The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (42 page)

In addition to the prior authorization of the Security Council being necessary for military enforcement action by a regional arrangement, the Council must be able to exercise overall authority and control over the use of its delegated powers. The fact that these powers are being exercised through the mechanisms of a regional arrangement does not alter the legal position that the Council must ensure that it can exercise its authority and control over the action. This position is recognized by Article 53(1) of the Charter which stipulates that a condition of a delegation of
Chapter VII
powers to a regional arrangement is that the operation remains under the ‘authority of the Council’.

The Security Council by delegating
Chapter VII
powers to a regional arrangement may be authorizing, depending on the specific terms of the delegated mandate, the use of military enforcement action against a state that is not a member of the regional arrangement. This is consistent with the purpose of a delegation of
Chapter VII
powers – to maintain or restore
international
peace by achieving the Council’s stipulated objectives – and the provisions of
Chapter VIII
of the Charter. Article 52(1) of the Charter provides that regional arrangements can deal with ‘such matters relating to the maintenance of international peace and security as are appropriate for regional action’. It is in this context that Article 53(1) goes on to state that the Council ‘shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority’. The power of deciding whether it is ‘appropriate’ for a particular regional arrangement to carry out enforcement action in a specific case is left to the Security Council: this is part of the Council’s primary responsibility for the maintenance of international peace and security.
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This competence of the Council to use regional arrangements with an external focus is an important feature of the delegation of powers to such arrangements. This is also of significance to the use of collective self-defence arrangements such as NATO for the carrying out of military enforcement action under the auspices of the Council.

NATO has not until now been regarded as a regional arrangement for the purposes of
Chapter VIII
of the Charter: it has been seen as a collective self-defence pact.
¹¹
A major reason why NATO sought to characterize itself as a collective self-defence alliance was to avoid the obligation in Article 53(1) to seek prior permission from the Security Council before it could act in a particular case.
¹²
It would also have created the situation that the former Soviet Union could have vetoed in the Security Council any NATO action, even in defence against a Soviet attack. The recent combination, however, of the Council delegating tasks in the area of peace and security to NATO and the self-redefinition by NATO to enable it to carry out tasks which are in addition to its original mandate under the NATO Charter,
¹³
allow it to fit within the rubric of a
Chapter VIII
regional arrangement. It is this approach that was adopted by the German Constitutional Court – the Bundesverfassungsgericht – in its decision that NATO can be classified as a type of collective
security system, and thus that German troops could participate in NATO actions that were directed at the implementation of Security Council resolutions.
¹⁴
In any case, it is clear that since the end of the Cold War the Security Council has treated NATO as a
Chapter VIII
regional arrangement.
¹⁵
However, this analysis is solely from the viewpoint of the UN. It is now opportune to discuss the issue from the viewpoint of the regional arrangement. In particular, the problems for regional arrangements of the limits of their constituent treaties and how this affects their competence to carry out a delegated mandate. Put differently: can a regional arrangement carry out Security Council authorized enforcement action that is not per se provided for in its constituent treaty?

It may not always be legally possible for a regional arrangement under its constituent treaty to take up a delegation of
Chapter VII
powers. In such a case a delegation of powers to a regional arrangement does not mean that the organs of an arrangement can exceed the powers that they have been given by their constituent treaty. The delegation of
Chapter VII
powers to a regional arrangement gives the arrangement – and thus its organs – the right to exercise those powers but not in disregard of its constituent treaty. This does not of course preclude the relevant organs of a regional arrangement from deciding, according to the relevant provisions of its constituent treaty, to take up a delegation of
Chapter VII
powers. This is from the perspective of the constituent treaty of a regional arrangement. From the perspective of the UN Charter, however, the internal constraints on a regional arrangement being able to exercise delegated
Chapter VII
powers do not affect the lawfulness of the delegation or the exercise of delegated powers by the arrangement.

In any case, the internal structure and competence of a regional arrangement binds only the organs of the arrangement and not necessarily the member states acting in another capacity. Thus if the Security Council has used its general competence to delegate its
Chapter VII
powers to UN member states, then the issue of the internal constraints of a regional arrangement becomes almost irrelevant. Member states have the competence to exercise the delegated powers whether or not the regional arrangement has the competence to do so, and, where states are members of both organizations, they are not precluded from exercising delegated
Chapter VII
powers acting collectively or on an individual basis because of their membership in the regional arrangement. However, the issue of using the organs of a regional arrangement to assist in carrying out military enforcement action does remain problematic.

Possibly because of these internal constraints, the practice of the Security Council has not been to delegate its
Chapter VII
powers to regional organizations in specific terms, but to delegate these powers more generally to UN member states
with provision for the exercise of these powers through regional arrangements. In 1993, for example, the Security Council delegated its
Chapter VII
powers in such a manner in an attempt to protect UN-declared ‘safe areas’ in Bosnia.

