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Internationale Organisationen Kapitel V : Die Vereinten Nationen -Der Sicherheitsrat

Internationale Organisationen Kapitel V : Die Vereinten Nationen -Der Sicherheitsrat. Prof. Dr. Andreas Zimmermann, LL.M. (Harvard). Der Sicherheitsrat. Der Sicherheitsrat. Chapter V: The Security Council Chapter VI: Pacific Settlement of Disputes Chapter

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Internationale Organisationen Kapitel V : Die Vereinten Nationen -Der Sicherheitsrat

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  1. Internationale OrganisationenKapitel V: Die Vereinten Nationen -Der Sicherheitsrat Prof. Dr. Andreas Zimmermann, LL.M. (Harvard)

  2. Der Sicherheitsrat

  3. Der Sicherheitsrat • Chapter V: The Security Council • Chapter VI: Pacific Settlement of Disputes Chapter • VII: Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression

  4. Zusammensetzung (1) Article 23 UN-Charter 1. The Security Council shall consist of fifteen Members of the United Nations. The Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America shall be permanent members of the Security Council. The General Assembly shall elect ten other Members of the United Nations to be non-permanent members of the Security Council, due regard being specially paid, in the first instance to the contribution of Members of the United Nations to the maintenance of international peace and security and to the other purposes of the Organization, and also to equitable geographical distribution. 2. The non-permanent members of the Security Council shall be elected for a term of two years. In the first election of the non-permanent members after the increase of the membership of the Security Council from eleven to fifteen, two of the four additional members shall be chosen for a term of one year. A retiring member shall not be eligible for immediate re-election. 3. Each member of the Security Council shall have one representative.

  5. Zusammensetzung (2) • Derzeitige nicht-ständige Mitglieder: • 2015-2016: Angola, Malaysia, Spanien, Neuseeland, Venezuela • 2016-2017: Ägypten, Japan, Senegal, Ukraine, Uruguay

  6. Abstimmungsmodalitäten Article 27 UN-Charter 1. Each member of the Security Council shall have one vote. 2. Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members. 3. Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.

  7. Das Veto-Recht

  8. Enthaltung ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), Advisory Opinion, ICJ Reports 1971, para. 22 „[…] the proceedings of the Security Council extending over a long period supply abundant evidence that presidential rulings and the position taken by members of the Council, in particular its permanent members, have consistently and uniformly interpreted the practice of voluntary abstention by a permanent member as not constituting a bar to the adoption of resolutions. By abstaining a member does not signify its objection to the approval of what is being proposed; in order to prevent the adoption of a resolution requiring unanimity of the permanent members, a permanent member has to cast a negative vote. This procedure followed by the Security Council, which has continued unchanged after the amendment in 1965 of Article 27 of the Charter, has been generally accepted by Members of the United Nations and evidences a general practice of that Organization.“

  9. Double-Veto (1) Annex: San Francisco Declaration of June 7, 1945 Statement by the Delegations of the Four Sponsoring Powers on Voting Procedure in the Security Council 7. The Yalta voting formula substitutes for the rule of complete unanimity of the League Council a system of qualified majority voting in the Security Council. Under this system non-permanent members of the Security Council individually would have no ‘veto’. As regards the permanent members, there is no question under the Yalta formula of investing them with a new right, namely, the right to veto, a right which the permanent members of the League Council always had. The formula proposed for the taking of action in the Security Council by a majority of seven would make the operation of the Council less subject to obstruction than was the case under the League of Nations rule of complete unanimity.

  10. Double-Veto (2) [Fortsetzung, San Francisco Declaration] 9. In view of the primary responsibilities of the permanent members, they could not be expected, in the present condition of the world, to assume the obligation to act in so serious a matter as the maintenance of international peace and security in consequence of a decision in which they had not concurred. Therefore, if a majority voting in the Security Council is to be made possible, the only practicable method is to provide, in respect of non-procedural decisions, for unanimity of the permanent members plus the concurring votes of at least two of the non-permanent members.

  11. Double-Veto (3) [Fortsetzung, San Francisco Declaration] 2. This means that the Council will, by a vote of any seven of its members, adopt or alter its rules of procedure; determine the method of selecting its President; organize itself in such a way as to be able to function continuously; select the times and places of its regular and special meetings; establish such bodies or agencies as it may deem necessary for the performance of its functions; invite a member of the Organization not represented on the Council to participate in its discussions when that member’s interests are specially affected; and invite any State when it is a party to a dispute being considered by the Council to participate in the discussion relating to that dispute.

  12. Double-Veto (4) [Fortsetzung, San Fracisco Declaration] 4. Beyond this point, decisions and actions by the Security Council may well have major political consequences and may even initiate a chain of events which might, in the end, require the Council under its responsibilities to invoke measures of enforcement under Section B, Chapter VIII. This chain of events begins when the Council decides to make an investigation, or determines that the time has come to call upon States to settle their differences, or makes recommendations to the parties. It is to such decisions and actions that unanimity of the permanent members applies, with the important proviso, referred to above, for abstention from voting by parties to a dispute.

  13. Double-Veto (5) [Fortsetzung, San Fracisco Declaration] In this case, it will be unlikely that there will arise in the future any matters of great importance on which a decision will have to be made as to whether a procedural vote would apply. Should, however, such a matter arise, the decision regarding the preliminary question as to whether or not such a matter is procedural must be taken by a vote of seven members of the Security Council, including the concurring votes of the permanent members.

  14. Streitparteien ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), Advisory Opinion, ICJ Reports 1971, para. 23 “A similar answer must be given to the related objection based on the proviso to paragraph 3 of Article 27 of the Charter. This proviso also requires for its application the prior determination by the Security Council that a dispute exists and that certain members of the Council are involved as parties to such a dispute.”

  15. Wahrung des Weltfriedens Article 24 UN-Charter • In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. 2. In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII.

  16. Anrufung des SR Article 35 UN-Charter 1. Any Member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34, to the attention of the Security Council or of the General Assembly. 2. A state which is not a Member of the United Nations may bring to the attention of the Security Council or of the General Assembly any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations of pacific settlement provided in the present Charter. 3. The proceedings of the General Assembly in respect of matters brought to its attention under this Article will be subject to the provisions of Articles 11 and 12.

  17. Einleitung einer Untersuchung Article 34 UN-Charter The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.

  18. Kapitel VI – Friedliche Streitbeilegung Article 33 UN-Charter 1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. 2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.

  19. Kap. VI – Empfehlungen (1) Mittel zur friedlichen Beilegung, Art. 33 UN-Charter: • Verhandlung • Untersuchung, • Vermittlung • Vergleich • Schiedsspruch • gerichtliche Entscheidung • Inanspruchnahme regionaler Einrichtungen oder Abmachungen • oder durch andere friedliche Mittel der eigenen Wahl

  20. Kap. VI – Empfehlungen (2) Article 36 UN-Charter 1. The Security Council may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature, recommend appropriate procedures or methods of adjustment. 2. The Security Council should take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties. 3. In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court.

  21. Kap. VI – Bsp. Korfu Kanal Fall Resolution of 9 April 1947 (S/324) The Security Council […] Recommends that the United Kingdom and Albanian Governments should immediately refer the dispute to the International Court of Justice in accordance with the provisions of the Statute of the Court.

  22. Kap. VI – Bsp. Kubakrise Resolution of 19 July 1960 (S/4395) The Security Council […] 2. Invites the members of the Organization of American States to lend their assistance toward the achievement of a peaceful solution of the present situation in accordance with the purposes and principles of the Charter of the United Nations. 3. Urges in the meantime all other States to refrain from any action which might increase the existing tension between Cuba and the United States of America.

