Chapter VII of the United Nations Charter

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Chapter VII of the United Nations Charter sets out the UN Security Council's powers to maintain peace. It allows the Council to "determine the existence of any threat to the peace, breach of the peace, or act of aggression" and to take military and nonmilitary action to "restore international peace and security".

Rationale

The UN Charter's prohibition of member states of the UN attacking other UN member states is central to the purpose for which the UN was founded in the wake of the destruction of World War II: to prevent war. This overriding concern is also reflected in the Nuremberg Trials' concept of a crime against peace "starting or waging a war against the territorial integrity, political independence or sovereignty of a state, or in violation of international treaties or agreements" (crime against peace), which was held to be the crime that makes all war crimes possible.

Chapter VII also gives the Military Staff Committee responsibility for strategic coordination of forces placed at the disposal of the UN Security Council. It is made up of the chiefs of staff of the five permanent members of the Council. Otherwise, that chapter is used when the UNSC is authorizing either a member state or a coalition of the willing to act nationally or through regional organizations to address this threat – if necessary with all necessary measures, including the use of outright force. The phrase ‘all necessary measures’ is to be taken literally. Any military action performed through land, air, and sea forces is specifically allowed (UN Charter Article 42). Such action could entail troop deployment, the enforcement of a no-fly-zone, even the use of aerial bombardment.[1]

Historical background

The United Nations was established after World War II and the ultimate failure of diplomacy despite the existence of the League of Nations in the years between the First and Second World War. The Security Council was thus granted broad powers through Chapter VII as a reaction to the failure of the League.[2] These broad powers allow it to enjoy greater power than any other international organization in history. It can be argued that the strong executive powers granted to it give it the role of 'executive of the international community'[3] or even of an 'international government'.[2][4]

The covenant of the League of Nations provided, for the first time in history, enforcement of international responsibilities (i.e. adhering to the Covenant of the League of Nations) through economic and military sanctions. Member states were also obliged, even without prior decision by the council to take action against states that acted unlawfully in the eyes of the League's Covenant.[5] This meant that the peace process was largely dependent on the willingness of member states, because the Covenant of the League of Nations did not provide binding decisions; The Council of the League was only responsible for recommending military force. As well as this, Article 11 paragraph 1 of the Covenant states:

Any war or threat of war, whether immediately affecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations.

This can be seen as an authorization of the use of force and other enforcement measures, however, states repeatedly insisted that this did not make decisions by the League binding.[2][6]

This resulted in an unprecedented will by both the powers at the Dumbarton Oaks Conference and the states present at the San Francisco Conference to submit to a central organ like that of the Security Council. Despite long debate over whether the General Assembly should also have power over decisions made by the Security Council, it was eventually decided by a large majority vote[7] that the Security Council should maintain its executive power because, as the major powers emphasized, a strong executive organ would be needed for the maintenance of world peace. This emphasis was advocated in particular by the Chinese representative, recalling the powerlessness of the League during the Manchuria Crisis.[2][8]

Article 41 and Article 42

Articles 41 and 42 jointly establish the right of the Security Council to arrange for the use of both non-armed (Article 41) and armed (Article 42) measures to put its decisions into effect.

Article 41:

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Article 42:

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. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

Chapter VII Resolutions

Most Chapter VII resolutions (1) determine the existence of a threat to the peace, a breach of the peace, or an act of aggression in accordance with Article 39, and (2) make a decision explicitly under Chapter VII. However, not all resolutions are that explicit, there is disagreement about the Chapter VII status of a small number of resolutions. As a reaction to this ambiguity, a formal definition of Chapter VII resolutions has recently been proposed:

A Security Council Resolution is considered to be 'a Chapter VII resolution' if it makes an explicit determination that the situation under consideration constitutes a threat to the peace, a breach of the peace, or an act of aggression, and/or explicitly or implicitly states that the Council is acting under Chapter VII in the adoption of some or all operative paragraphs.[9]

Chapter VII resolutions are very rarely isolated measures. Often the first response to a crisis is a resolution demanding the crisis be ended. This is only later followed by an actual Chapter VII resolution detailing the measures required to secure compliance with the first resolution. Sometimes dozens of resolutions are passed in subsequent years to modify and extend the mandate of the first Chapter VII resolution as the situation evolves.[10]

The list of Chapter VII interventions includes:

See also Timeline of United Nations peacekeeping missions, some of which were created under the authority of Chapter VI rather than VII.

Article 51: Self-defence

Main article: Self-defence in international law

Article 51 provides for the right of countries to engage in self-defence, including collective self-defence, against an armed attack[11][12] and was included during the San Francisco Conference in 1945.[12][13]

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. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Usage by sovereign countries

According to a study by researchers at Harvard Law School, between 1945 and 2018, UN Member States submitted 433 communications to the Security Council of measures taken in purported exercise of the right of self-defense.[14]

This article was the impetus for much international pact-making and has been cited by the United States as support for the Nicaragua case, the 2003 invasion of Iraq, and the legality of the Vietnam War, as well as by many other countries. According to that argument, "although South Vietnam is not an independent sovereign State or a member of the United Nations, it nevertheless enjoys the right of self-defense, and the United States is entitled to participate in its collective defense".[15] Another aspect is if the right of self-defense still exists if the UN Security Council has taken measures to deal with the conflict.[16] There are contradictory opinions whether this right still exists once the Security Council has taken action.[16] Article 51 has been described as difficult to adjudicate with any certainty in real-life.[17]

