WithRegard To the International Law under the United Nations Charter,Critically Evaluate the Relationship between the UN Security Counciland Regional Organizations
WithRegard To the International Law under the United Nations Charter,Critically Evaluate the Relationship between the UN Security Counciland Regional Organizations
Apparently,the United Nations is one of the most vital organisations across theglobe. Formed in 1946, the United Nations has the sole purpose ofensuring that peace and security is maintained across the world.According to United Nations (2001), the mandate given at the time ofits establishment was as a result of numerous wars that were presentin the region. Moreover, United Nations Security Council, as one theprincipal organ of the United Nations has continued to createrelationships with regional organisations through the mandate that ithas been bestowed.
TheUN Charter ensures that the Security Council acting as the central organ supports international peace and security while foreseeing apart for "regional arrangements", particularly with respectto the peaceful settlement of the question. In Chapter VIII, theCharter urges regional organizations to help towards the upkeep ofpeace and security insofar as being what is indicated deliberationsare subordinate to the UN. The Security Council is swayed to useregional arrangements, yet the regional arrangements may makeauthorization move just under the authorisation of the SecurityCouncil. Likewise, Article 54 gives that the Security Council oughtto "at all times be kept completely educated of exercisesembraced or in the examination" by regional organizations forthe upkeep of international peace and security. The association withregional organizations is emphasized in three vital reports by theSecretary-General that to a great extent set the key vision of theorganization.
TheUnited Security Council
Accordingto United Nations & Wellens (2001), the United Security Councilis described as a political body that is expected to work through theadoption of the legal consequences. In reference to the UnitedNations Charter, the Security Council had the mandate to take actionwhenever necessary in reference to maintaining and/ or restoringpeace and security in the international platform as a normativeaction. Notably, the measures taken by the Security Council rangesfrom economic sanctions to military intervention, and it depends onthe situation on the ground. According to the UnitedNationsCharter, there is no actual definition of a threat that is presumedto destabilise peace in the international scene. Nonetheless theSecurity Council at times uses it explicit powers that are referredfrom the United Nations Charter (ThüRer, 2010).
Additionally,in the recent past, the United Nations Security Council has taken theprivilege of stipulating Chapter VII of the United Nations Charter.The stipulation occurs mainly when it is faced with theresponsibility of authorising the United Nations peacekeepingoperations to areas that have excessive war and conflicts. Inseveral instances, those areas have been quite cumbersome for theUnited States to maintain peace and security (Lowe, Roberts &Welsh, 2008). Through such actions, the Security Council is capableof explaining the legal actions that it has utilised. Further, thecouncil affirms on the political function that revolves aroundcouncil reminds the concerned parties to the present conflicts. Also,members are reminded of their mandate when it comes to responding toSecurity Council decisions (Wet, 2004).
However,it is worth noting that sometimes the utilisation of Chapter VII, inthe United Nations Charter in reference to maintaining peace andsecurity could be misleading. Therefore, planning training andimplementation should be taken with extra caution to avoid possiblemisuse of power.
Applicationof the Fundamental Principles during Operations
Accordingto Anusama (2006), the existence of the United Nations for the pastsix decades in reference to the Security Council and the Charterhas continuously been guided by parties consent, impartiality and the lack of use of force. The contrary only occurs when it isnecessarily for the purpose of defending the mandate andself-defense. It is worth noting that the three principles areclosely related and hence reinforce each other mutually.
Inreference to the consent of parties’ concept, the mission ofmaintaining peace and security takes place only after there is anagreement from the concerned parties that they are willing to gothrough the political process that revolves around the peacekeepingprocess. The most importance issue during this process even atregional level is that there is continuous trust between parties toavoid failure of the arrangement (Univerza, 1998).
Inreference to the issue of impartiality, the United Nations isexpected to engage in the peacekeeping without participating infavour. In fact, this concept ensures that there are coordination andcooperation between the main parties that are in search of peace.Additionally, the Security Council is expected to avoid engaging inactivities that are likely to taint the imageof impartiality.Thus, it is important that the regional organisations involved in thepeace arrangement establish and maintain good relations.
Similarly,the concept of non-force use unless when the Security Council wantedto defend themselves or the mandate at hand was introduced during the first assignment after it was noted that the place they wereexpected to go and keep peace had the potential of having militiaand criminals (Solis, 2010). As a result, it was decided that theSecurity Council would not use any form of force when executing theirmandate of maintaining peace and security unless when they areattacked and must defend themselves in response. Notably, these arenot the only factors that have enabled the United Nations to remainfocused on their mandate, but they have also maintained credibility,legitimacy among other useful factors.
TheUnited Nations Security Council and Human Rights
Aalborg(2003) argues that the International law on human rights is one ofthe most important normative aspects that must be used by the UnitedNations in all its peacekeeping operations across the world. As such,through the Universal Declaration of human rights, the United NationsSecurity Council is expected to undertake its responsibilities whileensuring that there is respect of human rights (Mutua, 2002).Moreover, the emphasis given out by the Universal Declaration of human rights expects the Security Council to seek for the advancementof human rights by implementing their mandate through criticallyanalysing how their responsibilities connect with the concept ofhuman rights. Besides, it is obvious that the world does not expectthe Security Council to be part of those who take part in abusinghuman rights (Brems, 2001).
