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
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1 Legal subjects 1 Hukum subyek
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1.1 International law 1.1 Hukum internasional 1.2 Constitutional and administrative law 1.2 Konstitusi dan administrasi hukum 1.3 Criminal law 1.3 Hukum pidana 1.4 Contract law 1.4 Kontrak Hukum 1.5 Tort law 1,5 Tort hukum 1.6 Property law 1,6 Properti hukum 1.7 Equity and trusts 1.7 Ekuitas dan kepercayaan 1.8 Further disciplines 1,8 disiplin lebih lanjut 2.1 Civil law 2.1 Hukum perdata 2.2 Common law and equity 2.2 umum hukum dan ekuitas 2.3 Religious law 2.3 Hukum Agama 3.1 History of law 3.1 Sejarah hukum 3.2 Philosophy of law 3.2 Filsafat hukum 3.3 Economic analysis of law 3.3 Analisis ekonomi hukum 3.4 Sociology of law 3.4 Sosiologi hukum 4.1 Judiciary 4.1 Yudikatif 4.2 Legislature 4.2 Legislatif 4.3 Executive 4.3 Eksekutif 4.4 Military and police 4.4 Militer dan polisi 4.5 Bureaucracy 4.5 Birokrasi 4.6 Legal profession 4.6 Hukum profesi 4.7 Civil society 4.7 masyarakat sipil

2 Legal systems 2 Sistem hukum
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3 Legal theory 3 Teori Hukum
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4 Legal institutions 4 Hukum lembaga
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• • • •

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

administrasi. but each country categorises. private international law or conflict of laws and the law of supranational organisations. Internasional. sedangkan trust hukum ditangani sesuai dengan rezim undang-undang atau konvensi internasional . [9] meskipun ada banyak disiplin lebih lanjut yang mungkin penting praktis lebih besar. [ edit ] International law [ sunting ] Hukum internasional Main articles: Public international law . A common distinction is that between " public law " (a term related closely to the state . International. hukum properti dan kepercayaan dianggap sebagai "mata pelajaran inti tradisional". administrative and criminal law). kerugian dan properti). contract and tort fall under a general law of obligations . dan mengidentifikasi subyek hukum dalam cara yang berbeda. [8] Dalam hukum perdata sistem. kontrak dan tort jatuh di bawah umum kewajiban hukum . [ 9 ] although there are many further disciplines which may be of greater practical importance. the United Nations system was agreed during World War II Menyediakan sebuah konstitusi untuk hukum internasional publik. dan hukum Uni Eropa Providing a constitution for public international law. dan administrasi hukum konstitusi. Conflict of laws . tetapi masing-masing categorises negara. kontrak. and European Union law Artikel utama: hukum internasional publik . Perbedaan umum adalah bahwa antara " hukum publik "(istilah yang terkait erat dengan negara dan pidana hukum dan termasuk konstitusi. kerugian. criminal law. hukum pidana. Semua menangani sistem hukum dengan masalah dasar yang sama.). dan " hukum swasta "(yang meliputi kontrak. property law and trusts are regarded as the "traditional core subjects". [ 8 ] In civil law systems. and including constitutional. contract. and " private law " (which covers contract. tort and property).All legal systems deal with the same basic issues. while trusts law is dealt with under statutory regimes or international conventions . and identifies its legal subjects in different ways. constitutional and administrative law. PBB sistem telah disepakati selama Perang Dunia II International law can refer to three things: public international law. Hukum internasional dapat merujuk . tort. Konflik hukum .

seperti sebagai WTO. hanya contoh dari kerangka hukum supranasional . Today. negara berdaulat memiliki kewenangan mereka berkumpul dalam suatu sistem pengadilan dan lembaga-lembaga politik . Para sumber-sumber untuk pengembangan hukum internasional publik adalah kebiasaan . seperti Perserikatan Bangsa-Bangsa (yang didirikan setelah kegagalan Liga Bangsa-Bangsa untuk mencegah Perang Dunia Kedua ). Increasing numbers of businesses opt for commercial arbitration under the New York Convention 1958 . Uni Eropa hukum adalah yang pertama dan. such as the Geneva Conventions . Hukum internasional publik dapat dibentuk oleh organisasi internasional . [ 12 ] hukum internasional publik memiliki status khusus sebagai hukum karena tidak ada kekuatan polisi internasional. [11] Namun. so far. beberapa badan. only example of a supranational legal framework . serta perdagangan dengan bisnis luar negeri. as well as trading with overseas businesses. [ 13 ] Meningkatnya jumlah usaha memilih arbitrase umum berdasarkan Konvensi New York 1958 . Public international law can be formed by international organisations . hukum internasional pribadi atau konflik hukum dan hukum organisasi supranasional. making the question of which country has jurisdiction even more pressing. 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. many regional agreements—especially the Union of South American Nations —are on track to follow the same model. These institutions are allowed the ability to • • . Given the trend of increasing global economic integration. dan pengadilan (misalnya Mahkamah Internasional sebagai peradilan PBB organ primer) kekurangan kapasitas untuk menghukum ketidaktaatan. [10] dengan Organisasi Perburuhan Internasional . perusahaan semakin mampu menggeser modal dan tenaga kerja rantai pasokan melintasi perbatasan. businesses are increasingly capable of shifting capital and labour supply chains across borders. In the EU. atau Dana Moneter Internasional . perjanjian regional banyak-terutama Uni Bangsa Amerika Selatan -berada di jalur untuk mengikuti model yang sama.pada tiga hal: hukum internasional publik. praktek dan perjanjian antara negaranegara berdaulat. The sources for public international law development are custom . sovereign nations have gathered their authority in a system of courts and political institutions . such as the United Nations (which was established after the failure of the League of Nations to prevent the Second World War ). seperti Konvensi Jenewa . • Public international law concerns relationships between sovereign nations. Saat ini. [ 10 ] the International Labour Organisation . membuat pertanyaan yang memiliki yurisdiksi negara bahkan lebih mendesak. or the International Monetary Fund . such as the WTO. sejauh ini. the World Trade Organisation . a few bodies. [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. di Organisasi Perdagangan Dunia . 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. practice and treaties between sovereign nations. [13] European Union law is the first and. [ 11 ] However. memiliki sistem yang efektif mengikat arbitrase dan penyelesaian sengketa didukung oleh sanksi perdagangan. Publik hukum internasional menyangkut hubungan antara negara-negara berdaulat. Mengingat kecenderungan peningkatan integrasi ekonomi global. Di Uni Eropa. have effective systems of binding arbitration and dispute resolution backed up by trade sanctions.

A case named Entick v Carrington [ 16 ] illustrates a constitutional principle deriving from the common law. Sebagian besar jurisdiksi. legislature and judiciary and the human rights or civil liberties of individuals against the state. eksekutif dan yudikatif dan hak asasi manusia atau kebebasan sipil individu terhadap negara. dengan Bill of Rights . kasus hukum dan konvensi . whose principles still have constitutional value Perancis Deklarasi Hak Asasi Manusia dan Warga Negara . dan administrasi hukum Konstitusi mengatur urusan negara. [ 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.enforce legal norms both against or for member states and citizens in a manner which is not possible through public international law. A few. from statute . seperti Amerika Serikat dan Perancis . have no such document. dari undangundang . 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. Uni Eropa hukum merupakan "sebuah baru hukum tatanan hukum internasional "untuk kepentingan sosial dan ekonomi bersama negara anggota. like the United States and France . A "constitution" is simply those laws which constitute the body politic . like the United Kingdom . Sebuah kasus bernama Entick v . have a single codified constitution. with a Bill of Rights . [ 14 ] As the European Court of Justice said in the 1960s. Sebuah "konstitusi" hanyalah hukum-hukum yang merupakan lembaga politik . hukum Konstitusi kekhawatiran baik hubungan antara legislatif. seperti Inggris . case law and convention . memiliki konstitusi dikodifikasi tunggal. European Union law constitutes "a new legal order of international law" for the mutual social and economic benefit of the member states. Most jurisdictions. Beberapa. [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 . tidak memiliki dokumen tersebut.

where it has not been taken away or abridged by some public law for the good of the whole . dan berusaha pelanggar diduga diatur oleh hukum acara pidana . [22] Investigasi. that a person is guilty of two things. [ 20 ] Spesialis pertama pengadilan administratif adalah Conseil d'État didirikan pada 1799. Mr Entick's house was searched and ransacked by Sheriff Carrington. apprehending. When Mr Entick complained in court. berkaitan dengan kejahatan dan hukuman. holds that the individual can do anything but that which is forbidden by law. Akhir besar. Orang bisa mengajukan permohonan peninjauan kembali tindakan atau keputusan oleh dewan lokal. was to secure their property. and the plaintiff must have judgment. [ 18 ] [ 19 ] Administrative law is the chief method for people to hold state bodies to account. dimana belum diambil atau ringkasan oleh beberapa hukum publik untuk kebaikan seluruh . That right is preserved sacred and incommunicable in all instances. Sheriff Carrington berpendapat bahwa surat perintah dari menteri Pemerintah. there was no written statutory provision or court authority. pertains to crimes and punishment. [21] Dengan demikian mengatur definisi dan hukuman untuk pelanggaran ditemukan memiliki dampak sosial cukup merugikan tapi. keheningan buku adalah otoritas terhadap terdakwa. was valid authority. sebagai Napoleon berkuasa di Perancis. also known as penal law. tepat Yaitu diawetkan suci dan tak dpt diberitahukan dalam semua hal. makes no moral judgement on an offender nor imposes restrictions on society that physically prevents people from committing a crime in the first place. Ketika Mr Entick mengeluh di pengadilan.. pengisian.. dan penggugat harus memiliki penghakiman. Namun. Lord Camden . rumah Mr Entick adalah mencari dan dijarah oleh Sheriff Carrington. menyatakan bahwa. berpendapat bahwa individu bisa melakukan apa-apa kecuali apa yang dilarang oleh hukum. Prinsip konstitusional fundamental. Hukum pidana. stated that. inspired by John Locke . Sheriff Carrington argued that a warrant from a Government minister. for which men entered into society. [23] Kasus . in itself. public services or government ministries. dalam dirinya sendiri. charging. the silence of the books is an authority against the defendant. beyond reasonable doubt . [ 22 ] Investigating. pelayanan publik atau departemen pemerintah. The leading judge. The first specialist administrative court was the Conseil d'État set up in 1799. untuk memastikan bahwa mereka mematuhi hukum. the Earl of Halifax . menahan.Carrington [16] menggambarkan sebuah prinsip konstitusional yang berasal dari hukum umum. Hakim terkemuka. yang laki-laki masuk ke dalam masyarakat. The great end. [ 17 ] Jika alasan tidak dapat ditemukan atau dihasilkan.. as Napoleon assumed power in France. and trying suspected offenders is regulated by the law of criminal procedure . and the state may do nothing but that which is authorised by law. tidak ada tertulis ketentuan undang-undang atau wewenang pengadilan.. People can apply for judicial review of actions or decisions by local councils. However. tidak membuat penilaian moral pada pelaku atau membebankan pembatasan terhadap masyarakat yang secara fisik mencegah orang dari melakukan kejahatan di tempat pertama. [20] [ edit ] Criminal law [ sunting ] Hukum pidana Main article: Criminal law Artikel utama: Hukum Pidana Criminal law. [ 21 ] It thus regulates the definition of and penalties for offences found to have a sufficiently deleterious social impact but. If no excuse can be found or produced. [18] [19] hukum administrasi merupakan kepala metode bagi orang-orang untuk memegang badan-badan negara ke account. juga dikenal sebagai hukum pidana. Tuhan Camden . adalah untuk mengamankan properti mereka. to ensure that they comply with the law. [ 23 ] The paradigm case of a crime lies in the proof. yang terinspirasi oleh John Locke . Earl of Halifax . [17] The fundamental constitutional principle. dan negara bisa melakukan apa-apa tapi itu yang diberi wewenang oleh hukum. adalah kewenangan yang sah.

[ 26 ] [ 27 ] Kelalaian tidak membawa tanggung jawab pidana kecuali kejahatan tertentu memberikan hukuman tersebut. untuk sihir di Salem Examples of crimes include murder . They were starving and the cabin boy was close to death. [26] [27] A depiction of a 1600s criminal trial . sank. atau mens rea (pikiran bersalah ). atau Actus Reus (bertindak bersalah).paradigma kejahatan terletak pada bukti. They argued it was necessary to kill the cabin boy to preserve their own lives. for witchcraft in Salem Sebuah gambaran dari pidana tahun 1600 sidang . tetapi mungkin dan . Para kru selamat dan diselamatkan. sebuah Actus Reus sudah cukup. dan kelalaian. fraud and theft . Tuhan Coleridge . a 17 year old cabin boy. Lord Coleridge . but put on trial for murder. such as killing in self defence . [ 25 ] Criminal systems of the civil law tradition distinguish between intention in the broad sense ( dolus directus and dolus eventualis ). memerintah. Mereka kelaparan dan anak kabin itu dekat dengan kematian. Namun untuk disebut " kewajiban ketat kejahatan ". seperti pembunuhan di pertahanan diri . penipuan dan pencurian . The Mignonette. or pleading insanity . Pertama. [25] sistem Pidana dari tradisi hukum perdata membedakan antara niat dalam arti luas (directus dolus dan eventualis dolus). were stranded on a raft. Driven to extreme hunger. However for so called " strict liability " crimes. or actus reus (guilty act). the accused must have the requisite malicious intent to do a criminal act. sailing from Southampton to Sydney . "untuk melestarikan's hidup seseorang adalah umumnya tugas. assault . bahwa seseorang bersalah karena dua hal. yang menguji pertahanan dari " keharusan ". but it may be the plainest and the highest duty to sacrifice it. Didorong kelaparan ekstrim. ruled. mengungkapkan ketidaksetujuan besar. an actus reus is enough. tenggelam. In exceptional circumstances defences can apply to specific acts. seorang bocah 17 tahun kabin tua. yang terdampar di rakit. berlayar dari Southampton ke Sydney . tanpa diragukan . para kru membunuh dan memakan anak kabin. The Mignonette . Contoh kejahatan termasuk pembunuhan . Three crew members and Richard Parker." Mereka berpendapat hal itu perlu untuk membunuh anak kabin untuk melestarikan kehidupan mereka sendiri. the crew killed and ate the cabin boy. Another example is in the 19th century English case of R v Dudley and Stephens . Negligence does not carry criminal responsibility unless a particular crime provides for its punishment. penyerangan . terdakwa harus memiliki diperlukan niat jahat untuk melakukan tindak pidana. or mens rea (guilty mind). "to preserve one's life is generally speaking a duty. Contoh lain adalah dalam bahasa Inggris abad ke-19 kasus R v Dudley dan Stephens . First. tetapi diadili untuk pembunuhan. atau memohon kegilaan . Dalam keadaan luar biasa pertahanan dapat berlaku untuk tindakan tertentu. terdakwa harus melakukan tindakan yang dianggap oleh masyarakat untuk menjadi kriminal. [ 24 ] Second. [24] Kedua. The crew survived and were rescued. the accused must commit an act which is deemed by society to be criminal. which tested a defence of " necessity ". and negligence. Tiga awak dan Richard Parker. expressing immense disapproval.

[ 28 ] Pada akhirnya. usually with the help of police. 111 negara anggota dari Mahkamah Pidana Internasional . but the community as well.." Hukum pidana kejahatan dipandang sebagai pelanggaran terhadap bukan hanya korban individu.. state supervision (such as probation). peraturan perundangan. " or " R (for Rex or Regina ) v . biasanya dengan bantuan polisi.jelas dan tugas tertinggi untuk pengorbanan itu. tapi opini publik sangat mendukung crew hak untuk melestarikan kehidupan mereka sendiri.. terutama berkenaan dengan hukuman . [28] Criminal law offences are viewed as offences against not just individual victims.... Orangorang dijatuhi hukuman gantung .. Some developed countries still condone capital punishment for criminal activity. or community service . " Also. Juga. tetapi masyarakat juga. and rehabilitation . takes the lead in prosecution. denda . atau pelayanan masyarakat . fines . " The men were sentenced to hang . legislation. the Crown commuted their sentences to six months in jail. lay juries are often used to determine the guilt of defendants on points of fact: juries cannot change legal rules. berbaring juri sering digunakan untuk menentukan kesalahan terdakwa pada titik-titik kenyataan: juri tidak dapat mengubah aturan hukum. especially with respect to sentencing . Crown commuted kalimat mereka untuk enam bulan penjara. legal research. which was established to try people for crimes against humanity . 111 countries are members of the International Criminal Court .. Modern criminal law has been affected considerably by the social sciences. itulah sebabnya mengapa dalam kasus-kasus hukum negara umum disebut sebagai " v Orang-orang . [ 22 ] The state. dan rehabilitasi . pengawasan negara (seperti percobaan). but public opinion was overwhelmingly supportive of the crew's right to preserve their own lives. yang didirikan untuk mencoba orang untuk kejahatan terhadap kemanusiaan . which is why in common law countries cases are cited as " The People v . [30] [ edit ] Contract law [ sunting ] Kontrak hukum Main article: Contract Artikel utama: Kontrak ." atau "R (untuk Rex atau Regina ) v . In the end. [29] Di bidang internasional. Beberapa negara maju masih membenarkan hukuman mati untuk kegiatan kriminal. but the normal punishment for a crime will be imprisonment . mengambil memimpin dalam penuntutan. [ 30 ] Hukum pidana modern telah dipengaruhi sangat oleh ilmu-ilmu sosial. tetapi hukuman normal untuk kejahatan akan penjara . [ 29 ] On the international field. penelitian hukum. [22] Negara.

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

kadang-kadang disebut delicts . The idea of estoppel or culpa in contrahendo . or infringed some pre-existing legal right. pertimbangan tidak diperlukan untuk kontrak yang akan mengikat. Unjust enrichment law. [ 33 ] In civil law jurisdictions. A simple example might be accidentally hitting someone with a cricket ball. sebuah kontrak biasa kata untuk membentuk hanya atas dasar suatu "pertemuan pikiran" atau "persetujuan kehendak". kemudian digunakan untuk mengembalikan hak kepada pemilik yang sebenarnya. "Pertimbangan" menunjukkan fakta bahwa semua pihak untuk kontrak telah bertukar sesuatu yang bernilai. Their ' abstraction principle ' ( Abstraktionsprinzip ) means that the personal obligation of contract forms separately from the title of property being conferred. 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. Torts. seseorang harus telah melanggar kewajiban untuk orang lain. [ 34 ] In France. sometimes called delicts . adalah kesalahan sipil. Untuk telah bertindak tortiously. atau melanggar beberapa hak hukum yang sudah ada sebelumnya. [33] Dalam yurisdiksi hukum perdata. Some common law systems. [ 37 ] . To have acted tortiously. [34] Di Perancis. yang bergerak menjauh dari ide pertimbangan sebagai syarat. an ordinary contract is said to form simply on the basis of a "meeting of the minds" or a "concurrence of wills". rather than contract law. Jerman memiliki pendekatan khusus untuk kontrak. are moving away from the idea of consideration as a requirement. one must have breached a duty to another person. daripada kontrak hukum. are civil wrongs. Gagasan estoppel atau culpa di contrahendo. can be used to create obligations during pre-contractual negotiations. yang mengikat ke dalam hukum properti. which ties into property law. [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. termasuk Australia."Consideration" indicates the fact that all parties to a contract have exchanged something of value. Unjust penyuburan hukum. 'Mereka abstraksi prinsip '(Abstraktionsprinzip) berarti bahwa kewajiban pribadi bentuk kontrak terpisah dari judul properti yang diberikan. is then used to restore title to the rightful owner. consideration is not required for a contract to be binding. Torts. dapat digunakan untuk membuat kewajiban selama negosiasi pra-kontrak. The " McLibel "dua orang yang terlibat dalam kasus terpanjang dalam sejarah Inggris untuk menerbitkan sebuah pamflet mengkritik McDonald's restoran. [ 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. Germany has a special approach to contracts. Beberapa sistem hukum umum. including Australia.

Contoh sederhana mungkin sengaja memukul seseorang dengan bola kriket. which occurs. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. [40] Dalam suatu gangguan klaim kebisingan dapat dihentikan. which form the basis of labour law in some countries by making trade unions liable for strikes. of her harm. [ 38 ] Another example of tort might be a neighbour making excessively loud noises with machinery on his property. The rule that you are to love your neighbour becomes in law. Tuhan Atkin mengambil pendekatan moral yang jelas. the most common form of tort. [37] Di bawah hukum kelalaian . dari menyakitinya. dan pertanyaan pengacara. baterai atau pelanggaran . fell ill with gastroenteritis and sued the manufacturer. yang bentuk yang paling umum melawan hukum.Under the law of negligence . Stevenson.. menerima balasan terbatas. for carelessly allowing the drink to be contaminated. is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay . and said. Dia mengaku telah menderita dari shock. Mrs Donoghue poured the remainder into a tumbler. Prinsip-prinsip kelalaian diilustrasikan oleh v Donoghue Stevenson . atau tidak terlalu jauh Akibatnya. [38] Contoh lain melawan hukum mungkin tetangga membuat suara bising berlebihan dengan mesin di atas tanah miliknya. Torts can also involve intentional acts. or not too remote a consequence. the injured party could potentially claim compensation for his injuries from the party responsible. (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 . The liability for negligence . Setelah dikonsumsi setengah dari itu.. Having consumed half of it. when a newspaper makes unsupportable allegations that damage a politician's reputation. Kewajiban untuk kelalaian . battery or trespass .. Anda tidak harus melukai tetangga Anda. you must not injure your neighbour. The House of Lords decided that the manufacturer was liable for Mrs Donoghue's illness. [38] Seorang teman dari Ny Donoghue memerintahkan botol buram dari bir jahe (ditujukan untuk konsumsi Mrs Donoghue) di sebuah kafe di Paisley . jatuh sakit dengan Gastroenteritis dan menggugat produsen. [ 42 ] when statute does not . (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 . Hal ini menjadi dasar bagi empat prinsip kelalaian. [ 39 ] Anda harus mengambil langkah yang sewajarnya untuk menghindari tindakan atau kelalaian yang anda bisa meramalkan akan cenderung melukai sesamamu... pihak yang dirugikan secara potensial dapat mengklaim kompensasi atas luka-lukanya dari pihak yang bertanggung jawab. [ 40 ] Under a nuisance claim the noise could be stopped. The decomposing remains of a snail floated out. Siapakah tetangga saya? receives a restricted reply. for example. Sisa-sisa yang membusuk siput melayang keluar. and the lawyer's question. Torts juga dapat melibatkan tindakan disengaja. A better known tort is defamation . [ 41 ] More infamous are economic torts. She claimed to have suffered from shock. [ 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 . karena sembarangan minum memungkinkan terkontaminasi. dan berkata. [39] This became the basis for the four principles of negligence. The House of Lords memutuskan bahwa produsen itu bertanggung jawab atas Donoghue's penyakit Ny.. Stevenson. tidak diragukan lagi didasarkan pada sentimen masyarakat umum tentang kesalahan moral yang pelaku harus membayar . Lord Atkin took a distinctly moral approach. Who is my neighbour? Aturan bahwa Anda mengasihi sesama Anda menjadi dalam hukum. such as assault . The principles of negligence are illustrated by Donoghue v Stevenson .. Nyonya Donoghue menuangkan sisanya ke dalam sebuah gelas. seperti penyerangan ..

seperti komputer. [ 45 ] Personal property . An example of a basic case of most property law is Armory v Delamirie . tapi bukan hal tertentu kembali. dan yang paling kompleks. yang membentuk dasar dari hukum perburuhan di beberapa negara dengan membuat serikat buruh bertanggung jawab atas pemogokan. and is the most complex. menyebabkan peraturan ketat pada bursa saham. hukum perusahaan . ketika koran membuat tuduhan unsupportable yang merusak seorang politikus reputasi. perjanjian . perjanjian sewa . It concerns mortgages . one of the world's first ever speculations and crashes. trusts and commercial law . mengatakan anak itu bernilai tiga halfpence dan bahwa ia akan . benda bergerak. Sebuah kanan di rem adalah hak untuk sepotong spesifik properti. but not a particular thing back. movable objects. kepercayaan dan hukum dagang . easements dan sistem hukum untuk pendaftaran tanah. sneakily dihapus batu. and sandwiches. [ 46 ] A chimney sweep 's boy found a jewel encrusted with precious stones. dan sandwich. mengacu pada segala sesuatu yang lain. perhiasan. [ 43 ] Sebuah kesalahan yang dikenal lebih baik adalah fitnah . sneakily removed the stones. jewelry. [ 44 ] Sebuah lukisan dari South Sea Bubble . Menyangkut hipotek . The goldsmith's apprentice looked at it. Real property . [43] [ edit ] Property law [ sunting ] Hukum Properti Main article: Property law Artikel utama: Hukum Properti A painting of the South Sea Bubble . such as stocks and shares . misalnya. Regulations on the use of personal property fall under intellectual property . led to strict regulation on share trading. licences . [41] Lebih terkenal adalah torts ekonomi. kadang-kadang disebut 'real estate' mengacu pada kepemilikan tanah dan hal-hal yang melekat padanya. such as computers. [46] Seorang pembersih cerobong asap anak s 'ditemukan sebuah permata bertatahkan batu mulia. Peraturan tentang penggunaan jatuh milik pribadi dalam kekayaan intelektual . easements and the statutory systems for land registration. He took it to a goldsmith to have it valued. cars. Dia membawanya ke tukang emas untuk memilikinya dihargai. refers to everything else. atau hak tidak berwujud. kontras dengan hak di personam yang memungkinkan kompensasi atas kehilangan. sometimes called 'real estate' refers to ownership of land and things attached to it. rental agreements . [42] ketika undang-undang tidak memberikan kekebalan. Properti hukum mengatur hal-hal berharga yang orang menyebutnya 'mereka'.provide immunity. Land law forms the basis for most kinds of property law. company law . contrasting to a right in personam which allows compensation for a loss. covenants . A right in rem is a right to a specific piece of property. lisensi . [44] Property law governs valuable things that people call 'theirs'. salah satu pertama di dunia yang pernah spekulasi dan crash. told the boy it was worth three halfpence and that he would buy it. [45] properti pribadi . tukang emas magang memandang itu. Tanah hukum membentuk dasar bagi sebagian besar jenis hukum properti. milik Real . yang terjadi. seperti saham dan saham . Contoh kasus dasar hukum properti kebanyakan gudang persenjataan v Delamirie . mobil. or intangible rights.

In fact the apprentice and the boy both had a right of possession in the jewel (a technical concept. because it could be shown to be first in time. but the boy's possessory interest was considered better. yang berarti bukti bahwa sesuatu bisa milik seseorang). karena bisa ditampilkan menjadi yang pertama dalam waktu . [48] Gagasan tentang properti menimbulkan masalah lebih lanjut filsafat dan politik banyak. meaning evidence that something could belong to someone). tetapi's berkenaan dgn tempat milik kepentingan anak itu dianggap lebih baik. bahwa orang yang dapat menunjukkan klaim terbaik untuk sepotong properti. [ 48 ] The idea of property raises many further philosophical and political issues. is that it is a right good against the world. The boy said he would prefer the jewel back. [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 . is the owner. but without the stones. Kasus ini digunakan untuk mendukung pandangan properti di yurisdiksi hukum umum. Anak itu menggugat tukang emas untuk itu magang usahanya untuk menipu dia. tapi tanpa batu. London. he should be considered the rightful keeper ("finders keeper") until the original owner is found. sehingga magang yang memberikannya. so the apprentice gave it to him. Obligations. against any contesting party. adalah bahwa hal itu adalah hak baik terhadap dunia. The boy sued the goldsmith for his apprentice's attempt to cheat him. Tuhan Ketua Mahkamah Pratt memutuskan bahwa meskipun anak itu tidak bisa dikatakan untuk memiliki permata itu. [47] Sebaliknya. Kewajiban. awal abad 19 . This case is used to support the view of property in common law jurisdictions. Possession may be nine tenths of the law. early 19th century The Pengadilan Chancery . [ 49 ] Locke berpendapat bahwa kita "hidup. Locke argued that our "lives. [ 47 ] By contrast. pendekatan hukum perdata klasik untuk properti. liberties and estates" are our property because we own our bodies and mix our labour with our surroundings.membelinya. Kepemilikan mungkin sembilan persepuluh hukum. Anak itu mengatakan dia akan lebih memilih permata kembali. yang dikemukakan oleh Friedrich Carl von Savigny . but not all. kebebasan dan perkebunan" adalah milik kami karena kami sendiri tubuh kita dan campuran tenaga kerja kita dengan lingkungan kita. Lord Chief Justice Pratt ruled that even though the boy could not be said to own the jewel. ia harus dianggap sebagai penjaga yang sah ("finders keeper") sampai pemilik asli ditemukan. seperti kontrak dan torts dikonseptualisasikan sebagai hak yang baik antara individu. like contracts and torts are conceptualised as rights good between individuals. adalah pemilik. Sebenarnya magang dan anak kedua memiliki hak kepemilikan di permata (konsep teknis. tetapi tidak semua. the classic civil law approach to property. terhadap pihak Peserta. that the person who can show the best claim to a piece of property. London. propounded by Friedrich Carl von Savigny .

