Regional peacekeeping and enforcement action
There was controversy as to the legality of all these operations.2 They have been discussed in detail by many writers, so in its discussion of this early practice this chapter will focus on the general lessons to be learned from an overview; it will examine the common themes that emerged, the limitations on what may be expected from regional peacekeeping, and the uncertainties about the applicable law that remained at the end of the Cold War. During the Cold War there was not much regional peacekeeping activity, and what there was was controversial. Partly because of the divisions between states, little in the way of clear rules emerged from Security Council debates and resolutions. Recent practice shows a significant increase in regional activity and a new awareness of the possibilities offered by regional organizations. The surge in UN peacekeeping since 2003 has led to increasing calls for partnership with regional organizations to share the burden;3 the creation of the AU as the successor to the OAU has led to greater regional activity in Africa; NATO has operated alongside UN missions in Afghanistan and Kosovo; the EU has taken on a new role in cooperation with the UN.4 However, some legal uncertainties remain and the practical problems with regional operations have become even more apparent outside the Cold War context.
The Secretary-General, in his Agenda for Peace, did not set forth any formal pattern of relations between the UN and regional organizations or call for any specific division of labour. But he argued that regional organizations possessed a potential that should be utilized for preventive diplomacy, peacekeeping, peacemaking, and post-conflict peace building. The Security Council would keep its primary role in the maintenance of international peace and security, but ‘regional action, as a matter of decentralisation, delegation and cooperation with UN efforts could not only lighten the burden of the Council, but also contribute to a deeper sense of participation, consensus and democratization in international affairs’. The Secretary-General explained how this might be achieved. First, consultations between the UN and regional arrangements or agencies could help to build international consensus on the nature of the problem and the measures required to address it. Second, complementary efforts by regional organizations and the UN in joint undertakings would encourage states outside the region to act supportively. Third, if the Security Council were to choose to authorize a regional arrangement or organization to take the lead in addressing a crisis within its region it could lend the weight of the UN to the validity of the regional effort.5
COOPERATION BETWEEN THE UN AND REGIONAL ORGANIZATIONS
The years since the Agenda for Peace have partly fulfilled the Secretary-General’s hopes. There has been a significant increase in consultation and cooperation between the Security Council and regional organizations.6 The resolutions of the Security Council reflect the transformation of the Cold War situation as regards regional action. These resolutions show an increased awareness of regional organizations and of their growing role in international peace and security. A 1988 study of Security Council resolutions found that references to regional organizations were rare; it cited only two such references in the entire history of the UN.7 In 1989 there were no references and in 1990 only one, but since 1991 this picture has been transformed. Many resolutions referred to regional organizations in the context of the former Yugoslavia, Western Sahara, Rwanda, Mozambique, Angola, Somalia, Burundi, Liberia, Sierra Leone, Eritrea and Ethiopia, Haiti, and the former USSR. Such resolutions sometimes expressly recalled Chapter VIII of the UN Charter, or expressed appreciation of regional efforts aimed at settlement of a conflict, or supported cooperation between the UN and regional organizations, or endorsed regional efforts. Most of these references concerned attempts at the peaceful settlement of a dispute. Some showed the Security Council urging the regional organization to take the leading role; others authorised joint operations; yet others authorised the use of force by a regional organization.8
The High-level Panel,9 the Secretary-General in his report In Larger Freedom,10 and the 2005 World Summit all called for a stronger relationship between the UN and regional and subregional organizations, pursuant to Chapter VIII of the Charter. The World Summit Outcome Document resolved to expand consultation and cooperation through formalized agreements between the respective secretariats, and to ensure that regional organizations that have a capacity for the prevention of armed conflict or peacekeeping consider placing such capacity in the framework of the UN Standby Arrangements System.11
In response to the World Summit Outcome Document, the Security Council passed Resolution 1631 (2005), its first resolution on cooperation with regional and subregional organizations. This emphasized that the growing contribution by regional organizations could usefully complement the work of the UN in maintaining peace and security, and stressed that such contribution must be made in accordance with Chapter VIII of the UN Charter. The Security Council expressed its determination to take steps towards further cooperation, and invited regional and subregional organizations to place their capacities in the framework of the UN standby arrangements system. It urged all states to contribute to strengthening the capacity of regional and subregional organizations, in particular in Africa, including through the provision of human, technical and financial assistance. It stressed that it was important to develop the ability of regional organizations to deploy peacekeeping forces rapidly in support of UN peacekeeping operations or other Security Council mandated operations. The Security Council called for better communication between the UN and regional and sub-regional organizations; it recalled the obligation for regional organization to keep the Security Council fully informed under Article 54 of the UN Charter.12 It also requested the Secretary-General to report on the opportunities and challenges involved and to explore the possibility of framework agreements on cooperation.