Anexample of Case law under this is in Prosecutor v. Anto Furundžija,the Trial Chamber of the International Criminal Tribunal for theformer Yugoslavia where it was reiterated that the general principleof respect for human dignity was the essence of human rights law aswell as the humanitarian law.
TheInternational humanitarian law also referred to as the ‘law of war’has a major impact on the functions of the United Nations SecurityCouncil. Fleck & Bothe (2013) articulates that the internationalhumanitarian law emanated from the GenevaConventions of the year1949and two other aspects of the Protocols of 1977. Apart fromthe two concepts, there are other ideologies pertaining to the meansand combat methods necessary in upholding this law (Ipsen, HeintschelVon Heinegg & Epping, 2007). In this regard, the internationalhumanitarian law was established with the intention of ensuring thatpersons who do not take part in international conflict are protected.The protection is done by ensuring that the fundamental rights ofvictims, civilians and non- combatants in war-torn areas areprotected (Buzan & Waever, 2003).
Hence,the relevance of the international humanitarian law to the SecurityCouncil is that it assists in protecting the prisoners of war who aretargeted by the nations at war. Additionally, protection within thelaw is also inclusive of properties of the victims and the non–combatants. As such, it important for the United Nations SecurityCouncil to clearly understand this law, in order to utilize itduring its global operations (Bealey, Chapman & Sheehan,1999). Anexample of case law on humanitarian is the in Juan Carlos Abella vArgentina, where the Inter-American Commission on Human Rightsreiterated that it had authority to apply international humanitarianlaw and this was from the overlap that arose from the AmericanConvention on Human Rights and the Geneva Conventions. In reachingthe decision, provisions of Article 3 on Human rights were read andupheld.
Relationshipbetween the UN Security Council and Regional Organizations
Apparently,there exist a strong relationship between the United Nations SecurityCouncil and regional organizations that go through Chapter VIII ofthe United Nations Charter. According to Abass (2004), the abovechapter in the United nations Charter governs the regional organisations by ensuring that these organisations are empowered tospecifically and individually settle disputes within theirmembers. Furthermore, the Charter has been mandating to devolve thepowers of empowerment that have been given to the Security Councilthrough Chapter VIII. Conversely, the regional organisations are notallowed to take any enforcement action without first consulting theSecurity Council.Atthe same time, they are expected to inform the Security Council ofany action that they intend to take. Of most importance is thatChapter VIII consists of Article 52 -54.
Accordingto Arnold & Quénivet (2008), it is believed that the SecurityCouncil has had any disagreements in relation to empowerment and thestipulated responsibilities as well (Nyangoni, 1985). For instance,during the time of Liberia and the Sierra Leone conflicts, it isargued that the ECOWAS decided to pursue the pacific settlementswithout first consulting the Security Council. In fact, ECOWAS usedmilitary action on the perceived enemy even though thejury at thetime claimed that the Security Council had been informed althoughthey had denied. The Security Council was also involved in anotherdisagreement during the conflict in the Ivory Coast in 2002. Duringthis period, the ECOWAS had threatened the rebels that belonged tothe Patriotic Movement to participate in the immediate peacekeeping dialogue with the then ECOWAS Mediation Missions. Thethreats were to ensure that they could voluntary settle the conflict or else be forced to end the conflict through the use of the existing regional interventional that insists on maintaining peace (George Washington University, 1968).
In reference to the crisis that the regional organisations are expected to handle, some scholars have argued that it is stilldifficult to distinguish between what crises the regionalorganizations are freed to intervene and those that they cannot handle in relation to Article 52 of the United Nations Charter. Asection of scholars has stipulated that regional organizations areonly permitted to respond to internal conflict, but not external.This argument is based on the fact that the Security Council does nothave the mandate of utilising the regional organisations beyond theirinternal borders and their constitutions as well (Cede &Sucharipa-Behrmann, 2001).
Itis apparent that Chapter VIII of the United Charter was discussed inSan Francisco after it was found necessary to include a number ofmandatory provisions. Essentially, these provisions emerged after itarose that some states such as Latin – American were not contentedwith the then relationship of the regional organizations and thevarious security arrangement especially those that were present atthe time (South Carolina Political Science Association, 1973).
Accordingto the states present at the conference held at San Francisco, theUnited Nations had made the wrong decision by giving the SecurityCouncil the mandate to overseeregionalarrangement. As a result,these states were determined to continuously protect theirorganizations from the Security Council which they believed that itwas a small and omnipotent Security Council that was not in aposition to solve their issues (Hurd, 2007). Besides, the before thecommencement of the conference, there present member states wereconcerned about the juridical instrument that had been added to theregional arrangement at the time through the Act ofChapultepec. Ina general sense, there were different reactions from member states onthe Security Council.For instance, while some members wanted theirorganisations to have a unique position on the general arrangement,other member states where hopeful that were would be given theopportunity to exit from regulations on Article 52 and 53 of theUnited Nations Charter (Fassbender, 2009).
