Proceedings
INTERNATIONAL
CONFERENCE
ON PEACE AND CONFLICT
RESOLUTION (ICPCR) 2022
Theme
International Peace and Security: The Achievement of
the United Nations and the Way Forward
22 October 2022 (Saturday)
Editors
MOHAMMAD NAQIB EISHAN JAN
ASHGAR ALI ALI MOHAMED
MUHAMAD HASSAN AHMAD
Proceedings
INTERNATIONAL
CONFERENCE
ON PEACE AND CONFLICT
RESOLUTION (ICPCR) 2022
Proceedings
INTERNATIONAL
CONFERENCE
ON PEACE AND CONFLICT
RESOLUTION (ICPCR) 2022
Theme
International Peace and Security: The Achievement of
the United Nations and the Way Forward
22 October 2022 (Saturday)
Editors
MOHAMMAD NAQIB EISHAN JAN
ASHGAR ALI ALI MOHAMED
MUHAMAD HASSAN AHMAD
IIUM
Press
Gombak • 2022
First Print, 2022
©IIUM Press, IIUM
IIUM Press is a member of the Majlis Penerbitan Ilmiah Malaysia - MAPIM
(Malaysian Scholarly Publishing Council)
All rights reserved. No Part of this publication may be reproduced, stored in retrieval system,
or transmitted in any form or by any means, electronic, mechanical, photocopying, recording,
or otherwise, without any prior written permission of the publisher.
Perpustakaan Negara Malaysia Cataloguing-in-Publication Data
International Conference on Peace and Conflict Resolution (2022: Gombak, Selangor)
Proceedings INTERNATIONAL CONFERENCE ON PEACE AND CONFLICT
RESOLUTION (ICPCR) 2022: International Peace and Security: The Achievement of the
United Nations and the Way Forward.
e-ISBN 978-967-491-267-3
1. Peace-building--Congresses
2. Conflict management--Congresses
I. Jan, Mohammad Naqib Eishan, editor
II. Mohamed, Ashgar Ali Ali, editor
III. Muhamad Hassan Ahmad, editor
IV. Title
V. Title: International Peace and Security: The Achievement of the United Nations and the
Way Forward
327.172
JZ5538
Published in Malaysia by
IIUM Press
International Islamic University Malaysia
P.O. Box 10, 50728 Kuala Lumpur, Malaysia
CONTENTS
EDITORS’ NOTE.......................................................................................................... ix
ORGANISING COMMITTEE ....................................................................................... xi
PROGRAM AND PARALLEL SESSIONS .................................................................. xiii
WELCOMING REMARKS ...........................................................................................xxi
Prof. Dr. Farid Sufian Shuaib (Dean, Ahmad Ibrahim Kulliyyah of Laws, nternational
Islamic University Malaysia
WELCOMING REMARKS ...........................................................................................xxi
Prof. Dr. Mohammad Naqib Eishan Jan (Director, International Conference on Peace
and Conflict Resolution (ICPCR) 2022)
1. THE ROLE OF THE UNITED NATIONS IN MAINTAINING GLOBAL PEACE AND
SECURITY .................................................................................................................... 1
Mohammad Naqib Eishan Jan
2. RIGHT OF SELF-DEFENCE UNDER INTERNATIONAL LAW: ITS USES AND
ABUSES IN PRACTICE............................................................................................... 9
Tan Sri Dato’ Seri Dr. Syed Hamid Syed Jaafar Albar
3. ENGRAVING NATURAL JUSTICE IN THE DECISION MAKING PROCESS OF THE
SECURITY COUNCIL ............................................................................................... 17
Muhamad Hassan Ahmad, Ashgar Ali Ali Mohamed, Ahmad Masum, Seeni Mohamed
Nafees, Mohammad Naqib Eishan Jan
4. AFGHANISTAN IN THE SPOTLIGHT: ‘WAR’ OR INTERACTION WITH
‘TERRORISM’? .......................................................................................................... 35
Mohammad Naqib Eishan Jan, Ashgar Ali Ali Mohamed
5. GLOBAL PEACE AND SECURITY: ISLAMIC PERSPECTIVES.................................. 41
Tayyaba Razzaq
6. ISLAM AS A RELIGION OF INTERNATIONAL PEACE AND SECURITY: AN
ANALYTICAL STUDY ............................................................................................. 49
Fariha Fatima
7. PROMOTING PEACE JOURNALISM DURING CONFLICT SITUATIONS:
CHALLENGES AND PROSPECTS........................................................................... 65
Ahmad Masum, Seeni Mohamed Nafees, Muhamad Hassan Ahmad
8. THE ROLE OF UNITED NATIONS IN ESTABLISHING PEACE THROUGH
EDUCATION: ACHIEVEMENTS AND THE WAY FORWARD ........................... 77
Muhammad Faheem Channa
9. CONVENTION ON THE PREVENTION AND PUNISHMENT OF CRIMES AGAINST
HUMANITY: AN EVALUATION OF THE DRAFT ARTICLES OF THE
INTERNATIONAL LAW COMMISSION ................................................................ 87
Nabila Akter
Contents
10. THE CRUX OF ECONOMIC TERRORISM: A PARADIGM SHIFT OF THE TERROR
MINDSET ..................................................................................................................107
Irfan Ali Thanvi
11. CAN CONFLICTS BE SOLVED WITHOUT RELIGION? LIMITATION OF
SECULAR PATHWAYS OF CONFLICT RESOLUTION IN THE MIDDLE EAST
....................................................................................................................................123
Shameer Modongal
12. REGULATING INTERNATIONAL ARMS TRADE: THE APERTURE BETWEEN
LAW AND PRACTICE.............................................................................................133
Basoz Mohammed Ahmed
13. ARBITRATION: THE BEST-SUITED PEACEFUL RESOLUTION MEACHANISM
FOR TRANSBOUNDARY DISPUTES....................................................................163
Seeni Mohamed Nafees, Ahmad Masum, Muhamad Hassan Ahmad
14. PEACEFUL RESOLUTION OF THE INTERNATIONAL DISPUTE IS THE MYTH
AND MIRAGE: CRITICAL STUDY........................................................................173
Neelam Seam
15. SOUTH CHINA SEA DISPUTE: PEACE INITIATIVES..............................................185
Medhavi Judevi
16. THE IMPACT OF THE ROHINGYA REFUGEES ON BANGLADESH.....................195
Md. Zahidul Islam
17. REFUGEE, MIGRANT AND STATELESS PERSON IN BANGLADESH: PROBLEMS
AND LEGAL PERSPECTIVE ..................................................................................205
Kaniz Tania Bint-E-Basar, Kazi Sonia Tasnim
18. PROTECTION OF THE RIGHTS OF MIGRANT WORKERS UNDER BANGLADESH
EMPLOYMENT LAWS............................................................................................215
Mohammad Dulal Miah, Muhamad Hassan Ahmad
19. THE ROLE OF ISLAMIC GOVERNANCE IN PROMOTING NATIONAL PEACE
AND SECURITY: THE CASE OF MALAYSIA (2010-2020) ................................231
Md. Khaled Hosen, Syaza Farhana Mohamad Shukri
20. FEASIBILITY OF A MULTIMODAL TRANSPORT REGIME FOR MALAYSIA....247
Prem Kaur A/P Bahal Singh
21. IUU FISHING AS A NATIONAL SECURITY THREAT: A COMPARATIVE STUDY
OF THE MALAYSIAN AND THE PHILIPPINES LEGAL FRAMEWORKS.......263
Farahdilah Ghazali, Nur Aizat Ashari
22. THE DOCTRINE OF DOMICILE IN CONFLICT OF LAWS: A CRITICAL
ANALYSIS ................................................................................................................275
Moin Uddin
vi
Contents
23. PROTECTION AND ADOPTION OF ORPHAN UNDER THAI CHILD PROTECTION
ACT 2003: WITH REFERENCE TO THE MALAY MUSLIMS IN THE DEEP
SOUTH OF THAILAND .......................................................................................... 289
Sulaiman Dorloh, Seeni Mohamed Nafees, Yusuf Sani Abubakar
24. A CRITICISM OF SECTION 4 OF THE MUSLIM FAMILY LAWS ORDINANCE
1961 AND ENFORCEMENT OF WILL/WASIYAT: BANGLADESH
PERSPECTIVES ....................................................................................................... 301
Md. Mostofa, Kazi Sonia Tasnim
25. THE CASTRATION PUNISHMENT FROM HUMAN RIGHTS AND ISLAMIC LAW
PERSPECTIVE.......................................................................................................... 311
Ahmad Sabirin, Febrian Duta Adhiyaksa, Raafid Haidar Herfian
26. ROLE OF THE UNITED NATIONS IN PROMOTING REGIONAL PEACE AND
SECURITY FOR THE ROHINGYA MUSLIM MINORITY: A CRITICAL
ANALYSIS................................................................................................................ 327
Mohammad Shahadat Hossain
27. LIVING IN LIMBO: REFUGEES RIGHTS IN MALAYSIA........................................ 343
Syed Ahmed Khabir Abdul Rahman
vii
EDITORS’ NOTE
This proceedings contain papers submitted and presented during the International Conference
on Peace & Conflict Resolution (ICPCR) 2022 organised by Ahmad Ibrahim Kulliyyah of
Laws (AIKOL), International Islamic University Malaysia (IIUM) and co-organised by IIUM
Press on 22 October 2022.
The papers were reviewed by a panel of reviewers appointed by the organisers.
Written comments (where applicable) were provided to the authors but papers contained
herein in terms of the original ideas, clarity, accuracy, etc and responsibility they entail
remain with the respective authors.
ORGANISING COMMITTEE
Patron
Prof. Emeritus Tan Sri Dato’ Dzulkifli Abdul Razak
Rector, IIUM
Advisor
Prof. Dr. Farid Sufian Bin Shuaib
Dean, AIKOL
Co-Organiser
Assoc. Prof. Dr. Roosfa Hashim
Director, IIUM Press
Director
Prof. Dr. Mohammad Naqib Eishan Jan
Deputy Directors
Assoc. Prof. Dr. Mohammad Yazid Zul Kepli
Asst. Prof. Dr. Muhamad Hassan Ahmad
Asst. Prof. Dr. Md Zahidul Islam
Secretarial Committee
Mdm. Ozaliyati Omar
Mdm. Maznah Abdul Aziz
Mdm. Norbaini Alias
Mdm. Zanariah Osman
Academic & Publication Committee
Assoc. Prof. Dr. Roosfa Hashim
Prof. Dr. Mohammad Naqib Eishan Jan
Prof. Dato’ Sri Dr. Ashgar Ali Ali Mohamed
Asst. Prof. Dr. Muhamad Hassan Ahmad
Asst. Prof. Dr. Md Zahidul Islam
Technical & Event Management
Assoc. Prof. Dr. Mohammad Yazid Zul Kepli
Mr. Mohd. Khairol Fahmi Bin Abdul Ghani
Mr. Zuraidi Bin Afandi
Promotion, Publicity & Multimedia
Asst. Prof. Dr. Sonny Zulhuda
Mdm. Siti Aishah Aslah
PROGRAM AND PARALLEL SESSIONS
INTERNATIONAL CONFERENCE ON PEACE & CONFLICT RESOLUTION
(ICPCR) 2022
22 October 2022 (Saturday)
PROGRAM & LINKS
Join Zoom Meeting
https://iium.zoom.us/j/94921763283?pwd=L2xVQU55NCtSYW94L2NoVGl5REJFQT09
Meeting ID: 949 2176 3283
Passcode: 088723
08:45 Link Open
09:00-09:10 Welcoming Speech: Prof. Dr. Farid Sufian Shuaib
Dean, Ahmad Ibrahim Kulliyyah of Laws (AIKOL)
09:10-09:30 Opening Speech: Prof. Emeritus Tan Sri Dato’ Dzulkifli Abdul Razak
Rector, International Islamic University Malaysia (IIUM)
09:30-09:50 Keynote Speech 1: Prof. Dato’ Dr. Rahmat Mohamad
Chairman, The Human Rights Commission of Malaysia (SUHAKAM)
09:50-10:10 Keynote Speech 2: Dato’ Dr. Shazelina Zainul Abidin
Director General, The Institute of Diplomacy and Foreign Relations (IDFR)
10:10-10:30
Keynote Speech 3: Prof. Dr. Gary Lilienthal
10:30-10:50 Tashkent State University of Law
Keynote Speech 4: Prof. Dr. Emilia Justyna Powell
10:50-11:10 University of Notre Dame
11:10-12:00 Keynote Speech 5: Ms. Kaylee Koehlinger
12:00-02:00 Heavenly Culture, World Peace, Restoration of Light (HWPL)
02:00-04:30
04:30-05:00 Question & Answer Session
Lunch & Zuhr Prayer
05:00 Parallel Sessions
Closing Speech: Assoc. Prof. Dr. Roosfa Hashim
Director, IIUM Press
Disperse
Program and Parallel Sessions
PARALLEL SESSIONS
PANEL 1
Moderator: Prof. Dr. Mohammad Naqib Eishan Jan (AIKOL, IIUM)
Google meet Link: https://meet.google.com/ifv-dtrx-vgh
Dial: (US) +1 262-297-6508
PIN: 551 697 089#
No. Time Title Presenters
Tan Sri Dato’ Seri Dr. Syed Hamid Syed
1. 02:00-02:20 RIGHT OF SELF-DEFENCE
UNDER INTERNATIONAL Jaafar Albar
LAW: ITS USES AND ABUSES Adjunct Professor, Faculty of Law,
IN PRACTICE Universiti Kebangsaan Malaysia.
