Untuk kegunaan lain, lihat Hukum (disambiguasi) dan Hukum (disambiguasi) .

Lady Justice is the symbol of the judiciary. [ 1 ] [ 2 ] Justice is depicted as a goddess equipped with three symbols of the rule of law : a sword symbolising the court's coercive power; scales representing an objective standard by which competing claims are weighed; and a blindfold indicating that justice is (or should be) meted out objectively, without fear or favor, regardless of identity, money, power, or weakness. [ 3 ] Lady Keadilan adalah simbol peradilan. [1] [2] Keadilan digambarkan sebagai dewi yang dilengkapi dengan tiga simbol dari supremasi hukum : pedang melambangkan's pemaksaan kekuasaan pengadilan; sisik yang mewakili standar obyektif oleh yang mengklaim bersaing ditimbang , dan sebuah penutup mata yang menunjukkan bahwa keadilan adalah (atau seharusnya) dijatuhkan secara obyektif, tanpa rasa takut atau mendukung, tanpa identitas, uang, kekuasaan, atau kelemahan. [3]

Law [ 4 ] is a system of rules, usually enforced through a set of institutions . [ 5 ] It shapes politics , economics and society in numerous ways and serves as a primary social mediator of relations between people. Contract law regulates everything from buying a bus ticket to trading on derivatives markets . Property law defines rights and obligations related to the transfer and title of personal (often referred to as chattel) and real property . Trust law applies to assets held for investment and financial security, while tort law allows claims for compensation if a person's rights or property are harmed . Hukum [4] adalah sebuah sistem aturan, biasanya ditegakkan melalui serangkaian lembaga . [5] Ini bentuk politik , ekonomi dan masyarakat dalam berbagai cara dan berfungsi sebagai mediator sosial utama hubungan antara orang-orang. Kontrak hukum

mengatur semuanya dari membeli tiket bus untuk trading di pasar derivatif . hukum Properti mendefinisikan hak dan kewajiban yang terkait dengan pengiriman dan judul pribadi (sering disebut sebagai harta benda) dan real properti . Trust hukum berlaku untuk aset yang dimiliki untuk investasi dan keamanan finansial, sementara kesalahan hukum memungkinkan klaim kompensasi bila seseorang hak atau properti dirugikan . If the harm is criminalised in a statute, criminal law offers means by which the state can prosecute the perpetrator. Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. Administrative law is used to review the decisions of government agencies, while international law governs affairs between Sovereign States in activities ranging from trade to environmental regulation or military action. Jika membahayakan merupakan kejahatan dalam sebuah undang-undang, hukum pidana menawarkan sarana yang negara dapat menuntut pelaku. hukum Konstitusi menyediakan kerangka kerja bagi penciptaan hukum, perlindungan hak asasi manusia dan pemilihan wakil politik. Administrasi hukum digunakan untuk meninjau kembali keputusan instansi pemerintah, sementara hukum internasional mengatur hubungan antara Amerika Sovereign dalam kegiatan mulai dari perdagangan dengan peraturan lingkungan atau aksi militer. Writing in 350 BC, the Greek philosopher Aristotle declared, "The rule of law is better than the rule of any individual." [ 6 ] Menulis di 350 SM, Yunani filsuf Aristoteles menyatakan, "The supremasi hukum lebih baik daripada aturan setiap individu. " [6]

Legal systems elaborate rights and responsibilities in a variety of ways. sistem hukum yang rumit hak dan tanggung jawab dalam berbagai cara. A general distinction can be made between civil law jurisdictions , which codify their laws, and common law systems, where judge made law is not consolidated. Pembedaan yang umum dapat dibuat antara hukum perdata yurisdiksi , yang menyusun hukum mereka, dan hukum umum sistem, dimana hakim membuat hukum tidak konsolidasi. In some countries, religion informs the law. Di beberapa negara, agama menginformasikan hukum. Law provides a rich source of scholarly inquiry, into legal history , philosophy , economic analysis or sociology . Hukum menyediakan sumber yang kaya penyelidikan ilmiah, dalam sejarah hukum , filsafat , analisis ekonomi atau sosiologi . Law also raises important and complex issues concerning equality , fairness and justice . Hukum juga meningkatkan dan kompleks isu penting tentang kesetaraan , keadilan dan keadilan . "In its majestic equality", said the author Anatole France in 1894, "the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread." [ 7 ] In a typical democracy , the central institutions for interpreting and creating law are the three main branches of government , namely an impartial judiciary , a democratic legislature , and an accountable executive . "Dalam hal kesetaraan megah tersebut", kata penulis Anatole France pada tahun 1894, "melarang hukum kaya dan miskin tidur di bawah jembatan, mengemis di jalanan dan mencuri roti." [7] Pada khas demokrasi , lembaga pemerintah pusat untuk menafsirkan dan membuat hukum adalah tiga cabang utama pemerintah , yaitu sebuah memihak peradilan , yang demokratis legislatif , dan akuntabel eksekutif . To implement and enforce the law and provide services to the public, a government's bureaucracy, the military and police are vital. Untuk menerapkan dan menegakkan hukum dan memberikan pelayanan kepada masyarakat, birokrasi pemerintah, polisi militer dan sangat penting. While all these organs of the state are creatures created and bound by law, an independent legal profession and a vibrant civil society inform and support their progress. Sementara semua organ-organ ini negara adalah makhluk diciptakan dan terikat oleh hukum,

independen profesi hukum dan yang bersemangat masyarakat sipil menginformasikan dan mendukung kemajuan mereka.

Contents Isi [hide]

1 Legal subjects 1 Hukum subyek o 1.1 International law 1.1 Hukum internasional o 1.2 Constitutional and administrative law 1.2 Konstitusi dan administrasi hukum o 1.3 Criminal law 1.3 Hukum pidana o 1.4 Contract law 1.4 Kontrak Hukum o 1.5 Tort law 1,5 Tort hukum o 1.6 Property law 1,6 Properti hukum o 1.7 Equity and trusts 1.7 Ekuitas dan kepercayaan o 1.8 Further disciplines 1,8 disiplin lebih lanjut

2 Legal systems 2 Sistem hukum o 2.1 Civil law 2.1 Hukum perdata o 2.2 Common law and equity 2.2 umum hukum dan ekuitas o 2.3 Religious law 2.3 Hukum Agama

3 Legal theory 3 Teori Hukum o 3.1 History of law 3.1 Sejarah hukum o 3.2 Philosophy of law 3.2 Filsafat hukum o 3.3 Economic analysis of law 3.3 Analisis ekonomi hukum o 3.4 Sociology of law 3.4 Sosiologi hukum

4 Legal institutions 4 Hukum lembaga o 4.1 Judiciary 4.1 Yudikatif o 4.2 Legislature 4.2 Legislatif o 4.3 Executive 4.3 Eksekutif o 4.4 Military and police 4.4 Militer dan polisi o 4.5 Bureaucracy 4.5 Birokrasi o 4.6 Legal profession 4.6 Hukum profesi o 4.7 Civil society 4.7 masyarakat sipil

5 See also 5 Lihat juga 6 Notes 6 Catatan 7 References 7 Referensi 8 External links 8 Pranala luar

[ edit ] Legal subjects [ sunting ] subyek Hukum All legal systems deal with the same basic issues, but each country categorises, and identifies its legal subjects in different ways. Semua menangani sistem hukum dengan masalah dasar yang sama, tetapi masing-masing categorises negara, dan mengidentifikasi subyek hukum dalam cara yang berbeda. A common distinction is that between " public law " (a term related closely to the

state , and including constitutional, administrative and criminal law), and " private law " (which covers contract, tort and property). [ 8 ] In civil law systems, contract and tort fall under a general law of obligations , while trusts law is dealt with under statutory regimes or international conventions . Perbedaan umum adalah bahwa antara " hukum publik "(istilah yang terkait erat dengan negara dan pidana hukum dan termasuk konstitusi, administrasi,), dan " hukum swasta "(yang meliputi kontrak, kerugian dan properti). [8] Dalam hukum perdata sistem, kontrak dan tort jatuh di bawah umum kewajiban hukum , sedangkan trust hukum ditangani sesuai dengan rezim undang-undang atau konvensi internasional . International, constitutional and administrative law, criminal law, contract, tort, property law and trusts are regarded as the "traditional core subjects", [ 9 ] although there are many further disciplines which may be of greater practical importance. Internasional, dan administrasi hukum konstitusi, hukum pidana, kontrak, kerugian, hukum properti dan kepercayaan dianggap sebagai "mata pelajaran inti tradisional", [9] meskipun ada banyak disiplin lebih lanjut yang mungkin penting praktis lebih besar.

[ edit ] International law [ sunting ] Hukum internasional

Main articles: Public international law , Conflict of laws , and European Union law Artikel utama: hukum internasional publik , Konflik hukum , dan hukum Uni Eropa

Providing a constitution for public international law, the United Nations system was agreed during World War II Menyediakan sebuah konstitusi untuk hukum internasional publik, PBB sistem telah disepakati selama Perang Dunia II

International law can refer to three things: public international law, private international law or conflict of laws and the law of supranational organisations. Hukum internasional dapat merujuk pada tiga hal: hukum internasional publik, hukum internasional pribadi atau konflik hukum dan hukum organisasi supranasional.

Public international law concerns relationships between sovereign nations. Publik hukum internasional menyangkut hubungan antara negara-negara berdaulat. The sources for public international law development are custom , practice and treaties between sovereign nations, such as the Geneva Conventions . Para sumber-sumber untuk pengembangan hukum internasional publik adalah kebiasaan , praktek dan perjanjian antara negara-negara berdaulat, seperti Konvensi Jenewa . Public international law can be formed by international organisations , such as the United Nations (which was established after the failure of the League of Nations to prevent the Second World War ), [ 10 ] the International Labour Organisation , the World Trade Organisation , or the International Monetary Fund . Hukum internasional publik dapat dibentuk oleh organisasi internasional , seperti Perserikatan Bangsa-Bangsa (yang didirikan setelah kegagalan Liga Bangsa-Bangsa untuk mencegah Perang Dunia Kedua ), [10] dengan Organisasi Perburuhan Internasional , di Organisasi Perdagangan Dunia , atau Dana Moneter Internasional . Public international law has a special status as law because there is no international police force, and courts (eg the International Court of Justice as the primary UN judicial organ) lack the capacity to penalise disobedience. [ 11 ] However, a few bodies, such as the WTO, have effective systems of binding arbitration and dispute resolution backed up by trade sanctions. [ 12 ] hukum internasional publik memiliki status khusus sebagai hukum karena tidak ada kekuatan polisi internasional, dan pengadilan (misalnya Mahkamah Internasional sebagai peradilan PBB organ primer) kekurangan kapasitas untuk menghukum ketidaktaatan. [11] Namun, beberapa badan, seperti sebagai WTO, memiliki sistem yang efektif mengikat arbitrase dan penyelesaian sengketa didukung oleh sanksi perdagangan. [12]

Conflict of laws (or "private international law" in civil law countries) concerns which jurisdiction a legal dispute between private parties should be heard in and which jurisdiction's law should be applied. Konflik hukum (atau "hukum internasional privat" dalam hukum perdata negara) yang menyangkut yurisdiksi sengketa hukum antara pihak swasta harus didengar dalam dan yang's yurisdiksi hukum harus diterapkan. Today, businesses are increasingly capable of shifting capital and labour supply chains across borders, as well as trading with overseas businesses, making the question of which country has jurisdiction even more pressing. Saat ini, perusahaan semakin mampu menggeser modal dan tenaga kerja rantai pasokan melintasi perbatasan, serta perdagangan dengan bisnis luar negeri, membuat pertanyaan yang memiliki yurisdiksi negara bahkan lebih mendesak. Increasing numbers of businesses opt for commercial arbitration under the New York Convention 1958 . [ 13 ] Meningkatnya jumlah usaha memilih arbitrase umum berdasarkan Konvensi New York 1958 . [13]

European Union law is the first and, so far, only example of a supranational legal framework . Uni Eropa hukum adalah yang pertama dan, sejauh ini, hanya contoh dari kerangka hukum supranasional . Given the trend of increasing global economic integration, many regional agreements—especially the Union of South American Nations —are on track to follow the same model. Mengingat kecenderungan peningkatan integrasi ekonomi global, perjanjian regional banyak-terutama Uni Bangsa Amerika Selatan -berada di jalur untuk mengikuti model yang sama. In the EU, sovereign nations have gathered their authority in a system of courts and political institutions . Di Uni Eropa, negara berdaulat memiliki kewenangan mereka berkumpul dalam suatu sistem pengadilan dan lembaga-lembaga politik . These institutions are allowed the ability to enforce legal norms both against or for member states and citizens in a manner which is

not possible through public international law. [ 14 ] As the European Court of Justice said in the 1960s, European Union law constitutes "a new legal order of international law" for the mutual social and economic benefit of the member states. [ 15 ] Lembaga ini memungkinkan kemampuan untuk menegakkan norma hukum baik terhadap atau untuk negara-negara anggota dan warga negara dengan cara yang tidak mungkin melalui hukum internasional publik. [14] Sebagai Pengadilan Eropa mengatakan pada tahun 1960, Uni Eropa hukum merupakan "sebuah baru hukum tatanan hukum internasional "untuk kepentingan sosial dan ekonomi bersama negara anggota. [15]

[ edit ] Constitutional and administrative law [ sunting ] dan administrasi hukum Konstitusi

Main articles: Constitutional law and Administrative law Artikel utama: Hukum Konstitusi dan Hukum Administrasi

The French Declaration of the Rights of Man and of the Citizen , whose principles still have constitutional value Perancis Deklarasi Hak Asasi Manusia dan Warga Negara , yang prinsip masih memiliki nilai konstitusional

Constitutional and administrative law govern the affairs of the state. Constitutional law concerns both the relationships between the executive, legislature and judiciary and the human rights or civil liberties of individuals against the state. dan administrasi hukum Konstitusi mengatur urusan negara. hukum Konstitusi kekhawatiran baik hubungan antara legislatif, eksekutif dan yudikatif dan hak asasi manusia atau kebebasan sipil individu terhadap negara. Most jurisdictions, like the United States and France , have a single codified constitution, with a Bill of Rights . Sebagian besar jurisdiksi, seperti Amerika Serikat dan Perancis , memiliki konstitusi dikodifikasi tunggal, dengan Bill of Rights . A few, like the United Kingdom , have no such document. Beberapa, seperti Inggris , tidak memiliki dokumen tersebut. A "constitution" is simply those laws which constitute the body politic , from statute , case law and convention . Sebuah "konstitusi" hanyalah hukum-hukum yang merupakan lembaga politik , dari undang-undang , kasus hukum dan konvensi . A case named Entick v Carrington [ 16 ] illustrates a

constitutional principle deriving from the common law. Sebuah kasus bernama Entick v Carrington [16] menggambarkan sebuah prinsip konstitusional yang berasal dari hukum umum. Mr Entick's house was searched and ransacked by Sheriff Carrington. rumah Mr Entick adalah mencari dan dijarah oleh Sheriff Carrington. When Mr Entick complained in court, Sheriff Carrington argued that a warrant from a Government minister, the Earl of Halifax , was valid authority. Ketika Mr Entick mengeluh di pengadilan, Sheriff Carrington berpendapat bahwa surat perintah dari menteri Pemerintah, Earl of Halifax , adalah kewenangan yang sah. However, there was no written statutory provision or court authority. Namun, tidak ada tertulis ketentuan undang-undang atau wewenang pengadilan. The leading judge, Lord Camden , stated that, Hakim terkemuka, Tuhan Camden , menyatakan bahwa,

The great end, for which men entered into society, was to secure their property. Akhir besar, yang laki-laki masuk ke dalam masyarakat, adalah untuk mengamankan properti mereka. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole ... tepat Yaitu diawetkan suci dan tak dpt diberitahukan dalam semua hal, dimana belum diambil atau ringkasan oleh beberapa hukum publik untuk kebaikan seluruh ... If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment. [ 17 ] Jika alasan tidak dapat ditemukan atau dihasilkan, keheningan buku adalah otoritas terhadap terdakwa, dan penggugat harus memiliki penghakiman. [17]

The fundamental constitutional principle, inspired by John Locke , holds that the individual can do anything but that which is forbidden by law, and the state may do nothing but that which is authorised by law. [ 18 ] [ 19 ] Administrative law is the chief method for people to hold state bodies to account. Prinsip konstitusional fundamental, yang terinspirasi oleh John Locke , berpendapat bahwa individu bisa melakukan apa-apa kecuali apa yang dilarang oleh hukum, dan negara bisa melakukan apa-apa tapi itu yang diberi wewenang oleh hukum. [18] [19] hukum administrasi merupakan kepala metode bagi orang-orang untuk memegang badan-badan negara ke account. People can apply for judicial review of actions or decisions by local councils, public services or government ministries, to ensure that they comply with the law. Orang bisa mengajukan permohonan peninjauan kembali tindakan atau keputusan oleh dewan lokal, pelayanan publik atau departemen pemerintah, untuk memastikan bahwa mereka mematuhi hukum. The first specialist administrative court was the Conseil d'État set up in 1799, as Napoleon assumed power in France. [ 20 ] Spesialis pertama pengadilan administratif adalah Conseil d'État didirikan pada 1799, sebagai Napoleon berkuasa di Perancis. [20]

[ edit ] Criminal law [ sunting ] Hukum pidana

Main article: Criminal law Artikel utama: Hukum Pidana

Criminal law, also known as penal law, pertains to crimes and punishment. [ 21 ] It thus regulates the definition of and penalties for offences found to have a sufficiently deleterious social impact but, in itself, makes no moral judgement on an offender nor imposes restrictions on society that physically prevents people from committing a crime in the first place. [ 22 ] Investigating, apprehending, charging, and trying suspected offenders is regulated by the law of criminal procedure . [ 23 ] The paradigm case of a crime lies in the proof, beyond reasonable doubt , that a

person is guilty of two things. Hukum pidana, juga dikenal sebagai hukum pidana, berkaitan dengan kejahatan dan hukuman. [21] Dengan demikian mengatur definisi dan hukuman untuk pelanggaran ditemukan memiliki dampak sosial cukup merugikan tapi, dalam dirinya sendiri, tidak membuat penilaian moral pada pelaku atau membebankan pembatasan terhadap masyarakat yang secara fisik mencegah orang dari melakukan kejahatan di tempat pertama. [22] Investigasi, menahan, pengisian, dan berusaha pelanggar diduga diatur oleh hukum acara pidana . [23] Kasus paradigma kejahatan terletak pada bukti, tanpa diragukan , bahwa seseorang bersalah karena dua hal. First, the accused must commit an act which is deemed by society to be criminal, or actus reus (guilty act). [ 24 ] Second, the accused must have the requisite malicious intent to do a criminal act, or mens rea (guilty mind). Pertama, terdakwa harus melakukan tindakan yang dianggap oleh masyarakat untuk menjadi kriminal, atau Actus Reus (bertindak bersalah). [24] Kedua, terdakwa harus memiliki diperlukan niat jahat untuk melakukan tindak pidana, atau mens rea (pikiran bersalah ). However for so called " strict liability " crimes, an actus reus is enough. [ 25 ] Criminal systems of the civil law tradition distinguish between intention in the broad sense ( dolus directus and dolus eventualis ), and negligence. Namun untuk disebut " kewajiban ketat kejahatan ", sebuah Actus Reus sudah cukup. [25] sistem Pidana dari tradisi hukum perdata membedakan antara niat dalam arti luas (directus dolus dan eventualis dolus), dan kelalaian. Negligence does not carry criminal responsibility unless a particular crime provides for its punishment. [ 26 ] [ 27 ] Kelalaian tidak membawa tanggung jawab pidana kecuali kejahatan tertentu memberikan hukuman tersebut. [26] [27]

A depiction of a 1600s criminal trial , for witchcraft in Salem Sebuah gambaran dari pidana tahun 1600 sidang , untuk sihir di Salem

Examples of crimes include murder , assault , fraud and theft . Contoh kejahatan termasuk pembunuhan , penyerangan , penipuan dan pencurian . In exceptional circumstances defences can apply to specific acts, such as killing in self defence , or pleading insanity . Dalam keadaan luar biasa pertahanan dapat berlaku untuk tindakan tertentu, seperti pembunuhan di pertahanan diri , atau memohon kegilaan . Another example is in the 19th century English case of R v Dudley and Stephens , which tested a defence of " necessity ". Contoh lain adalah dalam bahasa Inggris abad ke-19 kasus R v Dudley dan Stephens , yang menguji pertahanan dari " keharusan ". The Mignonette , sailing from Southampton to Sydney , sank. The Mignonette, berlayar dari Southampton ke Sydney , tenggelam. Three crew members and Richard Parker, a 17 year old cabin boy, were stranded on a raft. Tiga awak dan Richard Parker, seorang bocah 17 tahun kabin tua, yang terdampar di rakit. They were starving and the cabin boy was close to death. Mereka kelaparan dan anak kabin itu dekat dengan kematian. Driven to extreme hunger, the crew killed

and ate the cabin boy. Didorong kelaparan ekstrim, para kru membunuh dan memakan anak kabin. The crew survived and were rescued, but put on trial for murder. Para kru selamat dan diselamatkan, tetapi diadili untuk pembunuhan. They argued it was necessary to kill the cabin boy to preserve their own lives. Lord Coleridge , expressing immense disapproval, ruled, "to preserve one's life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it." Mereka berpendapat hal itu perlu untuk membunuh anak kabin untuk melestarikan kehidupan mereka sendiri. Tuhan Coleridge , mengungkapkan ketidaksetujuan besar, memerintah, "untuk melestarikan's hidup seseorang adalah umumnya tugas, tetapi mungkin dan jelas dan tugas tertinggi untuk pengorbanan itu. " The men were sentenced to hang , but public opinion was overwhelmingly supportive of the crew's right to preserve their own lives. Orang-orang dijatuhi hukuman gantung , tapi opini publik sangat mendukung crew hak untuk melestarikan kehidupan mereka sendiri. In the end, the Crown commuted their sentences to six months in jail. [ 28 ] Pada akhirnya, Crown commuted kalimat mereka untuk enam bulan penjara. [28]

Criminal law offences are viewed as offences against not just individual victims, but the community as well. [ 22 ] The state, usually with the help of police, takes the lead in prosecution, which is why in common law countries cases are cited as " The People v ..." Hukum pidana kejahatan dipandang sebagai pelanggaran terhadap bukan hanya korban individu, tetapi masyarakat juga. [22] Negara, biasanya dengan bantuan polisi, mengambil memimpin dalam penuntutan, itulah sebabnya mengapa dalam kasus-kasus hukum negara umum disebut sebagai " v Orang-orang ... " or " R (for Rex or Regina ) v ..." atau "R (untuk Rex atau Regina ) v ... " Also, lay juries are often used to determine the guilt of defendants on points of fact: juries cannot change legal rules. Juga, berbaring juri sering digunakan untuk menentukan kesalahan terdakwa pada titik-titik kenyataan: juri tidak dapat mengubah aturan hukum. Some developed countries still condone capital punishment for criminal activity, but the normal punishment for a crime will be imprisonment , fines , state supervision (such as probation), or community service . Beberapa negara maju masih membenarkan hukuman mati untuk kegiatan kriminal, tetapi hukuman normal untuk kejahatan akan penjara , denda , pengawasan negara (seperti percobaan), atau pelayanan masyarakat . Modern criminal law has been affected considerably by the social sciences, especially with respect to sentencing , legal research, legislation, and rehabilitation . [ 29 ]

On the international field, 111 countries are members of the International Criminal Court , which was established to try people for crimes against humanity . [ 30 ] Hukum pidana modern telah dipengaruhi sangat oleh ilmu-ilmu sosial, terutama berkenaan dengan hukuman , penelitian hukum, peraturan perundangan, dan rehabilitasi . [29] Di bidang internasional, 111 negara anggota dari Mahkamah Pidana Internasional , yang didirikan untuk mencoba orang untuk kejahatan terhadap kemanusiaan . [30]

[ edit ] Contract law [ sunting ] Kontrak hukum

Main article: Contract Artikel utama: Kontrak

The famous Carbolic Smoke Ball advertisement to cure influenza was held to be a unilateral contract Para karbol terkenal Smoke Ball iklan untuk menyembuhkan influenza diadakan untuk menjadi kontrak sepihak

Contract law concerns enforceable promises, and can be summed up in the Latin phrase pacta sunt servanda (agreements must be kept). [ 31 ] In common law jurisdictions, three key elements to the creation of a contract are necessary: offer and acceptance , consideration and the intention to create legal relations. Kontrak hukum keprihatinan janji dilaksanakan, dan dapat diringkas dalam frase Latin pacta sunt servanda perjanjian harus dijaga). ( [31] Dalam yurisdiksi hukum umum, tiga elemen kunci pembuatan kontrak diperlukan: penawaran dan penerimaan , pertimbangan dan niat untuk menciptakan hubungan hukum. In Carlill v Carbolic Smoke Ball Company a medical firm advertised that its new wonder drug, the smokeball, would cure people's flu, and if it did not, the buyers would get £ 100. Dalam v Carlill karbol Smoke Ball Perusahaan perusahaan medis diiklankan yang keheranan baru obat, smokeball, akan menyembuhkan flu orang, dan jika tidak, pembeli akan mendapatkan £ 100. Many people sued for their £100 when the drug did not work. Banyak orang digugat untuk mereka £ 100 ketika obat tidak berhasil. Fearing bankruptcy , Carbolic argued the advert was not to be taken as a serious, legally binding offer. Takut bangkrut , karbol berpendapat iklan itu tidak dapat dianggap sebagai hukum, mengikat menawarkan yang serius. It was an invitation to treat , mere puff, a gimmick. Itu adalah undangan untuk mengobati , hanya puff, sebuah gimmick. But the court of appeal held that to a reasonable man Carbolic had made a serious offer. Tetapi pengadilan banding yang menyatakan bahwa pada orang yang wajar karbol telah menawarkan yang serius. People had given good consideration for it by going to the "distinct inconvenience" of using a faulty product. Orang-orang telah memberikan pertimbangan yang baik untuk itu dengan pergi ke "ketidaknyamanan yang berbeda" dari menggunakan produk rusak. "Read the advertisement how you will, and twist it about as you will", said Lord Justice Lindley , "here is a distinct promise expressed in language which is perfectly unmistakable". [ 32 ] "Baca iklan bagaimana Anda akan, dan twist tentang hal yang Anda akan", kata Lord Justice Lindley , "di sini adalah janji yang berbeda disajikan dalam bahasa yang sempurna jelas". [32]

"Consideration" indicates the fact that all parties to a contract have exchanged something of value. "Pertimbangan" menunjukkan fakta bahwa semua pihak untuk kontrak telah bertukar sesuatu yang bernilai. Some common law systems, including Australia, are moving away from the idea of consideration as a requirement. Beberapa sistem hukum umum, termasuk Australia, yang bergerak menjauh dari ide pertimbangan sebagai syarat. The idea of estoppel or culpa in contrahendo , can be used to create obligations during pre-contractual negotiations. [ 33 ] In civil law jurisdictions, consideration is not required for a contract to be binding. [ 34 ] In France, an ordinary contract is said to form simply on the basis of a "meeting of the minds" or a "concurrence of wills". Germany has a special approach to contracts, which ties into property law. Gagasan estoppel atau culpa di contrahendo, dapat digunakan untuk membuat kewajiban selama negosiasi pra-kontrak. [33] Dalam yurisdiksi hukum perdata, pertimbangan tidak diperlukan untuk kontrak yang akan mengikat. [34] Di Perancis, sebuah kontrak biasa kata untuk membentuk hanya atas dasar suatu "pertemuan pikiran" atau "persetujuan kehendak". Jerman memiliki pendekatan khusus untuk kontrak, yang mengikat ke dalam hukum properti. Their ' abstraction principle ' ( Abstraktionsprinzip ) means that the personal obligation of contract forms separately from the title of property being conferred. 'Mereka abstraksi prinsip '(Abstraktionsprinzip) berarti bahwa kewajiban pribadi bentuk kontrak terpisah dari judul properti yang diberikan. When contracts are invalidated for some reason (eg a car buyer is so drunk that he lacks legal capacity to contract) [ 35 ] the contractual obligation to pay can be invalidated separately from the proprietary title of the car. Unjust enrichment law, rather than contract law, is then used to restore title to the rightful owner. [ 36 ] Ketika kontrak tersebut batal karena beberapa alasan (misalnya pembeli mobil begitu mabuk sehingga ia tidak memiliki kapasitas hukum untuk kontrak) [35] kewajiban kontraktual untuk membayar dapat batal secara terpisah dari milik judul mobil. Unjust penyuburan hukum, daripada kontrak hukum, kemudian digunakan untuk mengembalikan hak kepada pemilik yang sebenarnya. [36]

[ edit ] Tort law [ sunting ] Hukum Tort

Main article: Tort Artikel utama: Tort

The " McLibel " two were involved in the longest running case in UK history for publishing a pamphlet criticising McDonald's restaurants. The " McLibel "dua orang yang terlibat dalam kasus terpanjang dalam sejarah Inggris untuk menerbitkan sebuah pamflet mengkritik McDonald's restoran.

Torts, sometimes called delicts , are civil wrongs. Torts, kadang-kadang disebut delicts , adalah kesalahan sipil. To have acted tortiously, one must have breached a duty to another person, or

infringed some pre-existing legal right. Untuk telah bertindak tortiously, seseorang harus telah melanggar kewajiban untuk orang lain, atau melanggar beberapa hak hukum yang sudah ada sebelumnya. A simple example might be accidentally hitting someone with a cricket ball. [ 37 ] Under the law of negligence , the most common form of tort, the injured party could potentially claim compensation for his injuries from the party responsible. Contoh sederhana mungkin sengaja memukul seseorang dengan bola kriket. [37] Di bawah hukum kelalaian , yang bentuk yang paling umum melawan hukum, pihak yang dirugikan secara potensial dapat mengklaim kompensasi atas luka-lukanya dari pihak yang bertanggung jawab. The principles of negligence are illustrated by Donoghue v Stevenson . [ 38 ] A friend of Mrs Donoghue ordered an opaque bottle of ginger beer (intended for the consumption of Mrs Donoghue) in a café in Paisley . Prinsip-prinsip kelalaian diilustrasikan oleh v Donoghue Stevenson . [38] Seorang teman dari Ny Donoghue memerintahkan botol buram dari bir jahe (ditujukan untuk konsumsi Mrs Donoghue) di sebuah kafe di Paisley . Having consumed half of it, Mrs Donoghue poured the remainder into a tumbler. Setelah dikonsumsi setengah dari itu, Nyonya Donoghue menuangkan sisanya ke dalam sebuah gelas. The decomposing remains of a snail floated out. Sisa-sisa yang membusuk siput melayang keluar. She claimed to have suffered from shock, fell ill with gastroenteritis and sued the manufacturer, Stevenson, for carelessly allowing the drink to be contaminated. Dia mengaku telah menderita dari shock, jatuh sakit dengan Gastroenteritis dan menggugat produsen, Stevenson, karena sembarangan minum memungkinkan terkontaminasi. The House of Lords decided that the manufacturer was liable for Mrs Donoghue's illness. Lord Atkin took a distinctly moral approach, and said, The House of Lords memutuskan bahwa produsen itu bertanggung jawab atas Donoghue's penyakit Ny. Tuhan Atkin mengambil pendekatan moral yang jelas, dan berkata,

The liability for negligence ... Kewajiban untuk kelalaian ... is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay ... tidak diragukan lagi didasarkan pada sentimen masyarakat umum tentang kesalahan moral yang pelaku harus membayar ... The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? Aturan bahwa Anda mengasihi sesama Anda menjadi dalam hukum, Anda tidak harus melukai tetangga Anda, dan pertanyaan pengacara, Siapakah tetangga saya? receives a restricted reply. menerima balasan terbatas. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. [ 39 ] Anda harus mengambil langkah yang sewajarnya untuk menghindari tindakan atau kelalaian yang anda bisa meramalkan akan cenderung melukai sesamamu. [39]

This became the basis for the four principles of negligence; (1) Mr Stevenson owed Mrs Donoghue a duty of care to provide safe drinks (2) he breached his duty of care (3) the harm would not have occurred but for his breach and (4) his act was the proximate cause , or not too remote a consequence, of her harm. [ 38 ] Another example of tort might be a neighbour making excessively loud noises with machinery on his property. [ 40 ] Under a nuisance claim the noise could be stopped. Hal ini menjadi dasar bagi empat prinsip kelalaian; (1) Bapak Stevenson berhutang Mrs Donoghue suatu tugas perawatan untuk menyediakan minuman yang aman (2) ia melanggar tugas perawatan (3) merugikan tidak akan terjadi tetapi untuk pelanggaran dan (4) tindakan itu adalah penyebab terdekat , atau tidak terlalu jauh Akibatnya, dari menyakitinya. [38] Contoh lain melawan hukum mungkin tetangga membuat suara bising berlebihan dengan mesin

di atas tanah miliknya. [40] Dalam suatu gangguan klaim kebisingan dapat dihentikan. Torts can also involve intentional acts, such as assault , battery or trespass . Torts juga dapat melibatkan tindakan disengaja, seperti penyerangan , baterai atau pelanggaran . A better known tort is defamation , which occurs, for example, when a newspaper makes unsupportable allegations that damage a politician's reputation. [ 41 ] More infamous are economic torts, which form the basis of labour law in some countries by making trade unions liable for strikes, [ 42 ] when statute does not provide immunity. [ 43 ] Sebuah kesalahan yang dikenal lebih baik adalah fitnah , yang terjadi, misalnya, ketika koran membuat tuduhan unsupportable yang merusak seorang politikus reputasi. [41] Lebih terkenal adalah torts ekonomi, yang membentuk dasar dari hukum perburuhan di beberapa negara dengan membuat serikat buruh bertanggung jawab atas pemogokan, [42] ketika undang-undang tidak memberikan kekebalan. [43]

[ edit ] Property law [ sunting ] Hukum Properti

Main article: Property law Artikel utama: Hukum Properti

A painting of the South Sea Bubble , one of the world's first ever speculations and crashes, led to strict regulation on share trading. [ 44 ] Sebuah lukisan dari South Sea Bubble , salah satu pertama di dunia yang pernah spekulasi dan crash, menyebabkan peraturan ketat pada bursa saham. [44]

Property law governs valuable things that people call 'theirs'. Real property , sometimes called 'real estate' refers to ownership of land and things attached to it. [ 45 ] Personal property , refers to everything else; movable objects, such as computers, cars, jewelry, and sandwiches, or intangible rights, such as stocks and shares . Properti hukum mengatur hal-hal berharga yang orang menyebutnya 'mereka'. milik Real , kadang-kadang disebut 'real estate' mengacu pada kepemilikan tanah dan hal-hal yang melekat padanya. [45] properti pribadi , mengacu pada segala sesuatu yang lain, benda bergerak, seperti komputer, mobil, perhiasan, dan sandwich, atau hak tidak berwujud, seperti saham dan saham . A right in rem is a right to a specific piece of property, contrasting to a right in personam which allows compensation for a loss, but not a particular thing back. Sebuah kanan di rem adalah hak untuk sepotong spesifik properti, kontras dengan hak di personam yang memungkinkan kompensasi atas kehilangan, tapi bukan hal tertentu kembali. Land law forms the basis for most kinds of property law, and is the most complex. Tanah hukum membentuk dasar bagi sebagian besar jenis hukum properti, dan yang paling kompleks. It concerns mortgages , rental agreements , licences , covenants , easements and the statutory systems for land registration. Menyangkut hipotek , perjanjian sewa , lisensi , perjanjian , easements dan sistem hukum untuk pendaftaran tanah. Regulations on the use of personal property fall under intellectual property , company law , trusts and commercial law . Peraturan tentang penggunaan jatuh milik pribadi dalam kekayaan intelektual , hukum

perusahaan , kepercayaan dan hukum dagang . An example of a basic case of most property law is Armory v Delamirie . [ 46 ] A chimney sweep 's boy found a jewel encrusted with precious stones. Contoh kasus dasar hukum properti kebanyakan gudang persenjataan v Delamirie . [46] Seorang pembersih cerobong asap anak s 'ditemukan sebuah permata bertatahkan batu mulia. He took it to a goldsmith to have it valued. Dia membawanya ke tukang emas untuk memilikinya dihargai. The goldsmith's apprentice looked at it, sneakily removed the stones, told the boy it was worth three halfpence and that he would buy it. tukang emas magang memandang itu, sneakily dihapus batu, mengatakan anak itu bernilai tiga halfpence dan bahwa ia akan membelinya. The boy said he would prefer the jewel back, so the apprentice gave it to him, but without the stones. Anak itu mengatakan dia akan lebih memilih permata kembali, sehingga magang yang memberikannya, tapi tanpa batu. The boy sued the goldsmith for his apprentice's attempt to cheat him. Lord Chief Justice Pratt ruled that even though the boy could not be said to own the jewel, he should be considered the rightful keeper ("finders keeper") until the original owner is found. Anak itu menggugat tukang emas untuk itu magang usahanya untuk menipu dia. Tuhan Ketua Mahkamah Pratt memutuskan bahwa meskipun anak itu tidak bisa dikatakan untuk memiliki permata itu, ia harus dianggap sebagai penjaga yang sah ("finders keeper") sampai pemilik asli ditemukan. In fact the apprentice and the boy both had a right of possession in the jewel (a technical concept, meaning evidence that something could belong to someone), but the boy's possessory interest was considered better, because it could be shown to be first in time. Sebenarnya magang dan anak kedua memiliki hak kepemilikan di permata (konsep teknis, yang berarti bukti bahwa sesuatu bisa milik seseorang), tetapi's berkenaan dgn tempat milik kepentingan anak itu dianggap lebih baik, karena bisa ditampilkan menjadi yang pertama dalam waktu . Possession may be nine tenths of the law, but not all. Kepemilikan mungkin sembilan persepuluh hukum, tetapi tidak semua.

This case is used to support the view of property in common law jurisdictions, that the person who can show the best claim to a piece of property, against any contesting party, is the owner. [ 47 ] By contrast, the classic civil law approach to property, propounded by Friedrich Carl von Savigny , is that it is a right good against the world. Kasus ini digunakan untuk mendukung pandangan properti di yurisdiksi hukum umum, bahwa orang yang dapat menunjukkan klaim terbaik untuk sepotong properti, terhadap pihak Peserta, adalah pemilik. [47] Sebaliknya, pendekatan hukum perdata klasik untuk properti, yang dikemukakan oleh Friedrich Carl von Savigny , adalah bahwa hal itu adalah hak baik terhadap dunia. Obligations, like contracts and torts are conceptualised as rights good between individuals. [ 48 ] The idea of property raises many further philosophical and political issues. Kewajiban, seperti kontrak dan torts dikonseptualisasikan sebagai hak yang baik antara individu. [48] Gagasan tentang properti menimbulkan masalah lebih lanjut filsafat dan politik banyak. Locke argued that our "lives, liberties and estates" are our property because we own our bodies and mix our labour with our surroundings. [ 49 ] Locke berpendapat bahwa kita "hidup, kebebasan dan perkebunan" adalah milik kami karena kami sendiri tubuh kita dan campuran tenaga kerja kita dengan lingkungan kita. [49]

[ edit ] Equity and trusts [ sunting ] Keadilan dan kepercayaan

Main articles: Equity (law) and Trust law Artikel utama: Ekuitas (hukum) dan hukum Trust

The Court of Chancery , London, early 19th century The Pengadilan Chancery , London, awal abad 19

Equity is a body of rules that developed in England separately from the "common law". Ekuitas tubuh aturan yang berkembang di Inggris secara terpisah dari "common law". The common law was administered by judges. Hukum umum yang diberikan oleh hakim. The Lord Chancellor on the other hand, as the King's keeper of conscience, could overrule the judge made law if he thought it equitable to do so. [ 50 ] This meant equity came to operate more through principles than rigid rules. Para Kanselir Tuhan di sisi lain, sebagai Raja's penjaga dari hati nurani, bisa menolak hakim membuat hukum jika dia pikir itu adil untuk melakukannya. [50] Ini berarti ekuitas datang untuk beroperasi secara lebih melalui prinsip-prinsip dari aturan-aturan kaku. For instance, whereas neither the common law nor civil law systems allow people to split the ownership from the control of one piece of property, equity allows this through an arrangement known as a 'trust'. Sebagai contoh, sedangkan baik common law maupun sistem hukum perdata memungkinkan orang untuk membagi kepemilikan dari kontrol satu bagian dari properti, ekuitas memungkinkan ini melalui pengaturan yang dikenal sebagai 'kepercayaan'. 'Trustees' control property, whereas the 'beneficial' (or 'equitable') ownership of trust property is held by people known as 'beneficiaries'. kontrol kekayaan 'Pembina', sedangkan 'menguntungkan' (atau 'adil') kepemilikan properti kepercayaan dipegang oleh orang yang dikenal sebagai 'penerima'. Trustees owe duties to their beneficiaries to take good care of the entrusted property. [ 51 ] In the early case of Keech v Sandford [ 52 ] a child had inherited the lease on a market in Romford , London. Pengawas memiliki kewajiban untuk penerima mereka untuk merawat properti dipercayakan. [51] Dalam kasus awal v Keech Sandford [52] seorang anak mewarisi sewa pada pasar di Romford , London. Mr Sandford was entrusted to look after this property until the child matured. Mr Sandford dipercayakan untuk memelihara properti ini sampai anak matang. But before then, the lease expired. Tapi sebelum itu, sewa berakhir. The landlord had (apparently) told Mr Sandford that he did not want the child to have the renewed lease. tuan tanah itu (ternyata) menceritakan kepada Pak Sandford bahwa ia tidak ingin anak-anak untuk memiliki sewa diperbaharui. Yet the landlord was happy (apparently) to give Mr Sandford the opportunity of the lease instead. Namun pemilik bahagia (ternyata) untuk memberikan Bapak Sandford kesempatan sewa gantinya. Mr Sandford took it. Mr Sandford mengambilnya. When the child (now Mr Keech) grew up, he sued Mr Sandford for the profit that he had been making by getting the market's lease. Ketika anak (sekarang Mr Keech) dewasa, dia menggugat Bapak Sandford untuk keuntungan bahwa ia telah membuat dengan mendapatkan sewa pasar. Mr Sandford was meant to be trusted, but he put himself in a position of conflict of interest . Mr Sandford dimaksudkan untuk dipercaya, tetapi ia menempatkan dirinya dalam posisi konflik kepentingan . The Lord Chancellor , Lord King , agreed and ordered Mr Sandford should disgorge his profits. The

Chancellor Tuhan , Tuhan Raja , setuju dan memerintahkan Bapak Sandford harus mengembalikan keuntungannya. He wrote, Dia menulis,

I very well see, if a trustee, on the refusal to renew, might have a lease to himself few trust-estates would be renewed ... Saya lihat sangat baik, jika wali, pada penolakan untuk memperbaharui, mungkin sewa untuk dirinya sendiri beberapa kepercayaan-kebun akan diperbaharui ... This may seem very hard, that the trustee is the only person of all mankind who might not have the lease; but it is very proper that the rule should be strictly pursued and not at all relaxed. Hal ini mungkin tampak sangat sulit, bahwa wali amanat adalah satu-satunya orang dari semua umat manusia yang tidak mungkin sewa, tetapi sangat tepat bahwa aturan harus benar-benar dikejar dan sama sekali tidak santai.

Of course, Lord King LC was worried that trustees might exploit opportunities to use trust property for themselves instead of looking after it. Tentu saja, Tuhan Raja LC khawatir bahwa wali akan memanfaatkan kesempatan untuk menggunakan properti kepercayaan bagi diri mereka sendiri, bukan mencari setelah itu. Business speculators using trusts had just recently caused a stock market crash . Bisnis spekulan menggunakan kepercayaan yang baru saja menyebabkan crash pasar saham . Strict duties for trustees made their way into company law and were applied to directors and chief executive officers . tugas ketat untuk wali membuat jalan mereka ke dalam hukum perusahaan dan telah diterapkan kepada direksi dan pejabat eksekutif kepala . Another example of a trustee's duty might be to invest property wisely or sell it. [ 53 ] This is especially the case for pension funds, the most important form of trust, where investors are trustees for people's savings until retirement . Contoh lain dari trustee's tugas mungkin untuk berinvestasi properti bijaksana atau menjualnya. [53] Ini adalah kasus khusus untuk pensiun dana, yang penting bentuk yang paling kepercayaan, di mana investor wali bagi yang tabungan masyarakat sampai pensiun . But trusts can also be set up for charitable purposes , famous examples being the British Museum or the Rockefeller Foundation . Tapi percaya juga dapat diatur untuk tujuan amal , contoh yang terkenal sebagai British Museum atau Rockefeller Foundation .

[ edit ] Further disciplines [ sunting ] disiplin lebih lanjut

Law spreads far beyond the core subjects into virtually every area of life. Hukum menyebar jauh melampaui mata pelajaran inti dalam hampir setiap bidang kehidupan. Three categories are presented for convenience, though the subjects intertwine and overlap. Tiga kategori disajikan untuk kenyamanan, meskipun subjek berjalin dan tumpang tindih.

