Questions Relating to the Competence of the Security Council
It has been said that international law is “more than any other law, a regulation of competencies.” 1 As such the question of competence has been a prominent one in any international organization. For example, more than one hundred questions were raised as to the competence of particular organs of the League of Nations during its life time,2 and it is not surprising that the United Nations has had to consider the same question on many occasions, especially in its early stage of existence, as it appears that it “is natural for institutions in their infancy to be faced with disputes in regard to their jurisdiction.”3 Indeed, the question of competence has been and is not only a major legal question,4 but also the most important question in the operations of the United Nations, in that all its actions emanate from either explicit or implicit recognition of its own competence. As early as 1950, a special committee of the American Society of International Law pointed out that “in many cases the Members concerned almost automatically challenged the competence of the United Nations in order to delay action or to channel the discussion away from the merits of the case. There are in consequence several hundreds of cases in which the competence of the Organization has been challenged.” 5 The prominence of questions relating to competence of the various organs of the United Nations and related agencies is also reflected in the advisory opinions given by the International Court of Justice. All but one 1 of the questions submitted to the Court for advisory opinion have touched upon the question of competence in one way or another.2
In Search of a Thread: The UN in the Congo Labyrinth
It is possible to distinguish roughly two periods in the history of the United Nations. During the first, which lasted until the middle nineteen fifties, the Western powers had a fairly secure majority in the General Assembly, and Cold War issues tended to dominate. The supreme test of that first phase was the Korean War. It showed both that the new International Organization refused to practice appeasement and that in a bipolar world whose main antagonists were engaged in an ideological struggle and endowed with nuclear weapons, UN intervention in the conflicts between the blocs would either expose the Organization to a demonstration of impotence or submit the world to the risks of escalation. A second phase began when membership of the UN increased, and the newly-independent nations became the biggest group within the Assembly. Now, as Dag Hammarskjöld put it in his report to the fifteenth General Assembly, the main task in the area of peace and security shifted to “preventive diplomacy”—rushing to the scene of fires which break out “outside the sphere of bloc differences” before the arrival of the major contenders. The biggest challenge has been the Congo crisis. It has tested all the assumptions which had been made—by scholars as well as by the late Secretary-General—about the role of the UN, its possibilities and its limits, and about the relations between its principal organs and its main groups of members.
Precedent of the Congo
IT is customary and respectable nowadays to speak well of the United Nations. The feeling of loyalty and affection for that organization often does not go very deep, for example in this country. Generalized statements on foreign policy by statesmen usually end up with a sort of doxology in praise of the United Nations, and journalists, at least, know that when that doxology starts it is as good a sign as any that the man is coming to the end of his speech. What goes on in the United Nations is not reported in full in the press. One reason is that a great deal of its proceedings is suffocatingly dull. But perhaps the real difficulty is that none of us really understands what the United Nations is as an organization. It is, in fact, almost impossible to define. It is easy to say what it is not. It is not a legislative assembly. It is not the nucleus of some new super-State or the embryo of any sort of world government. The weak countries have quite a different view of it from the strong, and the East has quite a different view of it from the West. Sometimes one thinks of it simply as a sort of large forum in which grievances can be aired and protests registered with a view to carrying out some future unilateral action. It is essentially limited both in its purpose and in its possibilities. But strange things have happened there without all the nations noticing what has happened. It is run now by a large, intensely professional, and very excellent Secretariat. It is controlled by a strange Swedish statesman. He is single-minded; he has a demonic ability to concentrate on any problem. He compels himself to objectivity as priests do to prayer, and he binds himself by simply two laws-the U.N. Charter and the law of possibility. Now, the Charter, of course, is hopelessly out of date. It is based on the idea that victorious Powers would continue to agree throughout the foreseeable future, and that the sort of world into which we emerged after the last war would continue to exist. But even under this Charter-strict, limiting, and unreal as it is-the Secretary-General and the Secretariat have developed a will and an intelligence of their own. They have built it up very carefully and intelligently. At no time, until the Congo crisis came, have they overstepped even the most trivial legal technicalities, and by never putting a foot wrong, by building up a reputation for real objectivity, and by tolerating the occasional extravagances of weak Powers and building on the platitudes of other statesmen from Powers like our own, they have begun to equal in the world a sort of international morality. 1 This lecture was delivered on 25 October I960. i8i