2. 02:20-02:40 ENGRAVING NATURAL Dr. Muhamad Hassan Ahmad
JUSTICE IN THE DECISION Ahmad Ibrahim Kulliyyah of Laws,
MAKING PROCESS OF THE International Islamic University Malaysia.
SECURITY COUNCIL Email: [email protected]
Prof. Dr. Ashgar Ali Ali Mohamed
Ahmad Ibrahim Kulliyyah of Laws,
International Islamic University Malaysia.
Email: [email protected]
Dr. Ahmad Masum
Faculty of Shariah & Law, Sultan Sharif
Ali Islamic University, Brunei.
Email: [email protected]
Dr. Seeni Mohamed Nafees
Faculty of Shariah & Law, Sultan Sharif
Ali Islamic University, Brunei.
Email: [email protected]
Prof. Dr. Mohammad Naqib Eishan Jan
Ahmad Ibrahim Kulliyyah of Laws,
International Islamic University Malaysia.
Email: [email protected]
3. 02:40-03:00 GLOBAL PEACE AND Dr. Tayyaba Razzaq
SECURITY: ISLAMIC Sheikh Zayed Islamic Centre, University
PERSPECTIVES of the Punjab Lahore Pakistan.
Email: [email protected]
4. 03:00-03:20 ISLAM AS A RELIGION OF Fariha Fatima
INTERNATIONAL PEACE Department of Islamic Studies, Riphah
AND SECURITY: AN International University, Pakistan.
ANALYTICAL STUDY Email: [email protected]
xiv
Program and Parallel Sessions
5. 03:20-03:40 THE ROLE OF THE UNITED Prof. Dr. Mohammad Naqib Eishan Jan
NATIONS IN MAINTAINING Ahmad Ibrahim Kulliyyah of Laws,
GLOBAL PEACE AND International Islamic University Malaysia.
SECURITY Email: [email protected]
6. 03:40-04:00 AFGHANISTAN IN THE Prof. Dr. Mohammad Naqib Eishan Jan
SPOTLIGHT: ‘WAR’ OR Ahmad Ibrahim Kulliyyah of Laws,
International Islamic University Malaysia.
INTERACTION WITH Email: [email protected]
‘TERRORISM’?
Prof. Dr. Ashgar Ali Ali Mohamed
Ahmad Ibrahim Kulliyyah of Laws,
International Islamic University Malaysia.
Email: [email protected]
04:00-04:30 Question & Answer Session
PANEL 2
Moderator: Senior Asst. Prof. Dr. Ahmad Masum (UNISSA)
Google meet Link: https://meet.google.com/umm-rqqd-bpe
No. Time Title Presenters
Muhammad Faheem Channa
1. 02:00-02:20 THE ROLE OF UNITED University of Sindh, Pakistan.
Email: [email protected]
NATIONS IN ESTABLISHING
PEACE THROUGH
EDUCATION:
ACHIEVEMENTS AND THE
WAY FORWARD
2. 02:20-02:40 CONVENTION ON THE Nabila Akter
PREVENTION AND Organising Coordinator, HomeNet South
PUNISHMENT OF CRIMES Asia Trust, India.
AGAINST HUMANITY: AN Email: [email protected]
EVALUATION OF THE DRAFT
ARTICLES
OF THE INTERNATIONAL
LAW COMMISSION
3. 02:40-03:00 THE CRUX OF ECONOMIC Irfan Ali Thanvi
TERRORISM: A PARADIGM Independent Legal Counsel, Singapore
SHIFT OF THE TERROR Email: [email protected]
MINDSET
4. 03:00-03:20 CAN CONFLICTS BE SOLVED Dr. Shameer Modongal
WITHOUT RELIGION? West Asian Studies, University of Kerala
LIMITATION OF SECULAR Email:
PATHWAYS OF CONFLICT [email protected]
RESOLUTION IN THE
MIDDLE EAST
xv
Program and Parallel Sessions
5. 03:20-03:40 PROMOTING PEACE Dr. Ahmad Masum
JOURNALISM DURING Faculty of Shariah & Law, Sultan Sharif
CONFLICT SITUATIONS: Ali Islamic University, Brunei.
CHALLENGES AND Email: [email protected]
PROSPECTS
Dr. Seeni Mohamed Nafees
Faculty of Shariah & Law, Sultan Sharif
Ali Islamic University, Brunei.
Email: [email protected]
Dr. Muhamad Hassan Ahmad
Ahmad Ibrahim Kulliyyah of Laws,
International Islamic University Malaysia.
Email: [email protected]
6. 03:40-04:00 - -
04:00-04:30 Question & Answer Session
PANEL 3
Moderator: Asst. Prof. Dr. Seeni Mohamed Nafees (UNISSA)
Google meet Link: https://meet.google.com/eui-fnba-yag
No. Time Title Presenters
Dr. Neelam Seam
1. 02:00-02:20 PEACEFUL RESOLUTION OF Department of Law, Gitarattan
International Business School, India.
THE INTERNATIONAL Email: [email protected]
DISPUTE IS THE MYTH AND
MIRAGE: CRITICAL STUDY
2. 02:20-02:40 INTERNATIONAL BUSINESS Dr. Sodiq Omoola
IN CONFLICT ZONES: THE Ahmad Ibrahim Kulliyyah of Laws,
CASE OF MTN International Islamic University Malaysia.
Email: [email protected]
3. 02:40-03:00 REGULATING Basoz Mohammed Ahmed
INTERNATIONAL ARMS Master of Comparative Laws Candidate,
TRADE: THE APERTURE Ahmad Ibrahim Kulliyyah of Laws,
BETWEEN LAW AND International Islamic University Malaysia.
PRACTICE Email: [email protected]
4. 03:00-03:20 SOUTH CHINA SEA DISPUTE: Medhavi Judevi
PEACE INITIATIVES LLB Student, Manipal University Jaipur,
India.
Email: [email protected]
5. 03:20-03:40 ARBITRATION: THE BEST- Dr. Seeni Mohamed Nafees
SUITED PEACEFUL Faculty of Shariah & Law, Sultan Sharif
RESOLUTION MEACHANISM Ali Islamic University, Brunei.
FOR TRANSBOUNDARY Email: [email protected]
DISPUTES
xvi
Program and Parallel Sessions
Dr. Ahmad Masum
Faculty of Shariah & Law, Sultan Sharif
Ali Islamic University, Brunei.
Email: [email protected]
Dr. Muhamad Hassan Ahmad
Ahmad Ibrahim Kulliyyah of Laws,
International Islamic University Malaysia.
Email: [email protected]
6. 03:40-04:00 - -
04:00-04:30 Question & Answer Session
PANEL 4
Moderator: Assoc. Prof. Dr. Mohd Yazid Zul Kepli (AIKOL, IIUM)
Join Zoom Meeting
https://us02web.zoom.us/j/86768544869?pwd=NzR5ckoxalBhOUd5R0pISW45b2JKdz09
Meeting ID: 867 6854 4869
Passcode: 439172
No. Time Title Presenters
Md. Khaled Hosen
1. 02:00-02:20 THE ROLE OF ISLAMIC PhD Candidate, Department of Political
Science, Abdulhamid Abusulayman
GOVERNANCE IN Kulliyyah of Islamic Revealed
Knowledge and Human Sciences,
PROMOTING NATIONAL International Islamic University
Malaysia.
PEACE AND SECURITY: THE Scholar, International Institute of Islamic
Thought (IIIT), VA, US.
CASE OF MALAYSIA (2010- Email: [email protected]
2020)
Dr. Syaza Farhana Mohamad Shukri
Department of Political Science,
Abdulhamid Abusulayman Kulliyyah of
Islamic Revealed Knowledge and Human
Sciences, International Islamic University
Malaysia.
Non-resident Research Fellow, European
Centre for Populism Studies, Belgium
Email: [email protected]
2. 02:20-02:40 FEASIBILITY OF A Prem Kaur A/P Bahal Singh
MULTIMODAL TRANSPORT Ph D Candidate, Ahmad Ibrahim
REGIME FOR MALAYSIA Kulliyyah of Laws, International Islamic
University Malaysia.
Email: [email protected]
xvii
Program and Parallel Sessions
3. 02:40-03:00 IUU FISHING AS A Farahdilah Ghazali
NATIONAL SECURITY Faculty of Fisheries and Food Science,
THREAT: A COMPARATIVE Universiti Malaysia Terengganu,
STUDY OF THE MALAYSIAN Malaysia.
AND THE PHILIPPINES Email: [email protected]
LEGAL FRAMEWORKS
Nur Aizat Ashari
Criminal Investigation Department,
Terengganu Police Headquarters,
Malaysia.
Email: [email protected]
4. 03:00-03:20 THE DOCTRINE OF Moin Uddin
DOMICILE IN CONFLICT OF PhD Candidate, Faculty of Law,
LAWS: A CRITICAL University of Malaya.
ANALYSIS Email: [email protected]
5. 03:20-03:40 PROTECTION AND Dr. Sulaiman Dorloh
ADOPTION OF ORPHAN Faculty of Shariah & Law, Sultan Sharif
UNDER THAI CHILD Ali Islamic University, Brunei.
PROTECTION ACT 2003: WITH E-mail: [email protected]
REFERENCE TO THE MALAY
MUSLIMS IN THE DEEP Dr. Seeni Mohamed Nafees
SOUTH OF THAILAND Faculty of Shariah & Law, Sultan Sharif
Ali Islamic University, Brunei.
Email: [email protected]
Yusuf Sani Abubakar
Faculty of Shariah & Law, Sultan Sharif
Ali Islamic University, Brunei.
Email: [email protected]
6. 03:40-04:00 A CRITICISM OF SECTION 4 Md. Mostofa
OF THE MUSLIM FAMILY Department of Law, Bangladesh
LAWS ORDINANCE 1961 AND University.
ENFORCEMENT OF Email: [email protected]
WILL/WASIYAT:
BANGLADESH Kazi Sonia Tasnim
PERSPECTIVES Department of Law, Bangladesh
University.
Email: [email protected]
04:00-04:30 Question & Answer Session
xviii
Program and Parallel Sessions
PANEL 5
Moderator: Asst. Prof. Dr. Md. Zahidul Islam (AIKOL, IIUM)
Google meet Link: https://meet.google.com/xsr-zcdm-ahf
Dial: (US) +1 413-370-4249
PIN: 265 013 387#
No. Time Title Presenters
Mohammad Shahadat Hossain
1. 02:00-02:20 ROLE OF THE UNITED Assistant Professor, Faculty of Law,
Bangladesh Islami University, Dhaka,
NATIONS IN PROMOTING Bangladesh.
Email: [email protected]
REGIONAL PEACE AND
SECURITY FOR THE
ROHINGYA MUSLIM
MINORITY: A CRITICAL
ANALYSIS
2. 02:20-02:40 REFUGEE, MIGRANT AND Kaniz Tania Bint-E-Basar
STATELESS PERSON IN Department of Law, Bangladesh
BANGLADESH: PROBLEMS University.
AND LEGAL PERSPECTIVE Email: [email protected]
Kazi Sonia Tasnim
Department of Law, Bangladesh
University.
Email: [email protected]
3. 02:40-03:00 LIVING IN LIMBO: REFUGEES Syed Ahmed Khabir Abdul Rahman
RIGHTS IN MALAYSIA Advocate & Solicitor
Email: [email protected]
4. 03:00-03:20 PROTECTION OF THE RIGHTS Mohammad Dulal Miah
OF MIGRANT WORKERS Ph D Candidate, Ahmad Ibrahim
UNDER BANGLADESH Kulliyyah of Laws, International Islamic
EMPLOYMENT LAWS University Malaysia
Email: [email protected]
Dr. Muhamad Hassan Ahmad
Ahmad Ibrahim Kulliyyah of Laws,
International Islamic University
Malaysia.