Pengawas memiliki kewajiban untuk penerima mereka untuk merawat properti dipercayakan. [ 51 ] In the early case of Keech v Sandford [ 52 ] a child had inherited the lease on a market in Romford . dia menggugat Bapak Sandford untuk keuntungan bahwa ia telah membuat dengan mendapatkan sewa pasar. Hukum umum yang diberikan oleh hakim. tuan tanah itu (ternyata) menceritakan kepada Pak Sandford bahwa ia tidak ingin anak-anak untuk memiliki sewa diperbaharui. but it is very proper that the rule should be strictly pursued and not at all relaxed. This may seem very hard. that the trustee is the only person of all mankind who might not have the lease. whereas the 'beneficial' (or 'equitable') ownership of trust property is held by people known as 'beneficiaries'. pada penolakan untuk memperbaharui. 'Trustees' control property. but he put himself in a position of conflict of interest . [ 50 ] This meant equity came to operate more through principles than rigid rules. Mr Sandford was meant to be trusted. might have a lease to himself few trustestates would be renewed . Tuhan Raja . The common law was administered by judges.. London.Equity is a body of rules that developed in England separately from the "common law". the lease expired. Mr Sandford dipercayakan untuk memelihara properti ini sampai anak matang. bahwa wali amanat adalah satu-satunya orang dari semua umat manusia yang tidak mungkin sewa. Tapi sebelum itu. Para Kanselir Tuhan di sisi lain. Yet the landlord was happy (apparently) to give Mr Sandford the opportunity of the lease instead. on the refusal to renew. he sued Mr Sandford for the profit that he had been making by getting the market's lease. bisa menolak hakim membuat hukum jika dia pikir itu adil untuk melakukannya. setuju dan memerintahkan Bapak Sandford harus mengembalikan keuntungannya. if a trustee. whereas neither the common law nor civil law systems allow people to split the ownership from the control of one piece of property. Of course. tetapi sangat tepat bahwa aturan harus benar-benar dikejar dan sama sekali tidak santai. equity allows this through an arrangement known as a 'trust'. Lord King . sedangkan baik common law maupun sistem hukum perdata memungkinkan orang untuk membagi kepemilikan dari kontrol satu bagian dari properti. When the child (now Mr Keech) grew up. Dia menulis. [50] Ini berarti ekuitas datang untuk beroperasi secara lebih melalui prinsip-prinsip dari aturan-aturan kaku. Hal ini mungkin tampak sangat sulit. But before then. could overrule the judge made law if he thought it equitable to do so. For instance. He wrote. Mr Sandford was entrusted to look after this property until the child matured. Lord King LC was worried that trustees might exploit opportunities to use trust property for themselves instead of looking after it. agreed and ordered Mr Sandford should disgorge his profits.. as the King's keeper of conscience. jika wali. Tuhan Raja LC khawatir bahwa wali akan memanfaatkan kesempatan untuk menggunakan properti kepercayaan bagi diri mereka . kontrol kekayaan 'Pembina'.. The Chancellor Tuhan . ekuitas memungkinkan ini melalui pengaturan yang dikenal sebagai 'kepercayaan'. Saya lihat sangat baik. The Lord Chancellor on the other hand. sewa berakhir. sebagai Raja's penjaga dari hati nurani. The Lord Chancellor . Sebagai contoh. [51] Dalam kasus awal v Keech Sandford [52] seorang anak mewarisi sewa pada pasar di Romford . Tentu saja. Mr Sandford mengambilnya. The landlord had (apparently) told Mr Sandford that he did not want the child to have the renewed lease.. Ekuitas tubuh aturan yang berkembang di Inggris secara terpisah dari "common law". Mr Sandford took it. Namun pemilik bahagia (ternyata) untuk memberikan Bapak Sandford kesempatan sewa gantinya. I very well see. Mr Sandford dimaksudkan untuk dipercaya. sedangkan 'menguntungkan' (atau 'adil') kepemilikan properti kepercayaan dipegang oleh orang yang dikenal sebagai 'penerima'. London. tetapi ia menempatkan dirinya dalam posisi konflik kepentingan . mungkin sewa untuk dirinya sendiri beberapa kepercayaan-kebun akan diperbaharui . Ketika anak (sekarang Mr Keech) dewasa. Trustees owe duties to their beneficiaries to take good care of the entrusted property.

Tiga kategori disajikan untuk kenyamanan. famous examples being the British Museum or the Rockefeller Foundation . pengusaha dan serikat buruh . [53] Ini adalah kasus khusus untuk pensiun dana. Hukum menyebar jauh melampaui mata pelajaran inti dalam hampir setiap bidang kehidupan. Bisnis spekulan menggunakan kepercayaan yang baru saja menyebabkan crash pasar saham . seperti keamanan kerja . tugas ketat untuk wali membuat jalan mereka ke dalam hukum perusahaan dan telah diterapkan kepada direksi dan pejabat eksekutif kepala . such as job security . [ 53 ] This is especially the case for pension funds. the most important form of trust. Individual employment law refers to workplace rights. yang penting bentuk yang paling kepercayaan. the European Convention on Human Rights (which founded the European Court of Human Rights ) and the US Bill of Rights . Hak asasi manusia . yang Konvensi Eropa tentang Hak Asasi Manusia (yang • . employer and trade union .sendiri. where investors are trustees for people's savings until retirement . hak sipil dan hukum hak asasi manusia merupakan bidang penting untuk menjamin dasar kebebasan dan hak setiap orang. Business speculators using trusts had just recently caused a stock market crash . This involves collective bargaining regulation. Another example of a trustee's duty might be to invest property wisely or sell it. [ edit ] Further disciplines [ sunting ] disiplin lebih lanjut Law spreads far beyond the core subjects into virtually every area of life. health and safety or a minimum wage . dan hak untuk mogok . Contoh lain dari trustee's tugas mungkin untuk berinvestasi properti bijaksana atau menjualnya. Strict duties for trustees made their way into company law and were applied to directors and chief executive officers . though the subjects intertwine and overlap. Three categories are presented for convenience. bukan mencari setelah itu. These are laid down in codes such as the Universal Declaration of Human Rights . contoh yang terkenal sebagai British Museum atau Rockefeller Foundation . But trusts can also be set up for charitable purposes . and the right to strike . Hukum perburuhan adalah studi tentang hubungan industrial tripartit antara pekerja. Tapi percaya juga dapat diatur untuk tujuan amal . di mana investor wali bagi yang tabungan masyarakat sampai pensiun . Human rights . meskipun subjek berjalin dan tumpang tindih. Ini diatur dalam kode-kode seperti Deklarasi Universal Hak Asasi Manusia . hukum ketenagakerjaan Individu merujuk kepada hak-hak di tempat kerja. Hal ini melibatkan perundingan bersama peraturan. kesehatan dan keselamatan kerja atau upah minimum . civil rights and human rights law are important fields to guarantee everyone basic freedoms and entitlements. 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.

Kedua kekhawatiran warga negara hak untuk mendapatkan pengadilan yang adil atau mendengar. on the principle of separating ownership of property and control. The law of agency . bill of exchange . dan menelusuri kembali ke abad pertengahan Mercatoria Lex . Jaminan sosial hukum mengacu pada hak orang harus asuransi sosial. Hukum agen . Commercial law covers complex contract and property law. pada prinsip memisahkan kepemilikan harta dan kontrol. passed in the United Kingdom. hukum Perusahaan melompat dari hukum percaya. Both also involve the right of asylum and the problem of stateless individuals. Keduanya juga melibatkan hak suaka dan masalah stateless individu. Family law covers marriage and divorce proceedings. [54] • Civil procedure and criminal procedure concern the rules that courts must follow as a trial and appeals proceed. Both concern a citizen's right to a fair trial or hearing. 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 . hak-hak anak-anak dan hak atas kekayaan dan uang dalam hal pemisahan. Company law sprang from the law of trusts. 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 . The UK Sale of Goods Act 1979 and the US Uniform Commercial Code are examples of codified common law commercial • • • • Law and commerce Hukum dan perdagangan • • . [ 54 ] The Perjanjian Lisbon membuat Piagam Hak Dasar Uni Eropa yang mengikat secara hukum di semua negara anggota kecuali Piagam Hak Dasar Uni Eropa . yang memberikan investor dengan sederhana prosedur pendaftaran untuk memperoleh terbatas di bawah kepribadian hukum yang terpisah dari korporasi.Polandia dan Inggris . hukum asuransi .mendirikan Pengadilan HAM Eropa ) dan AS Bill of Rights . Sipil prosedur dan prosedur pidana keprihatinan aturan bahwa pengadilan harus mengikuti sebagai percobaan dan melanjutkan banding. hukum komersial meliputi kontrak yang kompleks dan hukum properti. Evidence law involves which materials are admissible in courts for a case to be built. such as jobseekers' allowances or housing benefits. insurance law . [55] Hukum modern perusahaan dimulai dengan Saham Gabungan Companies Act 1856 . the rights of children and rights to property and money in the event of separation. lulus di Inggris. [ 55 ] The law of the modern company began with the Joint Stock Companies Act 1856 . which provided investors with a simple registration procedure to gain limited liability under the separate legal personality of the corporation. kebangkrutan dan hukum kepailitan dan hukum penjualan semua penting. Bukti hukum yang melibatkan bahan diterima di pengadilan untuk kasus yang akan dibangun. and trace back to the mediæval Lex Mercatoria . seperti 'tunjangan pencari kerja atau manfaat perumahan. 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 . insolvency and bankruptcy law and sales law are all important. Hukum keluarga meliputi perkawinan dan perceraian persidangan. Social security law refers to the rights people have to social insurance. bills of exchange .

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 anticartel 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

In medieval England. The "doctrine of precedent". Both these codes influenced heavily not only the law systems of the countries in continental Europe (eg Greece). countries that have civil law systems range from Russia and China to most of Central and Latin America . Scotland . with the Bürgerliches Gesetzbuch . but may make less of a systematic attempt to codify their laws than in a "civil law" system. the Norman conquest led to a unification of various tribal customs and hence a law "common" to the whole country. [ 64 ] [ 65 ] Today.of Roman law and aimed to restore it to the peak it had reached three centuries before. King John had been forced by his barons to sign a document limiting his authority to pass laws. Common law systems also rely on statutes. 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. [ 63 ] Civil law codifications based closely on Roman law. 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. The common law developed when the English monarchy had been weakened by the enormous cost of fighting for control over large parts of France. the US state of Louisiana . both France. [ 67 ] A concentrated and elite group of judges acquired a . [ 66 ] The United States follows the common law system described below. but also the Japanese and Korean legal traditions. slowly slipped into the Dark Ages . and the Canadian province of Quebec ). then. or stare decisis (Latin for "to stand by decisions") means that decisions by higher courts bind lower courts. with the Code Civil ." [ 62 ] Western Europe. Common law originated from England and has been inherited by almost every country once tied to the British Empire (except Malta. in the 19th century. modernised their legal codes. passed by the legislature. and Germany. alongside some influences from religious laws such as Canon law continued to spread throughout Europe until the Enlightenment . meanwhile. [ 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.

1879. to bring Sharia law more into line with modern conditions and conceptions. when religious law applied under the Mecelle Until the 18th century. However a thorough and detailed legal system generally requires human elaboration. in the Pentateuch or Five Books of Moses. Another example is the Torah or Old Testament . and developed its own Court of Chancery . Canon law is only in use by members of the clergy in the Roman Catholic Church . In developing the common law and equity. equity was often criticised as erratic. especially under Lord Eldon . 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. The constitutions of certain Muslim states. with the Ottoman Empire 's Mecelle code in the 19th century being first attempt at codifying elements of Sharia law. [ 72 ] But merely in describing. Ijma (consensus) and precedent . the legal systems of many Muslim countries draw upon both civil and common law traditions as well as Islamic law and custom. [ 69 ] As a result. which some Israeli communities choose to use. Often the implication of religion for law is unalterability. This is mainly contained in a body of law and jurisprudence known as Sharia and Fiqh respectively. This contains the basic code of Jewish law. [ 74 ] Qiyas (reasoning by analogy). For instance. [ 75 ] [ 76 ] In modern times. and compared to its European counterparts the English judiciary became highly centralised. from around 1760. and it acts as a source of further law through interpretation. Sharia law was practiced throughout the Muslim world in a non-codified form. because the word of God cannot be amended or legislated against by judges or governments. In 1297. academic authors have always played an important part. such as Egypt and Afghanistan. At first. Israeli law allows litigants to use religious laws only if they choose. a systematic body of equity grew up alongside the rigid common law. was the first scholar to describe and teach it. in country after country. the first lawyer to be appointed as Lord Chancellor. recognise Islam as the religion of the state. the English Court of Common Pleas had five. efforts have been made. as time went on. for instance. [ 68 ] This powerful and tight-knit judiciary gave rise to a rigid and inflexible system of common law. From the time of Sir Thomas More . obliging legislature to .dominant role in law-making under this system. [ 71 ] In the 19th century the two systems were fused into one another. Nevertheless. [ 70 ] But over time it developed solid principles . increasing numbers of citizens petitioned the King to override the common law. [ 73 ] [ edit ] Religious law Main article: Religious law Religious law is explicitly based on religious precepts. A trial in the Ottoman Empire. and on the King's behalf the Lord Chancellor gave judgment to do what was equitable in a case. William Blackstone . scholars who sought explanations and underlying structures slowly changed the way the law actually worked. Since the mid-1940s. The Halakha is a code of Jewish law which summarises some of the Talmud's interpretations. while the highest court in France had fifty-one judges. the Quran has some law. that it varied according to the length of the Chancellor's foot. the Eastern Orthodox Church and the Anglican Communion .

which consisted of casuistic statements ("if ."). and is governed on the basis of Islamic law.. by codifying and inscribing it in stone. then . dating as far back as 3000 BC. [ 84 ] Yet Ancient Greek law contained major constitutional innovations in the development of democracy . and French.. which has generated a vast amount of literature and affected world politics . Athens had no legal science. [ 78 ] Iran has also witnessed a reiteration of Islamic law into its legal system after 1979. the ancient Sumerian ruler Ur-Nammu had formulated the first law code . also revered as the god of justice The history of law is closely connected to the development of civilization . this became known as the Codex Hammurabi . and takes the form of moral imperatives as recommendations for a good society. [ 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 . and no word for "law" as an abstract concept.adhere to Sharia. and has since been fully transliterated and translated into various languages. social equality and impartiality. Ancient Egyptian law. including English. contained a civil code that was probably broken into twelve books. for the entire public to see. and from about 8th century BC was the first society to be based on broad inclusion of its citizenry. [ 79 ] During the last few decades. Ancient Athens . Around 1760 BC. The most intact copy of these stelae was discovered in the 19th century by British Assyriologists. However. [ 77 ] Saudi Arabia recognises Quran as its constitution. Hammurabi placed several copies of his law code throughout the kingdom of Babylon as stelae . characterised by tradition. [ 83 ] The Old Testament dates back to 1280 BC. rhetorical speech. German... [ 81 ] [ 82 ] By the 22nd century BC. excluding women and the slave class. King Hammurabi further developed Babylonian law . The small Greek city-state. [ 85 ] . It was based on the concept of Ma'at . one of the fundamental features of the movement of Islamic resurgence has been the call to restore the Sharia.

