International law governs international relations both in time of peace and in time of armed conflict. It covers a plenty of fields. It also regulates the circumstances in which states may use armed force (traditionally termed ius ad bellum) and the way in which armed force is actually used ( termed ius in bello or the law of war, international humanitarian law applicable in armed conflict). Since its creation, the United Nations has helped resolve a number of conflicts, both regional and global. Unlike other organs of the United Nations, the Securty Council is the only body whose resolutions, when adopted under Chapter VII, are binding on all states.
In respect of the enforcement powers under Chapter VII of UN Charter the primary responsibility for the maintenance of international peace and security was confered upon Security Council, in general we call it peace-keeping power. Boleslaw Adam Boczek argues in his book of International Law: A Dictionary , that the term “peacekeeping” does not appear in the UN Charter, and it is not entirely clear which of its provisions constitutes the legal basis for this kind of UN activity. As he explains further :
“However, one can identify a number of articles concerning the powers of the Security Council (SC), including those specified in Chapters VI (pacific settlement of disputes) and VII ( Action with respect to threats to the peace, breaches of the peace and acts of aggression), which could provide a legal basis for peacekeeping.” Whole concept of the Council “authorizing” states to use force gives rise to a number of questions. What is the scope of the mandate? How it is to be interpreted? What is its duration? Who is the authorized party? Lines of responsibility and accountability, and so on...
Unfortunately these questions ( which are closely linked to Art. 42 of UN Charter) only could be answered in a more all embracing workmanship. This paper took shape over the course of Public International law, which during even short period brought near lot of interesting views and topics. The paper is devided into chapters analyzing the Art.42 itself, but also in coherence with all relevant articles of UN Charter.
Article 42 of UN Charter
1) The UN Charter as matrix of Art.42
It seems likely that Article 42 of UN Charter can´t be taken in isolation. In particular its tied to Article 41 which simply said implies that UN would have tried something first. Also important Articles 39, 40 and 43 have to be taken into consideration (not just these).
As the fundament, undoubtedly, Art.2(4) arises, a supertemporal dogmata that make us more understand the purpose of UN Charter. Pursuant to this provision, all members shall refrain in their international relations from the threat or use of force. Today this “cornestone of peace in the Charter” constitutes the basis of any discussion of the problem of the use of force. Even the fundamental notion of “force” is not completely undisputed where its extent is concerned. The term does not cover any possible kind of force, but according to prevailing view is force in Art.2(4) limited to armed force.
Rebecca Wallace is more pessimistic about this argument as she keeps asking if does Art.2(4) only prohibit use of armed force?! Force can be economic or political. But what is an armed force? The armed forces of a party to a conflict are “all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party.” So armed forces are to be “subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.”
Anyway, attempts to bring near the detailed framework of armed force could be eventually challenged in more exhausting elaboration on this topic.
2) Authorising the use of force
Exeptions to absolute prohibition on use of force are laid down in Chapter VII of UN Charter. Under these chapter there are two circumstances in which the use of force is envisaged – particulary Articles 42 and 51 of UN Charter.
Article 42 also provides for the exercise of the authority conferred upon the SC under Art. 39. The Security Council has a monopoly to authorise states to use force in inter-state relations in order to maintain world peace and security. If the SC considers that economic and diplomatic sanctions would be or have be proved to be inadequate, “it may take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security.
Such action may include demonstrations, blocades, and other operations by air, sea or land forces of members of UN.” As the second envisaged use of force is not by the SC, but by individual members or members acting collectively. Article 51 provides for individual or collective self-defence, in principle available after an armed attack has occured.
As can be seen, article 42 does not provide for the use of force as a free-standing power or as an option of first-consideration, but only frames the use of force in relation to nonmilitary options. Article 42 would condition any use of force, including blockades, upon a UN Security Council determination that nonmilitary alternatives were inadequate or would be inadequate. Moreover, Article 42 limits such action to a specific targeted goal of maintaining or restoring international peace and security, perhaps as opposed to serving some other policy goal. It therefore could be argued that Article 42 action must dovetail with a principal of proportionality.
This article represents a fundamental innovation with respect to the League of Nations Covenant. While the League Council could merely recommend that States apply armed force against an aggressor, this new article should be able to take necessary military measures itself. During the Cold War, the innovative character of Art.42 had almost no impact. Before 1991, the only case in which large-scale military operations followed a decision of the SC did not fall under Art.42. In the case of Korea, the SC merely recommended that States provide assistance to South Korea in repelling the North Korean attack on the basis of collective self –defence under Art.51.
In contrast, the authorization of the peace-keeping operation in the Congo in 1960-4 contained elements which arguably fell under Art.42. Since 1990, however, the SC has made use of Art.42 in a significant number of cases. Most prominent was the authorization of member States to repel the Iraqi invasion of Kuwait, which followed an earlier decision to enforce economic sanctions against Iraq by a naval blockade.
Also in 1992 SC enforced member States to take military action in support of the peace-keeping force in Somalia, and, in the following year, conferred enforcement powers on the peace-keeping force itself. As already mentioned, only towards the end of the 1990s, the SC again came to authorize larger operations on the basis of Art.42.
As an example, in 1997, it endorsed intervention of ECOWAS in Sierra Leone, when it decided to withdraw its forces from Sierra Leone in 1999, the SC established a large peace-keeping operation, endowed with powers to use of force that reached far beyond self-defence. Another UN peace-keeping operation was in the same year in Kosovo, likewise empowering to take forceful action on the basis of Chapter VII of the Charter. Thus, after some caution of the SC in the middle of the 1990s, Art.42 has regained significance as a basis for enforcement action, though in a more limited way and with mixed success.
