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Legal Aspects of the United Nations Action in the Congo

Published online by Cambridge University Press:  28 March 2017

E. M. Miller
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Extract

The United Nations action in the Congo, instituted by the Security Council on July 14, 1960, has been described by the Secretary General as “the biggest single effort under United Nations colours organized and directed by the United Nations itself.” It was an emergency action, undertaken almost instantaneously and carried out in an atmosphere of crisis and political tension. This was not a setting propitious to juridical deliberation; yet it cannot be said that legal considerations were disregarded. At the very outset, the Secretary General drew attention to the basic considerations of law and principle that should govern United Nations operations. As the situation in the Congo grew more complicated and divergent views emerged as to the propriety of the United Nations action, Member Governments as well as the Secretary General sought guidance and support in the prescriptions of the Charter and the rules of law that have evolved through United Nations practice. Faced with the responsibility of interpreting a general mandate of the Security Council in circumstances that had not been envisaged, the Secretary General considered it essential to refer to legal precepts whenever they could furnish guidance; only in this way could he maintain the requisite impartiality and yet take action under his mandate that might be opposed by one or the other contending side. Thus, in regard to each of the several controversial issues that arose, the Secretary General presented the legal basis for his actions, not merely in terms of the broad principles of the Charter, but more specifically, when necessary, in terms of the applicable rules and precepts adopted by United Nations organs, whether expressly in their resolutions or impliedly in their practice. The function of law in United Nations diplomacy has rarely been more clearly demonstrated.

Type
Research Article
Information
American Journal of International Law , Volume 55 , Issue 1 , January 1961 , pp. 1 - 28
Copyright
Copyright © American Society of International Law 1961

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References

1 Statement of the Secretary General to the Security Council on July 20, 1960, U.N. Doc. S/P.V. 877, p. 8. References to the Security Council meetings given below refer to the provisional verbatim records (S/P.V. —), the numbers of which correspond to the numerical order of the meetings (e.g., S/P.V. 877 refers to the verbatim record of the 877th Meeting of the Council). The final records are subsequently printed as part of the Official Records of the Council and are identified by the number of the meeting.

2 See statement of the Secretary General to the Security Council of July 13, 1960, U.N. Doc. S/P.V. 873, pp. 7-12, and his First Report, U.N. Doc. S/4389.

3 The Secretary General has frequently laid emphasis on the necessity of his adherence to principle and law. See, for example, his statements at the time of the Suez crisis: Security Council, 11th Year, Official Records, 751st Meeting (Oct. 31, 1956), pp. 1, 2; Report of the Secretary General to the General Assembly, U.N. Doc. A/3512 (Jan. 24, 1957), par. 5. He has also stated that the Secretary General may accord himself the right to take a stand in political conflicts “to the extent that such stands can be firmly based on the Charter and its principles, and thus express what may be called the independent judgment of the Organization.” (Address at Copenhagen, Denmark, on May 2, 1959, in 5 U.N. Review 13 (June, 1959).

4 See, for example, Reports of the Secretary General in U.N. Does. S/4417/Add. 6, S/4475, and his statements in S/P.V. 887, pp. 16-25 and A/P.V. 859, pp. 81-85.

5 U.N. Doc. S/4382.

6 Ibid.

7 Ibid., p. 2.

8 U.N. Doc. S/P.V. 873, p. 7.

9 U.S.S.R., U.N. Doc. S/P.V. 873, p. 52; Poland, ibid., p. 98; Tunisia, ibid., p. 34.

10 Ecuador, ibid., p. 96; Italy, ibid., pp. 61-62; France, ibid., pp. 76-80.

11 U.N. Doc. S/4389, p. 2.

12 U.N. Doc. S/4387.

13 U.N. Doc. S/4405.

14 U.N. Doc. S/4426.

15 U.N. Doc. S/4417, p. 5.

16 U.N. Doc. S/P.V. 884, pp. 9, 10.

17 Opinions to this effect were expressed by members of the Council in connection with resolutions adopted in the Indonesian case. See 2 Repertory of Practice of United Nations Organs 338-341.

18 U.N. Doc. S/P.V. 878, 879 passim.

19 U.N. Doc. S/P.V. 884, pp. 8, 9. See also Third Report of the Secretary General relating to administration by the U.N. of Belgian bases, U.N. Doc. S/4475, p. 1.

20 The final clause in Art. 2, par. 7, states that the principle of non-intervention in domestic affairs “shall not prejudice the application of enforcement measures under Chapter VII.”

21 U.N. Doc. S/P.V. 887, p. 17.

22 U.N.C.I.O. Docs. 505-508. Provisional measures envisaged in Art. 40 were referred to as “preventive” by the Rapporteur of Committee III/3, ibid, at 580.