Email: [email protected]
5. 03:20-03:40 THE CASTRATION Ahmad Sabirin
PUNISHMENT FROM HUMAN Undergraduate Law Student,
RIGHTS AND ISLAMIC LAW Faculty of Law, Trisakti University,
PERSPECTIVE Indonesia.
E-mail: [email protected]
xix
Program and Parallel Sessions
6. 03:40-04:00 THE IMPACT OF THE Febrian Duta Adhiyaksa
ROHINGYA REFUGEES ON Undergraduate Law Student,
BANGLADESH Faculty of Law, Trisakti University,
Indonesia.
04:00-04:30 Question & Answer Session Email: [email protected]
Raafid Haidar Herfian
Undergraduate Law Student,
Faculty of Law, Trisakti University,
Indonesia.
Email: [email protected]
Dr. Md. Zahidul Islam
Ahmad Ibrahim Kulliyyah of Laws,
International Islamic University
Malaysia.
Email: [email protected]
CLOSING SPEECH
Assoc. Prof. Dr. Roosfa Hashim
Director, IIUM Press
Join Zoom Meeting
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Meeting ID: 920 6090 9892
Passcode: 005800
xx
WELCOMING REMARKS
It is by the mercy of Allah (SWT) that we are able to have today the virtual International
Conference on Peace and Conflict Resolution (ICPCR) 2022. I would like to welcome the
distinguished speakers, paper presenters and the respected participants to this International
Conference which is jointly organized by Ahmad Ibrahim Kulliyyah of Laws (AIKOL),
International Islamic University Malaysia (IIUM), and the IIUM Press.
The objective of this conference is to contribute to the discourse of world peace and
effective conflict resolutions. Looking at the situation around the world, it is certainly a
challenge for all of us to maintain the peace and security. Hopefully with the meeting of
minds of distinguished scholars in today’s conference, we could contribute in at least some
small measure, ideas for means and methods of resolving disputes towards peace and security
to be shared by all.
I would like to note that it is timely for us to have the conference today considering
the United Nations (UN) was established on 24th October 1945. It is a vital question for the
distinguished speakers and participants to deliberate on the achievement of UN and its
shortcomings in its role of maintaining international peace and security.
Certainly, congratulations are in order for the organising committee led by Prof Dr
Mohammad Naqib Eishan Jan for their dedication and tireless efforts to the fruition of this
conference. Secondly, our heartfelt gratitude to our always presence co-organiser from IIUM
Press led by its Director, Assoc Prof Dr Roosfa Hashim. Without their works and supports we
could not have seen this conference. Thanks also to the University, in particular our Rector,
Emeritus Professor Tan Sri Dzulkifli Abdul Razak, for his continuous support he gives to our
programmes and activities.
Towards celebrating IIUM and AIKOL 40th anniversary in 2023, we certainly need to
take stock of our contribution to international peace and security. In small ways, through our
harmonised curriculum and our alumni around the world, we certainly hope we have done our
share. Nevertheless, hopefully this conference would ensure that all of us could contribute
more to build a better world for us and for the generations to come.
May Allah guide and bless our efforts.
FARID SUFIAN SHUAIB, PROF DR
Dean
Ahmad Ibrahim Kulliyyah of Laws
International Islamic University Malaysia
WELCOMING REMARKS
First and foremost, all praises are due to Allah (s.w.t.), for with His bountiful grace and
mercy, we are able to gather here today for the timely International Conference on Peace and
Conflict Resolution (ICPCR) 2022 promoting inter alia, world peace and effective conflict
resolutions. On behalf of the Conference Organising Committee, I would like to warmly
welcome the distinguished speakers, paper presenters and the respected participants to this
International Conference which is jointly organised by Ahmad Ibrahim Kalliyyah of Laws
(AIKOL), International Islamic University Malaysia (IIUM), and the IIUM Press. We are
delighted to have you at the International Islamic University Malaysia, although not physical
but via online platforms, to share your experience and to contribute on the theme of this
conference.
The main purpose of this conference is to highlight the challenges of international
peace and security that may directly or indirectly affect the national security of any country,
whether social, economic, etc., and explore viable options and methods to prevent the
conflicts from developing into destructive wars. The conference would also suggest effective
ways to resolve disputes amicably which undoubtedly is vital for global peace and security.
The ICPCR is a timely conference, coming just two days before the anniversary of the
United Nations (UN). As you are all aware, the UN was officially established on 24 October
1945, following the end of the Second World War and the entry into force of its founding
treaty, the Charter. Since then, the event is celebrated annually around the world to mark the
anniversary of the founding of the UN. The question often raised by many is what has the UN
done to effectively maintain international peace and security, its shortcomings, if any, and the
way forward for its future. These are some of the vital matters that would be deliberated by
the presenters at this conference.
As it is commonly known, the foremost reason for the establishment of the UN was to
save future generations from the scourge of war. Unfortunately, however the war is still
persisting, although not on a wider scale like the first and second world wars, and this is
mainly because countries in conflict often choose the use of force instead of the amicable or
peaceful settlement promoted by the UN Charter. The Russian-Ukraine war has raised the
fear of World War III, a war if breaks out, God forbid, would destroy at a rapid scale the
human civilisation. This war would witness the use of the highly destructive nuclear weapons
by the major superpowers in armed conflict, something that the world had seen although on a
lower scale in 1945 with the American atomic bombings of Hiroshima and Nagasaki.
What can be done to prevent such highly destructive international wars is a question
that arises in the mind of every peace-loving and concerned person, including academics, and
this will be raised and discussed by the distinguished presenters at this conference. The
international peace and security are threatened not only by inter-state wars, but also often by
intra-state armed conflicts, which cause insecurity, violate human rights, and create refugees
and internally displaced people. However, civil wars are not prohibited and there is no
specific mechanism in the international legal system that requires parties to resolve their
internal disputes through peaceful means. This is an issue that will also be raised, discussed,
and analysed in this conference and a possible solution will be presented.
Further, the Conference will also highlight the problem of ‘terrorism’, which is
another major challenge to world peace and security. This is especially so, when the so-called
Welcoming Remarks
war against terrorism has failed miserably, as we have seen in the situation in certain parts of
the world including in my homeland, Afghanistan. Today, about forty million Afghans live
under the fear of terrorist attacks, and the international community, including the UN, has
failed to effectively address this situation.
In short, this international conference is crucial to create awareness of the importance
of peace and security across the globe besides, offering an opportunity to the participants to
enhance the understanding of the varying applications of effective peaceful dispute resolution
and their methodologies within the diverse communities across the world. It is reiterated that
by compromising peace and security, the world would be in turmoil, causing enormous
human sufferings not only in the conflict zones but also beyond. Hence, it is hoped that this
conference would be able to propose viable solutions that could guide the policy makers at
both national and international levels regarding prevention of war, suppression of
international crimes, maintenance of international peace and security and upholding
international justice and human rights.
Before I conclude, I would like to extent my heartfelt appreciation to my colleagues,
the committee members of this conference, for their tireless efforts, hard work and dedication
in ensuing the smooth progress of this conference. Only Allah in His limitless Grace and
Magnificence can truly recompense their efforts. Further, I would like to thank the Ahmad
Ibrahim Kulliyyah of Laws for the support, and to the IIUM Press, for co-organising this
much awaited conference. Finally, I wish the keynote speakers, presenters, and respected
participants of this virtual conference an informative, enjoyable, and fruitful conference with
an assurance from us, the organising committee, that we will spare no effort to help the
conference achieve its desired goals. May Allah Almighty guide us all and bless our efforts.
MOHAMMAD NAQIB EISHAN JAN, PROF. DR.
Director
International Conference on Peace and Conflict Resolution (ICPCR) 2022
Ahmad Ibrahim Kulliyyah of Laws
International Islamic University Malaysia
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1. THE ROLE OF THE UNITED NATIONS IN
MAINTAINING GLOBAL PEACE AND
SECURITY
Mohammad Naqib Eishan Jan
Professor, Ahmad Ibrahim Kulliyyah of Laws,
International Islamic University Malaysia
Email: [email protected]
ABSTRACT
The current war between Russia and Ukraine, the endless conflict between
Palestine and Israel, the violent and chaotic situations in Afghanistan, Syria,
Yemen, etc., raise questions about the role of the United Nations, especially some
of its main organs, the Security Council, the General Assembly, and the good
office of the Secretary General, in relation to maintaining international peace and
security. In this paper, attempt has been made to evaluate whether the United
Nations, through its relevant bodies, has played an effective role in achieving its
goals, which include inter alia maintenance of global peace and security.
Considering the level of violence in the world, the threat of weapons of mass
destruction, armed conflicts, aggressive and massive violation of human rights,
one wonders if the United Nations has played its role effectively, and if it has, is
there any evidence to prove it? And if it has not done so, where the problem lies
and what should be done to improve the situation?
Keywords: United Nations, Security Council, General Assembly, world peace
and security.
I. INTRODUCTION
Maintaining international peace and security is the primary goal of the United Nations.
Achieving this vital goal requires the consensus and unified action of its members, especially
the main players among them, which unfortunately has not happened for a long time. If this
situation continues, won't the United Nations suffer the fate of its predecessor, the League of
Nations? This question raises in the curious minds.
The failure of the United Nations to achieve its goals is not in the interest of anyone,
and no responsible country should bring this organisation to the fate of the community of
nations because the United Nations is still humanity's great hope for world peace and security.
At the same time, the UN is expected to exert all is not turn people’s hope into despair.
The UN Charter in its preamble provides “We, the peoples of the United Nations
determined to save succeeding generations from the scourge of war, … and to reaffirm faith
in fundamental human rights, in the dignity and worth of the human person, in the equal
rights of men and women and of nations large and small and to establish conditions under
Proceedings: International Conference on Peace and Conflict Resolution (ICPCR) 2022
International Peace and Security: The Achievement of the United Nations and the Way Forward
which justice and respect for the obligations arising from treaties and other sources of
international law can be maintained and to promote social progress and better standards of
life in larger freedom”.
The ideals laid down in the Preamble of the UN Charter, along with the principles
included in the charter, such as non-recourse to force, peaceful settlement of disputes, non-
interference, cooperation, self-determination and sovereign equality of member states1, form
the foundation of international relations. These ideals and principles are very important and
remain as relevant and urgent as they were in 1945 when the UN was founded. However, the
current chaotic situations in the world show that the UN aspirations remain mere aspirations.
These aspirations are not fully realised, even though over seven decades past since the
establishment of the UN.
This means that complete peace and security is currently only an illusion given the lack
of unity among the major powers of the world, unless the relevant UN bodies actively involve
themselves in decision-making to ensure the realisation of the goals of the UN. The
realisation of this aspiration requires extensive efforts by the relevant UN bodies, especially
the Security Council, the General Assembly and the Secretariat. The question whether the
UN, in general, and its relevant principal organs, in particular, has exerted enough efforts
towards the realisation of these aspirations and principles will be discussed in this paper. The
paper highlights the short falls in the ‘UN collective security system’ and make
recommendations as to what the relevant organs of the UN can do to effectively maintain
international peace and security which are essential for a stable and economically prosperous
world.
II. THE ROLE OF THE UN SECURITY COUNCIL
The Security Council, though numerically a small organ of the UN, is the most powerful one
for two reasons, namely it is empowered to maintain peace and security among nations2; and
its decisions, in particular those under Chapter VII of the Charter, binds all States.3 It
composed of fifteen members4, five of them permanent (RF, UK, US, China and France), -
known as “Big Five”, as they enjoy the status of permanency and the veto power, and the
remaining ten are non- permanent-(initially 6 but increased to 10 on 1January 1966) who are
chosen by regional groups of States and confirmed through election by the UN General
Assembly for two year terms.
In the UN collective security system, the Security Council plays a central role and
makes binding decisions to maintain international peace and security and protect states
against aggression. The League of Nations, the predecessor of the UN, had its own collective
security system, though not a perfect one, as it did not impose adequate restrictions upon
potential aggressors, did not show sufficient commitment to take enforcement actions against
the aggressors, and even if the League of Nations took enforcement decisions but they were
not implemented because of lack of support from its members and also the League had no
strong teeth to do that. All these resulted in the failure of the League of Nations.
The UN system of collective security is more satisfactory than that of the League of
Nations because the UN Charter provides for a more comprehensive prohibition on the use
and threat of armed force5, systematically explains sanctions, which includes "non-military
1 See UN Charter, Art.2.
2 Id, Art. 24.
3 Id., Art. 25.
4 Id., Art.23.
5 UN Charter, Art. 2 (4).
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The Role of the United Nations in Maintaining Global Peace and Security
sanctions"6 and "military sanctions"7, entrusts the Security Council with the responsibility to
make collective security decision8.
