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.
Legal Aspects of the United Nations Action in the Congo
The United Nations action in the Congo, instituted by the Security Council on July 14, 1960, has been described by the Secretary General as “the biggest single effort under United Nations colours organized and directed by the United Nations itself.” It was an emergency action, undertaken almost instantaneously and carried out in an atmosphere of crisis and political tension. This was not a setting propitious to juridical deliberation; yet it cannot be said that legal considerations were disregarded. At the very outset, the Secretary General drew attention to the basic considerations of law and principle that should govern United Nations operations. As the situation in the Congo grew more complicated and divergent views emerged as to the propriety of the United Nations action, Member Governments as well as the Secretary General sought guidance and support in the prescriptions of the Charter and the rules of law that have evolved through United Nations practice. Faced with the responsibility of interpreting a general mandate of the Security Council in circumstances that had not been envisaged, the Secretary General considered it essential to refer to legal precepts whenever they could furnish guidance; only in this way could he maintain the requisite impartiality and yet take action under his mandate that might be opposed by one or the other contending side. Thus, in regard to each of the several controversial issues that arose, the Secretary General presented the legal basis for his actions, not merely in terms of the broad principles of the Charter, but more specifically, when necessary, in terms of the applicable rules and precepts adopted by United Nations organs, whether expressly in their resolutions or impliedly in their practice. The function of law in United Nations diplomacy has rarely been more clearly demonstrated.