United Nations and the Law 101: Enforcement Mechanisms
The United Nations remains one of the most well-known pillars of international relations, dominating many conceptions of what exactly the international system consists of. Despite this, the exact concepts present within the United Nations legal framework can often appear nebulous and daunting, consisting of a plethora of interworking parts and countless moving actors. As a result, this 101 series therefore aims to simplify the concept of the United Nations and its connection to international law. It first begins with a chronological history of how international law, specifically within the context of the United Nations, was formed and eventually adopted by states in the system. The series also includes a brief explanation of the main lawmaking bodies of the United Nations, along with methods of how to interpret and put the law into practice. By analyzing enforcement mechanisms for states in the system, the 101 series ends with a case review of the most well-known cases within the United Nations canon and a hypothetical look into the future as to the relevancy of UN law. It is the aim of this series to provide the reader with a foundation from which many dimensions of international law can be better understood, along with a critical lens to analyze many facets of the international system within this context of the United Nations' deep connection to the law. United Nations and the Law 101 is therefore divided into six chapters: 1. United Nations and the Law 101: A Chronological History
2. United Nations and the Law 101: The Process of Lawmaking
3. United Nations and the Law 101: Interpreting The Law
4. United Nations and the Law 101: Enforcement Mechanisms
5. United Nations and the Law 101: Case Review
6. United Nations and the Law 101: Future Implications
The first decades of the UN saw enforcement mechanisms and compliance as a mere periphery on the larger scheme as compared to the more hectic world of law-making. Many scholars focused on the ways states interacted with one another within the General Assembly, creating coalitions and negotiating to achieve their goals. However, international development saw a great shift in how enforcement and compliance in the UN were conceptualized. In part, advancements in human rights compelled public sentiment to put pressure on states to take action and seriously adhere to the treaties and resolutions they had adopted (Schachter, 1994, p. 10). Other arenas such as growing instances of interstate violence and arms buildup brought enough pressure on international organizations such as the UN to go beyond the actions already taken. This chapter of the United Nations and the Law 101 series, therefore, aims to describe this shift in compliance perception in the UN, detailing various enforcement mechanisms commonly prescribed by its bodies and its implications on international relations as a whole.
Reporting and Supervision
The first aspect of enforcing compliance with a certain treaty is through reporting and supervision procedures. These are most common in organizations tasked with upholding human rights. Individual states are beholden to the bodies they are a part of through submitting periodic reports detailing efforts taken during that specific length of time, committee review, and in particular cases, responding to a subcommittee detailing noncompliance with the state’s actions in following a specific treaty (Schachter, 1994, p. 10). Additionally, individuals or states can submit complaints regarding the noncompliance of other member states, allowing the requisite committee to engage in fact-finding, come to a conclusion, and promulgate that result either public or to a higher body within the UN. An example of such a fact-finding committee investigating human rights violations is that of the Human Rights Council, who annually releases reports regarding cases numbering in the tens of thousands of “enforced or involuntary disappearances” (Annual Reports, n.d.). Otherwise, individual state rapporteurs investigate countries alleged of specific abuses and inquiries on issues such as torture or enforced disappearances (Manual of Operations, 2008).
Another method of enforcement, perhaps the most famous, is that which “facilitate” states into complying their obligations imposed by law (Schachter, 1994, p. 10). The Security Council, if it appropriately determines that a situation in a particular state is deteriorating, will formally authorize a recommendation by the Secretary-General and adopt a resolution, detailing the number of armed peacekeepers to be deployed and appointment of special representatives whom act as senior officials (Deploying Peacekeepers, n.d.). This is done through simple majority vote in the Security Council, with permanent members (the United Kingdom, France, United States, Russia, and China) holding the power to veto such resolutions. These “blue helmets” are perhaps among the most distinctive elements of the UN mission, comprised of military personnel from member states, who engage in tasks such as assisting governments in compliance with ceasefire agreements. Additionally, they may serve other tasks such as observing internal elections and ensuring the state complies to legal requirements behind free and fair elections (UN Observer Mission in El Salvador, n.d.).
Perhaps the most drastic and least-used measure in ensuring compliance, a law-breaking state may be expelled from the UN. Article 6 of the UN Charter states that only the General Assembly, with the recommendation of the Security Council, may expel states for persistent violations (Article 6, 2022). However, if the General Assembly decides such an action to be too drastic, it may instead impose lesser sanctions by suspending the privileges associated with membership: “A Member of the United Nations against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council” (Article 5, 2022). Though neither of these measures have been enforced in practice, the option still remains. Rather, the UN may instead reject a state’s credentials, as seen regarding South Africa’s long-standing policy of apartheid, where many bodies excluded the state from taking part while the policy was still in effect (Schachter, 1994, p. 11).