23 Kelsen, The Law of the united Nations 740 (1950). The phrase “call upon” is used in Art. 33 of the Charter, but since that is in Ch. VI, there is no ground to attribute more than recommendatory effect to it in that connection.

24 2 Repertory of Practice of United Nations Organs 370-378. In the Indonesian case, several representatives, including those of the U.S. and the U.S.S.R., were of the opinion that the resolutions of the Security Council calling upon The Netherlands to discontinue military operations were obligatory. Professor Jessup, speaking for the United States, declared that ‘ ‘ these two Security Council resolutions were adopted under the provisions of Article 40, Chapter “VII of the Charter, and that therefore in accordance with Article 25 the Netherlands Government was and is under obligation to comply with their provisions.” Security Council, 4th Year, Official Records, 398th Meeting, p. 3. For the U.S.S.R. view asserting the mandatory character of the Council resolutions, see ibid., 418th Meeting, p. 20. The representative of Belgium expressed his dissent with the position that the resolutions were obligatory. See ibid., 398th Meeting, p. 11.

25 Kelsen, op. cit. note 23, p. 97. While the term “mutual assistance” suggests assistance among Members inter se, it seems reasonably applicable to measures in aid of the common effort to give effect to the Security Council resolution.

26 U.N. Docs. 8/4417, p. 5; 8/4417, Add. 3, p. 1; 8/4417, Add. 8, Annex II, p. 1; S/4445, Annex I, pp. 1-2.

27 12 U.N.C.I.O. Docs. 334 et seq., 580-581. See also the Report of the Sub-Committee of the Security Council on the Spanish question, dated May 31, 1946, Security Council, 1st Year, Official Records, Spec. Supp., pp. 1-6.

28 See statement of the Secretary General at the 859th Meeting of the General Assembly, U.N. Doc. A/P.V. 859, pp. 84-85.

29 Resolution of July 14, 1960, U.N. Doc. S/4387.

30 The Secretary General stated to the Security Council that the whole civilian operation is basically a technical assistance operation and should of course follow the rules applied for technical assistance, and that the ECOSOC and the General Assembly will have to deal with the matter. U.N. Doc. S/P.V. 888, p. 56.

31 See memorandum of the Secretary General on the United Nations civilian operation in the Congo, U.N. Doc. S/4417, Add. 5, pp. 1-2. See also statements of members of the Security Council in S/P.V. 873, pp. 33, 42, 61 and S/P.V. 888, pp. 11, 17, 36.

32 U.N. Doc. S/4516.

33 U.N. Doc. S/4482, pp. 1-4.

34 U.N. Doc. A/Res. 1474(ES-IV).

35 General Assembly, 13th Sess., Official Records, Annexes, Agenda Item 65, U.N. Doc. A/3943.

36 U.N. Doc. S/4387.

37 U.N. Doc. S/P.V. 873, pp. 11-12.

38 See resolution of the Security Council of July 7, 1950, in U.N. Doc. S/4588. See Report of the Secretary General cited in note 35, par. 13.

39 Ibid., pars. 13-19.

40 U.N. Doc. S/4389.

41 Ibid., p. 5.

42 See Art. 100 of the U.N. Charter.

43 U.N. Staff Regulation 1.4 in General Assembly, 10th Sess., Official Records, Supp. No. 19.

44 U.N. Doc. S/P.V. 873, pp. 11-12. At the meeting on July 20, the U.S.S.R. representative protested against the reported introduction of U. S. military personnel into the Congo, U.N. Doc. S/P.V. 877, p. 82.

45 Report of the Secretary General, loc. cit. note 35, par. 160.

46 U.N. Doc. S/P.V. 873, pp. 11-12.

47 Ibid.

48 U.N. Doc. S/4389, p. 6.

49 U.N. Doc. S/P.V. 888, p. 26.

50 Ibid., p. 52.

51 U.N. Doc. S/P.V. 889, pp. 8, 16, 31, 36, 56.

52 U.N. Doc. S/4389, p. 4.

53 Report of the Secretary General, loc. cit. note 35, par. 161.

54 See statement cited in note 51.

55 U.N. Doc. S/P.V. 873, p. 123.

56 Ibid., pp. 37-40, 91-95, 96.

57 U.N. Doc. A/4389, p. 2.

58 U.N. Docs. S/P.V. 878, pp. 32, 37 (Ceylon) ; S/P.V. 879, pp. 42-44 (Ecuador) ; S/P.V. 879, p. 56 (U.S.A.).

59 U.N. Doc. S/4405.

60 Ibid.

61 U.N. Doc. S/4389, Add. 5.

62 U.N. Doc. S/4426.

63 Doc. S/P.V. 873, pp. 11-12.

64 U.N. Doc. 8/4417, Add. 3.

65 U.N. Doc. S/4389, p. 3.

66 U.N. Doc. S/4426.

67 U.N. Doc. S/4417, Add. 6, pp. 1-2.

68 ibid., pp. 3-4.