100–300 AD) were foundational treatises in India. [ 91 ] Manu's central philosophy was tolerance and Pluralism . The eastern Asia legal tradition reflects a unique blend of secular and religious influences. but develops through the precedent laid down by the European Court of Justice . In mediæval England. Brunei. and comprise texts considered authoritative legal guidance. was supplanted by the common law when India became part of the British Empire . [ 92 ] This Hindu tradition. Lex Mercatoria was incorporated into countries' local law under new civil codes. [ 94 ] Japan was the first country to begin modernising its legal system along . In contrast to English common law. and have historically had independent schools of legal theory and practice. today there are signs that civil and common law are converging. containing 444 articles. [ 93 ] Malaysia. and was cited across Southeast Asia.369 words Ancient India and China represent distinct traditions of law. [ 86 ] [ 87 ] Over the centuries between the rise and decline of the Roman Empire . probably compiled around 100 AD (although it contains older material). codes in small books are easy to export and easy for judges to apply. the King's judges developed a body of precedent . and underwent major codification during Justinian I . which consists of enormous tomes of case law. which later became the common law . The Arthashastra . emphasised the freedom of contract and alienability of property. A Europe-wide Lex Mercatoria was formed so that merchants could trade with common standards of practice. The French Napoleonic Code and the German became the most influential. Singapore and Hong Kong also adopted the common law. numerous amendments and 117. [ 89 ] As nationalism grew in the 18th and 19th centuries. The Lex Mercatoria . [ 88 ] Although it declined in significance during the Dark Ages . but its detailed rules were developed by professional jurists. The Constitution of India is the longest written constitution for a country. along with Islamic law.Roman law was heavily influenced by Greek philosophy. 12 schedules. However. [ 90 ] EU law is codified in treaties. and were highly sophisticated. and the Manusmriti (c. Roman law was rediscovered around the 11th century when mediæval legal scholars began to research Roman codes and adapt their concepts. rather than with the many splintered facets of local laws. a precursor to modern commercial law. law was adapted to cope with the changing social situations.

in 2001 China joined the World Trade Organisation . [ 108 ] Kelsen believed that although law is separate from morality. [ 109 ] Therefore. which essentially inflates administrative law at the expense of private law rights. Hugo Grotius . 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. such as Jean-Jacques Rousseau . since they are acts of the general will. nor how we can be both free and subject to the laws. who fled there. Normative jurisprudence is essentially political philosophy . from a sovereign. backed by threat of sanctions. after negotiations lasting fifteen years. Carl Schmitt . each legal system can be hypothesised to have a basic norm ( Grundnorm ) instructing us to obey. and re-entered the mainstream of Western culture through the writings of Thomas Aquinas . [ 95 ] This partly reflected Germany's status as a rising power in the late 19th century. by importing bits of the French . The concept of "natural law" emerged in ancient Greek philosophy concurrently and in entanglement with the notion of justice. [ 103 ] Jeremy Bentham and his student Austin.western lines. [ 98 ] Furthermore. while analytic jurisprudence asks "what is law?". argue that law reflects essentially moral and unchangeable laws of nature. and asks "what should law be?". at least in terms of economic. John Austin 's utilitarian answer was that law is "commands.] On this view.. [. the founder of a purely rationalistic system of natural law. [ 96 ] Today Taiwanese law retains the closest affinity to the codifications from that period. [ 101 ] Natural lawyers on the other side. and never a particular person or action.] When I say that the object of laws is always general. since they are but registers of our wills.. Similarly. meaning we ought to obey it. and believed that law emanates from the will to power . 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. Kelsen's major opponent. The current legal infrastructure in the People's Republic of China was heavily influenced by Soviet Socialist law . since he is a member of the State. Thus. rights.. since no one is unjust to himself. the Austrian philosopher Hans Kelsen continued the positivist tradition in his book the Pure Theory of Law . [ 105 ] [ 106 ] [ 107 ] In 1934. law tells us what we "should" do. II. who rejected the principle of equality. 6. to whom people have a habit of obedience". after all. today China undergoing a process of reform. believed that this conflated the "is" and what "ought to be" problem. and cannot be labelled as "moral" or "immoral". A new contract code in 1999 represented a move away from administrative domination.. if not social and political. is a law? [. Bentham and Austin argued for law's positivism . [ 99 ] [ edit ] Philosophy of law Main article: Jurisprudence But what. [ 102 ] Immanuel Kant believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature". but mostly the German Civil Code. following David Hume . [ 97 ] Due to rapid industrialisation. I mean that law considers subjects en masse and actions in the abstract. Schmitt advocated a jurisprudence of the . nor whether the prince is above the law. nor whether the law can be unjust. argued that law arises from both a social impulse—as Aristotle had indicated—and reason. [ 104 ] Kant was also criticised by Friedrich Nietzsche . Jean-Jacques Rousseau. and Mao Zedong 's communists who won control of the mainland in 1949. it is endowed with "normativity". The Social Contract . because of the split between Chiang Kai-shek 's nationalists. [ 100 ] The philosophy of law is commonly known as jurisprudence. While laws are positive "is" statements (eg the fine for reversing on a highway is € 500). we at once see that it can no longer be asked whose business it is to make laws. that real law is entirely separate from "morality".

which denied that legal norms could encompass of all political experience. such as Richard Posner and Oliver Williamson and the so-called Chicago School of economists and lawyers including Milton Friedman and Gary Becker . Secondary rules are further divided into rules of adjudication (to resolve legal disputes). divided into primary (rules of conduct) and secondary ones (rules addressed to officials to administer primary rules). Joseph Raz . [ 116 ] . [ 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. and are hostile to state regulation or what they see as restrictions on the operation of free markets . Dworkin argues that law is an " interpretive concept". rather than jurisprudence. [ 110 ] Bentham's utilitarian theories remained dominant in law until the 20th century Later in the 20th century. on the other hand. given their constitutional traditions. Two of Hart's students continued the debate: In his book Law's Empire . In his view. The most influential proponents. rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid). [ 112 ] that requires judges to find the best fitting and most just solution to a legal dispute. [ 113 ] Raz argues that law is authority.exception ( state of emergency ). any categorisation of rules beyond their role as authoritative instruments in mediation are best left to sociology . are generally advocates of deregulation and privatisation . defended the positivist outlook and criticised Hart's "soft social thesis" approach in The Authority of Law . [ 115 ] The discipline arose partly out of a critique of trade unions and US antitrust law. identifiable purely through social sources and without reference to moral reasoning. HLA Hart attacked Austin for his simplifications and Kelsen for his fictions in The Concept of Law . Ronald Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. [ 111 ] Hart argued law is a system of rules.

Eugen Ehrlich . [ 123 ] The institutions of social construction and legal frameworks are the relevant areas for the discipline's inquiry. [ 121 ] Coase and others like him wanted a change of approach. runs a blog with Bank of Sweden Prize winning economist Gary Becker . [ 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. which lawyers learn and apply. At first. The idea is that law and regulation are not as important or effective at helping people as lawyers and government planners believe. [ 124 ] [ 125 ] . argued that if we lived in a world without transaction costs. The Nature of the Firm (1937). who sought to make distinct the differences between positive law. [ 120 ] So the law ought to pre-empt what would happen. partnerships. and be guided by the most efficient solution. [ 40 ] Coase said that regardless of whether the judge ruled that the sweetmaker had to stop using his machinery. Only the existence of transaction costs may prevent this. or that the doctor had to put up with it. legal theorists were suspicious of the discipline. [ 117 ] The most prominent economic analyst of law is 1991 Nobel Prize winner Ronald Coase . The Problem of Social Cost (1960).) is the existence of transaction costs . argued that the reason for the existence of firms (companies. Kelsen attacked one of its founders. regardless of the way a court might rule in property disputes. people would bargain with one another to create the same allocation of resources. where a noisy sweetmaker and a quiet doctor were neighbours and went to court to see who should have to move. His second major article. whose first major article. and other forms of 'law' or social norms that regulate everyday life. one of the Chicago School . by analysing the costs of action. economic analysis of law and more specialised subjects such as criminology . to put the burden of proof for positive effects on a government that was intervening in the market. etc. they could strike a mutually beneficial bargain about who moves house that reaches the same outcome of resource distribution. [ 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. generally preventing conflicts from reaching lawyers and courts.Richard Posner . [ 119 ] Coase used the example of a nuisance case named Sturges v Bridgman .

and is regarded as one of the founders of sociology and sociology of law. representative parliaments . Most countries have systems of appeal courts. not attributable to people but to abstract norms. an accountable executive . the legal profession and civil society itself. that thou givest up. 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. legislature and executive bodies. this is the Supreme Court . the military and police . and authorise all his actions in like manner. [ 131 ] Max Weber and others reshaped thinking on the extension of state. wrote in The Division of Labour in Society that as society becomes more complex. 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. [ 132 ] in Australia. John Locke. Georges Gurvitch and Leon Petrażycki in Europe. Weber began his career as a lawyer.Max Weber in 1917. [ 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 . whilst civil society is a term used to refer to the social institutions. the body of civil law concerned primarily with restitution and compensation grows at the expense of criminal laws and penal sanctions. communities and partnerships that form law's political basis. 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. the High Court . The custom and practice of the legal profession is an important part of people's access to justice . in contrast to the absolutist theory of Thomas Hobbes ' Leviathan . [ 123 ] Another sociologist. Leviathan . answering up to a supreme legal authority. made by covenant of every man with every man. [ 133 ] in . in his Two Treatises of Government . thy right to him. Thomas Hobbes. on this condition. Modern military. the Supreme Court . Around 1900 Max Weber defined his "scientific" approach to law. [ edit ] Judiciary [ sunting ] Yudikatif Main article: Judiciary A judiciary is a number of judges mediating disputes to determine outcome. in the UK. advocated for a separation of powers between the political. In the United States. Theodor Geiger . Émile Durkheim . [ 127 ] Other notable early legal sociologists included Hugo Sinzheimer . XVII The main institutions of law in industrialised countries are independent courts . bureaucratic organisation. identifying the "legal rational form" as a type of domination. [ 130 ] Their principle was that no person should be able to usurp all powers of the state . and Baron de Montesquieu in The Spirit of the Laws . or to this assembly of men.

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. [ 138 ] In communist states .Germany. the Cour de Cassation . and thus a woman's right to choose abortion. the US Supreme Court overturned a Texas law which forbade the granting of assistance to women seeking abortion . [ 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 . where matters are not constitutional. in France. whereby the unelected judiciary may not overturn law passed by a democratic legislature. But in common law countries. The UK. or subservient to the legislature. [ 140 ] [ 141 ] [ edit ] Legislature Main article: Legislature . [ 137 ] The US's constitution's fourteenth amendment was interpreted to give Americans a right to privacy . the judiciary may also create law under the doctrine of precedent . courts often examine whether state laws adhere to the Sharia: the Supreme Constitutional Court of Egypt may invalidate such laws. In most countries judges may only interpret the constitution and all other laws. [ 134 ] [ 135 ] For most European countries the European Court of Justice in Luxembourg can overrule national law. [ 139 ] In Muslim countries. Finland and New Zealand assert the ideal of parliamentary sovereignty . the Bundesverfassungsgericht . In Roe v Wade . A judiciary is theoretically bound by the constitution. the courts are often regarded as parts of the executive. when EU law is relevant. governmental institutions and actors exert thus various forms of influence on the judiciary. much as legislative bodies are. [ 140 ] and in Iran the Guardian Council ensures the compatibility of the legislation with the "criteria of Islam". such as China.

the Bundestag in Berlin. Greece. which can be formed from Members of Parliament (eg the UK or Germany). a majority of Members of Parliament must vote for a bill (proposed law) in each house. By the principle of representative government people vote for politicians to carry out their wishes. This can minimise arbitrariness and injustice in governmental action. The 'upper house' is usually elected to represent states in a federal system (as in Australia. the Parlamento Italiano in Rome and the Assemblée nationale in Paris. The traditional justification of bicameralism is that an upper chamber acts as a house of review. making changes to the law more difficult. the Duma in Moscow. 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). Although countries like Israel. Germany or the United States) or different voting configuration in a unitary system (as in France). If a country has an entrenched constitution. Normally there will be several readings and amendments proposed by the different political factions. [ 143 ] [ edit ] Executive Main article: Executive (government) The G20 meetings are composed of representatives of each country's executive branch . [ 142 ] To pass legislation. most countries are bicameral . In the UK the upper house is appointed by the government as a house of review .The debating chamber of the European Parliament Prominent examples of legislatures are the Houses of Parliament in London. a special majority for changes to the constitution will be required. But in a presidential system. A government usually leads the process. meaning they have two separately appointed legislative houses. the Congress in Washington DC. One criticism of bicameral systems with two elected chambers is that the upper and lower houses may simply mirror one another. Sweden and China are unicameral . and the legislature's role is reduced to either ratification or veto . In the 'lower house' politicians are elected to represent smaller constituencies .

the idea of a standing police force is relatively modern concept. The election of a different executive is therefore capable of revolutionising an entire country's approach to government. In presidential systems. [ 146 ] The first modern police were probably those in 17th-century Paris. whose office holds power under the confidence of the legislature.The executive in a legal system serve as a government 's centre of political authority . the leader of a party can change in between elections. Mediæval England 's system of traveling criminal courts . In a parliamentary system . Because popular elections appoint political parties to govern. The head of state is apart from the executive. The other important model is the presidential system . Italy. and Japan. [ 148 ] Weber famously argued that the state is that which controls the legitimate monopoly of the means of violence. used show trials and public executions to instill communities with fear to maintain control. and the bureaucracy. the executive often has the power to veto legislation. or assizes . and composed of members of the legislature. Examples include the German president (appointed by members of federal and state Parliaments) the Queen of the United Kingdom (a hereditary title). Ministers or other officials head a country's public offices. usually it will propose the majority of legislation. Most executives in both systems are responsible for foreign relations . the military and police. Germany. The executive is chosen by the Prime Minister or Chancellor . [ 151 ] . India. as with Britain. the executive acts as both head of state and head of government. Under a presidential system. In presidential systems. The term failed state refers to states that cannot implement or enforce policies. such as a foreign ministry or interior ministry . [ 147 ] although the Paris Prefecture of Police claim they were the world's first uniformed policemen. in the court of Louis XIV . [ 149 ] [ 150 ] The military and police carry out enforcement at the request of the government or the courts. and has power to appoint an unelected cabinet. the executive is known as the cabinet . their police and military no longer control security and order and society moves into anarchy . and propose government agenda. the US and Russia. and symbolically enacts laws and acts as representative of the nation. the absence of government. the executive branch is separate from the legislature to which is not accountable. [ 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. found in France. [ 144 ] [ 145 ] Although the role of the executive varies from country to country. and the Austrian president (elected by popular vote).

