Изображения страниц
PDF
EPUB

nations consenting to the peace ..." (Of, Daniel S. Cheever and H. Field Haviland, Jr., Organizing for Peace, 1954, pp. 159, 160 ff.)

14. Article 2, paragraph 7, of the Charter of the United Nations stipulates : "Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.In its Report to the President on the Results of the San Francisco Conference (Department of State Publication 2349, Washington, 1945, p. 44), Secretary of State Stettinius justified this provision as desirable "because of the amplification of the power and authority given to the Assembly and, particularly, to the Economic and Social Council. Without this general limitation ... it might have been supposed that the Economic and Social Council could interfere directly in the domestic economy, social structure, or cultural or educational arrangements of the member states. Such a possibility is now definitely excluded.Of. also Cheever and Haviland, op. cit., pp. 212, ff.

15. Cf. Article 13, paragraph 1 (b), and Article 62 of the U.N. Charter, p. 256 f.

16. In this respect the United Nations Relief and Rehabilitation Administration (UNRRA) should be mentioned.

17. The International Monetary Fund and the International Bank for Reconstruction and Development were established for these purposes.

18. The Food and Agricultural Organization of the United Nations.

19. The following agencies operate for these purposes: the International Labor Organization, the World Health Organization (specialized agencies brought in relationship with the United Nations); the Commission on Narcotic Drugs of the Economic and Social Council, which took the place of the Advisory Committee on Traffic in Opium and other Dangerous Drugs of the League of Na. tions); the United Nations Educational, Scientific and Cultural Organization (a specialized agency); the Human Rights Commission of the Economic and Social Council.

20. Such as the mandate system of the League of Nations (Article 22 of the Covenant) and the trusteeship system of the United Nations (Chapters XI and XII of the Charter.)

21. Article 73 (c) of the U.N. Charter stipulates as an obligation of the members which have or assume responsibilities for the administration of territories whose people have not yet attained a full measure of self-government, the obligation “to further international peace and security,” and Article 76 (a) characterizes one of the objectives of the trusteeship system by the same formula. However, this is an obligation incumbent upon all members and not a specific element of the political system established for non-self-governing territories in general and trust territories in particular,

(ff) Universalism and regionalism.

In spite of their tendency towards universality, the Covenant of the League of Nations and the Charter of the United Nations both authorize the establishment of regional security organizations. However, they do not contain a definition of this concept. As a matter of fact, there are different views as to the meaning of the term "regional.” 1a According to one, a regional organization is an associa

tion of neighboring states, that is, of states which are united by the fact that their territories are contiguous. According to another, the geographical element is not essential. States may form a regional organization even if their territories are separated by the territories of states not belonging to the organization or by the ocean. Their unity is constituted by a common interest, e. g., by the fact that they have a common enemy. That their organization is “regional" means that it is not a universal but a partial association of states, comprising only several but not all (or not almost all) the states of the international community. An additional criterion may be that the realization of the purpose for which the organization is established is limited to an area precisely defined in the constituent treaty.”

It stands to reason that territorial contiguity in itself is not capable of constituting a political unity. If states A, B and C may form a regional organization even though the territory of A is contiguous only to that of B and not to that of C whose territory is contiguous only to that of B, then there is no reason to exclude state D whose territory is contiguous only to that of A or state E whose territory is contiguous only to that of C, and so forth. There is no answer to the question of where the territorial contiguity, which is to be considered as the basis of a "regional” organization, ends. There must be an additional factor constituting the unity of a regional organization, a common interest uniting the neighboring states, but such a common interest, as for instance defense against a potential aggressor, may unite states whose territories are far distant from one another. It may be only the territory of the potential aggressor which separates the states united by an international organization established for the purpose of collective defense. Such an organization is "regional" but not in the geographical sense of this term.3

There can be little doubt that a universal or quasi-universal organization is the ideal solution of the problem of international security. Regional security organizations are at best only partial solutions and to some extent they are even a danger to international security. For this reason the framers of the Covenant as well as of the Charter were not in favor of regional security organizations which were suspected of being the old alliances in the disguise of mutual assistance agreements. In order to differentiate alliances from regional security organizations, the doctrine has been expounded that the latter are by their very nature directed against an aggression which takes place within the organization whereas the former are directed against an aggression from the outside and hence may be misused for offensive purposes. There is, however, no sufficient reason to deny a treaty, concluded by some states and imposing upon the parties the obligation

to assist one another in case of an aggression on the part of a state not a contracting party, the character of a regional security agreement. On the contrary, only a regional

in the sense of a non-universalorganization can be directed against aggression on the part of a state not belonging to the organization; and even an agreement which restricts the obligation of the parties to mutual assistance in case of internal aggression may be misused for offensive purposes. A state, party to such an agreement, may very well be attacked on the part of other parties under the pretext of being guilty of an aggression. A defensive alliance is always a regional security organization, and even if restricted to the case of internal aggression, a regional security organization is a defensive alliance of the non-aggressors against the potential aggressor among them. It is true that an "alliance," in the specific sense of the term—that is, a regional defense organization directed against aggression from the outside arouses the suspicion of aggressive intentions and leads, therefore, to counter alliances and thus to a situation which is just the contrary of international security. However, it should not be ignored that the strongest motive of uniting several states in a regional organization is the common danger of aggression on the part of a third state and that the most important regional organizations are thus defensive “alliances” in the specific sense of the term. To refuse to call them "regional" is hardly more than a terminological paradox.

