The Geopolitical Failure of United Nations and Article 99 of the UN Charter

What seems to be required is the fixing of the geo-political response ability of the United Nations Security Council and a shift from the multipolar approach to a multiplex approach. 

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The flag of the United Nations flying on the opening day of 65th general debate of the General Assembly in New York City on 23 September, 2010. [UN Photo/Mark Garten]

Imagine there’s no countries
It isn’t hard to do.
Nothing to kill or die for
And no religion too
Imagine all the people living life in peace.
You may say I’m a dreamer but I’m not the only one
I hope someday you’ll join us, and the world will be as one.~ Extract from Imagine by John Lenon

The UN Charter

2023 has been an unhappy one. Above all, it has been riven by confusion and obfuscation. At the apex of all this has been the hapless United Nations which has struggled to retain the lofty ideals of a post-cold war Charter that  has crumbled under petulant and capricious geo-politics. The UN  was established by the Charter of the United Nations  as an international organization that seeks to foster peace, security, and cooperation among nations. The Charter outlines the purposes and principles of the UN. Its  preamble states that the UN is committed to saving future generations from the scourge of war, reaffirming faith in fundamental human rights, and establishing conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained. The Charter also aims to promote social progress and better standards of life in larger freedom. The United Nations Charter is the ultimate treaty which transcends the divisive world of subjective morality and settled international law.   

It is incontrovertible that the current happenings around the world are diametrically opposed to the tenets of international law as articulated in the Charter.  The Preamble, which lays out the theme, meaning and purpose of the Charter says that  the “people” of the United Nations will strive to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom.

Article 2(4) says that all members must  refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. Article 51 goes on to provide that nothing in the Charter must impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense must be immediately reported to the Security Council and must not in any way affect the authority and responsibility of the Security Council under the  Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

The key word here is “self-defense” which legally means that  person may use “reasonable force” when it appears “reasonably necessary” to prevent an impending injury. A person using force in self-defense should use only as much force as is required to repel the attack.

Different Signals

On Friday, October 27th, 2023, the United Nations General Assembly (UNGA) passed a significant resolution on the war between Israel and Hamas and the escalating casualties in Gaza. The resolution called for an “immediate, durable, and sustained humanitarian truce leading to a cessation of hostilities” and urged all parties to “immediately and fully comply with obligations under international humanitarian and human rights laws, particularly in regard to the protection of civilians and civilian objects” The resolution also included other clauses that demanded the protection of humanitarian personnel, persons hors de combat, and humanitarian facilities and assets, and recognized the need to “enable and facilitate humanitarian access for essential supplies and services to reach all civilians in need in the Gaza Strip”. Additionally, the resolution called for the rescinding of the order by Israel, “the occupying Power,” for Palestinian civilians, UN staff, and humanitarian workers to evacuate all areas in the Gaza Strip north of Wadi Gaza and relocate to the south.

Since then the plight of the people of Gaza has worsened to an extent that CNN has reported that on November 6, 2023, the heads of 18 United Nations agencies and major aid organizations issued a joint statement calling for an “immediate humanitarian ceasefire” in Israel and the Palestinian territories. The signatories include the heads of the World Health Organization, UNICEF, CARE International, Save the Children, the World Food Programme, and the UN Office for the Coordination of Humanitarian Affairs (OCHA) among others. The statement was made in response to the ongoing conflict between Israel and Hamas, which has resulted in the deaths of many civilians in Gaza.

On 6 December 2023 Antonio Guterres, Secretary General of the UN addressed a letter to the President of the UN Security Council invoking  Article 99 of the UN Charter which has only been invoked in four previous occasions in the history of the UN. Article 99 provides that “The Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security”.  In his letter, The Secretary General said: inter alia “I am writing under Article 99 of the United Nations Charter to bring to the attention of the Security Council a matter which, in my opinion, may aggravate existing threats to the maintenance of international peace and security. More than eight weeks of hostilities in Gaza and Israel have created appalling human suffering, physical destruction and collective trauma across Israel and the Occupied Palestinian Territory.  More than 1,200 people were brutally killed, including 33 children, and thousands were injured in the abhorrent acts of terror by Hamas and other Palestinian armed groups on 7 October 2023, which I have repeatedly condemned. Some 250 people were abducted, including 34 children, more than 130 of whom are still captive. They must be immediately and unconditionally released. The current conditions are making it impossible for meaningful humanitarian operations to be conducted. We are, nevertheless, preparing options for monitoring the implementation of the resolution, even if we recognize that in the present circumstances, that is untenable. Accounts of sexual violence during the attacks are appalling… Nowhere is safe in Gaza…”

The Secretary General continued :” The international community has a responsibility to use all its influence to prevent further escalation and end this crisis. I urge the members of the Security Council to press to avert a humanitarian catastrophe. I reiterate my appeal for a humanitarian ceasefire to be declared. This is urgent. The civilian population must be spared from greater harm. With a humanitarian ceasefire, the means of survival can be restored, and humanitarian assistance can be delivered in a safe and timely manner across the Gaza Strip”.