The Security Council’s functions and powers are set out in the UN Charter, the
Organisation's founding treaty - which was signed on 26 June 1945, in San Francisco, at the
conclusion of the UN Conference on International Organisations and came into force on 24
October 1945. It is entrusted with the primary responsibility for the maintenance of
international peace and security. As Article 24 of the UN Charter Provides:
(1) “In order to ensure prompt and effective action by the United Nations, its
members confer on the Security Council primary responsibility for the
maintenance of international peace and security, and agree that in carrying out its
duties under this responsibility the Security Council acts on their behalf.
(2) In discharging these duties the Security Council shall act in accordance with the
Purposes and Principles of the United Nations. The specific powers granted to the
Security Council for the discharge of these duties are laid down in Chapters VI,
VII, VIII, and XII.
(3) The Security Council shall submit annual and, when necessary, special reports to
the General Assembly for its consideration.”
The Security Council takes the lead in determining the existence of a threat
to the peace9, breach of the peace or an act of aggression and make necessary and appropriate
decisions. As Article 39 of the UN Charter provides: “The Security Council shall determine
the existence of any threat to the peace, breach of the peace, or act of aggression and shall
make recommendations, or decide what measures shall be taken in accordance with Articles
41 and 42, to maintain or restore international peace and security.”
The decisions of the Security Council taken in accordance with Article 41 and Article
42 shall be binding. As Article 25 of the Charter provides: “The Members of the United
Nations agree to accept and carry out the decisions of the Security Council in accordance with
the present Charter.”
Thus, all UN members agree to accept and carry out decisions adopted by the Council.
This means decisions of the UN Security Council taken under Articles 41 or 42 are binding.
When dealing with crises, the Council, which is guided by the UN Charter, can take the
following steps.
First, based on chapter VI of the UN Charter (Arts 33-38), the council can ask the
parties to resolve the dispute through peaceful means and recommend adjustment methods or
settlement conditions. It can also recommend referral of disputes to the International Court of
Justice (ICJ), widely known as the "World Court" and the principal judicial organ of the UN,
based in The Hague in the Netherlands. The decision of the Council based on Chapter VI of
the UN Charter is only a recommendation and is not binding.
Secondly, acting under Chapter VII of the Charter (Arts 39-51), the Security Council
may resort, when peaceful means of dispute resolution have been exhausted, to the imposition
of sanctions in some serious cases, as provided under Article 41, which reads: “The Security
Council may decide what measures not involving the use of armed force are to be employed
to give effect to its decisions, and it may call upon the Members of the United Nations to
apply such measures. These may include complete or partial interruption of economic
relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication,
and the severance of diplomatic relations.”
6 Id., Art. 41.
7 Id., Art. 42.
8 Id., Arts 24 & 25.
9 Id., Art. 39.
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The Security Council under this Article may pass resolution to impose economic or
trade sanctions, air sanctions, travel sanction, targeted or smart sanction, etc. Decision of the
Council under Art, 41 binds all States.
But if sanctions fail to restore peace, the Council may, as a last resort, authorise the use
of force to maintain or restore peace. As Article 42 of the UN Charter provides: “Should the
Security Council consider that measures provided for in Article 41would be inadequate or
have proved to be inadequate, it may take such action by air, sea, or land forces as may be
necessary to maintain or restore international peace and security. Such action may include
demonstrations, blockade, and other operations by air, sea, or land forces of Members of the
United Nations.”
Taking decision under Article 42 must be absolutely necessary and only when other
measures are not adequate or failed to be effective, and that must be taken at the last resort, as
this measure is the ultimum remedium. The Council’s decision under Art. 42 only binds the
targeted State (i.e., against whom the decision is taken).
Since the UN has no armed forces of its own, the Security Council may authorise the
use of force by member states, a coalition of member states, or peace operations authorised by
the UN to maintain or restore international peace and security. As Article 43 of the UN
Charter provides:
(1) “All Members of the United Nations, in order to contribute to the maintenance of
international peace and security, undertake to make available to the Security
Council, on its call and in accordance with a special agreement or agreements,
armed forces, assistance, and facilities, including rights of passage, necessary for
the purpose of maintaining international peace and security.
(2) Such agreement or agreements shall govern the numbers and types of forces, their
degree of readiness and general location, and the nature of the facilities and
assistance to be provided.
(3) The agreement or agreements shall be negotiated as soon as possible on the
initiative of the Security Council. They shall be concluded between the Security
Council and Members or between the Security Council and groups of Members
and shall be subject to ratification by the signatory states in accordance with their
respective constitutional processes.”
As mentioned above, UN does not have its own armed forces, and thus it relies on the
armed forces of its member States who may enter into special agreements with the
Security Council under which they may agree to make available their armed forces to the
Council. However, so far there has been no such agreements. Even the Military Staff
Committee established under Article 47 has remained a dead body, which only holds regular
ritual meetings. The Council cannot order states to take part in military enforcement action in
the same way that it can order them to take part in non-military enforcement action.
In case a special agreement is concluded between a State and the Security Council
under Art. 43, then the Security Council can order that State to take part in the military
enforcement, otherwise no State is under obligation to do that. Nevertheless, UN member
states may voluntarily place ad hoc troops at the disposal of the Security Council. The
Council may authorise able and willing States to use force if the conditions of Art.39 and 42
are fulfilled. The Council’s decision under Article 42, with respect to the target State is a
binding decision, with regard to the authorised member States it is a recommendation which
justifies in law the use of armed force otherwise prohibited by Art. 2 (4) of the Charter. The
target State, after the use of force is authorised against it, cannot invoke the right of self-
defence under Art. 51 of the Charter, nor can it take resort to reprisals short of the use of
force, even it cannot claim reparation in response to the use of force by the member States so
authorised by the Council.
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The Role of the United Nations in Maintaining Global Peace and Security
The first time the council authorised the use of force was in 1950 under what was called
a military sanction to ensure the withdrawal of North Korean forces from the Republic of
Korea. The second time the Council authorised the use of force under Article 42 was in 1990
against Iraq when it invaded Kuwait.10 The Council can take decision under Article 42
without the consent of the `target State’, as there is no requirement for such thing under such
circumstances.
There are, however, instances where no enforcement actions or decision was taken
against states that were said to have broken international peace and security. For instance,
when USSR invaded Afghanistan in 1979, the Council was not successful to take decision
against Soviet Union, as it was veto welding Council member, and effectively used its veto to
protect itself. Similarly, no enforcement action taken against US when it invaded Afghanistan
in 2001 and Iraq in 2003. Similarly, now Russia has invaded Ukraine but so far, the Council
has taken no decision as one of the parties to the conflict is a veto welding member of the
Council and may use that right to escape the claws of the law.
Anyhow, the Security Council’s decision, if taken under chapter VII of the UN Charter,
is binding by virtue of Article 25 of the Charter. The measures to implement the decisions of
the Security Council for the maintenance of international peace and security shall be taken by
all the members of the United Nations or by some of them, as the Security Council
determines in accordance with Chapter VII.
The voting procedure in the Security Council is guided by Article 27 of the UN
Charter, which provides:
(1) “Each member of the Security Council shall have one vote.
(2) Decisions of the Security Council on procedural matters shall be made by an
affirmative vote of nine members.
(3) Decisions of the Security Council on all other matters shall be made by an
affirmative vote of nine members including the concurring votes of the permanent
members; provided that, in decisions under Chapter VI, and under paragraph 3 of
Article 52, a party to a dispute shall abstain from voting.”
Article 27 establishes that each member of the Council has one vote. When deciding on
“procedural matters”, nine members need to vote in favour for a decision to be adopted. On
all other matters an affirmative vote of nine members “including the concurring votes of the
permanent members” is necessary. This means, a negative vote by any of the permanent five
(China, France, Russian Federation, the United Kingdom or the United States) can prevent
the adoption by the Council of any draft resolution relating to substantive matters. Since
1946, all five permanent members - widely known as the "P5" - have at one time or another
used the veto on various issues.
The special position the P5 hold in the collective security system of the UN is subject to
severe criticism. The critics argue that the great power unanimity undermines sovereign
equality of States, challenges international democracy, enables the great powers to be global
dictators, serves only the interests of the Big Five as it gives them the power to block
decisions of the Security Council if they think the decision is contrary to their interests or the
interest of their allies, and is a threat to world peace.
III. UN GENERAL ASSEMBLY’S ROLE
Since the United Nations Security Council, due to the lack of consensus among the Big Five,
is often unable to make enforcement decision, as their veto power is the main obstacle in this
regard. Can the General Assembly step in when the Council is unable to take a decision to
restore or maintain internal peace and security?
10 See the UN SC Res. 665 and 678, 1990.
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International Peace and Security: The Achievement of the United Nations and the Way Forward
Well, according to General Assembly resolution 377A(V) of 1950, widely known as the
‘Uniting for Peace resolution’, if the Security Council cannot, due to a lack of unanimity
among its five veto-wielding permanent members, fails to act as required to maintain
international security and peace, the General Assembly shall consider the matter immediately
and may issue appropriate recommendations to UN members for collective measures,
including the use of armed force when necessary, in order to maintain or restore international
security and peace.
In other words, with the Uniting for Peace resolution, the General Assembly
empowered itself to deal with threats to peace if the Security Council failed to act after a veto
by a permanent member. For example, in most cases, the Security Council determines when
and where UN peacekeeping operations should be deployed, but historically, when the
Council has been unable to make a decision, the General Assembly has done so. For instance,
in 1956, the General Assembly established the first United Nations Emergency Force (UNEF
I) in the Middle East to secure and supervise the cessation of hostilities, including the
withdrawal of the armed forces of France, Israel and the United Kingdom from Egyptian
territory and, after the withdrawal, to serve as a buffer between the Egyptian and Israeli
forces.
Moreover, the General Assembly may meet in Emergency Special Session if requested
by nine members of the Security Council or by a majority of the Members of the Assembly.
To date, the General Assembly has held 11 Emergency Special Sessions (8 of which have
been requested by the Security Council). Most recently, on 27 February 2022, the Security
Council, taking into account that the lack of unanimity of its permanent members had
prevented it from exercising its primary responsibility for the maintenance of international
peace and security, decided to call an Emergency Special Session of the General Assembly in
its resolution 2623 (2022).
Consequently, on 1 March 2022, the General Assembly, meeting in emergency session,
adopted a resolution by which it deplored “the aggression by the Russian Federation against
Ukraine in violation of Article 2 (4) of the Charter and demanded that the Russian Federation
immediately cease its use of force against Ukraine and completely and unconditionally
withdraw all of its military forces from the territory of Ukraine within its internationally
recognised borders.
On 26 April, amid growing criticism of lack of action by the Security Council to stop
the war in Ukraine, the General Assembly adopted by consensus a landmark resolution
requiring the five permanent members of the Council to justify their use of the veto. The
move was greeted by a round of applause, and the resolution calls for Assembly members to
meet ‘within 10 working days of the casting of a veto by one or more permanent members of
the Security Council, to hold a debate on the situation as to which the veto was cast’.
Entitled “Standing mandate for a General Assembly debate when a veto is cast in the
Security Council”, the text had been in the works for two years. It was tabled by Lichtenstein,
and co-sponsored by 83 countries, including three permanent Council members – France,
United Kingdom and the United States.
Although these provisions grant the General Assembly a broad subsidiary role, the
Security Council can make decisions binding on all members, while the General Assembly
can only make recommendations, as, unlike Security Council resolutions, General Assembly
resolutions are non-binding, meaning that countries are not obligated to implement them.
When a country continuously violates its obligations under the UN Charter, can its
membership in the UN be revoked? Article 6 of the UN Charter provides:
A Member of the United Nations which has persistently violated the principles
contained in the present Charter may be expelled from the Organisation by the General
Assembly upon the recommendation of the Security Council.
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The Role of the United Nations in Maintaining Global Peace and Security
This has never happened in the history of the United Nations. Article 5 provides for the
suspension of a Member State:
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. The exercise of these rights and privileges may be restored by the Security Council.
The suspension or expulsion of a Member State from the Organisation is effected by the
General Assembly upon the recommendation of the Council. Such a recommendation
requires the concurring vote of the Security Council’s permanent members.
Unless they agree to their own expulsion or suspension, permanent Council members
can only be removed through an amendment of the UN Charter, as set out in Chapter XVIII .
The UN has, however, taken steps against certain countries to end major injustices. One
example is the case of South Africa and the world body’s contribution to the global struggle
against apartheid, by drawing world attention to the inhumanity of the system, legitimising
popular resistance, promoting anti-apartheid actions by governmental and non-governmental
organisations, instituting an arms embargo, and supporting an oil embargo and boycotts of
apartheid in many fields.
