Remembering Peace in a Time of War: Why International Law Matters More Than Ever | Building Peace
Re-reading Article 39 of the UN Charter in the Language of Peace
Article 24 of the UN Charter grants the UNSC the ‘primary’ responsibility for the ‘maintenance of international peace and security,’ and its drafting history (Hans Kelsen, pp. 279-295) indicates that the Security Council’s (UNSC) methods of operations ought to be pacifist. The pacifists not only denounce war but also promote pursuing positive peace through non-violent measures for lasting peace. This pacific approach is fully integrated into the UN Charter, finding echoes throughout its text. The ‘maintenance of international peace and security’ can be found in Article 1(1), meaning ‘to take effective collective measures for the prevention and removal of threats to the peace’ and it is rooted in both positive and negative peace. Thus, the UNSC’s mandate includes both a reactive dimension and a proactive one in maintaining both aspects of peace. In this article, I propose a closer look at reading the powers of the UNSC acting under Chapter VII, specifically, Article 39—concerning ‘threat to peace’ through a pacifist lens, refocusing on the UNSC’s primary responsibility to maintain peace under Article 24.
UNSC’s practice under Article 39
Under Article 24(1), the ‘maintenance’ of international peace and security is the primary responsibility of the UNSC. Article 24(2) requires the UNSC to act in accordance with the UN’s purposes and principles. Hans Kelsen has convincingly argued that Article 24 confers the UNSC the primary responsibility for achieving the UN’s general purpose. It can be seen as the operational version of the UN’s purpose in maintaining international peace and security, which suggests using peaceful means and promoting positive and negative peace, thereby reflecting pacifists’ views, such as Johan Galtung and Duane L. Cady.
The maintenance of peace is to be a preventive tool rather than a reactive tool under Chapter VII, and thus it goes beyond reacting to conflicts or repairing a broken peace. It includes positive and negative peace and thus integrates both proactive and reactive elements in maintaining the peace. While the Charter does not define ‘peace,’ it is generally interpreted negatively as the absence of conflict and positively as the presence of stability in social, economic, humanitarian, and ecological conditions. These divergent interpretations were also confirmed in the UNSC’s Presidential Note in 1992 (S/23500), which recognised non-military instability as a threat to peace.
However, the UNSC’s practice shows that it tends to interpret Article 39 through the lens of conflict, focusing more on repairing peace post facto than on proactively maintaining it. The Council reads situations on the consequences of conflict as creating the threshold of ‘threat to the peace’ invoking Article 39. Several UNSC Resolutions illustrate this tendency. For instance, UNSC Resolution 161 (1961) expressed concern at the ‘grave repercussions of these crimes and the danger of widespread civil war and bloodshed in the Congo and the threat to international peace and security’. Another similar example is found in the UNSC Resolution 688 (1991), which condemned ‘the repression of Iraqi civilians population in many parts of Iraq, including most recently in Kurdish populated areas, the consequences of which [a massive flow of refugees to the international frontiers] threaten international peace and security in the region.’ Further, UNSC Resolution 713 (1991) determined the fighting in Yugoslavia, which caused a heavy loss of human life and material damage, and the consequences for the region and neighbouring countries as a threat to peace. Similarly, the UNSC Resolution 929 (1994) determined that ‘the magnitude of the humanitarian crisis in Rwanda constitutes a threat to peace and security in the region.’
Re-reading Article 39 of the UN Charter
Although the examples provided are not exhaustive, it is clear that most UNSC’s practice shows a greater interest in reading Article 39 as repairing peace rather than maintaining peace. Can there be an alternative reading of Article 39? I argue that at least two ways of reading it differently may be proposed. Firstly, a literal interpretation harmonising Chapter V with Chapter VII of the Charter, and secondly, conceptually broadening Article 39 by invoking the reading available under Article 24.
First, lex specialis non derogat legi generali. While Article 24 of Chapter V provides a general provision for the UNSC’s role in maintaining international peace and security, Article 39 is a specific provision with the specific powers granted to the UNSC to maintain or restore peace, asking it to determine the existence of ‘threats to peace’. The lex specialis and legi generali can be used for the interpretation and are applied in conjunction for clarification and application of one another; they may also apply between provisions within a single Charter. For logical consistency, the central idea of peace in Article 39, under Chapter VII should be read as consistent with the functions of the Security Council under Chapter V. Using ordinary interpretation, “peace” should have the same meaning as under Articles 1(1) (purpose of the UN) and 24(2) that informs the general powers of the UNSC as it does under Chapter VII articles. Therefore, within the framework of the Charter, Article 39 must be read in conjunction with Article 24. Put otherwise, any determination of a threat to the peace should place the maintenance of peace as its primary objective. The International Law Commission’s conclusion on the omnipresence of legi generali supports this reading, where legi generali will remain valid and applicable, continuing to guide interpretation and application for harmonisation.
Secondly, the UNSC’s approach has been inconsistent due to the lack of specific assessment criteria defined in Article 39, preventing meaningful action in the humanitarian crises in Gaza and Myanmar. Despite the wide and deep impact of these conflicts, the UNSC is reluctant to determine them as threats to peace due to the principle of non-intervention and veto power. However, if Article 39 is re-read to remind the UNSC of its primary responsibility for maintaining peace under Article 24 by including a proactive dimension to maintaining peace, rather than merely restoring it, and a gateway to coercive intervention, this could overcome the inconsistency in practice stemming from the absence of specific assessment criteria. Re-reading Article 39 in terms of both preventive and reactive tools would oblige the UNSC, on the basis of Article 24, to act more effectively in determining threats to peace situations and responding to them proactively rather than just repairing them, thereby reducing the inconsistencies.
Conclusion
The UN Charter clearly states that the UNSC has primary competence for maintaining peace and security. While peace in the UN system has evolved to include both positive and negative definitions of maintaining peace, the UNSC resolutions read Article 39 mainly through the lens of conflicts in the sense of repairing peace. The pacifist reading of Article 39—the maintenance of peace—is missing in the UNSC’s practices. Therefore, this post proposes that Article 39 be re-read along with Article 24 in the language of peace so that the UNSC can carry out its ‘primary’ responsibility for maintaining international peace and security effectively.