Law and society Hukum dan masyarakat

A trade union protest by UNISON while on strike Sebuah serikat buruh protes oleh serempak saat mogok

Labour law is the study of a tripartite industrial relationship between worker, employer and trade union . Hukum perburuhan adalah studi tentang hubungan industrial tripartit antara pekerja, pengusaha dan serikat buruh . This involves collective bargaining regulation, and the right to strike . Hal ini melibatkan perundingan bersama peraturan, dan hak untuk mogok . Individual employment law refers to workplace rights, such as job security , health and safety or a minimum wage . hukum ketenagakerjaan Individu merujuk kepada hak-hak di tempat kerja, seperti keamanan kerja , kesehatan dan keselamatan kerja atau upah minimum .

Human rights , civil rights and human rights law are important fields to guarantee everyone basic freedoms and entitlements. Hak asasi manusia , hak sipil dan hukum hak asasi manusia merupakan bidang penting untuk menjamin dasar kebebasan dan hak setiap orang. These are laid down in codes such as the Universal Declaration of Human Rights , the European Convention on Human Rights (which founded the European Court of Human Rights ) and the US Bill of Rights . Ini diatur dalam kode-kode seperti Deklarasi Universal Hak Asasi Manusia , yang Konvensi Eropa tentang Hak Asasi Manusia (yang mendirikan Pengadilan HAM Eropa ) dan AS Bill of Rights . The Treaty of Lisbon makes the Charter of Fundamental Rights of the European Union legally binding in all member states except Charter of Fundamental Rights of the European Union – Poland and the United Kingdom . [ 54 ] The Perjanjian Lisbon membuat Piagam Hak Dasar Uni Eropa yang mengikat secara hukum di semua negara anggota kecuali Piagam Hak Dasar Uni Eropa - Polandia dan Inggris . [54]

Civil procedure and criminal procedure concern the rules that courts must follow as a trial and appeals proceed. Sipil prosedur dan prosedur pidana keprihatinan aturan bahwa pengadilan harus mengikuti sebagai percobaan dan melanjutkan banding. Both concern a citizen's right to a fair trial or hearing. Kedua kekhawatiran warga negara hak untuk mendapatkan pengadilan yang adil atau mendengar.

Evidence law involves which materials are admissible in courts for a case to be built. Bukti hukum yang melibatkan bahan diterima di pengadilan untuk kasus yang akan dibangun.

Immigration law and nationality law concern the rights of foreigners to live and work in a nation-state that is not their own and to acquire or lose citizenship . Imigrasi hukum dan kebangsaan hukum menyangkut hak orang asing untuk tinggal dan bekerja di sebuah negara-bangsa yang tidak mereka sendiri dan untuk memperoleh atau kehilangan kewarganegaraan . Both also involve the right of asylum and the problem of stateless individuals. Keduanya juga melibatkan hak suaka dan masalah stateless individu.

Social security law refers to the rights people have to social insurance, such as jobseekers' allowances or housing benefits. Jaminan sosial hukum mengacu pada hak orang harus asuransi sosial, seperti 'tunjangan pencari kerja atau manfaat perumahan.

Family law covers marriage and divorce proceedings, the rights of children and rights to property and money in the event of separation. Hukum keluarga meliputi perkawinan dan perceraian persidangan, hak-hak anak-anak dan hak atas kekayaan dan uang dalam hal pemisahan.

Law and commerce Hukum dan perdagangan

Company law sprang from the law of trusts, on the principle of separating ownership of property and control. [ 55 ] The law of the modern company began with the Joint Stock Companies Act 1856 , passed in the United Kingdom, which provided investors with a simple registration procedure to gain limited liability under the separate legal personality of the corporation. hukum Perusahaan melompat dari hukum percaya, pada prinsip memisahkan kepemilikan harta dan kontrol. [55] Hukum modern perusahaan dimulai dengan Saham Gabungan Companies Act 1856 , lulus di Inggris, yang memberikan investor dengan sederhana prosedur pendaftaran untuk memperoleh terbatas di bawah kepribadian hukum yang terpisah dari korporasi.

Commercial law covers complex contract and property law. hukum komersial meliputi kontrak yang kompleks dan hukum properti. The law of agency , insurance law , bills of exchange , insolvency and bankruptcy law and sales law are all important, and trace back to the mediæval Lex Mercatoria . Hukum agen , hukum asuransi , bill of exchange , kebangkrutan dan hukum kepailitan dan hukum penjualan semua penting, dan menelusuri kembali ke abad pertengahan Mercatoria Lex . The UK Sale of Goods Act 1979 and the US Uniform Commercial Code are examples of codified common law commercial principles. Inggris Sale of Goods Act 1979 dan Amerika Serikat Uniform Commercial Code adalah contoh dari prinsip-prinsip hukum dikodifikasi komersial umum.

Admiralty law and the Law of the Sea lay a basic framework for free trade and commerce across the world's oceans and seas, where outside of a country's zone of control. hukum Admiralty dan Hukum Laut meletakkan kerangka dasar untuk perdagangan bebas dan perdagangan di seluruh dunia samudera dan laut, dimana di luar negara zona kontrol. Shipping companies operate through ordinary principles of commercial law, generalised for a global market. Pengiriman perusahaan beroperasi melalui prinsip-prinsip hukum komersial biasa, umum untuk pasar global. Admiralty law also encompasses specialised issues such as salvage , maritime liens , and injuries to passengers. Admiralty hukum juga mencakup isu-isu khusus seperti penyelamatan , piutang maritim , dan melukai penumpang.

Intellectual property law aims at safeguarding creators and other producers of intellectual goods and services. Kekayaan intelektual hukum bertujuan melindungi pencipta dan produsen lain dari barang intelektual dan jasa. These are legal rights ( copyrights , trademarks , patents , and related rights ) which result from intellectual activity in the industrial, literary and artistic fields. [ 56 ] Ini adalah hak hukum ( hak cipta , merek dagang , paten , dan hak-hak istimewa ) yang hasil dari kegiatan intelektual dalam, sastra dan seni bidang industri. [56]

Restitution deals with the recovery of someone else's gain, rather than compensation for one's own loss. Restitusi berkaitan dengan pemulihan dari keuntungan orang lain, bukan kompensasi untuk kerugian sendiri satu.

Unjust enrichment When someone has been unjustly enriched (or there is an "absence of basis" for a transaction) at another's expense, this event generates the right to restitution to reverse that gain. pengayaan yang tidak adil Ketika seseorang telah secara tidak adil diperkaya (atau ada "ketiadaan dasar" untuk transaksi) di's beban lain, acara ini menghasilkan hak untuk restitusi untuk membalikkan keuntungan itu.

Law and regulation Hukum dan regulasi

The New York Stock Exchange trading floor after the Wall Street Crash of 1929 , before tougher banking regulation was introduced The New York Stock Exchange lantai perdagangan setelah Wall Street Crash tahun 1929 , sebelum ketat peraturan perbankan diperkenalkan

Tax law involves regulations that concern value added tax , corporate tax , income tax . Hukum Pajak melibatkan peraturan yang menyangkut pajak pertambahan nilai , pajak perusahaan , pajak penghasilan .

Banking law and financial regulation set minimum standards on the amounts of capital banks must hold, and rules about best practice for investment. Perbankan hukum dan peraturan keuangan menetapkan standar minimum pada jumlah bank modal harus terus, dan aturan tentang praktek terbaik untuk investasi. This is to insure against the risk of economic crises, such as the Wall Street Crash of 1929 . Hal ini untuk memastikan terhadap risiko krisis ekonomi, seperti Wall Street Crash tahun 1929 .

Regulation deals with the provision of public services and utilities . Water law is one example. Peraturan berkaitan dengan penyediaan layanan publik dan utilitas . hukum Air adalah salah satu contoh. Especially since privatisation became popular and took management of services away from public law, private companies doing the jobs previously controlled by government have been bound by varying degrees of social responsibility. Energy , gas , telecomms and water are regulated industries in most OECD countries. Terutama karena privatisasi menjadi populer dan mengambil manajemen pelayanan jauh dari hukum publik, perusahaan swasta melakukan pekerjaan sebelumnya dikuasai oleh pemerintah telah terikat oleh berbagai tingkat tanggung jawab sosial. Energi , gas , telecomms dan air diatur industri di sebagian besar OECD negara.

Competition law , known in the US as antitrust law, is an evolving field that traces as far back as Roman decrees against price fixing and the English restraint of trade doctrine. Persaingan hukum , dikenal di AS sebagai antitrust hukum, merupakan bidang yang berkembang bahwa jejak sejauh Roma keputusan terhadap penetapan harga dan Inggris pengekangan perdagangan doktrin. Modern competition law derives from the US anti-cartel and anti-monopoly statutes (the Sherman Act and Clayton Act ) of the turn of the 20th century. hukum persaingan modern berasal dari anti-kartel AS dan undang-undang anti-monopoli (dalam Sherman Act dan Clayton Act ) dari pergantian abad ke-20. It is used to control businesses who attempt to use their economic influence to distort market prices at the expense of consumer welfare . Hal ini digunakan untuk mengontrol bisnis yang mencoba untuk menggunakan pengaruh ekonomi mereka untuk mendistorsi harga pasar dengan mengorbankan kesejahteraan konsumen .

Consumer law could include anything from regulations on unfair contractual terms and clauses to directives on airline baggage insurance. hukum Konsumen dapat mencakup apa saja dari peraturan yang tidak adil persyaratan kontrak dan klausul untuk arahan pada bagasi asuransi penerbangan.

Environmental law is increasingly important, especially in light of the Kyoto Protocol and the potential danger of climate change . hukum lingkungan semakin penting, terutama dalam terang Protokol Kyoto dan potensi bahaya dari perubahan iklim . Environmental protection also serves to penalise polluters within domestic legal systems. perlindungan lingkungan juga berfungsi untuk menghukum pencemar dalam sistem hukum domestik.

[ edit ] Legal systems [ sunting ] Sistem hukum Main article: Legal systems of the world Artikel utama: Sistem hukum di dunia

In general, legal systems can be split between civil law and common law systems. [ 57 ] The term "civil law" referring to a legal system should not be confused with "civil law" as a group of legal subjects distinct from criminal or public law . Secara umum, sistem hukum dapat dibagi antara hukum perdata dan hukum umum sistem. [57] Istilah "sipil" hukum mengacu pada sistem hukum tidak harus bingung dengan "hukum perdata" sebagai kelompok yang berbeda dari subyek hukum pidana atau publik hukum . A third type of legal system— accepted by some countries without separation of church and state —is religious law, based on scriptures . Jenis ketiga sistem hukum yang diterima oleh beberapa negara tanpa pemisahan gereja dan negara -adalah hukum agama, berdasarkan kitab suci . The specific system that a country is ruled by is often determined by its history, connections with other countries, or its adherence to international standards. Sistem khusus yang suatu negara diperintah oleh sering ditentukan oleh sejarah, hubungan dengan negara lain, atau kepatuhan kepada standar internasional. The sources that jurisdictions adopt as authoritatively binding are the defining features of any legal system. Para sumber yang mengadopsi yurisdiksi sebagai otoritatif mengikat adalah ciri dari setiap sistem hukum. Yet classification is a matter of form rather than substance, since similar rules often prevail. Namun klasifikasi adalah masalah bentuk daripada substansi, karena aturan serupa sering menang.

[ edit ] Civil law [ sunting ] Hukum perdata

Main article: Civil law (legal system) Artikel utama: Hukum perdata (sistem hukum)

First page of the 1804 edition of the Napoleonic Code Halaman pertama edisi 1804 dari Kode Napoleon

Civil law is the legal system used in most countries around the world today. In civil law the sources recognised as authoritative are, primarily, legislation—especially codifications in constitutions or statutes passed by government—and custom. [ 58 ] Codifications date back millennia, with one early example being the Babylonian Codex Hammurabi . Modern civil law systems essentially derive from the legal practice of the Roman Empire whose texts were rediscovered in medieval Europe. Roman law in the days of the Roman Republic and Empire was heavily procedural, and lacked a professional legal class. [ 59 ] Instead a lay person, iudex , was chosen to adjudicate. Precedents were not reported, so any case law that developed was disguised and almost unrecognised. [ 60 ] Each case was to be decided afresh from the laws of the state, which mirrors the (theoretical) unimportance of judges' decisions for future cases in civil law systems today. During the 6th century AD in the Eastern Roman Empire , the Emperor Justinian I codified and consolidated the laws that had existed in Rome, so that what remained was one-twentieth of the mass of legal texts from before. [ 61 ] This became known as the Corpus Juris Civilis . As one legal historian wrote, "Justinian consciously looked back to the golden age of Roman law and aimed to restore it to the peak it had reached three centuries before." [ 62 ] Western Europe, meanwhile, slowly slipped into the Dark Ages , and it was not until the 11th century that scholars in the University of Bologna rediscovered the texts and used them to interpret their own laws. [ 63 ] Civil law codifications based closely on Roman law, alongside some influences from religious laws such as Canon law continued to spread throughout Europe until the Enlightenment ; then, in the 19th century, both France, with the Code Civil , and Germany, with the Bürgerliches Gesetzbuch , modernised their legal codes. Both these codes influenced heavily not only the law systems of the countries in continental Europe (eg Greece), but also the Japanese and Korean legal traditions. [ 64 ] [ 65 ] Today, countries that have civil law systems range from Russia and China to most of Central and Latin America . [ 66 ] The United States follows the common law system described below.

[ edit ] Common law and equity

Main article: Common law

King John of England signs Magna Carta

Common law and equity are legal systems where decisions by courts are explicitly acknowledged to be legal sources. The "doctrine of precedent", or stare decisis (Latin for "to stand by decisions") means that decisions by higher courts bind lower courts. Common law systems also rely on statutes, passed by the legislature, but may make less of a systematic attempt to codify their laws than in a "civil law" system. Common law originated from England and has been inherited by almost every country once tied to the British Empire (except Malta, Scotland , the US state of Louisiana , and the Canadian province of Quebec ). In medieval England, the Norman conquest led to a unification of various tribal customs and hence a law "common" to the whole country. The common law developed when the English monarchy had been weakened by the enormous cost of fighting for control over large parts of France. King John had been forced by his barons to sign a document limiting his authority to pass laws. This "great charter" or Magna Carta of 1215 also required that the King's entourage of judges hold their courts and judgments at "a certain place" rather than dispensing autocratic justice in unpredictable places about the country. [ 67 ] A concentrated and elite group of judges acquired a dominant role in law-making under this system, and compared to its European counterparts the English judiciary became highly centralised. In 1297, for instance, while the highest court in France had fifty-one judges, the English Court of Common Pleas had five. [ 68 ] This powerful and tight-knit judiciary gave rise to a rigid and inflexible system of common law. [ 69 ] As a result, as time went on, increasing numbers of citizens petitioned the King to override the common law, and on the King's behalf the Lord Chancellor gave judgment to do what was equitable in a case. From the time of Sir Thomas More , the first lawyer to be appointed as Lord Chancellor, a systematic body of equity grew up alongside the rigid common law, and developed its own Court of Chancery . At first, equity was often criticised as erratic, that it varied according to the length of the Chancellor's foot. [ 70 ] But over time it developed solid principles , especially under Lord Eldon . [ 71 ] In the 19th century the two systems were fused into one another. In developing the common law and equity, academic authors have always played an important part. William

Blackstone , from around 1760, was the first scholar to describe and teach it. [ 72 ] But merely in describing, scholars who sought explanations and underlying structures slowly changed the way the law actually worked. [ 73 ]

[ edit ] Religious law

Main article: Religious law

Religious law is explicitly based on religious precepts. Examples include the Jewish Halakha and Islamic Sharia—both of which translate as the "path to follow"—while Christian canon law also survives in some church communities. Often the implication of religion for law is unalterability, because the word of God cannot be amended or legislated against by judges or governments. However a thorough and detailed legal system generally requires human elaboration. For instance, the Quran has some law, and it acts as a source of further law through interpretation, [ 74 ] Qiyas (reasoning by analogy), Ijma (consensus) and precedent . This is mainly contained in a body of law and jurisprudence known as Sharia and Fiqh respectively. Another example is the Torah or Old Testament , in the Pentateuch or Five Books of Moses. This contains the basic code of Jewish law, which some Israeli communities choose to use. The Halakha is a code of Jewish law which summarises some of the Talmud's interpretations. Nevertheless, Israeli law allows litigants to use religious laws only if they choose. Canon law is only in use by members of the clergy in the Roman Catholic Church , the Eastern Orthodox Church and the Anglican Communion .

A trial in the Ottoman Empire, 1879, when religious law applied under the Mecelle

Until the 18th century, Sharia law was practiced throughout the Muslim world in a non-codified form, with the Ottoman Empire 's Mecelle code in the 19th century being first attempt at codifying elements of Sharia law. Since the mid-1940s, efforts have been made, in country after country, to bring Sharia law more into line with modern conditions and conceptions. [ 75 ] [ 76 ] In modern times, the legal systems of many Muslim countries draw upon both civil and common law traditions as well as Islamic law and custom. The constitutions of certain Muslim states, such as Egypt and Afghanistan, recognise Islam as the religion of the state, obliging legislature to adhere to Sharia. [ 77 ] Saudi Arabia recognises Quran as its constitution, and is governed on the basis of Islamic law. [ 78 ] Iran has also witnessed a reiteration of Islamic law into its legal system after 1979. [ 79 ] During the last few decades, one of the fundamental features of the movement of Islamic resurgence has been the call to restore the Sharia, which has generated a vast amount of literature and affected world politics . [ 80 ]

[ edit ] Legal theory

[ edit ] History of law

Main article: Legal history

King Hammurabi is revealed the code of laws by the Mesopotamian sun god Shamash , also revered as the god of justice

The history of law is closely connected to the development of civilization . Ancient Egyptian law, dating as far back as 3000 BC, contained a civil code that was probably broken into twelve books. It was based on the concept of Ma'at , characterised by tradition, rhetorical speech, social equality and impartiality. [ 81 ] [ 82 ] By the 22nd century BC, the ancient Sumerian ruler Ur-Nammu had formulated the first law code , which consisted of casuistic statements ("if ... then ..."). Around 1760 BC, King Hammurabi further developed Babylonian law , by codifying and inscribing it in stone. Hammurabi placed several copies of his law code throughout the kingdom of Babylon as stelae , for the entire public to see; this became known as the Codex Hammurabi . The most intact copy of these stelae was discovered in the 19th century by British Assyriologists, and has since been fully transliterated and translated into various languages, including English, German, and French. [ 83 ]

The Old Testament dates back to 1280 BC, and takes the form of moral imperatives as recommendations for a good society. The small Greek city-state, Ancient Athens , and from about 8th century BC was the first society to be based on broad inclusion of its citizenry; excluding women and the slave class. However, Athens had no legal science, and no word for "law" as an abstract concept. [ 84 ] Yet Ancient Greek law contained major constitutional innovations in the development of democracy . [ 85 ]

Roman law was heavily influenced by Greek philosophy, but its detailed rules were developed by professional jurists, and were highly sophisticated. [ 86 ] [ 87 ] Over the centuries between the rise and decline of the Roman Empire , law was adapted to cope with the changing social situations, and underwent major codification during Justinian I . [ 88 ] Although it declined in significance

during the Dark Ages , Roman law was rediscovered around the 11th century when mediæval legal scholars began to research Roman codes and adapt their concepts. In mediæval England, the King's judges developed a body of precedent , which later became the common law . A Europe-wide Lex Mercatoria was formed so that merchants could trade with common standards of practice; rather than with the many splintered facets of local laws. The Lex Mercatoria , a precursor to modern commercial law, emphasised the freedom of contract and alienability of property. [ 89 ] As nationalism grew in the 18th and 19th centuries, Lex Mercatoria was incorporated into countries' local law under new civil codes. The French Napoleonic Code and the German became the most influential. In contrast to English common law, which consists of enormous tomes of case law, codes in small books are easy to export and easy for judges to apply. However, today there are signs that civil and common law are converging. [ 90 ] EU law is codified in treaties, but develops through the precedent laid down by the European Court of Justice .

The Constitution of India is the longest written constitution for a country, containing 444 articles, 12 schedules, numerous amendments and 117,369 words

Ancient India and China represent distinct traditions of law, and have historically had independent schools of legal theory and practice. The Arthashastra , probably compiled around 100 AD (although it contains older material), and the Manusmriti (c. 100–300 AD) were foundational treatises in India, and comprise texts considered authoritative legal guidance. [ 91 ] Manu's central philosophy was tolerance and Pluralism , and was cited across Southeast Asia. [ 92 ]

This Hindu tradition, along with Islamic law, was supplanted by the common law when India became part of the British Empire . [ 93 ] Malaysia, Brunei, Singapore and Hong Kong also adopted the common law. The eastern Asia legal tradition reflects a unique blend of secular and religious influences. [ 94 ] Japan was the first country to begin modernising its legal system along western lines, by importing bits of the French , but mostly the German Civil Code. [ 95 ] This partly reflected Germany's status as a rising power in the late 19th century. Similarly, traditional Chinese law gave way to westernisation towards the final years of the Ch'ing dynasty in the form

of six private law codes based mainly on the Japanese model of German law. [ 96 ] Today Taiwanese law retains the closest affinity to the codifications from that period, because of the split between Chiang Kai-shek 's nationalists, who fled there, and Mao Zedong 's communists who won control of the mainland in 1949. The current legal infrastructure in the People's Republic of China was heavily influenced by Soviet Socialist law , which essentially inflates administrative law at the expense of private law rights. [ 97 ] Due to rapid industrialisation, today China undergoing a process of reform, at least in terms of economic, if not social and political, rights. A new contract code in 1999 represented a move away from administrative domination. [ 98 ] Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organisation . [ 99 ]

[ edit ] Philosophy of law

Main article: Jurisprudence

But what, after all, is a law? [...] When I say that the object of laws is always general, I mean that law considers subjects en masse and actions in the abstract, and never a particular person or action. [...] On this view, we at once see that it can no longer be asked whose business it is to make laws, since they are acts of the general will; nor whether the prince is above the law, since he is a member of the State; nor whether the law can be unjust, since no one is unjust to himself; nor how we can be both free and subject to the laws, since they are but registers of our wills.

Jean-Jacques Rousseau, The Social Contract , II, 6. [ 100 ]

The philosophy of law is commonly known as jurisprudence. Normative jurisprudence is essentially political philosophy , and asks "what should law be?", while analytic jurisprudence asks "what is law?". John Austin 's utilitarian answer was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience". [ 101 ] Natural lawyers on the other side, such as Jean-Jacques Rousseau , argue that law reflects essentially moral and unchangeable laws of nature. The concept of "natural law" emerged in ancient Greek philosophy concurrently and in entanglement with the notion of justice, and re-entered the mainstream of Western culture through the writings of Thomas Aquinas .

Hugo Grotius , the founder of a purely rationalistic system of natural law, argued that law arises from both a social impulse—as Aristotle had indicated—and reason. [ 102 ] Immanuel Kant believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature". [ 103 ] Jeremy Bentham and his student Austin, following David Hume , believed that this conflated the "is" and what "ought to be" problem. Bentham and Austin argued for law's positivism ; that real law is entirely separate from "morality". [ 104 ] Kant was also criticised by Friedrich Nietzsche , who rejected the principle of equality, and believed that law emanates from the will to power , and cannot be labelled as "moral" or "immoral". [ 105 ] [ 106 ] [ 107 ]

In 1934, the Austrian philosopher Hans Kelsen continued the positivist tradition in his book the Pure Theory of Law . [ 108 ] Kelsen believed that although law is separate from morality, it is endowed with "normativity"; meaning we ought to obey it. While laws are positive "is" statements (eg the fine for reversing on a highway is € 500); law tells us what we "should" do. Thus, each legal system can be hypothesised to have a basic norm ( Grundnorm ) instructing us

to obey. Kelsen's major opponent, Carl Schmitt , rejected both positivism and the idea of the rule of law because he did not accept the primacy of abstract normative principles over concrete political positions and decisions. [ 109 ] Therefore, Schmitt advocated a jurisprudence of the exception ( state of emergency ), which denied that legal norms could encompass of all political experience. [ 110 ]

Bentham's utilitarian theories remained dominant in law until the 20th century

Later in the 20th century, HLA Hart attacked Austin for his simplifications and Kelsen for his fictions in The Concept of Law . [ 111 ] Hart argued law is a system of rules, divided into primary (rules of conduct) and secondary ones (rules addressed to officials to administer primary rules). Secondary rules are further divided into rules of adjudication (to resolve legal disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid). Two of Hart's students continued the debate: In his book Law's Empire , Ronald Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an " interpretive concept", [ 112 ] that requires judges to find the best fitting and most just solution to a legal dispute, given their constitutional traditions. Joseph Raz , on the other hand, defended the positivist outlook and criticised Hart's "soft social thesis" approach in The Authority of Law . [ 113 ] Raz argues that law is authority, identifiable purely through social sources and without reference to moral reasoning. In his view, any categorisation of rules beyond their role as authoritative instruments in mediation are best left to sociology , rather than jurisprudence. [ 114 ]

[ edit ] Economic analysis of law

Main article: Law and economics

In the 18th century Adam Smith presented a philosophical foundation for explaining the relationship between law and economics. [ 115 ] The discipline arose partly out of a critique of

trade unions and US antitrust law. The most influential proponents, such as Richard Posner and Oliver Williamson and the so-called Chicago School of economists and lawyers including Milton Friedman and Gary Becker , are generally advocates of deregulation and privatisation , and are hostile to state regulation or what they see as restrictions on the operation of free markets . [ 116 ]

Richard Posner , one of the Chicago School , runs a blog with Bank of Sweden Prize winning economist Gary Becker . [ 117 ]

The most prominent economic analyst of law is 1991 Nobel Prize winner Ronald Coase , whose first major article, The Nature of the Firm (1937), argued that the reason for the existence of firms (companies, partnerships, etc.) is the existence of transaction costs . [ 118 ] Rational individuals trade through bilateral contracts on open markets until the costs of transactions mean that using corporations to produce things is more cost-effective. His second major article, The Problem of Social Cost (1960), argued that if we lived in a world without transaction costs, people would bargain with one another to create the same allocation of resources, regardless of the way a court might rule in property disputes. [ 119 ] Coase used the example of a nuisance case named Sturges v Bridgman , where a noisy sweetmaker and a quiet doctor were neighbours and went to court to see who should have to move. [ 40 ] Coase said that regardless of whether the judge ruled that the sweetmaker had to stop using his machinery, or that the doctor had to put up with it, they could strike a mutually beneficial bargain about who moves house that reaches the same outcome of resource distribution. Only the existence of transaction costs may prevent this. [ 120 ] So the law ought to pre-empt what would happen, and be guided by the most efficient solution. The idea is that law and regulation are not as important or effective at helping people as lawyers and government planners believe. [ 121 ] Coase and others like him wanted a change of approach, to put the burden of proof for positive effects on a government that was intervening in the market, by analysing the costs of action. [ 122 ]

[ edit ] Sociology of law

Main article: Sociology of law

Sociology of law is a diverse field of study that examines the interaction of law with society and overlaps with jurisprudence, economic analysis of law and more specialised subjects such as criminology . [ 123 ] The institutions of social construction and legal frameworks are the relevant areas for the discipline's inquiry. At first, legal theorists were suspicious of the discipline. Kelsen attacked one of its founders, Eugen Ehrlich , who sought to make distinct the differences between positive law, which lawyers learn and apply, and other forms of 'law' or social norms

that regulate everyday life, generally preventing conflicts from reaching lawyers and courts. [ 124 ] [ 125 ]

Max Weber in 1917, Weber began his career as a lawyer, and is regarded as one of the founders of sociology and sociology of law,

Around 1900 Max Weber defined his "scientific" approach to law, identifying the "legal rational form" as a type of domination, not attributable to people but to abstract norms. [ 126 ] Legal rationalism was his term for a body of coherent and calculable law which formed a precondition for modern political developments and the modern bureaucratic state and developed in parallel with the growth of capitalism . [ 123 ] Another sociologist, Émile Durkheim , wrote in The Division of Labour in Society that as society becomes more complex, the body of civil law concerned primarily with restitution and compensation grows at the expense of criminal laws and penal sanctions. [ 127 ] Other notable early legal sociologists included Hugo Sinzheimer , Theodor Geiger , Georges Gurvitch and Leon Petrażycki in Europe, and William Graham Sumner in the US [ 128 ] [ 129 ]

[ edit ] Legal institutions It is a real unity of them all in one and the same person, made by covenant of every man with every man, in such manner as if every man should say to every man: I authorise and give up my right of governing myself to this man, or to this assembly of men, on this condition; that thou givest up, thy right to him, and authorise all his actions in like manner.

Thomas Hobbes, Leviathan , XVII

The main institutions of law in industrialised countries are independent courts , representative parliaments , an accountable executive , the military and police , bureaucratic organisation, the legal profession and civil society itself. John Locke, in his Two Treatises of Government , and Baron de Montesquieu in The Spirit of the Laws , advocated for a separation of powers between the political, legislature and executive bodies. [ 130 ] Their principle was that no person should be able to usurp all powers of the state , in contrast to the absolutist theory of Thomas Hobbes ' Leviathan . [ 131 ] Max Weber and others reshaped thinking on the extension of state. Modern military, policing and bureaucratic power over ordinary citizens' daily lives pose special problems for accountability that earlier writers such as Locke or Montesquieu could not have foreseen. The custom and practice of the legal profession is an important part of people's access to justice , whilst civil society is a term used to refer to the social institutions, communities and partnerships that form law's political basis.

[ edit ] Judiciary [ sunting ] Yudikatif

Main article: Judiciary

A judiciary is a number of judges mediating disputes to determine outcome. Most countries have systems of appeal courts, answering up to a supreme legal authority. In the United States, this is the Supreme Court ; [ 132 ] in Australia, the High Court ; in the UK, the Supreme Court ; [ 133 ] in Germany, the Bundesverfassungsgericht ; in France, the Cour de Cassation . [ 134 ] [ 135 ] For most European countries the European Court of Justice in Luxembourg can overrule national law, when EU law is relevant. The European Court of Human Rights in Strasbourg allows citizens of the Council of Europe member states to bring cases relating to human rights issues before it. [ 136 ]

The judges of the International Court of Justice in the Hague

Some countries allow their highest judicial authority to over-rule legislation they determined as unconstitutional . In Roe v Wade , the US Supreme Court overturned a Texas law which forbade the granting of assistance to women seeking abortion . [ 137 ] The US's constitution's fourteenth amendment was interpreted to give Americans a right to privacy , and thus a woman's right to choose abortion.

A judiciary is theoretically bound by the constitution, much as legislative bodies are. In most countries judges may only interpret the constitution and all other laws. But in common law countries, where matters are not constitutional, the judiciary may also create law under the doctrine of precedent . The UK, Finland and New Zealand assert the ideal of parliamentary sovereignty , whereby the unelected judiciary may not overturn law passed by a democratic legislature. [ 138 ] In communist states , such as China, the courts are often regarded as parts of the executive, or subservient to the legislature; governmental institutions and actors exert thus various forms of influence on the judiciary. [ 139 ] In Muslim countries, courts often examine whether state laws adhere to the Sharia: the Supreme Constitutional Court of Egypt may invalidate such laws, [ 140 ] and in Iran the Guardian Council ensures the compatibility of the legislation with the "criteria of Islam". [ 140 ] [ 141 ]

[ edit ] Legislature

Main article: Legislature

The debating chamber of the European Parliament

Prominent examples of legislatures are the Houses of Parliament in London, the Congress in Washington DC, the Bundestag in Berlin, the Duma in Moscow, the Parlamento Italiano in Rome and the Assemblée nationale in Paris. By the principle of representative government people vote for politicians to carry out their wishes. Although countries like Israel, Greece, Sweden and China are unicameral , most countries are bicameral , meaning they have two separately appointed legislative houses. In the 'lower house' politicians are elected to represent smaller constituencies . The 'upper house' is usually elected to represent states in a federal system (as in Australia, Germany or the United States) or different voting configuration in a unitary system (as in France). In the UK the upper house is appointed by the government as a house of review . One criticism of bicameral systems with two elected chambers is that the upper and lower houses may simply mirror one another. The traditional justification of bicameralism is that an upper chamber acts as a house of review. This can minimise arbitrariness and injustice in governmental action. [ 142 ]

To pass legislation, a majority of Members of Parliament must vote for a bill (proposed law) in each house. Normally there will be several readings and amendments proposed by the different political factions. If a country has an entrenched constitution, a special majority for changes to the constitution will be required, making changes to the law more difficult. A government usually leads the process, which can be formed from Members of Parliament (eg the UK or Germany). But in a presidential system, an executive appoints a cabinet to govern from his or her political allies whether or not they are elected (eg the United States or Brazil), and the legislature's role is reduced to either ratification or veto . [ 143 ]

[ edit ] Executive

Main article: Executive (government)

The G20 meetings are composed of representatives of each country's executive branch

The executive in a legal system serve as a government 's centre of political authority . In a parliamentary system , as with Britain, Italy, Germany, India, and Japan, the executive is known as the cabinet , and composed of members of the legislature. The executive is chosen by the Prime Minister or Chancellor , whose office holds power under the confidence of the legislature. Because popular elections appoint political parties to govern, the leader of a party can change in between elections. The head of state is apart from the executive, and symbolically enacts laws and acts as representative of the nation. Examples include the German president (appointed by members of federal and state Parliaments) the Queen of the United Kingdom (a hereditary title), and the Austrian president (elected by popular vote). The other important model is the presidential system , found in France, the US and Russia. In presidential systems, the executive acts as both head of state and head of government, and has power to appoint an unelected cabinet. Under a presidential system, the executive branch is separate from the legislature to which is not accountable. [ 144 ] [ 145 ]

Although the role of the executive varies from country to country, usually it will propose the majority of legislation, and propose government agenda. In presidential systems, the executive often has the power to veto legislation. Most executives in both systems are responsible for foreign relations , the military and police, and the bureaucracy. Ministers or other officials head a country's public offices, such as a foreign ministry or interior ministry . The election of a different executive is therefore capable of revolutionising an entire country's approach to government.

[ edit ] Military and police

Main articles: Military and Police

US Customs and Border Protection officers

While military organizations have existed as long as government itself, the idea of a standing police force is relatively modern concept. Mediæval England 's system of traveling criminal courts , or assizes , used show trials and public executions to instill communities with fear to maintain control. [ 146 ] The first modern police were probably those in 17th-century Paris, in the court of Louis XIV , [ 147 ] although the Paris Prefecture of Police claim they were the world's first uniformed policemen. [ 148 ]

Weber famously argued that the state is that which controls the legitimate monopoly of the means of violence. [ 149 ] [ 150 ] The military and police carry out enforcement at the request of the government or the courts. The term failed state refers to states that cannot implement or enforce policies; their police and military no longer control security and order and society moves into anarchy , the absence of government. [ 151 ]

[ edit ] Bureaucracy

Main article: Bureaucracy

The United Nations ' New York headquarters houses civil servants that serve its 192 member states.

The etymology of "bureaucracy" derives from the French word for "office" ( bureau ) and the Ancient Greek for word "power" ( kratos ). [ 152 ] Like the military and police, a legal system's government servants and bodies that make up its bureaucracy carry out the directives of the executive. One of the earliest references to the concept was made by Baron de Grimm , a German author who lived in France. In 1765 he wrote,

The real spirit of the laws in France is that bureaucracy of which the late Monsieur de Gournay used to complain so greatly; here the offices, clerks, secretaries, inspectors and intendants are not appointed to benefit the public interest, indeed the public interest appears to have been established so that offices might exist. [ 153 ]

Cynicism over "officialdom" is still common, and the workings of public servants is typically contrasted to private enterprise motivated by profit . [ 154 ] In fact private companies, especially large ones, also have bureaucracies. [ 155 ] Negative perceptions of " red tape " aside, public services such as schooling, health care, policing or public transport are a crucial state function making public bureaucratic action the locus of government power. [ 155 ] Writing in the early 20th century, Max Weber believed that a definitive feature of a developed state had come to be its bureaucratic support. [ 156 ] Weber wrote that the typical characteristics of modern bureaucracy are that officials define its mission, the scope of work is bound by rules, management is composed of career experts, who manage top down, communicating through writing and binding public servants' discretion with rules. [ 157 ]

[ edit ] Legal profession

Main article: Legal profession

In civil law systems such as those of France, Germany, Italy, Spain and Greece, there is a distinct category of notary , a legally trained public official, compensated by the parties to a transaction. [ 158 ] This is a 16th-century painting of such a notary by Flemish painter Quentin Massys .

A corollary of the rule of law is the existence of a legal profession sufficiently autonomous to be able to invoke the authority of the independent judiciary; the right to assistance of an advocate in a court proceeding emanates from this corollary—in England the function of barrister or advocate is distinguished from legal counselor ( solicitor ). [ 159 ] As the European Court of Human Rights has stated, the law should be adequately accessible to everyone and people should be able to foresee how the law affects them. [ 160 ] In order to maintain professionalism, the practice of law is typically overseen by either a government or independent regulating body such as a bar association , bar council or law society . Modern lawyers achieve distinct professional identity through specified legal procedures (eg successfully passing a qualifying examination), are required by law to have a special qualification (a legal education earning the student a Bachelor of Laws , a Bachelor of Civil Law or a Juris Doctor degree [ 161 ] ), and are constituted in office by legal forms of appointment ( being admitted to the bar ). Most Muslim countries have developed similar rules about legal education and the legal profession, but some still allow

lawyers with training in traditional Islamic law to practice law before personal status law courts. [

162 ] In China and other developing countries there are not enough law-trained people to staff the existing judicial systems, and, accordingly, formal standards are more relaxed. [ 163 ]

Once accredited, a lawyer will often work in a law firm , in a chambers as a sole practitioner, in a government post or in a private corporation as an internal counsel . In addition a lawyer may become a legal researcher who provides on-demand legal research through a library, a commercial service or through freelance work. Many people trained in law put their skills to use outside the legal field entirely. Significant to the practice of law in the common law tradition is the legal research to determine the current state of the law. This usually entails exploring case-law reports , legal periodicals and legislation. Law practice also involves drafting documents such as court pleadings , persuasive briefs , contracts, or wills and trusts. Negotiation and dispute resolution skills (including ADR techniques) are also important to legal practice, depending on the field. [ 164 ]

[ edit ] Civil society

Main article: Civil society

A march in Washington DC during the US Civil Rights Movement in 1963

Classical republican concept of "civil society" dates back to Hobbes and Locke. [ 165 ] Locke saw civil society as people who have "a common established law and judicature to appeal to, with authority to decide controversies between them." [ 166 ] German philosopher Georg Wilhelm Friedrich Hegel distinguished the "state" from "civil society" ( burgerliche Gesellschaft ) in Elements of the Philosophy of Right . [ 167 ] Hegel believed that civil society and the state were polar opposites, within the scheme of his dialectic theory of history. The modern dipole state–civil society was reproduced in the theories of Alexis de Tocqueville and Karl Marx . [ 168 ] [ 169 ] Nowadays in post-modern theory civil society is necessarily a source of law, by being the basis from which people form opinions and lobby for what they believe law should be. As Australian barrister and author Geoffrey Robertson QC wrote of international law,

... ... one of its primary modern sources is found in the responses of ordinary men and women, and of the non-governmental organizations which many of them support, to the human rights abuses they see on the television screen in their living rooms. [ 170 ]

Freedom of speech , freedom of association and many other individual rights allow people to gather, discuss, criticise and hold to account their governments, from which the basis of a

deliberative democracy is formed. The more people are involved with, concerned by and capable of changing how political power is exercised over their lives, the more acceptable and legitimate the law becomes to the people. The most familiar institutions of civil society include economic markets, profit-oriented firms, families, trade unions , hospitals, universities, schools, charities, debating clubs , non-governmental organisations , neighbourhoods, churches, and religious associations. [ 171 ]

Page 1 Page 1Jorge E. Viñuales Jorge E. Viñuales The UN Secretary General Sekretaris Jenderal PBB between Law and Politics: antara Hukum dan Politik: Towards an Analytical Framework Menuju Kerangka Analitik for Interdisciplinary Research Penelitian Interdisipliner Etudes & Travaux – N°I-2005 - Studies & Working Papers Etudes & Travaux - N ° I-2005 - Studi & Makalah Kerja INSTITUT UNIVERSITAIRE DE HAUTES ÉTUDES INTERNATIONALES, GENÈVE INSTITUT DE Universitaire Hautes Etudes INTERNATIONALES, Geneve GRADUATE INSTITUTE OF INTERNATIONAL STUDIES, GENEVA SARJANA LEMBAGA STUDI INTERNASIONAL, JENEWA

Page 2 Page 2The study addresses one of the major difficulties in approaching the UN Secretary- Studi ini membahas salah satu kesulitan besar dalam mendekati Sekretaris PBB General's role in international politics, namely the interactions between the legal and Jenderal peran dalam politik internasional, yaitu interaksi antara hukum dan political constraints to which he is subject. politik kendala yang ia adalah subyek. Although there is a prolific amount of literature Meskipun ada sejumlah literatur yang produktif on the Secretary-General's political role, the precise way in which such constraints interact on-Jenderal peran politik Sekretaris, cara tepat di mana kendala tersebut berinteraksi has not been clearly conceptualised yet. belum jelas belum dikonseptualisasikan. The purpose is to identify as well as to spell out the Tujuannya adalah untuk mengidentifikasi serta menguraikan modalities in which this interaction takes place through the development of an analytical modalitas di mana interaksi ini terjadi melalui pengembangan suatu analitis framework allowing for a better understanding not only of how law and politics limit each kerangka kerja yang memungkinkan untuk pemahaman yang lebih baik tidak hanya tentang bagaimana hukum dan politik membatasi setiap other but also, and most importantly, of how they may expand each other. lain, tetapi juga, dan yang paling penting, tentang bagaimana mereka dapat berkembang satu sama lain. After surveying Setelah survei the drafting history of the Office as well as the way the notion of “political role” has been sejarah penyusunan Kantor serta cara gagasan "peran politik" telah constituted as a research object in the literature, an analytical framework is introduced, merupakan sebagai obyek penelitian dalam sastra, sebuah kerangka analitis yang diperkenalkan,

consisting of two basic types , each connected to two subtypes , structured into three levels of terdiri dari dua jenis dasar, masing-masing terhubung ke dua subtipe, terstruktur ke dalam tiga tingkat analysis , presented in order of complexity. analisis, disajikan dalam urutan kompleksitas. The connections between basic types and their Hubungan antara tipe dasar dan mereka corresponding subtypes are attributed to a number of processes , either of legal or of subtipe sesuai yang dikaitkan dengan jumlah proses, baik dari hukum atau political nature. politik alam. The framework introduced is subsequently applied to several case studies Kerangka memperkenalkan selanjutnya diterapkan untuk beberapa studi kasus both old and recent in order to explore the insights that can be derived from its use. baik yang lama maupun baru-baru ini dalam rangka untuk mengeksplorasi wawasan yang dapat diturunkan dari penggunaan. A short Sebuah singkat assessment of the framework is then provided focusing on a number of pistes de réflexion penilaian kerangka kerja ini kemudian diberikan berfokus pada sejumlah de refleksi pistes that can be followed in future interdisciplinary research on this topic. yang dapat diikuti dalam penelitian interdisipliner masa depan pada topik ini. Jorge Viñuales is a graduate from the University of Geneva (Political Science,2002, 2003), Jorge Viñuales adalah lulusan dari Universitas Jenewa (Ilmu Politik, 2002, 2003), the University of Fribourg (Law, 2003) and the Graduate Institute of International Studies University of Fribourg (Hukum, 2003) dan Institut Studi Pascasarjana Internasional (International Relations, 2002, 2004). (Hubungan Internasional, 2002, 2004). He is currently a Teaching and Research Assistant at Saat ini menjabat sebagai Asisten Pengajaran dan Penelitian di the University of Geneva and a Visiting Universitas Jenewa dan Mengunjungi Researcher at Harvard Law School. Peneliti pada Sekolah Hukum Harvard. His research focuses on the relations between law and Penelitiannya berfokus pada hubungan antara hukum dan politics at the international level. politik di tingkat internasional. *** *** The Graduate Institute of International Studies, founded in 1927, and located in Geneva, is Graduate Lembaga Studi Internasional, yang didirikan pada tahun 1927, dan berlokasi di Jenewa, adalah devoted to teaching and scientific research in contemporary international relations. dikhususkan untuk pengajaran dan penelitian ilmiah dalam hubungan internasional kontemporer. Its Nya pluridisciplinary character is reflected in its publications, which include works, lectures, karakter pluridisciplinary tercermin dalam publikasi, yang termasuk bekerja, kuliah, doctoral theses and research papers in the field of International Relations, covering law, tesis doktor dan makalah penelitian di bidang Hubungan Internasional, meliputi hukum, history, politics and economics. sejarah, politik dan ekonomi. These publications appear in French or English. Publikasi ini muncul dalam bahasa Prancis atau Inggris. © The Graduate Institute of International Studies © Lembaga Studi Pascasarjana Internasional 132, rue de Lausanne 132, rue de Lausanne 1211 Geneva 21 1211 Geneva 21 Switzerland Switzerland Telephone : +41 22 908 5700 & Fax : +41 22 908 5710 Telepon: +41 22 908 5700 & Fax: +41 22 908 5710