Along the road to ending apartheid, the Security Council, in 1963, instituted a voluntary
arms embargo against South Africa, and the General Assembly refused to accept the
country’s credentials from 1970 to 1974. Following this ban, South Africa did not participate
in further proceedings of the Assembly until the end of apartheid in 1994.
IV. THE ROLE OF THE SECRETARY-GENERAL’S GOOD OFFICES
The UN Secretary-General, an important peace-making actor, can play a positive role in the
maintenance of international peace and security. The range of activities carried out by the
Secretary-General has included good offices, mediation, facilitation, dialogue processes and
even arbitration.
One of the most vital roles played by the Secretary-General is the use of his (thus far in
the Organisation’s 75-year history, all nine Secretaries-General have been men) ‘good
offices’ – steps taken publicly and in private, drawing upon their independence, impartiality
and integrity, and the power of quiet diplomacy, to prevent international disputes from
arising, escalating or spreading.
In practice, this means a UN chief can use his authority, legitimacy and the diplomatic
expertise of his senior team to meet with Heads of State and other officials and negotiate an
end to disputes between parties in conflict. At the end of March, Secretary-General Antonio
Guterres invoked the use of his good offices and asked Under Secretary-General Martin
Griffiths, the UN emergency relief coordinator, to explore the possibility of a humanitarian
cease-fire with Russia and Ukraine, and other countries seeking to find a peaceful solution to
the war.
V. CONCLUSION
In short, to be effective in the field of international peace and security, the United Nations
needs the help, cooperation and serious commitment of its members, especially the great
powers of the world. In the absence of members cooperation it would be unrealistic to expect
the UN to achieve its goals. The UN as a facilitating body must be preserved, because without
it the world would be more chaotic than it is now.
The world needs the United Nations, so don't let it fail like its predecessor, the League
of Nations. Cooperate with it so that it can achieve its goals, which are excellent and for the
betterment of the international community. The failure of the United Nations to achieve its
goals is not in the interest of anyone, and no responsible country should bring this
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International Peace and Security: The Achievement of the United Nations and the Way Forward
organisation to the fate of the League of Nations because the United Nations is still
humanity's great hope for world peace and security. At the same time, instead of turning
people's hope into despair, the UN should do its best to fix its structural weaknesses, which
are the main reason for its failure.
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22 October 2022
E-ISBN 978-967-491-267-3
p. 9-16
2. RIGHT OF SELF-DEFENCE UNDER
INTERNATIONAL LAW: ITS USES AND
ABUSES IN PRACTICE
TAN SRI DATO’ SERI DR. SYED HAMID SYED JAAFAR ALBAR
Adjunct Professor, Faculty of Law,
Universiti Kebangsaan Malaysia (UKM)
ABSTRACT
The United Nations (UN) Charter generally prohibits the use of force among
Member States under Article 2(4). Albeit use of force is a violation of the UN
Charter, self-defence is introduced as one of the exceptions and a justification for
the use of force when a State is under an armed attack from another under Article
51 of the UN Charter. It is commonly accepted as the inherent right of self-
defence which has strong footing under the customary international law. The
irony at this point is that States can rely on the exception under the guise of
responding to an imminent threat of death or grave bodily harm to person or
property as provided under Article 51 in order to overcome the constraint and
avoid the charges of committing an act of aggression when they lack express
authorisation from the Security Council acting under its enforcement powers
provided for in Chapter VII UN Charter to use force against another State. Hence,
this article aims to explore how the right of self-defence under international law
has become an excuse to use armed force in certain circumstances by States and
how to overcome form the abuses of such right. It recommends that in order to
prevent such abuses, any act of preemptive military action must be proven that
there is an immediate or imminent threat of aggression against the States taking
such action. If it fails to do so, the action of the State on the exercise of right of
self-defence can amount to act of aggression in violation of international law and
the UN Charter.
Keywords: Self-defence, war, use of force, armed conflict, aggression.
I. INTRODUCTION
Historically, there was no legal prohibition to start a war or use armed forces against another
State at the international level. This situation had continued until the end of the First World
War.11 During that time, resorting to the use of armed forces or war was not regarded as an
illegal act but as an acceptable way of settling disputes among States. In general, the doctrine
called jus ad bellum sets the conditions upon which States may go to war or use force. The
11 Annweshaa Laskar, Use of Force under Article 51 of the UN Charter, TERI School of Advanced Studies.
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International Peace and Security: The Achievement of the United Nations and the Way Forward
core elements of the concept of jus ad bellum regulate the conditions of a State’s right to
resort to war and the right to use force.
The prohibition on the use of force slowly evolved in 1919 with the Covenant of the
League of Nations, and in 1928 with the General Treaty for Renunciation of War as an
Instrument of National Policy (also known as the Kellogg–Briand Pact or Pact of Paris)
which sought to outlaw war as an instrument to resolve international conflicts among States.
Even with this restriction, it could not prevent the Second World War.
With the end of the Second World War and the demise of the League of Nations, the
UN was formed in 1945 with the responsibility of ensuring and maintaining global peace and
security. The UN Charter set the rules, process and procedure governing membership as well
the management of maintaining peace and security. It reaffirmed the objective of the
international community post Second World War as follows: “The Members of the
Organisation shall abstain, in their international relations, from resorting to the threat or use
of force…”. Accordingly, the prohibition on the use of force amongst States came into being
after the tragedy of the Second World War. The UN Charter introduces a ban on the threat or
actual use of force with exceptions given on self-defence or with the authorisation from the
UN for the purposes of maintaining international peace and security.
Nonetheless, the UN did not abolish totally the right recognised by customary
international law on the issue of self-defence but it added some significant rules and
principles to be observed within the ambit of the spirit of international law on self-defence.
What is self-defence? Under Article 51 of the UN Charter, self-defence is a right but not an
obligation and therefore States generally have the choice to exercise or not. In other words, it
can be construed as a ‘legitimate form of armed self-help’, which means giving legitimacy to
States to use force on their own authority. This right is made available on individual or
collective basis, thus the invocation can be done by a single State, by two States jointly, or
under a multilateral agreement. Lastly, self-defence can be said not dependent on the question
of ensuring survival, but it is lawful even simply on the ground of protecting itself from
possible threats.12
As a result of seemingly contradictory language, the subject of use of force has today
created so much complex and controversial discussions and debates of its use as well its
abuse in international law and politics.13 Indeed, there are already a lot of written journals,
articles and literature by scholars and commentators on the pro and contra on the subject.14
The question is whether the crafters of the UN Charter has translated the true aim of the
international community to achieve international peace and security correctly and accurately
or it has placed the rules and laws based on the wishes of the victorious big powers especially
on the question of pre-emptive action against unseen enemy. Unfortunately, the Caroline
doctrine, Article 51 of the UN Charter, the Security Council Resolutions 1368 and 1373 do
not spell out clear guidelines on when can preemptive or anticipatory action be taken
especially against a non-State actor. It is still a lingering issue of whether restrictive or
extended interpretations should be used in this anarchic or imbalanced world order without
ignoring the ideal of justice and humanity. Even the International Court of Justice (ICJ) and
the International Law Commission (ILC) have failed to clarify this position.
This paper focuses primarily on how that right of self-defence - which converts the
prohibition on the use of force under Article 2(4) to ‘lawful’ exercises of the right of self-
12 Ref Caroline Doctrine, 1837.
13 Elma Catic, Faculty of Law, Stockholms universitet: A right to self-defence or an excuse to use armed force?
International law thesis, 2020.
14 Martin Dixon, Textbook on International Law, 7th edition, p. 321.
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Right of Self-Defence Under International Law: Its Uses and Abuses in Practice
defence under international law15 - becomes, in another way, the excuse to use armed force in
certain circumstances.16
II. THE LAW AFTER THE SECOND WORLD WAR
Immediately after the end of the Second World War, the participants at the Dumbarton Oaks
and San Francisco Conferences expressed their determination and feelings of abhorrence on
the atrocities and crimes committed by human beings on fellow human beings was so strong
to outlaw war. This was the guiding principle and philosophy that provided for the settlement
of disputes by peaceful means and not to use force in their international relations. These
noble intentions were incorporated into the Charter of the United Nations to prevent the
future occurrence of wars, hostilities, and unlawful aggression. The ultimate objective of the
UN Charter is to promote international cooperation in maintaining international peace and
security.17 The Preamble of the Charter makes it absolutely clear by stating one of its aims as
“to unite our strength to maintain international peace and security”. Hence, this was a
powerful rationale behind the introduction of the obligation on the part of States not to
threaten or use force against other States.
This notion is enshrined in Article 2(4) of the UN Charter which provides that: “All
members shall refrain in their international relations from the threat or use of force against
the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations”. It encapsulates the principle of
equality and sovereignty of States.
However, use of force was not entirely got rid of, but instead it reaffirms the position of
customary international law. Thus, under well-defined particular circumstances, especially as
embodied in Article 51 of the UN Charter, force can be used as an exception to the general
rule of prohibition. Hence, these permissive rules allow and reaffirm the position of
customary international law on the inherent right of States to use self defence. Albeit, it may
be exercised without infringing on the rights of another State subject to adhering to the
following conditions in order for it to be lawful:18
(i) “it must be in response to an armed attack;
(ii) the use of force, and the degree of force used, must be necessary and
proportionate; and
(iii) it must be reported to the Security Council and must cease when the Security
Council has taken ‘measures necessary to maintain international peace and
security”.
Therefore, this is just a temporary right prior to measures taken by Security Council.19 At this
juncture, the challenge is that this allows for individual State to interpret the provision in the
way it suits their national interest and politics. Accordingly, the ongoing question that has not
been given satisfactory answer is: how to prevent any member of the UN from using force
which is contrary not only to the intention of the UN Charter and but also contemporary
international law. The discourses on the subject always revolve around on what can be
construed as unlawful or illegal use of force and what is not. More often than not the
powerful States use subjective interpretation to justify their actions.
15 V. Upeniece, https:doi.org/10.1051/shsconf/20184001008
16 Ibid, Elma Catic.
17 Chidera Emmanuel, Use of Force: the Right to Wage War, Limits and Exceptions,
https//www.linkedin.com/pilse/use-f-chidera-emmanuel-chikere, Sep 15, 2020.
18 Christopher Greenwood, Self Defence, Oxford Public International Law, Max Planck Encyclopedia of Public
International law, April 2011.
19 Ibid, Christopher Greenwood.
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As mentioned in the preceding paragraphs, previously States had unfettered freedom
to wage war against for one reason or another against each other. They were guided only by
the moral or ethical considerations whether the war would be ‘just’ or ‘unjust’. Obviously,
the judgmental decision on whether the war is just or not is usually primarily made on the
subjective interpretation of the conflicts at hand. Currently, the world is still confronted with
wars in different regions of the world that seems to be justified on different grounds, though
they resulted in violation of human rights and humanitarian laws. This becomes a ground of
criticism against the UN due to its failure to stop violent conflicts and wars completely. It is
argued by some people and scholars that the UN has not been even handed and balanced in
managing violent conflicts in different parts of the globe.
III. MEANING OF ‘FORCE’
The word ‘force’ has become a subject of continuous and controversial debates regarding its
meaning as stipulated under Article 2(4) of the UN Charter. This debate arose because the
drafters of the Charter has not incorporated the adjective ‘armed’ preceding the word ‘force’
in the article. ‘Force’ in general can be taken both as armed force and economic and political
force. While the Member States have acknowledged the fundamental importance of the use of
force being made illegal within the purview of international law, there have not been
agreement on the precise extent of the prohibition of the use of force and whether it would
include political pressure or economic sanction.
According to Elma Catic, “[f]orce in general can be seen both as armed force and as
economic and political force, like inter alia economic aggressions and political pressures”.
However, Article 2(4) of the UN Charter is perceived as predominantly referring to armed
forces, military forces that includes the use of violence.20 Nonetheless, the Article prohibits
the unliteral use of force or force not used in self-defence. The use of force can be conducted
directly or indirectly. Article 2(4) provides for the prohibition of the direct use of force but
the ICJ in the Case Concerning Military and Paramilitary Activities In and Against
Nicaragua (Nicaragua v. United States of America)21 [hereinafter ‘Nicaragua case’] opined
that the indirect use of force is also prohibited and covered under this Article. Despite the fact
that these principles of international law are honorable, in practice, States often breached
those rules in numerous armed conflicts around the world.
