The UN's Selective Intervention

Many people are deeply puzzled by what appears to be inconsistencies in the UN's peace-enforcement efforts. Why did the UN act so decisively to eject Iraq from Kuwait, yet allow itself to be humiliated in Bosnia? Why didn’t the UN do something about Rwanda, or Tibet?

The answers to all the seeming inconsistencies lies in the Charter of the United Nations. To appreciate this, we ought to look not only at the relevant sections of the Charter, but also at the circumstances surrounding their interpretation.

The Charter of the UN is, basically, a set of treaties, a framework for international co-operation. It was essentially drafted by politicians and statesmen of great vision and hope, but who nonetheless were very pragmatic, and who were very much aware of the uncertainties lying ahead.

Unlike most legal documents, which are drafted by lawyers, the Charter is rather imprecise. This imprecision was deliberate.⁽¹⁾ The intention was partly to give room for flexibility in interpretation, and partly to avoid the rigidity of rules and the inability to reconcile differences, which has caused the demise of the League of Nations.

There are three different methods of interpreting an international treaty⁽²⁾: -

1. The literal interpretation which looks exclusively at the words of a document. Though, at first glance there is nothing contentious about using this method, the difficulty arises when words are translated into other languages. For example, the literal translation of Article 27(3) implies, that all the permanent members would have to vote for a draft resolution in order for it to be passed; an abstention would constitute a veto. Yet, there has been a consistent practice of not treating abstentions as vetoes.⁽³⁾

2. Looking at the intentions of the parties to the treaty, by examining the historical context in which the treaty was negotiated, and at the records of the negotiations themselves.

3. By practice or 'precedent'. This is by far the most common way of interpreting the Charter. "When an organisation is empowered to take decisions by majority vote, it is inevitable, that the practice supported by the majority of the member-states will come to be regarded as the practice of the organisation itself, and will be used as a means of interpreting the treaty setting up the organisation,.."⁽⁴⁾

As the Security Council is the only organ of the UN which is empowered to take decisions, the interpretation of the Charter has very important consequences.

Let us look at some of the Articles of the Charter, which have played a decisive role in international events so far.

Article 39 states, "That the Security Council shall determine the existence of any threat to peace,...." Putting it a little more directly, the Security Council decides what constitutes a threat to peace, - and by strict definition, a local conflict, no matter how unpleasant it may be, is not necessarily a threat to international peace.

Article 43 states that "All members of the United Nations,.....undertake to make available .....armed forces, assistance and facilities....for the purpose of maintaining international peace." This does not mean that the Security Council can order a state to take part in military action in the same way that it can order a state to take part in non-military action.⁽⁵⁾

This is important to bear in mind. All politicians, in any country, are very reluctant to risk the lives of their soldiers in a conflict that has no apparent relevance to the interest of their own nation. Besides, how many conflicts should the UN be involved in? Who would pay the cost? Is the UN sufficiently equipped to act as policeman in all the troubled areas of the world?

Article 2(7) states, that "Nothing contained in the present Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state...."

This Article has given rise to more controversy than most,⁽⁶⁾ but in practice, the Security Council is still as hesitant as ever to intervene in what can be described as a civil war. One reason is, that it would be difficult to justify intervening in one without intervening in all of them, - and that is not a prospect that they can willingly contemplate at present.

Article 27(3) which refers to the "veto", is also an important reason why the UN cannot intervene in certain situation. For example, the annexation and the disgraceful abuse of human rights in Tibet cannot even be considered by the Security Council, because China happens to have the veto.

There is also an indirect effect of the veto. For example, Indonesia, who was an important member of the South East Asia Treaty Organisation (SEATO) at the time, was not going to be challenged by the Security Council about the annexation of East Timor, and the brutal subjugation of its people, because at least two of the permanent members regarded Indonesia as an important military ally.

These are some of the reasons why the UN is unable to intervene in many of the situations where people rightly expect it to do so. However, the growing tide of refugees who are displaced by civil war or by persecution, and who are putting enormous political and economic strain not only on the host countries, but whose mere presence is causing the spread of unease and intolerance world-wide, is an indictment of the current interpretation of the Charter, which only allows the UN to offer them humanitarian aid.

What can be done?

It is important to realise, that the flexibility of the Charter not only allowed its interpretation to evolve in a certain way, but also, that - because of the Cold War, - certain aspects of the Charter were given more emphasis, and were made more use of than others.

Take for example Article 51, which states that,".... the Charter shall not impair the inherent right of individual or collective self-defence..."

