GENERAL ASSEMBLY SHOULD SEEK WORLD COURT ADVISORY OPINION ON SANCTIONS, SPECIAL COMMITTEE ON CHARTER TOLD

Press Release
L/2817

GENERAL ASSEMBLY SHOULD SEEK WORLD COURT ADVISORY OPINION ON SANCTIONS, SPECIAL COMMITTEE ON CHARTER TOLD

An advisory opinion of the International Court of Justice (ICJ) on the legalities and guidelines for imposing sanctions should be sought by the General Assembly, the representative of The former Yugoslav Republic of Macedonia told the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization this morning, as it discussed provisions for assisting third States affected by sanctions. The Court's authoritative interpretation of the guidelines that already existed in the United Nations Charter and in other global and regional agreements was necessary, he said, as he also discussed the proposal by the Russian Federation on a draft declaration on the basic principles for United Nations peace-keeping operations. The representative also asked the international community to meet its obligation under Article 50 of the Charter to help his country recover from the United Nations sanctions imposed on the Federal Republic of Yugoslavia. If affected Member States had been aware that the international community would not meet those obligations, they might have adopted a different opinion in the Security Council on the imposition of sanctions, he said. Article 50 grants third States the right to hold consultations with the Council on how to solve the special economic problems they encountered as a result of sanctions imposed on other, targeted, States. The representative of the Philippines, addressing proposals made by Libya and Cuba on strengthening the role of the United Nations, said the use of the veto power in the Security Council was contrary to the aim of democratizing the Organization, and the source of its application should be restricted and limited, even in the framework of Chapter VII of the Charter. She said the United Nations would have more power, authority and international support if the Council functioned with more democracy. "Why should one continent, for example, with less than 10 per cent of the world's population, have almost 40 per cent representation in the Council, with three having the power to veto", she asked, arguing for an improvement in the Charter provisions on the Council's composition.

The Committee will meet again at a date to be announced.

Committee Work Programme

The Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization met this morning to consider the questions mentioned in Assembly resolution 51/209, which asked it to consider proposals concerning the future role of the Trusteeship Council, the maintenance of international peace and security and the question of the peaceful settlement of disputes between States, including proposals on the establishment of a dispute-settlement service. (For more background information see Press Release L/2816 of 27 January 1997.)

The Special Committee had before it Sierra Leone's proposal on a Dispute Prevention and Early Settlement Service (document A/AC.182/L.96), under the provisions of which a third-party service would be formed to help parties in dispute. The service would be voluntary; the parties would decide whether to accept the offer of the services. The mechanism's main functions would be to coordinate activities both of the United Nations and of relevant regional organizations at the pre-dispute or early dispute stages, when a situation should be monitored to prevent its aggravation.

According to the document, the mechanism would be a subsidiary organ of the General Assembly established under the Charter's Article 22. It would consist of a board of administrators or directors with five members elected by the Sixth Committee (Legal) from 10 candidates proposed by the five regional groups on the Committee. The five non-elected candidates would serve as alternates who would substitute for absent regular members. Each administrator or director would be elected for three years and be eligible for re-election. Board members and alternates would be seconded and paid by their permanent missions. The Presidents of the Security Council and the General Assembly, as well as the Secretary-General, could appoint their personal representatives who would take part in meetings without a vote. The board would be based in New York, with its secretariat services arranged by the Office of Legal Affairs.

A register of experts on the prevention and settlement of disputes --- who may be called settlers, preventers or facilitators of disputes -- would be compiled and maintained by the board, according to the proposal. On receiving information, the board would consult with the Department of Political Affairs to determine whether a situation was threatening enough to warrant an offer of intervention by the service. Should its offer be rejected by any party, the service would take no further action. The Council, the Assembly and the Secretary-General could also request the board to consider a situation. The proposal suggests that the service could be tried for at least three years and made permanent, if successful. The Assembly could revise or terminate its mandate at any time.