TheSecurity Council has for several times passed resolutions without anyjudicial review enabling it to be above the law. A case example isthe judgment of Lord Hope in the case that involved Al-Jedda vSecretary of State for Defense. In this case, it was ruled that theSecurity Council resolutions were enforceable and not open to reviewby a court of law. Such rulings and cases has hampered the generalassociation and the link between the regional organizations and theSecurity Council. Hence this was set as precedent where theresolutions of Security Council were final and unquestioned. Theother case was one of Libyan Arab Jamahiriya v. United Kingdom. Inthis case the ICJ maintained that it would not carry on with the casegiven that Security Council had made a final resolution on it.
CouncilDevelopments on Relationship Strengthening
Since2003, the Council has held five debates on reinforcing therelationship between the UN and regional organizations in the supportof international peace and security. The latest was on 13 January2010, on the activity of China (S/Pv.6257). During this time, theCouncil received a presidential explanation that underscored theessentialness of creating compelling organizations with regionalorganizations and the requirement for collaboration with suchorganizations for the powerful execution of its resolutions(S/PRST/2010/1). It additionally passed on the Council`s aim toconsider further steps to upgrade collaboration in the fields ofclash anticipation, peacemaking, peacekeeping and peace-building,while emphasizing its essential obligation regarding the upkeep ofinternational peace and security.
TheCouncil has kept up relations with regional organizations through afew means and configurations. Regional organizations, for example,the EU and the Organization for Security and Cooperation in Europe,routinely short the Council.
Ofthese relationships, the most created to date is the one with the AU.In April 1998, the Secretary-General issued a report on peace andsecurity in Africa containing proposals for peacekeeping operationsand supporting regional and sub-regional activities. An impromptumeeting expectations gathering was created by the Council to auditthe report`s suggestions, the work of which prompted variousresolutions and presidential proclamations tending to the part ofregional organizations in the upkeep of international peace andsecurity.
Since2007, parts of the Council have held a yearly gathering with its AUpartner, the Peace and Security Council (PSC), substituting betweentheir individual central stations. The meeting was held on 13 June2012 in New York. During this meeting, a report was issued in whichthe members consented to expand further methods for reinforcingrelations between the two Councils. These methods included havingmore compellingyearlyconsultativemeetings and the holding of auspicious conferences and collectivefield missions to form high positions and procedures in managing warsituations in Africa. It was further concurred that the followinggathering would happen no later than July 2013 in Addis Ababahowever this has yet to happen.
TheCouncil has likewise held a few debates concentrated on cooperationwith the AU, the final one of which occurred on 12 January 2012(S/Pv.6702 and Resumption 1). The summit-level debate was led byPresident Jacob Zuma of South Africa and brought about the selectionof determination 2033. The determination repeated the criticalness ofbuilding a more successful relationship between the Council and thePSC and called for the elaboration of further methods for reinforcingrelations between the two Councils.
TheUnited Nations Security Council at Present
Currently,the International Law and the United Nations Charter have decided toadapt to the current international context by ignoring the formalreform. The process revolves around a crucial new approach that ismeant to maintain peace and security. Nevertheless, the SecurityCouncil cannot be described as a source of law, but an internationalorgan that is mandated to implement the Law and particularly theCharter in the United Nations. In reference to this, the SecurityCouncil has had the opportunity to utilise their power for the sakeof maintaining regional peace and security (Geller & Singer,1998). Thus, the Security has come with innovate measure that havecreated a huge impact in relation to international legal order. Forinstance, the Charter has come up with new economic sanctions thatare expected to be placed on both individuals and entities. Besides,the Security Council has the mandate of ensuring that the Charter isinterpreted in reference to the circumstance on the ground.
Importantly,the cases related to the intervention of the Security Council suchthose of theDemocratic Republic of Congo (DRC), Liberia, IvoryCoast and Sudan have compelled theCouncil to create sanctionscommittees that are expected to assess the travel ban restrictions,and freezing financial assets for all those persons who have beeninvolved in threatening peace in regions. Nonetheless, there has beennumerous improvements pertaining to the identification and naming ofthose who have threatened the peace, and further give an opportunityto those who think they have been wrongly accused to clear theirnames through legal processes (Weisberg, 2007).
Ina general sense, the Security Council has established and maintaineda relationship with regional organisations in reference tomaintaining peace and security. Conversely, the regionalorganisations have been expected to respond to the Security Councilthrough abiding by the rules that are presented in the United NationsCharter. Although some regional organisations have ignored theconcept of consultation, most of them have continually had a goodrelationship with the Security Council. Hence, the impact of theUnited Nations Security Council in regional organisations and theglobe is still intact.
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