Regional security organizations outside or within a universal or quasi-universal security organization are justifiable in so far as the latter, for some reason, does not work satisfactorily and hence needs to be supplemented or strengthened by the former. If, or to the extent that, a universal or quasi-universal security organization does not fulfill its task to guarantee international peace, regional security organizations may be useful. In addition, there are some functions which regional organizations may perform without impairing the security to be guaranteed by the universal or quasi-universal organization. Among these functions are, first, the peaceful settlement of strictly local disputes, especially if the treaty constituting the universal organization does not establish a court with compulsory jurisdictions, and, secondly, collective self-defense. Regional agreements imposing upon the parties the obligation to assist one another in case of aggression until a competent agency of the universal organization takes action against the aggressor can hardly be excluded if the universal organization does not have its own armed force ready for immediate action at its disposal. Within the limits just mentioned, such regional agreements may even establish a central executive organ for the purpose of collective self-defense. However, enforcement meas

ures to be taken as sanctions which go beyond this limit should be reserved to the universal organization, which may-if appropriateuse the coercive machinery of regional organizations to execute sanctions against a violator of the constituent treaty. Such an action taken by a regional organization under the authority of the universal organization is to be considered as a function of the latter, and not as a regional action.

The most important preventive measure-disarmament-can be effected successfully only on a universal basis. Regional disarmament as a permanent political system is possible only within a partial area which is safe against aggression from the outside. Since there is no longer such an area, regional disarnament is hardly a practical consideration.'

NOTES

1. Article 21 of the Covenant of the League of Nations refers to “regional understandings.” It runs as follows: "Nothing in this Covenant shall be deemed to affect the validity of international engagements, such as treaties of arbitration or regional understandings like the Monroe doctrine, for securing the maintenance of peace.”

Chapter VIII (Articles 52-54) of the Charter of the United Nations deals with “regional arrangements.” It provides :

"Article 52. 1. Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations. 2. The Members of the United Nations entering into such arrangements or constituting such agencies shall make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council. 3. The Security Council shall encourage the development of pacific settlement of local disputes through such regional arrangements or by such regional agencies either on the initiative of the states concerned or by reference from the Security Council. 4. This Article in no way impairs the application of Articles 34 and 35.

Article 53. 1. The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council, with the exception of measures against any enemy state, as defined in paragraph 2 of this Article, provided for pursuant to Article 107 or in regional arrangements directed against renewal of aggressive policy on the part of any such state, until such time as the Organization may, on request of the Governments concerned, be charged with the responsibility for preventing further aggression by such a state. 2. The term enemy state as used in paragraph 1 of this Article applies to any state which during the Second World War has been an enemy of any signatory of the present Charter.

Article 54. The Security Council shall at all times be kept fully informed of activities undertaken or in contemplation under regional arrangements or by regional agencies for the maintenance of international peace and security.”

1a. Cf. pp. 229 ff.

2. Pierre Vellas, Le Régionalisme International et l'Organisation des Nations Unies (Paris, 1948), pp. 32 ff., 147, referring to declarations made by Latin-American delegations at the San Francisco Conference (U. N. C. I. O., Vol. XII, p. 792, 802), advocates the doctrine that a regional organization is the expression of sociological solidarity, the legal order constituting the organization being the effect of the social reality. If the solidarity is effective, the legal order is superfluous. If it does not exist, the legal order is ineffectual. It is true that there must be a common interest and, in this sense, a certain solidarity inducing states to enter an agreement establishing a legal order regulating the mutual behavior of the contracting state. However, the sociological doctrine overlooks the fact that the legal order may not only be the effect of a certain solidarity, but may, as a fact in the minds of the men concerned, in itself have the effect of strengthening the solidarity so that there is a correlation between solidarity as a social reality and legal order, which is itself a social reality.

3. Neither the Covenant nor the Charter restricts regional organizations to states whose territories are contiguous.

4. Cf. p. 39 ff.
5. Vellas, op. cit., p. 46.

6. Article 21 of the Covenant expressly mentions treaties of arbitration; and, according to Article 52, paragraph 2, of the Charter, regional arrangements shall provide for the pacific settlement of local disputes. Article 95 authorizes the members to entrust the solution of their differences to other tribunals than the International Court of Justice, which implies that regional agreements for arbitration are compatible with the Charter.

7. The question as to whether treaties for the implementation of the provisions of Article 51 concerning collective self-defense are to be considered as “regional arrangements" within the meaning of Chapter VIII of the Charter is answered in the negative as well as in the affirmative. The main arguments for a negative answer are that Article 51 is not inserted into Chapter VIII, and that enforcement actions in the exercise of self-defense are not mentioned in Article 53, paragraph 1, among the enforcement actions which may be taken under regional arrangements without the authorization of the Security Council. However, there can be no doubt at all that at the San Francisco Conference the right of collective self-defense, as stipulated in Article 51, was considered by many delegates, especially by the South American delegates, as a specific subject of regional arrangements. (Cf. the declaration of the representative of Colombia, U. N. C. I. O., Vol. XII, p. 680.)

Whether a treaty for the implementation of Article 51 is or is not a regional arrangement within the meaning of Chapter VIII of the Charter, it is certainly a regional agreement within the meaning of the definition of this concept presented above. Such a treaty may-in accordance with Article 51provide for mutual assistance not only in case of an aggression within the organization but also in case of an aggression from the outside. It may even provide for collective action against an aggressor which is not a member of the United Nations; for the wording of Article 51 does not restrict the right of individual and collective self-defense to the case of an armed attack on the part of a member state; and Article 53, paragraph 1 refers to enforcement actions "taken under regional arrangements or by regional agencies," that is, by regional organizations, against former enemy states, which may not be members of regional organizations and even not members of the United Nations. If a treaty concluded for the implementation of Article 51 of the Charter does

« ПредыдущаяПродолжить »