In addition, Article 51 of the UN Charter expressly preserves the right of both
individual and collective self-defence which permits the use of force in self-defence in
relation to an armed attack. Thus, the use of force against another State which is not at war is
unlawful. No matter what the position was, under contemporary international law, it is well
established that the right to use force is only justified in response to an armed attack. This
would exclude the right of a State to resort to economic coercion or political pressure. In
Article 2(4), before the word ‘force’, there was no adjective used to describe nature and type
of force. Hence, taking into account the period and the environment aftermath of the Second
World War when it was introduced, it is more accurate to assume that the prohibition is
limited only to military force.
It is not unusual to witness in several instances that force have been used by way of
authorisation from the Security Council pursuant to the collective security powers under the
UN Charter, for instance, the Iraq-Kuwait War in 1990-93. At other times, the right to use
force has been justified and invoked under the so-called humanitarian intervention, or the
right of States to self-defence in cases of threats to its national security or territorial integrity.
20 Ibid, Elma Catic.
21 ICJ Rep 1986, p. 14.
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Right of Self-Defence Under International Law: Its Uses and Abuses in Practice
IV. WHEN CAN SELF-DEFENCE BE JUSTIFIED?
It is obvious that the wording of Article 2(4) and Article 51 impose both rights and
obligations on the UN Member States. The right of self-defence is made an exception to the
prohibition of the use of force, is generally an accepted position in international law, though
its applications are always subject to debates and controversies. Of course, the concept of
self-defence and use of force under customary international law precedes its inclusion in the
UN Charter in 1945 as demonstrated by the principle laid out in the so-called Caroline
Incident in 1837. In this case, it is argued that the incident which in reality a political decision
was converted to a legal concept to justify the use of force explained the permissible elements
when force can be use under customary international law.
However, present Article 51 of the UN Charter firmly established the right of self-
defence as an exception to the prohibition of the use of force, though places a caveat by
requiring the States invoking the right of self-defence to report to the Security Council on the
type of measures they have taken in exercising this right. Nonetheless, the ICJ also holds that
the provision of the Charter on the right of self-defence does not abolish the position under
customary international law as illustrated in the Nicaragua case, when the court stated that the
Charter is not intended to govern the whole issues relating to use of force. Additionally, it is
argued that the phrase ‘inherent right’ of self-defence used in the Charter can be taken to
mean that the exception given is rooted from international custom and hence in its
interpretation of applicability the positions under customary international law would be
strong source of reference.
Generally, there are two views on how to interpret the exception to the use of force
and whether customary international law is not superseded by the UN Charter, which thus
made the discussion on the subject contestable and controversial. Those scholars that believe
in the restrictive interpretation hold the view that due to the inclusion of the word ‘inherent’
within Article 51 the right to self-defence in it must be read together with customary
international law, and hence does not change the international custom. On the other hand, the
others who take the position of the extensive school argue that the divergent customary
international law does not coexist with the status of the treaty.22
V. ARMED ATTACK
In the preceding paragraphs issues pertaining to the right of self-defence have been
deliberated and the circumstances of its usage have been briefly explained. As mentioned,
even though self-defence is a reaffirmed right under customary international law, its usage
has been made subject to a response to an armed attack. Thus, self-defence, is a carte blanc
right for a State to act against any attack, which is of non-military nature or of such threats.
This is notwithstanding the actions may be considered as damaging to the other State’s rights
and interests. In another words, a non-armed attack can only be responded in a similar
manner.
The debates on the subject have been an ongoing issue and at times it can be intense
because of the absence of the definition of the term ‘armed attack’ in the UN Charter. Neither
Articles 51, nor Article 2(4) which talks about threat or use of force, nor Article 39 which
spells out threats to peace and acts of aggression have taken the position to define what
amounts to an ‘armed attack’. This creates complex challenges on the interpretation of what
is permissible and what is not in order to determine the correlations between ‘armed attack’
and the concepts of threats to peace and acts of aggression as prescribed in the other articles.
22 Refer to the Article by Elma Catic, A right to self-defence or an excuse to use armed force?, Stockholms,
universtet, Spring semester, 2020, p 21.
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Nevertheless, in international practice, the restrictive French definition of armed
aggression or the UN General Assembly Resolution 3314 (XXIX) have not been followed.
The relevant case in question is the Iraqi invasion of Kuwait, where the Security Council
decided that it should be treated as a breach of the peace rather than an act of aggression as
demonstrated in the Security Council Resolution 660.23 In the preamble of the UN Security
Council Resolution 661, the UN reaffirmed the right of self-defence of Kuwait in the face of
that threat.
VI. THE EXTENT OF THE ARMED ATTACK
With regard to the meaning of armed attack, the ICJ has in its judgements interpreted the
meaning of the term ‘armed attack’. In the Nicaragua case,24 it decided that an armed attack
need not be by the regular armed forces of a State. It stated that: “an armed attack must be
understood as including not merely action by regular armed forces across an international
border, but also ‘the sending by or on behalf of a State of armed bands, groups, irregulars or
mercenaries, which carry out acts of armed force against another state of such gravity as to
amount to’ (inter alia) an armed attack conducted by regular forces, ‘or its substantial
involvement therein’”.25 Similarly, the UN Security Council treated the terrorist attacks on
September 11, 2001, on the World Trade Centre in New York and the Pentagon, as an armed
attack.26
VII. INDIVIDUAL AND COLLECCTIVE SELF DEFENCE
Article 51 provides for individual self-defence by a single State or a collective act of self-
defence by more than one States from armed attack. The collective self-defence means
Member States have a right to use force to defend other Member States from armed attacks.
In many instances, this right has been invoked such as US military intervention in the
Vietnam War 1961-1975, the French’s armed intervention in Chad in 1983-1984 in Chad-
Libyan conflicts, and the US armed attacks in Iraq 2014 at the request of Iraq to fight against
terrorist groups, and all of these were approved by the UN. The qualification in all these
collective self-defence and to be legal must be at the request of the victim State. This practice
has been confirmed by the ICJ in the Nicaragua case27 and later in the Case Concerning Oil
Platforms (Islamic Republic of Iran v. United States of America).28
VIII. THE ROLE OF THE SECURITY COUNCIL
Albeit Article 51 of the UN was drafted to confirm the right of self-defence as understood in
customary international law at the time of adoption of the UN Charter, the Article has
somehow altered that right slightly. Firstly, the right of self-defence under Article 51 requires
reporting of the measures taken in self-defence to the Security Council. The fact that a State
has not reported the measures may weaken the claim of that State that it was acting in self-
defence, which in itself is a violation of the UN Charter.
Secondly, this provision confers only temporary right that prevails until the Security
Council takes measures necessary to maintain international peace and security. This
requirement has assumed far greater significance since the Iraqi invasion of Kuwait as it was
23 Malaysia supported the Security Council Resolution 660, 1990 against Iraq.
24 ICJ Rep 1986, p. 14.
25 Christopher Greenwood, Max Planck, Encyclopedia of Public International Law [MPEPIL].
26 Refer to the various resolutions of the UN SC Resolutions; 1368, 2001, 12 September 2001, SCOR, 1,
January 2001-31July 2002; 290 and UN SC Res 1373, 2001m 28 September, 2001; SCOR, 1 January, 200-31
July, 2002, 291, among others.
27 ICJ Rep 1986, p. 14.
28 ICJ Rep 2003, p. 161.
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Right of Self-Defence Under International Law: Its Uses and Abuses in Practice
the beginning of a marked increase in the use of the Security Council of its powers under
Chapter VII of the UN Charter. That increase makes necessary to consider what steps on the
part of the Security Council will curtail the right of a victim State to take action in self-
defence.
In the same vein, the Security Council has the power to impose a ceasefire under
Chapter VII. In that case, all parties to a conflict must comply whether acting under self-
defence or not, and will be obliged to comply. For example, Security Council Resolution 660
condemned the invasion of Iraq on Kuwait and demanded Iraqi withdrawal from all Kuwaiti
territory. Yet it did not take away the right of Kuwait to take action in self-defence if Iraq did
not comply. The right of self-defence of Kuwait will cease only when the Security Council
take such measures to maintain international peace and security.
IX. COLLECTIVE SELF-DEFENCE
The ICJ, in the Nicaragua case,29 enumerated three requirements which had to be satisfied for
the use of force to be justified on the basis of collective self-defence. Firstly, the right of
collective self-defence arises only if at least one State that is subject to an armed attack is
entitled to use force on the basis of individual self-defence, which then allow other States to
use force to assist it. Secondly, the victim State has to declare itself to be the victim of an
armed attack, before others can become entitle to use force to assist it. Thirdly, the a non-
victim State have the right to resort to force by way of collective self-defence if the victim
State make a request for it to do so.30
X. CONSTRAINTS OF ACTIONS IN INTERNATIONAL RELATIONS
As stated earlier, use of force by one State against another is prohibited. However, this
provision does not include the use of force by State within its own territory. This is supposed
to be justified on the principle of sovereignty and territorial integrity, which is jealously
guarded by the so-called sovereign States. The governing logic under international law is the
concept of non-interference in the internal affairs of any State by other States or even by the
UN is contrary to the UN Charter. This can be seen clearly in Article 2(7) of the UN Charter
which provides that: “Nothing contained in the present Charter shall authorise 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”.
Nevertheless, this restrictive reading of international law is beginning to shift to a new
paradigm in contemporary time as a stronger emphasis is given on human rights and self-
determination issues. This is still contestable though, by many States on the argument that
Article 2(4) is only applicable to international relations, therefore the use of force within its
own territory is outside the ambit of that article. Under current development of international
law, it may not be possible for States to hold to that position because the UN Charter itself
contains provision regarding settlement of disputes by peaceful means. There are those who
argue that the use of force in disputes within State borders can even have worst effects on
peace and security of the region with the flow of refugees and displaced persons as had
happened in the case of the Rohingya in Myanmar, Palestine, Syria, Libya, Yemen, Kashmir
and Afghanistan, among others. Disputes of this nature cannot be assumed to have only
domestic impacts and thus the use of force may become permissible under Chapter VII of the
UN Charter.
29 ICJ Rep 1986, p. 14.
30 Refer to the invasion of Kuwait by Iraq, the Security Council Resolution 678, 1990.
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International Peace and Security: The Achievement of the United Nations and the Way Forward
XI. CONCLUSION
International peace and security can be achieved if all Members of the UN strictly observe
the genuine intention and spirit of the right of self-defence. The primary reason for the
prohibition of the use of force and the limitations placed on it by international law post 1945
was to prevent the repeat of the tragedy and atrocities committed during Second World War.
The exception to the prohibition of the use of force, i.e. the right of self-defence, should not
be mistaken as legitimising the use of force liberally on the pretext of armed attack by
another State against it. The aim of self-defence is to ensure the principles of independence,
sovereignty and territorial integrity are respected. It is hoped there will be no more
unnecessary killings in conflict and disputes among States. It is acknowledged that self-
defence is legitimate under customary international law and permissible but it is meant to be
exercised in a limited and restricted way.
The UN Charter does not give a carte blanche right to use force as a tool of self-
defence unless there is an immediate or imminent aggression to that State. It also does
include wanton use of it in order to prevent the so-called anticipated threats that can ripen
into a real threat in the future without referring it to the UN Security Council. The right to use
force must be clearly understood as an exception to Article 2(4) and not a license to kill and
destroy as regularly done by the Israelis in Gaza and the West Bank.
On this issue of use of force and anticipatory self-defence the subject is still without
any emerging consensus and plenty of controversy surrounds its use on the concept ‘might is
still right’. Law and justice are viewed differently by the major powers and the weaker small
States. It is often argued that this is due to lack of agreed terminology which allow for liberal
interpretation based on self interest or simply national interest of the powerful. It is further
said that the very nature of customary international law makes differential State practice and
no definitive opinio juris on the subject. Finally, the ICJ itself has failed to give any clear
direction and decision on the subject.
In the interpretation of self-defence by States, whilst accepting the legality of it,
whether individually or collectively, it is a right that must be observed by strictly taking into
accounts the restrictions and conditions imposed by the UN Charter and recognising its
special character. The attack and invasion of Iraq led by the US and the UK and its allies
unilaterally is one of the acts of use of force outside the ambit of the UN Charter and
international law. In order to prevent a breach of international law and the UN Charter, any
act of retaliation, revenge or preemptive military action must be shown to be without doubt
and ambiguity that there is an impending or immediate or imminent threat of aggression
against the States taking such action. Failing which the action of the States on the so-called
exercise of right of self-defence itself can amount to act of aggression.
