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".

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.

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.

Historical background[edit]

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.[1] These broad powers allow it to enjoy greater power than any other international organ in history. It can be argued that the strong executive powers granted to it give it the role of 'executive of the international community'[2] or even of an 'international government'.[1][3]

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.[4] 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:

(in the event of war or threat of war the League should) 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.[1][5]

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[6] 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.[1][7]

Article 42[edit]

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.

Article 51[edit]

Article 51 provides for the right of countries to engage in self-defence, including collective self-defence, against an armed attack.

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.

This article has been cited by the United States as support for the Nicaragua case and the legality of the Vietnam War. 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".[8] Article 51 has been described as difficult to adjudicate with any certainty in real-life situations.[9]

Chapter VII Resolutions[edit]

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."[10]

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.[11]

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

References[edit]

  1. ^ a b c d Krisch, Nico, and Frowein. The Charter Of The United Nations – A Commentary. New York, NY: C.H. Beck Verlag, 2002.
  2. ^ Dupuy,P.-M.,'the Constitutional Dimension of the Charter of the United Nations Revisited',Max Planck UNYB 1 (1997), pp.21–4.
  3. ^ Morgenthau, H., Politics among nations (1948), p.380.
  4. ^ Schükling, W./Wehberg, H., Die Satzung des Völkerbundes (2nd edn., 1924), Art. 16, pp. 623–7; Ruzié, pp. 63–5; Cavaré RGDIP, p. 650.
  5. ^ 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.
  6. ^ 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
  7. ^ cf. Commn. III, Cttee. 3, Session of May 14, 1945, UNCIO XII, pp. 316–17, Doc. 320 III/3/15.
  8. ^ War Crimes Law And The Vietnam War, Benjamin B. Ferencz, The American University Law Review, Volume 17, Number 3, June 1968.
  9. ^ Glennon, Michael J. (2001–2002), Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter, The 25, Harv. J.L. & Pub. Pol'y, p. 539 
  10. ^ 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.
  11. ^ Johansson, Patrik (21 September 2005). "UN Security Council Chapter VII resolutions, 1946–2002 – An Inventory" (PDF). Uppsala: Department of Peace and Conflict Research.