The Security Council Hearing

On Friday 8 December 2023 13 of the 15 members of the Security Council voted to adopt the draft resolution  calling for a ceasefire in Gaza with The United States voting against and the United Kingdom abstaining. CNN reported : “ Deputy U.S. Ambassador to the U.N. Robert Wood told the council: “We do not support this resolution’s call for an unsustainable ceasefire that will only plant the seeds for the next war.”

It must be noted that in November 2023 the United Nations Security Council achieved unanimity by adopting Resolution 2712 on the Israel-Palestine crisis that began on October 7th. The resolution was passed with 12 members voting in favor, none against, and three abstentions (Russia, United Kingdom, United States). The resolution called for “urgent and extended humanitarian pauses and corridors” in Gaza for “a sufficient number of days” to allow full, rapid, safe, and unhindered access for UN agencies and partners. The Council also demanded the “immediate and unconditional release of all hostages held by Hamas and other groups, especially children,” and called on all parties to refrain from depriving the civilian population in Gaza of basic services and aid indispensable to their survival, consistent with international humanitarian law. However, the resolution did not condemn the Hamas attacks of October 7th, which began the current wave of violence and battle for control of Gaza.

My Take

Geo politically, despite barbaric genocides and crimes against humanity over the past several decades in various parts of the world the Secretary General has invoked Article 99 of the UN Charter only in four other instances: In 1960, Secretary-General Dag Hammarskjold invoked Article 99, which led to the Security Council adopting Resolution 143. The resolution called for Belgium to withdraw its troops from Congo. Despite this, the Congolese war persisted, and the crises deepened in the following years: in 1971, Secretary-General U Thant cited Article 99 to request the Security Council’s intervention during the conflict in East Pakistan (now Bangladesh). However, the outcome and extent of the invocation’s use remained unclear; In 1979, Secretary-General Kurt Waldheim used Article 99 during the Iran hostage crisis. Unfortunately, the hostages were held for 444 days until they were released after the Algiers Accords were signed in 1981; in 1989, Secretary-General Javier Perez de Cuellar invoked Article 99 to call for a ceasefire in Lebanon’s escalating civil war. Despite the Security Council’s call for a ceasefire, the conflict continued.

The United Nations has, on many occasions failed to be the global platform that abides with the principles of the Charter partly due to its post-World War II infrastructure and divisive polarization of its member States and partly due to the evolving geo-political trends of the world.  Rwanda (1994); Afghanistan (2012); Iraq (2003); Ukraine (2022) come to mind among many others.  However, another aspect of the United Nations has proved a sine qua non for world peace and stability through its food programme; relief work; and health programme as the Covid crisis showed. 

What seems to be required is the fixing of the geo-political response ability of the United Nations Security Council and a shift from the multipolar approach to a multiplex approach.  Multipolar is a term used to describe a system where there are multiple centers of power, each with its own area of influence. In the context of international relations, multipolarity refers to a world where there are several great powers that are roughly equal in strength and influence as in the current composition of the Security Council.  Multiplex, on the other hand, is a single channel that can transmit multiple approaches that would constitute a single message or mandate.

Amitav Acharya, Antoni Estevadeordal, Louis W Goodman writing in International Affairs, (Volume 99, Issue 6, November 2023) say : “The nature of world order is in transition and we need to update our conceptual frameworks for understanding the capacities of leading powers and other state and non-state entities to provide regional and global public goods. We suggest that the ability to provide public goods in a ‘multiplex’ international world order can be assessed broadly by analyzing the ‘interaction capacity’ among states or the relative ability of nations to organize cooperation”.

I support the application of this approach to international relations and the beginning of a new world order that can be truly rules-based.

Ruwantissa Abeyratne

Dr. Abeyratne teaches aerospace law at McGill University. Among the numerous books he has published are Air Navigation Law (2012) and Aviation Safety Law and Regulation (to be published in 2023). He is a former Senior Legal Counsel at the International Civil Aviation Organization.

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