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Lecture 3 VMO StudentsUNSC – actions not involving force
UN collective security system
Articles 39-42 UN Charter – responsibility of the UN Security Council to maintain international peace
and security (24(1) UN Charter).
In order to activate the system of Articles 40-42 UN Charter, we need the threshold Article 39 UN
Charter. The SC has to determine whether these is an existence of threat to peace, breach of the
peace, act of aggression.
When there is, Articles 40-42 UN Charter can be used. They make recommendations or
decide what must be done about it. It must concern international threats;
SC decisions of Chapter VII are legally binding, unlike the General Assembly.
Decision making Article 27 UN Charter
a. Each member has one vote;
b. 5 permanent members possess the right of veto, which can block a Resolution;
c. decision adopted with affirmative vote of 9 members and no permanent members vote against
the decision (Namibia Advisory Opinion paragraph 22).
The voting is mostly the reason that nothing happens in international law. Measures can therefore not
be taken if the voting system results in not agreeing, no measures can be taken.
Namibia
A member State can also abstain from voting. This means that they don’t vote. They do not really
agree on it but also don’t vote against it. The Resolution can then be adopted.
When the UN SC adopts a Resolution saying that the threshold of Article 39 UN Charter has been
met, UNC Articles 40-42 are the steps that, thereafter, can be taken.
Article 40 – provisional (voorlopige) measures (not often used, usually covered in terms of art. 41 &
42);
Article 41 – measures not involving use of force
Article 42 – measures involving use of force – which is an exception on the prohibition of the use of
force (Article 2(4) UN Charter).
Measures not involving the use of force
Mentioned explicitly in Article 41 UN Charter:
Sanctions: economic sanctions, arms embargoes, financial penalties and restrictions and
travel bans;
Severance of diplomatic relations: international isolation.
Sanctions
Smart sanctions are aimed at targeting certain individuals. They can be put on the black list. This is a
response to sanction just targeted at States. Because some critics said that those sanctions targeted
at a State do not really effect the individuals who are responsible for the sanctions.
The severance of diplomatic relationships is basically a political break-up between two States.
However, those are not the only measures that can be taken. In fact, in cases which have been
brought before the Court, it mentioned that this it not an exhaustive list, it is just an illustrative list and it
is up to the Security Council to decide on which measures it could take.
So as long as the Security Council approves it and there is no use of force, it can be used.
Other measures not involving the use of force are:
Creation of ad hoc international criminal tribunals e.g. Tribunals of Yugoslavia and Rwanda;
Peacekeeping operations, currently 15, e.g. Blue Helmets.
, Sanction: version 2.0 – smart sanctions
Main addresses of smart sanctions remain UN member States, but:
Individuals concerned are named (blacklisted) in order for States (other member States of UN)
to implement the measures correctly. It involves travel restrictions, freezing of financial assets.
But what if an individual wants to contest such actions?
National court? You can not go to the national court because the UN Security Council enjoys
immunity. Also, UN member States agree and accept and carry out the decisions of the
Security Council in accordance with the present Charter (Article 25 UN Charter);
Thus, international law supersedes national law;
International Courts? This is meant for States, so individuals don’t have a standing at these
Courts (ICJ).
Kadi (before CJEU)
Kadi was put on the blacklist. There was an EU-Regulation, that targeted those sanctions that the
Security Council had adopted at him. As members of the European Union, as well as members of the
United Nations, they should apply with this system.
Kadi went to the Court of Justice of the European Union, to challenge this EU-Regulation, targeting
certain measures at him.
The European Union followed the Regulation that the Security Council had decided. There was not a
system in place yet. This can be awkward because it can look like the Court of Justice of the EU
stands before the Security Council.
The Security Council should also apply international law. They are not above the law. So they
must provide the right of a fair trial, or somewhere to appeal.
Security Council Sanctions Committee (Ombudsperson)
Some reform, in response to criticism, because there is no system to contest the actions of the UN
Security Council.
Office of the UNSC Ombudsperson created by SC Resolution 1904 (link to the Kadi case);
Adoption 17 December 2009;
The Ombudsperson reviews requests from individuals, groups, undertakings or entities
seeking to be removed from the blacklists.
Severance of diplomatic relations
It is basically a political break-up between two or more States. It means that that State will not have
certain relationships anymore.
It will lead to international isolation, which means you will be on your own;
This also means that a severance of relations can mean that all the economic relations will be
broken as the sanction before. So these sanctions can be related.
Creation of ad hoc international criminal tribunals
Article 41 UN Charter does not refer to this. The creation of a criminal tribunal has been tested.
International Criminal Tribunal for the former Yugoslavia (ICTY) – violations of humanitarian
law committed in the former Yugoslavia;
Tadic
The UN Security Council would not be able to set up an international criminal tribunal. Basically it said,
the Security Council is acting outside its mandate (ultra vires). Also because Article 41 UN Charter
does not refer to it.
The ICTY rules that Article 41 lists illustrative examples, is is not an exhaustive list. As long as
they don’t involve the use of force and the Security Council authorizes it.
International Criminal Tribunal for Rwanda (ICTR) – violations of international humanitarian
law committed in Rwanda.
The ICC was set up by means of a Statute, the Rome Statute. So it was not created by the Security
Council. So the ICC does not fit into the Article 41 UN Charter-procedure.
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