CASO PRÁCTICO 3 Siembra de cultivo permanente: Café
UNIDAD 4. CATÁLOGO DE CUENTAS DE ACTIVIDADES AGROPECUARIAS
In June 1950 North Korea invaded South Korea. This invasion caught the collective security system envisaged by the UN Charter, in a state of paralysis. At the time, the Soviet Union was boycotting the Security Council (as well as other UN institutions) in protest against the UN’s refusal to replace Taiwan with the People’s Republic of China in the structures of the UN. Thus, when the United States asked the Security Council to act on the Korean-crisis, the Soviet Union did not participate in the process that led to the Security Council resolutions calling on North Korea to withdraw from the South53 and recommending assistance of the
international community to South Korea54. According to Henry Kissinger, this Soviet
boycott of the Security Council provided the United States with the opportunity to invoke military force in collaboration with its allies and to ‘justify the American role in Korea in the familiar Wilsonian terms of freedom versus dictatorship, good versus evil.’55 The United States could thus argue that the use of military force was
justified in order to uphold the resolutions of the Security Council.56 Five decades
later, the US would use the same argument to justify the use of force against Iraq,
of the collective security role of the UN, see the Report of the Independent International Commission on
Kosovo (2000) Oxford University Press Oxford 166 – 176.
53 UN SC Res 82 (1950). 54 UN SC Res 83 (1950).
55 Henry Kissinger Diplomacy (1994) Touchstone, New York, 477. 56 Kissinger (Diplomacy) (supra) 477.
challenging yet again the way in which the collective security system is suppose to deter the use of force by states other than in cases of self-defence or with Security Council permission.57
It was noted above that the Security Council is the organ of the UN primarily responsible for issues concerning international peace and security. During the Korean crisis the Security Council was in a position to act, only because the Soviet Union was not using its veto (the latter was boycotting the Security Council at the time). Kissinger pointed out that the Soviet ambassador to the UN would ‘surely have vetoed the Security Council resolution proposed by the United States’ if the ambassador was ‘less terrified of Stalin or [had] been able to obtain instructions more rapidly’.58 There was, however, a need to provide for the inevitable return of the Soviet Union to the Security Council and the real possibility that the Soviet Union, or one or more of the other permanent members of the Security Council, would (in the context of the Cold War politics of that time) use their veto and thus cause paralysis in the UN’s primary organ for international peace and security. To provide for this scenario, the General Assembly adopted the Uniting for Peace Resolution59 in 1950. Paragraph 1 of the Resolution provides as follows:
‘[If] the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore
57 See discussion in Ch 2 para 2.3 and 2.5.1.1 infra. 58 Kissinger (Diplomacy) (supra) 477.
international peace and security. If not in session at the time, the General Assembly may meet in emergency special session within twenty-four hours of the request therefor. Such emergency special session shall be called if requested by the Security Council on the vote of any seven members, or by a majority of the Members of the United Nations’.60
Early commentators on the UN Charter, like Hans Kelsen, observed that the Charter envisages a primary role for the Security Council in collective security matters, and a secondary role for other organs, like the General Assembly. However, Kelsen submitted that ‘no other central organ of the United Nations but the Security Council’ has the power of using force.61 The Uniting for Peace Resolution was thus
a pragmatic development and perhaps not in line with the rather rigid division of labour between the organs of the UN, as described by Hans Kelsen in 1948. This Resolution seems to confer upon the General Assembly the kind of duties and responsibilities associated with the Security Council, and is perhaps evidence of the need for a more flexible (and arguably more democratic, or representative) collective security system. At the very least, it is submitted that the pragmatism reflected by the Uniting for Peace Resolution serves to illustrate the difficulties in trying to reconcile the ideals of international peace and security with political realities and the complexities of international relations. These complexities also impact on the process to find a suitable (and acceptable) definition of aggression and conditions for the exercise of jurisdiction of the International Criminal Court, which are explored in Chapter 7 below.62
60 Uniting for Peace Resolution, par 1.
61 Hans Kelsen (Collective security) (supra) 786.
62 The critical question in this regard is the relationship between the SC and the ICC, and whether the SC
It is submitted that the Uniting for Peace Resolution, although not providing for a parallel collective security regime, does at least establish a potentially complementary role for the General Assembly in matters of peace and security, including cases of aggression. Michael Cowling pointed out that the General Assembly has acted under the Uniting for Peace Resolution on a number of occasions during the Cold War, and the practice in this regard is of growing importance.63 Farhad Malekian argued that, because of the perception that the Uniting for Peace Resolution was essentially adopted to by-pass potential Security Council vetoes by Russia, it was widely perceived to be anti-Soviet. Therefore, according to Malekian, the Resolution ‘lost its potential to create a democratic approach to the machinery of the collective security system of the United Nations’.64 It is submitted, though, that the Uniting for Peace Resolution holds out some potential for purposes of finding a mechanism to make the collective security system more democratic, especially in light of demands for Security Council reforms. The latter process will probably take some time and assumes considerable political will.
1.1.1.1 The Uniting for Peace Resolution and the Wall in the Occupied Palestinian
Territory case
the question is raised whether, in the light of demands for SC reform, the GA should also play a role in the context of ICC jurisdiction over the crime of aggression. See Ch 7 par 7.2.4 infra.
63 Michael Cowling ‘The relationship between the Security Council and the General Assembly with particular
reference to the ICJ Advisory Opinion in the ‘Israeli Wall’ case (2005) 30 SAYIL 50-81, 62.
64 Farhad Malekian The Monopolization of International Criminal Law in the United Nations (1993) Almqvist &
One of the world’s enduring conflicts (that outlived the Cold War, apartheid and various civil wars that plagued the post-Second World War international system) is the Israeli-Palestinian conflict. This conflict not only generates much international political and diplomatic attention, but it also raises important legal questions. In December 2003 the International Court of Justice (ICJ)65 was asked66 to deliver an
advisory opinion on the legal consequences of the construction of a very controversial wall in Israeli occupied Palestinian territory. Israel contended that the construction of the wall was necessary for the security of Israel, while a number of states as well as human rights groups argued that the construction of the wall was contrary to international law (notably humanitarian and human rights law).
For present purposes, the importance of the ICJ’s advisory opinion in the
Construction of a Wall case lies in the way the Court dealt with the intricate
question of the role of the General Assembly vis-à-vis the Security Council in matters that affect international peace and security. The meaning and impact of the Uniting for Peace Resolution of 1950 was considered by the ICJ. It is submitted that the opinion of the ICJ in the Construction of the Wall case has implications for one of the pertinent questions of this dissertation, namely the conditions for the exercise of jurisdiction by the International Criminal Court (ICC) over the crime of aggression. This is fully explored in Chapter 7 infra. The relationship between the
65 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) 9
Jul 2004 ICJ Reports 2004, 136.
66 GA Res ES-10/14 8 Dec 2003. The GA requested the ICJ for an advisory opinion on the following question:
‘What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?’ See Construction
General Assembly and the Security Council is thus important, not only for a discussion of collective security, but also for pertinent debates in international criminal law.
The present features of the collective security system (and the ongoing debate about the different roles of the UN organs in this system) need to be put in historical, theoretical and normative perspective.