In 2006 the Secretary-General published his Report, A regional-global security partnership: challenges and opportunities.13 This said that it had long been recognized that the UN was not equipped to handle every crisis in the world on its own: a partnership between the UN and regional and other intergovernmental organizations should be developed if peace and security were to be maintained. The report described the history of cooperation between the UN and regional organizations and current operational cooperation.14 It then made proposals for the establishment of a more effective partnership, based on a clear division of labour that reflects the comparative advantage of each organization in conflict prevention, peacemaking, peacekeeping and peacebuilding. Also important was the development of a programme of action for capacity building, especially in Africa. The UN was exploring cooperation on standby arrangements and rapid deployment.
The Report noted that the Secretary-General holds annual meetings with the heads of regional organizations; he makes regular reports on cooperation between the UN and regional organizations.15 The Security Council also holds annual meetings with representatives of regional organizations to consider various aspects of cooperation.16 It has issued a series of statements which call for increased cooperation based on complementarity and the comparative advantages of the different organizations.17 In the Security Council debates states have shown general enthusiasm for cooperation. Many argue that regional organizations have not only the advantage of proximity to threats, but also a greater understanding of them, and that a regional organization is in a better position to detect early symptoms of conflict and to act promptly. It may be able to provide a rapid response when the UN is not able to act; NATO, the EU and the AU have developed, or are developing, rapid response capabilities. But there is also recognition that the capacity of regional organizations for sustained operations may be limited, and that it may be necessary for the UN to step in when the threat goes beyond regional capabilities. Some warn that there can be no enforcement action without Security Council authorization.
In practice the aspirations of the Secretary-General as set out in the Agenda for Peace have been met in some respects. Regional organizations have taken the leading role in some conflicts. The Security Council has left it to the CSCE (now the OSCE) to take the leading role in the conflict between Armenia and Azerbaijan over the Armenian-populated enclave of Nagorno-Karabakh in Azerbaijan. After the escalation of the conflict in 1993 the Security Council saw its role as essentially one of support for the efforts of the CSCE. The CSCE agreed in principle on the establishment of peacekeeping forces, but these were never deployed.18 The Security Council has also relied on the CSCE to deal with ethnic conflict in other former USSR republics, in Moldova, in South Ossetia in Georgia, and in Chechenya in Russia. In the Federal Republic of Yugoslavia in 1998 the OSCE agreed on the deployment of 2,000 unarmed observers in Kosovo in response to the conflict between the federal government and the ethnic Albanian population of Kosovo.19
It is in Africa that regional and subregional organizations have played the most significant role in recent years. ECOWAS, a sub-regional organization, established peacekeeping operations in Liberia (1990–97, 2003), Sierra Leone, Guinea-Bissau and Côte d’Ivoire. The Security Council turned to the OAU to take the leading role in Burundi.20 After the abortive coup of October 1993 the OAU announced that it was sending a team of military observers. Burundi had originally asked the UN for 1,000 troops but the UN, apparently made cautious by its experience in Somalia, refused this request. The Security Council limited its involvement to welcoming the OAU military observers.21 After the coup in July 1996 the Security Council again limited itself to a resolution welcoming OAU efforts and mentioning the possibility of sanctions.22 Subsequently South Africa took a leading role in pursuing a peace settlement, and following the 2000 Arusha Peace Agreement it sent in a peacekeeping force in October 2001 with the consent of the government.23 Subsequently, an AU observer mission, AMIB, made up of troops from Mozambique, Ethiopia and South Africa, was established.24 This was the first ever AU peacekeeping mission. However, AMIB ran into funding problems, and the AU requested UN assistance.25 This is a recurring problem for the AU and one which has weakened its peacekeeping capacity. In Resolution 1545 (2004) the Security Council welcomed the efforts of AMIB; it noted the statement of the President of Burundi in favour of transforming the AU force into a UN peacekeeping operation and accordingly provided for the establishment of ONUB to take over from AMIB.26 The AU also later took the lead in creating operations in Darfur and Somalia.