Although perhaps the hardest element to categorize, public opinion in the form of nongovernmental organizations are an emerging element in facilitating states to adhere to UN law. These nongovernmental organizations or 'NGOs' often carry out activities within states to further implement and refine international norms. Two such organizations are Human Rights Watch and Amnesty International. Along with the connective power of the Internet, communications between NGOs have allowed for greater opportunities to bring pressure on member states to comply with UN treaties (NGOs and the United Nations, 1999).
The dilemma of enforcing compliance with existing UN law strikes right at the heart of power distribution within the international system. Often, fact-finding committees and individual rapporteurs are composed of larger powers within the system, with the power and influence necessary to sway opinion. Therefore, this dynamic has led to a concern among smaller states that their voices appear drowned out by the opinion of the majority. Growing apathy in the UN system as a whole, along with diminished loyalty to institutionalism, have suggested that some states have become disillusioned with enforcement (Gleichert, 2020). To be certain, this dilemma still remains, with no concrete solution having been attained to combat the issue.
With an organization as large as the UN, it seems inevitable that some members may not fully comply with prescribed treaties and the law. Though there does exist a wealth of options in which UN bodies may enforce their own specific laws, ranging from supervisory committees to the deployment of armed peacekeepers, a growing rise of isolationism in the international system has put into question the efficacy and legitimacy of such methods. The following chapter in the United Nations and the Law 101 series will therefore provide a case review of enforcement in action, analyzing the effects and consequences of peacekeeper missions throughout UN history.
Annual Reports: Working Group on Enforced or Involuntary Disappearances. OHCHR. (n.d.). Retrieved from https://www.ohchr.org/en/special-procedures/wg-disappearances/annual-reports Gleichert, E. (2020). Global Apathy and the Need for a New, Cooperative International Refugee Response. Northwestern Journal of Law and Social Policy. https://doi.org/https://scholarlycommons.law.northwestern.edu/njlsp/vol16/iss1/5/
Manual of operations of the special procedures of the human rights council. OHCHR. (2008). Retrieved from https://www.ohchr.org/en/documents/procedural-documents/manual-operations-special-procedures-human-rights-council
NGOs and the United Nations. (1999). Global Policy Forum. Retrieved from https://archive.globalpolicy.org/component/content/article/176-general/31440-ngos-and-the-united-nations.html
Schachter, O. (1994). United Nations Law. The American Journal of International Law, 88(1), 1–23. https://doi.org/10.2307/2204020 United Nations. (2022). Article 5. United Nations. Retrieved from https://legal.un.org/repertory/art5.shtml
United Nations. (2022). Article 6. United Nations. Retrieved from https://legal.un.org/repertory/art6.shtml
United Nations. (n.d.). Deploying peacekeepers. United Nations Peacekeeping. Retrieved from https://peacekeeping.un.org/en/deploying-peacekeepers
United Nations. (n.d.). United Nations Observer Mission in El Salvador. United Nations Peacekeeping. Retrieved from https://peacekeeping.un.org/en/mission/past/onusalbackgr2.html
Cover Image: Associated Press (2017). This Feb. 22, 2017 photo shows a U.N. peacekeeper's blue helmet balanced on a weapon in Port-au-Prince, Haiti. [Photograph]. VOA. Retrieved from: https://www.voanews.com/a/un-peacekeeping-budget-cut-by-600-million-dollars/3923664.html Figure 1: UN Human Rights Council (2021). The Independent Fact-Finding Mission on #Libya says war crimes may have been committed in the country since 2016 in report presented in Geneva today. [Photograph]. UN Human Rights Council. Retrieved from: https://twitter.com/un_hrc/status/1444992370341289986 Figure 2: Cambridge University Press (1985). United Nations: Security Council Resolution Urging Sanctions Against South Africa. [Document Scan]. Cambridge University Press. Retrieved from: https://www.cambridge.org/core/journals/international-legal-materials/article/abs/united-nations-security-council-resolution-urging-sanctions-against-south-africa/7584C27105ED60570470B5004014EDE9 Figure 3: United Nations Peacekeeping (n.d.). UN helmets and flak jackets. [Photograph]. United Nations Peacekeeping. Retrieved from: https://peacekeeping.un.org/en/what-is-peacekeeping