Also before the Committee is a working paper on the basic principles and criteria for imposing and implementing sanctions and other enforcement measures (document A/AC.182/L.94), sponsored by the Russian Federation, which states that in order to be warranted and effective, sanctions must be strictly in keeping with the provisions of the Charter. Sanctions should be part of the search for a long-term political settlement of conflicts, reflect the strategic goals of the international community, take account of the political and "physical" -- in terms of death and suffering among the civilian population and the destruction of material values -- cost of such actions. Further, mandatory sanctions were only one of a number of non-military means of addressing a real threat to international peace and security. Sanctions should be based not on political expediency, but on a solid international legal basis and be implemented according to the principles of justice and international law.

From the point of view of international law and justice, sanctions should not have the implicit objective of causing damage to third States, since that would undermine the very idea of such measures, the paper states. Many countries have suffered and continue to suffer great material and financial damage as a result of sanctions and are, therefore, justified in their desire to elaborate basic criteria and conditions for the application and implementation of mandatory sanctions.

Among the basic criteria and conditions included in the working paper are the following: the imposition of mandatory sanctions would be permitted only after all other peaceful means of settling the dispute had been exhausted, and only when the Security Council had determined the existence of any threat to the peace, breach of the peace or act of aggression; the inadmissibility of creating a situation in which the imposition of sanctions would cause significant material and financial damage to third States; the inadmissibility, without the appropriate Security Council decision, of making new demands on the State against which sanctions have been imposed, or to stipulate additional conditions for ending or suspending the sanctions; and, the inadmissibility of imposing sanctions without a time-limit.

The paper states that particular attention should be given to the concept of the "humanitarian limits" of sanctions, including the inadmissibility of creating a situation in which the sanctions would cause unacceptable suffering among the civilian population, especially its most vulnerable sectors. Other components of the concept of "humanitarian limits" could include: periodically adjusting the sanctions in the light of the humanitarian situation; guaranteed unimpeded and non-discriminatory access of humanitarian aid to the populations of countries against which sanctions have been imposed; the complete exemption of international humanitarian organizations from sanctions restrictions; and, strict observance of the principles of impartiality and the inadmissibility of any form of

discrimination in the provision of humanitarian and medical assistance and other forms of humanitarian aid to the population of all parties to the conflict.

A revised version of the working paper submitted by Cuba on strengthening of the role of the Organization and enhancing its effectiveness (document A/AC.182/L.93) states that the necessity of reforming the Security Council and of achieving the balance, as envisaged in the Charter, between the roles of all the principal organs, particularly between the role of the General Assembly and that of the Security Council, imposed on the Special Committee specific tasks in fulfilment of its mandate.

According to the text, the Special Committee should therefore contribute, with studies of a legal nature, to the implementation of Chapter IV of the Charter, specifically Articles 10, 11, 12, 13, 14 and 15, dealing with the functions and powers of the General Assembly. The Committee should also study, in the light of the reform process, the validity in the present circumstances of the general exception contained in Article 12 of the Charter. That article concerns the measures that the General Assembly might recommend with regard to a dispute that was being dealt with by the Security Council in the exercise of the functions assigned to it under the Charter.

In addition, according to the working paper, the Committee should: determine what elements should be included in the definitive rules of procedure of the Security Council; identify and develop approaches to the election of the Secretary-General of the United Nations so that the General Assembly would, in practice, have more than just a formal role in the process; and study the cases in which the Security Council had invoked Chapter VII of the Charter and make recommendations on the application of that Chapter.

The Committee should also consider measures for improving relations between the General Assembly and the Security Council and evaluate the importance of Assembly resolution 51/193, concerning the report of the Security Council, which was adopted at the fifty-first session on 17 December 1996.

The Libyan paper on strengthening the role of the United Nations in maintaining international peace and security (document A/AC.182/L.90) states that the Committee should consider means for strengthening the General Assembly's role in realizing international cooperation in the maintenance of peace and security, based on the Charter Articles 10, 11 and 14, since peace and security are the common responsibility of all United Nations Members. It should propose ways to enhance the relationship between the Assembly and the Security Council, based on Articles 15 and 24 and within the framework of the two organs' work in strengthening peace and security.

