Review Article: 2021 Vol: 24 Issue: 6S
Abdul Maasba Magassing, Hasanuddin University
Marthen Napang, Hasanuddin University
Judhariksawan, Hasanuddin University
Viyani Annisa Permatasari, Hasanuddin University
Kadarudin, Hasanuddin University
The Security Council is one of the six main organs of the United Nations. UN member states have given the Security Council primary responsibility for maintaining international peace and security. In relation to the role of the Security Council in resolving disputes, it is an agreement between UN member states. Under Article 25 of the Charter, all UN member states have agreed to accept and implement the Security Council decisions. Every decision issued by the Council regarding its function in resolving disputes, the parties concerned are obliged to carry it out. The Charter of the United Nations does not provide further details on what is meant by international peace and security, or what actions constitute a violation of international peace and security. What is found in the Charter is simply the distinction of actions which threaten international peace and security in two senses. If based on the consideration of the Security Council there has been a threat or violation against international peace and security, then even though the Charter of the United Nations does not explicitly state what actions must be taken by the United Nations, the existing provisions and customs are applicable in law. internationally, it can be argued that the Security Council will go through the stages of action (1) Preventive Diplomacy; (2) Peacemaking; (3) Peacekeeping; and (4) Peacebuilding.
UN Security Council Resolution, Dispute/Case Resolution, Indonesian Interest.
The failure of the League of Nations (League of Nations), cannot prevent the tragedy of World War 2. This tragedy shatters and destroys the common belief in role models, that the organization of countries with a collective security system is unable to protect the international community from the catastrophe of war (Mauna, 2000).
The United Nations (UN) was founded on October 24, 1945. At the age of 74 (2019) the UN is an international organization that has survived quite a long time compared to other international organizations. The United Nations has experienced growth both in the number of activities, the number of memberships to the number of agencies under its auspices.1 However, behind these developments the Security Council (DK) as one of the main UN agencies is considered to have experienced many failures. Many conflicts both on a regional and international scale have not been resolved by the Security Council. Such as the problem of the Suez Canal, Palestine, Korea, Congo, Myammar, Sudan, Afghanistan, Somalia and others. The Security Council is considered to have failed in bringing about international peace and security (Garner, 1999).2
The establishment of the United Nations was motivated by the concern of mankind for international peace and security which was based on the experiences of WWI and World War II. This human concern is shown through the opening of the UN Charter which reads: “We the Peoples of the United Nations determined to save our succeeding generations from scourge of war, which twice in our lifetime has brought sorrow to mandkind and ...”3
Further affirmation of the purpose of the establishment of the United Nations can be seen in Article 1 Number 1 of the UN Charter which reads (Garner, 1999):
Maintain international peace and security and to this end: take effective collective action to prevent and eliminate threats to violations of peace and will resolve in a peaceful way, and in accordance with the principles of justice and international law, seek a settlement against international conflicts or situations that can disturb peace (Adolf, 2004).
UN efforts to maintain world peace face challenges as diverse as those faced by countries. In carrying out its duties, the United Nations has formed a special organ, namely the United Nations Security Council. The Security Council was founded in 1945, consisting of fifteen countries, namely five permanent members and ten non-permanent members. Permanent members are elected based on power politics and have veto power. The five permanent member countries are the United States, United Kingdom, France, China and Russia. To ensure regional representation in the Security Council, five out of ten precarious membership seats were allocated to Asian and African countries, one for Eastern Europe, two for Latin America and the Caribbean, and two for Western Europe and other countries.4
The main role of the Security Council is confirmed in the Charter of the United Nations, Article 24 paragraph 1 which states (Starke, 1988):
“To ensure that the United Nations can carry out its actions smoothly and appropriately, member members give the Security Council primary responsibility for maintaining international peace and security, and agree that the Security Council in carrying out its obligations for accountability acts on behalf of the Security Council.”
In Chapter VII of the Charter of the United Nations it is expressly stated that the Security Council has the duty to determine and take actions if there is a violation of international security, the violating state may be subject to sanctions.5 Security Council action can be taken based on Chapter VII, which contains three things: First, if these countries take actions that threaten peace; second, if it violates peace; third, if the country launches an aggression against another country (Shaw, 2013).6
As the main task of the Security Council, states that “The to be entrusted with primary responsibility for the maintenance of international peace and security”. What was perceived to be needed was a small, executive organ, functioning continually and able to take decisions quickly and effectively so as to bring into operation the enforcement machinery of Ch. VII of the Charter when new international peace and security was threatened (Oberg, 2006).7
Security Council of the United Nations
The Security Council is one of the six main organs of the United Nations. UN member states have given the Security Council primary responsibility for maintaining international peace and security.8
In relation to the role of the Security Council in resolving disputes, it is an agreement between UN member states. Under Article 25 of the Charter, all UN member states have agreed to accept and implement the Security Council decisions. Every decision issued by the Council regarding its function in resolving disputes, the parties concerned are obliged to implement it. 9
In carrying out its duties the Security Council can act (Omba, (n.d.):10
a) On his own initiative (Article 34 of the Charter).
