Many people are puzzled by what appear to be inconsistencies in the UN’s peace-enforcement efforts. Why did the UN act so decisively to eject Iraq from Kuwait in January 1991, yet allow itself to be humiliated in Bosnia? Why didn’t the UN do something about Rwanda or Tibet?
The answers to all these seeming inconsistencies lie in the Charter of the United Nations. To appreciate this, we need 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 a wonderfully inspired document. It is, basically, a set of treaties, a framework for international co-operation. The Charter was drafted by politicians and by statesmen of great vision and hope but who, nonetheless, were very pragmatic and also 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. 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 caused the demise of the League of Nations.
There are three different methods of interpreting an international treaty:
- By the literal interpretation which looks exclusively at the words of the document. At first glance there is nothing contentious about using this method, but the difficulty arises when words are translated into other languages. For example, the literal interpretation of Article 27(3) implies that all 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.
- By looking at the intentions of the parties to the treaty and examining the historical context in which the treaty was negotiated and at the records of the negotiations themselves.
- 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.
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.
Article 39 states: “That the Security Council shall determine the existence of any threat to peace …” Putting it 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 peace.
Article 43 states: “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, such as sanctions.
This is important to bear in mind. All politicians, in any country, are reluctant to risk the lives of their soldiers, when there is no apparent relevance to the interests of their own nation. Besides, how many conflicts should the UN be involved in? Who would pay? Is the UN sufficiently equipped to act as policeman in all the troubled areas of the world?
Article 2(7) states: “Nothing contained in the present Charter shall authorize 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, but, in practice, the Security Council is hesitant to intervene in what can be described as a civil war. One reason for this is that it is difficult to justify intervening in one without intervening in them all and doing that is not something they would willingly contemplate.
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