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International Peace and Security: The Achievement of the United Nations and the Way Forward
22 October 2022
E-ISBN 978-967-491-267-3
p. 17-34
3. ENGRAVING NATURAL JUSTICE IN THE
DECISION MAKING PROCESS OF THE
SECURITY COUNCIL
Muhamad Hassan Ahmad
Assistant Professor, Ahmad Ibrahim Kulliyyah of Laws,
International Islamic University Malaysia
Email: [email protected]
Ashgar Ali Ali Mohamed
Professor, Ahmad Ibrahim Kulliyyah of Laws,
International Islamic University Malaysia
Email: [email protected]
Ahmad Masum
Senior Assistant Professor, Faculty of Shariah & Law,
Sultan Sharif Ali Islamic University, Negara Brunei Durussalam
Email: [email protected]
Seeni Mohamed Nafees
Assistant Professor, Faculty of Shariah & Law,
Sultan Sharif Ali Islamic University, Negara Brunei Darussalam
Email: [email protected]
Mohammad Naqib Eishan Jan
Professor, Ahmad Ibrahim Kulliyyah of Laws,
International Islamic University Malaysia
Email: [email protected]
ABSTRACT
The primarily responsibility of the Security Council to maintain international
peace and security in accordance with the purposes and principles of the United
Nations (UN) on behalf of its Members. All of its decisions are binding on all the
UN members and thus it possesses the quasi-executive, quasi-legislative and
quasi-judicial power at the international level. Paradoxically, in most cases, its
decisions making processes do not really follow the principle of natural justice,
i.e., ‘audi alteram partem’ and ‘nemo judex in causa sua’. Thus, it is vital for the
Security Council to make its decisions in line with the principles of natural
justice. Accordingly, the paper aims at assessing how far the Security Council is
in compliance with the principles of natural justice. It is discovered that the
Security Council normally invites a party to a dispute to participate in its
discussions and this practice is in line with the principle of natural justice, i.e.,
Proceedings: International Conference on Peace and Conflict Resolution (ICPCR) 2022
International Peace and Security: The Achievement of the United Nations and the Way Forward
audi alteram partem. Although Article 27 (3) of the UN Charter requires the
Security Council to exclude a party to a dispute to abstain from voting in
decisions making relating to Chapter VI and Article 52 (3) of the UN Charter -
which is in line with the principle of natural justice, i.e., nemo judex in causa sua
- there is no consistency in practice. Hence, authors recommend that a party to a
dispute shall abstain from voting in all decisions of the Security Council by virtue
of being a party to the dispute regardless of whether it is a permanent or non-
permanent member of the Security Council, a member of the UN, or a non-UN
member.
Keywords: Natural Justice, Security Council, Voting, Veto, Abstention.
I. INTRODUCTION
The Security Council is primarily responsibility to maintain international peace and security
in accordance with the purposes and principles of the UN on behalf of its Members. Thus, it
is not at liberty to act as it wishes in discharging its duties. Generally, it maintains global
peace in two ways, i.e., by recommending to settle international disputes peacefully and by
resorting to enforcing action in the form of economic and political sanctions or even military
intervention. It is mainly composed of the five permanent members and ten non-permanent
members for the purpose of making it swift in taking necessary action in maintaining
international peace and security. Although only 15 members decide at the Security Council,
all of its decisions are binding on all the UN members. This makes it very powerful organ of
the UN which has the quasi-executive, quasi-legislative and quasi-judicial power at the
international level.
Ironically, the processes of decision making at the Security Council in most of the times
does not follow the principle of natural justice. Justice should be the ultimate objective of any
kind of proceeding and administration decision-making. Common law develops two
principles of natural justice on the basis of two Latin maxims, namely, ‘audi alteram partem’
and ‘nemo judex in causa sua’. These principles are used to provide minimum protection of
the rights of individual against arbitrary procedures. Hence, it is crucial for the Security
Council to make its decisions in line with the principles of natural justice.
II. PRINCIPLES OF NATURAL JUSTICE
Justice should not only be done but manifestly and undoubtedly seen to be done. Justice,
which is an end in itself, is the ultimate aim of any proceeding, court proceedings, quasi
judicial proceedings and administration decision-making. Regardless of religion, ideology
and legal system, justice is the common objective of all people. The pursuit of justice
especially in law and administration led to the development of the principles of natural
justice. One of the main aims of the rules of natural justice is to ensure that the decision-
making body adopts a procedure which is fair to all parties. In other words, the principle
seeks to achieve justice by preventing the decision from being tainted with the allegation of
miscarriage of justice on procedural grounds. The aim of protection afforded by the rules of
natural justice is to guarantee the basic fairness of procedures.
At common law, the principle of natural justice revolves around two maxims, namely,
audi alteram partem (no order should be made without hearing the other side) and nemo
judex in causa sua (a man should not be a judge in his own cause). These two maxims led to
the creation of two rules such as “the right to be heard” derived the first maxim and “the rule
against bias” derived the second one. The above maxims basically refer to impartiality and
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Engraving Natural Justice in the Decision Making Process of the Security Council
fairness.31 They are primarily intended to prevent miscarriage of justice. It has been enforced
extensively not only in the courts of law and in other quasi-judicial tribunals but also in
domestic and international enquiries as well as the administrative proceedings.32 Primarily, it
is intended to provide minimum protection of the rights of individual against arbitrary
procedures which is further discussed below.
2.1 AUDI ALTERAM PARTEM
The rule of hearing both sides is expressed through the Latin maxims: audi alteram partem
(hear the other side), and audiatur el altera pars (no man should be condemned unheard).
The role of a judicial, quasi-judicial or an administrative authority is to uphold the enacted
rules. In the absence of enacted rules, the authority should act according to the rules of
natural justice, which mean rules of fair play, fair go and impartial justice, i.e., act honestly
and in good faith.
The right to a fair hearing requires that an individual not be penalised by a decision
affecting his rights or legitimate expectations unless he has been given prior notice of the
case against him, a fair opportunity to answer it and the opportunity to present his own case.
Each individual must have the opportunity to present his version of the facts and to make
submissions and to answer the allegations against him. The adjudicator should ensure that the
accused has a proper opportunity to consider, challenge or contradict any evidence. He must
be fully aware of the nature of the allegations against him and have a proper opportunity to
present his own case.
The courts emphasise that every person whose civil rights are affected must have
reasonable notice of the case he has to meet. He must have reasonable opportunity to be
heard, in his defence, in an impartial tribunal, i.e., a person who is neither directly nor
indirectly a party to the case or interested in the matter, and lastly, the authority or the
tribunal should act fairly, impartially and reasonably. Furthermore, in deciding anything, they
have to consider and weigh all sides of the case. A decision proper can only be arrived at
after notice is given to all concerned, upon hearing their views and based on the evidence
collected.
Any violation of the above principles in the exercise of a judicial or quasi-judicial
power may result in the action being declared illegal and thus, void. For example, any
reliance on documents not shown to the accused or a denial of the right to cross-examine
witnesses or a denial of inspection of documents produced, among others, would constitute a
violation of the rules of natural justice.
2.2 NEMO JUDEX IN CAUSA SUA
Justice should not only be done but manifestly and undoubtedly seemed to be done. A person
ought not to be a judge in his own cause. A person selected to make an enquiry should have
an open mind and be neither biased against the defendant nor one who has prejudged the
issues. The principles governing the “doctrine of bias” revolves on the maxim nemo debet
esse judex in causa propria sua, meaning, “one who is interested in the subject matter of a
dispute, should exclude himself from acting a justice therein”.
In Franklin v. Minister of Town and County Planning,33 the House of Lords expressed
its view on the question of bias as follows: “My Lords, I could wish that the use of the word
‘bias’ should be confined to its proper sphere. Its proper significance, in my opinion, is to
denote a departure from the standard of even-handed justice which the law requires from
those who occupy judicial office, or those who [are] commonly regarded as holding a quasi-
31 B Surinder Singh Kanda v. The Government of the Federation of Malaya [1962] MLJ 169.
32 Frome United Breweries Co Ltd v. Bath Justices [1926] AC 586.
33 [1948] AC 87.
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judicial office, such as an arbitrator. The reason for this clearly is that, having to adjudicate as
between two or more parties, he must come to his adjudication with an independent mind,
without any inclination or bias towards one side or other in the dispute… To put the
principles above in perspective, if a member of a tribunal is ‘subject to bias’ (whether
personal or official) in favour of or against any party to a dispute, or is in such a position that
bias must be assumed to exist, he ought not to take part in the decision or sit on the tribunal,
and any direct pecuniary interest, however small in the subject matter of inquiry will
disqualify a judge, and any interest, though not pecuniary, will effect, if it will be substantial
to create a reasonable suspension of bias. The said principles are equally applicable to
authorities, though they are not courts of law or judicial tribunals, who have to act judicially
in deciding the rights of others, i.e., authorities who are empowered to discharge quasi-
judicial functions”.34
Thus, the two characters of the party and the judge cannot be combined into the same
person. A man can either be a party to the dispute or be a judge to decide the dispute. He
cannot be both. As aptly stated by Lord Carnworth, LC, in Ranger v. Great Western Rly,35 “A
judge ought to be, and is supposed to be indifferent between parties. He has, or supposed to
have, no bias inducing him to lean to the one side rather than to the other. In ordinary cases,
just ground of exception to a judge that he is not indifferent, and the fact that he is himself a
party, affords the strongest proof that he cannot be indifferent”.
Where the relevant person or body is required to determine questions of law or fact in
circumstances where its decisions will have a direct impact on the rights or legitimate
expectations of the individuals concerned, an implied obligation to observe the rules of
natural justice arises. Generally, in the event a hearing taking place or a decision being
reached breaches the rules of natural justice, the person charged may seek a review of the
hearing and/or decision. The principle prohibits an adjudicator to adjudicate upon a case in
which he is a party and has an interest. He must be indifferent between the parties. He must
have no pecuniary or proprietary interest in the outcome of the proceedings. The principle
also requires that the adjudicator must not be reasonably suspected, or show a real likelihood,
of bias. The fact that the adjudicator is a party or interested as a party, affords the strongest
proof that he cannot be indifferent, and in such situation justice may not be seen to be done.
The appropriate test for determining an issue of apparent bias is whether a fair-minded
and informed observer, having considered the relevant facts, would conclude that there was a
real possibility that the tribunal was biased. It often becomes necessary to consider whether
there is reasonable ground for assuming the possibility of a bias and whether it is likely to
produce in the minds of the litigants or the public at large a reasonable doubt about the
fairness of the administration of justice. It would always be a question of fact to be decided in
each case.
In criminal law, one of the fundamental rules of natural justice is that a person should
not be punished for an offence unless it has been established to the satisfaction of an
independent and unbiased tribunal that he had committed the crime. The tribunal must be
satisfied that all the physical and mental elements of the offence with which he is charged,
i.e., his conduct and state of mind, where relevant, were present. There must be actus reus
and mens rea. In short, the rules require that there be material before the court that is
logically probative of facts sufficient to constitute the offence with which the accused is
charge.36
It is interesting to note that the above proposition of rule of law has also found its way
into international treaties. For example, Article 6 of the European Convention for the
34 Per Justice Subra Rao in Nageswara Rao v. State of Andhra Pradesh AIR [1959] 1376 at 1379, SC.
35 [1854] 5 HL Cas 72, 79.
36 Ong Ah Chuan v. Public Prosecutor [1981] 1 MLJ 64.
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Engraving Natural Justice in the Decision Making Process of the Security Council
Protection of Human Rights and Fundamental Freedoms 1950, which concerns the right to a
fair trial, states that, “Everyone charged with a criminal offence shall be presumed innocent
until proved guilty according to law”.37 The Convention also requires that in the
determination of an individual’s civil rights and obligations or of any criminal charge against
him, he is entitled to a fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law. It is also required that the judgment shall be
pronounced publicly. However, the press and public may be excluded from all or part of the
trial in the interests of morals, public order or national security. The exclusion may also apply
in situations where the interests of juveniles or the protection of the private life of the parties
so require, or to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of justice.38
III. COMPOSITION OF THE UNITED NATIONS SECURITY COUNCIL
The Security Council is mainly composed of the five permanent members, i.e., the States that
emerged as leaders of the victory against the global menace of Fascism and Nazism after the
World War II (the US, the UK, France, Russia and China);39 and ten non-permanent members
whose temporary tenure in the Security Council is limited by the period of two years.40 These
non-permanent members are voted into the Security Council by regional groups of States,
which is further ratified by the UN General Assembly.41 As of October 2022, the non-
permanent members of the Security Council are: Albania, Brazil, Gabon, Ghana, India,
Ireland, Kenya, Mexico, Norway and United Arab Emirates.42 The five permanent members
are also known as the “Big Five” as they enjoy the status of permanency and also special
voting rights in the Council, i.e., the veto power while other ten non-permanent members
have no such power.43
It is reported that more than 50 UN Member States have never been given chance to be
the member of the Security Council. However, a UN Member State, that is not a Member of
the Security Council, may participate in the discussion of the Security Council which has
impact on its national interest without the right to vote.44 Further, the Security Council may
invite even non-members of the UN to participate in its discussions if they are parties to a
dispute being considered by the Council without the right to vote and also the conditions set
for such participation.45 This practice is in line with the principle of natural justice which
expresses in Latin as: audi alteram partem (hear the other side) and it guarantees the right to
be heard to all parties involved in a dispute being discussed at the Security Council regardless
37 Article 6 (2) of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950.
38 Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950.
