The Notion of a Threat

As the notion of a threat to the peace has noticeable change, enforcement of Article 39 has to be adapted to suit for current situations. Article 39 is the key to collective security measures of the Charter of the United Nations. Article 39 provides a prerequisite for the Security Council to use non-military and military sanction against recalcitrant states. From the beginning of the UN, Article 39 was adopted to a threat to the peace, breach of the peace, or act of aggression as resulting for maintenance or restoration international peace and security following purposes of the drafters of the UN Charter. The SC had interpreted only patently international conflicts under Article 39, particularly during the Cold War. It does not mean, however, the SC cannot reinterpret the UN Charter, as the growth in the number of internal conflicts, to reach the aims of the UN Charter.

After the Second World War and the failure of the League of Nations, the United Nation has become a new hope of this international community. Thus, the proposal for establishing the new international organisation focused on effective measures for maintenance international peace and security. The UN functions were comprised of powerful instruments able to overcome recalcitrant states and to achieve the purpose of the international society. The Security Council was granted this major role through Chapter VII of the UN Charter empowering the SC to take enforcement action either non-military or military measures. Apparently, such measures were not provided in any provision of the Covenant of the League. At the San Francisco Conference, states willingly agreed to submit the unprecedented measures to the SC with expectation that the UN actions are more effective than the League did.

Due to aspirations of the drafter of the UN Charter to create the effective international organization able to maintain international peace and security, the SC, the primary organ that is responsible for this action, enjoys extremely broad powers with limited restriction. Chapter VII is the key provision of the UN Charter dealing with the collective use of force which is the major mechanism for restoration of the peace. This Chapter enshrines the SC powers to determine the existence of a threat to the peace, breach of the peace, or act of aggression and to make recommendations or take whether non-military or military measures. With respect to Article 48 of the UN Charter, the decisions under Chapter VII are binding on the Member States. The range of powers of the SC is indicated in Article 39 to 42.

The authority of the SC provided under Article 39 is comparable to the basic provision of the Charter. Article 39 provides precondition for applying to Article 41 and 42, the UN measures for removing of threats to the peace. The SC has authority to determine whether there is a threat to the peace, a breach of the peace, or an aggression and is empowered to make recommendations or decide what measures should be taken. Nowhere in the UN Charter provided precise definition of “a threat to the peace,” “a breach of the peace,” or “an aggression.” There is the only one Resolution by the General Assembly defining “an aggression” as using of armed force against the sovereignty, territorial integrity or political independence of another state including any breach of the UN Charter. This GA Resolution, however, is not binding on the SC and the Member States. The SC is not bound by any strict definition but also provided broad discretion in its decision. In particular, the SC also enjoys considerable freedom in the choice of measures under Article 41 and 42. At the San Francisco Conference, States submitted the broad discretion and rejected a proposal that using measure under Chapter VII resulted from failure of a peaceful settlement under Chapter VI. The SC is able to take actions under Chapter VII if the conditions under Article 39 are met.

The first condition of the Article 39 refers to a threat of the peace as the prerequisite of taking the measures under Article 41 and 42, but it includes “to maintain or restore international peace and security” in the last part. It suffices to note that the SC action should be taken to serve international peace. Regarding Article 1 (1), maintenance international peace and security is stated as the purposes and principle of the UN Charter. As mentioned above, the UN was established for absence of war among the States or international conflict. All Member States are prohibited to use of force in their international, not internal, relation as stated in Article 2 (4). Additionally, the primary responsibility of the SC under Article 24 is maintenance of ‘international peace and security,’ however, an exception of “nothing contained in the present Charter shall authorise the UN to intervene in matters which are essentially within the domestic jurisdiction of any state” is the application of enforcement measures under Chapter VII. It seems that the SC’s scope of action under Chapter VII to determine the threat to the peace is relevant to domestic issues. However, when Article 2 (7) and Article 39 are used together, the international clause becomes a precondition for using the SC’s measures. Thus, the international character of any threat to the peace should be considered before the SC decides to make the recommendations.