b) At the request of member states (Article 35 [1] of the Charter).
c) At the request of non-member countries (Article 35 [2] of the Charter).
d) At the request of the General Assembly (Article 11 of the Charter).
e) At the request of the Secretary General (Article 99 of the Charter)
The Security Council generally acts on two types of disputes:11
a) Disputes that can endanger international peace and security.
b) Cases that threaten peace, or violate peace, or acts of aggression
Functions and Authorities of the Security Council
Carried out in two ways, namely the peaceful settlement of international disputes that are seen as threatening international peace and security, and the second, namely if the first method is deemed to be unsuccessful or inadequate is by coercion or coercion.12
The powers of the Security Council, if specified, are as follows (Sands et al., 2009):13
a) Maintain international peace and security (Article 24 of the Charter).
b) To investigate any disputes that could threaten international peace and security (Article 34 of the Charter).
c) Provide advice on ways that can be used to resolve a dispute (Articles 36, 38 of the Charter).
d) Determine whether a situation disturbs international peace or an act of aggression and suggests what measures can be taken to prevent or stop aggression (Articles 39 and 40 of the Charter).
e) Encourage members to take other acts of a violent nature to prevent or stop an aggression (Article 41 of the Charter).
f) Take military actions against aggression (Article 42 of the Charter).
g) Acceptance, suspension, revocation of membership (Article 4 [2]; Article 5; Article 6 of the Charter).
h) Election of International Court Judges (Article 10 of the Charter).
i) Recommends the election of the Secretary General of the United Nations (Article 97 of the Charter).
j) Submit an annual report to the UN General Assembly (Articles 26 and 29 of the Charter).
k) Charter Amendment (Article 108 of the Charter).
l) Development and supervision of strategic areas (Article 83 of the Charter)
The role of the Security Council in relation to Chapter VII of the Charter of Article 39 authorizes the Security Council to determine the existence of an action that endangers international peace and security.14 Actions that can be taken by the Security Council are (Sefriani, 2016):
Peaceful Dispute Resolution15
1) The Security Council has the power to determine whether a dispute will be discussed on the agenda.
2) Submission of a dispute to the Security Council does not depend on the agreement of the parties. This is different from an arbitration body or the International Court of Justice which requires expressly the consent or consensus of the parties to the dispute.
3) The Security Council is not only authorized to handle disputes, but under Article 34, it is also authorized to handle any situation that can create international friction. From the text of the Article it appears that the powers of the Security Council are very broad, covering all matters that have international consequences (Suwardi, 2004).
Forced or Violent Dispute Resolution16
The Security Council can require the parties involved to comply with provisional measures and take action against those who fail to comply (Article 40).
There are two types of coercive action that the Security Council may decide on:
Actions which do not involve the use of armed forces (Suryokusumo, 1997).
1) The Security Council may request member states to impose a full or partial suspension of economic relations and all means of communication and to terminate diplomatic relations.
2) Actions by air, sea and land powers if the action according to (1) is inadequate.
This action could include a blockade against one of the parties concerned. The Security Council can decide whether the necessary action to implement coercive decisions should be taken by the whole country or only a few countries and to reduce any potential distress member states must cooperate with each other in implementing Security Council decisions (Article 48- 49) (Hussain et al., 2020).
If a country, whether a member or non-member, is faced with special economic problems as a result of the implementation of such preventive or coercive measures, the country concerned has the right to consult with the Security Council on these matters (Article 50).17
Every decision of the Security Council must be assisted or implemented by members (Articles 48, 49) and also for non-member states of the United Nations (Article 50 of the Charter).18
In assisting in this task members of the United Nations can assist with assistance providing troops, facilities and other necessary assistance.19
Restrictions on the powers of the Security Council, namely juridical and non-juridical restrictions. Juridical restrictions, namely what is stipulated in Articles 1 and 2 of the Charter (Hussain et al., 2021).