According to the paper, the Committee should develop criteria to help guarantee that the Council's composition reflected the United Nations general membership and ensured equitable geographical distribution. It should then look for ways to enhance the Council's role in maintaining peace and security. The Committee should also consider the negative effects that resulted from the rule on the necessity of unanimity among the Council's permanent members, how to limit its use and measures to repeal it.

A draft declaration on the basic principles and criteria for the work of United Nations peace-keeping missions and mechanisms for preventing and settling crises and conflicts (document A/51/33, paragraph 128), sponsored by the Russian Federation, would have the Assembly proclaim the need for certain basic principles and criteria to be observed in conducting peace-keeping missions, instruments and mechanisms, including fact-finding missions, observer groups, missions of representatives of the Secretary-General and observer missions.

The basic goal of the mechanisms would be to help establish contacts between parties to a conflict and organize talks between them, according to the draft. The formulation of mandates of the mechanisms by the Security Council and other United Nations bodies should conform with international law and avoid including elements that would prejudice the impartiality of the mechanisms. Their mandates must be based on the United Nations Charter, Council decisions and bilateral and multilateral agreements.

The text states that one of the main conditions for the operation of a mechanism would be to have the consent of the relevant parties to its initiation and the continuation of its activity and also to ensure the cooperation of the parties to the conflict, both with each other and with the mechanism. Also of great importance in the settlement of a conflict would be the presence of a clear political goal and a precise mandate for the mechanisms, subject to periodic review. The work of a mechanism could be officially terminated only by the United Nations body that took a decision to activate it.

The mechanisms must coordinate their work with other instruments for the prevention and peaceful settlement of conflicts -- preventive diplomacy, peacemaking, and post-conflict peace-building. They must also have a unified and clearly defined command and control structure ensuring the effective discharge of the mandate assigned to them, and precise coordination of the political, military, humanitarian, civilian and administrative components of any activity must be ensured.

A working paper submitted by the Russian Federation records observations on the draft declaration before the Committee on those basic principles and criteria for the work of United Nations peace-keeping missions (document A/AC.182/L.89/Add.1) and elaborates the rationale behind the proposed declaration. It states that the basic goal in elaborating a draft decision was to place the prevention and settlement of crises and conflicts on a more solid normative basis, develop a number of general provisions in the Charter and take account of the useful experience acquired by the United Nations from its work in that area. The declaration was needed by United Nations Member States that provided the personnel and logistical support for the mechanisms for preventing and settling conflicts.

The paper goes on to say that States must have a clear idea about the goals for which the mechanisms were established, the principles and standards for their formation, the legal, political, financial and other implications of their possible participation in the mechanisms and the level of risk posed to the lives of the personnel. Also, the provisions of the declaration could prove useful to the Security Council in drawing up the mandates of the mechanisms and monitoring their activities. The ideas set forth in it might also prove useful to numerous regional organizations and structures by representing an original model and standard as they drew up their own rules and criteria for establishing regional peace-keeping mechanisms and institutions.

Statements

NASTE CALOVSKI (The former Yugoslav Republic of Macedonia) said that Sierre Leone's proposal appeared to be aimed at closing an institutional vacuum that exists in international efforts to prevent conflicts and formulate solutions in a timely manner. The settling of disputes, and strengthening the role of the General Assembly in the process, was also the main preoccupation of many regional and subregional arrangements. In the past, the most successful of such efforts had been undertaken by the Secretary-General, the General Assembly and regional arrangements. It was the responsibility of Member States to take the existing mechanisms and make them more effective.

His Government, taking into account recent events in its region, was prepared to discuss aspects of the Sierre Leone proposal in positive spirit, if the Committee decided to do so, he continued. However, General Assembly resolution 51/55 was relevant to the consideration of the proposal, which actually represented a contribution to the implementation of the resolution. The Committee should discuss the relevance of the implementation of resolution 51/55, particularly operative paragraph 1. With the agreement of the Chairman, he requested that the Secretariat distribute resolution 51/55 to Committee for consideration.