In the 1990s the UN sought to induce the OAU (now the AU) to take a more active role in the resolution of conflicts in Africa. Following an OAU/UN cooperation agreement in 1990, the OAU established a Mechanism for Conflict Prevention, Management and Resolution in 1993. These provisions were adopted despite the traditional opposition of the OAU to intervention.27 In 1997 the Security Council welcomed the important contributions of the OAU through its Mechanism to preventing and resolving conflicts in Africa and looked forward to a stronger partnership in conformity with Chapter VIII.28 The Security Council went on to support enhancement of the capacity of African states to contribute to peacekeeping operations and asked the UN Secretary-General to submit a report with concrete recommendations on the sources of conflict in Africa and ways to prevent and address these conflicts. Accordingly in 1998 the Secretary-General issued a Report on the causes of conflict and the promotion of durable peace and sustainable development in Africa.29 The overall approach is very cautious. The Secretary-General discussed three possibilities for UN support of regional and subregional activity. First, the authorization of the use of force by member states. But he said that this raised the problem of the ability properly to monitor such action. Second, the co-deployment of UN and regional forces. This might be modelled on the UNOMIL collaboration with ECOMOG in Liberia,30 but it could not be concluded that it would always be possible to delegate to regional organizations. The impartiality of member states could be open to question. Third, the strengthening of African capacity for peacekeeping. On the last possibility, assistance in the form of training, joint peacekeeping exercises, and partnerships between African states and donor states all had a role.31
The OAU’s successor organization, the AU, has taken a more active approach to peacekeeping; its Constitutive Act is more positive about AU intervention in member states than the earlier OAU Charter. Under Article 4 it allows not only the right of the AU to intervene in respect of war crimes, genocide and crimes against humanity, but also the right of member states to request intervention from the AU in order to restore peace and security.32 The AU has made formal provision for peace support operations in the 2002 Protocol relating to the establishment of the Peace and Security Council of the AU.33 This set up a fifteen-member Peace and Security Council as a standing decision-making organ for the prevention, management and resolution of conflicts: ‘The Peace and Security Council shall be a collective security and early-warning arrangement to facilitate timely and efficient response to conflict and crisis situations in Africa.’ The Protocol also provides for the creation of an African Standby Force.34 The Security Council welcomed the Protocol and called on the international community to support AU efforts through provision of training, expertise and resources. It also underlined the importance of the Security Council being kept fully informed of regional activities under Article 54.35
The UN has been active in encouraging the enhancement of African peacekeeping capacity and in encouraging financial, technical and training assistance.36 The World Summit Outcome Document called for a ten-year capacity-building programme for the AU,37 and the UN Secretary-General is working to implement this.38 The 2006 Declaration on Enhancing UN–AU Cooperation adopted a framework for the programme.39 The General Assembly has expressed its support, and has called on the UN system to intensify its assistance to the AU in strengthening the institutional and operational capacity of its Peace and Security Council.40 As part of this ten-year capacity-building programme, the EU has established the Peace Facility for Africa with the purpose of financing costs incurred by peacekeeping forces.41 There have been increasing calls for the UN to finance AU peacekeeping operations, especially where the Security Council has authorized the creation of the force under Chapter VII.42