  23. Kap. VI – Bsp. Indien-Pakistan Konflikt 39. Resolution of 20 January 1948 (S/654) The Securtiy Council […] Adoptsthefollowingresolution: • A Commissionofthe Security Council isherebyestablished, composedofrepresentativesofthree Members ofthe United Nations, onetobeselectedbyIndia, onetobeselectedby Pakistan, andthethirdtobedesignatedbythetwo so selected. […] C. The Commissionisinvestedwith a dual function: (1) toinvestigatethefactspursuanttoArticle 34 ofthe Charter ofthe United Nations; (2) toexcercise, withoutinterruptingtheworkoftheSecurtiy Council, anymediatoryinfluencelikelyto smooth awaydifficulties […]

  24. Kap. VI – Art. 37 Article 37 1. Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in that Article, they shall refer it to the Security Council. 2. If the Security Council deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security, it shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate

  25. Kap. VI - Empfehlungen Resolution 138 (1960) The Security Council, […] 1. Declares that acts such as that under consideration, which affect the sovereignty of a Member State and therefore cause international friction, may, if repeated, endanger international peace and security; 2. Requests the Government of Israel to make appropriate reparation in accordance with the Charter of the United Nations and the rules of international law;

  26. Kap. VII - Art. 39 Article 39 UN-Charter The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

  27. Kap. VII - Friedensbruch Resolution 660 (1990) The Security Council Alarmed by the invasion of Kuwait on 2 August 1990 by the military forces of Iraq, Determining that there exists a breach of international peace and security as regards the Iraqi invasion of Kuwait, Acting under Articles 39 and 40 of the Charter of the United Nations, […]

  28. Kap. VII – Angriffshandlung (1) Definition of Aggression, United Nations General Assembly Resolution 3314 (XXIX) Art. 1 Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition

  29. Kap. VII – Angriffshandlung (2) [Fortsetzung Def. of Aggression] Art. 3 Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression: (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof, (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State;

  30. Kap. VII – Angriffshandlung (3) (Fortsetzung Def. of Aggression) (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

  31. Kap. VII – Crime of Aggression Art. 8a Rome Statute of the International Criminal Court Crime of aggression 1. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

  32. Kap. VII - Friedensbedrohung Resolution 1816 (2008) The Security Council, […] Determining that the incidents of piracy and armed robbery against vessels in the territorial waters of Somalia and the high seas off the coast of Somalia exacerbate the situation in Somalia, which continues to constitute a threat to international peace and security in the region, Acting under Chapter VII of the Charter of the United Nations […]

  33. Art. 39 UN-Charter? Resolution 1695 (2006) The Security Council, […] Affirming that such launches jeopardize peace, stability and security in the region and beyond, particularly in light of the DPRK’s claim that it has developed nuclear weapons, Acting under its special responsibility for the maintenance of international peace and security, […] 2. Demands that the DPRK suspend all activities related to its ballistic missile programme, and in this context re-establish its pre-existing commitments to a moratorium on missile launching;

  34. Kap. VII – Vorläufige Maßnahmen (1) Article 40 UN-Charter In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.

  35. Kap. VII – Vorläufige Maßnahmen (2) Beispiele für vorläufige Maßnahmen nach Art. 40 UN-Charter: • To cease hositilities and to cease fire • To withdraw the troops • To create demilitarized zone and humanitarian corridors to ensure humanitarian assistance and the protection of civilians • To sign a truce or armistice • Other instrumental measures, such as the request to comply with ceasefire agreements or of truce already reached between the parties • To release prisoners or hostages • To refrain from those actions considered likely to exacerbate the situation

  36. Kap. VII – Vorläufige Maßnahmen (3) Resolution 1696 (2006) The Security Council, […] Concerned by the proliferation risks presented by the Iranian nuclear programme, mindful of its primary responsibility under the Charter of the United Nations for the maintenance of international peace and security, and being determined to prevent an aggravation of the situation, Acting under Article 40 of Chapter VII of the Charter of the United Nations in order to make mandatory the suspension required by the IAEA,