Recently, in the city of Skopje, his country hosted a seminar on preventive diplomacy, which examined, among other things, undertaking new measures for the prevention of disputes and improving existing mechanisms, he said. His Government planned to establish an international centre for preventive diplomacy, and at present was finalizing the project with the close cooperation of interested Member States and international organizations. It was expected that the centre would cooperate with relevant United Nations organizations and bodies and would assist the mechanism proposed by Sierre Leone. He asked the Secretariat to distribute the material from the seminar to the Committee.

His Government expected that the international community would meet its obligation under Article 50 of the Charter, otherwise his country would not be able to recover from United Nations sanctions imposed against the Federal Republic of Yugoslavia. If the affected Member States had been aware that the international community would not meet its obligations under Article 50, then they most likely would have adopted a different opinion in the Security Council before deciding to impose the sanctions. Regarding the proposal by the Russian Federation on criteria for imposing sanctions, there was no need for new legalities regarding sanctions and other measures. Such guidelines were already inscribed in the Charter and other global and regional agreements.

Continuing, he said what was needed was an authoritative interpretation by a competent body of the existing criteria. Was the Special Committee really the competent body for that purpose? he asked. It was not that it did not have competent lawyers, but the members also needed to include international representatives. The International Court of Justice seemed to be the most competent body to give an advisory opinion on sanctions and other enforcement measures. The Committee should suggest that the Assembly request the Court to take that step. Further, the working paper by the Russian Federation could serve as a good basis for the discussion and formulation of a decision for the request to the Assembly.

MARIA LOURDES V. RAMIRO-LOPEZ (Philippines) said the structure, role and procedures of the Security Council should be reformed in the context of the review of the Charter of the United Nations. In that regard, she was ready to consider the proposals in working papers from Libya and Cuba. Measures taken by the Council to enhance its working methods, procedures and to improve its relationship with other United Nations organs should be institutionalized to ensure their implementation, which would help democratize the Council's processes.

She said a comprehensive review of the provisional rules and procedures should be undertaken on: provisions on the participation of non-members of the Council in informal consultations of the whole, including through the application of Articles 31 and 32 of the Charter; the scope of the application of the veto; the nature of the Council's resolutions and presidential statements; and provisions for prompt convening of formal meetings when sought by Member States. A new provision, mandating the Council to inform and consult with interested Member States, could be inserted in the Charter.

The United Nations would be granted increased power, greater authority and more international support if the Council functioned with more democracy and if the existing imbalance in its composition could be addressed comprehensively, as proposed by the Non-Aligned Movement, she continued. "Why should one continent, for example, with less than 10 per cent of the world's population have almost 40 per cent representation in the Council, with three having the power to veto?" she asked. The Charter provisions for the Council's composition could be improved, she added.

Regarding Libya's proposals on the use of the veto power, she said she shared the Non-Aligned Movement view that the veto was contrary to the aim of democratizing the United Nations. The source of its application should be reviewed, restricted and limited, even in the framework of Chapter VII of the Charter. For example, its use could be restricted regarding the implementation of Article 50 and decisions on the provisional measures under Article 40.

Turning to the proposal by the Russian Federation on sanctions, she said that the Committee should draw up clear, fair and comprehensive guidelines for their imposition. It should be kept in mind that sanctions were meant to modify a State's behaviour, not to punish it. The vulnerable segments of a target State's population and affected third States which must be protected.

She also expressed support for the proposals in the Russian Federation's draft declaration on the criteria for launching peace-keeping operations. The proposed declaration might address guidelines in "grey areas", such as when cease-fires were violated, when parties turned belligerent towards peace-keepers, when there was lack of legitimate political authority and when it was hard to determine whether a conflict was domestic or international.

Furthermore, she continued, guiding principles for United Nations peace-keeping intervention in intra-State conflicts should be developed. The principles should avoid selective intervention based on national, rather than collective, interests. They should also determine at what point an intra-State conflict becomes a threat to international peace and security deserving intervention. The principles on peace-keeping operations should also address the preponderance of loaned officers in the Department of Peace-keeping Operations (DPKO). In addition, legal guidelines should be developed, especially in the light of the proposal to establish the rapidly deployable headquarters for future missions.

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