaba. New York Times, May 26, 1967, 16: 2-5. President Nasser is also reported to have confirmed it recently in a private interview. See The Chicago Sun-Times, April 24, 1969, p. 44: 1-6.

49 For a convincing elaboration and investigation of the suggestion that the UAR's original intention was not the total withdrawal of UNEF, see Nabil Elaraby, , “United Nations Peacekeeping by Consent: A Case Study of the Withdrawal of the United Nations Emergency Force,” 1 New York University Journal of International Law & Politics 171-173 (1968)Google Scholar.

50 The Secretary General has recounted his understanding as follows: “The exact intent of General Fawzy's letter needed clarification. If it meant the temporary withdrawal of UNEF troops from the line or from parts of it, it would be unacceptable because the purpose of the United Nations Forces in Gaza and Sinai is to prevent a recurrence of fighting and it cannot be asked to stand aside in order to enable the two sides to resume fighting. If it was intended to mean a general withdrawal of UNEF from Gaza and Sinai, the communication should have been addressed to the Secretary-General from the Government of the United Arab Republic and not to the Commander of UNEF from the Chief of Staff of the Armed Forces of the United Arab Republic.” U.N. Doc. A/6730, p. 4.

51 U.N. Doc. A/6669, p. 6.

52 See, e.g., U.N. Doc. A/6730/Add. 3, p. 7.

53 Press Release EMF/449, June 3, 1967, 6 Int. Legal Materials 584 (1967).

54 Fourteen Indians and one Brazilian were killed and sixteen Indians and one Brazilian were wounded when an Israeli aircraft strafed a UNEF convoy on June 5, by a mine explosion, and by artillery and mortar fire that fell on camps in which UNEF personnel were concentrated, including UNEF headquarters in Gaza town. U.N. Doc. A/ 6730/Add. 2, p. 4.

55 ” U.N. Doc. A/6730/Add. 3, p. 32.

56 Pp. 253-254 above.

57 I n a letter to the New York Times on June 11, 1967, Ralph Bunche wrote: “The reason for the Secretary-General's position that UNEF could not accept an order from one part of the line and remain on another part was that to do this would in fact make UNEF a party to the resumption of war by opening the door to a direct military confrontation between Israel and the United Arab Republic. Once the United Arab Republic decided to move its troops to any part of the line, which they could have done at any time during the last ten years, UNEF's presence ceased to have any useful function.“ New York Times, June 11, 1967, IV, 13: 2. But of course a total withdrawal instead of a partial withdrawal did not make UNEF any less “a party to the resumption of war by opening the door to a direct military confrontation.” The Secretariat did not recognize that in a situation like that at Sharm-el-Sheikh, partial withdrawal might have been one way to avoid the confrontation.

58 U.N. Doc. A/6730/Add. 3, p. 6.

59 U.N. Doc. A/6730/Add. 3, p . 18, par. 50.

60 The legal basis for the presence of the participating states was constituted by exchanges of letters. The Secretary General sent an identical letter to each contributing state, and the replies of the contributing states together with the Secretary General's letters were regarded as constituting agreements for provision of the contingents. The agreements were registered with the United Nations under Art. 102 of the Charter and were to remain in force until the departure of the contingents from Egypt. For the text of the Secretary General's letter, see U.N. Doc. A/3943, Annex I. For the replies, see 274 U.N. Treaty Series 199, No. 3966 (Brazil); ibid.41, No. 3957 (Canada); ibid. 81, No 3959 (Denmark); 271 ibid.135, No. 3913 (Finland); 274 ibid.233, No. 3968 (India); 271 ibid.223, No. 3917 (Norway); 271 ibid.187, No. 3914 (Sweden); 277 ibid.191, No. 4006 (Yugoslavia); Colombia and Indonesia sent no reply, and later withdrew their contingents.

61 Secretary-General, Summary Study of UNEF, U.N. Doc. A/3943, Annex 1, p. 3, par. 8. Emphasis added.

62 U.N. Doc. A/3943, par. 50, p. 23.

63 Ibid., pars. 6, 16, 34.

64 U.N. Doc. A/6730/Add. 3, p. 5.

65 Ibid., p. 8, pars. 2, 3.

66 See p. 256, note 45.

67 U.N. Doc. A/6730/Add. 3, p. 8.

68 Ibid., p. 15, par. 41.

69 U.N. Doc. A/3943, p. 63.

70 Ibid., p. 64.