  37. Kap. VII – Art. 41 Article 41 UN-Charter The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

  38. Kap. VII – Maßnahmen ohne Waffengewalt (1) RESOLUTION 661 (1990) The Security Council, […] 3. Decides that all States shall prevent: (a) The import into their territories of all commodities and products originating in Iraq or Kuwait exported therefrom after the date of the present resolution; (b) Any activities by their nationals or in their territories which would promote or are calculated to promote the export or trans-shipment of any commodities or products from Iraq or Kuwait; […] (c) The sale or supply by their nationals or from their territories or using their flag vessels of any commodities or products, including weapons or any other military equipment, whether or not originating in their territories but not including supplies intended strictly for medical purposes, and, in humanitarian circumstances, foodstuffs, to any person or body in Iraq or Kuwait or to any person or body for the purposes of any business carried on in or operated from Iraq or Kuwait, and any activities by their nationals or in their territories which promote or are calculated to promote such sale or supply of such commodities or products;

  39. Kap. VII – Maßnahmen ohne Waffengewalt (2) [Fortsetzung, Res. 661] 4. Decides that all States shall not make available to the Government of Iraq or to any commercial, industrial or public utility undertaking in Iraq or Kuwait, any funds or any other financial or economic resources and shall prevent their nationals and any persons within their territories from removing from their territories or otherwise making available to that Government or to any such undertaking any such funds or resources and from remitting any other funds to persons or bodies within Iraq or Kuwait, except payments exclusively for strictly medical or humanitarian purposes and, in humanitarian circumstances, foodstuffs;

  40. Kap. VII – Maßnahmen ohne Waffengewalt (3) Resolution 1373 (2001) The Security Council, Acting under Chapter VII of the Charter of the United Nations, 1. Decides that all States shall: (a) Prevent and suppress the financing of terrorist acts; […] 2. Decides also that all States shall: (a) Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists ; (b) Take the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information

  41. Kap. VII – Maßnahmen ohne Waffengewalt (4) Resolution 1747 (2007) The Security Council, […] Concerned by the proliferation risks presented by the Iranian nuclear programme and, in this context, by Iran’s continuing failure to meet the requirements of the IAEA Board of Governors and to comply with the provisions of Security Council resolutions 1696 (2006) and 1737 (2006), mindful of its primary responsibility under the Charter of the United Nations for the maintenance of international peace and security, Acting under Article 41 of Chapter VII of the Charter of the United Nations,

  42. Kap. VII – Maßnahmen ohne Waffengewalt (5) [Fortsetzung, S/Res/1747] 13. Affirms that it shall review Iran’s actions in light of the report referred to in paragraph 12 above, to be submitted within 60 days, and: […] (c) that it shall, in the event that the report in paragraph 12 above shows that Iran has not complied with resolution 1737 (2006) and this resolution, adopt further appropriate measures under Article 41 of Chapter VII of the Charter of the United Nations to persuade Iran to comply with these resolutions and the requirements of the IAEA, and underlines that further decisions will be required should such additional measures be necessary;

  43. Smart Sanctions (1) ECJ, Yassin Abdullah Kadi and Al Barakaat International Foundationv.Council of the European UnionandCommission of the European Communities, EuGH, 03.09.2008 - C-402/05 P; C-415/05 P, paras. 306-308 294. In the exercise of that latter power it is necessary for the Community to attach special importance to the fact that, in accordance with Article 24 of the Charter of the United Nations, the adoption by the Security Council of resolutions under Chapter VII of the Charter constitutes the exercise of the primary responsibility with which that international body is invested for the maintenance of peace and security at the global level, a responsibility which, under Chapter VII, includes the power to determine what and who poses a threat to international peace and security and to take the measures necessary to maintain or restore them.