39 Lowe, Vaughan, Adam Roberts, Jennifer Welsh and Dominik Zaum (eds), The United Nations Security
Council and War: the Evolution of Thought and Practice Since 1945 (Oxford University Press, 2010), 4-5; see
also Juergen Dedring, United Nations Security Council in the 1990s: The Resurgence and Renewal (SUNY
Press, 2008), 3; Hitoshi Nasu, “The UN Security Council’s Responsibility and the ‘Responsibility to
Protect’,” Max Planck Yearbook of United Nations Law Online 15, No. 1 (2011): 377-418; J. Mohan Malik,
“Security Council Reform: China Signals Its Veto,” World Policy Journal 22, No. 1 (2005): 19-20.
40 Alejandro Rodiles, “Non-Permanent Members of the United Nations Security Council and the Promotion of
the International Rule of Law,” Goettingen J. Int’l L. 5, (2013): 334-3347.
41 Johan Verbeke, “What Is It Like To Be a Non-Permanent Member of The UN Security Council?,” Security
Policy Brief 96, (2018): 1-3.
42 United Nations Security Council, “Current Members,” https://www.un.org/securitycouncil/content/current-
members (accessed 04 October 2022); see also Article 23 of the UN Charter.
43 Peter Malanczuk, Akehurst’s Modern Introduction to International Law (7th Edn.) (London: Routledge, 2000),
373.
44 Article 31 of the UN Charter.
45 Article 32 of the UN Charter.
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Proceedings: International Conference on Peace and Conflict Resolution (ICPCR) 2022
International Peace and Security: The Achievement of the United Nations and the Way Forward
of whether a party to such a dispute is member of the Security Council or even member of the
UN.
IV. FUNCTIONS AND POWERS OF THE SECURITY COUNCIL
The primary responsibility of the Security Council is to preserve the global peace in
accordance with the Purposes and Principles of the UN on behalf of its Members.46 Hence,
the Security Council is not at liberty to act at whim in discharging its duties.47 The specific
powers granted to the Security Council for the discharge of these duties are laid down in
Chapters VI, VII, VIII, and XII of the UN Charter.48 In general, the Security Council
maintains global peace in two ways. Firstly, the global peace is maintained by peaceful
settlement of international disputes as provided under Chapter VI (Articles 33-38).49
Secondly, the Security Council may resort to enforcing action in the form of economic and
political sanctions or even military intervention as stipulated under Chapter VII (Articles 39-
51).50
The Security Council plays a principal role in the governing of trusteeship territories, or
particular areas that need assistance in governing. Besides, making any amendment to the UN
Charter requires the ratification of all permanent members of the Security Council and the
two-thirds majority in the General Assembly. Furthermore, the appointment of the ICJ judges
is also done jointly by the General Assembly and the Security Council.51
V. LEGAL EFFECTS OF THE DECISIONS OF THE SECURITY COUNCIL
Article 25 of the UN Charter asserts the binding nature of the Security Council’s decisions
upon other members of the UN by stating that: “The Members of the UN agree to accept and
carry out the decisions of the Security Council in accordance with the present Charter”.
Hence, the Security Council as the main organ of the UN acts on behalf of all the members of
the UN, and its decisions are binding upon all members. The broad range of Security
Council’s powers, as mentioned in the Article 25 of the Charter, can be grouped into two
types of powers: the peaceful settlement of disputes and deliberation on the enforcement
measures to be taken in necessary.52 It is important to reiterate that all these decisions,
especially the ones made by the Security Council, are binding on all the UN members, and
non-compliance is not tolerated.53 In such a case, there is an array of possible sanctions,
ranging from political pressure to economic restrictions, and even the use of force can be
utilised to make the members comply with the decision of the Security Council.54 Hence, as
46 Article 24 (1) of the UN Charter.
47 Hans Corell, “The Mandate of the United Nations Security Council in a Changing World,” in International
Law and Changing Perceptions of Security, eds. Jonas Ebbesson, Marie Jacobsson, Mark Adam Klamberg,
David Langlet and Pål Wrange (Brill Nijhoff, 2014), 39-58.
48 Article 24 (2) of the UN Charter.
49 Edward C. Luck, UN Security Council: Practice and Promise (Routledge, 2006), 21-22.
50 Shirley V. Scott, International Law in World Politics: An Introduction (Boulder: Lynne Rienner Publishers,
2012), 100-102; see also Niels Blokker, “Is the Authorization Authorized? Powers and Practice of the UN
Security Council to Authorize the Use of Force by ‘Coalitions of the Able and Willing’,” European Journal of
International Law 11, No. 3 (2000): 541-568.
51 Malcolm N. Shaw, International Law (6th Edn.) (Cambridge: Cambridge University Press, 2008), 1209.
52 Rosalyn Hlggins, “The Advisory opinion on Namibia: Which un Resolutions are Binding under Article 25 of
the Charter?,” International & Comparative Law Quarterly 21, No. 2 (1972), 275-277.
53 Hans Kelsen, “Collective Security and Collective Self-defense under the Charter of the United
Nations,” American Journal of International Law 42, No. 4 (1948): 783-796.
54 Gabriël H. Oosthuizen, “Playing the Devil’s Advocate: The United Nations Security Council is Unbound by
Law,” LJIL 12, (1999): 549-563.
22
Engraving Natural Justice in the Decision Making Process of the Security Council
far as the system of UN is concerned, the Security Council fundamentally has quasi-
executive, quasi-legislative and quasi-judicial power in the international arena.55
VI. VOTING PROCEDURE
Article 27 of the UN Charter reserves the right to vote in making decisions at the Security
Council only for its 15 Member States. Although non-members can participate in the
discussion on any question brought before the Security Council when it affects their
interest,56 they have no voting right. Article 27 provides that:
1. “Each member of the Security Council shall have one vote.
2. Decisions of the Security Council on procedural matters shall be made by an
affirmative vote of nine members.
3. Decisions of the Security Council on all other matters shall be made by an
affirmative vote of nine members including the concurring votes of the permanent
members; provided that, in decisions under Chapter VI, and under paragraph 3 of
Article 52, a party to a dispute shall abstain from voting”.
It is clear that there is a distinction between procedural and substantive matters when it
comes to decision making. On procedural matter such as decisions under Article 28-32 of the
UN Charter and question relating to the agenda, the votes of any nine members is enough
regardless of whether they are permanent or non-permanent members. On substantive matters
such as a decision calling for direct measures related to the settlement of a dispute or
decisions to take enforcement action, a decision will only be taken by the affirmative votes of
any nine members including particularly the concurring votes of the permanent members.
The Security Council determines as to whether a particular question is procedural or
substantive. This exercise may lead to a situation where a permanent member using veto
twice or better known as the ‘double veto’ in which a veto is first used to establish that a
given question is non-procedural, and then on the vote on the question itself. In this way, one
of the Big Fives can use veto in attempting to treat a question as procedural, and then proceed
to veto any draft resolution dealing with that question. For example, the Soviet Union usually
abused the double veto doctrine by using to convert a number of procedural questions into
substantive matters. In such a situation, the device of presidential ruling was used to prevent
such abuse whereby the president reacts to an abuse of the double veto by ruling that the
preliminary question is itself procedural and his ruling is final unless it is reversed by a
procedural vote of the Security Council.
By reading the wordings of Article 27 (3) of the UN Charter, i.e., “affirmative vote of
nine members including the concurring votes of the permanent members”, it is somewhat
unclear whether it requires the affirmative vote of all the five permanent members of the
Security Council on a decision regarding a substantive matter. This may mean that even an
abstention from voting by one permanent member could be construed as veto. However, what
can be observed from the practice of the UN is that an abstention from voting by a member of
the Big Five does not count as a veto. The International Court of Justice in the case of
Namibia (South West Africa)57 opined that: “[T]his procedure followed by the Security
Council (since 1946) has been generally accepted by Members of the United Nations and
evidences a general practice of that Organization”.58 If all or some or one of the permanent
55 Ghulam Mohammad Qanet, Mohammad Naqib Ishan Jan, Muhamad Hassan Ahmad, Ahmad Masum and
Seeni Mohamed Nafees, “Curbing the security council’s powers: thinking the unthinkable?,” Journal of Asian
and African Social Science and Humanities 7, No. 1 (2021): 1-15.
56 Articles 31 and 32 of the UN Charter.
57 [1971] ICJ Rep. 16.
58 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
Notwithstanding Security Council resolution (Advisory Opinion) [1971] ICJ Rep. 16.
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Proceedings: International Conference on Peace and Conflict Resolution (ICPCR) 2022
International Peace and Security: The Achievement of the United Nations and the Way Forward
members must either vote yes or abstain, a resolution will still be passed as long as it receives
nine affirmative votes. A resolution on substantive matter will not be passed if there is even
one active veto from one of the Big Fives even if it receives 14 affirmative votes of all other
members of the Security Council.
Nonetheless, absence by a permanent member from voting is also not regarded as a
veto. Non-participation is equal to abstention. For instance, the temporary absence of the
Soviet Union from the Security Council in 1950 enabled it to authorise military action against
North Korea.59 The Soviet Union by being absent from the Security Council did violate
Article 28 (1) of the UN Charter, which requires each members of the Council to be present
at the seat of the Organization. Hence, the illegal act of a permanent member was not allowed
to bring the whole work of the Security Council to a halt. On this reasoning, the absence of a
permanent member should not prevent the Security Council from taking a decision.60
VII. CRITICISMS AGAINST THE VETO POWER
The conferment of veto power to the Big Five draws a fair share of criticisms. Some
commentators claim that the Security Council becomes undemocratic as only five permanent
members can use such power and makes it ineffective as only the powerful veto-wielding
permanent members dominate the UN policy making processes. In practice, Big Five
frequently veto the decisions that have adverse effects on their own interests. Despite the
geographical representation of the other ten elected members, the Security Council remains
imbalanced due to the veto power. Although countless debates are going for the reformation
the UN Security Council by enlarging its membership in making it more balanced,
democratic and effective, there is no tangible result up until now and it is doubtful whether
the all existing permanent members may vote in favour of the reform or may veto it. At the
time of writing this paper, the latest call came from the US President Joe Biden who urged
the UN to be more inclusive in handling global security and urges to expand the Security
Council in his speech at the 77th session of the United Nations General Assembly on 21
September 2022.61
The veto power of the Big Five has often been criticized as a crippling limitation on the
powers of the Security Council for it is this power that has undermined the ability of the
Security Council to carry out its responsibility and it has prevented it from acting in many of
the armed conflicts in which the permanent members were directly or indirectly involved or
had an interest.62 It was the veto power of the Big Five that paralysed the Security Council
throughout the Cold War period, and even now it has crippled the Council. Overall, the five
permanent members cast 199 vetoes between 1946 and 198963 - well over four per year -
preventing the Council from taking action on many important matters. Although since the end
of the Cold War the use of the veto has diminished dramatically, as between January 1990
59 UN Security Council Resolution 83 (27 June 1950).
60 Mohammad Naqib Ishan Jan, Principles of Public International Law: A Modern Approach, (Kuala Lumpur:
IIUM Press, 2011), 343-346.
61 Editorials, “President Biden Urges UN Reform,” October 05, 2022, https://editorials.voa.gov/a/president-
biden-urges-un-reform/6776997.html (accessed 10 October 2022); Hayes Brown, “Biden wants to update the
U.N. Quick question: How?,” September 24, 2022, https://www.msnbc.com/opinion/msnbc-opinion/biden-
wants-u-n-security-council-changes-lacks-clear-answers-n1299062 (accessed 10 October 2022).
62 See Peter Malanczuk, Akehurst’s Modern Introduction to International Law (7th Edn.) (London: Routledge,
2000), 375.
63 Between 1946 and 1989, the USA and USSR cast respectively 60 and 79 vetoes. The topics vary from the
Korean War and the Middle East conflict to applications for membership. Moscow especially exercised its veto
power in the early period, while Washington cast its first veto in 1970. For more information on numbers and
subjects of veto see Global Policy Forum, “Subjects of UN Security Council Vetoes,”
https://archive.globalpolicy.org/security/membship/veto/vetosubj.htm (accessed 10 October 2022).
24
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