In March 2007 the Security Council held an open debate on the relationship between the UN and regional organizations, in particular the AU, in the maintenance of international peace and security. The peace and security challenges being addressed by the AU in Darfur and Somalia had raised new questions. The Assistant Secretary-General for Peacekeeping said that the partnership between the UN and the AU was the most intense of all regional partnerships, encompassing all phases of conflict management throughout the whole continent. The creation of the AU, with its commitment to develop peacekeeping capabilities, had opened up new avenues and challenges for cooperation. Over 75 per cent of UN peacekeepers were deployed in Africa, and Africa provided up to 40 per cent of peacekeepers to the UN.43
The Security Council recognized that in some cases the AU may be authorized by the Security Council to deal with collective security challenges on the African continent. It stressed the importance of supporting and maintaining in a sustained way the resource base and capacity of the AU. It requested the Secretary-General to provide a report on specific proposals on how the UN could better support arrangements for further cooperation and coordination with regional organizations, in particular the AU.44
The recent experience in Somalia and Darfur has demonstrated the problems facing AU peacekeeping. As described in Chapter 8 above, the situation in Somalia had remained unstable since the withdrawal of the UN force in 1995. Attempts to establish an effective government repeatedly failed; the Transitional Federal Government (TFG) recognized by the UN and the AU could not exercise control over the territory of Somalia and was challenged by the Union of Islamic Courts (UIC). IGAD and the AU were playing the leading role in seeking a negotiated settlement, and there were proposals for the establishment of an IGAD or AU force in support of the TFG.45 The UIC stated its intention violently to oppose any such force.46 Nevertheless the Security Council welcomed the involvement of IGAD and the AU, and in Resolution 1725 (2006), under Chapter VII, it authorized IGAD and the member states of the AU to establish a protection and training mission in Somalia. This was to monitor progress by the transitional government and the UIC in implementing agreements.47 However, the large-scale invasion of Somalia by Ethiopia in support of the TFG in December 2006 meant that this force was never deployed.48 There were also some concerns that an IGAD force could not be impartial, given that the membership of IGAD included states with an interest in the situation in Somalia.49
After the Ethiopian invasion the Security Council unanimously passed Resolution 1744 (2007). Under Chapter VII it authorized the member states of the AU to establish AMISOM, an 8,000-strong stabilization force; AMISOM was authorized to take all necessary measures to carry out its mandate. It was to evolve into a UN operation that would support the long-term stabilization and post-conflict restoration of Somalia.50 The AU Peace and Security Council stated its conviction that, ‘following the recent developments (ie the Ethiopian invasion) that have enabled the TFG to take over Mogadishu and take control of the country, there exists today a unique and unprecedented opportunity to restore structures of government in Somalia and bring about lasting peace and reconciliation’.51 The Secretary-General also said that ‘the current situation may represent the best opportunity that Somalia has had in years to find a long-term solution to its protracted conflicts by putting in place a functioning and effective state’.52 This was to prove wildly over-optimistic: the TFG was not able to assert effective control over the territory; the security situation in Mogadishu deteriorated after the defeat of the UIC; there was public resentment at the continued presence of the Ethiopian troops and serious clan-related fighting was resurgent.
The AU had serious difficulties in securing the troops for AMISOM: only Uganda contributed forces in 2007 and AMISOM fell far below the authorized numbers. It was subject to repeated attacks and was not able to carry out its mandate effectively.53 The Secretary-General commended the AU for its strong determination to contribute to the stability of Somalia. The deployment of the AU mission in such a challenging and volatile security environment was a daunting task that required and deserved the full support of the international community.54 The Security Council urged member states to provide resources to AMISOM.55 The AU told the Security Council that AMISOM was suffering from serious financial and logistical constraints, the task was far beyond the capabilities of the AU, and there was a need for a UN force to take over.56 But the Secretary-General reported that under the prevailing political and security situation the deployment of a UN peacekeeping operation could not be considered a realistic and viable option.57
When conflict broke out in Darfur in 2003 it was again the AU which took the lead in seeking a solution.58 It helped the government and rebel groups to conclude the N’Djamena Humanitarian Ceasefire Agreement in April 2004, and initially agreed to send a small monitoring force.59 It then incrementally expanded the force (AMIS) from a monitoring force to a peacekeeping force with a final authorized strength of 6,171 military personnel: its mandate was to monitor and ensure compliance with the N’Djamena Agreement, to assist in confidence building and to contribute to a secure environment for the delivery of humanitarian relief and the return of displaced persons. Within this framework AMIS was also to protect civilians from imminent threat, although this was limited to those it encountered and it was understood that the protection of the civilian population was the responsibility of the government.60 The government of Sudan and various rebel groups consented to the deployment of AMIS.61 Canada, the EU and the USA pledged financial support and the EU, NATO and the USA participated in the airlift of the African troops.62 The UN Security Council endorsed the initial deployment of AMIS and its later expansion and urged the international community to continue to support it.63
But there were repeated violations of the ceasefire by all parties.64 The government of Sudan did not carry out the obligations imposed on it by the Security Council to secure the disarmament of the ‘janjaweed’ militias, and the Security Council threatened to impose sanctions on it.65 The government of Sudan accused the Security Council of bias and was reluctant to accept a UN force to replace AMIS when the Security Council called for this at the start of 2006.66 AMIS had been repeatedly commended by the Secretary-General for its proactive and positive role, carried out with limited resources, but it was subject to repeated attacks and was too small and inadequately equipped to provide security throughout the vast area of Darfur.67 As the AU envoy for Darfur put it in a briefing to the Security Council, AMIS, as presently constituted, was not optimally equipped to fulfil its mandate.68 A Comprehensive Peace Agreement for Darfur was finally concluded in May 2006, and this made a further expansion of AMIS necessary until it could be replaced by a much larger and more mobile UN operation, better equipped and with a stronger mandate.69 The Security Council therefore unanimously passed Resolution 1679 (2006) under Chapter VII calling on the AU to agree with the UN on requirements to strengthen the capacity of AMIS to enforce the security arrangements of the Comprehensive Peace Agreement with a view to a follow-on UN operation.70 It then attempted to expand the mandate of the UN Mission in Sudan (already present under the 2005 North/South Peace Agreement) to Darfur, but this proved unacceptable to the government of Sudan.71 So negotiations began on the deployment of a hybrid UN/AU force.72 It was not until June 2007 that the government of Sudan finally agreed to the deployment of a hybrid UN/AU force to replace AMIS.73
As envisaged in the Agenda for Peace, the Security Council has now undertaken joint operations: UN and regional peacekeeping forces have cooperated in Liberia, Georgia, Tajikistan, Sierra Leone and Côte d’Ivoire; the UN has cooperated with EU-led forces in the DRC. The Security Council has also for the first time acted under Chapter VII of the UN Charter to authorize the use of force by a regional arrangement or agency in the former Yugoslavia, Haiti, Sierra Leone, Côte d’Ivoire, Liberia (2003), the DRC (2003 and 2006) and Somalia. In 2007 the Security Council created two new operations. In Darfur after many years of serious violence the UN authorized a 20,000 strong hybrid UN/AU force (UNAMID); this new form of operation was chosen because of the government’s prolonged resistance to the deployment of a purely UN force in Darfur.74 UNAMID took over from the earlier AU force at the end of 2007. And the UN also established a combined UN/regional force (MINURCAT) in Chad and the CAR: the EU was to provide the military component of the operation and the UN, the civilian component. This arrangement was adopted because Chad was reluctant to accept UN peacekeepers.75
‘REGIONAL ARRANGEMENTS AND AGENCIES’
All these recent resolutions and actions by the Security Council reflect a flexible approach to the once problematic question as to what counts as a ‘regional arrangement or agency’ under Chapter VIII. In the early days of the UN there was some controversy over this issue, reflected in the absence of any definition of regional arrangement in the UN Charter.76 The UN Secretary-General, in his 1995 report to the General Assembly on cooperation with regional organizations,77 put a positive gloss on the absence of a definition; he said that the Charter had anticipated the need for flexibility by not giving any precise definition of regional arrangement or organization, thus enabling diverse organizations to contribute to the maintenance of peace and security.78 More recently there have been some calls for more precision in this regard, for an express distinction between regional and subregional organizations and other inter-governmental organizations outside Chapter VIII.79
There was even in the early days of the UN some disagreement as to whether there should be any cooperation between the UN and regional bodies. Formal cooperation between the UN and regional organizations began in 1948 with the OAS, established in the same year. This organization is expressly proclaimed in Article 1 of the OAS Charter to be a regional organization.80 The General Assembly, in Resolution 253, invited the Secretary-General of the OAS to assist as an observer at General Assembly sessions. When Argentina initiated this proposal the Eastern bloc states were hostile, arguing that there was no provision in the Charter for such an arrangement. It seemed that they feared that it would reinforce western domination of the UN. But the resolution was passed and the OAS was accepted by the UN as a regional organization under Chapter VIII. This was followed by an invitation to the Arab League in 1950. There was further controversy over the Arab League; this does not expressly claim to be a regional organization under Chapter VIII in its constituent treaty, but it had passed resolutions claiming this status.81 Israel’s challenge to the extension of an invitation to the Arab League and the subsequent debate led to some clarification of issues deliberately left unresolved in Chapter VIII, such as the question of what constitutes a regional agency or arrangement.82 The subsequent acceptance of the Arab League as an observer amounted to an implicit rejection of Israel’s arguments on this issue and made it clear that the concept of region was flexible, that to qualify as a regional organization the Organization did not have to be open to all the states in the region and that no express reference to Chapter VIII or even to the UN Charter in the constituent instrument of the regional organization was necessary. The OAU83 and the Islamic Conference84 were granted observer status as regional organizations in 1965 and 1975 respectively.
These invitations to regional organizations to be observers at the General Assembly were followed by General Assembly requests to report annually on what was being done to promote cooperation with these organizations. Even such an apparently innocuous request was the subject of some controversy in the cases of the Islamic Conference and the Arab League. On the former, some states expressed doubts because it served to promote one religion only; on the latter, Israel challenged the initial General Assembly requesting the Secretary-General to report, and twenty-three states abstained. From 1983 onwards Israel and the USA, with some support from the EC and Canada, resisted that part of the General Assembly’s resolution on cooperation with the Arab League which requested the UN Secretary-General to intensify efforts towards the implementation of UN resolutions on Palestine and the Middle East.85
Since the end of the Cold War the CSCE and CIS have also been given observer status by the General Assembly. These organizations were not originally seen by their member states as Chapter VIII organizations.86 The General Assembly resolution on observer status for the CSCE included express reference to Chapter VIII; that on the CIS did not.87 The CSCE had declared at the Helsinki summit of July 1992 that it was a regional organization in the sense of Chapter VIII;88 it reaffirmed this in its 2000 Charter for European Security and declared its intention of reinforcing its peacekeeping role.89 The CIS referred to itself in this way with regard to its action in Tajikistan in 1993; in 1996 it formally declared itself a Chapter VIII organization in its provision for peacekeeping.90
The Security Council has apparently taken a flexible approach in its resolutions; it has expressly referred to the EC and CSCE in resolutions referring to Chapter VIII.91 The Security Council has also implicitly referred to NATO and the WEU as regional organizations in its resolutions on the former Yugoslavia and the Secretary-General included them in his meeting with regional organizations in 1994.92 None of these had initially been set up as regional organizations under Chapter VIII, but the Security Council did not trouble itself with this question.
Since 2003 the EU has taken on a more active role under its European Security and Defence Policy. It undertook its first peacekeeping operation in Macedonia, in succession to NATO, on the basis of the consent of the government of Macedonia.93 Next the Security Council authorized an EU-led force to use force in the DRC when MONUC was not able to cope with the outbreak of fighting in Bunia; Security Council Resolution 1484 (2003) was passed under Chapter VII, without express reference to Chapter VIII or to the EU.94 This was the EU’s first military operation outside Europe. Similarly, when the EU conducted another operation in the DRC in support of MONUC during the 2006 elections, it was authorized to do so under Chapter VII with no reference to Chapter VIII.95 However, this resolution did make express reference to the EU and called on it to report regularly to the Security Council. The EU also took over from the NATO-led SFOR in Bosnia-Herzegovina and deployed EUFOR at the end of 2004.96 Most recently the EU has been authorized to establish a peacekeeping operation in Chad and the CAR by Resolution 1778 (2007). Again this made no reference to Chapter VIII; this lack of reference to Chapter VIII with regard to the EU operations is not surprising in that these were clearly not the type of regional operations originally envisaged under Chapter VIII; they were not carried out within EU member states. Nevertheless, the Secretary-General in his report on the work of the organization includes cooperation between the UN and the EU in the section on ‘The UN and regional organizations’. The UN and the EU have since 2003 increased their cooperation on conflict prevention and post-conflict reconstruction; in September 2004 they made a Joint Declaration on UN–EU Cooperation in Crisis Management.97
However, it has become clear that the question whether an organization was expressly established under Chapter VIII, or was understood by its founder states to be a Chapter VIII organization, is of limited importance. The crucial factor is not the nature of the organization but the type of action that is undertaken and the attitude of the Security Council. Various peacekeeping operations have been undertaken by ad hoc groups of states and the legality of their actions has not been challenged on the ground that they were not regional organizations under Chapter VIII.98 Among these was the operation undertaken by MISAB, the Inter-African Mission to Monitor the Implementation of the Bangui Agreement, in the Central African Republic in 1997. It was established at the request of the Central African Republic and its legitimacy was assumed by the Security Council in its resolutions approving the conduct by member states of MISAB of operations in an impartial and neutral way to facilitate the return to peace and security; under Chapter VII it authorised the states participating in MISAB to ensure the security and freedom of movement of the force.99 South Africa sent peacekeeping forces to Burundi,100 and Australian-led forces were sent into Bougainville in 1998101 and the Solomon Islands in 2003 at the request of the government.102 Another Australian-led multinational force was invited by the government of East Timor to assist it to restore and maintain security after a serious breakdown in law and order in 2006 (after UNMISET had withdrawn); this was welcomed by the Security Council in a series of resolutions.103
THE CONSTITUTIONAL BASES FOR REGIONAL PEACEKEEPING
Similarly the question whether an organization has, under its own constitution, the power to take action involving the use of force has not in practice proved controversial in the majority of cases. It is striking that when most of the regional and subregional organizations were set up their constituent instruments did not make any express provision for peacekeeping activity or for enforcement action.104 The OAU (now the AU),105 Arab League, OECS, ECOWAS, SADC, CEMAC/ECCAS, IGAD, CSCE (now the OSCE), EU and CIS did not at their creation include in their constituent treaties the express power to take peacekeeping action. But recently, as awareness of the possibilities of regional action has increased, some of these organizations have made new agreements expressly providing for peacekeeping powers. Thus the CSCE in 1992 at its Helsinki summit decided to provide itself with the capability to undertake peacekeeping operations. The member states declared their understanding that the CSCE is a regional arrangement in the sense of Chapter VIII. In the Declaration they laid down detailed rules on CSCE peacekeeping; such operations would be conducted within the framework of Chapter VIII.106 The CSCE Declaration to a large extent codifies the UN rules on peacekeeping that have emerged through practice. It also clearly reflects the lessons learned from UN experience in Yugoslavia and Somalia.
The CSCE Declaration recognizes the wide variety of peacekeeping operations: ‘a CSCE peacekeeping operation, according to its mandate, will involve civilian and/or military personnel, may range from small-scale to large-scale, and may assume a variety of forms including observer and monitor missions and larger deployment of forces. Peacekeeping activities could be used inter alia to supervise and help maintain ceasefires, to monitor troop withdrawals, to support the maintenance of law and order, to provide humanitarian and medical aid and to assist refugees’. The Declaration provides that the peacekeeping operations shall not entail enforcement action, and that they require the consent of the parties directly concerned. This formalizes the practice of the Security Council in recent years in seeking the consent not just of the government but of all parties involved in a conflict. This cautious approach is developed further in the requirement that certain conditions must be fulfilled before the decision to dispatch a mission is taken; an effective and durable ceasefire must be established, and the necessary memoranda of understanding must have been agreed with the parties concerned. As with UN peacekeeping, operations should be conducted impartially, and there must be a clear and precise mandate. Detailed rules are laid down on political control and the chain of command. Finally, the Declaration provides for cooperation with the EC, NATO, and the WEU; the CSCE will depend on them for troops and expertise. To date the CSCE has not conducted any peacekeeping operations apart from its dispatch of unarmed observers into Kosovo in 1998.