  44. Smart Sanctions (2) [Fortsetzung ECJ Yusuf/Kadi, paras. 299-300] 299. It follows from all those considerations that it is not a consequence of the principles governing the international legal order under the United Nations that any judicial review of the internal lawfulness of the contested regulation in the light of fundamental freedoms is excluded by virtue of the fact that that measure is intended to give effect to a resolution of the Security Council adopted under Chapter VII of the Charter of the United Nations. 300. What is more, such immunity from jurisdiction for a Community measure like the contested regulation, as a corollary of the principle of the primacy at the level of international law of obligations under the Charter of the United Nations, especially those relating to the implementation of resolutions of the Security Council adopted under Chapter VII of the Charter, cannot find a basis in the EC Treaty.

  45. Smart Sanctions (3) ECtHR, Nada v. Switzerland, 12 September 2012, Application no. 10593/08 196. In the light of the Convention’s special character as a treaty for the collective enforcement of human rights and fundamental freedoms, the Court finds that the respondent State could not validly confine itself to relying on the binding nature of Security Council resolutions, but should have persuaded the Court that it had taken – or at least had attempted to take – all possible measures to adapt the sanctions regime to the applicant’s individual situation. 197. That finding dispenses the Court from determining the question, raised by the respondent and intervening Governments, of the hierarchy between the obligations of the States Parties to the Convention under that instrument, on the one hand, and those arising from the United Nations Charter, on the other. In the Court’s view, the important point is that the respondent Government have failed to show that they attempted, as far as possible, to harmonise the obligations that they regarded as divergent.

  46. Smart Sanctions (4) [Fortsetzung ECtHR Nada v. Switzerland] [Regarding Art. 13: effective remedy] 213. Having regard to the foregoing, the Court finds that the applicant did not have any effective means of obtaining the removal of his name from the list annexed to the Taliban Ordinance and therefore no remedy in respect of the Convention violations that he alleged (see, mutatis mutandis, Lord Hope, in the main part of the Ahmed and others judgment, §§ 81-82, paragraph 96 above). 214. Accordingly, the Court dismisses the preliminary objection raised by the Government as to the non-exhaustion of domestic remedies and, ruling on the merits, finds that there has been a violation of Article 13 taken together with Article 8.

  47. Kap. VII – Art. 42 Article 42 UN-Charter Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

  48. Kap. VI 1/2 – Peacekeeping

  49. Kap. VI 1/2 – Peacekeeping Resolution 1701 (2006) The Security Council, […] 11. Decides , in order to supplement and enhance the force in numbers, equipment, mandate and scope of operations, to authorize an increase in the force strength of UNIFIL to a maximum of 15,000 troops, and that the force shall, in addition to carrying out its mandate under resolutions 425 and 426 (1978): (a) Monitor the cessation of hostilities; (b) Accompany and support the Lebanese armed forces as they deploy throughout the South, including along the Blue Line, as Israel withdraws its armed forces from Lebanon as provided in paragraph 2; […] (d) Extend its assistance to help ensure humanitarian access to civilian populations and the voluntary and safe return of displaced persons; (e) Assist the Lebanese armed forces in taking steps towards the establishment of the area as referred to in paragraph 8; (f) Assist the Government of Lebanon, at its request, to implement paragraph 14;

  50. Kap. VII – Robuste Peacekeeping Resolution 929 (1994) The Security Council […] 2. Welcomes also the offer by Member States (S/1994/734) to cooperate with the Secretary-General in order to achieve the objectives of the United Nations in Rwanda through the establishment of a temporary operation under national command and control aimed at contributing, in an impartial way, to the security and protection of displaced persons, refugees and civilians at risk in Rwanda, on the understanding that the costs of implementing the offer will be borne by the Member States concerned 3. Acting under Chapter VII of the Charter of the United Nations, authorizes the Member States cooperating with the Secretary-General to conduct the operation referred to in paragraph 2 above using all necessary means to achieve the humanitarian objectives set out in subparagraphs 4 (a) and (b) of resolution 925 (1994) ;

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