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JOSEF MRÁZEK
CYIL 7 ȍ2016Ȏ
The inability of the UNSC to mount an armed force to intervene when human
rights and basic human values are at stake, however, excites a strong tendency among
states to act unilaterally without UNSC approval. The permanent members have
many times abstained, from voting, so permitting an armed action to be carried
out. Very often, with regard to Art. 39, the inadequacy of waiting for an “armed
attack” has been stressed. Under Art. 39 the UNSC “shall make recommendation”,
or “decide” what measures shall be taken. The expanded international protection of
human rights and “democratic values” have serious impact on Chapter VII relating
to action with respect to threat to the peace, breaches of peace and acts of aggression.
Niels Blokker characterized the right of the UNSC to adopt resolutions authorizing
member states to use armed force as an “implied power” for the Security Council.
He maintains that both the Charter system and “principles of delegation” reject
“carte
blanche”
delegation. He is in favour of authorization which respects authority and
also the responsibility of the UNSC in the framework of the UN security system.
14
Authorization resolutions are the main instrument which provides states with the
right to use armed forces within the UNSC powers.
An
ex post
authorization to take armed action may probably for many actors
serve as legitimization and even legalization of previously unlawful unilateral actions.
The UNSC is bound by international law in making its decisions. A hypothetical
question may arise as to what happens when authorization would be effected in
violation of basic rules of international law. No solution is contained in the UN
Charter, and this situation is in reality probably excluded. In any case, the decisions
of the UNSC may not have priority over the UN Charter and basic principles of
general international law. In practice many even “authorized” armed actions have
been carried out or supported in the pursuit of the political, economic, historical
and military interests of some states. In a number of military actions the UNSC early
lost its control over “authorized” armed actions. The UNSC should therefore be very
self-restrained or, better said, refuse to provide a state or international organization
with “a blank cheque” for indiscriminate use of force.
2.3 Unilateral use of military force
Unilateral military use of force without authorization of the UNSC, realized only
on the basis of “collective” or “international community” decisions, often contravene
the UN Charter prohibition under Art. 2 (4) and contravene the ideas and intentions
of its founders as well. Various “theories” or “doctrines” are trying to bring legal
justification of unauthorized unilateral actions on the basis of implied authorization,
the implied powers doctrine, legitimization
ex post facto
and new emerging norms
on “humanitarian intervention”. Gowlland-Debbas comes to the main conclusion
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BLOKKER, N. Is the Authorization Authorized? Powers and Practice of the UN Security Council
to Authorize the Use of Force by “Coalitions of the Able and Willing”.
EJIL
. Vol. 11, 2000, No. 3,
pp. 541, 554.