webmaster
© Copyright DEHAI-Eritrea OnLine, 1993-2011
All rights reserved
From: wolda002@umn.edu
Date: Tue Mar 22 2011 - 06:30:47 EST
Resources Research <http://makanaka.wordpress.com/>
http://makanaka.wordpress.com/2011/03/21/is-the-resolution-on-libya-legal-under-international-law/
Is the resolution on Libya legal under international law?
Is the UN Security Council decision concerning the Libya ‘no fly zone’ in
alignment with the Charter it is governed by?
A brief examination of this and related questions concerning the UN Security
Council decision:
Under the United Nations Charter, the functions and powers of the Security
Council are:
* to maintain international peace and security in accordance with the
principles and purposes of the United Nations;
* to investigate any dispute or situation which might lead to international
friction;
* to recommend methods of adjusting such disputes or the terms of
settlement;
* to formulate plans for the establishment of a system to regulate
armaments;
* to determine the existence of a threat to the peace or act of aggression
and to recommend what action should be taken;
* to call on Members to apply economic sanctions and other measures not
involving the use of force to prevent or stop aggression;
* to take military action against an aggressor;
* to recommend the admission of new Members;
* to exercise the trusteeship functions of the United Nations in “strategic
areas”;
* to recommend to the General Assembly the appointment of the
Secretary-General and, together with the Assembly, to elect the Judges of
the International Court of Justice.
*When adopting resolution 1973(2011) did the Security Council members
exhaust all the steps listed under their functions and powers, before the
step “to take military action”?*
**
*How does authorizing the enforcement of a ‘no fly zone’ by military means
“maintain international peace and security in accordance with the principles
and purposes of the United Nations”? What investigation of a dispute in
Libya or the situation in Libya was done by the UN Security Council in the
weeks before 2011 March 17? Did the UNSC recommend dispute resolutions or
settlement methods prior to 2011 March 17 – if so what were they and who
were they reported to? Did the UNSC call on UN Members to apply “measures
not involving the use of force” such as economic sanctions? If the UNSC
members did none of the above – where are their reports to the UN General
Assembly and to their national governments? – why did they move directly to
taking military action?*
This what was done on 2011 March 17:
**
*Adopting resolution 1973 (2011) by a vote of 10 in favour to none against,
with 5 abstentions…*
*Who are the members of the UN Security Council?*
The Council is composed of five permanent members: China, France, Russian
Federation, the United Kingdom and the United States. There are ten (10)
non-permanent members (with year of term’s end): Bosnia and Herzegovina
(2011), Germany (2012), Portugal (2012), Brazil (2011), India (2012), South
Africa (2012), Colombia (2012), Lebanon (2011), Gabon (2011), Nigeria
(2011).
How did they vote on the Libya ‘no fly zone’ resolution?
*The five abstentions were Brazil, China, Germany, India, Russian Federation
– that is, two permanent members of the Security Council abstained.*
*Why did these members abstain?*
[This text is from the UN press release] “The representative of the United
States said that today, the Council had responded to the Libyan peoples’ cry
for help. The Council’s purpose was clear: to protect Libyan civilians.
The Security Council had authorized the use of force, including enforcement
of a no-fly zone, to protect civilians and civilian areas targeted by
Colonel Muammar Al-Qadhafi, his allied forces and mercenaries.”
“The representatives of China and the Russian Federation, explaining their
abstentions, prioritized peaceful means of resolving the conflict and said
that many questions had not been answered in regard to provisions of the
resolution, including, as the Russian representative put it, how and by whom
the measures would be enforced and what the limits of the engagement would
be. He said the resolution included a sorely needed ceasefire, which he had
called for earlier. China had not blocked the action with a negative vote
in consideration of the wishes of the Arab League and the African Union, its
representative said.”
“The delegations of India, Germany and Brazil, having also abstained,
equally stressed the need for peaceful resolution of the conflict and warned
against unintended consequences of armed intervention.”