3) Requirements of Article 42
Art. 42 requires that, for military action to become possible, the SC must consider non-military enforcement measures to be, or have to been, inadequate. According to this formulation, its not necessary that non-military measures have previously been ordered and implemented. The option of the Art.42 is rather supported on the basis of a prognosis of the ineffectiveness of measures under Art.41.
Also according to Art. 45, air force contingents should be available to the SC to facilitate action at any time, and that military measures will in any event have more rapid effects than economic sanctions. Nevertheless, because of the possible danger of an expansion of a conflict and the potential damage involved, the SC must consider very carefully whether military action can be justified, and whether principle of proportionality is also recognized. To this latter principle alludes the Charter in particular by the requirement that these may measures be necessary.
As already mentioned, enforcement measures in Art.42, (like non-military measures under Art.41), they are carried out against the will of the state concerned. Measures pursuant to Art.42, like all measures under Chapter VII, can be taken against any State if the SC considers such action conducive to maintenance or restoration of peace and security. According to type of measures, SC can take such an action by air, sea, or land .
As evidenced by the wording and the history, the list of measures contained therein is not exhaustive. On the other hand, Art.42 covers not only operations involving combat against other armed forces, but also such action as demonstrations and blockades. In this context, demonstrations may be understood as demonstrations of strength intended to discourage potential peace-breaker from the use of armed force or its resumption, or to induce a change in its behaviour. The concept of blockade points to military action with a view to sealing off particular coasts or land areas.
/Such a blockade SC enacted in the case of Iraq, by allowing for the interception and inspection of all inward and outward shipping in order to ensure observance of the economic sanctions regime. Particular in the cases of Southern Rhodesia, Yugoslavia, Haiti and Sierra Leone./
The implementation of the measures
It wasn’t an exception that operations with mixed legal basis were created. In practice, this has sometimes led to severe operational problems, in particular with respect to the neutrality of UN troops and their capacity to engage in combat.
Art.42 vs. Art.51
Practically the polemic arises with the relationship of military sanctions under Art.42 of UN Charter to self- defence under Art.51. Put differently, when is a legitimate use of force to be regarded as one rather than the other? This issue arose in sharp relief during the Gulf crisis of 1990.
After a period of time it became apparent that Iraqi withdrawal from Kuwait was unlikely to be achieved through economic sanctions. It became probable that military action would be needed to reverse the aggression that had occurred upon the Iraqi invasion. At first sight it would seem to be action under Art.42 of the Charter. Certain members of the SC spoke frankly of their anxiety about the possible operation of the veto making it necessary to base any such action on Art.51 rather than on Art.42. If UN economic sanctions failed to secure Iraq´s withdrawal from Kuwait, could military force by way of collective self-defence be used to obtain the same objective?
UK and USA insisted that such action would be justifiable under Art.51 Action in self-defence could be taken without prior authorization of the SC, thus avoiding a possible veto. Do members effectively have a choice between characterizing military action as collective self-defence or as enforcement measures under Art.42? Action under Art.42 would bind the UN membership as a whole.
From already mentioned case of the Korean precedent in 1950,it is clear that action which, by its nature, could have been characterized as an enforcement was in fact authorized as lawful by reference to collective self-defence. Moreover , resolutions in both cases, were mainly intended to provide greater legitimacy to the use of force by making it an action of the international community rather than one of individual states.
Art.42 vs. Art.43
Art.43 provides that all UN members undertake to make available to the SC “on its call and in accordance with a special agreement or agreements”, armed forces, assistance , and facilities. Later State practice confirms that view that the SC can authorise member States, in groups of individually, to use force despite the lack of agreements under this article.
Moreover, in cases of Somalia and Rwanda, no other legal basis for the use of force, such as self-defence of consent of the State concerned, was available. Thus, States implicitly accepted the legality of the authorisation practise of the SC. This approach was not always free from critisism.Especially in 1990s, some States raised concern over the deviation from the original Charter conception by simply authorizing member States to use force. Most of them, however, did not object to the authorizations as such, but rather to the lack of SC control over the actual execution.
State practice, in principle, has accpeted that Art.42 allows for the mere authorization of the use of force by member States in the absence of agreements under Art.43.
Most of experts agree that SC practise,in contrast, reflects to some extent the limitations on the authorization power of the SC as described above. So isn´t Art.42 exceeded institute ?? These are particularly difficult issues to concern about in such a short work like this is. In this essay I tried to infiltrate in the issue of authorization to use of force according to the wording of the Art.42 UN Charter.
As Rebecca Wallace keeps asking: “Can force be used to enforce a right when force is not employed against territorial integrity or political idependence?? Can force be used to protect human rights?” We can still see lot of disputes in this ambit.
Finally, as somebody said that law is an organisation of force, maybe we should care ever more about how do we organise it.
UK Ministry of Defence, 2004: The manual of the law of armed conflict, OUP 2004
Hilaire, M. , 2005: United Nations law and the Security Council, Published by Ashgate Publishing Ltd.
Boczek, B.A. , 2005: International Law: A dictionary, Published by Scarecrow Press, 2005
Simma, B., 2002: The Charter of the UN, A Commentary, 2.edition,Volume 1, OUP, New York 2002
Bindschedler,R; Buergenthal,T.; (eds.), 1982: Encyclopedia of Public International Law, volume 4-Use of force