Name: Katerina Novotna
Address: c/o Mr. Julian Shelley
Ty Gwyn, Lluest,
Waunfawr, Aberystwyth
Wales SY 23 3au
e-mail: kkn06@aber.ac.uk, kacca@email.cz
phone number: 07946923592
Institution: University of Wales, Aberystwyth
LLM by Research (International Public Law)
Thesis: Analysis of Cases of Mixed Criminal Tribunals
(The Special Court for Sierra Leone)
The Security Council, civil society, and human rights
I. Burma on the agenda of the Security Council?
Human rights groups have long urged the Security Council (the SC) to consider the
human rights and political situation in Burma in order to address widespread and
systematic abuse of human rights by the military government.1 Burma remains one of
the most repressive countries in Asia, despite promises for political reform and
national reconciliation by its authoritarian military government, the State Peace and
Development Council (SPDC). The repetitive words of 15 years worth of U.N.
reports, statements and GA resolutions, and the efforts of a sequence of U.N. Special
Envoys and Rapporteurs have failed to affect any positive change in Burma
whatsoever.
For 15 years the government of Burma has refused to implement recommendations
made under Art. 39 of the UN Charter. It is now necessary to employ enforcement
measures under Art. 41, which provides the legal basis for all non-military
enforcement measures. While the latter create binding effects in the international legal
order, the former are limited to non-mandatory suggestions. However, 15 years of
nonbinding international pressure on Burma’s ruling junta had failed. The SC used
Art. 41 several times to impose obligations on the target State itself. For example it
set out a demand to the Bosnian Serbs to accept a specific plan for a territorial
settlement2 or it obliged Iraq to destroy different categories of weapons.3
II. Criticism of the Security Council practice under Chapter VII of the UN
Charter in relations to ‘human rights cases’
The SC has normally been reluctant to include human rights violations as the main
basis for sanctions and, when sanctions are decided, the SC has adopted an ad hoc
approach, thus avoiding the creation of precedents. Preference of ad hoc solutions
translates into legal action the political will of states and their particular policies. ‘Adhocism’ therefore appears as a deregulative tool in the sense that, avoiding precedent,
it cannot permit a clear set of rules, which may have negative impact on the current
international law of institutional protection of human rights.4 The sanction regimes
continue to be managed independently, with a case-by-case approach. This approach
proved, in many cases, insufficient to cope with the severe humanitarian
consequences of SC measures on broader parts of the population.5
From analysis of previous situations, it can be assumed that there are are five criteria
for bringing a country to the Security Council agenda: the overthrow of a democratic
government, conflict among factions, human rights and humanitarian violations,
refugee outflows and other transnational issues such as drug trafficking and
HIV/AIDS. In the cases of Sierra Leone, Afghanistan, Yemen, Haiti, Rwanda, Liberia
and Cambodia, only some of these criteria were met, and yet they were discussed at
Security Council level and action resulted from the resolutions passed. Burma, in
contrast, conclusively meets all five criteria and yet has never been brought to the
agenda of the Security Council. Thus, with regards to the concept of ‘threats to
peace’, it can be argued that issues of double standards and different involvement
depending on the case threatens the legitimacy of the SC, undermining its authority
in public opinion.
Both the history of the Charter and subsequent State practice show that the SC is
under no obligation to make a determination under Art.39, even if it considers that a
threat to or breach of the peace exists- Art. 39 empowers, but does not oblige the SC
to act. Thus, putting Burma on the agenda will depend on the will of the SC’s member
states. Nevertheless, the SC has recently reaffirmed its determination “to give equal
priority to the maintenance of international peace and security in every region of the
world.”6 Whether the SC can find a way to deal with the situation is in many respects
not only a question for Burma, but a challenge to the United Nations’ ability to carry
out its own Charter.
1
The possibility of putting Burma on the Security Council agenda has been boosted by a recent report,
“Threat to Peace - A Call to the UN Security Council to Act in Burma.” The report was commissioned
by Vaclav Havel, former president of the Czech Republic, and Nobel Peace Prize laureate Archbishop
Desmond Tutu of South Africa. It calls for “an urgent, new and multilateral diplomatic initiative” on
Burma and for Security Council action.
2
SC Res. 942, Sept. 23, 1994.
3
SC Res. 687, Apr.3, 1991.
Aznar-Gomez, M.J., ‘A Decade of Human Rights Protection by the UN Security Council: A Sketch
of Deregulation?’, EJIL (2002), Vol. 13 No. 1, pp. 223-241.
4
5
Simma, B. (ed.), The Charter of the United Nations: A Commentary (2002), p. 745.
‘Declaration on ensuring an effective role for the Security Council in the maintenance of international
peace and security, particularly in Africa’ (SC Res. 1318 (2000), annex).
6