69 U.N. Doc. S/4417, Add. 7, p. 4.

70 U.N. Doc. S/P.V. 887, p. 21.

71 Ibid.

72 U.N. Docs. S/P.V. 888, p. 31 (U.S.S.R.) ; S/P.V. 889, pp. 47-50 (Poland).

73 U.N. Doc. S/P.V. 888, p. 53.

74 Argentina, U.N. Doc. S/P.V. 888, p. 73; Ceylon, U.N. Doc. S/P.V. 889, pp. 23-25; China, ibid., p. 66; France, ibid., p 75; Ecuador, ibid., p. 27; Italy, ibid., pp. 3-5; Tunisia, U.N. Doc. S/P.V. 888, p. 67; United Kingdom, U.N. Doc. S/P.V. 889, pp. 36, 40; United States, U.N. Doc. S/P.V. 889, p. 56.

75 U.N. Doc. S/4453.

76 At meetings held on Sept. 14 and 15, representatives of the U.S.S.R. and Poland reiterated their view that the U.N. Force violated Security Council mandate by refusing assistance to the Central Government in its action against the Katanga authorities. U.N. Docs. S/P.V. 901, p. 6, and S/P.V. 902. Other members of the Council maintained their view that the U.N. Force had properly construed the mandate in refusing assistance in the conflict. See, for example, Tunisia, S/P.V. 901, pp. 53-55.

77 The New York Herald Tribune, Sept. 1, 1960, pp. 1, 4.

78 The New York Times, Sept. 3, 1960, pp. 1, 3 ; ibid., Sept. 4, 1960, Sec. 4, p. E 1.

79 U.N. Doc. S/P.V. 896, p. 58.

80 Ibid.

81 U.N. Docs. S/4482, p. 5; S/P.V. 901, p. 40.

82 U.N. Docs. S/P.V. 902, p. 22 (U. S.) ; S/P.V. 903, p. 4 (Ecuador), p. 18 (U. K.). For opposing view, see ibid., pp. 33-35 (U.S.S.R.).

83 U.N. Docs. S/4500 and S/4500, Add. 1.

84 U.N. Doc. S/4498.

85 U.N. Doc. S/P.V. 896, pp. 54-55.

86 Ibid.

87 U.N. Docs. S/P.V. 901, pp. 12-16 (U.S.S.R.) ; S/P.V. 904, pp. 21-31 (Poland).

88 U.N. Docs. S/P.V. 901, p. 56, (Tunisia) ; S/P.V. 902, pp. 12, 13 (France) ; ibid. (United Kingdom).

89 U.N. Doc. S/P.V. 901, p. 56.

90 For example, Mr. Lumumba received protection from U.N. troops against Congolese troops which gravely threatened his life. New York Times, Sept. 16, 1960, p. 1. U.N. Forces also maintained guards at the residence of the Chief of State, Mr. Kasavubu. See U.N. Press Release SG/960, dated Sept. 16, 1960, and U.N. Docs. S/P.V. 904, pp. 33-37, and S/4531, pp. 11-12 (First Report of Ambassador Dayal to the Secretary General, dated Sept. 21, 1960).

91 U.N. Docs. A/P.V. 858-863.

92 See Libya, U.N. Doc. A/P.V. 859, pp. 12-15; Jordan, U.N. Doc. A/P.V. 860 p. 6; Ghana, ibid., p. 62.

93 Ibid.

94 Ghana, U.N. Doc. A/P.V. 860, pp. 58-60.

95 Libya, U.N. Doc. A/P.V. 859, pp. 13-15.

96 Australia, U.N. Doc. A/P.V. 862, pp. 12-15.

97 U.N. Doc. S/4526, Resolution adopted by the Security Council Sept. 17, 1960.

98 U.N. Doc. S/4482.

99 U.N. Doc. S/4516.

100 U.N. Doc. S/4519.

101 U.N. Doc. S/4523.

102 U.N. Doc. S/P.V. 906, p. 116.

103 Ibid., pp. 146-150.

104 Ibid., p. 146.

105 1 Repertory of Practice of United Nations Organs 316, 319 (1955).

106 Security Council, 11th Year, Official Records, 751st Meeting.

107 Security Council, 13th Year, Official Records, 838th Meeting.

108 The arguments advanced by France and the United Kingdom are summarized in the Repertoire of the Practice of the Security Council, Supp. 56-58, p. 74. It may be noted that the U.S.S.R. objected to the Security Council decision to convene an emergency session in regard to the situation in Hungary on the ground that the decision constituted an act of intervention in the domestic affairs of Hungary. Ibid., p. 76.