Nonuridical Restrictions on Veto from Permanent Members of the Security Council20
Legal limitations are those set out in Articles 1 and 2 of the Charter concerning the “Objectives” and “Principles” of the United Nations; for example, the settlement of international disputes which could lead to a violation of peace must be resolved through “peaceful means and in accordance with the principles of justice and international law” (paragraph 1 Article 1) and apart from coercive action the UN must not interfere in matters “which are inherently within the domestic jurisdiction of a country” (Article 2). But even these legal restrictions must be reconciled with the circumstances, for example the Security Council argues in practice that these issues fall under domestic jurisdiction, if in his opinion they will raise international attention which goes beyond the boundaries. country. Regarding practical limitations on its powers, other than “veto”, against restrictions that each decision is subject to acceptance of the agreement by a number of members.21
Legal Basis and Security Council Mechanisms Achieve International Peace and Security
The Charter of the United Nations does not provide further details on what is meant by international peace and security, or what actions constitute a violation of international peace and security. What is found in the Charter is simply the distinction of actions which threaten international peace and security in two senses. The first definition, namely within the framework of Article 34 of the UN Charter, where there is continuing inter-state conflict which may threaten peace and will not be followed by sanctions. Whereas the second definition is within the framework of Chapter VII of the UN Charter, which concerns actions taken by a country that violates UN principles which can directly threaten international peace and security and may be subject to sanctions according to Article 51 of the UN Charter. 22
Thus, there are no standard provisions regarding what actions are categorized as violations of international peace and security.23 It is the Security Council members, especially the permanent members, who will play a major role in determining whether an action taken by a member state is a threat to international peace and security or not. This is one of the weaknesses of the Security Council, because due to unclear arrangements, the Security Council often provides double standards in giving considerations or deciding whether there has been a threat to international peace and security or not.24
If based on the consideration of the Security Council there has been a threat or violation against international peace and security, then even though the Charter of the United Nations does not explicitly state what actions must be taken by the United Nations, the existing provisions and customs apply in law. internationally, it can be argued that the Security Council will go through the following stages of action:25
a) Preventive Diplomacy
b) Peace Making
c) Peace Keeping
d) Peace Building
The series of definitions of the actions mentioned above are:26
Preventive Diplomacy
Preventive Diplomacy is an action to prevent the emergence of a dispute between the parties, prevent the spread of a dispute, or limit the expansion of a dispute.
Peace Making
Peace Making is an action to bring the disputing parties to mutual agreement, especially through peaceful means as contained in Chapter VI of the UN Charter. The goal of the United Nations in this regard lies between the task of preventing conflict and maintaining peace. Between these two duties lies the obligation to try to bring the disputing parties to an agreement by peaceful means.
In its role, the Security Council only provides recommendations or suggestions on the appropriate means or methods of resolution after considering the nature of the dispute
Peace Keeping
Peace Keeping is an action to mobilize the UN presence in peacekeeping by agreement of the parties concerned. This method is a technique used to prevent conflict and to create peace. Since it was first formed, Peace Keeping has created meaningful stability in various conflict areas.
Peace Building
Peace Building is an action to identify and support structures to strengthen peace to prevent a reconciled conflict from turning back into conflict. The Peace Building was born after the conflict. This can be in the form of a concrete cooperation project connecting two or more profitable countries between them. This not only contributes to economic and social development but also engenders trust which is a fundamental condition for peace
Apart from these four things, the Latin American scholar, Eduardo Jimenez De Arechaga, introduced another term, namely Peace Enforcement.27 What is meant by this term is the authority of the Security Council based on the Charter to determine whether an action is a threat to peace or an act of aggression. In dealing with this situation, under Article 41 of the Charter (Chapter VII), the Council has the authority to decide the application of economic, political or military sanctions. 28
In carrying out its duties the Security Council is assisted by: 29
a) Military Staff Committee (Article 26 of the Charter).
b) Subsidiary organs established under Article 29 of the UN Charter
Usually the Council does not act alone because its structure does not allow but mediates an intergovernmental commission or prominent figures. For example, the Conciliation Commission in the Congo incident in 1960, a well-known figure in the Palestinian issue in 1948, Cyprus in 1964, several figures in the issue of apartheid in 1963. Often times the UN Secretary General himself performed good services or mediated as in the Malvinas case. 1982, res. 505 and after the invasion of Kuwait by Iraq res. 674 (1990), 29 October 1990. 30
A relatively recent development is the tendency of the Council to establish subsidiary organs which are under its jurisdiction and which serve to assist the Council.31 In many ways it is an ad hoc organ. The composition and authority of these organs shall be determined freely by the Council according to the circumstances and specific characteristics of a matter. Even this subsidiary organ is sometimes in charge of monitoring or supervising the application of a settlement that has been received. 32
Resolution and Voting Procedures in the Security Council
The word resolution according to the KBBI is a decision or unanimity of opinion in the form of requests or demands determined by a meeting (deliberation, trial), a written statement, usually containing demands on a matter.
According to Black's Law Dictionary, Resolution “is a formal expression of an opinion, intention, or decision by an official body or assembly.33
In practice, the UN means recommendations and decisions. There are three legal effects that can be caused by a resolution:34
1) Substantive Effects, creating obligations, rights and/or strength/authority.
2) Causative Effects, determining facts or legal situations that can cause substantive effects.
3) Capital Securities, determine how and when the substantive effect is effective (immediate or deferred, retroactive or not, reversible or irreversible effect).
Voting procedure in the Security Council
Veto Rights35
The veto rights that the major powers will have were discussed regularly when drafting the UN Charter both in Dumbarton Oaks and in Yalta, and in San Francisco. That the five countries that are deemed very responsible for the completion of World War II will become permanent members of the Security Council and they will be granted veto power, this is in return for their responsibility for international peace and security (primary responsibilities).
Legally, the powers that the permanent members of the Security Council have are privileges given to them, but legally they do not have different obligations or responsibilities from other UN member states. The Charter specifies only that the primary responsibility for international peace and security rests with the Security Council (Article 24 [1] of the UN Charter) and not with the permanent members of the Security Council.
Voting Rights36
Article 27 (1) of the Charter of the United Nations states that each member of the Security Council has one vote. If the provisions in Article 27 (1) are connected with the provisions in Article 27 (3) of the Charter, there will be differences in voting rights between permanent members and non-permanent members. This difference lies that on nonprocedural matters will be determined by nine votes of the Security Council members including the unanimity of the permanent members of the Security Council (the unanimity of the permanent members of the Security Council is the right of veto).37 Decisions of the Security Council are differentiated between decisions concerning procedural and non-procedural matters. Procedural matters will be determined by a vote of nine members of the Security Council (Article 27 [2] of the Charter) while for nonprocedural matters are determined by nine votes including the vote of the permanent members of the Security Council (Article 27 [3]). The problems that arise are how to determine a problem, including procedural and nonprocedural. If we observe in the Charter itself, there is no formulation which is a procedural or non-procedural problem. At the meeting in San Francisco the four major countries (United States, Soviet Union, Britain and China) have made a list of which are included in procedural issues, as examples of decisions based on matters of order (Articles 28-32 of the Charter), questions related to the postponement agenda. meeting. Meanwhile, nonprocedural issues include recommendations for dispute resolution and decisions for violent action. In case there is doubt whether a case is a procedural or non-procedural case. So this problem creates what is called a double veto. The permanent members of the Security Council will veto, each issue will be defined as a procedural issue and will veto any recommendations that will be made on the matter so that there will be a double veto.
To avoid the double veto problem, the President of the Security Council will determine whether a problem is a matter of procedure or not, will ask for an opinion from the members of the Security Council, if within one month there is no reaction then he will decide and this is the final decision unless it will be corrected. with decision-making procedures in the Security Council.
Regarding this double veto Inis L. Claude Yunior said:
This “double veto” principle seemed to authorize any great power to veto any effort to remove matters from the range of its veto, thereby permitting the indefinite extension of the capacity for negation assigned to the permanent members; The decision of Security Council on all others matters shall made by affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions of Chapter VI and under paragraph 3 of article 52, a party to a dispute shall abstain from voting.
It is worth noting the sentences including the concurring votes of permanent members. The question that arises is whether the unanimity of the permanent members of the Security Council is the unanimity of the representatives of the permanent members of the Security Council or the unanimity of representatives of the permanent members of the Security Council who are present and cast their votes. This question is very important in connection with the problem of absences (absences) and abstention from representatives of the five permanent members of the Security Council, in this case the Security Council must make decisions on matters which are nonprocedural matters. According to Article 27 (3) of the Charter of the United Nations, there is an obligation to abstain from a permanent member of the Security Council because there is a case to be decided by the Security Council, in which one of the parties is a permanent member of the Security Council. Article 27 (3) gives rise to different interpretations.
The first interpretation, Article 27 (3) calls for a unanimous vote on the permanent members of the Security Council. In the event that one or more of the permanent members of the Security Council are absent or abstain from voting, no voting is valid.
The second interpretation is that permanent members of the Security Council can exercise their veto by not attending or abstaining from voting.
