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Failures of International Law and Security Council's Tyranny (part I)

by Ivan Simic

In relation to recent global events; wars, invasions of lands, conflicts between states, political scandals, recognitions of new states, there is one phrase that everybody likes to use, that phrase is called international law.

INTERNATIONAL LAW

International law is the term commonly used for referring to the system of implicit and explicit agreements that connect together nation-states in commitment to recognized values and standards, differing from other legal systems in that it concerns nations rather than private citizens.

International law can be referred to tree different legal disciplines, these include: public international law, private international law and supranational law.

The most interesting is the public international law or "Law of Nations", since it involves the United Nations (International Court of Justice and Security Council), International Criminal Law, Geneva Conventions, Vienna Conventions, World Health Organization, International Labour Organization, International Monetary Fund, among others.

Public international law concerns the structure and conduct of states and intergovernmental organizations. In its most general sense, international public law consists of rules and principles of general application dealing with the conduct of states and of intergovernmental organizations and with their relations among themselves, as well as with some of their relations with persons, whether natural or juridical. Public international law establishes the framework and the criteria for identifying states as the principal actors in the international legal system.

In relation to the devastating international political scene, some main bodies of the public international law came to question, these include: the United Nations (International Court of Justice and Security Council) and the International Criminal Law.

Going back to the evolution and practice of these human organizations, it is pertinent to remind ourselves of the manual guide for the conduct of modern day international law.

THE UNITED NATIONS

The United Nations (UN) is an international organization whose stated aims are to facilitate cooperation in international law, international security, economic development, social progress, human rights, and achieving world peace. The organization is divided into administrative bodies, primarily: the General Assembly, The Security Council, The Economic and Social Council, The Secretariat, The International Court of Justice. There are currently 192 member states, including nearly every recognized independent state in the world.

The United Nations Charter is the treaty that forms and establishes the international organization called the United Nations. As a Charter, it is a constituent treaty, and all members are bound by its articles. The Charter consists of a preamble and a series of articles grouped into chapters.

A preamble to the UN Charter:

WE THE PEOPLES OF THE UNITED NATIONS DETERMINED

- to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and

- to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations, large and small, and

- to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and

- to promote social progress and better standards of life in larger freedom,

AND FOR THESE ENDS

- to practice tolerance and live together in peace with one another as good neighbours, and

- to unite our strength to maintain international peace and security, and

- to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and

- to employ international machinery for the promotion of the economic and social advancement of all peoples.

Charter I of the United Nations Charter lays out the purposes and principles of the United Nations organization.

Article 1:

The Purposes of the United Nations are:

To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and

To be a centre for harmonizing the actions of nations in the attainment of these common ends.

Article 2, clauses 3-4 essentially prohibit war (except in self-defence) by stating:

3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, is not endangered.

4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

Article 2, clause 7 of this chapter reemphasizes the fact that only the UN Security Council has the power to force any country to do anything by stating:

5. 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 or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII. (Only the Security Council can institute Chapter VII enforcement measures.)

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 non-military action to restore international peace and security.

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.

According to Charter VII, article 51 of the United Nations Charter, countries can engage into military action only in self-defence, including collective self-defence:

51. 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.

The Security Council was consequently granted broad powers through Chapter VII as a reaction to the failure of the League of Nations in the years between World War I and II.

Ivan Simic
Belgrade , Serbia

To be continued…

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