Email : publications@hei.unige.ch & http://www.hei.unige.ch Email: publications@hei.unige.ch & http://www.hei.unige.ch All rights reserved- ISBN 2-8288-0105-5 Semua hak dilindungi undang-ISBN 2-8288-0105-5

Page 3 Page 3The UN Secretary General between Law and Politics: Sekretaris Jenderal PBB antara Hukum dan Politik: Towards an Analytical Framework for Menuju Kerangka analitik Interdisciplinary Research Penelitian Interdisipliner Jorge E. Viñuales Jorge E. Viñuales Institut Universitaire de Hautes Etudes Internationales, Genève Institut Universitaire de Hautes Etudes Internationales, Genève Graduate Institute of International Studies, Geneva Lulusan Institut Studi Internasional, Jenewa

Page 4 Page 4Studies & Working Papers is a series published by: Studi & Kertas Kerja adalah serangkaian diterbitkan oleh: © The Graduate Institute of International Studies © Lembaga Studi Pascasarjana Internasional 132, rue de Lausanne 132, rue de Lausanne 1211 Geneva 21 1211 Geneva 21 Switzerland Switzerland Telephone : +41 22 908 5700 & Fax : +41 22 908 5710 Telepon: +41 22 908 5700 & Fax: +41 22 908 5710 Email : publications@hei.unige.ch & http://www.hei.unige.ch Email: publications@hei.unige.ch & http://www.hei.unige.ch All rights reserved All rights reserved ISBN 2-8288-0105-5 ISBN 2-8288-0105-5 October 2005 Oktober 2005

Page 5 Page 5v v T T ABLE OF Mampu menampilkan C C ONTENTS ONTENTS Acknowledgement ………………………………………………………………….vii Pengakuan ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... Vii Abstract ….……………………………………………………………………….…. Abstrak ... .... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... .... ix ix Introduction ………………………………………………………………………… 1 Pendahuluan ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 1 I. I. Part one: The notion of political role Bagian satu: Pengertian tentang peran politik 1. 1. Introductory remarks ……………………………………………………………. Pengantar komentar ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... 9 9

2. 2. The political role of the UN Secretary-General in historical perspective .……….. Peran politik dari Sekretaris Jenderal PBB dalam perspektif sejarah .... ... ... .. 11 11 2.1. 2.1. General remarks……………………………..…………………………… 11 Umum komentar ... ... ... ... ... ... ... ... ... ... ... .. ... ... ... ... ... ... ... ... ... ... ... 11 2.2. 2.2. The League's Secretariat: administrative, not political……………………...12 Liga Sekretariat: administratif, bukan politik ... ... ... ... ... ... ... ... ... 12 2.3. 2.3. The drafting of the UN Secretariat: the quest for a political dimension…… 13 Penyusunan Sekretariat PBB: upaya untuk dimensi politik ... ... 13 3. 3. The political role of the UN Secretary-General as a research object: A survey of the Peran politik dari Sekretaris Jenderal PBB sebagai objek penelitian: Sebuah survei dari literature…………………………………………………………………………17 sastra ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 17 3.1 General remarks……………………………..…………………………… 17 3.1 Umum komentar ... ... ... ... ... ... ... ... ... ... ... .. ... ... ... ... ... ... ... ... ... ... ... 17 3.2 The contents of the 'political role' in the literature………………………... 3.2 Isi dari 'peran politik' dalam literatur ... ... ... ... ... ... ... ... ... ... 17 17 4. 4. A brief assessment………………………………………………………………23 Suatu penilaian singkat ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 23 II. II. Part two: Setting the framework Bagian dua: Menetapkan kerangka 1. 1. Introductory remarks…………………………………………………………… 27 Pengantar komentar ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 27 2. 2. Law and politics in the international society…………………………………….. Hukum dan politik dalam masyarakat internasional ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. 28 28 3. 3. The legal and political scopes of action of the UN Secretary-General……………30 Hukum dan politik lingkup tindakan dari Sekretaris Jenderal PBB ... ... ... ... ... 30 4. 4. Inducting patterns of interaction: an analytical framework……………………….34 Inducting pola interaksi: kerangka analitis ... ... ... ... ... ... ... ... ... .34

Page 6 Page 6vi vi III. III. Part three: Exploring the practice: A case-studies approach Bagian tiga: Menjelajahi praktek: A-pendekatan studi kasus 1. 1. Introductory remarks…………………………………………………………….41 Pengantar komentar ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .41 2. 2. The Secretary-General's political role in practice………………………………... Sekretaris-Jenderal peran politik dalam praktek ... ... ... ... ... ... ... ... ... ... ... ... ... 42 42 2.1. 2.1. General remarks………………………………………………………….. Pernyataan Umum ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. 42 42 2.2. 2.2. When politics goes beyond law: exploring type 1 …………………………... Ketika politik melampaui hukum: menjelajahi tipe 1 ... ... ... ... ... ... ... ... ... ... ... 43 43

2.2.1. 2.2.1. The conquest of an independent good offices role ( subtype 1.A )……….. Penaklukan dari kantor peran yang baik independen (subtipe 1.a) ... ... ... .. 44 44 2.2.2. 2.2.2. Reining in the Secretary-General: Lebanon, Yemen and Bosnia Mengekang Sekretaris Jenderal: Libanon, Yaman dan Bosnia ( subtype 1.B )…………………………………………………………….. (Subtipe 1.b) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. 51 51 2.3. 2.3. When law goes beyond politics: exploring type 2 ………………………….. Ketika melampaui hukum politik: menjelajahi tipe 2 ... ... ... ... ... ... ... ... ... ... .. 62 62 2.3.1. 2.3.1. Putting law over politics: Congo and the retreat of UNEF Puting hukum atas politik: Kongo dan mundur dari UNEF ( subtype 2.A )…………………………………………………………….. (Subtipe 2.Penurunan) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. 62 62 2.3.2. 2.3.2. The political limits of law: From the Lockerbie incident to Iraq Politik batas-batas hukum: Dari insiden Lockerbie ke Irak ( subtype 2.B )……………………………………………………………. (Subtipe 2.b) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... 68 68 3. 3. The Secretary-General between law and politics: a preliminary assessment…..….75 Sekretaris Jenderal antara hukum dan politik: suatu kajian awal ... .. ... .75 3.1. 3.1. General remarks………………………………………………………….75 Umum komentar ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .75 3.2. 3.2. Assessing type 1 ………………………………………………………….. Menilai tipe 1 ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. 77 77 3.3. 3.3. Assessing type 2 ………………………………………………………….. Menilai tipe 2 ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. 79 79 Conclusion ………………………………………………………………………… 81 Kesimpulan ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 81 Select bibliography ………………..………………………………………………. Pilih bibliografi ... ... ... ... ... ... .. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .... 85 85

Page 7 Page 7vii vii A A CKNOWLEDGEMENT CKNOWLEDGEMENT The present study is the result of several years of readings, reflections and Penelitian ini adalah hasil dari beberapa tahun bacaan, refleksi dan discussions about the political role of the UN Secretary-General. diskusi tentang peran politik dari Sekretaris Jenderal PBB. I would like to Saya ingin express my gratitude to all those who contributed directly or indirectly to this work, mengucapkan terima kasih kepada semua pihak yang memberikan kontribusi langsung maupun tidak langsung untuk pekerjaan ini, and especially to Professors Vera Gowlland, Marcelo Kohen and Victor-Yves Ghebali dan khususnya untuk Guru Vera Gowlland, Marcelo Kohen dan Victor-Yves Ghebali

for their intellectual support and guidance. atas dukungan intelektual dan bimbingannya. Their teaching, both in the field of Mereka mengajar, baik dalam bidang international law and in that of international politics has provided me with the hukum internasional dan dalam politik internasional telah memberikan saya dengan indispensable basis for my interdisciplinary interests to be translated into concrete dasar yang sangat diperlukan untuk kepentingan interdisipliner saya diterjemahkan ke dalam beton views. pandangan. I am also very indebted to Alain Dick, former UN senior officer, who taught me Saya juga sangat berutang budi kepada Alain Dick, mantan pejabat senior PBB, yang mengajari saya a lot about the actual practice behind the UN glass mansion that, in the words of banyak tentang praktek yang sebenarnya di balik rumah kaca PBB bahwa, dalam kata-kata former Secretary-General Javier Perez de Cuellar, can become fairly opaque when mantan Sekretaris-Jenderal Javier Perez de Cuellar, bisa menjadi cukup buram ketika discretion is needed to address international disputes. kebijaksanaan diperlukan untuk mengatasi sengketa internasional. Mr Dick help was also crucial in Mr membantu Dick juga penting dalam giving me access to some of the people actually involved in many of the cases discussed memberi saya akses ke beberapa orang yang benar-benar terlibat dalam banyak kasus yang dibahas in this study. dalam penelitian ini.

Page 8 Page 8viii viii

Page 9 Page 9ix ix A A BSTRACT BSTRACT The study addresses one of the major difficulties in approaching the UN Studi ini membahas salah satu kesulitan besar dalam mendekati PBB Secretary-General's role in international politics, namely the interactions between the Sekretaris-Jenderal peran dalam politik internasional, yaitu interaksi antara legal and political constraints to which he is subject. hukum dan politik yang ia adalah subyek. Although there is a prolific amount Meskipun ada sejumlah produktif of literature on the Secretary-General's political role, the precise way in which such literatur tentang Jenderal peran politik Sekretaris, cara tepat di mana seperti constraints interact has not been clearly conceptualised yet. berinteraksi kendala belum dikonseptualisasikan belum jelas. The purpose is to identify Tujuannya adalah untuk mengidentifikasi as well as to spell out the modalities in which this interaction takes place through the serta menguraikan modalitas di mana interaksi ini terjadi melalui development of an analytical framework allowing for a better understanding not only pengembangan suatu kerangka analitis yang memungkinkan untuk pemahaman yang lebih baik tidak hanya of how law and politics limit each other but also, and most importantly, of how they tentang bagaimana hukum dan politik membatasi satu sama lain, tetapi juga, dan yang paling penting, tentang bagaimana mereka

may expand each other. dapat mengembangkan satu sama lain. After surveying the drafting history of the Office as well as the Setelah melakukan survei sejarah penyusunan Kantor serta way the notion of “political role” has been constituted as a research object in the cara gagasan "peran politik" telah dilantik sebagai objek penelitian di literature, an analytical framework is introduced, consisting of two basic types , each sastra, kerangka analitis yang diperkenalkan, terdiri dari dua tipe dasar, masing-masing connected to two subtypes , structured into three levels of analysis , presented in order of terhubung ke dua subtipe, terstruktur menjadi tiga tingkat analisis, disajikan dalam urutan complexity. kompleksitas. The connections between basic types and their corresponding subtypes are Hubungan antara tipe dasar dan subtipe sesuai mereka attributed to a number of processes , either of legal or of political nature. disebabkan sejumlah proses, salah satu hukum atau alam politik. The framework Kerangka introduced is subsequently applied to several case studies both old and recent in order diperkenalkan selanjutnya diterapkan untuk beberapa studi kasus baik yang lama maupun baru-baru ini dalam rangka to explore the insights that can be derived from its use. untuk mengeksplorasi wawasan yang dapat diturunkan dari penggunaan. A short assessment of the Penilaian singkat dari framework is then provided focusing on a number of pistes de réflexion that can be Kerangka kerja ini kemudian diberikan berfokus pada sejumlah pistes de refleksi yang dapat followed in future interdisciplinary research on this topic. diikuti dalam penelitian interdisipliner masa depan pada topik ini.

Page 10 Page 101 1 I Aku NTRODUCTION P endahuluan Among the major innovations introduced by the adoption of the UN Charter after Di antara inovasi utama yang diperkenalkan oleh adopsi Piagam PBB setelah the Second World War one must mention, without any doubt, the Office of the UN Dunia Kedua satu Perang harus menyebutkan, tanpa keraguan, Kantor PBB Secretary-General. Sekretaris-Jenderal. The role played by the many holders of this Office all along the Peran yang dimainkan oleh banyak pemegang Kantor ini sepanjang turbulent second half of the twentieth century in the prevention and resolution of bergolak kedua setengah abad kedua puluh dalam pencegahan dan resolusi international conflicts as well as, more generally, in political affairs is obvious in konflik internasional serta, lebih umum, dalam urusan politik adalah jelas di retrospective. retrospektif. Javier Perez de Cuéllar, a former UN Secretary-General, noted with regard Javier Perez de Cuellar, PBB mantan Sekretaris-Jenderal, mencatat dengan memperhatikan to his good offices function that : “No one will ever know how many conflicts have been berfungsi kantor yang baik bahwa: "Tak seorang pun akan tahu berapa banyak konflik telah prevented or limited through contacts which have taken place in the famous glass dicegah atau terbatas melalui kontak yang telah terjadi di gelas yang terkenal mansion which can become fairly opaque when necessary” rumah yang dapat menjadi cukup buram bila diperlukan " 1 1

. . It is therefore not surprising Oleh karena itu tidak mengherankan that both international lawyers and political scientists manifested a great interest in this bahwa kedua pengacara internasional dan ilmuwan politik diwujudkan minat besar dalam hal ini activity, an interest reflected 1n a prolific scientific literature. aktivitas, minat tercermin 1n literatur ilmiah yang produktif. For sure, the lion's share of this body of research pertains to what has been broadly Yang pasti, bagian terbesar dari tubuh berkaitan penelitian untuk apa yang telah secara luas qualified as the Secretary-General's political role. berkualitas sebagai Jenderal peran politik Sekretaris. This particular choice becomes self Ini pilihan tertentu menjadi diri evident if we reflect on historical grounds. nyata jika kita merenungkan alasan historis. Not only had the League of Nations and, more Tidak hanya memiliki Liga Bangsa-Bangsa dan, yang lebih generally, the international society gravely suffered from the absence of a political active umumnya, masyarakat internasional serius menderita dari ketiadaan aktif politik Secretary-General, but also, and perhaps more importantly, the political involvement of Sekretaris Jenderal, tetapi juga, dan mungkin lebih penting, keterlibatan politik the UN Secretary-General at times of Dag Hammarskjold attained levels totally PBB Sekretaris Jenderal pada saat-saat Dag Hammarskjold mencapai tingkat yang sama sekali unforeseen by the drafters of the Charter. tak terduga oleh para perancang Piagam. Reporting on Article 99 of Charter of the Pelaporan Pasal 99 dari Piagam United Nations, the Preparatory Commission stated that this article : “confer(red) a Perserikatan Bangsa-Bangsa, Komisi Persiapan menyatakan bahwa artikel ini: "menganugerahkan (merah) a special right which goes beyond any power previously accorded to the head of an hak khusus yang melampaui kekuatan apapun sebelumnya diberikan kepada kepala sebuah international organization”, and that: “it (was) impossible to foresee how this article organisasi internasional ", dan bahwa:" itu (adalah) tidak mungkin untuk meramalkan bagaimana artikel ini (would) be applied” (Akan) diterapkan " 2 2 . . However, the most significant proofs of the unprecedented Namun, yang paling penting bukti yang belum pernah terjadi sebelumnya character of such involvement are probably the reactions of the USSR both against karakter keterlibatan tersebut mungkin reaksi dari Uni Soviet baik terhadap Trygve Lie, when he denounced the North-Korean attack against South Korea, and Trygve Lie, ketika ia mengecam serangan Korea Utara terhadap Korea Selatan, dan against Dag Hammarskjold during the Congo crisis, where it was proposed that the terhadap Dag Hammarskjold selama krisis Kongo, di mana diusulkan bahwa Secretary-General be replaced with a “troika” Sekretaris Jenderal diganti dengan "troika" 3 3 . . It is also in this context that the late Hal ini juga dalam konteks ini bahwa akhir Michel Virally could note : “Les voyages du Secrétaire général, devenus fréquents et Michel virally bisa diperhatikan: "Les pelayaran du Général meja tulis, sering devenus et souvent en relation avec les crises les plus graves, intéressent toujours davantage l'opinion souvent en hubungan avec les les ditambah krisis kuburan, intéressent Toujours davantage l'pendapat publique auprès de qui celui que les journalistes ont baptisé 'Monsieur H' acquiert une publique auprès de qui celui que les journalistes ONT membaptis H 'acquiert une Monsieur'

célébrité comparable à celle dont bénéficièrent pendant un temps deux autres voyageurs, célébrité sebanding à bénéficièrent Celle dont liontin temps un deux autres Voyageurs, aujourd'hui séparés, bien connus eux aussi par leurs initiales. séparés aujourd'hui, bien connus eux aussi leurs nominal initiales. Les déclarations du Les deklarasi du Secrétaire général, ses interventions et ses rapports se multiplient et sont considérés avec Meja tulis umum, intervensi et ses rapports et ses multiplient se sont avec considérés d'autant plus d'intérêt que la personne de leur auteur reste quelque peu énigmatique, ses d'autant plus d'interet que la personil de Leur auteur reste quelque PEU énigmatique, sesi démarches entourées de discrétion, son langage plein de laconisme. démarches entourées de kebijakannya, anak laconisme langage de plein. La place éminente qui La tempat éminente qui est aujourd'hui la sienne dans la vie politique internationale a été mise en évidence de aujourd'hui est la sienne dans la vie politique internationale sebuah Ete de mise en Bukti 1 1 UN Press Release, SG/SM/4124, 20 April 1988, pp. 7-8, cited in FRANCK, Th., NOLTE, G.,The Good UN Press Release, SG/SM/4124, 20 April 1988, hal 7-8, dikutip dalam Franck, G. Th., Nolte,, The Good Offices Function of the UN Secretary-General in ROBERTS, A., KINGSBURY, B., United Nations, Divided World , Kantor Fungsi Sekretaris Jenderal PBB di ROBERTS, A., Kingsbury, B., PBB, World Terbagi, Clarendon Press, Oxford, 1993, p. Clarendon Press, Oxford, 1993, hal 144. 144. 2 2 Cf. Cf. P/C 20, 23 December 1945, p. P / C 20, 23 Desember 1945, hal 87, cited in KUNZ, JL, The Legal Position of the Secretary General of the 87, dikutip dalam Kunz, JL, Posisi Hukum Sekretaris Jenderal United Nations in American Journal of International Law , 40/4, October 1946, p. Perserikatan Bangsa-Bangsa dalam American Journal Hukum Internasional, 40 / 4, Oktober 1946, hal 791. 791. 3 3 It should however be noted that the USSR had no clear proposition concerning the Office of the Secretary- Bagaimanapun Perlu dicatat bahwa Uni Soviet tidak memiliki dalil yang jelas tentang Kantor Sekretaris General at the time of the drafting Conferences. Umum pada saat Konferensi penyusunan.

Page 11 Page 112 2 façon spectaculaire lorsqu'il a été compris parmi ceux que le gouvernement soviétique façon spectaculaire lorsqu'il sebuah Ete terdiri dari imbal Parmi ceux que le Gouvernement soviétique désirait voir participer à la conférence 'au niveau le plus élevé' dont il proposait la réunion désirait voir participer à la konferensi 'au niveau le plus élevé' dont il proposait la Réunion pendant la crise récemment provoquée par la situation au Liban. liontin récemment la la crise nominal provoquée situasi au Liban. Le Secrétaire général des Meja tulis Le Général des Nations Unies se trouvait ainsi mis sur un pied d'égalité avec les dirigeants suprêmes des Bangsa Unies trouvait ainsi se mis sur pied d'un Egalite avec les des dirigeants Supremes plus grandes puissances : c'était lui reconnaître officiellement et avec éclat un rôle ditambah Grandes puissances: c'était lui et avec reconnaître officiellement kemasyhuran peran PBB politique de premier plan” politique de rencana utama "

4 4 . . Although to a contemporary observer the preceding remark may appear either Meskipun untuk pengamat kontemporer komentar sebelumnya dapat tampak baik obvious or, on the contrary, difficult to conciliate with the rather discrete approach of jelas atau, sebaliknya, sulit untuk berdamai dengan pendekatan diskrit lebih sebagai other Secretaries-General, this view was perfectly adapted at the time it was formulated. lain Sekretaris Jenderal, pandangan ini adalah sempurna diadaptasi pada saat itu dirumuskan. Indeed, it is unquestionable that “Mr H.” played a major role in a number of Cold War Memang, mau tak mau, "Mr H." memainkan peran utama dalam sejumlah Perang Dingin and decolonisation crises. dan dekolonisasi krisis. The myth of Hammarskjold has ever since remained very Mitos Hammarskjold pernah sejak masih sangat present to the mind of those who reflect on United Nations affairs or serve as United hadir untuk pikiran mereka yang merefleksikan urusan Bangsa Bangsa atau melayani sebagai Serikat Nations officials. Bangsa pejabat. To give just un example, there are good reasons to think that it was Untuk memberikan hanya contoh un, ada alasan-alasan yang baik untuk berpikir bahwa itu Hammarskjold that Javier Perez de Cuellar had in mind when he warned, in his 1988 Hammarskjold bahwa Javier Perez de Cuellar ada dalam pikiran ketika ia memperingatkan, pada tahun 1988-nya Oxford lecture, against going too far in carrying out his mandate: “Anyone who has the kuliah Oxford, terhadap akan terlalu jauh dalam menjalankan mandatnya: "Siapapun yang memiliki honour to be cast Secretary General has to avoid two extremes in playing his, or her, role. kehormatan untuk dilemparkan Sekretaris Jenderal harus menghindari dua ekstrem dalam memainkan perannya, atau dia,. One side is the Scylla of trying to inflate the role through too liberal a reading of the text: of succumbing, Satu sisi adalah Scylla mencoba mengembang peran terlalu liberal melalui pembacaan teks: dari mengalah, that is, to vanity and wishful thinking. On the other is the Charybdis of trying to limit the role yaitu, kesombongan dan angan-angan. Di sisi lain adalah Charybdis mencoba untuk membatasi peran to only those responsibilities which are explicitly conferred by the Charter and are untuk hanya tanggung jawab yang secara eksplisit diberikan oleh Piagam dan impossible to escape: that is, succumbing to modesty, to the instinct of self-effacement, mustahil untuk melarikan diri: yaitu, mengalah pada kesederhanaan, pada naluri diri penghapusan, and to the desire to avoid controversy. dan keinginan untuk menghindari kontroversi. There are, thus, temptations on both sides. Ada, dengan demikian, godaan di kedua sisi. Both Baik are equally damaging to the vitality of the institution. sama-sama merusak vitalitas institusi. I submit that no Secretary General Saya mengajukan bahwa tidak ada Sekretaris Jenderal should give way to either of them” harus memberi jalan kepada salah satu dari mereka " 5 5 . . And a few years later, still another incumbent, Dan beberapa tahun kemudian, masih lain incumbent, namely Dr. Boutros Boutros-Ghali, will be called “A New Hammarskjold” by one of the yaitu Dr Boutros Boutros-Ghali, akan disebut "A Hammarskjold Baru" oleh salah satu leading journals of international affairs jurnal terkemuka urusan internasional 6 6

. . In short, though with strong fluctuation, the Singkatnya, meskipun dengan fluktuasi yang kuat, political involvement of the UN Secretary-General has been progressively developed all keterlibatan politik Sekretaris Jenderal PBB telah semakin dikembangkan semua along the more than fifty years of life of the United Nations Organization and is sepanjang lebih dari lima puluh tahun hidup Perserikatan Bangsa-Bangsa dan Organisasi nowadays firmly established. saat ini kokoh. To understand such involvement, scholars have resorted to many different Untuk memahami keterlibatan tersebut, para sarjana telah menggunakan berbagai approaches, and this from the very inception of the UN. pendekatan, dan ini dari awal sangat PBB. In the introduction to her well- Dalam pendahuluan dengan baik- known study on the UN Secretary-General, Marie-Claude Smouts identifies two main dikenal studi tentang Sekjen PBB, Marie-Claude Smouts mengidentifikasi dua utama approaches to the topic pendekatan untuk topik 7 7 . . The first, which she traces back to the founding work written by Yang pertama, yang ia dengan jejak kembali pendirian tugas tertulis Stephen M. Schwebel in 1952 Stephen M. Schwebel pada tahun 1952 8 8 , treats the development of the Secretary-General's political , Memperlakukan pengembangan Sekretaris-Jenderal politik powers as a conquest against the deliberative bodies of the Organization, chiefly the kekuasaan sebagai penaklukan terhadap badan deliberatif Organisasi, terutama the 4 4 VIRALLY, M., Le role politique du Secrétaire général des Nations-Unies in Annuaire français de droit international , Virally, M., Le peran meja tulis politique du Général des Nations-Unies di Annuaire français de droit international, 1958, p. 1958, p. 361. 361. 5 5 PEREZ DE CUELLAR, J., The Role of the UN Secretary-General in ROBERTS, A., KINGSBURY, B. Perez de Cuellar, J., Peran Sekretaris Jenderal PBB di ROBERTS, A., Kingsbury, B. (eds.), op. (Eds.), op. cit ., p. cit., hal 26 (italics added). 26 (huruf miring ditambahkan). 6 6 MEISLER, S., Dateline UN : a New Hammarskjold ? MEISLER, S., Dateline PBB: sebuah Hammarskjold Baru? in Foreign Policy , March 22, 1995, pp. 180-197. dalam Kebijakan Luar Negeri, 22 Maret 1995, hal 180-197. 7 7 SMOUTS, M.-C., Le Secrétaire général des Nations Unies , Armand Colin, Paris, 1971, pp. 12 ss. SMOUTS, M.-C., meja tulis Le Général des Nations Unies, Armand Colin, Paris, 1971, hal 12 ss. 8 8 SCHWEBEL, SM, The Secretary General of the United Nations: His political power and practice , Harvard University SCHWEBEL, SM, Sekretaris Jenderal Perserikatan Bangsa-Bangsa: kekuasaan politik-Nya dan praktek, Harvard University Press, Cambridge MA, 1952. Press, Cambridge MA, 1952.

Page 12 Page 123 3 Security Council and the General Assembly Dewan Keamanan dan Majelis Umum 9 9 . . The second, which she illustrates by the Yang kedua, yang dia mengilustrasikan oleh works of Michel Virally karya Michel virally 10 10 and Leon Gordenker dan Leon Gordenker 11 11 , focus on the actual range of action of , Fokus pada kisaran aktual tindakan the Secretary-General in concreto rather than on how these powers were conquered. Sekretaris-Jenderal di concreto bukan pada bagaimana kekuasaan ditaklukkan. The The idea here is that what counts most is to assess the “influence” of the Secretary-General in ide di sini adalah bahwa apa yang paling penting adalah untuk menilai "pengaruh" dari Sekretaris Jenderal a particular situation and, more precisely, the variables that explain the differing degrees situasi tertentu dan, lebih tepatnya, variabel yang menjelaskan derajat yang berbeda-beda of such influence. pengaruh tersebut. Both approaches, though different in perspective, share the common Kedua pendekatan, meskipun berbeda dalam perspektif, saham biasa trait of giving particular weight to the political component of the analysis. sifat memberi bobot khusus pada komponen politik analisis. One could, in Satu bisa, di contrast, envisage the question from a rather legal point of view. Sebaliknya, membayangkan pertanyaan itu dari sudut hukum yang agak pandang. To some extent, this is Untuk beberapa hal, ini what Virally does in his aforementioned 1958 contribution. apa virally tidak pada tahun 1958 kontribusinya tersebut. There is however a serious problem with strict legal analysis stemming from the fact Namun ada masalah serius dengan analisis hukum yang ketat berasal dari kenyataan that the few laconic provisions that the Charter devotes to the Secretary-General are bahwa ketentuan beberapa singkat bahwa Piagam mencurahkan kepada Sekretaris Jenderal yang incapable of accounting for the wealth and diversity of the practice tidak mampu akuntansi untuk kekayaan dan keanekaragaman praktek 12 12 . . In this line of Dalam garis thought, a legal analysis focusing strictly on the Charter provisions would risk to be berpikir, analisis hukum berfokus ketat pada ketentuan Piagam akan resiko yang harus irrelevant. tidak relevan. Aware of this difficulty, international lawyers have for the main part Menyadari kesulitan ini, pengacara internasional untuk bagian utama concentrated on finding a posteriori a legal justification for the diverse political initiatives of terkonsentrasi pada menemukan sebuah hukum pembenaran aposteriori untuk inisiatif politik beragam the Secretary-General by means of interpretation Sekretaris Jenderal dengan cara penafsiran 13 13 . . Admittedly, different approaches correspond to different goals. Memang, pendekatan yang berbeda sesuai dengan tujuan yang berbeda. Whereas the intra- Sedangkan intra-

institutional approach may have appeared the most useful to convey the assertive function Pendekatan institusional mungkin telah muncul yang paling berguna untuk menyampaikan fungsi asertif of Trygve Lie's Secretaryship-General as the first implementation of Chapter XV of the of kesekretariatan's-Lie Trygve Jenderal sebagai implementasi pertama dari Bab XV dari Charter, Hammarskjold's mandates made such conquest solid enough to explain the shift Piagam,'s mandat Hammarskjold membuat penaklukan tersebut cukup solid untuk menjelaskan menggeser in the analysts' attention towards the actual range of possibilities in the hands of the dalam analis perhatian terhadap berbagai kemungkinan yang sebenarnya di tangan Secretary-General. Sekretaris-Jenderal. Accordingly, the focus shifted from legal justifications to mainly Oleh karena itu, fokus bergeser dari pembenaran hukum untuk terutama political considerations, as it is illustrated by the works of Leon Gordenker and Marie- pertimbangan politik, seperti yang digambarkan oleh karya-karya Leon Gordenker dan Marie- Claude Smouts. Claude Smouts. In this regard, different approaches can be seen as complementary rather Dalam hal ini, pendekatan yang berbeda dapat dilihat sebagai pelengkap bukan than adversarial, for the choice of one or another depends primarily upon the actual daripada berlawanan, untuk pilihan satu atau yang lain tergantung terutama pada yang sebenarnya development of the Secretary-General's political role. pengembangan Jenderal peran politik Sekretaris. If we accept this view, it is not Jika kita menerima pandangan ini, tidak surprising that the scholars' interest in the Office tended to decrease from the 1970s on, mengejutkan bahwa ulama 'kepentingan di Kantor cenderung menurun dari tahun 1970-an pada, that is, after the two major innovations related to the action of the Secretary General, yaitu, setelah dua inovasi utama yang berhubungan dengan tindakan Sekretaris Jenderal, 9 9 We find a reminiscence of this style in the following observation of Th. Kami menemukan kenangan gaya ini dalam pengamatan berikut Th. Franck and G. Nolte: “By the mid- Franck dan G. Nolte: "Pada pertengahan 1980's there could be little doubt that the only important winner in the intra-institutional power struggle had been 1980-an mungkin ada sedikit keraguan bahwa penting pemenang hanya dalam kelembagaan intra-kekuatan perjuangan telah the Secretary-General”, FRANCK, Th, NOLTE, G., op. the-Umum "Sekretaris, Franck, Th, Nolte, G., op. cit ., p. cit., hal 148. 148. 10 10 VIRALLY, M., op. Virally, M., op. cit.; Le testament politique de Dag Hammarskjoeld in Annuaire français de droit international, cit,.; Le bukti politique de Dag Hammarskjoeld Annuaire dalam français de droit international 1961, pp. 355-380. 1961, hal 355-380. 11 11 GORDENKER, L., The UN Secretary-General and the Maintenance of Peace , Columbia University Press, New York GORDENKER, L., Perdamaian PBB Sekretaris Jenderal dan Pemeliharaan, Columbia University Press, New York / London, 1967. / London, 1967. 12 12

As Benedetto Conforti puts it: “Even without specific delegation by the Assembly or the Council, the Sebagai Benedetto Conforti dikatakan: "Bahkan tanpa delegasi khusus oleh Majelis atau Dewan, Secretary-General has often carried out peaceful settlement functions by offering his role as a mediator to those Sekretaris Jenderal telah sering dilakukan fungsi penyelesaian damai dengan menawarkan perannya sebagai mediator bagi mereka States involved in an international crisis. Negara-negara yang terlibat dalam krisis internasional. The Charter does not expressly envisage such initiatives. Nor the view that they Piagam tidak jelas membayangkan inisiatif seperti itu. Nor pandangan mereka implicitly come within the power attributed to the Secretary by Article 99 (…) cannot be accepted (…) Rather, it seems that the implisit termasuk dalam kekuasaan dikaitkan kepada Sekretaris oleh Pasal 99 (...) tidak dapat diterima (...) Sebaliknya, tampaknya bahwa Secretary's initiatives must be placed outside of the formal institutional framework of the United Nations and doubts may be cast about Teman-inisiatif Sekretaris harus ditempatkan di luar kerangka kerja kelembagaan formal Perserikatan Bangsa-Bangsa dan keraguan mungkin dilemparkan tentang their compatibility with the executive nature of this organ ”, CONFORTI, B., The Law and Practice of the United Nations, Kluwer , kompatibilitasnya dengan sifat eksekutif ini organ ", Conforti, B., Hukum dan Praktek Perserikatan Bangsa-Bangsa, Kluwer, The Hague / London / Boston, 2000, p. Den Haag / London / Boston, 2000, hal 222 (italics added). 222 (huruf miring ditambahkan). 13 13 See for example ABBOUSHI, WF, The Secretary General of the United Nations : Constitutional Powers and Lihat misalnya ABBOUSHI, WF, Sekretaris Jenderal Perserikatan Bangsa-Bangsa: Konstitusi Powers dan Developments , doctoral dissertation, University of Cincinnati, 1959 ; KOUSBARI, WY, Les pouvoirs politiques du Perkembangan, disertasi doktor, Universitas Cincinnati, 1959; KOUSBARI, WY, Les pouvoirs politiques du Secrétaire général des Nations Unies , Thèse, Paris, 1959, cited in SMOUTS, M.-C., op. Meja tulis Général des Nations Unies, ini, Paris, 1959, dikutip dalam SMOUTS, M.-C., op. cit ., p. cit., hal 12. 12.

Page 13 Page 134 4 namely the conducting of peace-keeping operations and the good offices function, had yaitu budidaya menjaga perdamaian operasi dan fungsi kantor yang baik, telah been firmly established in practice telah mapan dalam praktek 14 14 . . By the end of the 1980s, however, the changing Pada akhir 1980-an, Namun, perubahan political circumstances brought renewed interest in the possibilities of the United Nations keadaan politik membawa minat baru di kemungkinan Perserikatan Bangsa-Bangsa in general, and in those of the UN Secretary-General in particular. pada umumnya, dan pada mereka dari Sekretaris Jenderal PBB pada khususnya. As Thomas Franck and Sebagai Franck Thomas dan Georg Nolte put it: “The immediate aftermath of the Cold War witnessed a remarkable Georg Nolte pernah berkata: "The segera setelah Perang Dingin menyaksikan yang luar biasa

blossoming of the United Nations. mekar Perserikatan Bangsa-Bangsa. This was reflected in the growth of peacekeeping Hal ini tercermin dari pertumbuhan perdamaian operations, and in the stream of mandatory resolutions from the Security Council. operasi, dan dalam aliran wajib resolusi dari Dewan Keamanan. Concurrently, the political role of the Secretary-General, including the good offices Secara bersamaan, peran politik Sekretaris Jenderal, termasuk kantor yang baik function, also appeared to be expanding” fungsi, juga tampaknya memperluas " 15 15 . . This interest was reflected in a number of bunga Hal ini tercermin dalam sejumlah studies focusing, as a rule, on the position of the Secretary-General in a world fokus studi, sebagai suatu peraturan, pada posisi Sekretaris Jenderal di dunia configuration where the Security Council is no longer deadlocked konfigurasi di mana Dewan Keamanan tidak lagi menemui jalan buntu 16 16 . . Confronted with such wealth of studies and analysis, the first impression of any Dihadapkan dengan kekayaan seperti studi dan analisis, kesan pertama dari setiap newcomer to the field is that everything has been written. pendatang baru di lapangan adalah segala sesuatu yang telah ditulis. In the absence of new cutting- Dengan tidak adanya pemotongan baru edge developments requiring an update of the present knowledge, any new contribution perkembangan tepi membutuhkan update pengetahuan ini, kontribusi yang baru would seem pointless or at least lack badly originality. akan tampak sia-sia atau kurangnya orisinalitas paling buruk. In short, whoever pretends to Singkatnya, siapa pun yang berpura-pura contribute something new to this overworked field should either proceed with the menyumbangkan sesuatu yang baru untuk bidang ini terlalu banyak bekerja baik harus melanjutkan dengan confidence of the established expert or be ready to face a daunting task. kepercayaan dari para ahli yang didirikan atau siap menghadapi tugas yang menakutkan. In our particular Secara khusus kami case, we intend to try some kind of blend between these two options. kasus, kami berniat untuk mencoba beberapa jenis perpaduan antara dua pilihan. Indeed, whereas the Memang, sedangkan intuition serving as the start-point of our research has been borrowed from the work of intuisi yang berfungsi sebagai titik awal penelitian kami telah dipinjam dari karya two established experts in the field, namely Thomas Franck and Georg Nolte, the dua didirikan ahli di bidangnya, yaitu Thomas Franck dan Georg Nolte, yang theoretical development as well as the empirical assessment of such intuition constitute pengembangan teoritis maupun penilaian empiris intuisi tersebut merupakan our personal undertaking. kami pribadi melakukan usaha. 14 14 This does not mean that there were no significant studies on the Secretary General in this period. Ini tidak berarti bahwa tidak ada penelitian yang signifikan pada Sekretaris Jenderal pada periode ini. See for Lihat untuk example : PECHOTA, V., The Quiet Approach , UNITAR, New York, 1972 ; PICOTTE, O., MARTIN, P., La contoh: PECHOTA, V., The Quiet Pendekatan, UNITAR, New York, 1972; PICOTTE, O., MARTIN, P., La

fonction de Secrétaire Général de l'ONU à travers l'expérience de M. Kurt Waldheim in Revue générale de droit fonction de meja tulis Général de l'ONU à l'pengalaman traverse de M. Kurt Waldheim dalam Revue Générale de droit international public , 78, 1974, pp. 731-779 ; SAKSENA, KP, Secretary-General U Thant in India Quarterly , 31/4, 1975, publik internasional, 78, 1974, hlm 731-779; SAKSENA, KP, Sekretaris Jenderal U Thant di India Triwulan, 31 / 4, 1975, pp. 343-361; PECHOTA, V., Good Offices of the Secretary-General of the United Nations : Contemporary Theory hlm 343-361; PECHOTA, V., Kantor Baik dari Sekretaris Jenderal Perserikatan Bangsa-Bangsa: Teori Kontemporer and Practice in NAWAZ, MK (ed.), Essays on International Law , Kluwer, 1976, pp. 191-205 ; MERON, Th., The UN dan Praktek di Nawaz, MK (ed.), Essays on Hukum Internasional, Kluwer 1976,, hal 191-205;, Th. Meron, PBB Secretariat : The Rules and the Practice , DCHeath, Lexington MA, 1977, RAMCHARAN, BG, The Good Offices of Sekretariat: Peraturan dan mempraktekkan, DCHeath, Lexington MA, 1977, RAMCHARAN, BG, The Kantor Baik the United Nations Secretary-General in the Field of Human Rights in American Journal of International Law , 76/1, PBB Sekretaris Jenderal di Bidang Hak Asasi Manusia di American Journal Hukum Internasional, 76 / 1, January 1982, pp. 130-141; JAMES, AM, Kurt Waldheim: Diplomats' Diplomat in The Year Book of World Affairs , Januari 1982, hlm 130-141; JAMES, AM, Waldheim Kurt: 'Diplomat Diplomat dalam Kitab Tahun Urusan Dunia, 1983, London, pp. 81-96, and many others (see bibliography). 1983, London, hal 81-96, dan banyak lainnya (lihat kepustakaan). 15 15 FRANCK, Th., NOLTE, G., op. Franck, Th., Nolte, G., op. cit ., p. cit., hal 143. 143. 16 16 See for example : CORDOVEZ, D., Strengthening United Nations Diplomacy for Peace: The Role of the Secretary- Lihat misalnya: CORDOVEZ, D., Memperkuat Diplomasi Perserikatan Bangsa-Bangsa untuk Perdamaian: Peran Sekretaris General in UNITAR, The United Nations and the Maintenance of International Peace and Security, Martinus Nijhoff Jenderal di UNITAR, PBB dan Pemeliharaan Perdamaian dan Keamanan Internasional, Martinus Nijhoff Publishers, Dordrecht / Boston / Lancaster, 1987, pp. 177-209; ELARABY, N., The Office of the Secretary- Penerbit, Dordrecht / Boston / Lancaster, 1987, hlm 177-209; ELARABY, N., Kantor Sekretaris- General and the Maintenance of International Peace and Security in UNITAR, The United Nations and the Maintenance Umum dan Pemeliharaan Perdamaian dan Keamanan Internasional di UNITAR, Perserikatan Bangsa-Bangsa dan Pemeliharaan yang of International Peace and Security , Martinus Nijhoff, Dordrecht / Boston / Lancaster, 1987, pp. 177-209 ; Perdamaian dan Keamanan Internasional, Martinus Nijhoff, Dordrecht / Boston / Lancaster, 1987, hal 177-209; BOURLOYANNIS, MC, Fact-Finding by the Secretary-General of the UN in NYU Journal of Intl. BOURLOYANNIS, MC, Fakta-Menemukan oleh Sekretaris Jenderal PBB di NYU Journal of Intl. Law and Politics , Hukum dan Politik,

22, 1991, pp. 641-669; LAVALLE, R., The Inherent Powers of the UN Secretary-General in the Political Sphere : A 22, 1991, hlm 641-669; LAVALLE, R., The Inheren Kekuasaan Sekretaris Jenderal PBB dalam Sphere Politik: A Legal Analysis in Netherlands International Law Review , 37/1, 1990, pp. 22-36; SZASZ, P., The Role of the Secretary- Analisis Hukum di Belanda Tinjauan Hukum Internasional, 37 / 1, 1990, hlm 22-36; SZASZ, P., Peranan Sekretaris- General. Umum. Some Legal Aspects, NYU Journal of Intl. Beberapa Aspek Hukum, NYU Journal of Intl. Law and Politics , 4 (1991), pp. 161-198; SKJELSAEK, K., The UN Hukum dan Politik, 4 (1991), pp 161-198; SKJELSAEK, K., PBB Secretary-General and the Mediation of International Disputes in Journal of Peace Research , 28/1, February 1991, pp. Sekretaris Jenderal dan Mediasi Sengketa Internasional dalam Journal of Peace Research, 28 / 1, Februari 1991, hlm 99-115; FRANCK, Th., NOLTE, G., op. 99-115; Franck, Th op., Nolte, G.,. cit .; MURTHY, CSR, The Role of the UN Secretary-General since the cit,. Murthy, CSR, Peran Sekretaris Jenderal PBB sejak End of the Cold War in The Indian Journal of International Law , 35, 1995, pp. 181- 196; NEWMAN, E., The UN Akhir Perang Dingin dalam The Journal India Hukum Internasional 35,, 1995, hlm 181-196; Newman, E., PBB Secretary-General from the Cold War to the New Era : A Global Peace and Security Mandate ?, Macmillan Press/St Sekretaris Jenderal dari Perang Dingin ke Era Baru: Sebuah Perdamaian Global dan Keamanan Mandat St?, Macmillan Press / Martin's Press, London/New York, , 1998 ; HISCOCK-LAGEOT, C., Boutros Boutros-Ghali, Secrétaire général de Martin's Press, London / New York,, 1998; HISCOCK-LAGEOT, C., Boutros Boutros-Ghali, meja tulis Jenderal De l'ONU : grandeurs et servitudes d'un mandat unique in Revue generale de droit international public , 104, 2000, pp. 107-141. l'ONU: grandeurs servitudes et d'un SMERU unik dalam generale de droit publik internasional Revue 104,, 2000, hal 107-141.

