Resources Research

Making local sense of food, urban growth, population and energy

Is the resolution on Libya legal under international law?

with one comment

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, Authorizing ‘All Necessary Measures’ to Protect Civilians, by Vote of 10 in Favour with 5 Abstentions (2011 March 17)

Charter of the United Nations

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.

Written by makanaka

March 21, 2011 at 18:56

One Response

Subscribe to comments with RSS.

  1. […] lives from the regime of Muammar Gaddafi — one that has almost completely been dispensed with. Based on a blatant illegality ['Is the resolution on Libya legal under international law?'], NATO warplanes continue to pound targets around the remaining pro-Gaddafi towns of Sirte and Bani […]


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: