Image and Reality in the UN's Peaceful Settlement of Disputes

Steven R. Ratner ¹

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Observers of the UN tend to fall into one of two camps when examining its role in the peaceful settlement of disputes. The first sees a glass more than half full, with far greater potential for the Organization if only its member States would utilize the processes contemplated in the Charter. This group tends to be institutionalist or functionalist in its political philosophy, positing the United Nations as an independent actor in global politics, one that can influence and settle disputes and thereby contribute to international peace. Chapter VI offers the non-forcible means to this end; lack of coercive measures does not diminish the UN's effectiveness.

In the other camp lie the sceptics of Chapter VI, and often of the UN as an institution. Seeing a glass nearly empty, they judge the UN a failure as an actor to end conflicts and any notion of collective security a farce. Typically realist in their political approach, the sceptics argue that the UN can reflect only the individual preferences of member States. Other than perhaps as a forum for negotiation, the Organization itself can exert little successful effort to further international peace and security.

Naturally, each camp has its empirical data. The optimists typically cite two categories of UN accomplishments - a history of UN diplomatic interventions that have defused tensions in certain situations; and the results of some UN peace-keeping operations.² The former typically consists of a litany of missions by the Secretary-General or his Special Representatives that aim to demonstrate how his manoeuvring avoided bloodshed and led to an eventual settlement. The latter emphasizes the results of peace-keeping in freezing and preventing the escalation of conflicts in Kashmir, Cyprus, the Golan Heights, and elsewhere. Into the bargain, the optimists can always emphasize the UN as a unique forum for the airing of disputes and the possibilities for neutral fact-finding.

The sceptics respond quickly. They offer studies showing a marginal, if not negligible, UN contribution to the resolution of disputes, especially those involving uses of force. The cases offered by the optimists are either exceptions to the general proposition or perhaps proof of it, insofar as they rarely show the UN definitively settling a conflict.³

The territory between the camps reflects, moreover, other divisions within the community of UN observers. The legal literature on Chapter VI remains sparse outside the traditional and more recent treatises on the Charter. To the extent legal scholars address the peaceful settlement of disputes, they focus upon the ever-expanding responsibilities of the Secretary-General and UN peace-keeping. They and other institutionalists discount the other processes under Chapter VI whose results offer a less rosy picture. UN supporters also use to their advantage the evidentiary challenge of proving causation and note that the UN's success cannot be demonstrated empirically.

Many political scientists tend to make little of the Charter and the framework it posits for UN involvement in settling disputes. They lack a constitutional vision of the document and simply analyze the behaviour of certain actors. This has led much of the work on the peaceful settlement of disputes to concentrate on mediation theory. Perhaps the key area of agreement between the camps is that although the Charter chapter entitled `Pacific Settlement of Disputes' concerns primarily Security Council action, the true centre of action lies with the Secretary-General and his agents, whom, of course, Chapter VI never mentions. As a result, the literature lacks a comprehensive framework for the study of Chapter VI action.

Can the gap between the views be bridged? This essay attempts to shed light on some characteristics of UN action under Chapter VI that have rendered it vulnerable to such contrasting interpretations. These vulnerabilities originate in three areas - the place of Chapter VI in the Charter's overall scheme for international peace; the divergence of the practice of the UN from the Charter text; and the inherent contradictions among the various positions the UN must take in trying to settle disputes peaceably. I then examine the changes in the Council's role since 1989 that suggest it may be overcoming some of these liabilities in a way both camps should accept. I conclude with a few suggestions for continued improvement in these areas.

Caveat lector: This essay addresses Chapter VI as a process for UN decision-making in the peaceful settlement of disputes. Indeed, `Chapter VI' has become a shorthand for all UN activities in this subject area, whether authorized by that Chapter or elsewhere in the Charter. When the UN engages in the peaceful settlement of disputes, I assume here that Chapter VI and other parts of the Charter permit the Council (and, to a certain extent, the Assembly) to engage in a range of actions, with differing levels of obligation upon States, but do not permit coercion of States into compliance with its resolutions, which I take as the essence of enforcement under Chapter VII. Although I maintain that the Council can make binding decisions outside Chapter VII, this essay does not enter the debate over the precise legal effect of various Security Council actions.⁴

I. Chapter VI vs. Chapter VII: The Neglected Step-Child of the Charter

When the Charter is viewed as a coherent legal text, Chapter VI appears as one of two sections at its very centre. Before it lie the overarching principles of the UN (Chapter I), the rules regarding membership (Chapter II), and the structure of the two major political organs (Chapters III-V). Chapter VI is the first chapter to provide detailed mechanisms for the implementation of the goals of the Organization. Immediately following it appear the other group of articles offering such mechanisms, Chapter VII and VIII, followed by issues deemed by its drafters less fundamental to maintenance of the peace, such as economic and social matters (Chapters IX-X), non-self-governing territories and trusteeship (Chapters XI-XIII), the International Court of Justice (Chapter XIV), and the Secretariat (Chapter XV). This structure parallels the language of Article 1(1), which sets out the UN's first purpose as maintaining the peace and describes the two means to that end: eliminating threats to the peace and bringing about the `adjustment or settlement' of disputes that could lead to such threats.

Although Chapter VI shares the central position in the Charter with Chapter VII, the Charter's history makes clear that the latter would represent the key innovation of the Organization compared to the League of Nations. That chapter, to which the Allies devoted the most attention, would be the linchpin of the notion of collective security endorsed at San Francisco. It would transcend the Covenant by centralizing the enforcement mechanisms in the Council and requiring States to comply with any coercive measures, economic or military, ordered whenever it found a threat to the peace under Article 39. This coercive role would make the UN a guarantor of the peace, replacing the ad hoc guarantees in place since the Congress of Vienna with a collective guarantee. In theory, any act of aggression would interest the entire community and merit a response according to the regime in Chapter VII. ⁵

Chapter VI, on the other hand, emphasized the role for disputants in settling their disputes and did not empower the UN to actively enforce its policies against States. Although clearly important insofar as it envisaged Council - read Permanent Five - involvement in many situations that did not rise to the level of a `breach of the peace', it seemed a mere continuation of some of the processes of the League. Indeed, on its face, it even lacked the League's mechanisms, such as rapporteurs and commissions. Because the Allies regarded maintenance of the peace, not the final settlement of disputes, as the UN's core mission, Chapter VI put the UN in a position more akin to a facilitator of the settlement of interstate conflicts.

Chapter VI's status as the neglected step-brother of Chapter VII became most ironic during the first forty-five years of the UN's history. During this period, Chapter VI issues became the bread and butter of the Council's political work, which only rarely crossed into the mysterious realm of Chapter VII, and almost never beyond Article 40. States referred countless issues to the Council under Article 35, and the Assembly accepted its share of controversies as well. The Council's members would debate many, and even occasionally pass, resolutions. Most resolutions, however, consisted of some type of benign recommendation urging restraint upon the parties and suggesting methods or, at times, principles for resolving a dispute.

Only when the UN seemed to be approaching enforcement action under Chapter VII would the realists take notice of it as an actor. This occurred in the rare cases of demands, sanctions, and, of course, peace-keeping, where the UN acted through the consensual basis characteristic of Chapter VI while deploying forces in a way echoing Chapter VII. Other than these instances, the bulk of Council decisions under Chapter VI seemed to have the marginal impact on the settlement of disputes predicted by the realists.⁶

The past five years have merely served to reinforce the notion that the peaceful settlement of disputes is not `where the action is' regarding the UN. Government and academic observers of the UN typically consider the rebirth of Chapter VII as the most significant manifestation of the revived role for the UN after the Cold War. The string of resolutions on Iraq, especially the audacious Resolution 687 (3 April 1991), suggested a new political will among the Permanent Five to use enforcement measures frequently. Chapter VII became the eventual response to the crises in Somalia, Angola, the former Yugoslavia, Haiti, and Rwanda; and its use in the name of counterterrorism in the sanctions against Libya suggested even more novel directions. The United States and other member States have often regarded Chapter VI not as a process with its own dynamics, but as a mere weigh station on the road to enforcement measures, with the gatekeeping function of Article 39 often moribund.