The CIS in 1996 agreed on the Concept for Prevention and Settlement of Conflicts in the territory of states members of the Commonwealth of Independent States.107 They said that the CIS should, in its capacity as a regional organization, take the steps required to settle conflicts in the territory of member states in accordance with Chapter VIII of the Charter; this would include peacekeeping operations. They set out the essential conditions for the conduct of peacekeeping operations: like the CSCE Declaration, these follow the general principles of UN peacekeeping and also build on recent UN experience. Accordingly six of the member states adopted a Statute on Collective Peace-keeping force in the Commonwealth of Independent States.108 The CSTO, established in 2002 as the functional military core of the CIS, is in the process of concluding institutional and practical arrangements for peacekeeping.109
Certain subregional organizations have also accepted or provided for the possibility of peacekeeping action.110 ECOWAS has taken on a major role in peacekeeping in West Africa; it was established in 1975 as a subregional organization of fifteen member states, concerned with economic matters.111 Its constituent treaty made no provision for the establishment of peacekeeping forces, but two subsequent treaties expanded ECOWAS’s concerns beyond the economic. These are the 1978 Protocol on Non-Aggression and the 1981 Protocol on Mutual Assistance on Defence.112 The latter includes provision for the establishment of allied forces of the community to be used if there is a conflict between two member states or ‘in the case where an internal armed conflict in a member state of the Community is actively maintained and sustained from outside likely to endanger the security and peace in the entire community’. Express provision for peacekeeping was finally made when ECOWAS concluded the 1999 Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security.113 This provides detailed rules on institutions and decision-making procedures. It has undertaken operations in Liberia, Sierra Leone, Guinea-Bissau,114 and Côte d’Ivoire.115
But the fundamental question whether an organization has the power under its own constitution to engage in peacekeeping activities has been treated as unimportant in practice. When regional organizations have engaged in the use of force the legality of such action has been assessed by the rest of the world not in terms of the organization’s own constitution but rather in terms of the UN Charter and general international law. Only in the case of Grenada was there any significant debate in the Security Council on this issue of the organization’s own constitution.116 Following a coup in 1983 in which a government sympathetic to Cuba and to the USSR seized power, the USA led a forcible intervention to ‘restore government and order, and to facilitate the departure of those United States citizens and other foreign nationals who wish to be evacuated’. In a letter to the Security Council the USA claimed that its action was taken pursuant to an invitation by the OECS. It later elaborated on this in the Security Council debate on the intervention; the USA position was that the OECS had sought its assistance to undertake collective regional action because of the vacuum of authority in Grenada. The consent to regional action had come from the Governor-General.117 The representative of Grenada itself raised the point as to whether the action by the USA and OECS member states was legitimate under the OECS constitution; it argued persuasively that the OECS Treaty made no provision for peacekeeping action and that the US action went beyond what was allowed in the Treaty. The USA relied on Article 8 of the OECS treaty as one of the justifications for its actions, but actually this clearly provides for collective self-defence against external aggression, not for intervention by a non-member state
in the internal affairs of Grenada.118 Many other states disagreed with the US interpretation of Article 8.119 However, the Security Council resolution calling for the withdrawal of foreign troops from Grenada was vetoed by the USA. It is striking that the actual member states of the OECS did not themselves adopt the same argument on Article 8 as the USA; they preferred to invoke the equally doubtful argument of ‘pre-emptive defensive strike’ under the OECS provisions for collective self-defence. However, most of the debate did not focus exclusively on the OECS Treaty; rather, states concerned themselves with the legality of the operation under the UN Charter.