Because of the Cold War, this Article has assumed enormous importance. The formation of all the military alliances were justified on the basis of this Article. Members of these military alliances, naturally, had the right to make or to acquire arms for their own or for their collective self-defence. Other nations, not belonging to a particular alliance, and who happened to have strategic importance, were also encouraged to arm themselves for 'self-defence'. At the height of the Cold War, the super-powers vied with each other for influence, usually by supplying armaments for 'self-defence'. Iraq and Somalia are just two such examples.

Article 51 does seem to have been interpreted too freely by the permanent members of the Security Council.

However, the member states of the General Assembly can, and should take the initiative to correct the rather cavalier interpretation of this Article. They could seek clarification in the International Court of Justice, (I.C.J.) not only as to how much armaments are required for self-defence by a given member state, but more importantly, they could also ask the I.C.J. to request the permanent members to co-ordinate the supply of those armaments.

Members of the General Assembly can do this, by insisting, that more emphasis is placed on the implementation on Article 26, which was aimed ".... to promote the establishment and maintenance of international peace and security with the least diversion for armaments of the world's human and economic resources...."

They could also point out that, although Article 24 gives primary responsibility for the maintenance of international peace to the Security Council, it does not preclude the General Assembly from exercising a secondary or residual responsibility.

There are other aspects of the Charter where the General Assembly could insist on greater emphasis.

As previously mentioned, Article 2(7) has been frequently cited as the reason for not allowing the UN to intervene in a nation's "domestic" affairs. However, the last part of that paragraph states that, "....this principle shall not prejudice the application of enforcement measures under Chapter VII."

If a certain civil war is in danger of destabilising a whole region by spreading the development of intolerance among its neighbours, then the Security Council could regard that as a treat to peace, and take appropriate measures.

Also, both the General Assembly and the Security Council could place far more emphasis on Article 1(3), which states one of the important purpose of the UN, as "....promoting and encouraging respect for human rights and fundamental freedoms....". They can insist with far more determination than they hitherto have shown, that this Article is adhered to.

Another aspect of the Charter which have been totally ignored by the Security Council is Article 47(3), which states that, "The Military Staff Committee shall be responsible under the Security Council for the strategic direction of any armed forces placed at the disposal of the Security Council."....

Up till now, all the UN enforcement actions have been only nominally led by the UN. In every case, the forces involved have been under the ultimate command of their own governments. This has also meant, that the UN was essentially limited to use the type of intervention that those forces were trained for.

The UN had no chance to develop its own strategy and its own ethos, as it was originally intended under Article 47. Instead, it is hampered and tainted by the inadequacies of the presently available conventional and heavy handed military doctrine.

-oOo-

It is important to bear in mind, that the United Nations is not a world government, but "....a gathering of sovereign states, and what it can do depends on the common ground between them."⁽⁷⁾

In An Agenda for Peace, the pervious Secretary General of the UN, Boutros Boutros-Ghali, has highlighted the reason for the Organisation's shortcomings:-

"The adversarial decades of the cold war made the original promise of the Organisation impossible to fulfil."⁽⁸⁾

He went on to say that, the statement adopted at the conclusion of the first meeting held by the Security Council at the level of Heads of State and Government in January 1992, "....represented an unprecedented recommitment , at the highest political level, to the Purposes and Principles of the Charter."⁽⁹⁾

Without necessarily devising new structures, or planning to give new powers to the UN, the way to tackle the seemingly endemic conflicts around the world already exists. A great deal can be done by the scrutiny of the prevailing interpretation of the Charter, by the International Court of Justice, - working at the behest of the member states of the General Assembly, - and activating those aspects of it, which encourages genuine political, economic and cultural co-operation not only between governments, but between the peoples of the world.

-oOo-

Stephen J. Cheleda

References:

1. Michael Akehurst: A Modern Introduction to International Law
ISBN 0-04-341020-0, Fourth Edition, published 1982, p165

2. Michael Akehurst, ibid., p165

3. Michael Akehurst, ibid., p174

4. Michael Akehurst, ibid., p166

5. Michael Akehurst, ibid., p184

6. Michael Akehurst., ibid., p169

7. Dr. Boutros-Ghali: An Agenda for Peace, New York, 1992, p1

8. Dr. Boutros-Ghali, ibid., p1

9. Dr. Boutros-Ghali: ibid., p1

The Charter of the United Nations and Statute of the International Court of Justice, San Francisco, 26th June 1945.