Page 14 Page 145 5 The intuition of Franck and Nolte we refer to is contained in a paragraph of a recent Intuisi yang Franck dan Nolte kami maksud adalah terkandung dalam paragraf baru-baru ini contribution where, considering the different legal bases of the Good Offices function of kontribusi mana, mengingat dasar hukum yang berbeda dari fungsi Jasa Baik the Secretary-General, the authors point out : “Aside from these explicit or implicit Sekretaris-Jenderal, penulis menunjukkan: "Selain dari eksplisit atau implisit authorizations, the Secretary-General, in order to perform his good offices functions, otorisasi, Sekretaris Jenderal, dalam rangka untuk melakukan jasa baik fungsi nya, must retain the confidence of the principal organs and the major countries and regional harus mempertahankan kepercayaan dari organ-organ pokok dan negara-negara besar dan regional groupings which constitute the organization. pengelompokan yang merupakan organisasi. Thus the Secretary-General is constantly Jadi Sekretaris Jenderal terus involved in informal consultations with the Security Council and with individual states. As terlibat dalam konsultasi informal dengan Dewan Keamanan dan dengan negara-negara individu. Seperti

a result, his discretion as to how to proceed in a given case may, in fact, be narrower than it appears on Akibatnya, ia kebijakannya tentang bagaimana untuk melanjutkan dalam kasus tertentu mungkin, pada kenyataannya, menjadi lebih sempit dari yang muncul pada paper . kertas. Once a political organ begins to exercise its power in respect of a situation, the Setelah organ politik mulai menjalankan kekuasaan yang berkenaan dengan situasi, maka Secretary-General's inherent powers, while not repealed, may need to be exercised in Jenderal melekat kekuasaan-Sekretaris, sementara tidak dicabut, mungkin perlu dilaksanakan compliance with the specified – and perhaps even the implied – limits, directions, and sesuai dengan yang ditentukan - dan mungkin bahkan tersirat - batas, arah, dan parameters established by the political organ. parameter yang ditetapkan oleh organ politik. This is especially so when the political organ Hal ini terutama terjadi ketika organ politik involved is the Security Council” terlibat adalah Dewan Keamanan " 17 17 . . In this paragraph, the authors seem to distinguish two Dalam ayat ini, penulis tampaknya membedakan dua different scopes of action, one legal and the other political. lingkupnya berbeda tindakan, satu hukum dan politik lainnya. A similar view stems also Pandangan serupa juga batang from a paragraph of the already cited article by Michel Virally. dari satu paragraf dari artikel yang sudah dikutip oleh Michel virally. Here, discussing the action Di sini, membahas tindakan of Tryve Lie with regard to the representation of China before the UN, the author Lie Tryve berkaitan dengan representasi Cina sebelum PBB, penulis observes: “Ainsi s'affirme, dès les premières années de fonctionnement de l'Organisation mengamati: "s'affirme Ainsi, des années les perdana de fonctionnement de l'Organisasi et dans des conditions difficiles, la compétence politique très étendue du Secrétaire et dans des kondisi difficiles, la politique très kompetensi étendue du meja tulis général aussi bien devant l'Assemblée générale que devant le Conseil de sécurité. Général aussi bien devant l'Assemblée Générale que devant le Conseil de Securite. Ses Ses manifestations dans des affaires où s'affrontent âprement les Etats membres ont pu être manifestasi dans des affaires ou les Etats s'affrontent âprement ONT pu être membres critiquées, voire contestées, leur régularité constitutionnelle a finalement été confirmée critiquées, contestées voire, Leur régularité constitutionnelle sebuah finalement Ete orang yg dibaptiskan par la pratique. On voit mal à quelles limites juridiques l'exercice de cette compétence pourrait se par la pratique. Pada voit mal limites à quelles juridiques l'exercice de cette kompetensi pourrait se heurter. heurter. En tout état de cause, elle rencontrera beaucoup plus tôt des limites politiques ” En tout état menyebabkan de, elle rencontrera beaucoup plus tot des limites politiques " 18 18 . . This idea, which is not itself a real novelty for any observer concerned with the Ide ini, yang tidak sendiri merupakan hal yang baru nyata untuk setiap pengamat berkaitan dengan practice of UN diplomacy, or even with diplomacy tout court , takes for granted that the praktek diplomasi PBB, atau bahkan dengan diplomasi tout pengadilan, menerima begitu saja bahwa political scope cannot intervene but as a supplementary limitation, narrowing the actual ruang lingkup politik tidak bisa campur tetapi sebagai pembatasan tambahan, penyempitan yang sebenarnya

legal scope. lingkup hukum. However, there is no reason to believe this is always so. Namun, tidak ada alasan untuk percaya ini selalu begitu. There have been Ada several cases where the existence of a political deadlock has provided the Secretary- beberapa kasus dimana adanya kebuntuan politik telah memberikan Sekretaris General with enough political space to undertake action that would normally be external Umum dengan ruang politik yang cukup untuk melakukan tindakan yang biasanya akan eksternal to the legal scope. untuk lingkup hukum. One famous example is provided by Hammarskjold's decision to Salah satu contoh yang terkenal adalah yang disediakan oleh keputusan Hammarskjold untuk increase, on his own authority, the UN Observer Group in Lebanon. meningkat, pada otoritasnya sendiri, Kelompok Pengamat PBB di Libanon. Facing a deadlocked Menghadapi buntu Security Council, Hammarskjold declared to the members of the Council: “Where you to Dewan Keamanan, Hammarskjold menyatakan kepada anggota Dewan: "Di mana Anda disapprove … I would of course accept the consequences of your judgement” menolak ... tentu saja saya akan menerima konsekuensi dari penilaian anda " 19 19 . . Franck Franck and Nolte interpret such statement as a formulation of the limits of the Secretary- dan Nolte menafsirkan pernyataan seperti perumusan batas Sekretaris General's authority. Umum otoritas. According to the authors : “the Secretary-General indicated his belief Menurut penulis: "Sekretaris Jenderal menunjukkan keyakinannya that he could act in the interest of world peace when the political organs had fallen into bahwa ia dapat bertindak untuk kepentingan perdamaian dunia saat organ-organ politik telah jatuh ke desuetude, at least until such time as the political organs acted to rescind his claimed keadaan menjadi usang, setidaknya sampai waktu seperti organ politik bertindak untuk membatalkan nya diklaim authority” wewenang " 20 20 . One could however interpret such statement differently, making an analogy bisa. Namun Satu menafsirkan pernyataan tersebut berbeda, membuat analogi 17 17 FRANCK, Th., NOLTE, G., op. Franck, Th., Nolte, G., op. cit ., p. cit., hal 174 (italics added). 174 (huruf miring ditambahkan). 18 18 VIRALLY, M., op. Virally, M., op. cit., p. cit., hal 372 (italics added). 372 (huruf miring ditambahkan). 19 19 Security Council Official Records , 837 Laporan resmi Dewan Keamanan, 837 th th mtg., 22 July 1958, p. mtg hal., 22 Juli 1958, 4, cited in FRANCK, Th., NOLTE, G., op. 4, dikutip dalam Franck, Th op., Nolte, G.,. cit ., p. cit., hal 145. 145. 20 20 Idem. Idem.

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6 6 with the arguments developed by those who contested the conformity of the famous dengan argumen yang dikembangkan oleh mereka yang diperebutkan kesesuaian yang terkenal “Uniting for Peace” resolution to the system of the Charter. "Bersatu untuk Perdamaian" resolusi untuk sistem Piagam. Regarding this latter, Michel Mengenai yang terakhir ini, Michel Virally noted: “la constitutionnalité de la résolution 377(V) demeure, aujourd'hui encore, Virally mencatat: "la constitutionnalité de la resolusi 377 (V) demeure, encore aujourd'hui, un point extrêmement douteux et controversé … elle a … entraîné une transformation titik douteux et un extrêmement controversé ... elle a une ... entraîné transformasi considérable de l'équilibre politique entre le Conseil de Sécurité et l'Assemblée générale, cukup de l'équilibre politique entre le Conseil et de l'Securite Assemblée Générale, tel qu'il avait été conçu en 1945, et a contribué, plus qu'aucune autre, à faire glisser le tel qu'il conçu Ete avait en 1945, et contribué, ditambah qu'aucune autre, à faire le glisser centre de gravité politique de l'ONU du premier à la seconde” pusat de gravité politique de l'ONU du premier à la seconde " 21 21 . . If one can endorse the Jika seseorang dapat menyetujui idea that the Charter prevents the General Assembly from replacing the Security Council gagasan bahwa Piagam mencegah Majelis Umum dari mengganti Dewan Keamanan in its duties related to the maintenance of international peace and security, such dalam tugas-tugas yang berkaitan dengan pemeliharaan perdamaian dan keamanan internasional, seperti arguments are a fortiori relevant when it comes to the intervention of the Secretary- argumen adalah relevan fortiori ketika datang ke intervensi dari Sekretaris General. Umum. Most importantly, it is above all the political space left by a deadlocked Security Yang terpenting, itu adalah di atas semua ruang politik yang ditinggalkan oleh Keamanan buntu Council that allowed the Secretary-General to undertake a number of important Dewan yang memungkinkan Sekretaris-Jenderal untuk melakukan sejumlah penting initiatives, some of which eventually led to the enlargement of his legal powers. inisiatif, beberapa di antaranya akhirnya mengarah pada pembesaran kekuatan hukumnya. In this Dalam hal ini view, it would be more accurate to say that there are two spectrums of action that overlap melihat, akan lebih akurat untuk mengatakan bahwa ada dua spektrum tindakan yang tumpang tindih only partially. hanya sebagian. The focus of the analysis then shifts to the relations between these two Fokus analisis kemudian bergeser ke hubungan antara kedua spheres, for the scope of one of them at a given moment cannot be determined without lingkungan, untuk lingkup satu dari mereka pada saat tertentu tidak dapat ditentukan tanpa taking into account the influence of the other. mempertimbangkan pengaruh yang lain. This latter question has been left at the level of outline, or, in other words, it has Pertanyaan terakhir telah ditinggalkan pada tingkat garis besar, atau, dengan kata lain, ia memiliki remained a simple intuition. tetap menjadi intuisi sederhana. It is, of course, obvious that the political involvement of the Hal ini, tentu saja, jelas bahwa keterlibatan politik UN Secretary-General is located at a crossroad between legal and political constraints. Sekretaris-Jenderal PBB terletak di persimpangan antara kendala hukum dan politik. As Seperti

Diego Cordovez puts it: “The main subject of controversy has always been the precise Diego Cordovez dikatakan: "Subyek utama kontroversi selalu menjadi tepat scope of the Secretary-General's legitimate involvement (in the maintenance of peace and lingkup Jenderal sah keterlibatan Sekretaris (dalam pemeliharaan perdamaian dan security)” keamanan) " 22 22 . . However, the precise way in which such constraints are exerted is far less Namun, cara yang tepat di mana kendala tersebut diberikan jauh lebih clear. jelas. In this context, the purpose of our study is to identify as well as to spell out the modalities in which the interaction between law and politics takes place in the exercise by the Secretary-General of his political role. More precisely, our attempt aims at developing an analytical framework allowing for a better understanding not only of how the two scopes limit each other but also, and most importantly, of how they may expand each other. lainnya. It is therefore not a question of if this interaction exists but one of how it operates. This approach will be presented in three main stages. The first part will be devoted to the characterization of the notion of “political role” through the analysis of the travaux préparatoires as well as through a review of the literature on the topic. In the second part, we will introduce an analytical framework consisting of a number of “types” and “subtypes” modelling the different modalities of the interaction between law and politics. The third part will explore several case studies by using the analytical framework previously presented. In this part, we will pay particular attention to how the legal and political scopes of action of the UN Secretary-General influence each other in real life. It Ini is also here that the question of the legal reception mechanisms through which political breakthroughs are incorporated into the legal system will be made explicit, as part of an assessment of the insights that can be derived from the use of the framework proposed. 21 21 VIRALLY, M., L'organisation mondiale , Armand Colin, Paris, 1972, p. 116. 116. 22 22 CORDOVEZ, D., op. cit ., p. 163. 163.

Page 16 Page 167 7 P P ART ART O O NE NE The notion of political role

Page 17 Page 178 8

Page 18 Page 189 9 1. 1. Introductory remarks The purpose of the present section is methodological. Before going into the analysis

of the actual practice, it is indeed necessary to specify what will constitute our research object, or, in other words, what will be understood by the terms “political role” or “political involvement” of the UN Secretary-General. There are in this regard several possible ways to characterize the activity of the Secretary-General in world affairs, and distinctions between what should be considered truly political and what belongs to rather administrative or merely operational tasks are numerous, often subtle and in some cases artificial. Chapter XV of the UN Charter, as well as many other provisions 23 23 , vests a number of functions in the Secretariat. These functions can be classified in many different ways. For instance, the Preparatory Commission at the Drafting Conference distinguished six main functions of the Secretariat: general administrative and executive functions; technical functions; financial functions; organization and administration of the International Secretariat; political functions; and representational functions 24 24 . . However, this Namun, hal ini classification presents the risk of being more formal than real. In the words of Jean Siotis: “…nous estimons impossible qu'une présentation typologique des structures du Secrétariat puisse reposer sur leur structure formelle… s'interdisant ainsi d'accéder à la réalité, qui ne correspond que partiellement à ses manifestations extérieures” 25 25 . . One Salah satu alternative approach can be to focus on the practice of the Secretariat in order to identify the real functions that it has been called to undertake. In this respect, a 1950 study 26 26 distinguished three categories: executive functions 27 27 ; administrative or managerial functions 28 28 ; and functions as coordinator of the policies and activities of the United Nations and the specialized Agencies 29 29 . . 23 23 See Articles 12.2, 20, 73(e) and 102.1 of the UN Charter as well as Articles 5.1, 7, 14, 36.4, 67 and 70 of the Court's Statute. 24 24 Report of the Preparatory Commission, p. 86, cited in GOODRICH L., HAMBRO, E., SIMONS, AP, Charter of the United Nations, Commentary and Documents (Third and Revised Edition), Columbia University Press, New York-London, 1969, p. 574. 25 25

SIOTIS, J., Essai sur le Secrétariat international , Droz, Genève, 1963, p. 158. 158. 26 26 See The United Nations Secretariat, United Nations Studies , No. 4, Carnegie Endowment for International Peace, New York, 1950, p. 19, cited in GOODRICH L., HAMBRO, E., SIMONS, AP, op. cit ., p. 575. 27 27 Such as the Secretary General's special right of diplomatic initiative, the presentation of an annual report on the work of the Organization, the execution of the tasks entrusted to him by the General Assembly and the Councils and many others. 28 28 The functions and powers coming under this heading refer mainly to the provision of services, essentially of a secretarial nature, to the General Assembly, the Security Council, ECOSOC, the Trusteeship Council, and the large number of subsidiary organs and special bodies set up to do the work of the UN. These services include providing meeting places for these bodies, arranging for necessary facilities, preparing and circulating documentation, and seeing that records are prepared. In addition, there are also technical and financial services which must be performed well if the Organization is to run smoothly. 29 29 These responsibilities are nowhere explicitly stated in the Charter and derive from resolutions passed by the General Assembly and ECOSOC requesting the Secretariat to undertake various tasks such as preparing reports, coordinating particular projects and establishing policy coordination boards etc.

Page 19 Page 1910 10 Still another possibility, traditionally employed by scholars working on UN issues, is the distinction between administrative and political functions 30 30 . . Broadly speaking, administrative functions consist mainly in providing logistical assistance to the deliberative bodies of the Organization in order to facilitate their functioning, whereas the political functions are usually characterized by a certain substantive autonomy, especially in the field of international peace and security. Though quite intuitive at first sight, such distinction is often blurred in practice. A good example of this latter point is provided by the historical evolution of Article 98 of the Charter. The three functions enunciated in this article, though apparently administrative in character, have in practice provided the basis for important political initiatives of the UN Secretary-General, such as the conducting of peacekeeping operations or the use of the annual report as an instrument

for expressing an autonomous UN policy. This means, for our purpose, that whatever the usefulness of such broad classifications of functions, no generalization is possible without strong simplification. This caveat being made, one could think of using narrower categories in order to keep closer to reality. This is what we intend to do in this study. For the purpose of our analysis, we will concentrate on the two major fields of political activity of the UN Secretary-General, namely his peacekeeping and good offices powers. Although these two fields do not cover the entirety of what can be labeled as “the political activity of the UN Secretary-General”, this is where his role in international politics is most relevant for the original goal of the Organization. Whereas it is hardly necessary to justify this assertion with regard to peacekeeping operations, which constitute undoubtedly the major contribution of the UN to its primary role of maintaining international peace and security, the international public opinion is by far less aware of the importance of the Secretary- General's good offices. In order to establish these two categories of activity as an operational definition of the Secretary-General's political role we will conduct what could be characterized as an “archaeology” of the way in which this object has been progressively built up throughout the last half of a century. This procedure will be composed of two parts. The first part will consist of an historical survey of how the political dimension of the Secretary-General came to be recognized, in the mind of the drafters of the Charter, as a necessity. In this Dalam hal ini part, we will try to show that, though clearly desired, the implications of vesting a political dimension in the Secretary-General were poorly understood. Moreover, this early stage is perhaps the best moment at which we can identify the “original sin” of the drafters, which will put the Secretary-General at a crossroad between law and politics. The second Yang kedua part will focus on the way this political role has been progressively conceptualised in the literature as well as on the assessment of the relevance of considering the two domains of action at hand as its core manifestations. 30 30 See for instance: VIRALLY, M., Le role politique du Secrétaire général des Nations-Unies in Annuaire français de droit international , 1958, pp. 361-365; ALEXANDROWICZ, Ch.-H., The Secretary-General of the United Nations in International and Comparative Law Quarterly , 11, 1962, pp. 1109-1111.

Page 20 Page 2011 11 2. 2. The political role of the UN Secretary-General in historical perspective 2.1. 2.1. General remarks In searching for the sources and the first conceptions of a more political secretariat, the first point that must be mentioned is the importance of the experience of the League of Nations. Indeed, although the travaux préparatoires of the UN Charter are not clear as to what the drafters meant exactly by a more political secretariat, it is at least possible to

assert with considerable certainty that the experience of the League represented a counter- model. model. The idea of a politically active head of the Organization is present in most avant- projets , but aware of the difficulty to foresee the way in which such innovation would unfold in the following years, major powers put the emphasis on the mechanisms of selection and control of the Secretariat. The constraints of multilateral diplomacy further complicated this already fuzzy landscape, leading to the rather shy legal formulation included in the UN Charter. In his Essai sur le Secrétariat international , Jean Siotis concludes his evaluation of the San Francisco Conference saying, in reference to Article 99 of the Charter : “Les solutions adoptées à San Francisco nous semblent contradictoires, car l'article 99, qui a une importance capitale pour le fonctionnement de l'organisation internationale, n'était pas accompagné des dispositions qui auraient pu rendre son application possible sans mettre le secrétaire général dans la situation impossible où il aurait à interpréter continuellement la Charte … Les auteurs de la Charte n'ont jamais réellement opté entre les deux solutions possibles. Soit un secrétariat dominé par les grands … mais disposant des moyens nécessaires à l'exercice des droits prévus par l'article 99, soit un secrétariat réellement indépendant … libre de prendre des initiatives dans certains domaines, mais dont les fonctions se limiteraient essentiellement au plan administratif. La solution de compromis … renfermait en elle-même les germes de toutes les difficultés rencontrées par le nouveau Secrétariat international sur la voie de son développement” 31 31 . . The remark of Professor Siotis is very perceptive. It is, for instance, precisely this ambiguity that constituted the basis of the Soviet attack against the Secretary-General during the Congo crisis. If the Secretary-General was to enlarge his political involvement, he should be far more under the control of major Powers. In any case, the main difficulty remains that, though willing to grant political prerogatives to the future head of the Organization, the victorious powers had no precise idea of what this really meant. They Mereka only seemed to acknowledge that the administrative stance adopted by the League's secretariat was not enough. In this regard, it can be useful to take a look at what this administrative stance precisely consisted of 32 32 , for the political dimension eventually vested in the UN Secretary-General was developed, to a large extent, by reasoning a contrario of this first experience. 31 31 SIOTIS, J., op. cit. , p. 156. 156. 32 32 The extent of such administrative stance is, for instance, reflected in the title of an important study on the League's first Secretary-General: BARROS, J., Office without power: Secretary-General Sir Eric Drummond , 1919-1933, Clarendon Press, Oxford, 1979.

Page 21 Page 2112 12

2.2. 2.2. The League's Secretariat: administrative, not political. As Jean Siotis has rightly pointed out, before the League was established only small permanent international secretariats with technical functions had existed, such as those of the European Commission of the Danube or the Universal Postal Union. Therefore, the Oleh karena itu, League's Secretariat was to be considered a pioneer 33 33 in many respects, especially in terms of importance 34 34 and in the progressive acceptance of an international civil service 35 35 . . Among the projects of the League's Covenant 36 36 , there were two that provided for a strong Secretariat vesting large power in the “Chancellor”, as this high Officer was called disebut 37 37 . . But these ambitious conceptions were eventually abandoned in favour of a far more restricted one after the eminent candidate, Eleutherios Venizelos, refused the Office. Kantor. The text finally adopted gave the Secretary-General an auxiliary role. Indeed, Article 2 of the Covenant states: “The action of the League under this Covenant shall be effected through the instrumentality of an Assembly and of a Council, with a permanent Secretariat”. This latter part of the provision clearly shows the secondary position of the League's Secretariat 38 38 as well as its administrative character. Moreover, the Noblemaire Report, adopted in 1921 39 39 , urgently insisted that the Secretariat should not go beyond the preparation and the execution of the decisions of the principal organs, and should in particular avoid making any suggestions on the substance of such decisions. Such stance was, for the rest, confirmed in 1930 by the Report of the Committee of Thirteen 40 40 . . There was nevertheless some space in the Covenant as well as in regulatory provisions for the political involvement of the Secretary-General. Indeed, whereas Article 11.1 in fine of the Covenant timidly stated: “… In case any such emergency (threat of war) should arise the Secretary General shall on the request of any Member of the League forthwith summon a meeting of the Council” 41 41 , the intervention of the Secretary-General in such emergency was subsequently interpreted as a duty and the Council was supposed to meet automatically, even without the request of a Member State

42 42 . . In practice, however, this 33 33 Altogether with the International Secretariat of the International Labour Organisation. 34 34 Given that, unlike its predecessors, the good functioning of the Organisation required substantial numbers of persons from different countries with a wide range of functions and operating continuously. 35 35 Although nothing in the Covenant required an international civil service instead of an intergovernmental one, it was the first Secretary General of the League, Sir Eric Drummond, who drawing upon his long experience as a British civil servant introduced this conception. 36 36 We refer here to the British projects of Lord Robert Cecil (January 14 th th , 1919) and that written by the experts of the Foreign Office (January 20 th th , 1919). For further details see MILLER, DH, The Drafting of the Covenant , GP Putnam's Sons, New York / London, vol. I-II, 1927. 37 37 Article I of Robert Cecil's project stated: “The General Secretary or Chancellor should be appointed by the Great Powers, if possible, choosing a national from some other country”, cited in SIOTIS, J., op. cit ., p. 55. 55. 38 38 The French text uses the word “assister”. 39 39 League of Nations Document C.424. M.305. 1921. X. mentioned in KUNZ, J., The Legal Position of the Secretary General of the United Nations in American Journal of International Law , 40/4, 1946, p. 787. 40 40 Doc. Doc. A.16. 1930, cf. Idem . 41 41 Italics added. 42 42 Siotis mentions a 1921 resolution adopted by the correspondig commission of the League's Assembly stating the following : “Le Secrétaire général avertira les Membres des événements qui pourraient éventuellement donner lieu à une rupture du Pacte. Au reçu de cet avertissement, le Conseil se réunira”, Actes de la Deuxième session de l'Assemblée, Séance des Commissions , p. 356, cited in SIOTIS, J., op. cit ., p. 87. 87.

Page 22 Page 2213 13 possibility was never used by any of the two Secretaries-General of League 43 43 . . Such low profile, whether the result of structural legal and international constraints or, rather, of personal style, or of both, revealed harmful in many situations. In this regard, Javier Perez de Cuéllar recalls the experience of the League with the following words: “The League's Covenant, and its practice, were based on a purely administrative conception of the post of Secretary-General. There was no one who could speak for the wider international interest, an interest greater than the sum of the interests of the member states. There was Ada no one in a position to initiate timely intervention by the League to avert the collapse of the international system. The framers of the Charter were most anxious not to let such void occur again” 44 44 . . While this is clear in retrospective, at the time of the drafting conference it was not clear how to fill the void mentioned by Perez de Cuellar. In order Dalam rangka to continue this short archeology of the political character of the current Secretariat, let us now briefly review the different contents that the major powers intended to give to such political dimension. 2.3. 2.3. The drafting of the UN Secretariat: the quest for a political dimension First of all, it should be noted that the United States were by far the most active State in the preparation of the future Organization 45 45 . . The other allies did not become truly involved in this process until the Conferences of Dumbarton Oaks, and still, a great deal of their involvement consisted of reacting to American proposals. This is why it is useful, as a first step, to discuss the major American projects at some lengthy. With regard to the Secretariat, the American position was aimed, generally speaking, at expanding the political powers vested in it while keeping them under control through the interplay of structural constraints. It appears that President Roosevelt himself was concerned with giving the future Head of the Organization a say in political affairs. The The authors of a well-known study on the history of the UN Charter point out however that: 43 43 This does not mean that they led no diplomatic action at all. As noted by Siotis: “… le secrétariat a effectivement exercé de telles fonctions (diplomatiques) en se servant de trois types d'instruments : en assumant un rôle de confident et parfois de conseiller des diplomates accrédités à Genève ; en prêtant ses bons offices pour réunir deux ou plusieurs délégations ; en offrant ses services aux délégués, et en particulier à ceux d'entre eux qui

occupaient un poste de responsabilité au sein des organes multilatéraux (présidents, rapporteurs, etc.)”, Ibid ., p. 88. 88. 44 44 PEREZ DE CUELLAR, J., The Role of the UN Secretary-General in ROBERTS, A., KINGSBURY, B. (eds.), United Nations, Divided World, The UN's Roles in International Relations , 2 nd nd edn., Clarendon Press, Oxford, 1993, pp. 125-142. 45 45 In the United States, the main part of the work was carried out by the Subcommittee on Political Problems of the Advisory Committee on Post-War Foreign Policy. This organ, which had started to function before the conclusions of the Moscow Conference, completed most of the technical work by the summer of 1943 and was then reduced to form the Informal Political Agenda Group , which, in turn, was in charge of establishing the final version of the project. Finally, in the summer of 1944, this group was enlarged constituting the American delegation at the International Conferences. In addition to this official work, many non-governmental associations got involved in the drafting making a wide range of proposals. Among them, the most influential one was, with any doubt, the Carnegie Endowment for International Peace, which organized several Conferences regrouping some American specialists and former officials of the League of Nations. For further details see: Proceedings of the Exploratory Conference on the Experience of the League of Nations , Carnegie Endowment for International Peace, Washington, 1942 ; Proceedings of the Conference on Experience of International Administration , Carnegie Endowment for International Peace, Washington, 1943 ; Proceedings of the Conference on Training for International Administration , Carnegie Endowment for International Peace, Washington, 1944.

Page 23 Page 2314 14 “Precisely what Roosevelt had in mind is not clear from the available records. This Ini probably means that the point was not heavily stressed in the meeting at which Secretary Hull and his advisers discussed the Outline Plan with the President, who seems to have used the term moderator in describing his idea of this official. In retrospect, and in view of his use of that term to describe the role he hoped to play in bringing about a reconciliation between the Soviet and Polish Governments, he appears to have been thinking of the possibility of an individual with the full prestige of the organization diplomatic influence in moderating differences especially between the great powers”

46 46 . . In Dalam any case, all major drafts included innovative prerogatives aimed at giving the Secretariat a political dimension. The first two projects, namely the Draft Constitution of International Organization of July 14 th th 1943 and the Draft Charter of the United Nations of August 14 th th 1943 1943 were both characterised by the strong position given to the Secretariat 47 47 . . The Draft Constitution , though referring in its Article 7 to the Secretariat as a purely administrative organ, provided the General Secretary in Articles 3 and 4 with unprecedented executive powers such as presiding the two executive organs of the Organization, serving as the link between these two bodies, summoning the meetings of the Council at his own discretion and even disposing of a veto right regarding any decision of the Committee. As to the Draft Charter , the Director General was to preside over the Council and participate in its deliberation without the right to vote. A third project, namely the Possible Plan of General International Organization of April 29 th th 1944, introduced a distinction between the administrative and the political head of the Organization, the latter, called President , had similar prerogatives to those granted in the Draft Charter to the Director General . The final version of this latter project, which, under the heading United States Tentative Proposals for a General International Organization , was to be presented at the Dumbarton Oaks Conferences, was however far less progressive. Indeed, it appears that the difficulties inherent to the existence of two heads as well as the strong personification implied by the requirements of the post of President , led the American administration to suppress the provisions providing for a political head. Curiously enough, the suppression took the form of a mere cut from the overall project. For our purpose this means at least two things. First, there was indeed a political will to vest in the future Head of the Organization some kind of political prerogative. Second, the extent or even the form of such prerogative was very unclear, although broadly speaking it was related to the moderation of conflicts between major powers. Moving on now to the British view of the future secretariat, while they agreed with Americans on the principle of giving some political prerogative to it, they do not agreed on the content of such prerogatives. The British position was mainly based on its experience at the League of Nations. Indeed, although there were no British comprehensive projects on the organization, some ideas as to the form of the Secretariat could be found in a brochure of the Royal Institute of International Affairs under the heading The International Secretariat of the Future, Lessons from experience by a group of former 46 46 RUSSELL, R., MUTHER, J., A History of the United Nations Charter , Brookings Institution, Washington DC,

1958, p. 373. 47 47 Both documents are reproduced as Appendix in Ibid .

Page 24 Page 2415 15 officials of the League of Nations 48 48 . . The views expressed in this document are striking for their realism: “No attribute is more essential for an international Secretariat than the ability to gain and hold the confidence of member governments and of public opinion. The greater the political importance of the organization, the more will its members demand as a condition of such confidence that the Secretariat should include some of their own nationals… Add political functions to the work of an international Secretariat, and it will be strange indeed if all members will not exert strong pressure for representation on its staff. Faith and confidence will be qualified or withheld altogether if one country or a small combination of countries monopolized the administrative and executive positions” 49 49 . . This being said, it is acknowledged that although a function of political nature such as presiding the Council : “… may not officially be admitted to belong to an international Secretariat, it is of the very essence of the work of the high officials ” 50 50 . . Again, while the principle of a more political involvement was accepted, its spelling out was unclear. As to the Chinese and Soviet conceptions, their great emphasis on selection and control mechanisms is revealing of the uncertainty surrounding the very prerogatives to be vested in the Head of the future Organization. This emphasis will, for the rest, characterize the discussions held at Dumbarton Oaks. As a matter of fact, during these Conferences, the only question related to the Secretary-General raising serious controversy was indeed the nomination procedure. At Dumbarton Oaks, beyond the nomination issue, an agreement was reached on another question, which, though less debated, would turn out to be of paramount importance for the activity of UN Secretary-General in the following years. We refer here to the inclusion of a diplomatic initiative enabling the Secretary-General to bring to the attention of the Security Council those situations constituting threats or breaches to peace. This instrument, though not present in the American project, was nevertheless one of the main points of the instructions of the American delegation. Consequently, the Akibatnya, Americans did not only welcome the proposal but they even tried to enlarge it to a similar right with respect to the General Assembly. However, the staunch Soviet opposition to discuss social and economic matters, eventually led to the admission of this right only in the limits set by the British and Chinese proposals 51 51 . . For our purpose of identifying the idea of “political role” purported by the drafters

of the Charter, the acceptance of such instrument is highly significant. First, an instrument of an openly political character was being voluntarily introduced as part of the 48 48 Cf. Cf. SIOTIS, J., op. cit ., pp. 141 et seq. 49 49 Cited in Ibid ., p. 142. 142. 50 50 Cited in Ibid ., p. 141. 141. 51 51 Chapter X paragraph 3 of The Dumbarton Oaks Proposals for the Establishment of a General International Organization runs as follows: “The Secretary-General should have the right to bring to the attention of the Security Council any matter which in his opinion may threaten international peace and security”. This document is reproduced as an Appendix in RUSSEL, R., MUTHER, J., op. cit . cit. Siotis thinks that the easy admission by the Soviets of this right, in its original limits, was above all a result of both a poor interest regarding the Organisation in general and a lack of vision as to the implications of such right in the diplomatic arena, op. cit ., p. 146. 146.

Page 25 Page 2516 16 prerogatives of the Secretary-General. Second, as mentioned when we reviewed the League's experience, although such right may have been argued to legally exist at the times of the League, no use of it had been made at all by either of the two Secretaries- General of the League. Javier Perez de Cuellar reports that Sir Eric Drummond: “… is said to have remarked that if Article 99 of the Charter (authorizing the diplomatic initiative of the UN Secretary-General) had been at his disposal, the position of his office – and, by implication, the influence of the League on events – would have developed differently” 52 52 . . In other words, the drafters were trying to correct one major flaw of the League's Covenant by enlarging the competence of the Secretary-General beyond merely administrative matters. The discussions held at San Francisco the subsequent year 53 53 add some more precision to the characterization of such political instrument. It was agreed that the diplomatic initiative would not constitute a duty but a discretionary right in the hands of the Secretary-General. And such right concerned only peace and security matters excluding, contrary to the amendment proposal put forward by the delegation of Uruguay, other violations of the UN Charter. The Secretary-General was thereby only authorized to “muddle” in peace and security issues. But aren't these issues the very essence of traditional “high politics”? They are indeed. For our purpose, this is interesting in two respects. First, the invitation made to the Secretary-General to sail across highly

political waters has also an important drawback. The original ambiguity identified by Professor Siotis between, on the one hand, a highly political Secretariat closely dependent on Great Powers and, on the other hand, an independent but only administrative one, is here particularly relevant. The fact that neither one of these two “stable” solutions was eventually adopted will leave the Secretary-General at a crossroad between legal and political constraints, thus justifying an analysis which distinguishes between the legal and the political scopes of action. Second, our brief historical survey shows that the drafters had no clear idea of how such involvement would unfold in practice. The Preparatory Commission was indeed right when it pointed out, as quoted in the introduction to this study, that Article 99 : “confers a special right which goes beyond any power previously accorded to the head of an international organization … (and) … it is impossible to foresee how this article will be applied” 54 54 . . In a world increasingly scarred by Cold War politics, Article 99 will play a crucial role in justifying the political activity of the Secretary- General, but this in a way totally unforeseen by the drafters. In order to refine our characterization of the UN Secretary-General's political role as a research object, it is therefore necessary to go a step further and analyse the way in which these developments where progressively apprehended by observers of UN affairs. 52 52 PEREZ DE CUELLAR, J., op. cit ., p. 129. 129. 53 53 At San Francisco, the issue of the Secretariat was submitted to Committee I/2. Documents relative to the Secretariat can be found in volumes VII and VIII of United Nations Conference on International Organisation , (San Francisco, 1945), Documents, 22 vols., United Nations and Library of Congress, London, 1945-66. 54 54 Cf. Cf. P/C 20, 23 December 1945, p. 87, cited in KUNZ, JL, The Legal Position of the Secretary General of the United Nations in American Journal of International Law , 40/4, October 1946, p. 791.

Page 26 Page 2617 17 3. 3. The political role of the UN Secretary-General as a research object: A survey of the literature 3.1. 3.1. General remarks Speaking at a Symposium organized by the Hague Academy of International Law to celebrate the first 40 years of the United Nations, Thomas Franck pointed out: “The General Assembly may deal with a broader range of issues and the Security Council may have more potentially powerful weapons at its disposal, but if one measures effectiveness in terms of impact on the real world beyond the precincts of United Nations Chambers, it is the Office of the Secretary-General which has enjoyed modest success while other principal organs have encountered mortifying disappointment”, adding later: “It would be

no exaggeration to say that the United Nations is well worth preserving if it serves no other purpose than to facilitate the fact-finding, good offices and peacekeeping initiatives of the Secretary-General” 55 55 . . The purpose of the present section is to inquire into whether the perception of Franck can be accepted as a reliable description if not of the work of the United Nations as a whole, at least of the way in which the political potential of the Secretary-General unfolded along the history of the Organization. Our survey will proceed chronologically in order to better grasp how scholars have progressively oriented their interest on different activities of the Secretary-General, and how their focus have given birth to a number of considerably well defined objects of inquiry serving as an operational definition of the Secretary-General's political role. 3.2. 3.2. The contents of the “political role” in the literature Although it is difficult to generalize, a chronological review of the literature suggests the existence of a quite clear trend towards the study of very precise types of political involvement on the part of the UN Secretary-General. Broadly speaking, we can distinguish five moments in this trend. First, most studies written during the first 10 years of the office remained very general focusing mostly on his overall situation with regard to the Charter. This focus changed substantially after the first years of Hammarskjold mandate. It is at this second stage that the core contents of the Secretary-General’s political role were identified. Third, the novelties that scholars writing at the end of the 1950s were still reluctant to categorise, will progressively be associated with the crucial role of the Secretary-General in the conducting of peacekeeping operations, especially after the Congo crisis. Parallel to this, the claim by various incumbents of an autonomous legal standing for the office of the Secretary-General in the settlement of international conflicts started to attract the attention of scholars, interested in what will be baptised “quiet diplomacy”. Fourth, the period running from the end of the 1960s to the end of the 1980s could be described, in a somewhat provocative way, as a “time for digestion”. Indeed, the focus of scholarship during this period seems to be, again, in broad terms, less 55 55 FRANCK, Th., The Role and Future Prospects of the Secretary-General in BARDONNET, D. (ed.), The Adaptation of Structures and Methods at the United Nations , Martinus Nijhoff, Dordrecht / Boston / Lancaster, 1986, pp. 81 and 87 respectively.

Page 27 Page 2718 18 the developments of their time than the conceptualisation of what at the beginning of the 1960s was still seen as experimental. This could explain why in a number of important studies scholars return to general approaches, which, though using titles comparable to those of the first period, are, understandably, more relevant in conceptual terms. Fifth and final, with the decline of Cold War politics since the end of the 1980s, a renewed interest in the potential of the office of Secretary-General has emerged in the form of a considerable number of studies focusing mostly on the opportunities open to the

Secretary-General in many different and well-defined fields of action such as good offices and fact-finding. Let us now study in more detail each of the five moments in order to see how the notion of “political role” of the Secretary-General and its core contents were progressively developed and refined. At the first stage identified we find but intuitions of where and how the political dimension of the office might unfold . At this very early moment, any action of the Secretary-General going beyond the administrative stance of the League's Secretaries was the object of immediate interest. bunga. For instance, writing in 1946, Josef Kunz devoted an entire article to Trygve Lie's competence to make either oral or written statements before the Security Council, the General Assembly and their subsidiary organs, that is, to his simple right to speak. His Nya analysis led him to conclude from this sole fact that: “The legal position of the Secretary- General of the UN, therefore, transcends by far that of the Secretary General of the League” 56 56 . . The clarification of the legal position of the Secretary-General in view of such novelty, which, although significant, was in retrospective a clearly minor one, will be considered fruitful enough to motivate a whole doctoral dissertation at La Sorbonne 57 57 as sebagai well as the development of an important contribution by the Carnegie Endowment for International Peace attempting a classification of the Secretary-General's functions based on actual practice 58 58 . . Even the seminal study published by Stephen Myron Schwebel in 1952 1952 59 59 , which will have a substantial influence in subsequent research, considered such development as embodying the political nature the Charter drafters had wished for the new Secretaryship-General. Indeed, resuming with a line of research that had recognized the existence of political aspects in the functioning of the League's secretariat 60 60 , Schwebel emphasised the UN Secretary-General's superior involvement in politics. This rather shy conception of the implications of the Secretary-General's political role will be radically modified in just a few years , to the point that by 1958 Michel Virally, commenting on the study of Schwebel, could note: “… il suffit de lire la vigoureuse demonstration de cette these pour apercevoir combien ce qui paraissait considerable en 1952 se réduit à une 56 56 KUNZ, J., op. cit ., p. 792. 57 57 NEHLAOUI, F., Le Secrétaire général des Nations Unies , thèse, Paris, 1949. 58 58 CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE, The United Nations Secretariat in United Nations Studies , No. 4, 1950.

59 59 SCHWEBEL, SM, The Secretary-General of the United Nations : His political powers and practice, Harvard University Press, Cambridge MA, 1952. This study had been preceded by an article written by Schwebel on the legal basis of the Secretary-General's political powers: The origins and development of Article 99 of the Charter: the powers of the Secretary-General of the UN in British Yearbook of International Law , 1951, pp. 371-382. 60 60 SCHÜCKING-WEHBERG, Die Satzung des Völkerbundes , 2nd edition, Berlin, 1924; GÖPPERT, O., Der Völkerbund. Organisation und Tätigkeit , Verlag von W. Kohlhammer, Stuttgart, 1938.

Page 28 Page 2819 19 esquisse pale et hésitante de la réalité de 1958” 61 61 . . It is that in the meantime came Hammarskjold, giving a real content to the notion of political role. In less than ten years, the Swede was able to increase the political dimension of his office to unprecedented levels. tingkat. The acknowledgement by scholars of such breakthrough came right after, redefining the “political role” of the Secretary-General on the basis of Hammarskjold new achievements. For instance, in an article published in 1957, Elmore Jackson pointed out: “The initiative taken by Mr. Hammarskjold in the release of the United States airmen, the trip to the Middle East in the spring of 1959, and the assistance to the three Foreign Ministers in the Suez discussions of October 1956, were political tasks not too difficult to adjust to the Secretary-General's continuing administrative responsibilities. It was Itu obvious, however, that the special roles undertaken after October 29 (ie after the attack of Egypt by Israeli forces) imposed burdens difficult to reconcile with day-to-day administrative decision-making” 62 62 . . In other words, Hammarskjold's initiatives after October 29 have moved the core of his office onto the political side, and this to the detriment of a number of administrative tasks. In a similar vein, Josef Kunz, in a 1958 contribution noted that: “The importance of the Secretary General has in recent years very much increased. Dag Hammarskjold's role as a diplomatic negotiator could already be seen in his mission to Peiping in 1954 and to the Middle East in 1956. But in the Suez crisis of 1956 his position was truly dominating” 63 63 . . Shortly after, on the other side of the Atlantic, Michel Virally tried to grasp the political character of the Secretary-General's office by pointing to such competences as writing the Annual Report on the work of the Organization, taking an official position on international political issues whenever necessary, defining a United Nations “doctrine”, but also, and most importantly, executing large political mandates entrusted to him by the

deliberative organs and engaging in diplomatic consultations to solve conflicts. In these two latter respects, Virally observed: “L'expérience de ces dernières années de fonctionnement de l'ONU montre que les responsabilités politiques du Secrétaire général n'ont fait que croître, dans des proportions considérables, du fait des multiples tâches dont il a été chargé, tant par l'Assemblée que par le Conseil”, adding a few pages later: “Il n'est pas moins incontestable que l'activité diplomatique du Secrétaire général des Nations Unies a, depuis quelques années, pris une intensité et revêtu un éclat absolument sans comparaison avec ce qu'on avait pu voir dans le passé” 64 64 . . These remarks clearly suggest that, though loosely conceptualised, the political role of the Secretary- General was perceived, by the end of the 1950s, as having a very concrete content, the main referents of which were to be found in his involvement in peacekeeping and his diplomatic initiatives. This characterization will become in the following years consensual enough to allow an eminent scholar such as Leland Goodrich to confidently open his article on The Political Role of the Secretary-General as follows: “For the purposes of this 61 61 VIRALLY, M., op. cit ., p. 362. 362. 62 62 JACKSON, E., The Developing Role of the Secretary-General in International Organization , 11/3, 1957, pp. 440-441. 63 63 KUNZ, J., The Secretary General on the Role of the United Nations in American Journal of International Law , 52/2, 1958, p. 301. 64 64 VIRALLY, M., op. cit ., pp. 376 and 385 respectively.

Page 29 Page 2920 20 discussion, the political role of the Secretary-General is defined in somewhat narrow terms. istilah. It is not intended to discuss his role in the development of policy generally, which would be a possible way of viewing the subject. Rather, attention will be given to the role of the Secretary-General in the discharge of one of the major responsibilities of the United Nations – the maintenance of international peace and security. Consequently, the Akibatnya, role of the Secretary-General in developing and executing policies and programs of economic and social development, which has come to be one of the major fields of activity of the Organization, will not be touched upon, except incidentally” 65 65 . . Throughout the 1960s, the matter identified as the “political role” of the Secretary-General will become sectorized , the main objects of research being its peacekeeping and diplomacy aspects . During this period, the American review International Organization became a rich forum for the

exchange of ideas on these new developments. With regard to the peacekeeping aspect, most of the contributions we find are focused on particular cases where the Secretary- General played a notorious role. The lion's share goes, naturally, to the UNEF 66 66 and dan Congo experiences 67 67 . . The core contents of the Secretary-General's political role thus became clearly associated with his powers regarding the composition and command of the force, as well as the responsibility such powers entail 68 68 . . But this emphasis should not prevent us from noticing the growing literature on the Secretary-General's diplomacy, although this latter field attracted less attention than peacekeeping-related activities. As Seperti 65 65 GOODRICH, LM, The Political Role of the Secretary-General in International Organization , 16/4, 1962, p. 720. See also: ABBOUSHI, WF, The Secretary-General of the United Nations: constitutional powers and developments , Ph.D. Dissertations, University of Cincinnati, 1959; BAILEY, SD, The Secretary-General of the United Nations in World Today , 17/1, 1961, pp. 2-11; BOTTENBERG, P., Die politischen Leitungsfunktionen der Generalsekretäre internationaler Organisationen , Doctoral Dissertation, Universität Göttingen, 1959; CORDIER, AW, The role of the Secretary- General in Annual review of United Nations affairs , 10, 1960, pp. 1-14; GORDENKER, L., The Secretary-General in BARROS, J. (ed.), The United Nations: past, present and future , The Free Press, New York, 1962; JAMES, AM, The role of the Secretary-General of the United Nations in international relations in International Organization , 12/1, 1959, pp. 620-638; KOUZBARI, WY, Les pouvoirs politiques du Secrétaire général des Nations Unies , Doctoral dissertation, Université de Paris, 1959; PAK, CY, The political role of the Secretary-General of the United Nations in theory and practice, Ph.D. Dissertation, New York University, 1963; PUENTE EGIDO, J., Funciones administrativas y diplomático-políticas del Secretario General de las Naciones Unidas según la Carta y práctica de la Organización in Zeitschrift fur öffentliches Recht und Völkerrecht , 20, 1959-1960, pp. 36-72 and 450-505; PYMAN, TA, The United Nations Secretary-Generalship in Australian Outlook , 15/3, 1961, pp. 240-259. 66 66 ROSNER, G., The United Nations Emergency Force , Columbia University Press, New York, 1963; TANDON, Y.,

UNEF, the Secretary-General, and International Diplomacy in the Third Arab-Israeli War in International Organization , 22/2, 1968, pp. 529-556; 67 67 HOFFMANN, S., In search of a thread : the United Nations in the Congo labyrinth in International Organization , 16/2, 1962, pp. 331-361; VAN LANGENHOVE, F., Le rôle proéminent du Secrétaire général dans l'opération des Nations Unies au Congo , Institut Royal des Relations Internationales & Martinus Nijhoff, La Haye, 1964 ; BUNCHE, R., The United Nations operation in the Congo in CORDIER, A., FOOTE, W. (eds.), The quest for peace. The Dag Hammarskjold Memorial lectures , Columbia University Press, New York, 1965; SOUBEYROL, J., Aspects de la fonction interpretative du Secrétaire général de l'ONU lors de l'affaire du Congo in Revue générale de droit international public , 70/3, 1966, pp. 565-631 ; AMIRIE, A., The United Nations intervention in the Congo crisis, 1960-1961: with special emphasis on the political role of the late Secretary-General, Dag Hammarskjold , Ph.D. Dissertation, Southern Illinois University at Carbondale, 1967. 68 68 HOVET, T., The role of the Secretary-General in the creation of United Nations forces, Ph.D. Dissertation , New York University, 1962; LENTNER, H., The Political Responsibility and Accountability of the United Nations Secretary- General in Journal of Politics , 27/4,1965, pp. 839-860; BOEN, S., The leadership role of the Secretary-General in times of international crisis , Ph.D. Dissertation, University of Virginia, 1965; TANDON, Y., Consensus and authority behind United Nations Peacekeeping Operations in International Organization , 2/21, 1967, pp. 267-276; MICHALAK, S., Peacekeeping and the United Nations: the problem of responsibility in International Studies Quarterly , 1967, pp. 301- 319; SAFFELL, DC, The Secretary-General as chief executive of the United Nations , Ph.D. Dissertation, University of Minnesota, 1969.

Page 30 Page 3021 21 stated in a 1966 contribution: “During the first twenty years of the United Nations' existence the patterns of its activities changed significantly. One of the most important changes took place in the practices of the Secretary-General. While the most noticeable development was his assumption of the position of executive agent for peacekeeping forces, a less noticeable but equally important one occurred in his activities as an agent of peaceful settlement”

69 69 . . The quest for a deeper understanding of the existing practice will pave the way for renewed efforts aimed at a general conceptualisation of the Secretary-General's political role. Indeed, no later than 1967 a new attempt to provide a comprehensive analysis of this role was published by Professor Leon Gordenker 70 70 . . To define its scope, this study no longer used the broad expression “political role” but that, apparently easier to circumscribe, of the “Maintenance of Peace”. The book was on the whole very welcomed 71 71 at a time where specializing on specific points was still the rule. The The impression that it was the right moment for undertaking such a general approach is particularly clear in Gordenker's work. Indeed, at the end of his introduction he notes: “This endeavour to provide an orderly view of an office which has caught the imagination of millions of people and of many of their leaders must then take into account the complexity of individuals, of governments, and of political aspirations and failures. The The record of two decades of development and change provides a firm basis for study” 72 72 . . In a similar vein, Marie-Claude Smouts noted in the introduction to her 1971 study on the Secretary-General: “Il n'est plus temps de s'interroger sur le fait de savoir si le Secrétaire général a le droit d'intervenir dans les conflits, ni de s'étonner qu'il le fasse. Il est désormais évident que le Secrétaire général des Nations Unies a plus de pouvoirs que n'en avait celui de la Société des Nations, qu'il tente de s'interposer dans les crises internationales même lorsque celles-ci, et le fait est remarquable, ne sont pas du ressort des Nations Unies” 73 73 . . Another major contribution to this subject, by Arthur Rovine, also appeared in these years 74 . . These remarks clearly suggest that, by the end of the 1960s and the beginning of the 1970s, scholars perceived the matter as ripe for a general conceptualisation. konseptualisasi. As to the core of the Secretary-General's political activity, there was no doubt that the emphasis should be put primarily on issues related to maintenance of international peace and security, and above all the peacekeeping and diplomatic activities. This does not mean that there were no studies specializing on particular aspects of the 69 69 ZACHER, M., The Secretary-General and the United Nations' Function of Peaceful Settlement in International Organization , 20/4, 1966, p. 724. See also: LENTNER, H., The Diplomacy of the United Nations Secretary-General

in The Western Political Quarterly , 18/3, 1965, pp. 531-550; YOUNG, O., The intermediaries: third parties in international crises , Princeton University Press, Princeton, 1967; ZACHER, M., The Secretary-General: some comments on recent research in International Organization , 23, 1969, pp. 932-950. 70 70 GORDENKER, L., The UN Secretary-General and the Maintenance of Peace , Columbia University Press, New York, 1967. 71 71 See the reviews in: The Journal of Politics , 30/3, 1968, pp. 847-848; Midwest Journal of Political Science , 13/1, 1969, pp. 157-158; American Political Science Review , 63/3, 1969, pp. 979-980. A vehement critic of Gordenker's study can be found in KNIGHT, J., On the Influence of the Secretary-General: Can We Know What It Is? in International Organization , 24/3, 1970, pp. 594-600. 72 72 GORDENKER, L., op. cit ., p. xvi. 73 73 SMOUTS, M.-C., Le Secrétaire général des Nations Unies , Armand Colin, Paris, 1971, pp. 13-14. 74 ROVINE, AW, The First Fifty Years: The Secretary-General in World Politics 1920-1970 , AW Sijthoff, Leyden, 1970. 1970.

Page 31 Page 3122 22 Secretary-General's role. For instance, Vratislav Pechota published an important book on the Secretary-General's diplomacy for peace 75 75 . . But such studies, though of a less general ambition, are but further confirmations of the need for a conceptualisation of the matter as well as of the core contents present in the mind of scholars. In addition to this development, a number of contributions focusing on one or the other of the Secretary- Generals since 1945 are also noteworthy 76 76 . . All these efforts will provide a solid basis for expanding research to less salient aspects of the Secretary-General's activity in subsequent years. tahun. Since the end of the 1980s, a growing body of literature on the Secretary-General has rapidly emerged . This fifth wave of research points in two major directions, often interrelated. The The first direction concerns both the new opportunities for the Secretary-General left by the end of the Cold War and the risks of such opening. The peacekeeping and diplomatic powers of the Secretary-General are still the main objects of research, but this time in the

light of the post Cold War political conditions. Franck and Nolte's study on the good offices function of the Secretary-General 77 77 can, for instance, be classified under this category as well as the interesting book by Edward Newman 78 78 . . The second strand covers a number of studies focusing on various issues such as early warning 79 79 , fact-finding 80 80 , and , Dan good offices in particular areas 81 81 , as well as other specific issues 82 82 . . These latter issues can 75 75 PECHOTA, V., The Quiet Approach , UNITAR, New York, 1972 76 76 MANTON, TB, U Thant: a political biography. An enquiry into the background and the major political actions of the third Secretary-General of the United Nations , Ph.D. Dissertation, American University, 1968; GOODRICH, L., Hammarskjold, the UN, and the Office of the Secretary-General in International Organization , 28/3, 1974, pp. 467-483; JACKSON, WD, The political role of the Secretary-General under U Thant and Kurt Waldheim: development or decline? in World Affairs , 1978, pp. 230-244; JORDAN, R. (ed.), Dag Hammarskjold revisited: the United Nations Secretary- General as a force in world politics , Carolina Academic Press, Durham, 1983. 77 77 FRANCK, T., NOLTE, G., op. cit . cit. 78 78 NEWMAN, E., The UN Secretary-General from the Cold War to the New Era : A Global Peace and Security Mandate ?, Macmillan Press/St Martin's Press, London/New York, , 1998. See also: CORDOVEZ, D., Strengthening United Nations Diplomacy for Peace : The Role of the Secretary-General in UNITAR, The United Nations and the Maintenance of International Peace and Security , Martinus Nijhoff Publishers, Dordrecht/Boston/Lancaster, 1987, pp. 161-175; ELARABY, N., The Office of the Secretary-General and the Maintenance of International Peace and Security in UNITAR, The United Nations and the Maintenance of International Peace and Security , Martinus Nijhoff,

Dordrecht / Boston / Lancaster, 1987, pp. 177-209; LAVALLE, R., The Inherent Powers of the UN Secretary- General in the Political Sphere : A Legal Analysis in Netherlands International Law Review , 37/1, 1990, pp. 22-36; SZASZ, P., The Role of the Secretary-General. Some Legal Aspects, NYU Journal of Intl. Law and Politics , 4, 1991, pp. 161-198; BOUDREAU, TE, Sheathing the sword: the UN Secretary-General and the prevention of international conflict , Greenwood Press, Westport, 1991; SKJELSAEK, K., The UN Secretary-General and the Mediation of International Disputes in Journal of Peace Research , 28/1, February 1991, pp. 99-115; MURTHY, CSR, The Role of the UN Secretary-General since the End of the Cold War in The Indian Journal of International Law , 35, 1995, pp. 181- 196; HISCOCK-LAGEOT, C., Boutros Boutros-Ghali, Secrétaire général de l'ONU : grandeurs et servitudes d'un mandat unique in Revue generale de droit international public , 104, 2000, pp. 107-141. 79 79 RAMCHARAN, BG, The international law and practice of early warning and preventive diplomacy : the emerging global watch , Martinus Nijhoff, Dordrecht, 1991. 80 80 LEURDIJK, DA, Fact-finding: the revitalization of a Dutch initiative in the UN in Bulletin of Peace Proposals, 21/1, 1990, pp. 59-69; BOURLOYANNIS, MC, Fact-Finding by the Secretary-General of the UN in NYU Journal of Intl. Law and Politics , 22, 1991, pp. 641-669; 81 81 RAMCHARAN, BG, The good offices of the United Nations Secretary-General in the field of human rights in American Journal of International Law , 76/1, 1982, pp. 130-141; RAMCHARAN, BG, Humanitarian good offices in international law: the good offices of the United Nations Secretary-General in the field of human rights , Martinus Nijhoff, The Hague, 1983; VAN BOVEN, TC, The role of the United Nations Secretariat in the area of human rights in NYU Journal of Intl. Law and Politics , 24, 1991, pp. 69-107; LEVY, J.-P., Les bons offices du Secrétaire général des Nations Unies en faveur de l'universalité de la Convention sur le droit de la mer : préparation de l'Accord adopté par l'Assemblée générale du 28 juillet 1994 in Revue générale de droit international public , 98/4, 1994, pp. 871-898 ;

Page 32 Page 3223 23 however be considered mainly as sub-questions of the Secretary-General's diplomatic

role. peran. In other terms, though richer both in terms of the issues covered and the approaches employed, the current literature still associates the Secretary-General's political role with his activities in peacekeeping and diplomacy. 4. 4. A brief assessment The preceding survey clearly suggests that the object “political role of the UN Secretary-General” as viewed in legal and political science scholarship has been progressively assimilated to his roles in peacekeeping and diplomacy. As we said in the introduction, although these two broad domains of action of the Secretary-General do not cover the whole range of activities implying a political dimension, they can reliably be considered as the core of his “political role”. The “archaeology” conducted in the preceding pages suggest that such an operational definition is largely justified. If we accept this latter point, the next step is to further characterize these two domains of action. Indeed, although both peacekeeping and good offices are well known terms frequently used in a wide range of situations, when it comes to define them, or to give at least a relatively clear notion of what they refer to, evidences seem to disappear. Let us first cope with the notion of peacekeeping operations. It is not the purpose of this study to provide a detailed concept of peacekeeping or of its evolution during the Cold War years. However it should be kept in mind that the reality of peacekeeping operations has indeed varied considerably over time. This is why a useful operational definition should be general enough so to cover the differences stemming from the historical development of this concept. In this regard, the characterization given by a former Under-Secretary-General for Peacekeeping Operations, Sir Marrack Goulding, can be considered as a good compromise. According to the British officer, peacekeeping operations can be defined as: “United Nations field operations in which international personnel, civilian and/or military, are deployed with the consent of the parties and under UN command to help control and resolve actual or potential international conflicts or internal conflicts which have a clear international dimension” 83 83 . . This definition takes into account not only classic international conflicts but also internal conflicts with an international dimension, a point that is highly significant in the light of the Cold War practice. praktek. Concerning the “quiet diplomacy” of the UN Secretary-General, the terminology fluctuates considerably, the notion of good offices or that of preventive diplomacy being PASTERNACK, S., The role of the Secretary-General in helping to prevent civil war in NYU Journal of Intl. Law and Politics , 26/4, 1994, pp. 701-759 82 82 RAMCHARAN, BG, The history, role and organization of the 'cabinet' of the United Nations Secretary- General in Nordic Journal of International Law , 59, 1990, pp. 103-116; KANNINEN, T., Leadership and reform: the Secretary-General and the UN financial crisis of the late 1980s , Kluwer, The Hague, 1995. 83 83 The Singapore Symposium : The Changing Role of the United Nations in Conflict Resolution and

Peacekeeping 13-15 March 1991 (UN DPI, New York, Sept. 1991), p. 25, cited in MORPHET, S., UN Peacekeeping and Election-Monitoring in ROBERTS, A., KINGSBURY, B. (eds.), op. cit. , p. 184. 184.

Page 33 Page 3324 24 tour à tour advanced as its core. We cannot open here the question of whether these terms can or should be assimilated or not. In any case, the definition of good offices in UN practice is less restrictive than the traditional one since it also covers mediation, fact- finding missions and sometimes even operations to oversee a troop withdrawal such as the UN Good Offices Mission to Afghanistan and Pakistan 84 84 . . Whatever the precise expression used in a particular case, what counts eventually is the diplomatic intervention of the UN Secretary-General in order either to prevent a conflict or to conciliate the parties to a conflict. Thus characterized, the political role of the Secretary-General becomes very concrete, for the empirical relevance of the two domains identified as its core content is widely acknowledged. For our purpose, this is important in two respects. First, finding an operational definition of the Secretary-General's political role is necessary in order to identify a well-delimitated research corpus. Second, the reliability of such operational definition enhances the relevance of the analysis we intend to conduct of the interactions between law and politics in the exercise by the Secretary-General of his political role, which will be the object of the second part of this study. 84 84 UN Press Release SG/SM/4124, 20 April 1988, pp. 7-8, cf. FRANCK, Th., NOLTE, G., op. cit ., p. 144. 144.

Page 34 Page 3425 25 P P ART ART T T WO Setting the framework

Page 35 Page 3526 26

Page 36 Page 3627 27 1. 1. Introductory remarks The political role of the Secretary-General takes place at a crossroad between law and politics. This is especially the case when it comes to his peacekeeping and good offices activities, for these activities concern directly peace and security issues or, in other

words, what States have traditionally considered their “high politics”. The idea that legal and political constraints shape the actual range of alternatives open to the Secretary-General in a given situation is obviously not new. As a matter of fact, the constant efforts to justify under the Charter provisions the increasingly strong intrusion of the Secretary-General in matters of peace and security constitutes a clear signal that law and politics cannot be considered independently of one another. However, Namun, the literature provides no further precision of how to approach this interaction. At the Pada most, scholars point out, either generally, or with regard to particular cases, that legal provisions must be interpreted in the light of the changing political circumstances and that, whatever the state of the law, the true possible alternatives depend upon politics rather than law. Though unsystematic, these intuitions offer a very interesting startpoint for further reflection. The object of the present section is precisely to conduct such further reflection. refleksi lebih lanjut. In this regard, we will start with a spelling out of what we understand by law and politics. We do not intend, however, to consider the wide and rich literature focusing on the definition of law 85 85 , nor will we open the debate of whether international law is but a pious wish in a world shaped by a struggle for power 86 86 . . Though of theoretical nature, our undertaking has no “doctrinal” pretension but only an “analytical” one. More precisely, we do not pretend to “define” ways in which law and politics interact in the exercise by the Secretary-General of his political powers but only to “identify” a set of analytical categories, with no claim other than to serve as an instrument for advancing the understanding. pemahaman. Drawing upon the approaches of law and politics spelled out as a first step, we will then proceed to a detailed characterization of what we call the “legal/political scopes of action”. The third and final step will be the development of our analytical framework. 85 85 For a review of theory : VIRALLY, M., La pensée juridique , LGDJ, Paris, 1960; FRIEDMANN, W., The Changing Structure of International Law , Stevens, London, 1964; TRUYOL Y SERRA, A., Théorie du droit international public in Collected Course of the Hague Academy of International Law , 1981-IV, vol. 173, pp. 9-443; McDONALD, RJ, JOHNSTON, DM (eds.), The Structure and Process of International Law. Essays in Legal Philosophy, Doctrine and Theory , Martinus Nijhoff, The Hague, 1983; ALLOTT, P. et alt., Theory and International Law: An Introduction , 1991; STEINER, HJ, International Law: Doctrine and Schools of Thought in the Twentieth Century in BERNHARDT, R. (ed.), Encyclopaedia of Public International Law , vol. 2, 1995; 86 86

For an introduction to this debate see : SLAUGHTER, AM., International Law and International Relations Theory : A Dual Agenda in American Journal of International Law , 2/87, 1993, pp. 205-239.

Page 37 Page 3728 28 2. 2. Law and politics in the international society In the current international environment, virtually no one would seriously argue that politics has no influence on the shaping of international law. This is not to say that politics is the sole material source of international law, but only that it is a , and perhaps the , major one. This common ground is solid enough to build upon it, and we do not need to go beyond such intuitive and widely accepted view. Indeed, such a broad assertion does not exclude other “modern” material sources such as social necessity, reason and even religious thinking. To take but one example, one could say that, when conducting their “practice” or negotiating a treaty, governments fix their positions taking into account a wide number of factors among which pure political convenience cannot be totally separated from the religious or justice feelings of their own domestic public opinion. pendapat. This has arguably been the case in the shaping of the current international human rights regime. As to the law underlying the action of the UN Secretary-General, the role of politics in the drafting of the Charter is but too obvious. When reviewing the drafting history of the UN Charter, we saw clearly how political considerations affected the final wording of Chapter XV as well as other rules regarding the position of the Secretary-General. Sekretaris-Jenderal. In this context, one can confidently say that law, and in this case the UN Charter, is the result of a particular political configuration, itself influenced by a number of factors, including politics. This only means therefore that the statements formally included as provisions of the UN Charter reflect a political configuration at a given moment. But this assertion remains unclear unless we know what must be understood by the terms political configuration. Again, far from an attempt to “define” what politics is, we will simply assume that politics in this context means interest-oriented pressure. Such pressure can derive either from a particular action of a State, or other non-State actor, or from the mere existence of clear interests. kepentingan. For instance, many of the draft provisions of the American projects for a future international organization tried to anticipate what the interests of the other parties to the negotiation would be, in order to make the overall American stance more acceptable. In Dalam this regard, one could say without too much hesitation that the natural environment of pressure is the perception of the actors involved in a particular situation. Of course, very much detail would be needed to develop these assertions into a “theory”, but this is not required for our purpose. All we need is to give the reader a clear idea of the general conceptions implied in what will follow. Thus understood, law has at least two major uses. First, it serves as a criterion to determine whether a particular action is legal or illegal. Of course, we still need to know what it means to be legal or illegal. From an internal point of view, it means that the formal contents of what is called law will be used for describing a situation. It may not be easy to

conclude whether the situation is in accordance with what is required by the formal contents of law or not, but the start-point for such analysis will in any case be law itself. From an external point of view, a particular situation or action can greatly benefit from being considered legal for this is a strong basis of legitimacy. The literature on legitimacy

Page 38 Page 3829 29 is wide and subtle 87 87 . . Let us limit ourselves, for the purpose of our analysis, to two short remarks . The first remark is extremely general and points to what the late sociologist Max Weber called “legal-rational authority” 88 88 . . According to Weber, authority has historically derived from three main sources, each being the basis of an “ideal-type”, ie an analytical instrument for improving the understanding of social phenomena. Since modern times, authority has progressively been vested in impersonal and abstract rules. People obey not to other people but to the rules they have rationally accepted. If we now turn to our precise context, the fact that the Charter was negotiated and adopted by a large number of States 89 89 clearly enhances its legitimacy. No doubt some States may find the rules unjust or at least undesirable for major Powers have always a stronger influence in the formal procedures that give birth to law, in this case the drafting of the UN Charter. But the fact remains that if any legitimacy can be attached to the Charter, which is obviously the case in practice, one of the reasons for it rests on the consent principle. The second remark is far more precise. It concerns how in practice States do use law for legitimising their action. One very famous example can be found in what the International Court of Justice stated in the Nicaragua case. In this case, the Court noted that even in those instances where the US had intervened in other countries for political reasons, a legal justification based on the classic rules had been used: “The significance for the Court of cases of State conduct prima facie inconsistent with the principle of non- intervention lies in the nature of the ground offered as justification … The United States authorities have on some occasions clearly stated their grounds for intervening in the affairs of a foreign State for reasons connected with, for example, the domestic policies of that country, its ideology, the level of its armaments, or the direction of its foreign policy. But these were statements of international policy, and not an assertion of rules of existing international law. hukum internasional. In particular, as regards the conduct towards Nicaragua … the United States has not claimed that its intervention, which it justified in this way on the political level, was also justified on the legal level, alleging the exercise of a new right of intervention … The United States has, on the legal plane, justified its intervention expressly and solely by reference to the 'classic' rules” 90 90 . . Another example, this time very

recent, is the resort by the US and the UK to very creative legal argumentation in order to 87 87 See among others : FRANCK, TM, The Power of Legitimacy Among Nations , Oxford University Press, New York, 1990 ; ALVAREZ, JE, The Quest for Legitimacy: An Examination of the Power of Legitimacy in NYU Journal of International Law and Politics , 24, 1991, pp. 199-267; FRANCK, TM, Fairness in International Law and Institutions , Clarendon Press, Oxford, 1995; CARON, D., Governance and Collective Legitimization in the New World Order in Hague Journal of International Law , 1993, pp. 29-44; DENCHO, G., Politics or Rule of Law: Deconstruction and Legitimacy in International Law in European Journal of International Law , 1993, pp. 1-14. 88 88 WEBER, M., Economy and Society: an Outline of Interpretive Sociology , University of California Press, Berkeley, 1978, chapter III. 89 89 As early as 1949, the number of States having adopted the Charter was used by the International Court of Justice to justify the objective international personality of the United Nations Organization: “… the Court's opinion is that fifty States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone, together with capacity to bring international claims”, Reparation for injuries suffered at the service of the United Nations, ICJ Reports , 1949, p. 185. 185. 90 90 Military and Paramilitary Activities in and against Nicaragua (Merits), ICJ Reports , 1986, par. 206- 209.

Page 3930 30 justify their military intervention in Iraq. As two commentators put it: “US and British officials argued that Resolution 678 (1990), which empowered the United States and other states to use force against Iraq, still governed and continued to provide authority to punish Iraq for cease-fire violations. This position assumed that Resolution 678's authorization to use force remained valid, albeit temporarily suspended – a loaded weapon in the hands of any member nation to use whenever it determined Iraq to be in material breach of the cease-fire. The refusal of the United States to accept limitations on its power by the Security Council thus depended on creatively interpreting the Council's resolution to accord authority, despite the contrary positions of a majority of its members”

91 91 . . These two cases illustrate how law is invoked even in extreme cases, where using law as a justification would appear as a contradictio in adjecto. The second major use that can be identified refers to the role of law in regulating behaviour. This point, which has been conceptualised not only by international lawyers but also by a growing literature in political science 92 92 , suggests that what law states is assumed to be carefully considered and therefore there are good reasons to expect it to be followed. In Dalam other terms, law tends to regularize behaviour and thus makes it more foreseeable. Law Hukum thereby enters the natural environment of politics, namely perception, as an important factor in the shaping of perception. Law is taken into account, either to act in conformity or not, to be used or not, especially because of its legitimating properties. The preceding remarks, though brief, give a broad picture of the understanding of law and politics that will be assumed in the following pages. Let us now turn to the characterization of what has been called the legal and political scopes of action of the UN Secretary-General. Sekretaris-Jenderal. 3. 3. The legal and political scopes of action of the UN Secretary-General If law can be seen, at least for a large part, as a result of a given political configuration, this does not necessarily mean that the political compromise giving birth to the wording of a particular provision purports a common view of how a situation should be treated. As a matter of fact, there are many wordings broad enough to admit different and even contradictory meanings. A famous example is the wording of paragraph 1 (i) of Security Council Resolution 242 (1967) asking, as one of the principles for the establishment of a just and lasting peace in the Middle East, for the: “Withdrawal of Israel 91 91 Cf. Cf. LOBEL, J., RATNER, M., Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-fires and the Iraqi Inspection Regime in American Journal of International Law , 1/93, 1999, pp. 124-125. 92 92 The literature on international regimes has largely developed in these last 20 years. A good start-point is the special issue of the journal International Organization , Spring 1982. For further details see : KRASNER, S. (ed.), International Regimes , Cornell University Press, Ithaca/London, 1983 ; KRATOCHWIL, F., Rules, Norms and Decisions : On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs , Cambridge University Press, Cambridge, 1989, especially chapter II ; KEOHANE, R., After Hegemony : Cooperation and Discord in the World Political Economy , Princeton University Press, Princeton, 1984 ; KEOHANE, R., International Institutions and State Power : essays in international relations theory , Boulder, San Francisco, 1989.

Page 4031 31 armed forces from territories occupied in the recent conflict” 93 93 . . Indeed, behind the bald use of the word territories hides a five and a half months controversy, ultimately leading to a lasting ambiguity in that the territories concerned are not specified. Conversely, one cannot conclude from this that the fact of adopting a particular wording is totally irrelevant. Indeed, consenting on a wording has in any case the effect of narrowing the range of what could be claimed to be the law on a particular matter, and on this narrowing at least there is a common view. This reflection clearly applies to the provisions of the Charter governing the political role of the Secretary-General. The meaning of such provisions remained however unclear in the absence of substantial practice. When there is no practice regarding a legal provision, the understanding of the wording is sought with relation to what the Drafters anticipated. If we read the 1946 commentary of the UN Charter written by Goodrich and Hambro 94 94 , the meaning of Chapter XV provisions draws almost exclusively on the travaux préparatoires . It would seem that even a clear wording needs the resort to particular situations, real or anticipated, to acquire a true meaning. makna. Beyond what international law tells about interpretation, the very hermeneutical procedure at play would seem to require implementation as a condition for its existence. Very much like a Beethoven Sonata , it has no existence if it is not played, either in a piano or in the head of its composer 95 95 . . The analysis of the drafting history of Secretary-General's office as well as of the scholarly contributions on his role made over time clearly shows how the meaning of the provisions concerned, and even the choice of which provisions are actually concerned, crucially depended on the actions of the Secretary-General to be subsumed. But how far can this meaning be adapted? There must be a frontier somewhere. The very idea that, once a wording adopted, the range of possible meanings becomes narrower necessary implies that interpretation has limits. And this is the case despite the fact that the UN Charter, given its constitutional nature, needs to be flexibly interpreted, precisely because of the difficulty to modify it 96 96 . . In this context, it is possible to speak of a legal scope of action , 93 93 Security Council Official Records , 1382 nd nd meeting, 22 nd nd November 1967 (italics added). 94 94

GOODRICH, L., HAMBRO, E., Commentaire de la Charte des Nations Unies , Editions de la Baconnière, Neuchâtel, 1946, in particular commentaries ad Articles 98 and 99. 95 95 “In both legal and theological hermeneutics there is an essential tension between the fixed text – the law or the gospel – on the one hand and, on the other, the sense arrived at by applying it at the concrete moment of interpretation, either in judgement or in preaching. A law does not exist in order to be understood historically, but to be concretised in its legal validity by being interpreted. Similarly, the gospel does not exist in order to be understood as a merely historical document, but to be taken in such a way that it exercises its saving effect. This implies that the Ini berarti bahwa text, whether law or gospel, if it is to be understood properly – ie according to the claim it makes – must be understood at every moment, in every concrete situation, in a new and different way. Understanding here is always application”, GADAMER, H.-G., Truth and Method , 2 nd nd edn., Continuum, New York, 2002 [1960], pp. 308-309. 96 96 The question of the peculiarity of multilateral treaties creating international organisations is clearly stated by Riccardo Monaco: “… l'acte institutif d'une Organisation déterminée est bien un traité international, fondé, en tant que tel, sur la volonté des contractants et donc soumis, au moment de sa formation, à leur volonté, mais il est par ailleurs destiné à devenir la constitution, c'est-à-dire l'acte de fondation de l'Organisation, auquel celle-ci se rattache tout au long de son existence. On pourrait dire, par conséquent, que l'acte institutif revêt la forme du pacte mais possède la substance de la constitution : né sur la base d'une convention, il dépasse, avec le temps, son origine formelle, jusqu'à devenir une constitution de durée indéterminée dont le développement déborde le cadre à l'intérieur duquel elle avait été initialement conçue”, MONACO, R., Le caractère constitutionnel des actes institutifs d'organisations internationales in Mélanges offertes à Charles Rousseau : La Communauté internationale , Pedone, Paris, 1974, p. p. 154. On the constitutional nature of institutional treaties and their interpretation see also: SATO, T., Evolving Constitution of International Organizations , Kluwer, The Hague, 1996 ; SCHERMERS, HG, International Institutional Law ,

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32 32 limiting the range of legal powers of the Secretary-General. Such a scope of action must be understood at three different levels. The first level takes into account what has already been said about international law in general. pada umumnya. Law introduces into the range of thinkable actions a criterion allowing for the distinction between what is legal and what is not. A number of actions may still be possible, and even sometimes desirable, without being legal. Legality provides however legitimacy for a given action. Other sources of legitimacy may exist 97 97 , but in the present international arena law is undoubtedly a major one. In this regard, law is an auto- referential phenomenon, in that the recognition of what is legal and what is not depends solely on the state of law 98 98 . . But the state of law is given not only by the provisions in force at a certain moment in time but also by the particular meaning of such provisions at this same moment. Within Dalam the context of the same legal wording, meaning itself fluctuates to accommodate, as far as possible, changes in the actual practice. The legal scope is therefore given not only by the formal wording of a provision or set of provisions but also by the state of the meaning of such provisions. To establish such state of the meaning is extremely difficult. In order to keep the auto-referential capacity referred above, the methods through which the meaning of a particular provision is established are themselves a part of law. The methods Metode of interpretation admitted in international law are now stated in Articles 31 to 33 of the 1969 Vienna Convention on the Law of Treaties, which reflects in this matter the state of customary law. Any interpretation disrespectful of these methods is thus unable to ensure the “legality” of the meaning derived. In spite of all these mechanisms, the margin left in international law for the determination of the meaning of a provision is far too wide. In Dalam the absence of an “authoritative interpretation”, ie a mechanism assuming the legality of the meaning established by a particular organ, claims concerning different meanings are seldom solved. But this does not entail that any meaning counts equally. As a matter of fact, and this is our third level, the more a meaning is contestable the less it benefits from the Sijthoff & Noordhoff, Alphen aan den Rijn/Rockeville, 1980 ; RESS, G., The interpretation of the UN Charter in SIMMA, B. (ed.), The Charter of the United Nations. A Commentary , Oxford University Press, Oxford, 1995, pp. 25-44 ; SIMON, D., L'interprétation judiciaire des traités d'organisations internationales : morphologies des conventions et fonction juridictionnelle , Pedone, Paris, 1981 ; for a more general perspective see VIRALLY, M., La notion de fonction dans la théorie de l'organisation internationale in Mélanges offertes à Charles Rousseau : La Communauté internationale , Pedone, Paris, 1974, pp. 277-300.

97 97 The debate over the legality/legitimacy of humanitarian intervention in Kosovo or in Darfur is a good example of how States may derive legitimacy, and even claim legality, from meta-juridical sources. 98 98 HART, HLA, The Concept of Law , Clarendon Press, Oxford, 1961, in particular Preface, Chapter 1 and then Chapters 5,6 and 9; LUHMANN, N., Einige Probleme mit “reflexivem Recht” in Zeitschrift für Rechtssoziologie , 6, 1985, pp. 1-18. Commenting on Niklas Luhmann's theory of closed systems, Nicolas Hayoz points out: “Un système fonctionnel ne peut se constituer en tant que système de communication que dans la mesure où il dispose d'un code particulier qui lui permet de se distinguer par rapport à l'environnement … Si le système ne disposait pas d'un schéma spécifique pour le traitement des informations, il ne pourrait tout simplement pas choisir des informations dans son environnement, dès lors que toute (auto-)observation présuppose une distinction … L'autonomie d'un système résulte de l'existence d'une telle distinction directrice”, HAYOZ, N., Société, politique et État dans la perspective de la sociologie systémique de Niklas Luhmann , Département de sciences politiques de l'Université de Genève, Genève, 1991, pp. 47-48.

Page 42 Page 4233 33 legitimising effect of law. This is for a quite simple reason. If the wording and meaning of law are in some way a reflection of a given political configuration, the farther is the meaning claimed from such configuration, the lesser its legitimacy. Here, it is necessary to introduce a subtlety. Progressive interpretation techniques, such as those applied to constituent instruments, serve to keep the rigid formal wording of a provision updated to practice. praktek. What changes is not the legal wording but the meaning States attribute to it. Insofar as a particular meaning of a legal wording is largely admitted as such, one can speak of a somewhat “mainstream” interpretation. A good way to look for such a meaning is to read the decisions of international tribunals or other competent third parties, for their understanding can be expected to be less subject to bias than that of a particular State. If such meaning exists, it can be claimed that it benefits from considerable political support from the members, a support that in turn serves as a source of legitimacy. Characterized at these three levels, the legal scope of action constitutes both an evolving and a fixed realm. Evolving, because its meaning changes over time according the actual practice. But also fixed, because, by definition, interpretation has limits. In the Dalam case of the legal scope of the Secretary-General's political role, the limits of what is legal and what is not will be understood as integrating this duality. In other terms, although his

legal scope in, say, 1970 was different than the one in 1950, at each of these two moments, one could speak of a somewhat fixed legal scope beyond which his action would have been illegal. This latter point provides, by the same token, a first characterization of what we will call the political scope of action . The entire range of action of the Secretary-General in a particular case needs not to be in strict accordance to law. Although no Secretary-General may be expected to recognize that he intends to act, or that he has indeed acted, beyond his legal powers, the possibility of such illegal action is very real, as we will see when exploring the practice. As noted before, it is law itself that purports to regulate its own evolution, and, in the case of a rigid instrument like the UN Charter, the main legal mechanism for adjustment to practice is interpretation. However, interpretation has limits, and consequently, so has the legal action of the Secretary-General. Certain initiatives, while possible in practice, may go beyond what we have characterized as his legal scope of action. The Secretary-General may undertake such initiatives because he thinks he counts with enough political support to make a breakthrough. He will of course claim to be acting in total conformity with the UN Charter, putting forward his own interpretation of how the Charter covers his present action. The interesting point is that such interpretation, because of its challenge to the “state of the meaning”, ie the evolving dimension of the “state of the law”, should not be expected to deploy, or at least not substantially, the legitimising effect of law. Indeed, as we saw before, if we accept the fact that the legitimacy of law is based, at least to a large extent, on the political circumstances that gave birth to the “state of the law”, the more an interpretation is controversial, the less it will deploy its legitimising effect. But the legitimacy the Secretary- General lacks when acting ultra vires may be compensated, in the particular case, by ad hoc

Page 43 Page 4334 34 political support. Conversely, the political configuration at a given moment may not allow him to use one of his well-established legal powers, or at least not to use it fully. This Ini second hypothesis is very frequent, especially in the field of good offices. In other words, what is politically possible for the Secretary-General in a given situation does not necessarily coincides with his legal powers at this same time. This is, for Hal ini, untuk the rest, the path followed by those who, from the end of the 1960s on, started to focus on the “influence” of the Secretary-General. For instance, what Leon Gordenker wanted to analyse in his 1967 study on the Secretary-General was his: “… influence … on the processes taking place when the international organization becomes involves in issues relating to the maintenance of peace and security”, such influence being understood as the fact that: “… the Secretary-General can act within narrow but undefined and shifting limits, and his independent actions influence the course of international politics but never at a constant level” 99 99 . . A further remark made even clearer the difference between his scope of study, of a political nature, and legal or formalistic approaches to the Secretary- General's role, when he stated with regard to the concept of influence that it: “… emphasizes process rather than formal, legal characteristics ”

100 100 . . Marie-Claude Smouts followed this same path. It is just that, from a political science perspective, there would be little interest in legalistic blindness, that is in studying a rigid framework, which, in practice, is most often disregarded, at least in its original meaning. This objection is highly relevant, but its consequences are not easily derived. At some point law matters, especially for someone as the Secretary-General, who owns his entire existence to the Charter. Neglecting the relevance of the legal scope, as is often the case in recent literature, may be comfortable but is not a methodological decision to be made without reflection. If, on the contrary, we admit that law matters, it is still necessary to know how to analyse all these pieces together. This latter point will be the object of the following section. 4. 4. Inducting patterns of interaction: an analytical framework So far, we have focused on the characterization of what we have termed the legal/political scopes of action of the Secretary-General as well as on making explicit the general conceptions of law and politics we have assumed. In the present section, we will use these notions to set up an analytical framework, that we would like to present as an effort, based on the review of the peacekeeping and good offices practice of the Secretary-General, to spell out different possibilities in which the interaction between the two scopes of action may be approached. The framework consists of a number of ideal- types . This very usual technique of the social sciences was characterized by Max Weber as follows : “In all cases, sociological study of both rational and irrational reality abstracts its concepts from reality and at the same time attempts to serve for understanding of reality in the form that a historical event is ordered by one or more of sociologically approximate 99 99 GORDENKER, L., The UN Secretary-General and the Maintenance of Peace , Columbia University Press, New York, 1967, p. xiii (italics added). 100 100 Ibid ., p. x (italics added).

Page 44 Page 4435 35 concepts. konsep. For example, the same historical phenomenon may be attributed to one aspect 'feudal', to another 'patrimonial', to another 'bureaucratic', and to still another 'charismatic'. In order to give a precise meaning to these terms, it is necessary for sociology to formulate pure ideal types of the corresponding kind of action, which in each case involve the highest possible degree of logical integration by their complete adequacy of meaning. But precisely because of its pureness, it is probably seldom if ever that a real phenomenon can be found which corresponds exactly to one of these ideally constructed pure types” 101 101 . . Ideal-types are therefore analytical categories to be used as tools for approaching complex social phenomena in an orderly and meaningful way. These types will be arranged at three levels of analysis , the passage from one to the other being the result of different processes . Before adding further detail on the terminology

used, let us first present the overall structure of the framework: Table I summarises the structure of our analytical framework. There are three different levels at which the analysis can be conducted. The first level , which we use as the start-point, represents what could be termed as the formal-legalistic approach. Here, as law is assumed to be fully effective, both the legal and the political scopes of action of the Secretary-General are expected to coincide exactly. Thus stated, this approach may appear too artificial to be empirically relevant. However, a moderate version of it, assuming only that both scopes of action largely overlap, may in fact be very useful when addressing uncontroversial initiatives of the Secretary-General, where both law and politics point in the same direction. Of course, when this is not the case, ie when tension between the Secretary-General's legal and political scopes of action does arise, this first approach may appear too simplistic to provide a satisfactory account of the situation. This is why it is necessary to go a step further. At the second level of analysis , the legal and political scopes of action are assumed to be distinct though intimately related. Introducing such distinction entails both increased realism and growing complexity. Broadly speaking, two main situations are possible. First, the Secretary-General may be in such a position that the space for political manoeuvring, 101 101 WEBER, M., Basic Concepts in Sociology , Greenwood Press, Westport, 1977, Chapter 5, section vii. Table I Tabel I LEVELIII: Type 1.A Legal scope > > Political scope LEVELIII: Type 1.B Legal scope <> Political scope LEVEL II: Type1 Legal scope < < Political scope LEVEL III: Type 2.A Legal scope < < Political scope LEVEL III: Type 2.B Legal scope <> Political scope LEVEL II: Type2 Legal scope > > Political scope LEVELI: Startpoint

Legal scope = Political scope

Page 45 Page 4536 36 ie his political scope of action, is wider than the possibilities open from a legal point of view. tampilan. Such situations will be ranged under type 1 . Second, the Secretary-General may find himself in the strict opposite situation, namely that what he could normally do from a legal point of view does not appear politically feasible, because of, for instance, strong pressure from one or more States. Such situations will be covered by type 2 . However, Namun, whereas approaching the Secretary-General's political role at level I might yield too simplistic results, staying at level II may not be enough either, for it does not tell us how the legal and political scopes interact. In this regard, neither one of the two types can be seen as a stable situation. Both express the existence of tension between law and politics, without making explicit the results or outcomes of such tension. Again, we need to go a step further in the analysis, in order to grasp the dynamics of the interaction between the legal and political scopes of action. At the third level , the need to grasp this interaction in its dynamic dimension requires an adjustment of the model. Two subtypes are associated to each of the two basic types. Subtypes represent the possible outcomes of each basic type. Subtype 1.A refers to those cases where the Secretary-General succeeds not only in making a legally dubious breakthrough, taking advantage of political opportunities, but also in having his legal scope expanded accordingly. The politically driven process through which the legal scope is expanded can take different legal forms, but the main one is, without any doubt, progressive interpretation. Subtype 1.B refers precisely to those cases where no clear legal process expanding the legal scope to the political limits exploited by the Secretary-General can be made out, and this either because the process at work is purely political or because its legal existence is itself controversial. This latter point concerns mainly what is commonly referred to as amendment by subsequent practice 102 102 . . The legal situation in such cases is ambiguous. A political breakthrough has been made, on the basis of a particular political configuration, but such opening is not clearly followed by a subsequent legal expansion. Of course, to assess whether one is facing a subtype 1.B situation rather than one under subtype 1.A , it is necessary to take into account the time dimension. Indeed, a political breakthrough may remain controversial during a considerable lapse of time, falling under subtype 1.B , and finally become legally regularized, thus becoming a subtype 1.A case. It is interesting however to see if the differences between those practices that eventually acquire legal standing and those that do not can be associated to the actual characteristics of such practices or to the particular circumstances surrounding their development. pembangunan. Another interesting point is to understand how the legal standing of a given practice may remain latent for a period of time and one day become established retroactively. Curiously enough, the opposite effect, namely the passage from subtype 1.A to subtype 1.B , is by far less frequent. Of course, it is always possible to think of a desuetude process in favour of new practices, but legal frames seem to have a far larger

life span. They may not manifest themselves for a long time, and suddenly come back turning the droit latent into fully applicable and legitimising law, as if it was possible to invoke the souvenirs of an old political configuration. 102 102 See : DISTEFANO, G., La pratique subséquente des Etats parties à un traité in Annuaire français de droit international , 40, 1994, pp. 41-71.