109 1 Repertory of Practice of United Nations Organs 619.

110 U.N. Doc. S/P.V. 906, p. 141.

111 See Rajan, United Nations and Domestic Jurisdiction 409-415 (1958).

112 U.N. Doc. S/4482, p. 5.

113 First Progress Report of the Secretary General from his Special Representative, Ambassador Dayal, dated Sept. 21, 1960, U.N. Doc. S/4531, pp. 6-13.

114 Lebanon, U.N. Doc. A/P.V. 863, p. 31 ; Ceylon, ibid., pp. 78-80.

115 Libya, U.N. Doc. A/P.V. 859, pp. 13-15; Ghana, U.N. Doc. A/P.V. 860, pp. 58-60; U.A.R., ibid., p. 82 ; Ethiopia, U.N. Doc. A/P.V. 863, p. 42.

116 U.N. Docs. S/4482; S/P.V. 890, p. 52.

117 U.N. Doc. A/P.V. 861, pp. 53-55.

118 U.N. Doc. A/P.V. 863, p. 52.

119 In the case of UNEF, the Advisory Committee was established by the General Assembly itself in its Resolution 1001 (ES-1).

120 U.N. Doc. A/P.V. 861, pp. 83-85.

121 U.A.R., U.N. Doc. A/P.V. 860, p. 86; Lebanon, U.N. Doc. A/P.V. 863, p. 31.

122 U.N. Doc. A/P.V. 860, p. 66.

123 1 Oppenheim (Lauterpacht), International Law 758 (7th ed., 1948).

124 See Wright, Q., “International Law and Civil Strife,” 1959 A.S.I.L. Proceedings 145, 148 ffGoogle Scholar.

125 Message of N. S. Khrushchev, Chairman of the Council of Ministers of the U.S.S.R. to President Eisenhower, dated July 20, 1958, contained in press release of Embassy of U.S.S.R. at Washington, D.C., dated July 20, 1958. Sentence quoted is found in the following context: “You explained the armed intervention in Lebanon by President Chamoun’s request for help in combating aggression. But an internal struggle is under way in Lebanon, and the events in that country prior to the landing of the American troops could in no way be classed as direct or indirect aggression by other states, a fact confirmed by the United Nations observers and the United Nations Secretary-General. An internal struggle was going on there and you yourself have confirmed this. . . . The principle of noninterference of other states in the internal strife going on in this or another country is a generally-recognized standard of international law. It is not for me to tell you that the American people and their government categorically objected in the past to foreign interference in the American Civil “War, in the struggle between the North and the South.” Ibid.

126 See statements of President Eisenhower in regard to Lebanon at the Third Emergency Special Session of the General Assembly, U.N. Doc. A/P.V. 733, pp. 7-8. For the U. K. position in regard to Jordan, see U.N. Doc. A/P.V. 734, pp. 19-21. See also Wright, Q., “United States Intervention in the Lebanon,” 53 A.J.I.L. 112, 125 (1959)Google Scholar.

127 U.N. Doc. S/4506, letter dated Sept. 12, 1960, from the representative of the U.S.S.R. to the President of the Security Council. See also U.S.S.R., U.N. Doc. A/P.V. 858, pp. 78-80.

128 See, for example, Ghana, U.N. Doc. A/P.V. 860, pp. 58-60; Libya, U.N. Doc. A/P.V. 859, pp. 13-15; Nepal, U.N. Doc. A/P.V. 860, p. 33; Ceylon, U.N. Doc. S/P.V. 906, pp. 56-60; New Zealand, U.N. Doc. A/P.V. 862, pp. 29-31; Brazil, U.N. Doc. A/P.V. 863, pp. 118-120.

129 Ibid. This position was also asserted by the U.S., which warned against the danger of great-Power conflict in Africa, and maintained that the sending of military assistance by the U.S.S.R. violated “the premise” of the Security Council resolutions that no forces of major Powers would be used in the Congo. The U. S. representative also charged that Soviet “technicians” and material were in the Congo “to promote strife and bloodshed between Congolese tribes and factions.” U.N. Doc. A/P.V. 858, pp. 58-60. The U.S.S.R. on its part protested against American military personnel in the Congo. U.N. Doc. S/P.V. 877, p. 82.

130 U.N. Doc. A/P.V. 860, p. 46.

131 Secretary General, Introduction to Annual Report on the Work of the Organization 16 June 1959-15 June 1960. U.N. Doc. A/4390, Add. 1, p. 7.