The Security Council in Resolution 836 delegated to UN member states, acting individually or through a regional arrangement, the power to take military action to protect the six UN-declared safe areas in Bosnia.
¹⁶
Acting under
Chapter VII
, the Security Council decided that ‘Member States, acting nationally or through regional arrangements, may take, under the authority of the Security Council and subject to close coordination with the Secretary-General and UNPROFOR [the UN peacekeeping force in the former Yugoslavia], all necessary measures, through the use of air power, in and around the safe areas in the Republic of Bosnia and Herzegovina, to support UNPROFOR in the performance of its mandate.’
¹⁷
Moreover, the Council in operative paragraph 11 requested ‘the Member States concerned, the Secretary-General and UNPROFOR to coordinate closely on the measures they are taking to implement paragraph 10 above and to report to the Council through the Secretary-General’. There were two objectives specified in Resolution 836 which would enable member states to use force by their air capability: the defence of UN peacekeepers and the deterrence of attacks on the safe areas.
¹⁸

What is not so clear, however, from the terms of the resolution is who should decide when force should be used and for what purpose. The Secretary-General took this decision upon himself as, in effect, the representative of the UN. After noting that NATO had confirmed its willingness to offer ‘protective air power in
the case of attack against UNPROFOR in the performance of its overall mandate, if it so requests’,
¹⁹
the Secretary-General further noted ‘[i]t is of course understood that the first decision to initiate the use of air resources in this context will be taken by the Secretary-General in consultation with the members of the Security Council.’
²⁰
This report, and thus the Secretary-General’s interpretation, was expressly adopted by the Council in resolution 844.
²¹
This follows from the position that the adoption by the Security Council of a report by the Secretary-General where a specific interpretation is made of his delegated mandate represents an affirmation of that interpretation. In any case, the consent of the Secretary-General is required by the law governing the delegation of powers in this area. The fact that the Secretary-General is the Commander-in-Chief of UN peacekeeping forces means that any use of force by peacekeepers in self-defence would require either his consent or that of his Special Representative or Force Commander who may have been delegated this power of decision-making. The practice of the UN and NATO in the former Yugoslavia has been in accordance with this legal position. The use of ‘close air support’ required a request by those on the ground who were the subject of an attack. The request then went to the UNPROFOR Force Commander and to the Secretary-General’s Special Representative for the former Yugoslavia (who was the overall head of UNPROFOR) for the final decision as to whether close air support should be requested from NATO.
²²

The use of force in defence of UN peacekeepers under resolution 836 is termed ‘close air support’. This is to be distinguished from ‘air strikes’. The Secretary-General in a letter dated 28 January 1994 to the Security Council has explained this distinction in the following terms:

Thus close air support is only to be used in defence of UN peace-keepers. Air strikes, which involve military enforcement action, are discussed further below.

In the case of the former Yugoslavia, the Secretary-General decided to delegate the competence to request, or agree to, the use of close air support to his Special Representative, Mr Yasushi Akashi.
²⁴
There was no express request from the Security Council to the Secretary-General to sub-delegate this power of command and control to his Special Representative. Thus for the Secretary-General to sub-delegate these powers to his Special Representative he must possess an implied competence to do so. The main condition for the existence of such a competence to delegate powers is that the power to delegate must be necessary or essential to the performance of the duties and functions of the Secretary-General or of his representative. The determination of whether this is the case is made by the Secretary-General. In the case of the former Yugoslavia, the Secretary-General stated the following reason for the delegation of power to his Special Representative:

This approach received the express support of a few States.
²⁶
There was, however, concern expressed about the cumbersome nature of these procedures, which, it was argued, compromised the speed of reaction to an emergency and thus the effectiveness of the use of air power as protection for UNPROFOR and the safe areas.
²⁷
Moreover, the practice of the UNPROFOR Force Commander and the Special Representative was to refuse to request such support from NATO if the attack had already ceased.
²⁸
This approach was also the subject of criticism.
²⁹
These criticisms
became much more widespread and serious after the fall of Srebrenica and the mass killings of inhabitants of this ‘safe area’ in July 1995
³⁰
by Bosnian Serb forces led by General Ratko Mladić despite the presence of the Dutch Battalion (‘Dutch-bat’) of UNPROFOR which was stationed in Srebrenica.

The Bosnian Serb army attack on one of Duchbat’s observation posts on 6 July 1995 was the start of the broader direct attack against Srebrenica. The Dutchbat Commander requested the use of close air support in response to this first attack – and a number of subsequent attacks on other observation posts – but all of these were consistently refused by those higher up the UN chain of command with the consequence that the UN-declared safe area of Srebrenica was easily overrun.
³¹
In response to the criticism that followed this failure, the Secretary-General’s Special Representative delegated the power to order the use of air power to the Force Commander who had the express authority to delegate it to the UNPROFOR Commander in Bosnia. The Secretary-General summarized the position in a letter to the President of the Security Council of 27 July 1995 where he stated the following: