Peacekeeping Operations As Implied Power Of The United Nations: A Critical Assessment

Abstract:

The International Organization should not be limited by those powers granted to it upon its creation, i.e. attributed powers instead be allowed to exercise certain powers that are not granted expressly but are granted by implications, i.e. implied powers. The United Nations, as an international organization, was established in 1945 to save people from the scourge of war with one of its primary purposes being the maintenance of international peace and security. According to the Charter, maintenance of international peace and security is the UN Security Council’s primary responsibility. To fulfill this responsibility, the Council may adopt a range of measures as its implied powers. UN’s one of the main tools to achieve this purpose is ‚ÄėPeacekeeping Operations‚Äô. In 1948, UN peacekeeping promoters had the simple idea of using military troops to help implement peace accords instead of fighting and winning wars. Its strength lies in the legitimacy as an implied power of the UN granted by the Charter and the significant number of contributing countries participating and providing precious resources. These multidimensional peacekeeping operations maintain peace & security, protect civilians, facilitate political processes, support the Organization of elections assist in disarmament, demobilization, and reintegration, restore the rule of law, promote human rights.

Introduction:

International organizations work based on their legal powers being conferred expressly by their constituent instruments.[1] The constituent documents of an international organization necessarily contain gaps as the drafters cannot be expected to think of every possible contingency. International organizations when they were created or subsequently, may only exercise those powers that have been given to them.[2] As a result, international organizations’ scope of powers has always been surrounded by a sense of ambiguity.[3] This has its source like the two main legal tools to construct powers; the doctrines of attributed/conferred powers and implied powers.[4]¬†The fundamental rule of international organizations’ law is the principle of attributed powers, or of conferred powers, or specialty principle.[5] On the other hand, The doctrine of implied powers developed in its current form through the literature of international law and international practice, particularly the case law of international tribunals.[6] The literature was emphasizing the theory of implied powers as a rule of interpretation of the constituent instruments of international organizations.[7]

The United Nations (UN) is the international actor most associated with peacekeeping operations since 1948, which is considered one of its implied powers. According to the UN Secretary-General Ant√≥nio Guterres, ‚ÄėUnited Nations peacekeeping is a proven investment in global peace, security, and prosperity‚Äô. The UN does not have its standing army or police force. It asks the Member States to contribute military and police personnel required for each operation. Peacekeepers wear their countries‚Äô uniforms and are identified as UN Peacekeepers by a UN blue helmet or beret. Today, the UN has the most significant deployed force in the world in conflict zones. Over the past 70 years, more than 1 million men and women have served under the UN flag in more than 70 UN peacekeeping operations. They have been the best chance for peace for some of the world‚Äôs most vulnerable people. Their service and sacrifice, frequently under harsh and dangerous conditions, have made them a symbol of hope to millions of people.

UN peacekeeping is a unique global partnership that brings together the General Assembly, the Security Council, the UN Partners, troop & police contributors, and host governments in a combined effort to maintain international peace and security. UN Peacekeeping helps countries navigate the steep path from conflict to peace. It contains unique strengths, including legitimacy, burden sharing, and deploying troops and police worldwide. It integrates them with civilian peacekeepers to address a range of mandates set by the UN Security Council (SC) and General Assembly (GA). However, its legitimacy and legality stem from the SC. The SC’s function is so deeply entrenched that even powerful single states staging military intervention and occupation have sought the UN‚Äôs approval.[8] Although peacekeeping operations have roots in earlier forms of military intervention, their recent emergence as a dominant tool for conflict management can be reckoned as a distinct innovation of the same internationalist project that forged the UN.[9] This paper discusses peacekeeping operations as an implied power of the UN, highlighting indispensable controversies in their authorization and execution of internationally led efforts for maintaining global peace and security.

 

Implied powers of the United Nations:

The doctrine of implied powers in international organizations means that the Organization is deemed to have certain powers additional to those expressly stipulated in the constituent document essential for the fulfillment of the purposes of the Organization, or the performance of its functions or the exercise of the powers explicitly granted.[10] The theory serves as a rule of interpretation of the constituent instruments of international organizations; however, sometimes these are also found in the specific provisions of these instruments. For instance, the SC created the¬† International Criminal Tribunal for the former Yugoslavia based on Article 29 of the UN Charter along with the provisions of Chapter VII. The SC may establish such subsidiary organs as it thinks necessary for the performance of its functions. The implied powers of the UN are undoubtedly connected with the express powers of this Organization and serve to supplement them. Judge G.H. Hackworth strongly emphasized the connection between express and implied¬† powers in the 1949 Reparation for injuries case, where he held that ‚Äúpowers not expressed¬† cannot freely be implied.‚ÄĚ[11] ICJ in the 1949 Reparation for injuries advisory opinion in a highly¬† significant passage of this opinion justifying the implied powers of the United Nations, where the¬† Court held that:

‚Äėunder international law, the Organization must be deemed to have those powers which,¬† though not expressly provided in the Charter, are conferred upon it by necessary implication, as being essential to the performance of its duties. […] upon examination of¬† the character of the functions entrusted to the Organization and of the nature of the¬† missions of its agents,‚Äô

For the first time, the Court held in this case that the UN has all the powers expressed in the Charter. Those powers can also be implied to fulfill their purposes from reading the provisions of the expressed powers.

 

United Nations Peacekeeping:

Article 1 of the UN charter denotes the primary purpose of the UN to maintain international peace and security and should be empowered with the means to fulfill its purpose. Accordingly,¬† the UN exercises implied powers to achieve its chartered mandate. Peace operations are the ‚Äúsignature activity‚ÄĚ of the UN.[12] ¬†The UN Charter explicitly does not refer to Peacekeeping rather Peace operations in their current guise are issued under Chapter VI that concerns the pacific settlement of disputes. However, the SC does not need to refer to a specific Chapter of the Charter to pass a resolution authorizing a UN peacekeeping operation’s deployment and has never invoked Chapter VI. Chapter VII covers threats to the peace, breaches of the peace and acts of aggression.[13] In these situations, to denote the legal basis for its action, the SC‚Äôs invocation of Chapter VII can be seen as a statement of firm political resolve. It can also be a means to remind the parties to a conflict and the UN members of their obligation to give effect to the SC decisions. Chapter VIII¬†of the Charter incorporates the engagement of regional arrangements and agencies to maintain international peace and security provided such activities are in line with the purposes and principles described in Chapter I of the Charter.

Although peacekeeping operations are not explicitly mentioned in the Charter, the ICJ allowed the SC under the Charter to monitor a conflict without resorting to a Chapter VII peace enforcement action.[14] They are the most expensive and most visible of the UN’s programs, and they are associated with the core functions and challenges of contemporary international organizations. However, UN peacekeeping is:-

  • cost-effective
  • a unique global partnership
  • evolving to meet challenges

The definition of peacekeeping operations remains contested and politicized. Peacekeeping operations are a broad category of military interventions undertaken for humanitarian relief,  conflict stabilization, ceasefire monitoring, and implementing peace agreements responding to war or disaster.[15] They encompass a variety of conflict management, peacebuilding, and state-building missions, strategies, and techniques.[16] Since the late 1940s, peace operations have operated under legal mandates issued by the UN SC. When Peacekeeping was invented after World War II, it was considered a significant innovation in war and peace, and peacekeepers were deployed to help everyone and to harm no one.[17] Peacekeeping has evolved gradually to encompass a broad range of various conflict management missions and techniques worldwide.[18] Understanding the problems and potential is essential for a more secure world as the UN uses peace operations as one of the primary conflict management mechanisms.[19] New cooperative developments between members of the P5, European powers, and troop-contributing countries indicate that key actors are trying to bridge these deep fault lines; how precisely this will affect peace operations on the ground remains to be seen.[20]

Peacekeeping operations have many goals and deploy an extensive set of military and diplomatic tools by carrying the UN SC‚Äôs seal of approval. The¬† UN‚Äôs Department of Peacekeeping Operations (DPKO) has defined peace operations in various ways like a designed technique to preserve the peace, where fighting has been halted, and to assist in implementing agreements achieved by the peacemakers;[21] by only listing civilian and military peacekeepers‚Äô most common functions;[22] or by offering a continuum of activities ranging from conflict prevention to peacebuilding.[23] The most commonly specified division is between consent and enforcement based operations, or between traditional, Chapter VI inter-positional peacekeeping missions and post-Cold War Chapter VII enforcement missions.[24] The UN SC authorizes traditional peacekeeping missions under Chapter VI for the pacific settlement of disputes, and they hew to the three general rules‚ÄĒ limited force, consent of the warring parties, and impartiality.[25] Peace enforcement missions are authorized under Chapter VII of the mandate, invoking the SC‚Äôs responsibility to maintain international peace and security.[26] They are closer to conventional military operations: soldiers undertake coercive actions, have higher military capacity, and may not have been authorized with the consent of all warring parties in place.[27]

 

Principles of Peacekeeping:

Three basic principles set UN peacekeeping operations as a tool for maintaining international peace and security. These principles are interrelated and mutually reinforcing:

  1. Consent of the parties
  2. Impartiality
  3. Non-use of force except in self-defense and defense of the mandate

These rules establish Peacekeeping as a separate endeavor from warfighting, with political and humanitarian rather than military goals.

  1. Consent of the parties:

The consent of the main parties and a commitment by the parties to a political process to the conflict are required for UN peacekeeping operations to be deployed.[28] The UN gets the necessary freedom of action to carry out its mandated tasks, both political and physical, after accepting a peacekeeping operation. The absence of such consent risks a peacekeeping operation becoming a  party to the conflict. When the main parties have given their consent to the deployment of a UN  peacekeeping operation, does not automatically imply consent at the local level.[29] The universality of consent becomes even less probable in volatile settings not under the control of any of the parties or by the presence of other spoilers but is characterized by the presence of armed groups.[30]

  1. Impartiality:

Impartiality is conclusive in order to maintain the consent and cooperation of the main parties, but it is not to be confused with neutrality or inactivity. Therefore, UN peacekeepers should be impartial in their dealings with the parties to the conflict. However, they should not be neutral in the execution of their mandate. Also, a peacekeeping operation should not condone actions by the parties violating the peace process’s undertakings or the international norms and principles a UN peacekeeping operation upholds. A peacekeeping operation must scrupulously avoid the activities that might compromise its image of impartiality. If they fail to do so, it may undermine the peacekeeping operation‚Äôs credibility and legitimacy. This may lead one or more of the parties to a withdrawal of consent for its presence.

  1. Non-use of force except in self-defense and defense of the mandate:

Peacekeeping Operation is not an enforcement tool; however, with the SC’s authorization, they may use force at the tactical level while acting in self-defense and defense of the mandate. The SC has given UN peacekeeping operations robust mandates in certain volatile situations. It authorizes them to use all necessary means to deter forceful attempts to disrupt the political process. It also authorizes to protect civilians under imminent threat of physical attack, and/or assist the national authorities in maintaining law and order. Under Chapter VII of the UN Charter, robust Peacekeeping should not be confused with peace enforcement. A UN peacekeeping operation should not use force except as a last resort measure following the minimum force principle that is necessary to achieve the desired effect being calibrated precisely, proportionately, and appropriately.

 

Success and Failure of the Peacekeeping Operations:

Most early missions, from Peacekeeping‚Äôs inception with the UN Truce Supervision¬† Organization in 1948 through the end of the Cold War were designed as interposition forces to monitor ceasefire arrangements between states. This was as much a political innovation as it was a political necessity. While Peacekeeping was a new option for conflict management in the modern state system, it was also fundamentally limited by the composition of the SC and the bipolar Cold War structure of the international system. Fourteen peacekeeping missions were authorized during the Cold War‚Äôs forty years, while fifty- five missions have been authorized in the twenty-seven years that have followed it.[31] The end of the Cold War brought about significant changes in both the number and type of peace operations. With the thaw in the SC,¬† thirty-eight new missions were authorized between 1989 and 1999, and eighteen new missions between 1989 and 1994 alone.[32] For the most part, these missions were deployed to intrastate,¬† rather than interstate conflicts, as civil war became the modal form of conflict at the Cold War‚Äôs end and as the decline of superpower, support changed the technologies of rebellion with which these wars were fought.[33] The confluence of peacemaking and multidimensional Peacekeeping was a historically new phenomenon.[34] Indeed, since the end of World War II, there have been more negotiated settlements than any other time in history,[35] and since the end of the Cold¬† War, negotiated settlements have risen even more while the likelihood that wars will end in military victory has declined.[36] Despite the crucial successes in Namibia, El Salvador,¬† Cambodia, and Mozambique, peacekeeping failures’ human costs were vivid and staggering during this era.[37] Between 1993 and 1995, there were three highly publicized, brutal collapses of peace operations, including US and Pakistani peacekeepers’ pivotal deaths in Somalia in 1993.[38] The tragedies in Somalia extinguished US support for the new peacekeeping agenda, reduced political will for robust interventions among troop-contributing countries and the SC, thereby enabling genocide, massacres, and ethnic cleansing in Rwanda,¬† Angola, and Srebrenica despite the presence of UN peacekeepers.[39] These failures entrenched Peacekeeping as a losing game in the public imagination of wealthy donor states.[40]

 

read more Peacekeeping Mission in the East of Ukraine: What Options are on the Table?

 

Conclusion: 

It can be argued from the above discussion that the doctrine of implied powers has played an essential role in the development of the law of the UN. Conflicts destroy economies and destabilize political systems, fueling mass migration. The road from conflict to peace is challenging, but the goal is worth it. It is without any doubt that Peacekeeping helps countries rebuild. Peacekeeping helps restore stability, allowing refugees and migrants to return home. In recent years, UN peacekeeping missions have been deployed to increasingly challenging and complex environments. Today, however, peacekeeping operations have become increasingly complex to distinguish from war.  Peacekeeping is undoubtedly one of the most influential global solutions for fostering peace. Nevertheless, measuring the specific impact of operations can be a challenge. How the UN and others might become more effective at Peacekeeping is also a question for further research.

 

Author

Nabila Akter

is an independent researcher, currently working as an intern at International Development Enterprise, Bangladesh. She has completed LLM in International Law from South Asian University, New Delhi, India, and LLB from Daffodil International University, Dhaka Bangladesh.

 

References:

[1] Amersinghe, C.F. (2005). Principles of Institutional Law of International Organizations. 2nd edition, Cambridge  University Press. page 46

[2] Niels M Blokker, (2009). International Organizations or Institutions, Implied Powers. Encyclopedia entries. Max Planck Institute for Comparative Public Law and International Law. https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e467

[3] Engström, V. (2012). Constructing the Powers of International Institutions. Leiden, The Netherlands: Brill | Nijhoff.  https://doi.org/10.1163/9789004220317

[4] ibid

[5] (n 2)

[6] Andrzej Gadkowski, (2016). The doctrine of implied powers of international organizations in the case law of international  tribunals. Adam Mickiewicz University Law Review, volume 6. DOI 10.14746/ppuam.2016.6.03

[7] ibid

[8] Voeten, E. (2005). The Political Origins of the UN Security Council’s Ability to Legitimize the Use of Force.¬†International Organization,¬†59(3), 527-557. doi:10.1017/S0020818305050198.

Bukovansky, M. (2010). After Anarchy: Legitimacy and Power in the United Nations Security Council. By Ian Hurd. Princeton: Princeton University Press, 2008. doi:10.1017/S1537592709993094

[9] Marten, K. (2004). Enforcing the Peace: Learning from the Imperial Past. New York: Columbia University Press. doi:10.7312/mart12912

[10] Rosenne, S., Dinstein, Y., & Tabory, M. (1989).¬†International law at a time of perplexity: Essays in honour of Shabtai Rosenne. Dordrecht, The Netherlands: M. Nijhoff. pp. 855‚Äď856.

[11] Reparation for injuries suffered in the service of the United  Nations, Advisory Opinion: ICJ Reports 1949. Dissenting Opinion by Judge G.H. Hackworth p. 198.
http://www.worldcourts.com/icj/eng/decisions/1949.04.11_reparation_for_injuries.htm

 

 

[12] David Bosco (2013). The Price of Peace: How Much Is a UN Blue Helmet Actually Worth. Foreign Policy,  http:// foreignpolicy.com/ 2013/ 05/ 30/ the- price- of- peace/

[13] Virginia Page Fortna and Lise Morj√© Howard (2008). Pitfalls¬† and Prospects in the Peacekeeping Literature. Annual Review of Political Science 11: 283‚Äď 301

[14] Bialke, Joseph P. (2001).  United Nations Peace Operations: Applicable Norms and the application of the Law of Armed Conflict. 50 Air Force Law Review 1.

[15] Anjali Dayal and Lise Morj√© Howard ‚ÄėPeace Operations‚Äô, Cogan, J. K., Hurd, I., & In Johnstone, I. (2016).¬†The Oxford handbook of international organizations. Oxford University Press

[16] BARNETT, MICHAEL, and MARTHA FINNEMORE. Rules for the World: International Organizations in Global Politics. Cornell University Press, 2004. JSTOR, www.jstor.org/stable/10.7591/j.ctt7z7mx. Accessed 11 Feb. 2021;

Holtermann, H. (2007). MacQueen, Norrie, 2006. Peacekeeping and the International System. Abingdon: Routledge. 286 pp. ISBN 0415353548. Journal of Peace Research, 44(5), 639‚Äď639. https://doi.org/10.1177/00223433070440050712; Howard, L. Michael Doyle and Nicholas Sambanis,¬†Making war and building peace: United Nations peace operations.¬†Rev Int Org¬†1,¬†401‚Äď403 (2006). https://doi.org/10.1007/s11558-006-0365-9

[17] Dag Hammarskjold (1974‚Äď 5), quoted in Andrew W. Cordier and Wilder Foote (eds.), Public Papers of the Secretaries General of the United Nation. (New York: Columbia University Press.

[18] Paul F. Diehl (2008).  Peace Operations(War and Conflict in the Modern World). London: Polity.

[19] ibid

[20] Concept Note: The Future of Civilian Protection in Peace Operations Endorsing and Implementing the Kigali  Principles  (2016). UNHQ NY, http:// www.un.org/ pga/ 70/ wp- content/ uploads/ sites/ 10/ 2016/ 01/

[21] United Nations Peacekeeping Operations Principles and Guidelines, UNDPKO (2008). Capstone Doctrine Draft 3 Quoted in Bellamy and Williams. https://www.un.org/ruleoflaw/blog/document/united-nations-peacekeeping-operations-principles-and-guidelines-the-capstone-doctrine/

[22] UN DPKO (2003). Handbook on United Nations Multidimensional Peacekeeping Operations .New York: DPKO Best  Practices Unit. https://digitallibrary.un.org/record/516783?ln=en

[23] UN DPKO (2008). United Nations Peacekeeping Operations Principles and Guidelines, Capstone Doctrine.

[24] Virginia Page Fortna (2008). Does Peacekeeping Work? Shaping Belligerents’ Choices after Civil War. Princeton: Princeton University Press.

[25] Gilligan, M. J., & Sergenti, E. J. (2008). Do UN interventions cause peace Using matching to improve causal inference. Quarterly Journal of Political Science, 3(2), 89-122. https://doi.org/10.1561/100.00007051

[26] Howard, L. (2007). UN Peacekeeping in Civil Wars. Cambridge: Cambridge University Press. doi:10.1017/CBO9780511840593

[27] Victoria K. Holt and Tobias C. Berkman (2006). The Impossible Mandate? Military Preparedness, The Responsibility to  Protect, and Modern Peace Operations.Washington, DC: The Henry L. Stimson Center

[28] < https://peacekeeping.un.org/en/principles-of-peacekeeping> last visited on 6th February 2021

[29] ibid

[30] ibid

 

[31] UN DPKO (2016). List of Peacekeeping Operations.  http:// www.un.org/ en/ peacekeeping/ documents/ operationslist.pdf .http://www.un.org/ en/ peacekeeping/ documents/ operationslist.pdf.

[32] UN DPKO (2016). List of Peacekeeping Operations United Nations Department of Peacekeeping Operations,  http:// www.un.org/ en/ peacekeeping/ documents/ operationslist.pdf.

[33] M. Mandelbaum (1998) Is major war obsolete?, Survival, 40:4, 20-38, DOI: 10.1093/survival/40.4.20;

KALYVAS, S., & BALCELLS, L. (2010). International System and Technologies of Rebellion: How the End of the Cold War Shaped Internal Conflict. American Political Science Review, 104(3), 415-429. doi:10.1017/S0003055410000286

[34] Wallensteen, P., & Wallensteen, P. (2012). Understanding conflict resolution. London: SAGE Publications.

[35]  ibid

[36] Fortna, Virginia Page (2009), Where Have all the Victories Gone? Peacekeeping and War Outcomes. APSA Toronto Meeting Paper, Available at SSRN: https://ssrn.com/abstract=1450558

[37] Howard, L. (2007). UN Peacekeeping in Civil Wars. Cambridge: Cambridge University Press. doi:10.1017/CBO9780511840593

[38] UN (2004). A More Secure World: Our Shared Responsibilit, Report of the High- level Panel on Threats, Challenges  and Change New York. https://peacekeeping.un.org/en/report-of-high-level-panel-threats-challenges-and-change-more-secure-world-our-shared-responsibility

[39] Fortna and Howard 2008. Pitfalls and Prospects in the Peacekeeping Literature. UN Peacekeeping in Civil  Wars. https://doi.org/10.1146/annurev.polisci.9.041205.103022

[40] Max Boot (2000). Paving the Road to Hell: The Failure of UN Peacekeeping. Foreign Affairs¬† 143‚Äď 8. https://www.foreignaffairs.com/reviews/review-essay/2000-03-01/paving-road-hell-failure-un-peacekeeping. David Igantius¬† (2012). ¬†UN Peacekeeping and the Failure of a Noble Idea. The Washington Post. https://www.washingtonpost.com/opinions/david-ignatius-un-peacekeeping-and-the-failure-of-a-noble-idea/2012/08/31/86a023d6-f2e0-11e1-892d-bc92fee603a7_story.html; Edward Luttwak (1999). Give War a Chance. Foreign Affairs ¬†36‚Äď 44. https://www.foreignaffairs.com/articles/1999-07-01/give-war-chance.

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