In practice, interpretation Article 39 of the SC has difficulties because of emergence of numerous internal conflicts. Recently, the world has to confront with new types of threat such as civil wars, terrorism, proliferation of weapons of mass destruction, and so on. Though the purposes of the UN Charter and the primary responsibility of the SC focus on the international peace and security, it is necessary for the SC to deviate from the drafters’ purposes in order to protect the dignity and worth of people, and their lives. In early year of the UN, however, the concept of peace was confined to the international relations. Furthermore, the SC faced with irresolute situation during the Cold War because of unlimited using the right of veto by the permanent members. The implementation of these measures was slightly adopted and the SC had been reluctant to define what is the action under Article 39.

During the Cold War, the notable case that the SC could authorise the collective measures under Chapter VII is the Korean War though the Resolutions were adopted by a vote 9-0. The absence of the Soviet Union was resulted of boycotting the meetings of the SC in protest at the seat of the representative of China. It is acceptable that boycotting of the Soviet Union caused the SC could pass the Resolution to authorise States to use force against North Korea. The Resolution 82 (June 25, 1950) call upon “all Members to render every assistance to the United Nations in the execution of this resolution and to refrain from giving assistance to the North Korean authorities.” On 27 June 1950, the SC adopted Resolution 83 determined the North Korean invasion the Republic of Korea was a breach of the peace and recommended to use military measure to restore international peace and security. Though these Resolutions did not cite Article 39 precisely, using “a breach of the peace” illustrates the SC intention to exercise its power under Chapter VII. From the Resolution, the United States order air and sea forces to assist the South Korea as a part of the UN forces.

The Korean Conflict began on June 1950 from invasion of North Korea of South Korea. It had clearly international character. Nevertheless, there was an argument that the situation in Korea could be constitute as civil war and the SC was unable to intervene under Article 2 (7). In fact, if this conflict can be defined as civil war, taking actions under Chapter VII excludes from the application of Article 2 (7). So, the Polish argument indicated that North Korean action represented desires of Korean people to unite their nations within one state is inadmissible. It is noted that the authorisation of the SC against North Korea is interpreted within the scope of Article 39 and the UN Charter. The SC determined to use military measures to maintain international peace and security when the situation could be defined as a breach of the peace.

After the first challenging conflict, the SC could carry out its primary responsibility under Article 39 in Iran-Iraq War. The war erupted when Iraq invaded Iranian territory because of the chronic border dispute. This conflict had been continued for eight years from 1980 to 1988. In Resolution 582, the SC called upon the two parties to cease fire because their actions caused the heavy losses of human lives and endangered international peace and security. The SC reaffirmed in Resolution 598, adopted unanimously, for existence of a breach of the peace and taking action under Article 39 and 40. It is clear that the SC firmly exercised its power over the international conflict.

The other case should be recorded as a successful action of the SC is the Gulf War crisis between Iraq and Kuwait. The response of the UN to the Iraqi invasion Kuwait raised the hope of international community after the SC function, the main organ that is responsible for collective security, was paralysed by using veto power of the permanent five members during the Cold War. The SC Resolution 660, referred to Article 39 and 40, was adopted unanimously to condemn the invasion and demand Iraq to withdraw from Kuwait’s territory immediately and unconditionally. Four days after the first Resolution was adopted, the SC had the second decision that Iraq refused to comply with the SC action. Resolution 661 referred Chapter VII in general, without directly stating any Article, to require all states using sanction against commodities and products, from and to, both states. Even other economic activities e.g. commercial, industry or finance, except only medical supplies and foodstuff, were banned under this Resolution. These sanctions are included in “economic relations”, though it does not list all specific measures under Article 41. However, enforcement of Resolution 661 was not followed by Iraq. There was evidence that Iraq still used their flag vessels to export oil. The SC adopted using maritime force to support the embargo measures. Until November 29, 1990, the SC had decision to authorise Member States cooperating with Kuwait to use all necessary means to uphold and implement previous Resolutions and restore international peace and security if Iraq had refused to withdraw from Kuwait before 15 January 1991. This SC’s measures against Iraq induced Iraqi withdrawal and the end of hostilities.

The Gulf Conflict is the second situation on which the SC was able to authorize the collective measures under Chapter VII. Though these SC’s actions are remarkable, they were criticised for implementing use of armed force and impacts of economic sanction. The effective of the UN sanction under Article 41 during the Gulf War brought the SC continued using embargo in order to guarantee compliance of Iraq after the end of conflict. Apparently, the damage had the effect not only on the Iraqi Government but also on its civilian. The sanction had eroded the economic system as a whole. Iraqi people were suffering from unemployment and inflation. The undesirable consequences of these measures were condemned broadly and referred as the classic case study which the SC should consider before taking such measures. The other controversial issue occurred after Iraq had failed to comply with embargo. The question arose when the SC decided to use coercive measure in Resolution 678 if Article 41 should be proved that it is inadequate before taking military action. Though the Resolution did not precisely refer to Article 42, it can assume that the SC adopted this measure under Article 42 because it is the only one provision stating to the power of the SC on taking action by armed forces. Also, the measures under Article 41 and 42 are options of the SC under Article 39, so referring to only Article 39 is adequate to authorise the Members to use forces in order to maintain international peace and security. The condition in Article 42 requires the SC to consider or prove inadequacy of Article 41 before taking military actions. Only debating among the SC Members can be supposed there is consideration of inadequate measure; it is not necessary to state formally in resolution.

The conflict between Iraq and Kuwait has actually international character, although Iraq claimed Kuwait is the lost Iraqi territory in the invasion. The SC decided to use the measures under Article 39 without any hesitation different from the Goa incident. In 1961, India invaded Goa territory as its lost territory because of illegal frontier of Portugal for 450 years. Goa, Damao and Diu had been occupied by Portugal since the colonial era. India attempted to integrate these territories with assertion that they were integral parts of India not under Portuguese territorial. Portugal brought complaint before the SC and called for a ceasefire and withdrawal of India, but the SC could not adopt any resolution for this situation because of a veto of the Soviet Union with support of Ceylon, Liberia and United Arab Republic. The Soviet Union asserted that the incident occurred in the Indian territory, not Portuguese territory, so it was under domestic jurisdiction of India. According to Indian argument that “it is the end of eliminating colonialism”, the SC Resolution was not adopted as this incident was within domestic jurisdiction and excluded from the UN Charter.

Apart from the incident of Goa, there were some cases showing the scope of interpretation Article 39 of the SC that did not include domestic conflict. For example, when Iraqi Government launched the large-scaled military operations against the Kurdish people in the Northern Iraq, the SC rejected to take any measures because it was internal affairs of Iraq. Though, the Iraqi action could be defined as genocide and breach of international criminal law, the SC interpreted it did not have a nature of international peace and security. The other case is civil war in Cyprus which the SC only had determination on the situation as “a potential threat”, but the SC did not take any action on this case because it was the Cypriot affair. Until Turkish Government sent the troops into Cypriot territory, the SC adopted the measures under the UN Charter. It seemed that the SC distinguished the civil war from the international security or waited until the situation was internationalised by involvement of another state.

Similarly, human rights issues had been never incorporated in international peace and security under Article 39, though there were many situations caused damage suffering to human lives. The SC Sub-Committee had the report distinguished potential and actual threats which the first form was not within the scope of a threat to the peace under Article 39. In 1946, the SC refused a Polish request about the situation in Spain as the conclusion of the SC’ Committee stated that the fascist regime could not be characterised as a threat to the peace. Though the report accepted the situation was international concern, it could not reach threshold of Article 39. Also, in an erroneous Greek case, it was not treated under UN jurisdiction because the human rights violation was excluded from notion of Article 2(7).

Noticeably, Article 39 was interpreted only a threat to or breach of the peace serving maintenance or restoration international peace and security, but it does not prevent the SC to extend the scope to cover situations of internal concern. Though, Article 39 does not refer to the use of force within domestic jurisdiction. Moreover, internal conflict is not a breach on international peace in itself and was defined as only potential threats. However, it is accepted that consequences of intrastate war cause effect expansively on both international relations and human rights issues; in addition, possibility of interstate conflict is gradually decreasing. After the end of the Cold War, the SC has increasingly deal with internal conflicts such as civil war, human rights and humanitarian law issues, terrorism and armed control. These violations are included under the notion of a threat to the peace. Broadening the scope of action under Article 39 reflects increasing concern of international law for internal affairs of states and their actions to the citizens.

The end of the Cold War was generally referred as the occasion of changing concept of Article 39, in fact, there were some cases during the Cold War illustrated that the SC took actions in internal conflicts. For example, the SC did not hesitate to take measures in Palestine Conflict, in 1948, as a threat to the peace, though it was intangible to define as interstate war. In the same year, the SC considered that the Civil War in Indonesian territory was a threat to the peace. Likewise the situation in Congo, the SC determined “the danger of widespread of civil war in Congo was the threat to international peace and security.” After the Cold War era, however, it seems there are extensive acceptances of a broader interpretation Article 39 including terrible violence within a state.

Another case that is a significant instance of interpretation domestic conflict as a threat under Article 39 is Rhodesian crisis. In this case, the SC decided to take action under Chapter VII based on the denial of self-determination. Resolution 217 determined the situation resulting from proclamation of independence by the illegal authority was a threat to international peace and security and called upon all states to take embargo measure on Rhodesia. It was stressed, again, in Resolution 221 that the consequence of the situation constituted a threat to the peace. Resolution 217 was wildly questioned on legitimacy of the SC’s power on internal affairs. It was criticized that it was a misconception of a threat to the peace and the action of the SC was an illegal intervention in domestic affairs. The argument proposed by McDougal and Reisman indicated, however, that it was recongnised maintenance of human rights had become as a part of international concerns since World War II. Breach of Universal Declaration of Human Rights and the SC’s decisions was not different from a violation of international law. Though the UN Charter was not expressly referred to the violation of international law, non-compliance with it could be defined as a threat to international order. Also, the situation, though, occurred in the Rhodesian territory, other countries and their civilians were damaged from none transborder of goods and services. It seemed that the human rights issues through the right of self-determination have been included in a threat under Article 39 since decolonization.

As mentioned above, Article 2 (7) was claimed as a limit on the SC to avoid dealing with domestic affairs of States which the SC had followed this idea on Indonesia and Greek situations. However, the idea on the limitation has been changed because the exception of Article 2 (7) that the provision shall not apply to the action under Chapter VII. So, a different interpretation has been emerged; the SC can use the measures in internal conflicts. Types of internal situations included in a threat to the peace are classified in several groups such as civil war, human rights violation, terrorism and armed control. The SC used these criteria to take action on situations happening in former Yugoslavia, Somalia, Southern Rhodesia, Haiti, and so on.

In the Yugoslav war, the SC determined to take measures from a considerable scale of damages. The crisis in the former Yugoslavia had genuinely internal character. Civil turmoil broke out when Slovenia and Croatia declared their independence from Yugoslavia leading to widespread massacre of Serbs. The SC adopted unanimously Resolution 713 to call upon ceasefire since it was a threat to international peace and security. The SC considered by based on the consequence and the situations crossing the huge loss of life and material damage. The consequences, noticeably, could see from all three parties received external support, and the fighting around Kosovo and the neighbouring countries. It seemed that the SC accepted the civil war through the humanitarian crisis as a threat to the peace. However, placing the consequences of the situation that impacted the countries of the region showed the Resolution was not adopted only from accepting internal character of the conflict. Unlike the previous Resolution in Iraq crisis in 1991, the SC referred to the human rights reason to take action on that civil war.

While the Resolution 713 was adopted by based on both international and internal concern, Somali civil war did not have any intervention from other countries. In 1991, Somalia had faced with faction fighting and anarchy. There were two rebel forces controlled two parts of the country without the stable central government; the Somali National Movement controlled the Northern of country, while the capital of Mogadishu and the southern part was controlled by the United Somali Congress. Resolution 733 determined this crisis as a threat by stating that the heavy loss of human life and widespread material damage were results of the conflict. The reason for adopting this resolution was not clear. It is difficult to determine why this situation could be a threat to the international peace. Although Somali Representative agreed willingly with the Resolution and unconditionally accepted that coercive measures would not interference in Somali internal affairs. It would not suffice to support the SC dealing with civil war.

In December 1992, the SC again adopted Resolution 794 to authorise the Secretary General and member states “to use all necessary means to establish as soon as possible a secure environment for humanitarian relief operations in Somalia.” This Resolution was determined from the aftermath of a Secretary General’s report indicating that extortion, blackmail and robbery were preventing the delivery of humanitarian aid to the suffering Somali people. It seemed that the human rights reasons were used to determine what is a threat under Article 39 without referring to any external problems.

Unlike civil war in Liberia, the SC determined to adopt Resolution 788 and stated that the situation in Liberia was a threat to international peace and security especially the African Region, though it had been determined as internal conflict at the earlier of the situation. Apart from the number of civilians had been killed and suffered from conflict between opponent movements, there was support from neighbouring African States. It was clear to accept the Liberian conflict claimed transborder character. Moreover, during the conflict, ECOWS had involved in the crisis and played a major role in encouragement the SC to take enforcement measures.

One year later, the SC determined to take action on Angola’s conflict in Resolution 864. It was adopted to condemn UNITA for continuing military actions and attempting to seize territory which are resulting in increased suffering to the Angolans. It also constituted the international character of the conflict because the UN personnel working in the area was attacked. In fact, there was scant evidence to prove that it was a threat to international peace and security, at least in the traditional sense. It was unclear between the connection of UN personnel and international character, though the UN personnel were foreign citizen that can be protected from their national states. Also, when the situation was continuing, the external supporter of the liberal movements had left from the conflict. Moreover, the conflict was mostly happened in Angolan territory; there was very little fighting had spilled over into neighbouring countries. It seemed that the SC attempted to find the supporting reasons to internationalise the intrastate conflict as a threat to international peace and security.

The vague issues had brought some comments on the Resolution, thus the SC determined Resolution 918 relating to Rwanda civil war by listing the situation in the Resolution. The list of crimes against international law assisted determination of international character was more clearly. It listed violations of international and international humanitarian law and violations of the right to life and property causing numerous civilian casualties, vast numbers of internal displaces and massive exodus trans-border refugees. This list in the Resolution 918 depicted huge effect that impacted neighbouring countries and the Great Lakes Region as a whole, reaffirmed in Resolution 929. It showed that the civil war can be internationalised as interstate conflict which the SC can exercise its power under Chapter VII.

The ethnic conflict erupted, again, in Burundi between the majority Hutus and minority Tutsis. The conflict caused widespread civilian casualties and the number of refugees crossed to neighbouring countries. The huge Burundian refugees crossed border several times to Rwanda, Tanzania and Congo. As these countries are in the same region, they had to face with the similar ethnic violence and cruel situation. Thus, the SC used these similar damages to adopt Resolution. Resolution 1072 stated that the continued deterioration in humanitarian situation by killings, massacres, torture, and arbitrary detention posed a threat to the peace and security of the Great Lakes Region. The only one reason different from Resolution 918 is torture. Noticeably, the SC has accepted that human rights concerns and violation of humanitarian law are threats to the peace.

A recent instance of intrastate conflict that the SC took action under Chapter VII is East Timor. The conflict in East Timor occurred in Indonesian territory. After East Timor was independent from Portuguese colony, Indonesia has occupied it by military forces. This issue has been in the agenda of the UN for many years. In 1998, the citizens of East Timor were received the choice to decide whether to become an autonomous province of Indonesia or independent state. East Timorese unquestionably chose to be independence; as a result, the Indonesian military and pro-Indonesian militias terrorising the people of East Timor. The SC adopted Resolution 1264 to establish a multinational force authorising to take all necessary measures to restore peace and security in East Timor. The SC noted that it was disturbed by the deterioration in the security situation, the large scale of refugees, the worsening humanitarian situation, and the attacks on personnel of UNAMET and other organisations. Instead of express mention this situation as a threat to the peace, the SC referred to violations of international humanitarian and human rights law. It was not the first time to determine a threat to the peace that the SC decision based on serious human rights violation.

On the other hand, the prior Resolution in Haiti conflict imposed economic sanctions in 1993 was discussed about internal character of the situation. Resolution 841 was noted with concern about humanitarian crisis and displacement of Haitians; however, it was hardly mentioned of a threat to international peace and security. There are only two sponsors of the Resolution that refer to the precondition of Article 39. Venezuelan representative mentioned to an exodus of Haitian as a threat, while Canadian representative only referred to effect on the neighbouring countries. When it was imposed, there are questions from the Members on those issues that they were not internationalised. The Resolution was stated as “unique and exceptional circumstance” in order to stating that it was the exception of the purposes of the UN Charter. It seemed that the SC determined the existence of a threat to the peace as the overthrown government. Likewise, the Resolution 1132 on Sierra Leone situation focused on the return to democracy. In 1997, the overthrown democratically elected government requested ECOWAS to assist restoration the constitutional order in Sierra Leone. ECOWAS required an authorisation from the SC to reinstate the legitimate government and use of force if it was necessary. Subsequently, the SC authorised ECOWAS, cooperating with the democratically elected Government of Sierra Leone, to prevent the sanction measures of the Resolution. Also in 1998, after President Kabbah could return to office by military attack of ECOMOG and collapse of military junta, the SC welcomed the efforts of ECOWAS and ECOMOG to support the re-established government. Clearly, the SC took measures to force the Sierra Leonean military junta for the purpose of returning to constitutional and democratic order. From both cases, the undemocratic change has become a part of a threat to international peace and security and the SC may possibly take enforcement action under Chapter VII.

From the refusal to act in Kurdish genocide of Iraqi Government in 1963, the SC’s interpretation was deviated from the old concept in 1991. The SC determined to take action on the situation after rejecting to take any measures because it did not internationalise and was not a threat to peace. Thought Resolution 688 did not expressly refer to Chapter VII, the SC determined that the result of the repression of the Kurdish population in Northern Iraq, which led to the massive flow of refugees and cross-border incursions, constituted a threat to the peace. The SC referred to the outflow of refugees and trans-border consequences as the reason given for the threat. This Resolution showed that the SC has changed its idea on the legitimacy of intervention in domestic jurisdiction of States.

Apart from the violation of human rights and humanitarian law issues, the interpretation of Article 39 was also questioned in connection with international terrorism. Since the 1990s, the SC has been increasing their efforts to suppress terrorism. In 1992, the SC adopted Resolution 731 to condemn the destruction of Pan American Flight 103 over Lockerbie, Scotland, and UTA Flight 772 over Niger. It also urged Libya to provide full and effective response to eliminate international terrorism. The Libya’s non-compliance stimulated the SC to provide actions to Libya. The SC determined that the failure by the Libya Government to suppress of acts of international terrorism and to respond to the requests in the Resolution 731 constituted a threat to international peace and security. The SC also decided to impose the measures under Article 41 to Libya. These two Resolutions showed intention of the SC taking the action of terrorism could constituted a threat to the peace.

There were questions about the SC’s interpretation because it was difficult to find the linkage between the act of terrorism and a threat to international peace and security. A government policy to support the action of international terrorism can imply that state may intend to use of deadly force to the others, which Article 39 can be applied. If a government, however, fail to respond a request to eliminate international terrorism, it cannot reach threshold of Article 39 to define the action of a government as a threat to the peace. The SC tried to emphasise that the action of terrorism could be a threat by reaffirmation this concept in Resolution 883. In this Resolution, the SC “convinced that suppression of terrorism including those in which states are directly or indirectly involved, is essential for the maintenance of international peace and security.” Also, the SC adopted a very similar approach in the cases of Sudan and Afghanistan. The actions of both states was declared a threat because their non-compliance with earlier requests by the SC to extradite terrorist suspects for trial. Afterwards the SC imposed threats to international peace and security caused by terrorist acts in Resolution 1373 and 1377. In Resolution 1373, the SC declared that acts of international terrorism constituted a threat to international peace and security and need to combat by all means in accordance with the UN Charter. Moreover, the SC adopted the declaration on the global effort to combat