The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (5 page)

Chapter V
(Articles 23–32) sets out the Security Council’s composition, functions, powers, voting, and procedure. The Council’s composition is specified in Article 23 (as amended in 1965) as follows:

In the Charter scheme, the Security Council has primary, but not exclusive, responsibility for the maintenance of international peace and security.
⁴
The Council is tasked with determining whether particular events or activities constitute a threat to international peace and security, and for authorizing the use of sanctions and force in a wide range of situations. As Article 24(1) puts it:

Remarkably, Article 25 of the Charter, like some articles in
Chapter VII
, specifies that UN members accept an obligation to do the Security Council’s bidding. Its full text is:

The subject of disarmament is addressed in much more cautious terms in the UN Charter than it had been in the League Covenant.
⁵
Article 26 specifies the Security Council’s responsibilities regarding the regulation of armaments thus:

Article 27, on voting, requires decisions of the Security Council to be made by an affirmative vote of nine members – in other words, by a three-fifths majority. (This rule has the interesting implication that the Non-permanent Members have in effect a ‘sixth veto’: a capacity to deny a resolution the nine affirmative votes needed
to pass.) Its best-known provision is that it gives each of the five Permanent Members (P5) a veto power. As it delicately puts it, Council decisions on matters that are not procedural shall be made by an affirmative vote of
nine
members including the concurring votes of the permanent members’.
⁶
The veto power of the P5 has been a subject of controversy throughout the history of the UN. Even when the veto is not actually used, it casts a shadow. This significant departure from pure ideas of collective security is discussed further at various points below.

The provisions for the Council’s procedure, laid down in Articles 28–32, are notably flexible. The Council is required to be able to function continuously, whether at UN headquarters or elsewhere (Article 28). It is free to establish subsidiary organs, and to adopt its own rules of procedure (Articles 29 and 30).
⁷
Under these rules, the Council’s presidency rotates among the members for one-month periods in alphabetical order. The Charter specifies two circumstances in which states that are not members of the Council may participate (always without vote) in its deliberations: if the Council considers that the state’s interests are specially affected by the issue under discussion (Article 31); and if a state is a party to a dispute under consideration by the Council (Article 32).

Chapter VI
(Articles 33–8) comprises an ambitious scheme for settling disputes of a kind that might endanger international peace and security. The Security Council is assigned a major role. Whereas the General Assembly is mentioned only in Article 35, the Security Council is mentioned in all six articles of this chapter. It can call upon parties to settle their disputes peacefully (Article 33), investigate any dispute or situation (Article 34), have disputes referred to it by states (Article 35), recommend appropriate procedures or methods of adjustment (Article 36), and recommend the terms of a settlement or make other recommendations to the parties (Articles 37 and 38).

The considerable powers vested in the Security Council under these terms of
Chapter VI
have provided one basis for its many and varied involvements in
numerous situations of incipient or actual conflict. Sometimes seen as simply the non-forceful part of the UN Council’s tool-kit,
Chapter VI
has in fact provided a basis for its actions both in seeking to prevent war and in getting involved in conflict situations – whether through peacekeeping forces or other kinds of missions.

Although the UN Charter makes no explicit reference to peacekeeping forces,
Chapter VI
has also been seen as a principal Charter basis for most UN peacekeeping operations. However, in cases where such operations’ mandates include authorization to use armed force (e.g. to prevent widespread atrocities, or to stop violations of a ceasefire) there is reference to
Chapter VII
in the relevant mandating resolutions. Because peacekeeping operations were not envisaged in the Charter, and often involve an overlap of powers under
Chapters VI
and
VII
, they have sometimes been called ‘Chapter 6½’ operations. However, if this term implies that there is a gap in the Charter or a degree of confusion over the basis of authorization of such forces, it can be misleading: the Security Council’s establishment of such operations and its authorizations to them to use force are now generally understood as being within the broad terms of reference of
Chapters VI
and
VII
.
⁸

Chapter VII
(Articles 39–51) deals with the crucial matter of action in face of a variety of threats to international peace and security. In contrast to the ambiguous language of the League Covenant, the Charter seeks to identify a single agent – namely the Council – as having the power to interpret the implications of conflicts and crises, and to determine for international society as a whole whether a breach of the peace has occurred. Article 39 states (in full):

Article 40 empowers the Council to ‘call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable’. Then Article 41 provides for the Council to impose ‘measures not involving the use of armed force’, including economic sanctions and the severance of diplomatic relations. Article 42 provides, in part: ‘Should the Security Council consider that measures provided for
in Article 41 would be inadequate or have 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.’ Thus there is no necessity for the Council to try sanctions before resorting to force.

Articles 43–5 provide for armed forces to be available to the Security Council. These are among the most remarkable of the Charter articles (the others include Articles 25 and 49) that appear to give the Council a substantial degree of authority over the member states. In reality, however, the provisions of Articles 43–5 have never been implemented – mainly because states have been reluctant to hand over to the Council a blank cheque on how their forces should be used. In Article 43 all member states ‘undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security’. These agreements were supposed to be concluded ‘as soon as possible on the initiative of the Security Council’. Article 44 provides that when the Council has decided to use force, states asked to provide armed forces for such operations may participate in the decisions of the Council concerning how their armed forces are to be employed. Article 45, written before the analyses of strategic bombing in the Second World War aroused serious doubts about the efficacy of air power, conjures up a vision of the UN’s military role that has never come into effect:

Articles 46–7 provide for the Military Staff Committee, consisting of the senior military representatives of the Permanent Members of the Council. This committee was intended to ‘be responsible under the Security Council for the strategic direction of any armed forces placed at the disposal of the Security Council’. This provision confirms the special role of the P5 in the Charter conception, but beyond that it has had little importance. The major military powers have not used the Military Staff Committee to make joint plans for the application of armed force. The Committee’s role could possibly have grown as Council practices developed, especially as common arrangements for UN or UN-authorized forces are far from self-evident. However, this has not happened.

Articles 48–50 outline the involvement of states in carrying out the measures decided upon by the Security Council. Article 48(1), by specifying that some actions may be taken by groups of states rather than the membership as a whole, provides a basis for the Council’s later practice. ‘The action required to carry out
the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine.’

In Article 51 the Charter makes it clear that states have an already existing right of self-defence, which is simply recognized (and not conferred) by the Charter. ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.’ It also establishes the Council as the body to which uses of force in self-defence must be reported; and it recognizes the right of the Council to take action in such cases.

Chapter VIII
(Articles 52–4) addresses the key issue of how global and regional security arrangements might coexist and even reinforce each other. This had been discussed extensively in negotiations during the Second World War, partly because of a realistic recognition that not every international security problem could be tackled at the global level. A balance had therefore to be found between UN-based and regional arrangements. Article 52(1) states:

Article 53 addresses the delicate question of how the Security Council and regional arrangements or agencies are supposed to relate to each other. In similar fashion to Article 48 noted above, it envisages something akin to the eventual pattern of the Council acting through regional bodies when it states that the Council ‘shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority’. It continues: ‘But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council, with the exception of measures against any enemy state.’
⁹
It is asking a lot of states, and of the Council, to expect this precept to be followed in all cases, but if the Charter had failed to require such Council authorization it would have undermined the primacy of the Council even before it came into existence. In
practice the requirement that the enforcement actions of regional bodies must be authorized by the Security Council was of limited relevance in the Cold War, but since 1991 many Council resolutions have referred to the military actions of regional organizations.
¹⁰