In 1765 he wrote. inspectors and intendants are not appointed to benefit the public interest. One of the earliest references to the concept was made by Baron de Grimm . [ 156 ] Weber wrote that the typical characteristics of modern bureaucracy are that officials define its mission. [ 153 ] Cynicism over "officialdom" is still common. and the workings of public servants is typically contrasted to private enterprise motivated by profit . a legal system's government servants and bodies that make up its bureaucracy carry out the directives of the executive. public services such as schooling. also have bureaucracies. who manage top down. [ 152 ] Like the military and police. Max Weber believed that a definitive feature of a developed state had come to be its bureaucratic support. a German author who lived in France. [ 155 ] Negative perceptions of " red tape " aside. here the offices. [ 154 ] In fact private companies. communicating through writing and binding public servants' discretion with rules. The etymology of "bureaucracy" derives from the French word for "office" ( bureau ) and the Ancient Greek for word "power" ( kratos ). [ 157 ] [ edit ] Legal profession Main article: Legal profession . [ 155 ] Writing in the early 20th century.[ edit ] Bureaucracy Main article: Bureaucracy The United Nations ' New York headquarters houses civil servants that serve its 192 member states. secretaries. The real spirit of the laws in France is that bureaucracy of which the late Monsieur de Gournay used to complain so greatly. policing or public transport are a crucial state function making public bureaucratic action the locus of government power. management is composed of career experts. clerks. health care. the scope of work is bound by rules. indeed the public interest appears to have been established so that offices might exist. especially large ones.

contracts. Negotiation and dispute resolution skills (including ADR techniques) are also important to legal practice. Many people trained in law put their skills to use outside the legal field entirely. or wills and trusts. in a chambers as a sole practitioner. the law should be adequately accessible to everyone and people should be able to foresee how the law affects them. a lawyer will often work in a law firm . [ 163 ] Once accredited. persuasive briefs . 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. 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. 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 ). accordingly. and. [ 158 ] This is a 16th-century painting of such a notary by Flemish painter Quentin Massys . there is a distinct category of notary . a Bachelor of Civil Law or a Juris Doctor degree [ 161 ] ). [ 162 ] In China and other developing countries there are not enough law-trained people to staff the existing judicial systems. [ 160 ] In order to maintain professionalism. a legally trained public official. in a government post or in a private corporation as an internal counsel . are required by law to have a special qualification (a legal education earning the student a Bachelor of Laws . depending on the field. legal periodicals and legislation. [ 164 ] [ edit ] Civil society . This usually entails exploring caselaw reports . In addition a lawyer may become a legal researcher who provides on-demand legal research through a library. Significant to the practice of law in the common law tradition is the legal research to determine the current state of the law. compensated by the parties to a transaction. [ 159 ] As the European Court of Human Rights has stated. bar council or law society . Spain and Greece. Law practice also involves drafting documents such as court pleadings . formal standards are more relaxed. Germany. a commercial service or through freelance work. Modern lawyers achieve distinct professional identity through specified legal procedures (eg successfully passing a qualifying examination).In civil law systems such as those of France. the practice of law is typically overseen by either a government or independent regulating body such as a bar association . Italy. but some still allow lawyers with training in traditional Islamic law to practice law before personal status law courts.

the more acceptable and legitimate the law becomes to the people. concerned by and capable of changing how political power is exercised over their lives. [ 170 ] Freedom of speech . . and of the non-governmental organizations which many of them support. one of its primary modern sources is found in the responses of ordinary men and women. As Australian barrister and author Geoffrey Robertson QC wrote of international law. to the human rights abuses they see on the television screen in their living rooms.Studies & Working Papers Etudes & Travaux . from which the basis of a deliberative democracy is formed. hospitals. neighbourhoods. churches. The modern dipole state– civil society was reproduced in the theories of Alexis de Tocqueville and Karl Marx . with authority to decide controversies between them. discuss. [ 165 ] Locke saw civil society as people who have "a common established law and judicature to appeal to.. 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 . profit-oriented firms. GENÈVE INSTITUT DE Universitaire Hautes Etudes INTERNATIONALES. [ 167 ] Hegel believed that civil society and the state were polar opposites.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. families. criticise and hold to account their governments. The more people are involved with. The most familiar institutions of civil society include economic markets. charities. [ 171 ] Page 1 Page 1 Jorge E. trade unions ." [ 166 ] German philosopher Georg Wilhelm Friedrich Hegel distinguished the "state" from "civil society" ( burgerliche Gesellschaft ) in Elements of the Philosophy of Right ..N ° I-2005 Studi & Makalah Kerja INSTITUT UNIVERSITAIRE DE HAUTES ÉTUDES INTERNATIONALES. Geneve . freedom of association and many other individual rights allow people to gather. debating clubs . non-governmental organisations . Viñuales Jorge E. schools. and religious associations. [ 168 ] [ 169 ] Nowadays in post-modern theory civil society is necessarily a source of law. universities.. within the scheme of his dialectic theory of history. .. by being the basis from which people form opinions and lobby for what they believe law should be.

each connected to two subtypes . 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. the precise way in which such constraints interact onJenderal peran politik Sekretaris. lain. 2002. and most importantly. sebuah kerangka analitis yang diperkenalkan. analisis. belum jelas belum dikonseptualisasikan. GENEVA SARJANA LEMBAGA STUDI INTERNASIONAL. Jorge Viñuales is a graduate from the University of Geneva (Political Science. either of legal or of subtipe sesuai yang dikaitkan dengan jumlah proses. Although there is a prolific amount of literature Meskipun ada sejumlah literatur yang produktif on the Secretary-General's political role.Studi ini membahas salah satu kesulitan besar dalam mendekati Sekretaris PBB General's role in international politics. masing-masing terhubung ke dua subtipe. 2003) dan Institut Studi Pascasarjana Internasional . Jorge Viñuales adalah lulusan dari Universitas Jenewa (Ilmu Politik.2002. baik yang lama maupun baru-baru ini dalam rangka untuk mengeksplorasi wawasan yang dapat diturunkan dari penggunaan. politik kendala yang ia adalah subyek. merupakan sebagai obyek penelitian dalam sastra. yang dapat diikuti dalam penelitian interdisipliner masa depan pada topik ini. 2003). the University of Fribourg (Law. yaitu interaksi antara hukum dan political constraints to which he is subject. presented in order of complexity. tentang bagaimana mereka dapat berkembang satu sama lain. JENEWA Page 2 Page 2 The study addresses one of the major difficulties in approaching the UN Secretary.GRADUATE INSTITUTE OF INTERNATIONAL STUDIES. namely the interactions between the legal and Jenderal peran dalam politik internasional. an analytical framework is introduced. structured into three levels of terdiri dari dua jenis dasar. cara tepat di mana kendala tersebut berinteraksi has not been clearly conceptualised yet. dan yang paling penting. 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. disajikan dalam urutan kompleksitas. baik dari hukum atau political nature. consisting of two basic types . The connections between basic types and their Hubungan antara tipe dasar dan mereka corresponding subtypes are attributed to a number of processes . 2003) and the Graduate Institute of International Studies University of Fribourg (Hukum. of how they may expand each other. 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. 2003). tetapi juga. 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. politik alam. terstruktur ke dalam tiga tingkat analysis .

history. yang termasuk bekerja.hei. Its Nya pluridisciplinary character is reflected in its publications. Peneliti pada Sekolah Hukum Harvard. founded in 1927.unige. kuliah. 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. dan berlokasi di Jenewa.ch & http://www. politics and economics. meliputi hukum. *** *** The Graduate Institute of International Studies.unige. Genève Graduate Institute of International Studies. 2004). Viñuales Institut Universitaire de Hautes Etudes Internationales.ch All rights reserved. Viñuales Jorge E.unige. politik dan ekonomi. which include works. rue de Lausanne 132. 2002.ch Email: publications@hei. (Hubungan Internasional. 2004). karakter pluridisciplinary tercermin dalam publikasi. Geneva Lulusan Institut Studi Internasional.(International Relations. tesis doktor dan makalah penelitian di bidang Hubungan Internasional. dikhususkan untuk pengajaran dan penelitian ilmiah dalam hubungan internasional kontemporer. 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. sejarah. covering law. and located in Geneva.unige. is Graduate Lembaga Studi Internasional.ch & http://www. politik di tingkat internasional.ISBN 2-8288-0105-5 Semua hak dilindungi undang-ISBN 2-8288-0105-5 Page 3 Page 3 The 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. rue de Lausanne 1211 Geneva 21 1211 Geneva 21 Switzerland Switzerland . 2002. © The Graduate Institute of International Studies © Lembaga Studi Pascasarjana Internasional 132. Jenewa Page 4 Page 4 Studies & 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. Publikasi ini muncul dalam bahasa Prancis atau Inggris. lectures. doctoral theses and research papers in the field of International Relations. adalah devoted to teaching and scientific research in contemporary international relations.hei. His research focuses on the relations between law and Penelitiannya berfokus pada hubungan antara hukum dan politics at the international level. Genève Institut Universitaire de Hautes Etudes Internationales. yang didirikan pada tahun 1927. These publications appear in French or English.

... ..... 12 2. .. 1.ch & http://www... ...... ... ..... Part one: The notion of political role Bagian satu: Pengertian tentang peran politik 1. ...1.. . . .... not political…………………….....ch All rights reserved All rights reserved ISBN 2-8288-0105-5 ISBN 2-8288-0105-5 October 2005 Oktober 2005 Page 5 Page 5 vv TT ABLE OF Mampu menampilkan CC ONTENTS ONTENTS Acknowledgement …………………………………………………………………. . ..........2. .. . . ... 17 17 4. .. . .....unige.. .... ..hei. . . . ....... 4... ... . . .. . . .. ..12 Liga Sekretariat: administratif. .... Vii Abstract …. . .ch & http://www... .. .. ... .... .... . Abstrak .. . .. . . . ..... . . II. .... ... .. 2... .. ........ ... .... ..... 1 I. 3. . .. .. . ....... .. bukan politik .. ...1. ... Introductory remarks…………………………………………………………… 27 Pengantar komentar ..vii Pengakuan ... .. ...unige. . . .ch Email: publications@hei.... . .unige... .... . ...... . 11 2.... .... . . . 11 11 2... .. . 17 3.. ......... ....... .. ............. ... .. .. ... . . Part two: Setting the framework Bagian dua: Menetapkan kerangka 1. .. ...... . .. ... .. The League's Secretariat: administrative. .. . . . . The political role of the UN Secretary-General in historical perspective ... .... ....... .. .. . ....2 Isi dari 'peran politik' dalam literatur . ..... ....Telephone : +41 22 908 5700 & Fax : +41 22 908 5710 Telepon: +41 22 908 5700 & Fax: +41 22 908 5710 Email : publications@hei... .... ... . .. .. . .. .. General remarks……………………………... ..…………………………… 17 3... ..... ... ...... ... ...hei. ... . A brief assessment………………………………………………………………23 Suatu penilaian singkat ..... . . 23 II... ..... ..... .. .. . ..... . ... ...... .. ...... . .. .. .2. . .. ... .1 Umum komentar .. ..... ... . .......... .. .. 9 9 2....... 27 ..2 The contents of the 'political role' in the literature………………………. ...1 General remarks…………………………….... .... 17 3.........………. .unige....... .... . . ... Pengantar komentar . .. ... .. ...... ... 2. .. .. . ... ... .. 2.......………………………………………………………………………. ......... ... ... ... ........3. . ..... .... .. .. .. . Introductory remarks ……………………………………………………………. . . . .. .. . . The drafting of the UN Secretariat: the quest for a political dimension…… 13 Penyusunan Sekretariat PBB: upaya untuk dimensi politik . 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 . Peran politik dari Sekretaris Jenderal PBB dalam perspektif sejarah . .. 2. .. .......... 13 3... ... ..... ... . . ..3....... .... .. ... . .... . . ..... . ix ix Introduction ………………………………………………………………………… 1 Pendahuluan . .. . .…………………………… 11 Umum komentar ........ ....... . .. ..... ....... . 3.. .. I. ..... 1...... ... .. .......... . .. .... . .. .....…......... . ... . .. . ... . .

.. ........2...3. .. Menilai tipe 1 ... 68 68 3.. . . ......1.. .... . Inducting patterns of interaction: an analytical framework……………………….. ..1....... 2. ... .... . ..... . ....2. Yemen and Bosnia Mengekang Sekretaris Jenderal: Libanon... 30 4. ...B )……………………………………………………………..2.. 2. ... When politics goes beyond law: exploring type 1 ………………………….. . ....2. .41 2. .. .. ...... . .... . .... . . ...... The legal and political scopes of action of the UN Secretary-General……………30 Hukum dan politik lingkup tindakan dari Sekretaris Jenderal PBB .. . 4. 2.. 42 42 2.. 62 62 2..75 Sekretaris Jenderal antara hukum dan politik: suatu kajian awal . ...Penurunan) .. .. .. Ketika politik melampaui hukum: menjelajahi tipe 1 . .. 2. ....3. .... .. .. ..2. . . ... 3..... ...... (Subtipe 1.. ....... . 2.. 43 43 2. Assessing type 1 …………………………………………………………...a) . .. ..... .. The conquest of an independent good offices role ( subtype 1. SekretarisJenderal peran politik dalam praktek .... 3. .. . . General remarks………………………………………………………….3.. ..... . . .. ... .2..... . 77 77 3. . ....... 3.. . . .... ..1...... . Pernyataan Umum . ...... . ........ .3.. . ... .... .2..... ..1. ..... ..... .. ... .. . .... . . . .. Putting law over politics: Congo and the retreat of UNEF Puting hukum atas politik: Kongo dan mundur dari UNEF ( subtype 2.. ..b) ... Introductory remarks……………………………………………………………. .1... 2. . Yaman dan Bosnia ( subtype 1. .. . .. ........... .... ... ...... .. . . . 42 42 2.. .. . . ... . ... . . Law and politics in the international society……………………………………..... . ....3.3.........34 Page 6 Page 6 vi vi III. . .. . . . ...... 2. .2..... 28 28 3. ..... 2... . .. .41 Pengantar komentar .2.. . .. . .. ... .. Hukum dan politik dalam masyarakat internasional . ....... ..... .3. .... 44 44 2.... 1........ .. .. .. ..... .. .. Reining in the Secretary-General: Lebanon.2...... ..B )……………………………………………………………. .2. . . The political limits of law: From the Lockerbie incident to Iraq Politik batas-batas hukum: Dari insiden Lockerbie ke Irak ( subtype 2.75 3.. .1...A )……………………………………………………………..... .... 62 62 2.. ... . 3.. ... . ...... ... .. ..... .... . . . ..2.. ...... ....... .... The Secretary-General's political role in practice………………………………. .75 Umum komentar ........ . . .. Part three: Exploring the practice: A case-studies approach Bagian tiga: Menjelajahi praktek: A-pendekatan studi kasus 1.1. . The Secretary-General between law and politics: a preliminary assessment…. .... . ..... . ..3. .. Ketika melampaui hukum politik: menjelajahi tipe 2 .. ..... .. . .. . When law goes beyond politics: exploring type 2 ………………………….... ... . .... (Subtipe 2.A )………. .1...34 Inducting pola interaksi: kerangka analitis .. ..... . ..... ... .. .. .. .. .. ...... . .....b) ...... ... . ... ..75 3... (Subtipe 2.... ... .2. . ... . ...... . . III.. ..... .. 2........ .. . 3.... . . Penaklukan dari kantor peran yang baik independen (subtipe 1. . 51 51 2... .... ..... ... . .. ... .. ...….... .. . . . General remarks…………………………………………………………. . ..

... .... .. .. ..... . ... 81 Select bibliography ……………….... Pilih bibliografi .. both in the field of Mereka mengajar. ...... reflections and Penelitian ini adalah hasil dari beberapa tahun bacaan. .... .... I would like to Saya ingin express my gratitude to all those who contributed directly or indirectly to this work.. ... and especially to Professors Vera Gowlland. . . ...... Their teaching. . . .. .... ...... . . .. Marcelo Kohen and Victor-Yves Ghebali dan khususnya untuk Guru Vera Gowlland. Page 8 Page 8 viii viii Page 9 Page 9 ix ix AA BSTRACT BSTRACT ... .......... ... . yang mengajari saya a lot about the actual practice behind the UN glass mansion that. bisa menjadi cukup buram ketika discretion is needed to address international disputes... ... kebijaksanaan diperlukan untuk mengatasi sengketa internasional. . atas dukungan intelektual dan bimbingannya. . 79 79 Conclusion ………………………………………………………………………… 81 Kesimpulan . diskusi tentang peran politik dari Sekretaris Jenderal PBB... former UN senior officer. . . Menilai tipe 2 . . . . . . . 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.. .Assessing type 2 …………………………………………………………......... who taught me Saya juga sangat berutang budi kepada Alain Dick....……………………………………………….. . ...... ... .. ... 85 85 Page 7 Page 7 vii vii AA CKNOWLEDGEMENT CKNOWLEDGEMENT The present study is the result of several years of readings... . .. pandangan.. ........ mengucapkan terima kasih kepada semua pihak yang memberikan kontribusi langsung maupun tidak langsung untuk pekerjaan ini.... . . ... .. .. . in the words of banyak tentang praktek yang sebenarnya di balik rumah kaca PBB bahwa..... refleksi dan discussions about the political role of the UN Secretary-General. . .. Marcelo Kohen dan Victor-Yves Ghebali for their intellectual support and guidance. .. .. . . 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. . ..... .. . ... .. dalam kata-kata former Secretary-General Javier Perez de Cuellar.. . ............ . I am also very indebted to Alain Dick..... ....... mantan pejabat senior PBB.. can become fairly opaque when mantan Sekretaris-Jenderal Javier Perez de Cuellar..... .. . . ... . .

an analytical framework is introduced. masing-masing connected to two subtypes . terdiri dari dua tipe dasar. 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.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. diikuti dalam penelitian interdisipliner masa depan pada topik ini. cara tepat di mana seperti constraints interact has not been clearly conceptualised yet. dapat mengembangkan satu sama lain. disajikan dalam urutan complexity. either of legal or of political nature. Page 10 Page 10 11 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 . kompleksitas. hukum dan politik yang ia adalah subyek. kerangka analitis yang diperkenalkan. berinteraksi kendala belum dikonseptualisasikan belum jelas. salah satu hukum atau alam politik. dan yang paling penting. and most importantly. tetapi juga. each sastra. disebabkan sejumlah proses. yaitu interaksi antara legal and political constraints to which he is subject. 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 barubaru ini dalam rangka to explore the insights that can be derived from its use. terstruktur menjadi tiga tingkat analisis. the precise way in which such literatur tentang Jenderal peran politik Sekretaris. consisting of two basic types . 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. untuk mengeksplorasi wawasan yang dapat diturunkan dari penggunaan. Although there is a prolific amount Meskipun ada sejumlah produktif of literature on the Secretary-General's political role. tentang bagaimana mereka may expand each other. presented in order of terhubung ke dua subtipe. structured into three levels of analysis . namely the interactions between the SekretarisJenderal peran dalam politik internasional. The connections between basic types and their corresponding subtypes are Hubungan antara tipe dasar dan subtipe sesuai mereka attributed to a number of processes . 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. of how they tentang bagaimana hukum dan politik membatasi satu sama lain.

Not only had the League of Nations and. PBB mantan Sekretaris-Jenderal. yang lebih generally. more generally. retrospektif. without any doubt. Javier Perez de Cuéllar. However. dan bahwa:" itu (adalah) tidak mungkin untuk meramalkan bagaimana artikel ini (would) be applied” (Akan) diterapkan " 22 . nyata jika kita merenungkan alasan historis. yang paling penting bukti yang belum pernah terjadi sebelumnya . in political affairs is obvious in konflik internasional serta. 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”. the Office of the UN Dunia Kedua satu Perang harus menyebutkan. the lion's share of this body of research pertains to what has been broadly Yang pasti. and that: “it (was) impossible to foresee how this article organisasi internasional ". dalam urusan politik adalah jelas di retrospective. the political involvement of Sekretaris Jenderal. Sekretaris-Jenderal. minat tercermin 1n literatur ilmiah yang produktif. 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 " 11 . a former UN Secretary-General. 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. . more Tidak hanya memiliki Liga Bangsa-Bangsa dan. berkualitas sebagai Jenderal peran politik Sekretaris. but also. Reporting on Article 99 of Charter of the Pelaporan Pasal 99 dari Piagam United Nations. For sure. masyarakat internasional serius menderita dari ketiadaan aktif politik Secretary-General. dan mungkin lebih penting. tanpa keraguan. This particular choice becomes self Ini pilihan tertentu menjadi diri evident if we reflect on historical grounds. tetapi juga. and perhaps more importantly. noted with regard Javier Perez de Cuellar. bagian terbesar dari tubuh berkaitan penelitian untuk apa yang telah secara luas qualified as the Secretary-General's political role. Kantor PBB Secretary-General. 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. . aktivitas. lebih umum. an interest reflected 1n a prolific scientific literature. tak terduga oleh para perancang Piagam. the Preparatory Commission stated that this article : “confer(red) a Perserikatan Bangsa-Bangsa.the Second World War one must mention. the most significant proofs of the unprecedented Namun. 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. the international society gravely suffered from the absence of a political active umumnya.

The Legal Position of the Secretary General of the 87. démarches entourées de kebijakannya. 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. 23 December 1945. Oxford. Cf. aujourd'hui séparés. Th. KINGSBURY. P/C 20. bien connus eux aussi leurs nominal initiales. di mana diusulkan bahwa Secretary-General be replaced with a “troika” Sekretaris Jenderal diganti dengan "troika" 33 . ketika ia mengecam serangan Korea Utara terhadap Korea Selatan. Th. 791. Les déclarations du Les deklarasi du Secrétaire général. cited in KUNZ. A.. hal 791.. The Good Offices Function of the UN Secretary-General in ROBERTS. NOLTE.Bagaimanapun Perlu dicatat bahwa Uni Soviet tidak memiliki dalil yang jelas tentang Kantor Sekretaris General at the time of the drafting Conferences. son langage plein de laconisme. A. sesi démarches entourées de discrétion. G. séparés aujourd'hui. dikutip dalam Kunz. Oxford. 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. hal 144. Divided World . célébrité sebanding à bénéficièrent Celle dont liontin temps un deux autres Voyageurs. ses d'autant plus d'interet que la personil de Leur auteur reste quelque PEU énigmatique. and Trygve Lie. G. SG/SM/4124. JL. Perserikatan Bangsa-Bangsa dalam American Journal Hukum Internasional. 40/4. B. devenus fréquents et Michel virally bisa diperhatikan: "Les pelayaran du Général meja tulis.. 23 Desember 1945.. bien connus eux aussi par leurs initiales. cited in FRANCK..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.. hal 87.. ses interventions et ses rapports se multiplient et sont considérés avec Meja tulis umum. Umum pada saat Konferensi penyusunan. Kingsbury. . where it was proposed that the terhadap Dag Hammarskjold selama krisis Kongo. Clarendon Press. 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 11 UN Press Release. intéressent toujours davantage l'opinion souvent en hubungan avec les les ditambah krisis kuburan. 144. B. World Terbagi. JL. 20 April 1988. Nolte. dikutip dalam Franck. 33 It should however be noted that the USSR had no clear proposition concerning the Office of the Secretary. p. 22 Cf. Oktober 1946. Clarendon Press.The Good UN Press Release. anak laconisme langage de plein. sering devenus et souvent en relation avec les crises les plus graves. when he denounced the North-Korean attack against South Korea. p. Posisi Hukum Sekretaris Jenderal United Nations in American Journal of International Law . 1993.. hal 7-8. Kantor Fungsi Sekretaris Jenderal PBB di ROBERTS. United Nations. P / C 20. . 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. p. 40 / 4. 20 April 1988. SG/SM/4124. 7-8. PBB. 1993. October 1946. dan against Dag Hammarskjold during the Congo crisis. pp.

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. succumbing to modesty.Page 11 Page 11 22 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. . pandangan ini adalah sempurna diadaptasi pada saat itu dirumuskan. mengalah pada kesederhanaan. against going too far in carrying out his mandate: “Anyone who has the kuliah Oxford. To give just un example. role. sulit untuk berdamai dengan pendekatan diskrit lebih sebagai other Secretaries-General. "Mr H. sebaliknya. Indeed. in his 1988 Hammarskjold bahwa Javier Perez de Cuellar ada dalam pikiran ketika ia memperingatkan. 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 " 44 . Bangsa pejabat.” played a major role in a number of Cold War Memang. kesombongan dan angan-angan. this view was perfectly adapted at the time it was formulated. it is unquestionable that “Mr H.. Although to a contemporary observer the preceding remark may appear either Meskipun untuk pengamat kontemporer komentar sebelumnya dapat tampak baik obvious or. difficult to conciliate with the rather discrete approach of jelas atau. there are good reasons to think that it was Untuk memberikan hanya contoh un." memainkan peran utama dalam sejumlah Perang Dingin and decolonisation crises. on the contrary. or her. mau tak mau. to vanity and wishful thinking. pada naluri diri penghapusan. to the instinct of self-effacement. that is. Satu sisi adalah Scylla mencoba mengembang peran terlalu liberal melalui pembacaan teks: dari mengalah. atau dia. lain Sekretaris Jenderal. On the other is the Charybdis of trying to limit the role yaitu. dan dekolonisasi krisis.. One side is the Scylla of trying to inflate the role through too liberal a reading of the text: of succumbing. pada tahun 1988-nya Oxford lecture. kehormatan untuk dilemparkan Sekretaris Jenderal harus menghindari dua ekstrem dalam memainkan perannya. terhadap akan terlalu jauh dalam menjalankan mandatnya: "Siapapun yang memiliki honour to be cast Secretary General has to avoid two extremes in playing his. 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. ada alasan-alasan yang baik untuk berpikir bahwa itu Hammarskjold that Javier Perez de Cuellar had in mind when he warned. mustahil untuk melarikan diri: yaitu. liontin récemment la la crise nominal provoquée situasi au Liban.

p.and to the desire to avoid controversy. Dateline UN : a New Hammarskjold ? MEISLER. Ada. meskipun dengan fluktuasi yang kuat. 1995. M. In short. . Memperlakukan pengembangan Sekretaris-Jenderal politik powers as a conquest against the deliberative bodies of the Organization. 361. dengan demikian. There are. Boutros Boutros-Ghali. J. Peran Sekretaris Jenderal PBB di ROBERTS. Schwebel in 1952 Stephen M. The Role of the UN Secretary-General in ROBERTS. terutama the 44 VIRALLY. KINGSBURY. 66 MEISLER. . will be called “A New Hammarskjold” by one of the yaitu Dr Boutros Boutros-Ghali.. dan ini dari awal sangat PBB. hal 180-197. A.Dalam pendahuluan dengan baikknown study on the UN Secretary-General. hal 26 (italics added). (Eds. masih lain incumbent. 1958. Dan beberapa tahun kemudian. and this from the very inception of the UN. Dateline PBB: sebuah Hammarskjold Baru? in Foreign Policy . pendekatan. cit.). namely Dr. Marie-Claude Smouts identifies two main dikenal studi tentang Sekjen PBB. B. Both Baik are equally damaging to the vitality of the institution. though with strong fluctuation. which she traces back to the founding work written by Yang pertama. And a few years later. 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. chiefly the kekuasaan sebagai penaklukan terhadap badan deliberatif Organisasi. 361. thus. 55 PEREZ DE CUELLAR. S. .. Le peran meja tulis politique du Général des Nations-Unies di Annuaire français de droit international.. . Le role politique du Secrétaire général des Nations-Unies in Annuaire français de droit international . 22 Maret 1995. godaan di kedua sisi.. The first. akan disebut "A Hammarskjold Baru" oleh salah satu leading journals of international affairs jurnal terkemuka urusan internasional 66 . treats the development of the Secretary-General's political . In the introduction to her well. B. 1958. Kingsbury. (eds.. 180-197. op.. op. Schwebel pada tahun 1952 88 . cit . March 22. temptations on both sides.. p. dalam Kebijakan Luar Negeri. dan keinginan untuk menghindari kontroversi.. 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 " 55 . Perez de Cuellar. the Singkatnya. yang ia dengan jejak kembali pendirian tugas tertulis Stephen M. 26 (huruf miring ditambahkan). J. Marie-Claude Smouts mengidentifikasi dua utama approaches to the topic pendekatan untuk topik 77 . still another incumbent. saat ini kokoh. para sarjana telah menggunakan berbagai approaches. S. To understand such involvement. pp. p. Virally. scholars have resorted to many different Untuk memahami keterlibatan tersebut. A.). M. sama-sama merusak vitalitas institusi...

77 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. 88 SCHWEBEL, SM, The Secretary General of the United Nations: His political power and practice , Harvard University SCHWEBEL, SM, Sekretaris Jenderal Perserikatan BangsaBangsa: kekuasaan politik-Nya dan praktek, Harvard University Press, Cambridge MA, 1952. Press, Cambridge MA, 1952. Page 12 Page 12 33 Security Council and the General Assembly Dewan Keamanan dan Majelis Umum 99 . . 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. SekretarisJenderal 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 intrainstitutional 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 Mariepertimbangan politik, seperti yang digambarkan oleh karya-karya Leon Gordenker dan MarieClaude 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, 99 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 BangsaBangsa: 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 13 44 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

kontribusi yang baru would seem pointless or at least lack badly originality. In our particular Secara khusus kami case.. the first impression of any Dihadapkan dengan kekayaan seperti studi dan analisis. 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. yang theoretical development as well as the empirical assessment of such intuition constitute pengembangan teoritis maupun penilaian empiris intuisi tersebut merupakan our personal undertaking. the political role of the Secretary-General. This was reflected in the growth of peacekeeping Hal ini tercermin dari pertumbuhan perdamaian operations. sebagai suatu peraturan. whoever pretends to Singkatnya. kesan pertama dari setiap newcomer to the field is that everything has been written.in general. Indeed. peran politik Sekretaris Jenderal. kasus. and in the stream of mandatory resolutions from the Security Council. . as a rule. Concurrently. on the position of the Secretary-General in a world fokus studi. operasi. termasuk kantor yang baik function. pada umumnya. whereas the Memang. we intend to try some kind of blend between these two options. kami berniat untuk mencoba beberapa jenis perpaduan antara dua pilihan. dan dalam aliran wajib resolusi dari Dewan Keamanan. also appeared to be expanding” fungsi. namely Thomas Franck and Georg Nolte. This interest was reflected in a number of bunga Hal ini tercermin dalam sejumlah studies focusing. yaitu Thomas Franck dan Georg Nolte. Confronted with such wealth of studies and analysis. the dua didirikan ahli di bidangnya. juga tampaknya memperluas " 15 15 . including the good offices Secara bersamaan. mekar Perserikatan Bangsa-Bangsa. 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. Ini tidak berarti bahwa tidak ada penelitian yang signifikan pada Sekretaris Jenderal pada periode ini. kepercayaan dari para ahli yang didirikan atau siap menghadapi tugas yang menakutkan. akan tampak sia-sia atau kurangnya orisinalitas paling buruk. 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. In short. any new contribution perkembangan tepi membutuhkan update pengetahuan ini. pendatang baru di lapangan adalah segala sesuatu yang telah ditulis. See for Lihat untuk . and in those of the UN Secretary-General in particular. kami pribadi melakukan usaha.Dengan tidak adanya pemotongan baru edge developments requiring an update of the present knowledge. 14 14 This does not mean that there were no significant studies on the Secretary General in this period. 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 . In the absence of new cutting.

hal 81-96. G. dan banyak lainnya (lihat kepustakaan).). BG. p. RAMCHARAN.. New York. MARTIN. N. BG. Memperkuat Diplomasi Perserikatan Bangsa-Bangsa untuk Perdamaian: Peran Sekretaris General in UNITAR. 1972 . D.. Kurt Waldheim: Diplomats' Diplomat in The Year Book of World Affairs ... Martinus Nijhoff Publishers. pp. Law and Politics . PECHOTA. 78.. op. and many others (see bibliography). 1977. 1983. hlm 177-209. 76/1. hal 191-205. 1975. PECHOTA. Kurt Waldheim dalam Revue Générale de droit international public . 191-205 .. 177-209. 177-209 . hal 143. 76 / 1. NOLTE. cit . RAMCHARAN. BOURLOYANNIS.example : PECHOTA.. cit. MC. 1987. 130-141. Kurt Waldheim in Revue générale de droit fonction de meja tulis Général de l'ONU à l'pengalaman traverse de M. . pp. O. V. 731-779 . 1987. G. London. New York. Perserikatan Bangsa-Bangsa dan Pemeliharaan yang of International Peace and Security . Strengthening United Nations Diplomacy for Peace: The Role of the Secretary. P.Penerbit. 1977. The Quiet Pendekatan. La contoh: PECHOTA. 1976. UNITAR... Essays on International Law . pp. UNITAR.. PBB Sekretaris Jenderal di Bidang Hak Asasi Manusia di American Journal Hukum Internasional. JAMES. PBB Secretariat : The Rules and the Practice . publik internasional. Martinus Nijhoff. KP. ELARABY. AM. Meron. Franck. Kantor SekretarisGeneral and the Maintenance of International Peace and Security in UNITAR. pp. D. pp. 1974. The UN dan Praktek di Nawaz. Nolte. Dordrecht / Boston / Lancaster.. Secretary-General U Thant in India Quarterly . Sekretaris Jenderal U Thant di India Triwulan.. Th.. hal 177-209. O. SAKSENA. pp. 31 / 4.Lihat misalnya: CORDOVEZ. Kluwer 1976.. PICOTTE. La fonction de Secrétaire Général de l'ONU à travers l'expérience de M.. 15 15 FRANCK. DCHeath. The Good Offices of Sekretariat: Peraturan dan mempraktekkan. Th. Martinus Nijhoff. V. Kantor Baik dari Sekretaris Jenderal Perserikatan Bangsa-Bangsa: Teori Kontemporer and Practice in NAWAZ. Lexington MA. BOURLOYANNIS. January 1982.. Januari 1982. 31/4. 143.. 16 16 See for example : CORDOVEZ. MERON. Hukum dan Politik. MC. The United Nations and the Maintenance of International Peace and Security.. hlm 130-141. 1972. The Quiet Approach . MK (ed. 1987. Dordrecht / Boston / Lancaster. Good Offices of the Secretary-General of the United Nations : Contemporary Theory hlm 343-361. PICOTTE.. Essays on Hukum Internasional. Dordrecht / Boston / Lancaster. Kluwer. op.. 1983. AM. hlm 731-779. Dordrecht / Boston / Lancaster. MARTIN. 81-96. Waldheim Kurt: 'Diplomat Diplomat dalam Kitab Tahun Urusan Dunia. SAKSENA. Lexington MA. V. N. 343-361. Fakta-Menemukan oleh Sekretaris Jenderal PBB di NYU Journal of Intl. PBB dan Pemeliharaan Perdamaian dan Keamanan Internasional. MK (ed. Th.). KP. JAMES. 1974. DCHeath. Perdamaian dan Keamanan Internasional. 1987. 78. Th.. London. Martinus Nijhoff Jenderal di UNITAR. V. The Office of the Secretary. Fact-Finding by the Secretary-General of the UN in NYU Journal of Intl. pp. ELARABY. P. The Kantor Baik the United Nations Secretary-General in the Field of Human Rights in American Journal of International Law . 1975. The United Nations and the Maintenance Umum dan Pemeliharaan Perdamaian dan Keamanan Internasional di UNITAR.

22. Secrétaire général de Martin's Press.. otorisasi. As terlibat dalam konsultasi informal dengan Dewan Keamanan dan dengan negara-negara individu. the authors point out : “Aside from these explicit or implicit SekretarisJenderal. Umum. Beberapa Aspek Hukum. HISCOCK-LAGEOT.. in order to perform his good offices functions. hlm 641-669. in fact. Boutros Boutros-Ghali. 22-36. MURTHY. 2000. FRANCK... Newman. The Role of the Secretary. Th. pp. 1991... Macmillan Press/St Sekretaris Jenderal dari Perang Dingin ke Era Baru: Sebuah Perdamaian Global dan Keamanan Mandat St?. his discretion as to how to proceed in a given case may. pp. 1990.. 104. 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. dalam rangka untuk melakukan jasa baik fungsi nya.. February 1991. G.. meja tulis Jenderal De l'ONU : grandeurs et servitudes d'un mandat unique in Revue generale de droit international public . 181. 2000. 35.. l'ONU: grandeurs servitudes et d'un SMERU unik dalam generale de droit publik internasional Revue 104. CSR. the Secretary-General. SKJELSAEK. E. 99-115.Analisis Hukum di Belanda Tinjauan Hukum Internasional. G. CSR. pengelompokan yang merupakan organisasi. P. 1998 . 28/1. The UN Akhir Perang Dingin dalam The Journal India Hukum Internasional 35. NOLTE. .. London/New York. E. hal 107-141. SKJELSAEK. penulis menunjukkan: "Selain dari eksplisit atau implisit authorizations. Murthy. NEWMAN.. The Inherent Powers of the UN Secretary-General in the Political Sphere : A 22.. PBB Secretary-General and the Mediation of International Disputes in Journal of Peace Research . SZASZ.. HISCOCK-LAGEOT. 1991. K. R. C. hlm 99-115. The UN Hukum dan Politik. hlm 22-36. Peranan SekretarisGeneral. Seperti a result... 1998. Nolte. P. Law and Politics .. Some Legal Aspects. Sekretaris Jenderal dan Mediasi Sengketa Internasional dalam Journal of Peace Research. 4 (1991).. NYU Journal of Intl. LAVALLE. PBB Secretary-General from the Cold War to the New Era : A Global Peace and Security Mandate ?. pp. op. 28 / 1.. K. Th op.196. Thus the Secretary-General is constantly Jadi Sekretaris Jenderal terus involved in informal consultations with the Security Council and with individual states. hlm 181-196. 1990. menjadi lebih sempit dari yang muncul pada . Peran Sekretaris Jenderal PBB sejak End of the Cold War in The Indian Journal of International Law . 37/1. Februari 1991. Macmillan Press / Martin's Press. C. considering the different legal bases of the Good Offices function of kontribusi mana. LAVALLE. 107-141. The Role of the UN Secretary-General since the cit. pp. London / New York. cit . NYU Journal of Intl. 1995. 4 (1991). 1995. 161-198. 37 / 1. Franck. Sekretaris Jenderal. mengingat dasar hukum yang berbeda dari fungsi Jasa Baik the Secretary-General. Page 14 Page 14 55 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. be narrower than it appears on Akibatnya. pp 161-198. pp. pada kenyataannya. ia kebijakannya tentang bagaimana untuk melanjutkan dalam kasus tertentu mungkin. pp. The Inheren Kekuasaan Sekretaris Jenderal PBB dalam Sphere Politik: A Legal Analysis in Netherlands International Law Review . R.. SZASZ. 641-669. Boutros Boutros-Ghali.

beberapa kasus dimana adanya kebuntuan politik telah memberikan Sekretaris . mungkin perlu dilaksanakan compliance with the specified – and perhaps even the implied – limits. Here. heurter. dès les premières années de fonctionnement de l'Organisation mengamati: "s'affirme Ainsi. takes for granted that the praktek diplomasi PBB. On voit mal à quelles limites juridiques l'exercice de cette compétence pourrait se par la pratique. penulis tampaknya membedakan dua different scopes of action. may need to be exercised in Jenderal melekat kekuasaan-Sekretaris. which is not itself a real novelty for any observer concerned with the Ide ini. dan parameters established by the political organ. This idea. narrowing the actual ruang lingkup politik tidak bisa campur tetapi sebagai pembatasan tambahan.dan mungkin bahkan tersirat . . menerima begitu saja bahwa political scope cannot intervene but as a supplementary limitation. voire contestées. directions. Général aussi bien devant l'Assemblée Générale que devant le Conseil de Securite. contestées voire. des années les perdana de fonctionnement de l'Organisasi et dans des conditions difficiles. Once a political organ begins to exercise its power in respect of a situation. kertas. A similar view stems also Pandangan serupa juga batang from a paragraph of the already cited article by Michel Virally. elle rencontrera beaucoup plus tot des limites politiques " 18 18 . tidak ada alasan untuk percaya ini selalu begitu. sementara tidak dicabut. lingkupnya berbeda tindakan. dari satu paragraf dari artikel yang sudah dikutip oleh Michel virally. while not repealed. En tout état de cause. the author Lie Tryve berkaitan dengan representasi Cina sebelum PBB. parameter yang ditetapkan oleh organ politik. la compétence politique très étendue du Secrétaire et dans des kondisi difficiles. or even with diplomacy tout court . the Setelah organ politik mulai menjalankan kekuasaan yang berkenaan dengan situasi. membahas tindakan of Tryve Lie with regard to the representation of China before the UN. In this paragraph. 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 . penyempitan yang sebenarnya legal scope. However. one legal and the other political. arah. atau bahkan dengan diplomasi tout pengadilan. la politique très kompetensi étendue du meja tulis général aussi bien devant l'Assemblée générale que devant le Conseil de sécurité. Pada voit mal limites à quelles juridiques l'exercice de cette kompetensi pourrait se heurter. discussing the action Di sini.batas. Namun. Leur régularité constitutionnelle sebuah finalement Ete orang yg dibaptiskan par la pratique. maka Secretary-General's inherent powers.paper . lingkup hukum. There have been Ada several cases where the existence of a political deadlock has provided the Secretary. yang tidak sendiri merupakan hal yang baru nyata untuk setiap pengamat berkaitan dengan practice of UN diplomacy. the authors seem to distinguish two Dalam ayat ini. 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. penulis observes: “Ainsi s'affirme. and sesuai dengan yang ditentukan . leur régularité constitutionnelle a finalement été confirmée critiquées. satu hukum dan politik lainnya.. elle rencontrera beaucoup plus tôt des limites politiques ” En tout état menyebabkan de. there is no reason to believe this is always so.

Th. at least until such time as the political organs acted to rescind his claimed keadaan menjadi usang. Michel . op. hal 174 (italics added). Th. on his own authority. p. cit. Th. Franck. . M. membuat analogi 17 17 FRANCK. hal 145. M.... cit. 4.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. G. Namun Satu menafsirkan pernyataan tersebut berbeda. Virally. 837 th th mtg. Umum otoritas. G. Th op. Hammarskjold menyatakan kepada anggota Dewan: "Di mana Anda disapprove … I would of course accept the consequences of your judgement” menolak . cited in FRANCK. mtg hal... Facing a deadlocked Menghadapi buntu Security Council. making an analogy bisa. Franck Franck and Nolte interpret such statement as a formulation of the limits of the Secretary. One could however interpret such statement differently. untuk lingkup hukum. Hammarskjold declared to the members of the Council: “Where you to Dewan Keamanan. the UN Observer Group in Lebanon. op.. Nolte.. NOLTE. 22 Juli 1958... Regarding this latter. G. tentu saja saya akan menerima konsekuensi dari penilaian anda " 19 19 .. Idem. 4. 174 (huruf miring ditambahkan). 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. p. Nolte. hal 372 (italics added). op. 19 19 Security Council Official Records . p. meningkat. op. One famous example is provided by Hammarskjold's decision to Salah satu contoh yang terkenal adalah yang disediakan oleh keputusan Hammarskjold untuk increase.dan Nolte menafsirkan pernyataan seperti perumusan batas Sekretaris General's authority... "Bersatu untuk Perdamaian" resolusi untuk sistem Piagam.. 145.. 837 Laporan resmi Dewan Keamanan. 18 18 VIRALLY.... G. cit . Page 15 Page 15 66 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. Michel Mengenai yang terakhir ini. p. cit. cit . 20 20 Idem.. cit. pada otoritasnya sendiri. Kelompok Pengamat PBB di Libanon.. 372 (huruf miring ditambahkan). dikutip dalam Franck. op.. NOLTE.. setidaknya sampai waktu seperti organ politik bertindak untuk membatalkan nya diklaim authority” wewenang " 20 20 . 22 July 1958.

