role of un in maintaining international peace and security pdf

Role Of Un In Maintaining International Peace And Security Pdf

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By the very act of joining the UN, all members "confer on the Security Council primary responsibility for the maintenance of international peace and security and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf" italics added. They also consent "to accept and carry out" the decisions of the council on any peacekeeping action that may be required. Under Article 39 of the charter, the Security Council's powers to take such enforceable decisions come into effect only when a definite "threat to the peace," an actual "breach of the peace," or a particular "act of aggression" has occurred.

Born out of war, the UN has sought to curtail plagues of a past characterized by two world wars.

Maintain International Peace and Security

Contact: marco. This article seeks to illustrate how the United Nation's Security Council is entailing a sort of hegemonic capability to act as a legislator, having as a premise the absence of such figure under international law, provided the apparent structure and dynamics of the Law of Nations.

Thus, basing its actions on the UN Charter's mandate to maintain international peace and security, the Council has adopted such kind of measures on the fight against terrorism -through Resolutions and Key words author: United Nations Security Council, International Peace and Security, Charter of the United Nations, legality, legitimacy, fight against terrorism, international legislative powers.

Palabras clave autor: Consejo de Seguridad de Naciones Unidas, paz y seguridad internacional, Carta de las Naciones Unidas, legalidad, legitimidad, lucha contra el terrorismo, poder legislativo internacional. Resolution Normative Power and Legislative Action. Preliminary Conclusions.

The Security Council as a Legislator: legality or Legitimacy? Questions on Legality. Questions on Legitimacy. Legitimacy and the Structure of the Security Council. Legitimacy and the Attitudes of the Addressees. Limits to the Council's Legislative Function and Proposals. Limits to the Legislative Function. This is an essential element of a transparent and democratic process, and is the best to proceed on a resolution that demands legislative actions and executive measures from the members of the United Nations " Mr.

One of the various concerns on the fact that the Security Council is progressively monopolizing different functions over the International System is that such principal organ of the United Nations is entailing a sort of hegemonic capability to act as an executor, a judge, and even more critical, as a legislator, provided in addition, the fact that apparently there is no way and no one able to make it accountable for their actions.

The structure of the International System is unique and cannot be completely assimilated to internal orders, where there is a patent division of powers 1 and competences by virtue of a political decision which is laid down in a foundational legal instrument -a Constitution-, creating well identified organs empowered to play specific roles.

At the international level, the distribution of power and authority is not clear; even if in one hand the System shares the existence of a foundational Charter politically inspired with common values and legally structured in order to create a harmonized distribution of tasks, on the other hand the production of norms is not entitled to a single organ, but through a series of law-making processes on which the States take active part trough their consent or continuous and conscious practice, as it is based on horizontal bilateral or multilateral relations between equally and sovereign entities.

In other words, the factory of international rules is in charge of the States as direct operators, not into a specialized, supranational body, provided that legislation and legislative powers are not directly transferable to International Law. Nevertheless, the activity of the Security Council after the cold war is certainly showing a variation to the yet described traditional conception of the international system, as the increase of actions starting from the invocation of Chapter VII of the Charter was accompanied by new controversial outcomes, among other things, the possibility of the Council to act as a legislator.

In that sense, after an initial approach through Resolutions having some elements identifiable with normative production, this body produced at least a couple of acts which apparently contain general and abstract obligations to the State members of the; Resolution , 4 adopting wide-ranging measures in order to suppress the financing of terrorism and any other way to its support, and Resolution , 5 on non-proliferation of nuclear, chemical and biological weapons to terrorists.

This paper describes the content and effects of the Security Council's apparently consolidated legislative function, which nowadays is in fact being used by this body to display its primary mandate prevent or stop any threat to international peace and security , and analyze if it can be accountable for such actions.

Consequently, this study will be divided in two main parts; the first one sections I and II will focus on the practice of the Council in order to establish if through the production of the abovementioned Resolutions it imposed general far-reaching norms binding all the UN member States, taking into account the nature and material elements of the so-called normative power and specifically, the legislative function.

The second part sections III and IV will analyze such legislative role from two points of view; legality and legitimacy , to finally address the results to the possibility to impose limits to the activity of the Council from a constitutional interpretation of the Charter, and make some proposals to the update of the United Nations System.

Finally, conclusions will be set forth section v. The Practice of the Security Council: Resolutions and Since its creation as a principal organ of the United Nations System and until the end of Cold War, 6 the Security Council didn't display the mandate conferred by the Charter in a sustained way; thus, for instance, it declared the government of Rhodesia as a " illegal racist minority regime ", and some years later pronounced in the same terms with regard to the occupation of Namibia by South africa, through Resolutions and 7 respectively.

But it was only after this period that the Council became, on one hand, persistent in the production of acts inspired on Chapter VII of the Charter, and on the other hand, actively involved into law-making processes, even if at this stage such contributions weren't really a legislative function, while interpreting and applying existent rules of international law or imposing obligations in particular cases.

As Paul C. Szasz points out, " the Security Council, suddenly freed from its cold war deadlock, has greatly expanded the repertory of devices available to it under Chapter VII [ Hence, the activity of the Council showed a variation from a purely executive performance, due to the production of Resolutions from which they can be identified normative features, and which should be taken into account as antecedents to the broad exercise of legislative power.

One can find resolutions containing general and abstract, but non-binding provisions such as thematic Resolutions, with recommendations or declarations of intention open to the voluntary implementation by the States, such as Res.

Moreover, the Council enacted Resolutions containing indirect obligations to the member States of the UN, such as their abstention from providing goods to a country subject to an embargo sanction, 14 as well as the creation of ad hoc bodies which indirectly modified the rules of international law, like the International Criminal tribunals for the former Yugoslavia and Rwanda through Resolutions and respectively.

Finally, the Council promulgated binding acts addressed to particular situations, such as the delimitation of the Irak-Kuwait border through Resolution , 16 reflecting its interest in legislating and adjudicating.

As it was mentioned, even if the Council produced a wide variety of Resolutions sharing some of the elements of what can be denominated legislative acts , 17 at the end they lacked some of such characteristics to become general far-reaching obligations.

Regarding on terrorism, the Council created a complex system of sanctions to States which were considered as " supporters " of terrorism; to Libia after the Lockerbie incident through Resolution 18 and to the taliban regime in Afganistan after the terrorist actions in Kenya and Tanzania in the course of Resolutions and Hence, this act represents a step forward from the Council's previous activity, as well as the starting point of the so-called legislative powers, while originally configured and having performed as an efficient executor.

It contained a " Holistic and comprehensive approach to terrorism, applicable to all States ", 21 but without defining which acts can be assumed as it, letting to the States or even the Council a broad possibility to appreciate a situation as a terrorist action. After condemning the terrorist acts which took place in the United States, the Council reaffirmed through the declarative part of the Resolution that such actions are contrary to the principles and purposes of the Charter, and " like any act of international terrorism, constitute a threat to international peace and security ".

Through paragraphs 1 and 2 of the Resolution the Council imposed concrete obligations to States 23 on preventing those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purpose against other countries and their citizens, as well as ensuring that anyone who has participated in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice.

Complementary to such obligations, it is important to highlight several dispositions addressed to confront terrorism in an effective way; particular reference was made to the need of cooperation between States by exchanging information in order to prevent and suppress terrorist acts, 26 strict control over the borders in order to avoid the movement of terrorists, 27 as well as rigid policies on the granting of refugee status as to prevent from giving it to individuals who might be terrorists.

Moreover, even if the Resolution had provisions similar to those found on conventional instruments previously released, but at that moment not ratified by an important number of States, 29 paragraph 3 d requested States to become parties as soon as possible to the relevant international conventions and protocols relating to terrorism, including the International Convention for the Suppression of the financing of terrorism of 9 December , 30 even if it has not the same binding character as paragraphs 1 and 2.

Finally, the Council established the creation of a Committee so-called Counter-terrorism Committee in order to monitor the implementation of the measures enacted by such normative instrument on the State's internal systems, calling them to report on actions they take to that end.

Regarding on the reaction from the subjects affected by the legislative measures, even if they were not previously consulted, States gave strong support to the Resolution as by every member of the UN had submitted the first implementation report to the Committee. As Axel Marschik points out, it can be concluded that Resolution is not an act of peace-enforcement but a measure to create legal obligations for the States in an area of international law, 34 falling into the definition of legislative function previously enunciated.

Following a similar reasoning as its predecessor, Resolution 's principal aim was to link terrorism perpetrated by non-state actors with non-proliferation of nuclear, biological or chemical weapons of mass destruction; thereafter, departing from such association, it pretended to fill some self-perceived gaps in certain branches of International Law, 35 or even complement or supplement existing treaty regimes. In this act, and deploying its Chapter VII enforcement authority and affirming that all States must refrain from providing any support to non-state actors that attempt to develop, acquire, manufacture, possess, transport, or transfer the weapons listed.