*With reference to the US representative’s explanation, what exactly was the
“cry for help”, who voiced it, how is it representative of the people of
Libya, and in what way did this “cry for help” reach the UN General
Assembly?*
The General Assembly is the main deliberative, policymaking and
representative organ of the United Nations. Comprising all 192 Members of
the United Nations,
The Libyan Arab Jamahiriya is a member of the UN General Assembly and was
admitted on 14-12-1955.
**
*How do Members of the UNSC vote?*
This is covered in Chapter VII of the UN Charter
[*Rule 40*] Voting in the Security Council shall be in accordance with the
relevant Articles of the Charter and of the Statute of the International
Court of Justice
*What does the UN Charter say about the Security Council?*
This is covered in Chapter V of the Charter. The composition of the Council
is covered by Article 23, which also says: “…due regard being specially paid,
in the first instance to the contribution of Members of the United Nations to
the maintenance of international peace and security …”
The functions and powers of the Security Council are covered in Article 24
of the Charter which also says: “In order to ensure prompt and effective
action by the United Nations, its Members confer on the Security
Council primary
responsibility for the maintenance of international peace and security…”
*What is the significance of the 10 votes for the Libya resolution?*
Voting is covered in Article 27 of the UN Charter:
“1. Each member of the Security Council shall have one vote.
2. Decisions of the Security Council on procedural matters shall be made *by
an affirmative vote of nine members*.”
*This brief background raises questions that must be asked by the
representative of the Government of India in the UN. Most important, the UN
Charter insists first on the maintenance of international peace and
security. This principle has been ignored by the 10 members who voted for
the resolution. The functions and powers of the UNSC place military action
as following several others – resolution, settlement, economic. The 10
members who voted have violated the procedure. All 15 members have not
explained why other measures – including an objective analysis (see India’s
member’s explanation in Annex) – were not followed up by them before
agreeing to take up the Libya resolution 1973(2011).*
**
*Referencess:*
Security Council Approves ‘No-Fly Zone’ over
Libya<http://www.un.org/News/Press/docs//2011/sc10200.doc.htm>,
Authorizing ‘All Necessary Measures’ to Protect Civilians, by Vote of 10 in
Favour with 5 Abstentions (2011 March 17)
Charter of the United Nations <http://www.un.org/en/documents/charter/>
*Annexure:*
India’s Explanation of Vote after the vote on Libyan Resolution in the UN
Security Council delivered by Ambassador Manjeev Singh Puri, Deputy
Permanent Representative, on 17 March 2011
1. India has been following with serious concern the developments in Libya,
which have led to loss of numerous lives and injuries to many more. We are
very concerned with the welfare of the civilian population and foreigners in
Libya. We deplore the use of force, which is totally unacceptable, and must
not be resorted to.
2. The UN Secretary-General has appointed a Special Envoy, who has just
visited Libya. We support his appointment and welcome his mission. We have
not had the benefit of his report or even a report from the Secretariat on
his assessment as yet. This would have given us an objective analysis of the
situation on ground. The African Union is also sending a High Level Panel to
Libya to make serious efforts for a peaceful end to the crisis there. We
must stress the importance of political efforts, including those of the
Secretary-General’s Special Envoy, to address the situation.
3. The resolution that the Council has adopted today authorizes far reaching
measures under Chapter VII of the UN Charter with relatively little credible
information on the situation on the ground in Libya. We also do not have
clarity about details of enforcement measures, including who and with what
assets will participate and how these measures will be exactly carried out.
It is, of course, very important that there is full respect for sovereignty,
unity and territorial integrity of Libya.
4. Mr President, the financial measures that are proposed in the resolution
could impact, directly or through indirect routes, ongoing trade and
investment activities of a number of member-states thereby adversely
affecting the economic interests of the Libyan people and others dependent
on these trade and economic ties. Moreover, we had to ensure that the
measures will mitigate and not exacerbate an already difficult situation for
the people of Libya. Clarity in the resolution on any spill-over affects of
these measures would have been very important.
5. Mr President, we have abstained on the resolution in view of the above. I
would like to re-emphasize that India continues to be gravely concerned
about the deteriorating humanitarian situation in Libya and calls on the
Libyan authorities to cease fire, protect the civilian population and
address the legitimate demands of the Libyan people.
I thank you.
----[This List to be used for Eritrea Related News Only]----