Page 46 Page 4637 37 With regard to the two subtypes associated to the second basic type, subtype 2.A refers to those cases where, despite the existence of strong political pressure, the Secretary-General exercises his legal prerogatives all the same. In such cases, law would seem to prevail over political constraints. Of course, those who consider international law as a simple chimera may think that, in the end, it is mostly, or even exclusively, for political reasons that the Secretary-General decides to respect the “state of the law” of his legal scope. However, for our purpose, such “psychological” doubts are not relevant. There is no point in saying that, eventually, everything comes to politics without saying how. We saw that the legal scope itself is the result of a political configuration, both in its wording and in the state of its meaning. In this context, holding up the alternatives open by the legal scope would only mean to act on the basis of that political configuration from which the state of the law is the reflection. But the very fact of fully exercising the result of such configuration instead of submitting to the new political circumstances, shows that the Secretary-General is not following the politics of the moment, ie his political scope of action, but his previous “politically-established” legal scope. In short, upholding a political word translated into law, against the political pressure of the moment, means in fact to respect the law. The process at work here is, however, less clear. What is at stake are the very mechanisms through which law matters. We cannot enter here into a general discussion of such point, for it would lead too far away from our particular focus 103 103 . . Let Membiarkan us just point out that, in the precise case of the UN Secretary-General, the relevance of law rests mainly on the fact that, as an international organ, he owns his entire existence to law, and his legitimacy for action must be sought above all in the pursuance of the principles of the UN Charter. Thus, if we were to give names to the processes at work here, legal legitimacy and reciprocity would be reasonable possibilities. Moving on now to subtype 2.B , it points to cases where the political constraints are strong enough to actually narrow the legal range of action of the Secretary-General. In such cases, though legally entitled to undertake a number of actions, only a few of them, or even none of them are politically realistic. The processes leading to this very frequent hypothesis have to be found on the political side of the equation. Again, it is difficult to identify one particular force preventing the Secretary-General from exercising his legal powers in a particular situation. The more realistic alternative in this regard is to explain such dynamics either through pure power politics or on the basis of domestic political constraints. The problem with Masalah dengan such characterization is that it is far too general and ambiguous. We hope however that

this latter vagueness, as well as the remaining uncertainties regarding other parts of the framework, will be dissipated, at least in part, by the case-studies exploration to which we now turn. 103 103 See the literature on International Regimes referred to supra , footnote 8.

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Page 48 Page 4839 39 P P ART ART T T HREE Exploring the practice: A case-studies approach

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Page 50 Page 5041 41 1. 1. Introductory remarks In the preceding sections we focused on the characterization of the political role of the Secretary-General and then presented an analytical framework to help understand how law and politics interact in the exercise of such role. It is now time to use this framework for the actual exploration of the practice. This exploration will take the form of a case studies analysis. The reason for such choice is very simple. The framework being structured into a small number of ideal-types, only through a case studies approach is it possible to illustrate the meanings made abstract in each type. As pointed out when presenting the framework, ideal-types neither have nor pretend to have a real existence. They are but analytical categories, the relevance of which is measured solely by their usefulness, ie by the extent to which they allow for an orderly and meaningful analysis of the actual practice. The two main types, with their respective outcomes or subtypes, are therefore but abstract representations of the different situations in which the Secretary- General may stand between law and politics as well as of the paths such situations may follow. ikuti. However, if the choice of the approach is not problematic, the approach itself presents, by definition, certain methodological difficulties. The main one is, without any doubt, how to justify the choice of one or the other case. There is no definitive solution to such a problem. The only real way out would be to treat all the existing cases. Whereas Sedangkan for the particular topic at hand this would not be unthinkable, for the number of cases lying under our operational definition of the Secretary-General's political role is limited, such a solution would go far beyond the reasonable scope of our study. It even seems to

go beyond the scope of far larger studies, as there is to this day no general study covering in some detail the overall involvement of the Secretary-General in peacekeeping and good offices since 1946. In short, we must choose. The next difficulty is then how to choose. We need a set of criteria to justify analysing some cases rather than others. Again, there are no definitive answers. It all depends on what the ambitions of the empirical study are. In our case, the intention of the framework is merely to provide a tool for an orderly and meaningful analysis of the practice. praktek. It is therefore not necessary that the framework explain all possible cases. What Apa counts is whether or not it can say something interesting of any case or not, ie whether it helps understand rather than predict the practice. In this context, the exploration would greatly benefit from including some of the major cases in which the Secretary-General was involved, especially those where the tension between law and politics seemed particularly strong. Another difficulty stems from the fact that the operational definition of the Secretary-General's political role includes two fields. One may expect from this a somewhat “symmetrical” presentation, namely a selection procedure ensuring that the number of cases of peacekeeping and of good offices be the same. Whereas, admittedly, this is a mainly aesthetical consideration, an unbalanced choice could be misleading in that

Page 51 Page 5142 42 the reader could think of the existence of “theoretical” reasons for such imbalance. The The fact that the framework presented has no predictive pretensions excludes however any such confusion. From a theoretical point of view, it would be very much the same to use only peacekeeping rather than good offices cases or vice-versa, provided the analysis of the cases selected is enhanced through the use of the framework. Of course, it would be more interesting to explore the usefulness of the framework both in cases of peacekeeping and of good offices. This is why we will accommodate the presentation to include both. A final but not less relevant difficulty is that case studies are often conducted separately case by case , which would leave the dynamic dimension identified in the preceding section out of the game. As a way to integrate this dimension into the analysis, we will seek to follow the evolution of both the legal and political scopes in subsequent years in order to observe the different processes of interaction at work. Let us introduce a caveat here. It should be noted that the purpose of such analysis is not to trace back the functional evolution of the Secretary-General's political role to the present day, but only to see how different moments of such evolution can be grasped in both its legal and political aspects. In the following pages, we will present a number of case-studies aimed at illustrating the functioning of the analytical framework proposed as well as the insights we may derive from its use. After exploring the practice, we will come back to the situation of the Secretary-General between law and politics in order to provide some guidelines for future reflection. 2. 2. The Secretary-General's political role in practice

2.1. 2.1. General remarks In a very suggestive as well as provocative statement, the eminent Anglo-Saxon legal scholar Louis Henkin recalls that “... almost all nations observe almost all principles of international law and almost all of their obligations almost all the time” 104 104 . . The Secretary- General's political role is not an exception to this general statement. Very often, politics and law go together. In such cases, the Secretary-General adopts a particular behaviour that is both perfectly legal and politically desired by States. When setting the framework, we referred to these unproblematic cases as level one situations. Here, the analysis of the legal scope goes in hand with that of the political scope, for both largely coincide. Law Hukum being fully effective, and no political constraints playing against the choice of a clearly legal alternative, the interaction between law and politics cannot be understood as a tension. ketegangan. It is however precisely when such interaction becomes conflictive that the Secretary-General finds himself between law and politics. In what follows, we will only 104 104 HENKIN, L., How Nations Behave , Columbia University Press, New York, 1979, p. 47. 47.

Page 52 Page 5243 43 concentrate on cases where tension between law and politics are manifest, that is on what has been referred to as levels two and three . The position of the Secretary-General in such cases has been elegantly described by Javier Perez de Cuéllar. Let us quote, once again, the metaphor he used in his Oxford lecture: “Anyone who has the honor to be cast Secretary General has to avoid two extremes in playing his, or her, role. On one side is the Scylla of trying to inflate the role through too liberal a reading of the text: of succumbing, that is, to vanity and wishful thinking. On the other is the Charybdis of trying to limit the role to only those responsibilities which are explicitly conferred by the Charter and are impossible to escape: that is, succumbing to modesty, to the instinct of self-effacement, and to the desire to avoid controversy. There are, thus, temptations on both sides. Both are equally damaging to the vitality of the institution. I submit that no Secretary-General should give way to either of them” 105 105 . . These words of a holder of the Office show strikingly well the legal difficulties of acting between law and politics . The mythological monsters Scylla and Charybdis were in reality very dangerous streams. Comparing these streams to the forces governing international affairs, we could then say that even if a Secretary-General is a good enough navigator to sail across them, his direction will be undoubtedly affected by their force. Whether a Secretary-General tends to enlarge his role or, on the contrary, to minimise it will heavily depend on world affairs at that time. However, the legal powers and competences of the Secretary-General cannot so easily change. This is the start-point for both types 1 and 2 , and the outcomes of such tension are described by their corresponding subtypes . We will divide the presentation in two main parts, each focusing on one of the basic types. Within each part, a number of episodes or

“bites” on the practice continuum will be analysed in order to illustrate the passage from basic types to subtypes. For the sake of clarity, we have preferred to pursue the analysis from level two to level three in the same section, the transition from basic types to subtypes being thus assimilated to the passage from the “static” level two to the “dynamic” level three. Legal analysis will be integrated as part of the process description. This choice has the advantage of situating the “traditional” approach in legal scholarship, namely interpretation, within a larger framework, as one among several other processes characterizing the interaction between the Secretary-General's legal and political scopes of action. tindakan. 2.2. 2.2. When politics goes beyond law: exploring type 1 2.2.1. 2.2.1. The conquest of an independent good offices role ( subtype 1.A ) From the very beginning of the Organization, the holders of the Office have tried to assert an independent diplomatic role. Already in September 1946, when the Security 105 105 PEREZ DE CUELLAR, J., The Role of the UN Secretary-General in Roberts, A., Kingsbury, B. (eds.), United Nations, Divided World , The UN's Roles in International Relations, 2nd edn., Clarendon Press, Oxford, 1993, p. 126. 126.

Page 53 Page 5344 44 Council was considering the alleged communist infiltration in Greece's northern frontier, Trygve Lie claimed an independent power of investigation separate from that of the Council: “I hope the Council will understand that the Secretary-General must reserve his rights to make such enquiries or investigations as he may think necessary, in order to determine whether or not he should consider bringing any aspect of this matter up to the attention of the Council under the provisions of the Charter” 106 106 . . This line of action was confirmed by his initiatives in the October 1948 Berlin crisis as well as in the Korean conflict. konflik. However, the essential political confirmation of such independent diplomatic role came five years later when, in relation to the 1955 Sino-American crisis, Dag Hammarskjold acted on his own authority to obtain the release of a number of American prisoners. Such modus operandi came to be known as the “Peking formula”. In order to situate the analysis at level two, under type 1 of the framework , it is first necessary to show how the Secretary-General's political scope of action seemed to open legally dubious alternatives. In this particular case, Hammarskjold considered that acting on the basis of the mandate given to him by the General Assembly would have reduced the mission's chances of success. Indeed, Resolution 906 (1954), after condemning: “as contrary to the Korean Armistice Agreement, the trial and conviction of prisoners of war illegally detained after 25 September 1953” requested the Secretary-General: “… in the name of the United Nations, to seek the release, in accordance with the Korean Armistice Agreement, of these eleven United Nations Command personnel, and all other captured personnel of the United Nations Command still detained” and “… to make, by the means

most appropriate in his judgement, continuing and unremitting efforts to this end” 107 107 . . The Chinese communist government had strongly reacted against this resolution, declaring, through the voice of Chou En-lai : “no amount of clamor on the part of the United States can shake China's just stand of exercising its own sovereign right in convicting the United States spies” 108 108 . . In such circumstances, Hammarskjold took the legally dubious stance of dissociating himself from his mandate, claiming an independent say in peace and security issues. There is nothing in the Charter granting such power to the Secretary-General. Article 98 states that the Secretary General: “… shall perform other functions entrusted to him by these bodies (the General Assembly and the Council)”. But, can he refuse to perform a mandate, taking the liberty of choosing an alternative way? Legally speaking, this would be highly contestable, especially if we take into account that, replying to a letter of Henry Cabot Lodge Jr. asking him to get personally involved, Hammarskjold himself had pointed out that if he was requested by the Assembly to undertake a negotiation under Article 98 of the Charter he “clearly could not refuse” 109 109 . . 106 106 Security Council Official Records , 70 th th meeting, 20 September 1946, p. 404, cited in FRANCK, Th., NOLTE, G., The Good Offices Function of the UN Secretary-General in ROBERTS, A., KINGSBURY, B., United Nations, Divided World , Clarendon Press, Oxford, 1993, p. 144. 144. It is interesting to mention that the Secretary-General's claim was encouraged by the representative of the Soviet Union. 107 107 Cf. General Assembly Official Records , 509 th th plenary meeting, 10 th th December 1954. 108 108 UN Doc. A/2889 cited in URQUHART, B., Hammarskjold , Alfred A. Knopf, New York, 1972, pp. 102-103. 109 109 Ibid ., p. 99. 99.

Page 5445 45 From a political point of view, however, Hammarskjold had prepared the ground meticulously. Of the several steps taken in this regard, let us just mention two, in our view

particularly suggestive. Knowing that, for domestic reasons, the US attached great importance to obtaining a resolution judgemental enough, he informed Lodge, on December 8 th th , of the way he intended to interpret the mandate the Assembly was likely to give him. As Brian Urquhart points out: “He did this in order to give the United States the chance to back down if it wanted to” 110 110 . . The resolution once adopted, he underlined that the phrase: “by the means most appropriate in his judgement”, introduced at the request of Western European delegations in connivance with Hammarskjold, applied to his mission in general 111 111 . . Since, no Secretary-General would acknowledge to be acting outside his legal powers, Hammarskjold needed this to legitimise his action before both the UN organs and, above all, before Chou En-lai. In his first meeting with the Chinese official, Hammarskjold put great emphasis on clarifying his position. Brian Urquhart, who had access to Hammarskjold's private notes on the meeting, writes: “(he) explained that in fulfilling his obligation to try to reduce international tensions anywhere in the world, the Secretary-General did not work for any one nation or even for a majority of nations as expressed in a vote in the General Assembly but under his constitutional responsibility for the general purposes set out in the Charter, which were applicable to members and non-members of the United Nations alike. It was on this basis that he had come to Peking. The General Assembly resolution had brought to the fore a case where Hammarskjold had both the right and the duty to act as Secretary-General, but the Charter of the United Nations, not the condemnation of the General Assembly in its resolution of December 1o, formed the legal basis for his present visit ” 112 112 . . The January visit to Peking did not yield any concrete results. However, it established a first contact, and surely also a mutual respect between Hammarskjold and Chou En-lai, which in the following months will become very important. As a matter of fact, it was not until the American government understood that a face-saving solution for China was not only desirable but simply the only alternative way to a military intervention that concrete progress was made. Reducing the public pressure to the minimum, while increasing the private pressure to the maximum, that was the recipe for “quiet diplomacy”. And its very “quietness” also presented the advantage of leaving the Secretary-General's “diplomacy” out of the reach of legally motivated disturbances. In Dalam any case, as soon as public pressure decreased, the face-saving dimension of Hammarskjold's initiative became fully operational. In this last respect, it is interesting to note the wording of the confidential cable sent by Chou En-lai to Hammarskjold, through the Swedish Embassy in Switzerland, to announce the release of ten more prisoners. The The cable ran as follows: “… 2. The Chinese Government has decided to release the imprisoned US fliers. This release from serving their full term takes place in order to maintain friendship with Hammaskjold and has no connection with the UN resolution.

Chou En-lai expresses the hope that Hammaskjold will take note of this point. 3. 3. The The 110 110 Ibid ., p. 100. 100. 111 111 Ibid ., p. 101. 101. 112 112 Ibid ., p. 105 (italics added).

Page 55 Page 5546 46 Chinese Government hopes to continue the contact established with Hammarskjold. 4. 4. Chou En-lai congratulates Hammarskjold on his 50 th th birthday” 113 . . In this cable there is no question of the UN. The message is clearly addressed to Hammarskjold personally. The The Secretary-General will, for political correctness, keep the message secret. In his September 9 9 th th report to the General Assembly on the mission 114 114 , we find only a short review of major facts. After all, the Peking mission had been a striking political success, and as such, no one would seriously question the details of its legality. In the meantime, a precedent had been created. But a straight line needs at least two points to be drawn. A particular initiative cannot be seen as a “precedent” if the idea of a new rule has not yet come to mind. To Untuk resume with the terminology of our analytical framework, a type 1 situation such as the one described may end up in a subtype 1.A situation, namely in the enlargement of the UN Secretary-General's legal powers, and this through a process of interpretation. In Dalam international law, the rules of interpretation are clearly established both in customary and treaty law. The practice of interpretation is however more difficult to grasp. In many cases, it is indeed extremely difficult to say when a particular interpretation becomes the somewhat “accepted” meaning of a provision or set of provisions. This is especially the case when it comes to interpreting a document such as the UN Charter, which, by its own nature, desperately requires progressive interpretation to keep its relevance. In this case, Dalam hal ini, what we referred to as the “state of the law” is totally equated with what we called the “state of the meaning”, a notion that includes both a dimension of political acceptability and its formal recognition. In analysing the conquest of an independent good offices role for the UN Secretary-General, we must therefore look for some point where such role received a first formal recognition. In September 1958 Hammarskjold suggested to Dulles the possibility of using the “Peking formula” to find a way out of the deadlock over the offshore islands in the Taiwan Strait. This meant the acceptance by the great powers that the Secretary-General

was entitled under the Charter to intervene, on his own authority, in peace and security matters, even with regard to questions arising between non-members States. But the Tapi confirmation sought did not come 115 115 . . Of course, this does not mean that the approach itself was not considered as politically desirable, at least in some situations. Further Lebih lanjut confirmations of this point are to be found in Hammarskjold's intervention in the Laotian civil war, in the autumn of 1959 as well as in the way his construction made it possible to establish negotiations with South Africa regarding its racial policies. However, despite the usefulness of such increasingly admitted approach, the formal recognition element was still missing. 113 Unpublished document, cited in URQUHART, B., Ibid ., p. 126. 126. 114 114 UN Doc. A/2954, September 9 th th , 1954. 115 115 See URQUHART, B., op. cit ., pp. 130-131.

Page 56 Page 5647 47 For such recognition, we will have to wait until U Thant's involvement in the Bahrain affair 116 116 . . For the first time, the Security Council acknowledged a good offices initiative that U Thant had undertaken, based on the spirit of Article 99, without previously consulting it. The action of the Secretary-General did not go, however, without raising criticism from the Soviet Union. In a letter of 3 April 1970 117 117 , the Permanent Representative of the USSR complained about such modus operandi claiming that questions such as the Bahrain case fell within the competence of the Security Council. The letter emphasized, recalling two other letters dated 27 August 1966 118 118 and 19 March 1969 119 119 , , that such initiatives went against the provisions of the Charter under which all matters connected with the maintenance of international peace and security have to be decided by the Security Council. In spite of such criticism, the good offices initiative was in the end widely accepted by the parties to the dispute as well as by the international community. Indeed, on May 11 th th 1970, the Security Council unanimously adopted Resolution 278(1970) endorsing “the report of the Personal Representative of the Secretary-General”

and welcoming “the conclusions and findings of the report” 120 120 . . The affair of Bahrain is extremely interesting as a key moment of the process connecting type 1 to subtype 1.A . It Ini shows how the subtleties of establishing a “state of the meaning”, which is an indispensable step towards the actual enlargement of the Secretary-General's legal scope, is a profoundly political matter. The legal issue at stake here was whether the Secretary-General had an independent say in matters related to the maintenance of international peace and security or not. At the Pada heart of such interrogation lies the progressive interpretation of Article 99 of the UN Charter. Piagam. U Thant's reply to Soviet criticism spells out the legal argumentation on the basis of which, the Secretary-General tried to conquer an enlarged legal standing in political matters. In this reply, U Thant noted that from time to time States asked the Secretary- General to exercise his good offices considering that an amicable solution can thus be reached, and that the reception by the Secretary-General of such requests was conditioned by their consistence with the purposes and principles of the Charter as well as with the respect of the authority of the main organs. These conditions being met, the Secretary- General felt: “obligated to assist Member States in the manner requested, for to do otherwise would be to thwart a commendable effort by Member States to abide by a cardinal principle of the Organization, namely, the peaceful settlement of disputes” 121 121 . . Later in that year, once the Security Council had acknowledged his initiative, U Thant sought to enlarge the Bahrain precedent this time asserting a totally independent standing in peace and security matters. In an address to the Royal Commonwealth Society at London, he noted that: “There are some situations so serious that the Secretary-General himself may decide that his duty requires him to offer his good offices, even if no specific 116 116 For a detailed study of this case see JENSEN, E., The Secretary-General's use of good offices and the question of Bahrain in Millennium , 14/3, 1985, pp. 335-348. 117 117 UN Doc. S/9737, April 3 rd rd 1970. 1970. 118 118 United Nations Yearbook , 1966, p. 163. 163. 119 119 United Nations Yearbook , 1969, p. 146. 146. 120 120 Security Council Official Records , 1736 th th meeting, 11 th th May 1970.

121 121 Letter of 6 April 1970 from the Secretary-General, transmitting to the Security Council the reply dated 4 April 1970 to Permanent Mission of USSR, UN Doc S/9738, cited in United Nations Yearbook , 1970, p. 285.

Page 57 Page 5748 48 request for them has been made by the parties … Under the heading of good offices, I do not include, of course, the wide variety of tasks which the Secretary-General undertakes at the formal request of the General Assembly, the Security Council, and of the other main organs of the United Nations. Today I am speaking only of situations in which the Secretary-General has no formal mandate from one of the main organs ” 122 122 . . Although such interpretation is far from being absurd, it is maybe as far from being evident. There are no elements in the travaux préparatoires to support the idea that this function had been foreseen. Moreover, the first mediation functions were entrusted to commissions to which the Secretary-General was supposed to pay assistance. It was only after practice showed that the Secretary-General was in a better position to accomplish such functions, especially because of his impartiality and the non-collegial character of his office, that he could started to claim an autonomous good offices function. At that point, was it desirable, or even possible to renounce such useful alternative? The deadlock within the Security Council prevented it from exercising its primary function, thus leaving peace and security matters unattended. The Secretary-General was a credible alternative to fill this gap. In this context, a reappraisal of the “state of the law” appeared necessary. The wording of the Charter being untouchable, the adjustment variable was to be found on the “state of the meaning”. The legal basis for such autonomous action was eventually derived from Articles 33 and 99 123 123 . . The argumentation entails two different aspects: first, the recognition that the spirit of Article 99 gave the Secretary-General competence in matters of international peace and security; second, the link between such competence and Article 33 of the Charter, which obliges States, when a dispute arises, to: “… first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice”. With Dengan these two provisions, and taking into account that the Secretary-General must seek to promote the principles set by Article 2 of the Charter, including the peaceful settlement of disputes, it was possible to conclude that the Secretary-General's good offices function was clearly grounded in the Charter. The adjustment process characterizing the passage from type 1 to subtype 1.A

instead of to subtype 1.B will become increasingly clear in subsequent years, arguably reaching a point of no turning back. This is interesting for our purpose for it shows how the slow progression of law gives it a very solid character. The Secretary-General's good offices role developed, primarily, as a means of helping fill the gap left by a Cold War deadlocked Security Council. But once conquered, its legality as well as it legitimacy became autonomous of the political conditions underlying it. Even after the decline of the USSR, giving the Security Council a renewed life as well as the intention to resume its 122 122 Speech to the Royal Commonwealth Society on the Role of the Secretary-General, London, June 15 th th 1970, cited in CORDIER, A., HARRELSON, M. (eds.), Public Papers of the Secretaries-General of the United Nations, vol. VIII, U Thant, 1968-1971 , Columbia University Press, New York, 1977, p. 384 (italics added). 123 123 Cf. Cf. Introduction to the Annual Report, General Assembly Official Records , 25 th th session, supplement No 1A (A/8002, Add. 1) ; and more generally: PECHOTA, V., The Quiet Approach , UNITAR, New York, 1972.

Page 58 Page 5849 49 original role, it would have been almost impossible to question the legality of the Secretary-General good offices role. The involvement of Kofi Annan as a mediator rather than a good officer in the Cyprus affair, and the absence of legally motivated criticism on the part of Member States, offer a very good illustration of how solid the politically- driven expansion of the Secretary-General's role can be or, to extrapolate Marx's terminology, how superstructures may outlive changes in the infrastructure . The point of no turning back referred to above was arguably reached during the second mandate of Javier Perez de Cuéllar, and is embodied in General Assembly Resolution 43/51 (1988) of 5 December 1988 124 124 . . This Declaration on the Prevention and Removal of Disputes and Situations which may Threaten International Peace and Security and on the Role of the United Nations in this Field states in its paragraphs 20 and 21: “20. The Secretary- General, if approached by a State or States directly concerned with a dispute or situation, should respond swiftly by urging the States to seek a solution or adjustment by peaceful means of their own choice under the Charter and by offering his good offices or other means at his disposal, as he deems appropriate ; 21. The Secretary-General should consider approaching the States directly concerned with a dispute or situation in an effort to prevent it from becoming a threat to the

maintenance of international peace and security ” 125 125 . . The wording of these two paragraphs constitutes a clear acknowledgement of the legal standing claimed by previous incumbents. Javier Perez de Cuéllar will show how useful the legal acceptance of such role can be. While often seen as a dull and colourless personality, it is now widely recognized that the last years of Perez de Cuéllar's mandate strongly contributed to surmount the crisis of multilateralism that had led the United Nations to the border of the abyss. As Seperti George Lankevich puts it: “In ten years as a secretary-general, Perez de Cuéllar gained the trust and respect of the great powers while carving an independent place for the United Nations in international affairs. Taking full advantage of the decline in Soviet strength, the unheralded secretary-general managed to have the newly unified Security Council urge him to act in areas where he wanted to perform. As a result, issues once thought to be insoluble were settled, and he led the United Nations to its highest levels of accomplishment” 126 126 . . In a similar vein, Edward Newman points out that: “from a position of frustration and in some cases even irrelevance until 1986-7, the Secretaryship-General came to represent an organ of authority and facilitation in the roles of creative mediation, face-saving, and facilitation” 127 127 . . Of course, one cannot understand much of this late success without referring to the evolving political conditions in which Perez de Cuéllar deployed his action. However, it would be unfair to understate the capacity of the incumbent to take advantage of these political changes in order to settle a number of extremely delicate international conflicts, such as the Central-America conflict, the Iran- 124 124 General Assembly Official Records , 68 th th plenary meeting, 5 th th December 1988. 125 125 Italics added. 126 126 LANKEVICH, GJ, The United Nations under Javier Perez de Cuéllar, 1982-1991 , The Scarecrow Press, Maryland/London, 2001, p. vii-viii. 127 127 NEWMAN, E., The UN Secretary-General from the Cold War to the New Era: A Global Peace and Security Mandate? , Macmillan Press / St Martin's Press, London / New York, 1998, p. 107. 107.

Page 59 Page 5950 50

Iraq war or the Soviet occupation of Afghanistan, which had poisoned international relations until then. In this regard, what counts for our purpose is, again, to examine how the Secretary-General found the legal and political space for such successful action. The change in the USSR attitude towards the United Nations involvement in Cold War tainted conflicts can be seen, to a large extent, as part of a disengagement strategy. Whereas the geopolitical overstretch of the USSR was becoming more and more notorious, it was too costly for the Soviet government to simply abandon its role in a number of conflicts. The United Nations, and above all the Secretary-General, would fit here as a crucial face-saving instrument in the Soviet disengagement strategy. This, combined with Perez de Cuéllar's respectful attitude towards the Permanent Members in the first years of his mandate, as well as his prestige within the Third World movement, gave the Secretary-General a considerable political margin for diplomatic initiative. Moreover, the fact that the incitation stemmed from the General Assembly represented an additional face-saving element for the USSR for accepting the initiatives of the Secretary-General even in matters as important to its foreign policy as the Afghanistan issue. masalah. It must also be added, that the legal recognition of an independent good offices function for the Secretary-General implied both a conquest and a limitation . As Roberto Lavalle points out: “The precisely calculated dosage of specificity and vagueness that characterises the minicode brings within its compass all the autonomous activities undertaken by the Secretary-General prior to the adoption of the Declaration, but does not inhibit him from future use of his autonomous powers to undertake novel activities” 128 128 . . Such interpretation seems to be consistent with the travaux préparatoires , taking into account that, when presenting the project, the Chairman of the Special Committee in charge explained that: “the aim of paragraphs 20 to 24 (concerning the UN Secretary-General in particular) was to draw attention to the capabilities of the Secretary- General in taking preventive action” 129 129 . . To use a provocative metaphor, while “digesting” former practice, the aforementioned resolution carefully avoided ordering a “second dish”. Boutros Ghali's Agenda for Peace takes for granted the extent of the Secretary- General's legal powers in this respect, thus providing a further confirmation to the state of the law: “Mediation and negotiation can be undertaken by an individual designated by the Security Council, by the General Assembly or by the Secretary-General … While the mediator's effectiveness is enhanced by strong and evident support from the Council, the General Assembly and the relevant Member States acting in their national capacity, the good offices of the Secretary-General may at times be employed most effectively when conducted independently of the deliberative bodies …” 130 130 . . In many of the settlements successfully achieved by Perez de Cuéllar, and later on by Boutros Ghali, the legal and political scope of action seemed now to converge, reflecting 128 128 LAVALLE, R., op. cit ., p. 33. 33.

129 129 UN Doc. A/C.6/43/SR.19, paragraph 16, cited in Ibid ., p. 35 (italics added). 130 130 UN Doc. A/47/277 - S/24111, 17 June 1992, par. 37. 37.

Page 6051 51 the abstract traits of subtype 1.A . In Afghanistan and Cambodia the use of a Peking- formula modus operandi appeared particularly useful. If the episode recounted illustrates how our framework may be used to analyse a politically driven legal conquest, this does not mean that such conquest remained fully operational irrespectively of political circumstances. keadaan. It only shows how this is possible, or, more precisely, it only intends to provide an orderly and meaningful way to analyse this kind of phenomena. A different situation may indeed arise, when, despite such conquest, no political room is left to the Secretary-General to deploy his legal good offices powers. Such a situation could be better approached under type 2 and subtype 2.B . We will see how later on, using other examples. contoh. For the time being let us complete the analysis of basic type 1 by turning to its other outcome, namely subtype 1.B . 2.2.2. Reining in the Secretary-General : Lebanon, Yemen and Bosnia ( subtype 1.B ) Reflecting on Hammarskjold's first steps as a facilitator, Brian Urquhart points out: “Hammarkjold enormously enjoyed the challenge of the Peking experience. It stimulated in him a new taste and new ideas for using his office and his position to tackle difficult problems , and in later years he tended to recall it as a measure of the tension and quality of other crises. After August 1955 his style changed noticeably, as if, at the completion of the affair of the American prisoners in China on his fiftieth birthday, he had come of age as Secretary- General” 131 131 . . If the launching of an independent good offices role for the Secretary- General was, as we have seen in the preceding section, a great success, not every innovation introduced by Hammarskjold benefited from such a bright fate. For the analysis of these other cases, in which Hammarskjold's creativity and impetus were not matched by subsequent legal conquests, subtype 1.A is not adapted. In such cases, no process of legal integration seems to find its way through. Of course, every march towards legal recognition implies, as a necessary step, a transition characterized by legal vagueness. The consecration of an independent good offices role for the Secretary-General is, in this regard, no exception. However, there are initiatives that are so closely linked to the personality of the incumbent or to particular historical circumstances that, because of their exceptional nature, their regularization into legal powers seems less probable, unless similar conditions are met. In these cases, one cannot properly speak of law, nor of law in statu nascendi , for the prospects of legal recognition are too vague. The connection between type 1 and subtype 1 .B is intended to model precisely this kind of situation. The The processes at work are far less clear than in subtype 1.A and this either because they are of a political nature or because, having the ambition of being legal, they are too controversial. To summarize, the initiatives that fall under this category are of an exceptional kind and, as such, they cannot be easily regularized.

At this point, many cases come to mind. The crisis set off by the landing of American Marines in Lebanon in 1958 provides a first illustration. Facing a deadlocked Security Council, Hammarskjold decided independently to increase the UN Observer 131 131 URQUHART, B., op. cit ., p. 131 (italics added).

Page 61 Page 6152 52 Group in Lebanon in order to make it strong enough to replace the American presence. To justify his action before the Security Council he recalled what he had stated at the time of his re-election, namely that it was consistent with the philosophy of the Charter that the Secretary-General could act even without instructions from the Security Council or the General Assembly if necessary for the maintenance of international peace and security. keamanan. And he then added: “Were you to disapprove … of the way in which these intentions are translated by me into practical steps, I would, of course, accept the consequences of your judgement” 132 132 . . This remark has a two-fold interest. First, following the line previously adopted, the Secretary-General asserts a competence of principle to act in the interest of the world peace when the political organs are deadlocked. This Ini competence, although subject to disapproval of the organs, is put forward as the rule, the disapproval being the exception. The second point is subtler. Indeed, if the Security Council was deadlocked, how could it suddenly take a decision disapproving the Secretary-General's action? Hammarskjold had been encouraged by the fact that the Soviet veto on the Japanese draft followed a number of Soviet amendment proposals, among which there was one authorizing the enlargement of the Observation Group. In Dalam addition, the initiative comported a face-saving dimension for the retreat of American troops without jeopardizing security in Lebanon. In such conditions, the adoption by the Security Council of a decision disapproving Hammarskjold's initiative would have been, to say the least, quite unlikely. But these are all political arguments. Even the assertion of a general competence in peace and security matters, has no clear basis in the Charter. When analysing the development of the Secretary-General's good offices role, we saw that, still in 1970, such an independent competence remained controversial. A fortiori , one can conclude that granting to the Secretary-General the power of increasing the number of military observers on his own capacity was even more controversial. This conclusion is confirmed if we take into account the wording of the already cited General Assembly Resolution 43/51 (1988), from which such independent capacities where consciously excluded. Roberto Lavalle persuasively argues that the two major limitations for the autonomous political action of the Secretary-General remained unchanged 133 133 . . Indeed, nothing in the resolution entitles the Secretary-General to institute a peacekeeping force or a monitoring team with implicit peacekeeping functions without the authorization of the Security Council or the General Assembly. Moreover, as a “Declaration”, it would be very difficult to support the idea that the resolution “entrusts” the Secretary-General with a general mandate for the prevention and settlement of international conflicts, in the

sense of Article 98 of the Charter. In short, such initiative, though politically convenient at some particular moment, never received a clear legal recognition. One could still argue that the use by U Thant of this modus operandi provides a basis to invoke an amendment by subsequent practice. Indeed, between May and June 1963, the Secretary-General took the liberty of establishing, on his own initiative, a UN observer force to monitor the disengagement of foreign troops in Yemen. In three 132 132 Security Council Official Records , 837 th th meeting, 22 nd nd July 1958, paragraphs 10-18. 133 133 LAVALLE, R., op. cit ., pp. 33 seq.

Page 62 Page 6253 53 consecutive reports 134 134 , he informed the Security Council of the different modalities, including the mandate he had himself given to the force and proceeded to send a small team of Yugoslav military borrowed from UNEF, later joined by another small team of Canadian military. But such an argument would be fairly persuasive. First of all, U Thant's initiative did not go unnoticed. The Soviet delegation made it clear enough that, under the Charter, the measures adopted by the Secretary-General were within the competence of the Security Council 135 135 . . Whereas, from a political point of view the way was open for the Secretary-General to pursue his initiative, from a legal point of view, the Council did not intend to consider it as part of the Secretary-General's legal powers. Security Council Resolution 179 (1963) 136 136 is therefore to be interpreted not as a legal confirmation of a fait accompli but rather as a reminder of who holds the reins in the matter. Moreover, to invoke an amendment by subsequent practice, it would be necessary not only to clearly state the provision concerned and the content of the amendment, but also, and perhaps above all, to justify the very possibility of such legal device. Though legal argumentation remains possible, this is but a further confirmation that the legal standing of such practice remains highly controversial. This first case thus shows how a type 1 situation may not lead to a subtype 1.A outcome. Under subtype 1.B , it may be both more suggestive and more accurate to speak of a “doctrine”, ie a particular conception of his office that an incumbent tries to assert 137 137 . . U Thant had been clearly inspired by Hammarskjold’s initiative during the 1958 Lebanon crisis. Although not a legal power pertaining to the Secretary-General, resorting to such a political precedent constituted a somewhat middle

ground between illegality and legality. More precisely, resorting to a political “doctrine” may be an alternative way of finding legitimacy both for the particular action undertaken and for the attempt of legal justification of such action. Subtype 1.B can also be a useful tool for approaching some aspects of the Secretary- General's involvement in Bosnia and Herzegovina. Indeed, to the exception of the Congo and Somalia crisis, never had the Secretary-General been so closely involved in military operations than in Yugoslavia. Yet, the legal justification of such novelty has no other possibility but to be derived from the same old Charter framework that has governed the Secretary-General's political role since its inception. For our purpose, what is interesting is to focus, again, on how a political “doctrine” may be advanced by an incumbent to gain legitimacy for legally dubious action. As before, let us first subsume the situation under basic type 1 , showing how the Secretary-General's political space seemed wider than what was legally well established. At the beginning of Boutros-Ghali's tenure, great enthusiasm as to the new possibilities of the United Nations seemed to characterize the international public opinion. pendapat. Referring to this period, Edward Neumann points out that: “Boutros-Ghali was in many ways suited to an environment which offered the UN and the Secretaryship- 134 134 UN Doc S/5321, 27 th th May 1963; UN Doc S/5325, 3 rd rd June 1963; UN Doc S/5325, 7 th th June 1963. 135 135 Security Council Official Records , 1039 th th meeting, 8 th th June 1963. 136 136 Security Council Official Records , 1039 th th meeting, 11 th th June 1963. 137 137 See for instance: LASH, JP, Dag Hammarskjold's Conception of his Office in International Organization , 16/3, 1962, pp. 542-566.

Page 63 Page 6354 54 General opportunities to increase their activity in international peace and security. The The

post-Cold War period, at least initially, was such that the personality of the incumbent could help to shape the post-Cold War model of the Secretaryship-General” 138 138 . . Meeting for the first time at the level of Heads of State and Government, the Security Council invited the UN Secretary-General, through the voice of his President, the British Prime Minister John Major: “… to prepare, for circulation to the Members of the United Nations by 1 July 1992, his analysis and recommendations on ways of strengthening and making more efficient within the framework and provisions of the Charter the capacity of the United Nations for preventive diplomacy, for peacemaking and for peacekeeping” 139 139 . . Furthermore: “The Secretary-General's analysis and recommendations could cover the role of the United Nations in identifying potential crises and areas of instability as well as the contribution to be made by regional organizations in accordance with Chapter VIII of the United Nations Charter in helping the work of the Council. They could also cover the need for adequate resources, both material and financial. The Secretary-General might draw on lessons learned in recent United Nations peacekeeping missions to recommend ways of making more effective secretariat planning and operations. He could also consider how greater use might be made of his good offices, and of his other functions under the United Nations Charter” 140 140 . . This document was seen, at the time, as a full endorsement of the UN Secretary-General's role with regard to international peace and security. keamanan. Not only did it acknowledge the relevance of the Office in peacekeeping and good offices, but it also placed the Secretary-General in a pivotal strategic role in these fields. As stated in the conclusion: “... the members of the Security Council … agree that the United Nations Secretary-General has a crucial role to play … They welcome the new Secretary-General, His Excellency Dr. Boutros Boutros-Ghali, and note with satisfaction his intention to strengthen and improve the functioning of the United Nations. They pledge their full support to him , and undertake to work closely with him and his staff in fulfilment of their shared objectives, including a more efficient and effective United Nations system” 141 141 . . The result of such request is widely known, and came in the form of a report that Boutros Ghali presented in June 17 th th 1992 under the name An Agenda for Peace 142 142 . . Of this widely heralded document, which can be seen as Boutros Ghali's “doctrine”, we will only focus on one particular point 143 143 , namely the suggestion that the number one rule of peacekeeping, ie the consent of the host State, may be by-passed if necessary. Indeed, in paragraph 20 of the Agenda , peacekeeping is defined as: “… the deployment of

a United Nations presence in the field, hitherto with the consent of all the parties concerned , normally involving United Nations military and/or police personnel and frequently 138 138 Ibid ., p. 111. 111. 139 139 Note by the President of the Security Council, 31 st st January 1992, UN Doc. S/23500. 140 140 Idem. 141 141 Idem. (italics added). 142 142 An Agenda for Peace , UN Doc. A/47/277 - S/24111, 17 June 1992. 143 143 Regarding peace-keeping, the Agenda calls, among others: for an improvement of the financial mechanisms through which peace-keeping operations are supported (par. 38 and Chapter IX); for the conclusion of stand-by agreements making troops available directly to the Organization (par. 51); for the innovative idea of preventive deployment (par. 28-32); for the creation of peace-enforcement units under the command of the UN Secretary- General (par. 44).

Page 64 Page 6455 55 civilians as well. Peacekeeping is a technique that expands the possibilities for both the prevention of conflict and the making of peace” 144 144 . . The traditional frontiers of peacekeeping are further blurred in later paragraphs, to a point where it is impossible not to recall the Congo experience. Indeed, Boutros Ghali's proposal to create peace- enforcement units under command of the Secretary-General “as in the case of peacekeeping forces” 145 145 , as well as the inclusion of peace-enforcement under the label peace-making, put many States en garde against repeating the mistakes of the past. Especially, taking into account that, according to paragraph 45 of the Agenda: “…there may not be a dividing line between peacemaking and peacekeeping”. In this regard, a perceptible change in tone is noticeable already in the reactions of the General Assembly and the Security Council 146 146 to the propositions made in An Agenda for Peace . Resuming with the terminology of the framework, the efforts of Boutros Ghali to enlarge his legal powers did not yield, for the time being, a subtype 1.A outcome. Subtype

1.B provides here an analytical category best suited to approach and understand how the political space open by the end of the Cold War did not flourish, at least in this regard, into a legal conquest for the Secretary-General. Here, the case of Bosnia and Herzegovina provides an interesting illustration of the boom-bust pattern characterizing subtype 1.B . Among the different issues raised by the Yugoslav crisis 147 147 , we would like to focus our attention particularly on one, which we consider as the most controversial issue regarding the Office of the Secretary-General. We refer to the Secretary-General's involvement with the North Atlantic Treaty Organization (NATO) in Bosnia and Herzegovina and, more precisely, to the military capabilities which were vested in him. The position of the UNPROFOR mission became increasingly difficult during 1993 and 1994. 1994. In June 1993, the Security Council, acting under Chapter VII of the UN Charter, decided that: “Member States, acting nationally or through regional organizations or arrangements, may take, under the authority of the Security Council and subject to close coordination with the Secretary-General and UNPROFOR, all necessary measures, through the use of air power, in and around the safe areas in the Republic of Bosnia and Herzegovina, to support UNPROFOR in the performance of its mandate …” 148 148 , requesting the Secretary-General: “… in consultation, inter alia, with the Governments of the Member States contributing forces to UNPROFOR: a. To make the adjustments or reinforcement of UNPROFOR which might be required by the implementation of the present resolution, and to consider assigning UNPROFOR elements in support of the elements 144 144 Italics added. 145 145 Par. 44. 44. 146 146 The official reaction was given in General Assembly Resolutions 47/120 A and B, adopted on 18 December 1992 and 20 September 1993, respectively, as well as in a number of Security Council presidential statements and letters. 147 147 For further detail on the UN's experience in Yugoslavia see: BENNET, C., Yugoslavia's Bloody Collapse. Causes, Course and Consequences , Hurst, London, 1995; GRAY, C., Bosnia and Herzegovina: Civil War or Inter-State Conflict? Characterization and Consequences in British Year Book of International Law , 67, 1996, pp. 155-195; HIGGINS, R., The New United Nations and Former Yugoslavia in International Affairs , 69/3, 1993, pp. 465-485; WELLER, M., Peacekeeping and Peace-Enforcement in the Republic of Bosnia and Herzegovina in Zeitschrift für ausländisches öffentliches Recht und Völkerrecht , 59, 1996, pp. 70-177.

148 148 Resolution 836 (1993), Security Council Official Records , 3228th meeting, 4 th th June 1993, par. 10. 10.

Page 65 Page 6556 56 entrusted with protection of safe areas, with the agreement of the Governments contributing forces” 149 149 . . At the same time, the Council: “Call(ed) upon Member States to contribute forces, including logistic support, to facilitate the implementation of the provisions regarding the safe areas … and invite(d) the Secretary-General to seek additional contingents from other Member States” 150 150 . . In this context, the NATO Council eventually approved a series of Operational Options for Air Strikes in Bosnia and Herzegovina stating, in particular, that: “… the Council agrees with the position of the UN Secretary-General that the first use of air power in the theatre shall be authorized by him ” 151 151 . . This commitment was later confirmed at the Ministerial Meeting of the North Atlantic Council, in January 1994 152 152 . . The Secretary-General was thus put into a key policy-making as well as military position with regard to the Bosnian conflict. However, as a former UN senior officer pointed out: “giving orders as to whether or not people should be killed has serious implications: this has enhanced the role of the Secretary-General, but in my opinion it also threatens the role of the Secretary-General” 153 153 . . The case requires indeed careful legal as well as political consideration in order to determine whether or not the Secretary-General's powers were enlarged so as to cover such actions. Of course, he was entitled in practice, but should we conclude from this the existence of a legal conquest? Beyond any personal crusade, Boutros Ghali's efforts to develop the political role of the Secretary-General were above all motivated by his belief that in some cases an element of enforcement is needed to keep the situation stable. In one of his reports to the Security Council on the situation in Bosnia and Herzegovina, after pointing out that: “the perception in many quarters is that the disastrous situation … is due to the Force's failure to enforce the will of the international community ”, the Secretary-General observed that: “64. The The absence of a clear enforcement mandate in the Council's resolutions on Bosnia and Herzegovina, notwithstanding their frequent references to Chapter VII, and the Council's reluctance to authorize the additional troops that I have judged necessary to enable it to perform even its peace-keeping functions … permit one to conclude that the Council’s

answer to the above question is that, so far, it has wished UNPROFOR to be a peace- keeping operation. 65. 65. If that remains the Council's wish, the consequence is that, like all peacekeeping operations, UNPROFOR will be able to carry out its mandate only if it enjoys, on a continuous basis, the consent and cooperation of the warring parties. Given Mengingat 149 149 Ibid ., par. 7. 7. 150 150 Ibid ., par. 8. 8. 151 151 Decision taken at the meeting of the North Atlantic Council on 9th August 1993, par. 1, Press release (93)52 (italics added). 152 152 “We reaffirm our readiness, under the authority of the United Nations Security Council and in accordance with the Alliance decisions of 2 and 9 August 1993, to carry out air strikes in order to prevent the strangulation of Sarajevo, the safe areas and other threatened areas in Bosnia-Herzegovina”, Declaration of the Heads of State and Government at the Ministerial Meeting of the North Atlantic Council, Brussels, 10-11 January 1994, par. 25, Press Communiqué M-1(94)3. 153 153 Interview conducted by Edward Newman with a former senior member of the Executive Office of the Secretary-General (New York, June 1994), cited in NEWMAN, E., op. cit ., p. 135. 135. Apparently, the official interviewed is former UN Assistant Secretary for General Political Affairs, Giandomenico Picco, who had stated elsewhere that: “The roles of the Secretary General and the Security Council are and should be kept separate to be of maximum benefit to the international community … (since) … The institution of the Secretary General is inherently inappropriate to manage the use of force”, PICCO, G., The UN and the Use of Force. Leave the Secretary-General Out of It in Foreign Affairs , 73/5, September/October 1994, p. 15. 15.

Page 66 Page 6657 57 their lamentable record in this respect, it is important to avoid creating unrealistic expectations of what the Force can achieve” 154 154 . . Contrary to Hammarskjold's approach in Congo, Boutros Ghali was asking to be put into the position of leading a peace-enforcement operation, in order to “enforce the

will of the international community”. In February 1961, after the Security Council adopted Resolution 161 (1961) 155 155 authorizing all necessary measures to prevent civil war : “including … the use of force, if necessary, in the last resort” 156 156 , Hammarskjold had all the same maintained that: “United Nations troops should not become parties to armed conflict in the Congo. The basic intention of the resolution is, in my opinion, the taking of all appropriate measures for the purposes mentioned, resort being had to force only when all other efforts such as negotiation, persuasion or conciliation were to fail. If following such efforts – or measures taken in support of their result – United Nations troops engaged in defensive action, when attacked while holding positions occupied to prevent a civil war risk, this would not, in my opinion, mean that they became party to a conflict; while the possibility of becoming such a party would be open, were troops to take the initiative in an armed attack on an organized army group in the Congo ” 157 157 . . The contrast of the two approaches makes clearer the novelty of Boutros Ghali's view. He did want a peace- enforcement operation to be carried out and he assumed the conduct of military operations. operasi. In a press conference in The Hague, on January 21 st st 1994, he had declared that he: “favored the use of air power and was ready to give the green light if asked” 158 158 . . But as he seems to recognize in the preceding report, written long after the adoption of Security Council Resolution 836 (1993) that had put him into the position of using NATO air power, no clear peace-enforcement mandate arose from the Security Council resolutions. However, from February 1994 to September 1995 the Secretary-General asked and obtained the use of NATO's air power 159 159 . . The two questions that we must answer are then: was his use of such powers legally grounded in the Charter? Whether the Apakah answer is positive or negative, we still need to know if this has expanded the Secretary- General's legal scope of action. Assessing the legal standing of this action is a very complex task. Indeed, everything appeared to be duly authorized. If we accepted this view, we would be concluding to a subtype 1.A outcome. If, on the contrary, we rejected this view, subtype 1.B would be a closer category. Naturally, in both cases what really matters is the analysis. In this section, Pada bagian ini, we have preferred to follow the second path and this because, in our opinion, the powers granted to Boutros Ghali in the Bosnian crisis were too heavily dependent on both the personality of the incumbent and the particular political circumstances of the conflict.

154 154 UN Doc. S/1995/444, paragraphs 61, 64 and 65, respectively (italics added). 155 155 UN Doc. S/4741, 21 st st February 1961. 156 156 Part A, par. 1. 1. 157 157 UN Doc. S/4752, Annex VII, 27 th th February 1961 (italics added). 158 158 Cf BOUTROS GHALI, B., Unvanquished. A US – UN Saga , IB Tauris Publishers, London / New York, 1999, p. 143. 143. Here, the author also points to an interview he gave to The New York Times , where he stated: “Everyone in Europe thinks I'm blocking the use of air power in Bosnia. But I'm not, if my advisers want to use it”. 159 159 In April 9 th th 1994, Boutros Ghali: “… instructed the UN forces to use 'all available means' to get the Serbs to pull back to positions held before this latest offensive (against Goražde)”, Ibid ., p. 147. 147.

Page 67 Page 6758 58 This means that, in accordance with subtype 1.B , the exceptional nature of such powers would prevent them from becoming a regular part of the Secretary-General's legal scope of action. But there are good reasons to believe that Boutros Ghali's action was legally unfounded. tidak berdasar. In this regard, let us first note that, unless a clarification is provided by the corresponding deliberative body, mainly the Security Council, the Secretary-General has the power to interpret the mandates conferred to him in the limits of good faith, and his interpretation cannot be challenged by Member States outside the appropriate deliberative organs. organ. As a rule, command and control over peacekeeping forces has been delegated to the Secretary-General in virtually all cases 160 . . However, in Bosnia, the Secretary-General was in charge of more than a mere peacekeeping operation. But can we speak of a peace- enforcement situation? In the already cited report, the Secretary-General seems to conclude in the negative. To address this question from a legal perspective, it is first necessary to carefully distinguish between the contexts of peacekeeping and peace- enforcement given that the powers of the Secretary-General are substantially different depending on whether he acts in one or the other context. The distinction can be traced back to the important report of Hammarskjold on the

experience of UNEF, where the former Secretary-General, discussing the right to self- defence, introduced a distinction based on whether the operation could take the initiative of using force or not: “ … the rule is applied that men engaged in the operation may never take the initiative in the use of armed force , but are entitled to respond with force to an attack with arms, including attempts to use force to make them withdraw from positions which they occupy under orders from the Commander, acting under the authority of the Assembly and within the scope of its resolutions. The basic element involved is clearly the prohibition against any initiative in the use of armed force” 161 161 . . Speaking of his position with regard to the Bosnian conflict, Boutros Ghali reaffirmed this difference distinguishing between: “… close air support , which involves the use of air power for the purposes of self-defence, and air strikes , which involves the use of air power for pre- emptive or punitive responses” 162 162 . . Although what is mainly at stake in both texts is the right of a peacekeeping mission to self-defence, the distinction drawn shows also the limits set for the use of force by peacekeeping operations. The Secretary-General cannot decide independently that a peacekeeping force will carry out military measures amounting to peace-enforcement. For such precise policy-making decision, the Secretary- General needs an express authorization from the Security Council. But here again, law and politics are extremely intertwined. Indeed, as we said before, unless a clarification is expressly provided by the original deliberative body, the Secretary-General has the power 160 Professor Suy sees here a rule of international customary law conferring on the UN Secretary-General the legal right to manage peacekeeping operations : “The role of the Secretary-General has also become better defined. Under the authority of the organ which decides to send the force, ie, the Security Council, he is responsible for the command and administration of the peacekeeping operations. Although he has acted in a fairly autonomous way in the past, there has been a clear development, particularly over the last twenty years, of very close co-operation between the Secretary-General and the Security Council in the form of regular reports and permanent dialogue. Thus, it may be maintained that a rule of customary law has been established which confers control over the Secretary-General in his day-to-day tasks as head of the peacekeeping forces to the Security Council”, SUY, E., Legal Aspects of UN Peace-keeping Operations in Netherlands International Law Review , 3, 1988, p. 319. 319. 161 161 Report to the General Assembly of 9 October 1958, UN Doc. A/3943, par. 179. 162 162 UN Doc. S/1994/94, p. 2. 2.

Page 68 Page 6859 59 to interpret the mandate given to him, which means that the precise nature of the measures necessary to accomplish the mandate are also a matter of interpretation. In Bosnia, the distinction between the notions of “close air support” and “air strikes” was very important for determining the Secretary-General's legal position. NATO's Operational Options for Air Strikes in Bosnia and Herzegovina , itself a consequence of Security Council Resolution 836 (1993), put the Secretary-General's finger on the trigger 163 163 . . But the precise way in which this position was used did not always remain within the Secretary-General's legal scope of action. Indeed, while in the case of “close air support”, subsumed under the broad context of peacekeeping, the Secretary-General had good grounds to claim that the terminology used by Security Council Resolution 836 (1993) 164 164 required his authorization for the use of force, this same claim was, from a legal perspective, excluded with regard to air strikes. As Danesh Sarooshi points out : “ … a delegation of such an important power (the power to authorize air strikes) should be made in express terms by the Council” 165 165 . . In other words, from a strictly legal point of view, the Secretary-General cannot order a measure going beyond his peacekeeping powers unless the Council has delegated such power expressly 166 166 and specifically 167 167 to untuk him. dia. This comes from the fact that when the Security Council proceeds to such a delegation of powers, it acts itself on behalf of the States Members of the United Nations, from which it derives its authority. Besides, this point did not go unnoticed. The Russian delegation considered that, in the words of the Secretary-General: “any use of force in Bosnia and Herzegovina should be subject to prior consultations by the SG with the members of the Security Council and that only after such consultations should a decision be made to seek enforcement assistance from any source, including NATO” 168 168 . . According to Boutros Ghali himself, the Russian government was upset because: “… an ultimatum (the accepted request for the use of air strikes by NATO) had been issued without a Security Council vote, thereby depriving Russia of the use of its veto” 169 169 . . In Dalam 163 163 For a detailed, though necessary subjective, review of the politics surrounding the “dual-key” debate see:

BOUTROS GHALI, B., op. cit ., 1999, pp. 141 et seq. 164 164 In paragraph 10 of Resolution 836 (1993) the Security Council: “Decides that … Member States, acting nationally or through regional organizations or arrangements, may take, under the authority of the Security Council and subject to close coordination with the Secretary-General and UNPROFOR, all necessary measures, through the use of air power, in and around the safe areas in the Republic of Bosnia and Herzegovina, to support UNPROFOR in the performance of its mandate set out in paragraphs 5 and 9 above”. Paragraphs 5 and 9 refer, using the terminology introduced above, to close air support and air strikes respectively. Paragraph 11 of this same resolution further: “Requests the Member States concerned, the Secretary-General and UNPROFOR to coordinate closely on the measures they are taking to implement paragraph 10 above and to report to the Council through the Secretary-General”, Security Council Official Records , 3228 th th meeting, 4 th th June 1993 (italics added). 165 165 SAROOSHI, D., The United Nations and the Development of Collective Security , Clarendon Press, Oxford, 1999, p. 83. 83. 166 166 According to the European Court of Justice, in the case Meroni v. High Authority: “… (a) delegation of powers cannot be presumed and even when empowered to delegate its powers the delegating authority must take an express decision transferring them”, Case 9156, ECR 133 (1958), cited in Ibid ., p. 9. 9. 167 167 “As such, a general delegation of powers does not apply in the case of UN organs, since an effective transfer of power in these cases requires a degree of specificity”, Ibid ., p. 10. 10. Sarooshi then adds that: “ The main advantage of a specific delegation of powers to UN Member States as opposed to a general delegation is that the former provides, in the context of military enforcement action, a basis for an effective command and control process”. This Ini is also applicable mutatis mutandis to a delegation in favour of the Secretary-General. 168 168 UN Doc. S/1994/50, p. 2, cited in Ibid ., p. 84. 84. 169 169

BOUTROS GHALI, B., op. cit ., 1999, p. 145. 145.

Page 69 Page 6960 60 short, there are different uses of air power, and not all of them can be undertaken by the Secretary-General without an express and specific delegation of powers. Only those falling within the scope of peacekeeping are part of the Secretary-General's legal powers. Those beyond such scope, require an express and specific authorization. That gives us a first answer to the question stated above. The Secretary-General's precise action, though politically possible, remained legally dubious. As to the second question, namely whether the Secretary-General's action operated an enlargement of his legal powers or not, let us just note two main points. First, in recent years a trend has emerged tending to enlarge what falls within the scope of peacekeeping, thus enhancing the Secretary-General's peacekeeping-related military capabilities. Based Berdasarkan on the fact that the consent given by States for the deployment of a peacekeeping operation was in the new context limited in many respects, a political midway between peace-keeping and peace-enforcement has developed in the idea of what Marrack Goulding calls “forceful peacekeeping”. In the words of the former head of the Peacekeeping Department: “The new doctrine is based on recognition of the fact that the parties' consent to a peacekeeping operation is often less than perfect. The leaders of the hostile parties may have given their consent but because of weak chains of command, internal disputes or dishonesty on the part of the leaders, the commander of the UN operation cannot be confident that he can rely on full consent. In these circumstances an operation can now be authorized to use force, if necessary, to achieve objectives that have been agreed by the parties. In Sierra Leone, for instance, the mandate of the present UN operation authorizes it to use force, if necessary, in order to protect humanitarian operations, prevent gross violations of human rights, guard key installations and keep communications open” 170 170 . . Thus, the new doctrine no longer places the distinction between peacekeeping and peace-enforcement on the actual initiative to use force, but on the fact that the use of force remains impartial or not. By the same token, the peacekeeping rule requiring the consent of the host State is put under severe pressure. Boutros Ghali's doctrine, as explained in his Agenda for Peace and developed in practice, founds here an interesting echo. However, for the time being, this remains a political doctrine, which, though unquestionably useful in some particular cases, it is no less dangerous, were it to become the rule on the matter. Our second point, which is intimately related to the first, refers to the increasing reluctance of great powers towards Boutros Ghali's conception of his office. The caution expressed already in the reactions of the General Assembly and the Security Council to the Agenda for Peace was indeed to turn into reluctance, and sometimes even hostility, in the years to come. The Supplement to An Agenda for Peace 171 171 , clearly reflects the changing environment. lingkungan. Not only does the Secretary-General strongly moderate his original

ambitions, but he even dares to criticize “the increasing tendency in recent years for the 170 170 GOULDING, M., The United Nations and Peace since the Cold War: success, failure or neither?, Europaeum Lecture delivered at the Graduate Institute of International Studies, Geneva, April 8 th th 2003, p. 9. 9. 171 171 UN Doc. A/50/60 – S/1995/1, 3 January 1995.

Page 70 Page 7061 61 Security Council to micro-manage peacekeeping operations” 172 172 . . In this regard, one cannot help making a parallelism between the controversial American veto on Boutros Ghali’s renewal and the USSR's hostility against Hammarskjold in the first year of the Congo crisis 173 173 . . This would mean that, though a new political doctrine regarding the limits of peacekeeping may be in progress, States do not intend to have a defiant Secretary-General to capitalize on it. More precisely, it may well be that such doctrine is itself the result of both the positive and negative aspects of Boutros Ghali's tenure, for the enlargement it purports is equated with the far more moderate style of Mr Annan. This conclusion is, for the rest, consistent with the differing State perception of Boutros-Ghali and Kofi Annan. Whereas some may have seen a “New Hammarskjold” in the first 174 , the second was, for the first time in the history of the UN, chosen among the administrative staff of the Organization, arguably with the precise intention to have a low profile Secretary-General. Indeed, in a speech dated 25 th th June 1995, the then US Representative to the UN, Mme. Madeleine Albright, pointed out that: “Mr Boutros-Ghali would do better to confine himself to acting as the UN's chief administrative officer” 175 175 . . Of course, whether things have turned out to be the way they had been intended is a matter of discussion. As a Sebagai matter of fact, we cannot understand the more prudent approach towards peacekeeping of the acting UN Secretary-General, without taking into account the changing political environment. lingkungan. It is precisely this new environment that provides the key to understand how Kofi Annan is trying to adapt the political role of the Secretary-General by focusing on the broader concept of “preventive action” 176 176 . . Again, the whole question is, using the

symbolism of Perez de Cuéllar, to find a satisfactory equilibrium between too audacious a Scylla and a far too discrete Charybdis. 172 172 Ibid ., par. 39. 39. Let us note here that such strong normative statements were quite often used by Boutros Ghali as part of a technique to put pressure on an international actor. Two major illustrations of this point are given by his “rich's man war” characterization of major powers focus on Yugoslavia (to the detriment of Africa) as well as by his statement, within the Cyprus conflict, according to which: “the absence of agreement was due essentially to a lack of political will on the Turkish Cypriot side”. 173 173 For a description of these two sequences see, respectively: BOUTROS GHALI, B., op. cit ., 1999; HIGGINS, R., United Nations Peacekeeping, 1946-1967 , vol. 3, Oxford University Press, Oxford, 1980, pp. 243 et seq. 174 For a discussion, not devoid of irony, see MEISLER, S., Dateline UN: A New Hammarskjold? in Foreign Affairs , 1996, pp. 180-197. 175 175 Cited in ROULEAU, E., Why Washington wants rid of Mr Boutros-Ghali in Le Monde Diplomatique , November 1996. 176 176 The current Secretary-General is extremely conscious of the increasingly difficult political conditions to which his office is confronted. The strategy adopted by Kofi Annan is mainly focused on the long-term. In a Dalam comparable view to that adopted by the founders of European Community, the notion of “preventive action” put forward by the current Secretary-General intends to concentrate on the roots of international conflict, which for the main part fall under what in classical diplomacy was called “low-politics”, as opposed to “high-politics”. If, in the present circumstances, power politics leaves the Secretary-General only a very limited room for direct intervention in issues of international peace and security, Mr Annan's alternative of focusing on the social and economic roots of conflict may reveal an intelligent way to keep the relevance of his office, as well as that of the Organization as a whole, without entering into overt confrontation with major powers. Of course, such focus may itself raise a number of complex legal and political issues related to the enlargement of the Organization's activities and its increasing

involvement in domestic affairs, but this goes far beyond the scope of our study. The idea of prevention rather than correction is also appealing in financial terms. In his important 2001 Report on the prevention of armed conflict, the acting Secretary-General noted that: “A Carnegie Commission study estimated that the international community spent about $200 billion on the seven major interventions of the 1990s, in Bosnia and Herzegovina, Somalia, Rwanda, Haiti, the Persian Gulf, Cambodia and El Salvador, exclusive of Kosovo and East Timor. The study Penelitian calculated the cost differentials between these conflict management activities and potential preventive action, and concluded that a preventive approach would have saved the international community almost $130 billion”, Report of the Secretary-General on the Prevention of Armed Conflict , 7 June 2001, UN Doc. A/55/985, S/2001/574, par. 2. 2.

Page 71 Page 7162 62 The preceding remarks show how two interesting developments of the Office of the Secretary-General can be analysed in the light of subtype 1.B . The political space provided, respectively, by Cold War and post Cold War politics in each one of the cases studied crystallized in political doctrines, which, as such, did not appear to be legally regularized. Both developments may have been perceived as politically desirable at a given moment, but the exceptional political and personal circumstances in which they unfolded suggest that their eventual regularization is still very problematic. In any case, from the point of view of the interactions between the Secretary-General's legal and political scopes of action, subtype 1.B provides a way to grasp such ambiguous phenomena without falling into one of the two gravitational points constituted by a purely legal or a purely political analysis. analisis. 2.3. 2.3. When law goes beyond politics: exploring type 2 2.3.1. 2.3.1. Putting law over politics: Congo and the retreat of UNEF ( subtype 2.A ) So far, it has been question of cases when politics seems to open spaces normally external to the Secretary-General's legal scope at a particular moment. In moving onto basic type 2 this assumption is reversed. Here, what the Secretary-General could normally do is strongly affected by politics, in such a way his margin of manoeuvring becomes narrower. Confronted with such situations, the Secretary-General may decide to uphold his legal powers against political pressures exerted by States or rather to give in. In the first case, type 2 leads to a subtype 2.A situation whereas in the second case the outcome is subtype 2.B. Needless to say that neither situation can be expected to concretise as such. Both subtypes represent abstract extremes, that every Secretary-General will try to avoid, for the very idea of manoeuvring implies the adjustment to both legal and political constraints in the best way possible, or what is perceived as such. However, as seen before, they serve as tools for approaching the wealth and diversity of practice in an orderly and meaningful manner.

In the present section, we will concentrate on the connection between basic type 2 and subtype 2.A. Our exploration will focus on two major moments of the history of peacekeeping, namely the operation in Congo and the retreat of the United Nations Emergency Force. Both moments have been the object of a huge amount of scholarly studies, some of them of outstanding quality 177 177 . . Our analysis will try to show how 177 177 For the Congo case see in particular: ABI-SAAB, G., The United Nations Operation in the Congo 1960-1964 , Oxford University Press, Oxford, 1978 ; VAN LANGENHOVE, F., Le rôle proéminent du Secrétaire général dans l'opération des Nations Unies au Congo , Institut Royal des Relations Internationales & Martinus Nijhoff, La Haye, 1964 ; HOFFMANN, S., In search of a thread : the United Nations in the Congo labyrinth in International Organization , 16/2, 1962, pp. 331-361; HIGGINS, R., op. cit ., 1980. For the retreat of UNEF see in particular: BURNS, ECM, The withdrawal of UNEF and the Future of Peacekeeping in International Journal , winter 1967-1968, pp. 1-17; COHEN, M., The Demise of UNEF in International Journal , winter 1967-1968, pp. 18-51; ELARABY, NA, United Nations Peacekeeping: The Egyptian Experience as well as COMAY, M., United Nations Peacekeeping: The Israeli

Page 72 Page 7263 63 sometimes, even though political circumstances pointed in a different direction, the Secretary-General had to operate within the boundaries of what is legally well established. When discussing our analytical framework from a general perspective, we saw that upholding a legal stance against political pressures may be interpreted, in the last resort, as upholding a previous political view. Indeed, if the state of the law is the result, at least to a large extent, of political configurations, behaving according to law means to actualise former political compromises. This does not mean that law is irrelevant compared to politics. The very fact that a particular political configuration can outlive, in the form of law, the circumstances in which it developed and even be upheld when confronted with the changing winds of politics, means that law can be effective, for law is precisely such a vehicle. In the two cases studied, this remark will be assumed whenever the Secretary- General is said to uphold his legal powers. Let us now turn to the exploration itself. Shortly after the Congo became independent in June 30 th th 1960 a mutiny broke out in Leopoldville and spread to several other cities. Hostility and harassment against Belgian and European population brought about a Belgian military intervention without the consent of the Congolese government. Informed of the situation by the Congolese authorities, the Secretary-General summoned an urgent meeting of the Security Council,

expressly invoking Article 99 of the Charter. The Security Council adopted Resolution 143 (1960) calling upon the Belgian government to withdraw its troops and authorizing the Secretary-General: “… to take the necessary steps, in consultation with the Government of the Republic of Congo, to provide the Government with such military assistance as may be necessary until, through the efforts of the Congolese Government with technical assistance of the United Nations, the national security forces may be able, in the opinion of the Government, to meet fully their tasks” 178 . . Although approaching the case of Congo under type 2 main seem controversial, for this case is traditionally seen as a founding experience where the Secretary-General managed to established a very developed political role, we think there are good reasons to use type 2 . Beyond the sole interest of changing perspectives, the circumstances of such mandate provide a solid basis for the fruitful use of type 2 . As Brian Urquhart notes: “The terms of the original Security Council resolution on the Congo were clear in one respect only, namely that the Secretary-General had the responsibility for doing something about the Congo crisis. Precisely what, the resolution did not and could not say … In this expedient vagueness, which had for the time being papered over the real differences among the members of the Council, lay the seeds of many future problems. Moreover, in directing the Secretary-General to eliminate any justification for foreign intervention by restoring law and order, as far as possible with the help of the Congo government but without using force or interfering in internal affairs, the Council from the start injected an inherent contradiction into the Congo operation” 179 179 . . The mandate was indeed vague, for the situation in Congo had left Experience, both in WISEMAN, H. (ed.), Peacekeeping: Appraisals and Proposals , Pergamon Press, New York, 1983, pp. 65-117. 178 Security Council Official Records , 873 rd rd meeting, 14 th th July 1960, par. 2. 2. The resolution was adopted by a 8 to 3 majority, with Britain, France and Nationalist China abstaining. 179 179 URQUHART, B., op. cit. , pp. 403-404 (italics added).

Page 73 Page 7364 64 no time for building up a real political consensus. Already before the independence, Hammarskjold had been worried about the Congolese lack of preparation to assume immediately the reins of the government, and he had considered the possibility of providing technical assistance through the United Nations. It was him who, after requesting the establishment of a peacekeeping force, put together the building blocks of

the whole mission in the hours following the adoption of the resolution. The way Brian Urquhart describes the setting up of ONUC is very suggestive of how conspicuous the role played by Hammarskjold was: “… on the morning of July 13, Hammarskjold asked for an urgent meeting of the Security Council. At luncheon that day he briefed the members of the Council at length, proposing United Nations assistance in security and administration , the sending of United Nations troops, and the shipment of emergency food supplies. The Council met at 8:30 pm on the hot, humid evening of July 13; when it adjourned at 3:25 am the following day … we went immediately to Hammarskjold's conference room on the thirty-eighth floor to discuss what had to be done. Hammarskjold, as usual, was the mainspring, telephoning all over the world for troops, aircraft, staging areas, and supplies, evolving instructions and directives, setting up command and staff organization, and choosing a name for the new operation … Three hours later, when we dispersed for breakfast, the operation was already under way” 180 180 . . The precipitation with which everything was decided also suggests that major Powers had not, or at least not yet, a clear political view of the situation. As this view became increasingly established and as great Powers started to fear each other's taking advantage of the situation, the Secretary-General ran into a dilemma. The position of the Secretary-General when confronted to a vague mandate is indeed extremely delicate. As Perez de Cuéllar pointed out in his already cited Oxford lecture: “It is of great importance that trust should be placed in the Secretary-General by the Security Council, by the General Assembly, and by governments, but delegation of responsibility to him should not be a way for member states to escape the responsibilities placed on them by the Charter … it would gravely harm the interests of peace if the Secretary-General were ever to become a façade, behind which there was only deadlock and disagreement. No authority delegated to the Secretary-General, and no exercise by him of this authority, can fill the existing vacuum in collective security” 181 181 . . From a legal point of view, Article 98 of the Charter provides that the Secretary-General must perform the functions entrusted to him by the deliberative organs. When the mandate is too vague the principle of good faith requires the Secretary-General to ask the corresponding organ for clarification. During the Cold War years, however, this organ was often unable to give further precision. In such cases, the Secretary-General was nevertheless obliged to perform the mandate given, and this on the basis of his own interpretation. The problem with such situation was that, in many cases, the probability of an even-close-to-accurate assessment of the political configuration was low. So the Secretary-General embarked on a set of measures without having a reasonable idea of what the reaction of the different parties would be. The operation in Congo provides a particularly striking illustration of 180 180 URQUHART, B., A life in Peace and War , Harper & Row, London, 1987, pp. 146-147. 181 181 PEREZ DE CUELLAR, J., op. cit ., pp. 132-133.

Page 74 Page 74

65 65 this pattern. When, in August 1960, Hammarskjold told the Security Council: “Let me simply point out that the Security Council has asked me to implement the resolution. Implementation obviously means interpretation in the first instance. I gave an interpretation and that interpretation was challenged. I have referred the matter back to the Security Council. I have the right to expect guidance. That guidance can be given in any form. But it should be obvious that if the Security Council says nothing I have no other choice than to follow my conviction” 182 182 , he already had an idea of the difficulties that may arise. Indeed, a month before, he had colourfully painted the situation to Brian Urquhart as “trying to give first aid to a rattlesnake” or as “a political bordello with a number of foreign madams” 183 183 . . In fact, the conditions were to become far worse. In the Congo, in particular, the situation of the Secretary-General rapidly degenerated as the Congolese Prime Minister, Patrice Lumumba, urged him to use ONUC to fight the secession of the rich northern province of Katanga, and this with Soviet support. Faced with an increasingly intolerant Soviet Union, as well as with the collapse of the Congolese central government, Hammarskjold insisted in sticking as strictly as possible to the principles governing peacekeeping operations. And this is precisely where the connection between basic type 2 and subtype 2.A appears meaningful. The study on this operation made by Rosalyn Higgins is here particularly useful in that it treats in separate sections the relations of the Secretary-General with Congolese government and with the Soviet Union 184 184 . . The verbal exchanges in both cases are increasingly strong in tone. Addressing the regular 15 th th session of the General Assembly, the Soviet leader Nikita Khrushchev condemned the UN action in Congo in extremely virulent terms: “it is deplorable … that they have been doing their dirty work in the Congo through the Secretary-General of the United Nations and his staff … The Assembly should call Mr Hammarskjold to order and ensure that he does not misuse the position of the Secretary-General but carries out his functions in strict accordance with the provisions of the United Nations Charter and the decisions of the Security Council”, adding later: “Conditions have clearly matured … to the point where the post of Secretary-General, who alone directs the staff and alone interprets and executes the decisions of the Security Council and the sessions of the General Assembly, should be abolished” 185 185 . . A Soviet proposition called later for the replacement of the Secretary- General with a “troika”, ie a collegial organ at the head of the Secretariat 186 186 . . What was been reproached to the Secretary-General was, in fact, that until that

moment ONUC had not taken part in the secession war otherwise than as a peacekeeping force. kekuatan. In other words, it was reproached that Hammarskjold had interpreted his vague mandate in the light of the principles normally governing peacekeeping operations. In Dalam December 1960, foreseeing the possibility of a civil war, Hammarskjold stated: “If that 182 182 Security Council Official Records , 888 th th meeting, 21 st st August 1960, par. 100. 100. 183 183 URQUHART, B., op. cit ., 1987, p. 159. 159. 184 184 HIGGINS, R., op. cit ., 1980, pp. 125-210 and 243-263. 185 185 General Assembly Official Records , 871 st st meeting, paragraphs 142-153 and 282, respectively, September 23 rd rd 1960. 1960. 186 186 Statement by Nikita Krushchev, General Assembly Official Records , 882 nd nd meeting, 3 rd rd October 1960, par. 40. 40. Abi-Saab points out that the real aim of such a proposal was to extend the veto to the level of the Secretariat itself, cf. op. cit ., p. 115. 115.

Page 75 Page 7566 66 happens, what should thereafter be the policy of the United Nations? A taking of sides obviously would be impermissible under the general rules applied , and a standing aside which in other circumstances might seem to correspond best with the principles of the United Nations operation would , in the situation considered here, be likely to place the United Nations and its Force in an untenable position , being so to say in the role of a passive witness to developments diametrically opposed to those which the Organization wishes to further … My conclusion is that … it would be impossible to pursue a policy of interposition. Therefore, were a situation for the United Nations of the kind I have described to develop, I would have to put up to the Security Council the question whether the United Nations Force should not be withdrawn ” 187 187 . . Even Bahkan after Security Council Resolution 161 (1961) urged : “… that the United Nations take

immediately all appropriate measures to prevent the occurrence of civil war in the Congo, including … the use of force, if necessary, in the last resort” 188 188 , the Secretary-General kept his moderate interpretation. Brian Urquhart refers to an unpublished note where Hammarskjold describes the resolution as “noble aims and no new means or legal rights” 189 189 . . Stated bluntly: Hammarskjold's respect of the law was politically intolerable to the Soviet Union in the increasingly Cold War tainted conflict. In another unpublished note, we find the following reflection: “It may be said that in the Congo case I have always had to choose between the risk that the Organization would break down and die out of inertia and inability, and the risk that it might break up and die because I overstretched its possibilities in relation to what the cold war situation permitted … Naturally, I am guided solely – I really mean solely – by what is in the best interest of the UN, and the world community through the UN” 190 190 . . The situation cannot be described clearer. The analysis under subtype 2.A is however frustrating in that it shows that, in a case where the Secretary-General tried to uphold the principles of peacekeeping against political opposition, mainly from the USSR, the outcome was a grave, perhaps the gravest crisis of the United Nations Organization as a whole. The Security Council has ever since tended to be more rigorous as to the definition of the executive tasks of the Secretary- General in the field of peacekeeping, especially by establishing operations for short periods of time and subject to renewal. The second case we would like to analyse in the light of the connection between basic type 2 and subtype 2.A is the controversial retreat of UNEF by U Thant in May 1967. Acting on the request of the Egyptian Government and within the framework of a General Assembly resolution, which did not establish a time limit for the operation 191 191 , the , Maka Secretary-General decided to withdraw the United Nations forces installed in the Middle East since 1956. The debate over whether the UN Secretary-General was right to take such decision, or whether the matter should have been taken to the General Assembly 187 187 General Assembly Official Record , 957 th th meeting, 19 th th December 1960, par. 16-17 (italics added). 188 188 Security Council Official Records , 936 th th meeting, 21 st st

February 1961, part A par. 1. 1. For a discussion of the implications of this resolution see ABI-SAAB, G., op. cit ., pp. 99 et seq. 189 189 URQUHART, B., op cit ., 1972, p. 509. 509. 190 190 Ibid. , p. 511. 511. 191 191 Resolution 998 (1956), General Assembly Official Records , first emergency special session, 563 rd rd meeting, 3 rd rd November 1956.

Page 76 Page 7667 67 and the Security Council, has no easy answer. At the time, the Secretary-General was harshly criticized. Expressions such as “poltroonery”, “U Thant's war”, “a thief in the night” or “wet noodle” were used against him 192 192 . . Addressing the General Assembly, Abba Eban, the Israeli Foreign Minister, sarcastically asked: “What is the use of a fire brigade which vanishes from the scene as soon as the first smoke and flames appear?” 193 . . At the Pada same moment, Ernest Gross, the former US ambassador before the UN, published a memorandum written by Hammarskjold where the former UN Secretary-General expressed his understanding that Egypt could not request unilaterally the retreat of UNEF troops 194 194 . . U Thant replied both in a number of reports and in an address before the General Assembly: “… may I say that Mr. Eban cannot help but know that the government of the United Arab Republic had never accepted any limitation or restriction with regard to the exercise of its sovereign powers concerning the presence of the United Nations Emergency Force on its territory. It can also be emphasized that there was no limitation of any kind on the right of the United Arab Republic to move its troops up to the line at any time with the inevitable result of immediately making academic the question of withdrawal of the United Nations Emergency Force or its continued presence … I have noticed Mr. Eban's picturesque simile of the fire brigade which vanishes from the scene as soon as the first smoke and flames appear! Mr. Eban would agree, I am sure, that for more than ten years the United Nations Emergency Force had been remarkably effective in preventing clashes along the line and in extinguishing the flames of the raids across the line … On the matter of consultation, Mr. Eban should know that I did engage in consultations before taking my decision, to the full extent required of me and even somewhat more … The Secretary-General tried to prevent the crisis from getting out of hand. tangan. He failed. It was not his fault” 195 195

. . The question raised by U Thant's action has a double dimension. It was quite clear at the time that UNEF was necessary to keep the situation in hand. The Secretary- General himself recognizes this point in his aforementioned address. The situation of UNEF can be compared to that of the United Nations force in Cyprus, both in terms of the mandate received and in its contribution to the ossification of the dispute. This Ini meant, and everyone knew it at the time, that the retreat of UNEF in the conditions it was being urged would end up in armed conflict between Arabs and Israelis. This placed U Thant in a dilemma. Whereas legally there was no doubt he could not do otherwise than acceding to Nasser's request, for Egypt had the sovereign right of have UNEF evacuated from its territory, acting in such way meant to make a first step towards the break off of a military confrontation. Moreover, UNEF could not resist the Egyptian will in any realistic way. As Brian Urquhart puts it in his memoirs: “Since no one could control or influence Nasser, it was convenient to pretend that the tiny symbolic UN 192 192 Cited in URQUHART, B., op. cit ., 1987, p. 213. 213. 193 General Assembly Official Records , 1525 th th meeting, 20 June 1967, cited in CORDIER, A., HARRELSON, M. (eds.), Public Papers of the Secretaries-General of the United Nations, vol. VII, U Thant 1965-1967 , Columbia University Press, New York, 1976, p. 420. 420. 194 194 New York Times , 19 June 1967. 195 195 General Assembly Official Records , 5 th th Emergency Special Session, 1527 th th meeting, 20 June 1967, cited in FIRESTONE, BJ, The United Nations under U Thant, 1961-1971 , The Scarecrow Press, Lanham/Maryland/London, 2001, pp. 156-158.

Page 77 Page 7768 68 Force could , and should , have resisted the Egyptian Army, some 80,000 strong, on Egyptian soil, and that everything would have been all right if U Thant had had the courage to take the 'right decision'. This hypocritical and escapist nonsense is still remarkably prevalent in Western folklore” 196 196 . . It is precisely here that the use of basic type 2 in connection with subtype 2.A can be interesting. The affair of UNEF retreat shows how, although certain that his action would set off a political crisis, both outside and inside the United Nations, the Secretary-General had no other choice than to behave legally. The pattern here is

different than the one seen in Congo. The political narrowing does not play against the use by the Secretary-General of his legal powers, it rather consists of forcing him to commit political suicide, for it leaves him no alternative than to assume the responsibility of legally provoking an armed conflict. Faced with such dilemma, U Thant and his collaborators tried desperately to seek a way out. The situation was further complicated by the fact that UNEF had been established by the General Assembly and, as Urquhart points out: “It was therefore impossible to refer the problem to the Security Council, which had nothing to do with UNEF”. Conversely: “To put the matter on the agenda of the General Assembly would have required an affirmative decision by two thirds of the member states, and it was known that a large majority would support Egypt's position and would therefore not agree to the Assembly even considering the question” 197 197 . . The The possibility of using Article 99 to summon a meeting of the Council, which Urquhart sees as the only alternative way, was dropped by U Thant, who knew too well, as it was indeed the case, that the Security Council would have run into a deadlock. Trapped by law, the Secretary-General could have argued that the withdrawal decision could only be taken by the General Assembly. He took instead the position that, as Nasser had allowed UNEF to enter the Egyptian territory only after negotiating with Hammarskjold himself, the question of an eventual retreat was to be regarded as a matter falling within the competence of the Secretary-General. He took this stance perhaps in order to assert the position developed by Hammarskjold as to the Secretary-General's powers regarding peacekeeping. However, this position clearly turned against him. As noted in relation to Congo, one cannot help being frustrated at the risks encountered by the Secretary-General when using his legal powers. It is widely known that these two crises deeply affected the Office of the Secretary-General as well as the Organization as a whole. From our particular perspective, they illustrate how dangerous it may be to defy the politics of the moment on the basis of law or, put differently, they suggest that the price the Secretary-General has to pay for upholding law against politics is extremely high. As we will see in the next section, he has in many cases preferred not to deploy his legal powers beyond the narrow scope set by politics. 2.3.2. 2.3.2. The political limits of law: From the Lockerbie incident to Iraq ( subtype 2.B ) As we pointed out in preceding sections, the decline of the Soviet Union seemed to open a considerable space for the deployment of the Secretary-General's political 196 196 URQUHART, B., op. cit. , 1987, p. 212. 212. 197 197 Idem .

Page 78 Page 7869 69 activities. kegiatan. By the beginning of the 1990s this picture admitted different interpretations. Writing in July 1991, the late UN expert Oscar Schachter observed that: “The collective action taken under the aegis of the United Nations has been hailed as a vindication of international law and of the principle of collective security. At the same time, it has also been perceived by many as still another example of the dominant role of power and

national self-interest in international relations. A plausible case can be made for each of these views. An optimist may conclude in the rosy glow of the desired outcome that law and power have happily converged in this case. Even so, the massive devastation of civilian life during the war and the threat of renewed violence are troubling features. The The promise of a new world order based on the rule of law still seems far from fulfilment, but there is renewed hope that the UN Charter will be taken seriously as an instrument of collective responsibility” 198 198 . . In retrospective, however, one could hardly challenge the power politics stance. Translated into UN terms, this suggests that the political space for manoeuvring available to the Secretary-General tended to narrow. The cases of Libya and Iraq show a Secretary-General increasingly constrained by the political stances of major powers acting in the Security Council. In this regard, type 2 in connection to subtype 2.B provide a meaningful approach of how, in spite of the wide international recognition of the legality of the Secretary-General's good offices powers, the scarce political space at his disposal in a number of cases prevented him from effectively deploying his legal powers. Let us first cope with the case of Libya. Reacting to the terrorist incident of Lockerbie 199 199 , in December 1988, and in the context of increasing tension between, on the one hand, France, the United Kingdom and the United States and, on the other hand, the Libyan government, the Security Council adopted resolution 731 (1992) 200 200 requesting the Secretary-General: “to seek the cooperation of the Libyan Government to provide a full and effective response to those requests” 201 201 . . The requests referred to in this statement are those addressed by the governments of France, the United Kingdom and the United States asking for the surrender of Libyan nationals suspected of having organized the incidents. The Secretary-General was mandated to act within a strictly defined framework 202 202 set, most notably, in paragraphs 2 and 3 of the aforementioned resolution, where the Council: “2. Strongly deplor(ed) the fact that the Libyan Government has not yet responded effectively to the above requests to cooperate fully in establishing responsibility for the terrorist acts referred to above against Pan Am flight 103 and Union de transports aériens flight 772” and then “urg(ed) the Libyan Government immediately to provide a full and effective response to those requests so as to contribute to the elimination of international terrorism”. These two paragraphs must, in addition, be interpreted taking into account that in the preamble of Resolution 731 (1992), which by the way was adopted unanimously, the Council declared itself: “Deeply concerned over the results of investigations, which implicate officials of the Libyan Government …” 203 203 . . The The 198 198

SCHACHTER, O., United Nations in the Gulf Conflict in American Journal of International Law , 85/3, 1991, p. 452. 199 199 As well as to the destruction of a UTA airplane flying over Niger, in September 1989. 200 200 Security Council Official Records , 3033rd meeting, 21 st st January 1992. 201 201 Cf. Cf. paragraph 4. 202 202 For the insider's view see: BOUTROS GHALI, B., op. cit ., 1999, pp. 183-202 and 206-207. 203 203 Italics added.

Page 79 Page 7970 70 situation of the Secretary-General was rendered even more difficult by the passing of Resolution 748 (1992), where the Security Council, acting under Chapter VII of the Charter, decided that: “the Libyan Government must now comply without any further delay with paragraph 3 of resolution 731 (1992) regarding the requests addressed to the Libyan authorities by France, the United Kingdom of Great Britain and Northern Ireland, and the United States of America” 204 204 and imposed sanctions on Libya. Under such stringent conditions, the only possibility of a face-saving solution for Libya rested upon an independent intervention of the Secretary-General in the way of the “Peking formula”. In legal terms, the whole question was whether the Secretary-General could somehow “ignore” the mandate entrusted to him acting rather on the basis of his autonomous powers arising from Article 99 of the Charter. When analysing subtype 1.A , we saw that, legally speaking, this possibility did exist at the time. The political space for such modality was however scarce. The only relevant political resources were represented by the association of the League of Arab States to the settlement as well as by the fact that Russia, to which Libya was strongly indebted, apparently supported the easing of the sanctions. For some time, until November 1993, Boutros Ghali succeeded in suspending the implementation of the sanctions in order to find some room for Libyan cooperation. However, the Libyan recalcitrance eventually forced the Secretary-General to recognize that his efforts had been “a total failure” 205 205 . . After this, a US-led Security Council adopted Resolution 883 (1993) deciding, based on Chapter VII of the Charter, to implement a number of sanctions against Libya 206 206 . . In Dalam these circumstances, some authors have characterized the Libya issue as a clear-cut

illustration of how in practice political considerations leave the Secretary-General a far narrower scope of action than what one could infer from the corresponding legal mandate 207 207 . . Boutros Ghali notes that: “… legal scholars as well as Libya's lawyers were deeply divided on the legality of the demands made by the three powers because of the lack of an extradition treaty. There were multiple interpretations of what Libya was being asked to do” 208 208 . . This view is consistent with the characterization assumed in subtype 2.B . We think however that it would be more accurate to analyse the way politics narrowed the Secretary-General's legal scope at two distinct levels at which law and politics interact. The first and most obvious is manifested by the way political considerations resulted in such a narrow legal mandate, turning the Secretary-General into a messenger rather than a negotiator. The second is subtler and refers to the way in which political pressure may 204 204 Security Council Official Records , 3063 rd rd meeting, 31 st st March 1992, paragraph 1. In the meantime, the Libyan Government had requested the International Court of Justice to order provisional measures against coercive measures from the US, UK and France, which was denied by decision of 14 April 1992 of the Court adopted by 11 votes against 5. 205 205 Washington Post , 2 November 1993. 206 206 Cf. Security Council Official Records , 3312 th th meeting, 11 th th November 1993. This resolution kept, however, the original mandated entrusted to the Secretary-General by Resolution 731 (1992): “14. Invites the Secretary-General to continue his role as set out in paragraph 4 of resolution 731 (1992)”. 207 207 See FRANCK, Th., NOLTE, G., op. cit ., pp. 162-163. 208 208 BOUTROS GHALI, B., op. cit ., 1999, p. 187. 187. See also: GOWLLAND-DEBBAS, V., The Relationship Between the International Court of Justice and the Security Council in the Light of the Lockerbie Case in American Journal of International Law , 88/4, 1994, pp. 643-677.

Page 80 Page 8071 71 have prevented (or did prevent) the Secretary-General from attempting a “Peking formula”. From an analytical point of view, distinguishing these two levels permits to clearly isolate the loci of political pressure. As we saw when discussing Hammarskjold's negotiations with Peking authorities in 1955, the narrowing stemming from a judgmental resolution may be, to some extent, avoided if the Secretary-General assumes an independent role. Such modus operandi depends, in turn, upon two main considerations. The first one refers to its acceptability from a legal point of view. At the time Boutros Ghali undertook his mission, the legality of such proceeding was no longer in doubt. The The second consideration concerns the political pressures surrounding the whole mission. From this point of view, the resolutions adopted were but a reflection of a strong political stance, for which no solution other than that requested was acceptable. As a matter of fact, one could argue that, from a political point of view, it was easier for the Libyan government to submit to a United Nations act, whatever its bias, than to the will of the three governments in question. In retrospect, we know that the issue was settled between August and September 2003 by negotiation between the governments of the States involved. terlibat. In a statement delivered to the President of the Security Council, the Libyan government accepted responsibility for the Lockerbie incident and agreed to pay reparation to the families of the victims. It then agreed to increase the amount due as reparation for the UTA plane. Finally, on September 12, the Security Council agreed to lift the sanctions that had been imposed on Libya. Let us now turn to the case of Iraq, which is undoubtedly one of the most important cases in the history of the Organization. As usual, it is first necessary to situate the case within the context of basic type 2 . When in August 1990 Iraq invaded Kuwait the Security Council found itself into a much stronger position than the one that had characterized it throughout the Cold War years. In the new environment, the famous Security Council Resolution 678 (1990), authorizing Member States to use all necessary means to enforce the decision, benefited from a large consensus. While this resolution has often been heralded as the rebirth of collective security 209 209 , this view should not prevent us from seeing the strong political forces lying behind. One must indeed bear in mind that the United States and the United Kingdom had, from the outset, asserted the legality of an armed intervention on the sole basis of the right of collective self-defence. Kuwait had requested their aid and, what is more interesting from a legal point of view, Security Council Resolution 661 (1990) had, for the first time, recognized the right to collective self-defence as applicable in a particular situation 210 210 . . In such circumstances, the activist States considered that they were legally entitled to undertake military action against Iraq. Oscar Schachter mentions that some authors challenged the consistency of this position on the basis of the wording of Article 51 of the UN Charter, according to which the right to self-defence exists only: “until the Council has taken measures necessary to maintain international peace and security”. In this regard, the adoption by Resolution 661 (1990) of economic sanctions against Iraq would have suspended the right to self-defence both

209 209 The resolution was adopted by 12 votes to 2 (Cuba and Yemen) with one abstention (China). For an out-of- mainstream analysis of the basis of this resolution see WESTON, BH, Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy in American Journal of International Law , 85/3, 1991, pp. 516-535. 210 210 SCHACHTER, O., op. cit ., p. 457. 457.

Page 81 Page 8172 72 individual and collective 211 211 . . In Schachter's view this is an absurd interpretation. Though the wording of the Charter is extremely clear, the author's argumentation keeps a great deal of relevance if we take into account that the Security Council asserted the right of collective-self defence in the preamble of Resolution 661 itself. In other words, if both terms, namely collective self-defence and economic sanctions, were asserted simultaneously, one could hardly consider them inconsistent with one another. Though persuasive, Schachter's interpretation is not the only plausible one. There is no assurance that the Security Council acts always in conformity with the Charter, including Article 51. Although the issue is highly controversial 212 212 , the case of Lockerbie had already shown how the Council might serve the interests of particular States, even in violation of the Charter principles 213 213 . . In any case, the ineffectiveness of the economic sanctions taken led, few weeks after, to the adoption of Resolution 678 (1990) authorizing Member States to use all necessary means to obtain the withdrawal of Iraqi troops from Kuwait 214 214 . . With such context in mind, it is easier to understand why and how the political margin of the Secretary-General was restricted, leading to a situation close to subtype 2.B . Years later, Perez de Cuéllar observed that he had no doubt that the United States would have acted unilaterally if necessary 215 215 . . Despite the difficult political configuration, many consider that his good offices efforts fell short of what he could and should have done. Such a judgemental assertion cannot be seriously assessed without going into the detail of the legal and political circumstances. Among the different resolutions adopted by the Security Council, the Secretary-General's good offices are mentioned for the first time in the preamble of Resolution 664 of August 18 th th 1990, which reads as follows: “Welcoming

the efforts of the Secretary-General to pursue urgent consultations with the Government of Iraq following the concern and anxiety expressed by the members of the Council on 17 August 1990” 216 216 . . By the end of August, Perez de Cuéllar declared in a news conference in Bogotá that: “After the adoption by the Security Council of five very important resolutions (resolutions 660, 661, 662, 664 and 665), the moment has arrived for the Secretary-General of the United Nations to start diplomatic efforts aimed to solve in all its aspects the critical situation in the gulf area … Therefore, I have invited today the Minister of Foreign Affairs of Iraq, Mr. Tariq Aziz, to urgently meet with me, preferably next week, in New York or Geneva, in order to engage with me without delay, in a full 211 211 Oscar Schachter mentions that some authors challenged the consistence of this position on the basis of the wording of Article 51 of the UN Charter, according to which the right to self-defence exists only: “until the Council has taken measures necessary to maintain international peace and security”. In this regard, the adoption by Resolution 661 (1990) of economic sanctions against Iraq would suspend the right to self-defence both individual and collective 211 211 . . In Schachter's view this is an absurd interpretation, cf. Ibid ., p. 458. 458. 212 212 For two detailed studies on the “constitutionality” of Security Council's action see: GOWLLAND-DEBBAS, V., op. cit .; ALVAREZ, JE, Judging the Security Council in American Journal of International Law , 90/1, 1996, pp. 1-39. 213 213 As Martii Koskenniemi puts it: “Why Libya, but not Israel? Why the Council's passivity during most of the eight-year Iran-Iraq war? Why has the Council's reaction in Africa been markedly less vigorous and effective than in the Gulf? … The argument is made that the Council has not reflected the collective interests of United Nations members as a whole, but only the special interests …”, The Place of Law in Collective Security in Michigan Journal of International Law , 17, 1996, pp. 460-461. 214 214 For further details see WESTON, BH, op. cit . cit. 215 215 PEREZ DE CUELLAR, J., Reflecting on the Past and Contemplating the Future in Global Governance , ½, 1995, p. 164. 164. 216 216 Security Council Official Records , 2937

th th meeting, 18 th th August 1990.

Page 82 Page 8273 73 exchange of views on the crisis” 217 217 . . He further added that he was acting on his own initiative, not at the behest of the Security Council, which had previously condemned the annexation of Kuwait in extremely firm terms. At this point, the question arises whether the Secretary-General's position allowed him to untie the imbroglio using the “Peking formula”. In our view, the answer to this question must be negative. In this particular case, the pattern characterizing subtype 2.B seems so pronounced that Perez de Cuéllar legal scope of action appeared of almost no use. There were indeed at least three reasons why the political situation was fundamentally different from the one faced by Hammarskjold in 1955 as well as by his successors in number of other cases. First, the international environment had profoundly changed, in such way the activist States within the Security Council intended to assume a much stronger position than before. To take an example, the American National Security Adviser, Brent Scowcroft, had declared, echoing Perez de Cuéllar's statement, that the United States would not “talk about anything” until a total and complete withdrawal of the Iraqi troops from Kuwait took place 218 218 . . Second, even if the United States had adopted a more flexible stance, the circumstances of the Iraqi attack were so flagrantly illegal that the Secretary-General would have not been able to open in any realistic way the ground for negotiation. Third, the experience of the Iraqi aggression to Iran, case in which the Western powers had to a large extent acquiesced, played against the initiative of the Secretary-General. Sekretaris-Jenderal. As the United States' stance became tougher, and the eventuality of an armed action credible, the chances for any face-saving solution for Iraq virtually disappeared. In this regard, the large good offices mandate granted to the Secretary- General in paragraph 12 of Resolution 674 (1990) 219 219 should not mislead us as to the real political situation. In the strategy of activist States, such move prepared the ground for intervention, giving the appearance of having exhausted all peaceful channels 220 220 . . These Ini circumstances strongly suggest that the legal space for action left to the Secretary-General was only formal. Another illustration of this pattern is given by Kofi Annan's good offices initiative in Iraq, in February 1998. In this case, the Secretary-General managed, in spite of the strong narrowing of his role, to postpone the eruption of the crisis. The case is interesting

in that it applies subtype 2.B to a less extreme situation, where some political space was left (or found) for the exercise of the Secretary-General's legal powers. After the Iraqi Government refused the access of UN inspectors to a number of presidential sites, the US and the UK threatened using force in order to obtain full and unconditional 217 217 Cited in PACE, E., UN Leader to Meet With Iraqi Minister in The New York Times , August 27 th th 1990. 1990. 218 218 Idem. 219 219 (The Security Council) “Reposes its trust in the Secretary-General to make available his offices and, as he considers appropriate, to pursue them and to undertake diplomatic efforts in order to reach a peaceful solution to the crisis caused by the Iraqi invasion and occupation of Kuwait, on the basis of resolutions 660 (1990), 662 (1990) and 664 (1990), and calls upon all States, both those in the region and others, to pursue on this basis their efforts to this end, in conformity with the Charter, in order to improve the situation and restore peace, security and stability”, adopted by 13 votes to none, with 2 abstentions (Cuba and Yemen), Security Council Official Records , 2951 st st meeting, 29 29 th th October 1990. 220 220 Cf. Cf. NEUMAN, E., op. cit. , p. 102. 102.

Page 83 Page 8374 74 compliance. kepatuhan. Facing an extremely delicate political environment, the Secretary-General tried to dissociate his image from that of the two Anglo-Saxon powers in order to gain space for negotiation. In the first days of February, before announcing his good offices initiative, the Mr Annan regretted the insistence on humiliating Saddam Hussein and called for more flexibility in finding a negotiated solution: “I appeal for that kind of wisdom that will allow us to make the kinds of judgements that will allow us to get out of this” 221 . . In the following days he sought to build a relative consensus among the permanent members of the Security Council as to the relevance of an eventual trip to Baghdad. During these difficult negotiations, the American Government attempted to impose on the Secretary-General written talking points intended to govern his

negotiations with Saddam Hussein. The resistance of Kofi Annan also contributed to his appearance of independence. The US government succeeded, however, in putting forward a number of guidelines, discussed with the other permanent members, to be “kept in mind” by the Secretary-General. As a senior American official noted: “What’s vital is that Mr. Annan understand where our lines are … We want him to have no ambiguity about it. It's not of concern to us if he gets the Russians to think this is the right proposal, so long as the proposal is consistent with the relevant Security Council resolutions, provides full access for Unscom and gives us some confidence this won't be endlessly repeated” 222 222 . . Moreover, drawing upon the unhappy experience of Javier Perez de Cuéllar, who had undertaken his mediation effort in 1991 without the prior support of the Security Council, Kofi Annan considered that such endorsement was an indispensable condition for his mission to be successful: “If the trip is going to be successful, it has to be carefully prepared, both here and in Baghdad” 223 223 . . In such context, the only elements which, beyond superficial arrangements in the conduction of the inspections, could provide the Secretary-General with some room for negotiation were given by the moderate stance of the Chinese, French and Russian governments as well as by the passing of Resolution 1153 (1998) 224 224 renewing the “oil-for- food” program, originally established by Resolution 986 (1995) 225 225 . . Though extremely scarce, such political resources were all the Secretary-General had at his disposal. As to the endorsement of the Security Council, the Secretary-General did receive some support, in the form of a vague oral statement by the president of the Security Council 226 226 . . The The 221 WREN, CS, No Need to Humiliate Iraq, the Secretary-General Says in The New York Times , February 11, 1998. 1998. 222 222 ERLANGER, S., US Seeks to Limit the Role of UN Chief during Iraq Talks in The New York Times , February 17, 1998. 223 223 Idem. 224 224 Security Council Official Records , 3855 th th meeting, 20 th th

February 1998. Februari 1998. Paragraph 2 of this resolution allows Iraqi oil pumping to attain a sum of US$ 5.256 billion, which is more than before. Annan was reported to having said, reacting to the sarcasm showed during the negotiation by Taha Yassin Ramadan, the Iraqi Vice-President: “I was so surprised and even frankly disappointed at the note which came after approval of the $5.2 billion … After the discussions that we had gone through, I would have expected at least a little thak-you for those people here who worked and helped make it happen”, cf. TRAUB, J., Kofi Annan's Biggest Headache in New York Times Magazine , April 5, 1998. 225 225 Ibid ., 3519 th th meeting, 14 April 1995. 226 226 “The Security Council gives its full support to the Secretary General's mission because it would have real impact on the implementation of United Nations resolutions”, cited in SCIOLINO, E., For UN Chief, Scarcely Room for Negotiating in The New York Times , February 19, 1998.

Page 84 Page 8475 75 contrast between this latter point and the pressures overtly exerted on him is important, for it not only raises a delicate legal issue, as does the legality of the US threat itself, but it also provides a demarcation line to distinguish between the present situation and cases like Hammarskjold's mission in Peking. In this latter case the main source of pressure, namely the General Assembly Resolution, was perfectly legal, which made in fact Hammarskjold's initiative legally dubious. In the present case, Kofi Annan's initiative was legally unquestionable, whereas what is legally dubious is the source of pressure. Article Pasal 1oo paragraph 2 of the UN Charter states indeed that: “Each Member of the United Nations undertakes to respect the exclusively international character of the responsibilities of the Secretary-General and the staff and not to seek to influence them in the discharge of their responsibilities”. The text is very clear. Of course, one could argue that the very exercise of the Secretary-General's good offices powers, as it entails to find solutions acceptable to the parties to a conflict, is prima facie inconsistent with Article 100 paragraph 2. 2. We think however that such an argumentation, as applied to the American initiative referred to above, would be inconsistent with the principle of good faith, which governs legal interpretation. At best, the US action would remain legally dubious, and that is all we need for our purpose of illustrating how politics may overtly intervene in the Secretary- General's legal powers narrowing his scope of action. Kofi Annan did nevertheless hammer out a peaceful solution, in the form of a Memorandum of Understanding 227 227 , but , Namun

as we know such solution did not last long, the conflict leading eventually to the use of force by an American-led coalition in March 2003 228 228 . . 3. 3. The Secretary-General between law and politics: a preliminary assessment 3.1. 3.1. General remarks At this stage of our study, it may be useful to stop for a moment and take a look at the road that lies behind us. The project set forth in the introduction, namely to provide an analytical framework allowing for an orderly and meaningful analysis of the interactions between the Secretary-General's legal and political scopes of action in the exercise of his political role had, so far, being expanded in two directions. First, we have indeed presented the main lines of an analytical framework, specifying its different types as well as its purely operative purpose. Second, we have explored a number of case studies both old and new in order to illustrate the way in which this framework can be used. digunakan. What we would like to add as the third aspect of our project is an assessment of the framework. kerangka. 227 227 UN Doc. S/1998/166. On March 2, 1998, the Security Council, acting under Chapter VII of the Charter: “1. Commend(ed) the initiative by the Secretary-General to secure commitments from the Government of Iraq on compliance with its obligations under the relevant resolutions, and in this regard endors(ed) the memorandum of understanding signed by the Deputy Prime Minister of Iraq and the Secretary-General on 23 February 1998 …”, Resolution 1154, Security Council Official Records , 3858 th th meeting, 2 nd nd March 1998, paragraph 1. 228 228 For an analysis of the present situation see : FRANCK, T., What Happens Now? The United Nations after Iraq in American Journal of International Law , 97/3, 2003, pp. 607-620.

Page 8576 76 The assessment will focus on the particular insights that can be derived from an approach such as the one proposed here. Indeed, the purpose of every empirical study is, at some point, to derive conclusions either to guide future action or to simply further the understanding of a particular topic. This is of course not the place to open old epistemological debates on whether social science should focus on explaining or rather on understanding , nor on whether the study of law is to be ranged among the social sciences or

not. tidak. Let us just point out that, in the present study, we have preferred to put the accent on understanding and this, above all, for one reason, namely the absence in the literature of a clear spelling out of the interactions between law and politics in the exercise by the Secretary-General of his political role. Indeed, when we go over the daunting amount of scholarly contributions on the Secretary-General, we find that authors describe and analyse in great detail the peculiarities of his role in particular circumstances. Different styles are followed depending upon a number of factors such as the practice at the time, the academic discipline concerned, the “school of thought” represented, and many others. However, Namun, we think that most authors would agree that the interactions between law and politics, though extremely interesting, constitute one of the major difficulties when approaching the Secretary-General's political role, and that this difficulty remains a constant, beyond the different styles and stresses, unless of course we simply ignore one of the two sides. If we admit this view, it seems to us quite striking that the approach of the interaction between law and politics is virtually never spelled out in the literature on the Secretary- General. Certainly, many studies make explicit the way law and politics have influenced each other in particular cases. But the approach itself, ie the “analytical lenses” through which the matter is approached, is either merely outlined or simply left silent. The reason for this is not clear. A first possibility is that the overall question of the relations between law and politics is extremely complex and, as such, it remains the chasse gardée of eminent scholars. In this regard, contributions on this topic are either expected to be doctrinal, for they represent in some way the legal or political philosophy of major authors, or expected to be worthless, for they are disrespectful of the ordre établi 229 229 . . Another possibility, less tied to post-modern views, would be to say that, given the attempts made at understanding the interactions between law and politics in general, there is no need to make such approach explicit when analysing particular cases or particular topics , the Secretary-General's political role being but one among many others. This may well describe in practice why such difficulty is not overtly addressed in the literature on the Secretary-General. It seems to us, however, that there is a lot to be gained in proceeding to such spelling out, and perhaps more importantly, there is not much to lose. Indeed, while our framework has, as we have tried to make clear, no doctrinal pretension, 229 229 This would reflect the effect of what Michel Foucault called a 'discursive police' : “Il se peut toujours qu'on dise le vrai dans l'espace d'une extériorité sauvage ; mais on n'est dans le vrai qu'en obéissant aux règles d'une 'police' discursive qu'on doit réactiver en chacun de ses discours. La discipline est un principe de contrôle de la production du discours. Elle lui fixe des limites par le jeu d'une identité qui a la forme d'une réactualisation permanente des règles”, FOUCAULT, M., L'ordre du discours , Gallimard, Paris, 1971, pp. 37-38.

Page 8677 77

it may nevertheless reveal a “comfortable” tool for approaching the issue. Proposing a 'general theory' of the relations between law and politics is not a step that must necessarily be taken before spelling out how to grab a slippery topic. And such spelling out may nevertheless provide a number of interesting insights, which, though not the main focus of the literature, are worth to be considered when analysing future developments. perkembangan. Let us note, however, that the insights we intend to mention here are to be taken as mere pistes de réflexion . Indeed, the few cases selected for analysis cannot serve as a solid basis for drawing conclusions. Their purpose was, as we said before, to serve as an implementation of our analytical framework. Keeping this caveat in mind, let us now turn to the assessment of the main insights stemming from our exploration. We will present them according to the basic types to which they are related. Insights arising out of subtypes will be treated under the corresponding basic types . 3.2. 3.2. Assessing type 1 The main insight related to basic type 1 refers to the existence of different paths followed in the development of the Secretary-General's political role. Understanding the Memahami most suitable paths for such development involves identifying the kind of actions that the Secretary-General has been able to translate into legal conquests and those he has not. The difference between subtypes 1.A and 1.B is intended to distinguish between practices that have indeed become law and practices that, though operational during certain periods of time, have remained legally unclear. The issue of why the development of a given practice may follow one or the other path is not only interesting in terms of advancing the understanding of the topic but may also reveal to be of great strategic importance for the Office of the Secretary-General. It is however difficult to understand why a practice like the Secretary-General’s independent good offices may appear to follow a cumulative pattern, whereas practices such as the establishment of military observers or the conducting of military operations seem to adopt rather a boom-bust pattern. The terminology used here is perhaps not precise enough. cukup. The term cumulative is only used to convey the idea that social or political sedimentation may eventually yield a legal expansion, very much like the traditional process of customary law but with the peculiarity that, here, the process of legal adjustment is virtually in all cases progressive interpretation. Conversely, a boom-bust pattern is meant to describe a practice that, though to some extent cumulative, is not translated into a legal enlargement of the Secretary-General's powers. Extracting particular patterns characterizing each path presents a clear analytical advantage. Indeed, whereas one could consider that, since every legal conquest implies a period of transition, there is no point in distinguishing two different paths, the fact that a different pattern is associated to each path calls for the maintenance of the distinction.

Page 8778 78 Thus, the two paths are not to be approached simply as different moments of the evolution of a practice but also, and perhaps rather, as alternative roads. If we admit this latter view, we may be tempted, going beyond the purely analytical vocation of our

framework, to find empirical reasons explaining these different paths. This is of course not an easy question. The elements to be derived from our exploration point in two directions . The first direction concerns the characteristics of the actions at stake. In this view, there would be some actions that, by their own nature, are more likely to be recurrent than others, and this, for instance, because they are less dependent on particular traits of the personality of the incumbent or because the “demand” for such actions is more constant. This seems consistent with our empirical analysis of the two subtypes arising out of type 1 . The legal conquest of the Secretary-General's independent good offices role, to a point where he could even dare to leave a mandate entrusted to him aside for the sake of improving the prospects of the mission, suits quite clearly the picture given. When Ketika considering the discrete personalities States appear to favour for the post, the negotiation ability can be expected to be more frequent than, for instance, the capacity and willingness to conduct military operations. Quiet personalities seem to be best suited for quiet diplomacy than for conducting air strikes. Moreover, the good offices role, as understood in UN practice, benefits from a constant “demand”. This was clearly the case throughout the Cold War years, and it remains a characteristic feature of the present context. konteks. As a matter of fact, such demand has strongly increased in recent years. In order Dalam rangka to match this increase, the Secretary-General has developed a network of prestigious personalities to serve as his Special Envoys. In short, there are good reasons to suggest that good offices are best suited for following the path leading to Subtype 1.A outcome. The second direction identified above is perhaps more interesting. It refers to the very rigidity of law. According to this view, the different reception granted to different practices would have to be sought in the very characteristics of the methods of legal reception . These methods would welcome constant and regular actions much better than exceptional ones, thus explaining the different outcomes represented by subtypes 1.A and 1.B. In the case of the UN Charter, there are no realistic alternatives to progressive interpretation for regularizing a legal practice. If the rigidity of legal adjustment comes from the existence of a limited number of fixed methods of legal reception, such rigidity is a fortiori exacerbated when, as with regard to the UN Charter, these methods are in practice limited to the sole mechanism of progressive interpretation. This would explain why some of the outer practices of the Secretary-General might be more easily regularized ( Subtype 1.A ) than others ( Subtype 1.B ). Indeed, as we pointed out several times, interpretation has limits. When the wording of a text remains unchanged, the state of the law depends on what we called the state of the meaning , which is in turn heavily dependent on political circumstances. For a meaning to be established, the political conditions serving as fertilizers must be abundantly and regularly supplied. Recalling what we have said above as to the characteristics of the actions at stake, the emergence of a meaning can greatly benefit from a constant demand for the practice concerned as well as from its

Page 8879 79 availability. We see how law and politics are extremely interdependent, and this in very subtle ways. 3.3. 3.3.

Assessing type 2 Concerning now the insights related to basic type 2 , they are on the whole quite discouraging for the Office of the Secretary-General. The present view was already clear in 1993, when Thomas Franck and Georg Nolte wrote with regard to the Secretary- General's good offices function: “… the capacity of the Security Council to perform its political functions effectively has narrowed the former role of the Secretary-General as an honest broker between forces locked into intractable enmity. The Council, now more readily able to take decisions, tends to ask the Secretary-General to go to Tripoli and to Baghdad not to exercise an independent political role but more to help execute its own plan of action” 230 230 . . Whether this same view characterizes also the conducting of peacekeeping operations or not is a matter of discussion. In any case, the trend after the “post-Somalia syndrome”, and especially after the US veto on the renewal of Boutros Ghali's mandate, has been one of increasing moderation. In line with basic type 2 , it is however necessary to distinguish within this trend between what the Secretary-General is not legally entitled to undertake and what he dares not to undertake. The implications of upholding his legal powers against the political pressures of the moment or within political dilemmas had often proved disastrous in the past. Our analysis of Hammarskjold's position in Congo provides a good illustration of how this has been so. Subtype 2.A assumes that law, itself a result of political and other considerations, can to some extent prevail over the politics of the moment. Viewed from this angle, the Congo operation constitutes a warning of the risks that the Secretary-General may incur in following this path. These risks are particularly worth considering in the present international context, characterized by the narrowing of the Secretary-General's political scope of action. The crises set off by the retreat of UNEF sheds a somewhat different light. cahaya. In this case, the Secretary-General had no other choice than to abide by the rules. He was, as we said when analysing this case, “trapped by law”. As far as the handling of legal and political constraints is concerned, there are at least two lessons to be derived from this experience. The first is that, when the Secretary-General finds himself trapped, and provided the prospects for his controlling the situation are very low, it may be a good idea to open legal cages by using legal keys . In the case of UNEF, U Thant could have benefited from sending the decision on UNEF's retreat to the General Assembly or the Security Council. Whereas for this latter he could have used Article 99, the former would have been forced to consider the matter, had the Secretary-General declared himself powerless to take the decision of withdrawal. This latter point serves as a springboard for the second lesson. One may indeed think that referring the matter to a deliberative body would have meant to make a step backwards in terms of the development of the Secretary-General's political 230 230 FRANCK, Th., NOLTE, G., op. cit ., p. 180. 180.

Page 8980 80 powers. However, if we recall the insights of basic type 1 , the legal digesting of exceptional precedents is far more complex than what a linear view of the development of law might

suggest. The institutional crisis set off, in part, by refusing a step backward may be far graver than the overall impact of the step backward itself. This being said, the situation of U Thant at the time can hardly be interpreted in such simple terms. But the lessons stemming from such interpretation may nevertheless be relevant in the present context, where the action of the Secretary-General appears to be subject to close control by the Great Powers. If we now move on to subtype 2.B , the first thing to point out is that the implications of the Secretary-General's not daring to undertake a perfectly legal action are unclear, especially when such choice stems from political circumspection. In the apparently black and white kingdom of legality, many inhabitants would seem to be grey. Grey, first, in that a legal action may appear politically forbidden or at least restricted. Grey, then, in that the Secretary-General may fear to lose his political role if he does not fully exercise his legal powers in this regard. The cases of Libya and Iraq illustrate this situation. Whereas the Secretary-General's good offices function remains legally unchallenged, one may wonder about the consequences if the new political context is incorporated in the state of the law , as part of the state of the meaning . It is however interesting to note, recalling what we said when we first discussed subtypes 1.A and 1.B , that once a practice has crystallized into law, the reverse movement is far more difficult. Indeed, the mechanisms of interpretation do not seem to deploy here as fully as when it comes to expanding the Secretary-General's legal scope. Curiously enough, there are no legal explanations for such legal restrain. The The main mechanism supposed to take over the situation, namely derogation through desuetude, is hardly applicable to legal expansions operated by means of interpretation. In Dalam other words, once conquered, the new state of the law may either be further enlarged or remain latent, lurking until new political conditions allow it to flourish once again. In the Dalam context we are discussing, this is perhaps the most encouraging insight arising out of our exploration. In an increasingly politically uncomfortable situation for the Secretary- General, such an insight may be very welcomed.

Page 9081 81 C C ONCLUSION Throughout this study we have attempted to develop the building blocks of an analytical framework aimed at grasping the way law and politics interact in the exercise by the Secretary-General of his political role. Even a cursory analysis of the practice, both during the Cold War and afterwards, shows that there are strong political forces shaping the real scope of action of the Secretary-General. Although such forces often result in the narrowing of the legal options available, in many cases they have also expanded the Secretary-General's legal powers. Whereas the personality of the incumbent is, without any doubt, a major factor to be taken into account, even a man as proactive as Boutros Ghali fell eventually under the weight of political constraints. In the aftermath of the Cold War, these constraints have strongly intensified indeed and the Secretary-General has found himself unable to benefit from the political space hitherto left by the Cold War confrontation. In such an increasingly unilateral world, the political role of the Secretary-General has become less prominent, or at least less visibly

so. begitu. Curiously enough, it would not be totally wrong to say that his present situation is somewhat closer to the original idea of a Secretary-General than Hammarskjold's or Boutros Ghali's conception of the office. However, this should not be interpreted as criticism against the current incumbent. On the contrary, the main challenge of anyone who is appointed UN Secretary-General is to sail across the waters of international politics without losing control of the nave. The main virtue of a Secretary-General is to keep the Organization relevant in the accomplishment of its goals, and this in spite of the strength and the direction of the winds. The apparent calm that emerged with the decline of the Soviet power was soon followed by a violent storm. If the Secretary-General has resumed a prudent approach comparable to that envisaged by the drafters of the Charter, the political conditions on which such approach was based lack completely. Neither Juga tidak multi-polarity nor cooperation are features characterizing the present international environment. lingkungan. In such context, one may wonder whether it is relevant to inquire into legal questions when the political conditions seem to strictly circumscribe any substantial action undertaken by him. Though many would be tempted to answer negatively to this question, we think that such position would be as unrealistic as merely concentrating on legal aspects 231 231 . . First of all, as we have tried to show, at the international level law and politics are intertwined in such a way that any assessment of the Secretary-General's political role must take into account their interaction. Second, even if we admit the unipolar view of the present 231 231 As Oscar Schachter points out referring to Dag Hammarskjold's conception of his office : “It may be asked whether the 'spirit of law' or a belief in the value of the legal process can have much practical significance in an intensely political atmosphere such as that of the United Nations. There are, of course, many who answer in the negative; they see no meaningful application of law except in terms of an effective judicial system, and they regard references to 'law' in a political body as no more than rhetorical flourishes without influence on actual conduct or policy. kebijakan. Hammarskjold's beliefs and his practical actions were in a sense a challenge to this view, for they affirmed the importance of law in the United Nations while acknowledging the realities of power and political pressures”, SCHACHTER, O., Dag Hammarskjold on Law and Politics in American Journal of International Law , 56/1, January 1962, p. 2. 2.

Page 9182 82 international system, there would still be a wide range of opportunities for the Secretary- General to intervene, either because the main power of the system shows disinterest or

because it considers the Secretary-General's intervention as a useful tool. This latter point is of course highly controversial. We saw however that in some cases the Secretary- General is confronted with a trade-off between keeping the impartiality inherent to his office and acting pragmatically. In any case, the precise balance within this trade-off should be decided on the basis of the goals and principles of the UN Charter. Third, and as the current incumbent seems to have clearly understood, there is a key role to be played by the United Nations in eliminating the social and economic roots of conflict. Intervening in such domains requires the elaboration of a comprehensive plan, which is the natural task of an executive administration such as the Secretariat. Fourth, and finally, the fact that the Secretary-General does not undertake certain types of initiatives at a given moment does not mean that the legitimacy and the legality of such alternatives are harmed. On the contrary, it may sometimes be better, when political circumstances appear virtually insurmountable, not to use a particular legal power, for the simple reason that its use in such difficult environment could actually undermine the perceived impact of this power. As pointed out by Perez de Cuéllar with regard to the use of Article 99: “A situation may in certain cases be aggravated and not eased if the Secretary-General draws attention, under Article 99, and the Security Council then does nothing” 232 232 . . Whatever the precise modalities of intervention that the Secretary-General will adopt in the future, the very existence of an international officer competent on matters of international peace and security constitutes an important feature of the contemporary international order. Let us recall here the passage of Professor Siotis that we cited at the beginning of our historical survey: “Les solutions adoptées à San Francisco nous semblent contradictoires, car l'article 99, qui a une importance capitale pour le fonctionnement de l'organisation internationale, n'était pas accompagné des dispositions qui auraient pu rendre son application possible sans mettre le secrétaire général dans la situation impossible où il aurait à interpréter continuellement la Charte … Les auteurs de la Charte n'ont jamais réellement opté entre les deux solutions possibles. Soit un secrétariat dominé par les grands … mais disposant des moyens nécessaires à l'exercice des droits prévus par l'article 99, soit un secrétariat réellement indépendant … libre de prendre des initiatives dans certains domaines, mais dont les fonctions se limiteraient essentiellement au plan administratif. La solution de compromis … renfermait en elle-même les germes de toutes les difficultés rencontrées par le nouveau Secrétariat international sur la voie de son développement” 233 233 . . Despite the fact that, in practice, the Secretary-General's legal scope for political action has been substantially enlarged all along the last 50 years, the concrete relevance of such enlargement remains and will remain in the future heavily dependent on political circumstances. To a large extent, the very curse of the Office of the Secretary- General mentioned by Siotis, namely the necessity to constantly interpret the Charter provisions, is also its main source of adaptability to the ever-changing political environment. lingkungan. To quote the regretted Dag Hammarskjold, the Secretary-General should 232 232 Ibid ., p. 130.

233 233 SIOTIS, J., Essai sur le Secrétariat international , Droz, Genève, 1963, p. 156. 156.

Page 9283 83 be seen above all as the one who, when confronted to a particular conflict, has the ability to find: “that combination of steadfastness of purpose and flexibility of approach which alone can guarantee that the possibilities which we are exploring will have been tested to the full” 234 234 . . Let us express here the wish that such combinations will remain possible in the future. 234 234 Address delivered by Mr. Hammarskjold at the University of Chicago Law School, entitled “The Development of a Constitutional Framework for International Cooperation”, cited in SCHACHTER, O., op. cit . cit. 1962, p. 5. 5.

Page 9384 84

Page 9485 85 S S ELECT B B IBLIOGRAPHY 235 235 I. I. S S OURCES : : A. League of Nations: CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE, Proceedings of the Exploratory Conference on the Experience of the League of Nations , Washington, 1942-1944. Covenant of the League of Nations ROYAL INSTITUTE OF INTERNATIONAL AFFAIRS, The International Secretariat of the Future, Lessons from experience by a group of former officials of the League of Nations , London, 1944. B. United Nations - General Charter of the United Nations General Assembly Official Records (GAOR): years 1946, 1955, 1956, 1958, 1959, 1960, 1963, 1967, 1970, 1988, 1990, 1991, 1992, 1993, 1994, 1995, 1998, 2003. Security Council Official Records (SCOR): years 1946, 1955, 1956, 1958, 1959, 1960, 1963,

1967, 1970, 1988, 1990, 1991, 1992, 1993, 1994, 1995, 1998, 2003. The Blue Helmets. A Review of United Nations Peace-Keeping , 3 rd rd edn., UNDPI, 1996. United Nations Conference on International Organisation (San Francisco, 1945), Documents, 22 vols., United Nations and Library of Congress, London, 1945-66 (Committee I/2. Documents relative to the Secretariat can be found in volumes VII and VIII). United Nations Yearbook: years 1966-1970. UNITED STATES STATE DEPARTMENT, Post-war Foreign Policy Preparation 1939- 1945 , Department of State Publications, No 3850, Washington, 1950. - Official documents of the Secretary-General ANNAN, K., Report of the Secretary-General on the Prevention of Armed Conflict , June 2001 (UN Doc. Doc. A/55/985 - S/2001/574). BOUTROS-GHALI, B., An agenda for peace: preventive diplomacy, peacemaking and peace-keeping , 1992 (UN Doc. A/47/277-S/24111). 235 235 For further literature on the Secretary-General see the bibliography elaborated by the United Nations Dag Hammarskjold Library, UN Doc. DHL/USS/ECRD/BIB/2, at www.un.org/Depts/dhl/sg_bib.htm.

Page 9586 86 BOUTROS-GHALI, B., Supplement to an Agenda for Peace: Position Paper of the Secretary- General on the Occasion of the Fiftieth Anniversary of the United Nations , January 1995 (UN Doc. A/50/60 – S/1995/1). CORDIER, ANDREW, et. al. al. (eds.), Public Papers of the Secretaries-General of the United Nations , 8 vols., Columbia University Press, New York, 1969-77. Reports of the Secretary-General (other): UN Doc. A/2954 (1954); UN Doc. A/3943 (1958) ; UN Doc. S/5321 (1963); UN Doc. S/5325 (1963); UN Doc. S/5325 (1963); UN Doc. Doc. S/94 (1994) ; UN Doc. S/444 (1995). C. Memoirs and other documents concerning the Secretary-General ANNAN, K., The Future of United Nations Peacekeeping , Lecture given at Georgetown University, Washington DC, February 23, 1999. HAMMARSKJÖLD, D., The Servant of Peace : A Selection of the Speeches and Statements of Dag Hammarskjöld (ed. Wilder Foote), Bodley Head, London, 1962. PEREZ DE CUELLAR, J., The Role of the UN Secretary-General in Roberts, A., Kingsbury, B. (eds.), United Nations, Divided World , The UN's Roles in International Relations, 2nd edn., Clarendon Press, Oxford, 1993, pp. 125-142. PEREZ DE CUELLAR, J., Pilgrimage for Peace: A Secretary-General's Memoir , St. Martin's Press, New York, 1997. THANT, U, Toward World Peace : Addresses and Public Statements, 1957-1963 , Thomas

Yoseloff, New York, 1964. THANT, U, Portfolio for Peace : Excerpts from the Writings and Speeches of U Thant, 1961-1968 , 2 2 nd nd edn., United Nations, New York, 1970. URQUHART, B., Hammarskjold , Alfred A. Knopf, New York, 1972. URQUHART, B., A life in Peace and War , Harper & Row, London, 1987. WALDHEIM, K., In the Eye fo the Storm : The Memoirs of Kurt Waldheim , Weidenfeld & Nicolson, London, 1985. D. Other Decision taken at the 9th August 1993 meeting of the North Atlantic Council, Press release (93)52. Declaration of the Heads of State and Government at the Ministerial Meeting of the North Atlantic Council, Brussels, 10-11 January 1994, Press Communiqué M-1(94)3.

Page 9687 87 II. II. S S TUDIES TUDIES A. Works ABBOUSHI, WF, The Secretary General of the United Nations : Constitutional Powers and Developments , doctoral dissertation, University of Michigan, 1962. ABI-SAAB, G., The United Nations Operation in the Congo 1960-1964 , Oxford University Press, Oxford, 1978. ALAO, A., The Burden of Collective Goodwill. The International Involvement in the Liberian Civil War , Ashgate, Aldershot, 1998. BASTID, S., Les fonctionnaires internationaux, Sirey, Paris, 1931 ; BEDJAOUI, M., Fonction publique internationale et influences nationales , Pédone, Paris, 1958. BECK, R. et alt. (eds), International Rules : Approaches from International Law and International Relations , Oxford University Press, Oxford, 1996. BENNET, C., Yugoslavia's Bloody Collapse. Causes, Course and Consequences , Hurst, London, 1995. 1995. BOUTROS GHALI, B., Unvanquished. A US – UN Saga , IB Tauris Publishers, London / New York, 1999. CERVETTI, M., OTT, E., Des bleus sans casques: chronique d'une mission civile de l'ONU en Haiti , éd. Austral, Paris, 1994. CONFORTI, B., The Law and Practice of the United Nations , Kluwer, The Hague / London / Boston, 2000. COT, J.-P., PELLET, A. (éds.), La Charte des Nations Unies , 2nd edn., Economica, Paris, 1991. 1991. COX, D., Exploring an Agenda for Peace : Issues arising from the Report of the Secretary-General ,

Canadian Centre for Global Security, Ottawa, 1993. DJALILI, M.-R., GRARE, F., Le Tadjikistan à l'épreuve de l'indépendance , IUHEI, Genève, 1995. 1995. DOYLE, M., JONHSTONE, I., ORR, R. (eds.), Keeping the Peace. Multidimensional UN Operations in Cambodia and El Salvador , Cambridge University Press, Cambridge, 1997. FAWCETT, E., NEWCOMBE, H. (eds.), United Nations Reform: Looking Ahead after Fifty Years , Science for Peace, Toronto, 1995. FINNEGAN, W., A Complicated War. The Harrowing of Mozambique , University of California Press, Berkeley, 1992.

Page 9788 88 FIRESTONE, BJ, The United Nations under U Thant, 1961-1971 , The Scarecrow Press, Lanham/Maryland/London, 2001. FOUCAULT, M., L'ordre du discours , Gallimard, Paris, 1971. GADAMER, H.-G., Truth and Method , 2 nd nd edn., Continuum, New York, 2002 [1960]. GOODRICH L., HAMBRO, E., SIMONS, AP, Charter of the United Nations, Commentary and Documents (Third and Revised Edition), Columbia University Press, New York- London, 1969. GORDENKER, L., The UN Secretary-General and the Maintenance of Peace , Columbia University Press, New York / London, 1967. HENKIN, L., How Nations Behave , Columbia University Press, New York, 1979. HIGGINS, R., United Nations Peacekeeping, 1946-1967 , vol. 3, Oxford University Press, Oxford, 1980. HIRSCH, J., OAKLEY, R., Somalia and Operation Restore Hope: Reflections on Peacemaking and Peacekeeping , United States Institute of Peace, Washington, 1995. KOUSBARI, WY, Les pouvoirs politiques du Secrétaire général des Nations Unies , Thèse, Paris, 1959. KRATOCHWIL, F., Rules, Norms and Decisions : On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs , Cambridge University Press, Cambridge, 1989. LANKEVICH, GJ, The United Nations under Javier Perez de Cuéllar, 1982-1991 , The Scarecrow Press, Maryland/London, 2001. MERON, Th., The UN Secretariat : The Rules and the Practice , DCHeath, Lexington MA, 1977. 1977. MILLER, DH, The Drafting of the Covenant , GP Putnam's Sons, New York / London, vol. vol. I-II, 1927. NEWMAN, E., The UN Secretary-General from the Cold War to the New Era : A Global Peace and Security Mandate ? , Macmillan Press/St Martin's Press, London/New York, , 1998. OTUNNU, OA, DOYLE, MW (eds.), Peacemaking and Peacekeeping for the New Century , Rowman & Littlefield, New York/Oxford, 1998. PECHOTA, V., The Quiet Approach , UNITAR, New York, 1972.

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Page 9889 89 RANSHOFEN WERTHEIMER, E., The International Secretariat , Carnegie Endowment for International Peace, Washington, 1945. RIKHYE, I., SKJELSBAEK, K. (eds.), The United Nations and Peacekeeping : Results, Limitations and Prospects : The Lessons of 40 Years of Experience , Macmillan/International Peace Academy, Basingstoke, 1990. ROVINE, AW, The First Fifty Years: The Secretary-General in World Politics 1920-1970 , AW Sijthoff, Leyden, 1970. RUSSEL, R., MUTHER, J. A History of the United Nations Charter , Brookings Institution, Washington DC, 1958. SAROOSHI, D., The United Nations and the Development of Collective Security , Clarendon Press, Oxford, 1999. SATO, T., Evolving Constitution of International Organizations , Kluwer, La Haye, 1996. SCHERMERS, HG, International Institutional Law , Sijthoff & Noordhoff, Alphen aan den Rijn/Rockeville, 1980. SCHWEBEL, SM, The Secretary General of the United Nations: His political power and practice , Harvard University Press, Cambridge MA, 1952. SIMON, D., L'interprétation judiciaire des traits d'organisations internationales : morphologies des conventions et fonction juridictionnelle , Pedone, Paris, 1981. SIOTIS, J., Essai sur le Secrétariat international , Droz, Genève, 1963. SLAUGHTER, AM., International Law and International Relations, Collected Courses of the Hague Academy of International Law , vol. 285, 2000, pp. 9-250. SMOUTS, M.-C., Le Secrétaire général des Nations Unies , Armand Colin, Paris, 1971. TWITCHETT, KJ (ed.), The Evolving United Nations : A Prospect for Peace , Europa Publications, London, 1971, pp. 71-83. UNITED NATIONS, The United Nations and Mozambique, 1992-1995 , UN Department of Public Information, New York, 1995. UNITED NATIONS, The United Nations and El Salvador, 1990-1995 , UN Department of Public Information, New York, 1995. UNDPI, The United Nations and Somalia, 1992-1996 , United Nations Publications, New York, 1996 ('United Nations Blue Book' series, vol. 8). VAN LANGENHOVE, F., Le rôle proéminent du Secrétaire général dans l'opération des Nations Unies au Congo , Institut Royal des Relations Internationales & Martinus Nijhoff, La Haye, 1964. 1964.

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