The perceived secondary status of Chapter VI will prove difficult to overcome, because the realists mirror the populist sense that the UN has little prospect for restoring the peace unless it employs coercive measures. (Indeed, they remain dubious about the UN's ability to apply coercive instruments as well.) To them, international institutions can succeed principally in two situations - on highly technical issues (eliminating smallpox, allocating the radio spectrum, or drafting airport safety standards); and on those rare political issues where the great powers can unite to use coercion against a rogue State. Thus, in the areas of peace and security, issues concerning the use of force matter most. The debate on peace-keeping, an enterprise in theory falling under the rubric of the peaceful settlement of disputes, now centres on military issues, such as the UN's battle readiness or UN command over US troops.⁷

All these critics suffer from the same starting point: that war and bloodshed have greater importance to global politics than peace-making, or the use of the diplomatic instrument to bring parties to agreed solutions to their conflict. Who wants to watch pin-striped envoys shuttle in and out of conference rooms in Geneva when they can watch peace-keepers pinned down in a bunker somewhere in Bosnia? These criticisms mesh, of course, with those ontological challenges to international law generally. John Austin's simple dictum of law as no more than a sovereign command backed by force seems so appealing to those unable to see the processual aspects of law and the horizontal and other non-hierarchical means of its enforcement. Thus, international lawyers and institutionalists who highlight non-military activities by the UN to restore the peace are continually put on the defensive, condemned as out of touch for addressing marginal issues, and Chapter VI remains in the shadow of Chapter VII.

Furthermore, as the Council employs Chapter VII more frequently, it increases the likelihood that States will regard Chapter VI resolutions as merely suggestions that the parties may take or leave. Though the Namibia case⁸ attempted to lay to rest once and for all arguments that Article 25 obligated States to `accept and carry out' only those decisions of the Security Council made under Chapter VII, Chapter VI resolutions are too often treated by States as mere options. This conflates the many gradations of seriousness - in M. Reisman's phrase, `control intention' - with which the Council acts (`requests,' `urges', `calls upon', `demands') into one legal connotation. But if Chapter VI comes to represent a mere prelude to Chapter VII, how can one be surprised that States act upon this discredited view of their obligations? The ICJ's initial decision in Lockerbie - relying solely upon the Chapter VII resolution against Libya to refuse to grant provisional measures - reinforces this unfortunate trend.⁹

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1 Assistant Professor, University of Texas School of Law. Certain ideas in Part IV of this essay appear in more detail in my recent book, The New UN Peacekeeping: Building Peace in Lands of Conflict after the Cold War (1995). I greatly appreciate comments from José Alvarez, Leon Gordenker, Paul Szasz, and David Wippman.

2 See, e.g., Franck and Nolte, `The Good Offices Function of the UN Secretary-General', and Morphet, `UN Peace-keeping and Election-Monitoring', in A. Roberts and B. Kingsbury (eds), United Nations, Divided World: The UN's Roles in International Relations (2d ed., 1993) 143, 183.

3 See, e.g., Touval, `Why the UN Fails', Foreign Affairs (September/October 1994) at 44; Mearsheimer, `The False Promise of International Institutions', International Security (Winter 1994/95) 5.

4 See the excellent discussions in Suy, `Article 25', in J.-P. Cot and A. Pellet (eds), La Charte des Nations Unies (2d ed., 1991) 471; `Article 25', in B. Simma (ed.), The Charter of the United Nations. A Commentary (1994) 407.

5 For classic studies of the UN as an organization of collective security, see I. Claude, Jr., Power and International Relations (1962) 155-90, 278-80; id., Swords into Plowshares: The Problems and Progress of International Organization (4th ed., 1971) 245-85.

6 For two empirical studies, see Haas, `Regime Decay: Conflict Management and International Organizations, 1945-1981', 37 International Organization (1983) 189; M. Allsebrook, Prototypes of Peace-making: The First Forty Years of the United Nations (1986).

7 See, e.g., J. Mackinlay and J. Chopra, A Draft Concept of Second Generation Multinational Operations 1993 (1993); Urquhart, `For a UN Volunteer Military Force', New York Review of Books, 10 June 1993, 3-4.

8 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), ICJ (1971) 16, 52-53 (June 21).

9 Cf. Reisman, `The Constitutional Crisis in the United Nations', 87 AJIL (1993) 83, 89.

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