In a letter to the UN Security Council requesting military intervention in Yemen, Yemen's President Hadi invoked Article 51.[18]

The United States used Article 51 to justify the assassination of Qasem Soleimani and U.S. airstrikes in Iraq and Syria against an Iran-backed militia group.[19]

The president of Russia, Vladimir Putin, cited Article 51 in a speech to justify the 2022 invasion of Ukraine and escalation of the war in Donbas.[20][21]

Article 53

Article 53 permits "the Security Council to use regional arrangements as appropriate or to authorize enforcement action by such arrangements".[22]

References

  1. ^ Scherzinger, Johannes (2023). "'Acting under Chapter 7': Rhetorical entrapment, rhetorical hollowing, and the authorization of force in the UN Security Council, 1995–2017". International Relations. 37: 3–24. doi:10.1177/00471178221082870.
  2. ^ a b c d Krisch, Nico, and Frowein. The Charter Of The United Nations – A Commentary. New York, NY: C.H. Beck Verlag, 2002.
  3. ^ Dupuy,P.-M.,'the Constitutional Dimension of the Charter of the United Nations Revisited',Max Planck UNYB 1 (1997), pp.21–4.
  4. ^ Morgenthau, H., Politics among nations (1948), p.380.
  5. ^ Schükling, W./Wehberg, H., Die Satzung des Völkerbundes (2nd edn., 1924), Art. 16, pp. 623–7; Ruzié, pp. 63–5; Cavaré RGDIP, p. 650.
  6. ^ Schückling/Wehberg, supra, fn. 3, p. 469; Yepes, J.M./da Silva, P. Commentaire théorique et pratique du Pacte de la Société des Nations et des statuts de l'Union Panaméricaine, ii (1935), Art. XI, pp. 9, 41–5.
  7. ^ Commn. III, Cttee. C, Session of May 15, 1945, UNCIO XII, pp. 325–7, Doc. 355 III/3/17: the proposal of New Zealand with 22:4 votes, of Mexico with 23:7, and of Egypt with 18:12
  8. ^ cf. Commn. III, Cttee. 3, Session of May 14, 1945, UNCIO XII, pp. 316–17, Doc. 320 III/3/15.
  9. ^ Johansson, Patrik. The Humdrum Use of Ultimate Authority: Defining and Analysing Chapter VII Resolutions, Nordic Journal of International Law 78:3 (2009), pp. 309–342. An appendix lists all Chapter VII resolutions 1946–2008.
  10. ^ Johansson, Patrik (21 September 2005). "UN Security Council Chapter VII resolutions, 1946–2002 – An Inventory" (PDF). Uppsala: Department of Peace and Conflict Research. Archived from the original (PDF) on 2005-12-16. Retrieved 2006-08-02.
  11. ^ Essays, UK (November 2018). "Law Essay on Article 51 of the UN Charter". Nottingham, UK: UKEssays.com. Retrieved 4 November 2019.
  12. ^ a b Kunz, Josef L. (October 1947). "Individual and Collective Self-Defense in Article 51 of the Charter of the United Nations". American Journal of International Law. 41 (4): 872–879. doi:10.2307/2193095. ISSN 0002-9300. JSTOR 2193095. S2CID 147368567.
  13. ^ Ruys, Tom (2010). 'Armed Attack' and Article 51 of the UN Charter. doi:10.1017/CBO9780511779527. ISBN 978-0-511-77952-7.
  14. ^ Lewis, Dustin; Modirzadeh, Naz; Blum, Gabriella (2019). "Quantum of Silence". HLS PILAC. doi:10.54813/azzk2231. Retrieved 2023-08-08.
  15. ^ War Crimes Law And The Vietnam War, Benjamin B. Ferencz, The American University Law Review, Volume 17, Number 3, June 1968.
  16. ^ a b Halberstam, Malvina (1996). "The right to self defense once the security council takes actions" (PDF). Michigan Journal of International Law. pp. 229–230.{{cite web}}: CS1 maint: date and year (link)
  17. ^ Glennon, Michael J. (2001–2002), Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter, The, vol. 25, Harv. J.L. & Pub. Pol'y, p. 539
  18. ^ "Is the Saudi war on Yemen legal?". The New Humanitarian. 3 April 2015.
  19. ^ "At U.N., U.S. justifies killing Iranian commander as self-defense". Reuters. 9 January 2020.
  20. ^ Pamuk, Humeyra; Nichols, Michelle (24 February 2022). "As U.N. Security Council met, Russia attacked Ukraine". Reuters. Retrieved 18 September 2024.
  21. ^ Schmitt, Michael N. (28 February 2022). "Russia's "Special Military Operation" and the (Claimed) Right of Self-Defense". Lieber Institute for Law & Land Warfare. Retrieved 18 September 2024.
  22. ^ O'Connell, Mary Ellen (2000). "The UN, NATO, and International Law after Kosovo". Human Rights Quarterly. 22 (1): 57–89. doi:10.1353/hrq.2000.0012. ISSN 0275-0392. JSTOR 4489267. S2CID 146137597.