It also ordered all States to adopt appropriate laws to bar such activity. That Resolution also required all States to take and enforce effective measures to establish domestic controls over such, and identifies in considerable detail the scope of measures required.

The structure, language and legal scope of these legal documents is similar to Resolution. Finally, another interesting characteristic of this Resolution was the inclusion of definitions -just for the purpose of the legal document- which clarifies critical elements of the obligations, such as the subject to be watched non-state actors , the dynamic of the forbidden activity means of delivery , and the object prohibited restricted materials.

Such inclusion is a clear sign of the legal support that the Council wanted to give to Resolution in order to legitimize its action. Nevertheless, the manufacture line of Resolution was conducted in a different way than Resolution , throughout a more comprehensive consultation process, not as a multilateral negotiation, but involving different groups of countries, non-members of the Council, 42 which led to a feedback exercise in order to influence in some way the final draft of the Decree.

In the course of a period of 4 months between December and April a primary draft was distributed to all the members of the UN, followed by a stage of consultations which converged in a series of public debates, especially the one conducted on 22 April within the framework of the meeting of the Council.

Such instance reflected the diversity of positions on the issue, including various concerns on the legality and legitimacy of the Council acting as a legislator, coming from different States individually considered or blocks of States.

After reading the meeting's report, such opinions can be condensed in the following attitudes and opinions:. In general terms, well reception of the project by the western States, pointing the Council's " leadership in addressing a new challenge ". Concern about the fact that the Resolution could become a precedent for a normal and active legislative production by the Council, and not as an exceptional situation.

For instance, Pakistan stated that he could accept the Resolution only as an exceptional measure with precise conditions: the existence of a situation of urgency due to a threat to international peace and security, the need to fill a lacuna in international law regarding on such situation, and the participation of the wider UN-membership in the elaboration of such norms.

Critics to the concentration of power on the hands of the Council, while acting as a " world legislature, a world administration and a world court rolled into one ".

From a structural point of view, the Council's apparatus results inappropriate to develop an international legislative function, provided that such power should be based on the consensual participation of the majority of the members of the UN in order to create norms for themselves, but this body is not a representative organ.

With reference to the content of the Resolution, some States manifested that it should have implied additional discussions on disarmament, a topic linked to the nuclear capacity of most of the permanent members of the Council, and which has to be linked to the case of non-proliferation of weapons of mass destruction as a logical comprehension of the issue. According to the representative of Brazil, " the draft Resolution should not need to invoke chapter VII of the Charter, since article 25 of the Charter provides that all decisions by the Security Council shall be accepted and carried out by the member states of the organization ".

The strongest position was adopted by India, who yet threatened to disregard the Resolution, stating as main reasons for his position that the function of producing norms on behalf of the international community is not envisaged by the Charter of the UN, as well as that he could not accept neither obligations arising from treaties which has not signed or ratified, nor externally prescribed norms or standards which are not consistent with his national interests or infringe on his sovereignty.

Section II shows then, how the activity of the Council increased in recent times, going from the production of general thematic resolutions in order to impulse State's voluntary action, to face emerging issues to the stability of the international community, such as terrorism, through the production of Resolutions which apparently are -at least in part- the expression of a legislative function, attached to the maintenance of international peace and security.

The question which is now arising is if such practice -Resolutions and can be addressed as truly legislative actions. In order to assess the activity of the Security Council on this respect, two concepts have to be considered and developed, looking to confront the facts with the theory in abstracto : normative power, and legislative function. Normative power and legislative function under the Council's activity, preliminary conclusion.

Yet, such effects have a hierarchical referent while the Council May extend or develop the law through the interpretation and application of the UN Charter, 47 especially by relying on Chapter VII, which authorizes the council to make recommendations or take measures for to the maintenance of international peace and Security, 48 as it was previously described when confronting the practice of this organ.

Nevertheless, what is apparently unclear is the nature of such legal effects; that is, whether such decisions constitute the implementation of a legislative function, more if the Charter neither confers expressly the authority to the Council to produce norms, nor refers to the nature or effects of its actions in a concrete way, while just establishing that they should be performed taking into account the Purposes and Principles of the United Nations, contained in articles 1 and 2 of the Charter respectively.

Therefore, in order to establish if the Security Council is acting as a legislator provided its practice, that is to say, if it is producing general norms to the group of States members of the UN, 50 one has to rely on the content of such activity, which can be defined from a wider concept so-called normative power.

Following Catherine Denis, the normative power is a general aptitude to elaborate legal norms; 51 such prerogative can be understood then in a wide sense, either as the production of legal norms or as the development of law through to the interpretation and application of a rule in a concrete situation. Thus, the practice of the Council is a clear example of the exercise of such general prerogative; it produced thematic resolutions which influenced the way international law is conceived, created judicial organs such as the ad hoc Criminal Tribunals for the former Yugoslavia and Rwanda which interpreted and applied international rules, and imposed obligations directly and indirectly in concrete cases, as part o as a consequence of a sanction system.

Following this reasoning, the Council's normative power can be observed in two facets; as its capacity to take part into a global process of law-making when interpreting or applying an existing norm of International Law on a concrete situation sens large ; 54 or as a concrete aptitude to produce norms in a direct and unilateral way, be them containers of rights and obligations and addressed to particular or general situations sens strict.

Regarding on the former facet, the exercise of the normative power by the Council is associated to its action as an executive body, for instance through the imposition of collective measures provided the existence of a breach or threat to international peace and security or an act of aggression, on behalf of the community of States, according to articles 39 to 42 of the Charter. However, the strict legislative function of an organ such as the Council has to be conceived by reference to the latter view, when it assumes the capacity to produce general norms under its context and functions, that is to say, through the direct enactment of regulatory structures able to be applied to an undetermined number of legal relations and individuals, each time conditions and situations which constitutes the object of such regulation are met.

Consequently, it is possible to draw several elements which identifies an act as a manifestation of the legislative function; thus, a norm is abstract as it doesn't need a determined cause to be applied and uses a neutral language; 57 it is impersonal whether it can be opposable to an undetermined number of individuals and relations; is permanent provided that its application can occur indefinitely in time and without regarding on a geo-politic limit; and is binding if it creates a subjective conviction and an objective response from the addressees in respect of the mandatory character of the rule.

This first part of the study displayed relevant practice of the Security Council in order to identify if this body has exercised legislative powers through the production of acts which presumably contains general far-reaching obligations to all the members of the United Nations: Resolutions and , concerning different aspects of terrorism as a threat to international peace and security.

An opening answer is that in fact the Council did it so in the case of such Resolutions. Moreover, the confrontation of such practice with the nature and elements of the so-called legislative function shows that even if the content is not purely attached to the commented prerogative, there can be found several dispositions by which it created legal propositions with a general, permanent, abstract and binding character.

Thus, the activity of the Council has shown its tendency not just to be involved into a process of interpretation or application of international law, but a conscious intent to create original rules provided the existence of a situation qualified as politically relevant, which activates its competence to act, or at least legitimize its action to the eyes of the international community.

Therefore, the existence of a legislative function on the hands of this body is not clear as there is a mixture of performances, consequence of a system in evolution; institutions, sources and procedures playing onto a dynamic play of power distribution and identity-definition. Concerning the reaction of the rule's addressees, it can be said that in general terms the legislative action of the Council was accepted by the States, taking into account the context which surrounded both resolutions, and even if some countries expressed concerns and displayed divergent attitudes related with the legality given by the Charter of the UN and the legitimacy of the Security Council to act in such a way.

Precisely, and provided that as first conclusion it can be held that the Security Council imposed obligations upon all States more quickly than slower processes of law-making, as an institutional response to a particular crisis 58 even if not in a pure way , those two issues -legality and legitimacy- should be considered as the center of section IV, regarding on the advantages, disadvantages and limits of such activity, and looking forward to deal with the question of accountability on section V.

When dealing with a question such as if a governing body like the Security Council can legislate, it is unavoidable to permanently rely on two different types of analysis; one related with legality and another with legitimacy, provided the structure of the international system and the legal framework of the Charter of the United Nations.

On one hand, legality deals with the exercise of power within a certain legal system, taking into account its structure and content as delimiters of the extent of such action.

Therefore, for this study the question would be if the Security Council is entitled to act as a legislator in conformity with International Law, and more specifically, with the Charter of the United Nations. On the other hand, legitimacy is an issue illustrated by the relation between power and authority, as the former is complemented by the latter inside a democratic system.

According to Dolf Sternberger, legitimacy " is the foundation of such governmental power as is exercised both with a consciousness on the governments part that it has a right to govern and with some recognition by the governed of that right ". At the end, both inquiries have to be articulated in order to have an overall landscape of the advantages, disadvantages and limits to the Councils legislative function, as well as to bring elements to determine if it can be accountable for such action.

This legal instrument constitutes at the same time the inspirational basis and the blueprint of the structure and functions of the Council; such relation implies that the organ does not operate in a legal vacuum when adopting its Resolutions. Nevertheless, concerning the legislative function, the Charter contains neither an express legal prohibition for the Council to extend its authority on the production of general far-reaching norms, nor an express authorization to do it.

Moreover, neither the UN nor any of its specialized agencies was originally conceived as a legislative body, even if they have certain influence on the traditional law-making processes. Thus, one should go further to determine the legality of this action, looking at the Charter as a harmonized compendium of legal dispositions, and making a systematic interpretation of its normative dispositions.

There can be identified three blocks of relevant dispositions concerning the possible action of the Security Council as legislator; Chapter I, containing the Purposes and Principles of the United Nations articles 1 and 2 which are to interpret and complement the subsequent dispositions; 62 Chapter V, enunciating the structure and general powers of the Council articles 24 and 25 ; and Chapter VII, which develops the content and operative procedure of the actions with respect to the maintenance of international peace and security articles 39, 41 and The general competence of the Council is established in article 24 1 , by which its Primary responsibility is the maintenance of international peace and security; read along with article 1 1 , such mandate has a concrete way to be carried out through the implementation of effective collective measures 63 in order to prevent or remove a situation contrary to this common aim.

Thereafter, article 24 2 limits the content and scope of such measures by attaching their implementation to the Purposes and Principles of the UN, and stating that the specific powers of the Council to accomplish its duties related with the mentioned primary responsibility are laid down, notwithstanding its other tasks, 64 in Chapter VII.

Article 25 complements its predecessor in two ways; on one hand, it constitutes the legal basis of the authority of the Security Council while consecrates that the members of the UN should agree to accept and carry out the decisions taken by the organ.

The Security Council - Maintaining international peace and security

Its Charter was drawn up by representatives of fifty countries and ratified by the original and permanent members. Today, states are members of the global organization and subscribe themselves to the UN Charter to share the responsibility for international peace and security. The Charter established six principle organs, of which the Security Council is the most important with the primary responsibility to settle different kinds of conflicts to maintain the global peace and security. While other organs make recommendations to governments, the Council alone has the power to take decisions and initiate actions including the use of force, which Member States are obligated under the Charter to carry out. The Security Councils consists of 15 Member States: the five permanent ones, which can veto any draft resolution on substantive matters reflecting the assumption that the major powers would act together to provide collective global security, and ten non-permanent members elected for two-year periods. When a complaint concerning a threat to peace is brought before it, the Council usually recommends the parties several peace-making methods like negotiation, investigation or mediation to reach agreement by peaceful means. When a dispute gets worse or leads to fighting it is empowered to call for cease-fires, order economic sanctions, and even authorize military action against an aggressor on behalf of the UN.

Section 4. Since its establishment in , the United Nations has been active in extensive areas including peace-keeping, arms control, the North-South problem, social and human rights issues. Following the progress made in East-West dialogue and other recent changes in the international situation, it has stepped up its activities while its roles and responsibilities are being expanded. In the area of peace-keeping, in particular, the United Nations has played an important role in Namibia achieving independence. The peace-keeping operations of the United Nations, traditionally geared to truce supervision activities, has expanded into more comprehensive activities including observation of elections, as occasioned by its operations in Namibia. In August , the U. Security Council decided on comprehensive and mandatory sanctions, for the first time in the past 22 years against Iraq's invasion of Kuwait.


peace and security; (f) impact of climate change;. (g) conflict prevention; (h) cooperation between the United Nations and regional Council's effective role in maintaining datepdf. Council's role in maintaining international peace and.


How Successful Has the UN Been in Maintaining International Peace and Security?

The main function of the United Nations is to preserve international peace and security. Chapter 6 of the Charter provides for the pacific settlement of disputes, through the intervention of the Security Council, by means such as negotiation, mediation , arbitration , and judicial decisions. The Security Council may investigate any dispute or situation to determine whether it is likely to endanger international peace and security.

The United Nations was established in "to save succeeding generations from the scourge of war " and one of its main purposes is to maintain international peace and security. The Charter of the United Nations gives the Security Council primary responsibility for the maintenance of international peace and security. In fulfilling this responsibility, the Security Council may adopt a range of measures, including the establishment of United Nations peacekeeping operations , whenever there is a threat to the peace in a region. The Council may also decide on sanctions , such as trade embargoes, to enforce its decisions.

Peace and Security

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