Loyola University Chicago School of Law, JD 2019
Since its inception, compliance with the United Nation’s rules and regulations has been contentious for nations and individuals alike. Perhaps most prominent are the Security Council and the International Court of Justice, known internationally as sources of law for the maintenance of international peace and security. In theory, bodies like the Security Council and the International Court of Justice may presume member states’ compliance with their rules and regulations. Yet often the presumption of compliance is just that—in an effort to maintain its status as a peaceful international entity, the UN has limited enforcement power. The result is body of agreement, and not much else.
The UN Security Council (“SC”), with its 15 members, maintains responsibility for international peace and security. The UN Charter has 111 Articles dedicated to the mission of the organization. Article II delineates a list of principles which the UN and its member states must comply with to achieve the purposes and ideals of the charter. The SC steps in when, under Chapter VII of the Charter, there are threats to peace, a breach of the peace or acts of aggression. To enhance compliance, parts of the Charter that supply economic support can be applied in order to induce states to live up to Charter obligations. The heaviest authority given to the SC under Chapter VII is the decision to use collective military enforcement action or “such action by air, sea, land forces as may be necessary to maintain or restore International peace and security.” When this decision is made, all members must accept and carry out its commands.
Chapter II encompasses Articles 3-6 and explains the essentials of membership in the UN. Article 6 of the Charter gives the general assembly the possibility, upon recommendation of the SC, of expelling a member state from membership in the organization if it has been found to have “persistently violated the Principles contained in the Charter.” On the other hand, Article 5 allows for the suspension of membership. Suspension is decided by the General Assembly upon recommendation by the SC. Interestingly enough, Article 5 and 6 have ever been used in UN history
Using Resolution 82, effectuated on June 27, 1950, the SC determined that the armed attack on the Republic of Korea by forces from North Korea that occurred on June 25, 1950 constituted a “breach of peace.” Therefore, the SC recommended “that members of the United Nations furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area,” as stated in Resolution 83. Additionally, in 1966, the SC, in the requested that the British government “prevent, by the use of force if necessary, the arrival at Beira of vessels reasonably believed to be carrying oil destined for Southern Rhodesia.”
The Gulf Crisis in 1990 brought about two resolutions. First, Resolution 665 established the enforcement at sea of the trade embargo against trapping and occupying Kuwait, if necessary by a limited use of force. Second, Resolution 678 authorized member states cooperating with the government of Kuwait “to use all necessary means to uphold the implementation of Resolution 660 and all subsequent relevant resolutions and to restore International peace and security in the area.” Neither of these resolutions require collective enforcement action by the UN, so they do not fall under of the Charter. However, the resolutions do constitute an exercise of power by the SC under Chapter VII.
When taking into account what powers the UN realistically has, resolutions are significant. Resolutions like 82 and 665 seem to “authorize” the use of force. However, it is difficult to imagine a conflict in which the counties involved would not already be using force. So is the UN truly granting its members authority to use force? Or is this merely recognizing the reality of its member states?
The International Court of Justice
The UN promulgates member states’ legal obligations through the International Court of Justice (“ICJ”). The ICJ is the principal judicial branch of the UN and is an integral part of the Charter. The ICJ is vested with the power to decide legal disputes between member states. However, a wrench in the enforcement power of the court is the well-known fact that the Charter, in deference to the principle of sovereignty, makes the ruling power of the court dependent on its recognition by the individual states. Judgments of the court in state-to-state proceeding are binding only in member states or when states agree to be bound by the judgements of the ICJ. In case a state fails to comply with a judgment rendered by the ICJ, Article 94 of the Charter gives the SC authority to recommend or decide measures to be taken to give effect to the judgment. However, like other articles, this has never come into practice.
What Can Be Done?
By and large, compliance with UN regulations is entirely voluntary and cannot be imposed on parties in a dispute. However, the UN now has supervisory bodies to which states, party to the conventions, regularly have to report and, when required, answer questions addressed to them. Certain dispute settlement clauses started as ICJ clauses, but over time became engraved in the international community. Today, fact-finding missions and reporting duties are increasingly used by the UN as way of controlling and enforcing compliance of its member states. Being a member of the UN also has certain advantages to countries. Membership in the UN comes with a certain elite status and international recognition. Because the UN is an international organization, countries that are parties are protected by international law. There is also the element of aid should a country experience a national disaster. All things considered, most countries recognize the importance of being a part of an international entity and value the United Nations for the powerful international organization that it is.