Abstaining from a vote by a member of the Security Council in a decision on nonprocedural matters can be interpreted as a veto, even if the member does not intend to abstain from voting. Sentences including the concurring votes of permanent members. This is meant by the votes of the five permanent members of the Security Council. The only exception to this is in decisions under Chapter VI of the Charter and under Article 52 (3), a member of the Security Council who is one of the parties to a dispute will abstain from voting.
The third interpretation, the provisions in Article 27 (3) of the Charter of the concurring votes of the permanent members are connected with the provisions contained in Articles 108 and 109 (2) of the UN Charter including all the permanent members of the Security Council, according to this third interpretation the decision is valid. from the Security Council may be taken in a nonprocedural case even if one of the permanent members of the Security Council abstained from voting.
This last interpretation seems to be accepted by the Security Council. Due to the abstention of one of the permanent members of the Security Council it is not considered to have a negative impact on the vote. Absence by permanent members of the Security Council is considered abstention from voting.
Problems/Evaluations Related to the Working Method of the UN Security Council
Question of Veto
In the end, the veto right must be abolished because it is undemocratic and contrary to the principle of equality among sovereign countries. In addition, the veto power does not reflect the reality of the current international system which has undergone fundamental changes in both form and substance. In an effort to remove veto in the long run. Several countries, including Indonesia, are pushing for a mechanism to regulate the use of vetoes so that vetoes cannot be used in cases such as serious violations of international humanitarian law and genocide.
Regional Representation
There is a need to find a balance against geopolitical realities and regional representation by considering; a very large imbalance of representation for the Asian and African regions, the need to increase the representation of developing countries; and the need for representation of the world major civilizations and constituencies as a reflection of the diversity and plurality of the world today.
Size of the Enlarged Security Council and Its Working Methods
Several countries, including Indonesia, consider this topic to be closely related to efforts to improve the efficiency and effectiveness of the UN Security Council, which aims to increase access and deepen the involvement of non-UNSC countries in the discussions and work processes of the UNSC. Meanwhile, in order to increase efficiency and increase access for non-UNSC countries, there are three main things that need to be improved, namely information, consultation and cooperation.
Indonesia and the UN Security Council
Indonesian Delegate Attended the Security Council Debate in 1947
1973-1974: resolutions on Africa (33%), Mediterania (31%), Middle East (24%) with 23 resolutions on armed conflicts
1995-1996: resolutions on Africa (39%), the Balkans (32%), Middle East(11%), with thematic resolutions on justice, rule of law and impunity (38 resolutions), followed by 29 resolutions on disarmament
2007-2008: resolutions on Africa (63%), Middle East (15%), Asia (9%) with 36 resolutions on peacebuilding
Indonesia was elected as a Non-Permanent Member On 8 June 2018 by securing more votes (144 votes) than Maldives
Benefits of being a Member of the UN Security Council
• Direct exposure in handling issues of international peace and security
• Increase Indonesia's capacity to speak out in making decisions on international security issues
• Protect sovereignty and territorial integrity
• Encouraging discussion of non-core issues (in accordance with national interests) in various formats
• Is a political capital, both with developed and developing countries. For example, helping to voice the interests of countries outside the UN Security Council members, which are in line with Indonesia's national interests:
• A voice of dialogue
• A legacy of regional footprints
• A champion of working method:
• Wisnumurti Guidelines
• Analytical Annual Report
• Program of Work
Within the United Nations system, major bodies such as the General Assembly, Security Council and Social Economic Council may issue individual resolutions. However, General Assembly resolutions are only recommended in nature compared to Security Council resolutions which have legally binding power. of the UN Security Council resolutions contained in Article 25 of the UN Charter, which states that the Members of the United Nations agree to accept and implement the decisions of the Security Council in accordance with this Charter.
With the UN Security Council Resolution, UN member countries have the obligation to carry out this resolution. Even though it has been clearly regulated in the UN Charter, in its implementation, UN member states are often found to have violated Security Council Resolutions.
With regard to the categories of membership, a fundamental discussion is needed regarding inequality, representation between regions and between developed countries and developing countries as well as the major world constituencies in the proposal to increase the membership of the UN Security Council into 2 membership categories, namely permanent members and non-permanent members. Although the proposal to increase membership in these two categories has the support of a large number of countries, this proposal has not succeeded in uniting the positions of all countries. In this regard, Indonesia considers that the Intermediate Approach encourages the existence of a third category of UNSC membership based on temporary membership, with a term of service longer than 2 years, and can be immediately re-elected with a clear, pre-determined review mechanism worthy of consideration. The proposal is intended to serve as a bridge for various differences of view that have emerged in terms of increasing the membership of the DK. By including the requirements for the review mechanism, it is hoped that it will get broad enough political support from various parties.