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 . obvious that the political involvement of the Hal ini. Virally mencatat: "la constitutionnalité de la resolusi 377 (V) demeure. 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. Umum.argumen adalah relevan fortiori ketika datang ke intervensi dari Sekretaris General.Virally noted: “la constitutionnalité de la résolution 377(V) demeure. it has Pertanyaan terakhir telah ditinggalkan pada tingkat garis besar. some of which eventually led to the enlargement of his legal powers. tel qu'il avait été conçu en 1945. ditambah qu'aucune autre. cara yang tepat di mana kendala tersebut diberikan jauh lebih .. à faire glisser le tel qu'il conçu Ete avait en 1945. 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 . elle a une . et contribué.. However. cukup de l'équilibre politique entre le Conseil et de l'Securite Assemblée Générale. This latter question has been left at the level of outline. . In this Dalam hal ini view. un point extrêmement douteux et controversé … elle a … entraîné une transformation titik douteux et un extrêmement controversé . 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. dengan kata lain. jelas bahwa keterlibatan politik UN Secretary-General is located at a crossroad between legal and political constraints. mempertimbangkan pengaruh yang lain. ia memiliki remained a simple intuition. encore aujourd'hui. Most importantly. beberapa di antaranya akhirnya mengarah pada pembesaran kekuatan hukumnya.. tentu saja. it would be more accurate to say that there are two spectrums of action that overlap melihat. atau. or. untuk lingkup satu dari mereka pada saat tertentu tidak dapat ditentukan tanpa taking into account the influence of the other. seperti arguments are a fortiori relevant when it comes to the intervention of the Secretary. such dalam tugastugas yang berkaitan dengan pemeliharaan perdamaian dan keamanan internasional. akan lebih akurat untuk mengatakan bahwa ada dua spektrum tindakan yang tumpang tindih only partially. hanya sebagian. for the scope of one of them at a given moment cannot be determined without lingkungan. the precise way in which such constraints are exerted is far less Namun. tetap menjadi intuisi sederhana. inisiatif. plus qu'aucune autre. Sekretaris-Jenderal PBB terletak di persimpangan antara kendala hukum dan politik. aujourd'hui encore. of course. it is above all the political space left by a deadlocked Security Yang terpenting. . It is.. entraîné transformasi considérable de l'équilibre politique entre le Conseil de Sécurité et l'Assemblée générale. et a contribué. The focus of the analysis then shifts to the relations between these two Fokus analisis kemudian bergeser ke hubungan antara kedua spheres. in other words.

This approach will be presented in three main stages. More precisely.clear.. cit . M. 21 21 VIRALLY. of how they may expand each other. 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. Page 16 Page 16 77 PP ART ART OO NE NE The notion of political role Page 17 Page 17 88 Page 18 Page 18 99 1. 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. 22 22 CORDOVEZ. op. as part of an assessment of the insights that can be derived from the use of the framework proposed. vests a number . or. In this context.. jelas. p. 116. what will be understood by the terms “political role” or “political involvement” of the UN Secretary-General. Armand Colin. D. Introductory remarks The purpose of the present section is methodological. The third part will explore several case studies by using the analytical framework previously presented. In this 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. lainnya. There are in this regard several possible ways to characterize the activity of the Secretary-General in world affairs. 163. It is therefore not a question of if this interaction exists but one of how it operates. Chapter XV of the UN Charter. 1. L'organisation mondiale . 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. 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. p. In the second part.. Paris. Before going into the analysis of the actual practice. it is indeed necessary to specify what will constitute our research object. often subtle and in some cases artificial. 163. 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. 116. and distinctions between what should be considered truly political and what belongs to rather administrative or merely operational tasks are numerous. 1972. in other words. as well as many other provisions 23 23 . and most importantly.

86. op. p. 27 27 Such as the Secretary General's special right of diplomatic initiative. 25 25 SIOTIS. 158.. p. E. Essai sur le Secrétariat international . 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. HAMBRO. technical functions. and functions as coordinator of the policies and activities of the United Nations and the specialized Agencies 29 29 . J.. 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. Columbia University Press. p. 14. 26 26 See The United Nations Secretariat. and representational functions 24 24 . cited in GOODRICH L. . p. administrative or managerial functions 28 28 . this Namun. 1950. 36. the presentation of an annual report on the work of the Organization.4.1. No. Commentary and Documents (Third and Revised Edition). However. 67 and 70 of the Court's Statute. For instance. E. SIMONS. 23 23 See Articles 12. United Nations Studies . 4. SIMONS. AP. . the execution of the tasks entrusted to him by the General Assembly and the Councils and many others. a 1950 study 26 26 distinguished three categories: executive functions 27 27 . the Preparatory Commission at the Drafting Conference distinguished six main functions of the Secretariat: general administrative and executive functions. 7. 574. 73(e) and 102. 158. These functions can be classified in many different ways. AP. Carnegie Endowment for International Peace. organization and administration of the International Secretariat. hal ini classification presents the risk of being more formal than real. Charter of the United Nations... HAMBRO.. 1969.. 575. 24 24 Report of the Preparatory Commission. cited in GOODRICH L. political functions. Droz. cit .2. 20. 19. In this respect. p. New York.of functions in the Secretariat..1 of the UN Charter as well as Articles 5. . financial functions. 1963. qui ne correspond que partiellement à ses manifestations extérieures” 25 25 . Genève. New York-London.

though apparently administrative in character. namely his peacekeeping and good offices powers. In addition. Whereas it is hardly necessary to justify this assertion with regard to peacekeeping operations. such distinction is often blurred in practice. which constitute undoubtedly the major contribution of the UN to its primary role of maintaining international peace and security. Page 19 Page 19 10 10 Still another possibility. essentially of a secretarial nature. that whatever the usefulness of such broad classifications of functions. there are also technical and financial services which must be performed well if the Organization is to run smoothly. such as the conducting of peacekeeping operations or the use of the annual report as an instrument for expressing an autonomous UN policy. and seeing that records are prepared. administrative functions consist mainly in providing logistical assistance to the deliberative bodies of the Organization in order to facilitate their functioning. A good example of this latter point is provided by the historical evolution of Article 98 of the Charter. These services include providing meeting places for these bodies. the Security Council. whereas the political functions are usually characterized by a certain substantive autonomy. to the General Assembly. one could think of using narrower categories in order to keep closer to reality. Although these two fields do not cover the entirety of what can be labeled as “the political activity of the UN Secretary-General”. arranging for necessary facilities. is the distinction between administrative and political functions 30 30 . 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. ECOSOC. no generalization is possible without strong simplification.28 28 The functions and powers coming under this heading refer mainly to the provision of services. Though quite intuitive at first sight. have in practice provided the basis for important political initiatives of the UN Secretary-General. this is where his role in international politics is most relevant for the original goal of the Organization. . especially in the field of international peace and security. preparing and circulating documentation. traditionally employed by scholars working on UN issues. for our purpose. This is what we intend to do in this study. and the large number of subsidiary organs and special bodies set up to do the work of the UN. This caveat being made. Broadly speaking. For the purpose of our analysis. . we will concentrate on the two major fields of political activity of the UN Secretary-General. the international public opinion is by far less aware of the importance of the SecretaryGeneral's good offices. This means. The three functions enunciated in this article. coordinating particular projects and establishing policy coordination boards etc. the Trusteeship Council.

Ch. 30 30 See for instance: VIRALLY. although the travaux préparatoires of the UN Charter are not clear as to what the drafters meant exactly by a more political secretariat. 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. 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. Indeed. The constraints of multilateral diplomacy further complicated this already fuzzy landscape.. qui a une importance capitale pour le fonctionnement de l'organisation internationale. which will put the Secretary-General at a crossroad between law and politics. it is at least possible to assert with considerable certainty that the experience of the League represented a countermodel. major powers put the emphasis on the mechanisms of selection and control of the Secretariat.. This procedure will be composed of two parts. 11. 1109-1111.-H. as a necessity. we will try to show that. The Secretary-General of the United Nations in International and Comparative Law Quarterly . 1962. soit un secrétariat réellement indépendant … libre de prendre des initiatives dans . The idea of a politically active head of the Organization is present in most avantprojets . Moreover. Soit un secrétariat dominé par les grands … mais disposant des moyens nécessaires à l'exercice des droits prévus par l'article 99. but aware of the difficulty to foresee the way in which such innovation would unfold in the following years. pp. The first part will consist of an historical survey of how the political dimension of the Secretary-General came to be recognized.1. pp. General remarks In searching for the sources and the first conceptions of a more political secretariat.1. 2. ALEXANDROWICZ. 1958. Page 20 Page 20 11 11 2. model. the first point that must be mentioned is the importance of the experience of the League of Nations. 361-365. though clearly desired.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. Le role politique du Secrétaire général des Nations-Unies in Annuaire français de droit international . in reference to Article 99 of the Charter : “Les solutions adoptées à San Francisco nous semblent contradictoires. M. leading to the rather shy legal formulation included in the UN Charter. The political role of the UN Secretary-General in historical perspective 2. Jean Siotis concludes his evaluation of the San Francisco Conference saying. In this Dalam hal ini part. 2. In his Essai sur le Secrétariat international . car l'article 99. the implications of vesting a political dimension in the Secretary-General were poorly understood. in the mind of the drafters of the Charter. this early stage is perhaps the best moment at which we can identify the “original sin” of the drafters.

1919-1933. Page 21 Page 21 12 12 2. before the League was established only small permanent international secretariats with technical functions had existed. It is. 31 31 SIOTIS. p. though willing to grant political prerogatives to the future head of the Organization.. 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 .. In this regard. 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 . Therefore. he should be far more under the control of major Powers. Clarendon Press. . by reasoning a contrario of this first experience. The remark of Professor Siotis is very perceptive. If the Secretary-General was to enlarge his political involvement. As Jean Siotis has rightly pointed out.. 156.2. J. such as those of the European Commission of the Danube or the Universal Postal Union. it can be useful to take a look at what this administrative stance precisely consisted of 32 32 . 1979.2. Office without power: Secretary-General Sir Eric Drummond . precisely this ambiguity that constituted the basis of the Soviet attack against the Secretary-General during the Congo crisis. 156. The League's Secretariat: administrative. 2. to a large extent. In any case.. League's Secretariat was to be considered a pioneer 33 33 in many respects. J. the Oleh karena itu. the main difficulty remains that. reflected in the title of an important study on the League's first Secretary-General: BARROS. the victorious powers had no precise idea of what this really meant. cit. Oxford. there were two that provided for a strong Secretariat vesting large power in the “Chancellor”. op. for the political dimension eventually vested in the UN Secretary-General was developed. 32 32 The extent of such administrative stance is. as this high Officer was . not political. mais dont les fonctions se limiteraient essentiellement au plan administratif.certains domaines. for instance. for instance. They Mereka only seemed to acknowledge that the administrative stance adopted by the League's secretariat was not enough.

Indeed. But these ambitious conceptions were eventually abandoned in favour of a far more restricted one after the eminent candidate. Such stance was. There was nevertheless some space in the Covenant as well as in regulatory provisions for the political involvement of the Secretary-General. it was the first Secretary General of the League. unlike its predecessors. . Moreover. Kantor. adopted in 1921 39 39 ..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. 35 35 Although nothing in the Covenant required an international civil service instead of an intergovernmental one. and should in particular avoid making any suggestions on the substance of such decisions. however. In practice. for the rest. 36 36 We refer here to the British projects of Lord Robert Cecil (January 14 th th . Indeed. 1919) and that written by the experts of the Foreign Office (January 20 th th . 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. The text finally adopted gave the Secretary-General an auxiliary role. even without the request of a Member State 42 42 . confirmed in 1930 by the Report of the Committee of Thirteen 40 40 . 34 34 Given that. whereas Article 11. the good functioning of the Organisation required substantial numbers of persons from different countries with a wide range of functions and operating continuously. Eleutherios Venizelos. who drawing upon his long experience as a British civil servant introduced this conception. This latter part of the provision clearly shows the secondary position of the League's Secretariat 38 38 as well as its administrative character. Sir Eric Drummond.called disebut 37 37 . with a permanent Secretariat”. . the Noblemaire Report. this 33 33 Altogether with the International Secretariat of the International Labour Organisation. urgently insisted that the Secretariat should not go beyond the preparation and the execution of the decisions of the principal organs. refused the Office.

The framers of the Charter were most anxious not to let such void occur again” 44 44 . let us now briefly review the different contents that the major powers intended to give to such political dimension. In this regard. 38 38 The French text uses the word “assister”. Au reçu de cet avertissement. There was no one who could speak for the wider international interest. 40/4. cf. J. . While this is clear in retrospective. Séance des Commissions . op. cit . The Legal Position of the Secretary General of the United Nations in American Journal of International Law . 1921... cited in SIOTIS. rather. . op. GP Putnam's Sons. revealed harmful in many situations. were based on a purely administrative conception of the post of Secretary-General. 1927. 40 40 Doc. A. 1930. J. Such low profile. New York / London. or of both. The Drafting of the Covenant . There was Ada no one in a position to initiate timely intervention by the League to avert the collapse of the international system. Javier Perez de Cuéllar recalls the experience of the League with the following words: “The League's Covenant. I-II.16. Idem . 55. mentioned in KUNZ. 1919).. In order Dalam rangka to continue this short archeology of the political character of the current Secretariat. an interest greater than the sum of the interests of the member states.. M. 37 37 Article I of Robert Cecil's project stated: “The General Secretary or Chancellor should be appointed by the Great Powers. For further details see MILLER. choosing a national from some other country”. p. at the time of the drafting conference it was not clear how to fill the void mentioned by Perez de Cuellar. DH.305. 39 39 League of Nations Document C. p. 1946. 55. X. cited in SIOTIS. Doc. le Conseil se réunira”. vol. p. J. 87.424. Actes de la Deuxième session de l'Assemblée. p. of personal style. if possible. 787. whether the result of structural legal and international constraints or. Page 22 Page 22 13 13 possibility was never used by any of the two Secretaries-General of League 43 43 ... 356. cit . 41 41 Italics added. and its practice. . 87. 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.

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.2. The other allies did not become truly involved in this process until the Conferences of Dumbarton Oaks. many non-governmental associations got involved in the drafting making a wide range of proposals. 44 44 PEREZ DE CUELLAR. 45 45 In the United States.. 2 nd nd edn. 2.)”... generally speaking. This is why it is useful. A. rapporteurs.3. (eds. to discuss the major American projects at some lengthy. Finally. p. in turn. United Nations. was in charge of establishing the final version of the project. This organ. the Carnegie . with any doubt. Divided World. In addition to this official work. the most influential one was. which. Ibid . completed most of the technical work by the summer of 1943 and was then reduced to form the Informal Political Agenda Group . The drafting of the UN Secretariat: the quest for a political dimension First of all. The UN's Roles in International Relations . pp. KINGSBURY. a great deal of their involvement consisted of reacting to American proposals. en prêtant ses bons offices pour réunir deux ou plusieurs délégations . it should be noted that the United States were by far the most active State in the preparation of the future Organization 45 45 . 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 offrant ses services aux délégués. With regard to the Secretariat.. the main part of the work was carried out by the Subcommittee on Political Problems of the Advisory Committee on Post-War Foreign Policy.). et en particulier à ceux d'entre eux qui occupaient un poste de responsabilité au sein des organes multilatéraux (présidents. the American position was aimed. Clarendon Press. 1993. 88.3. as a first step. and still. J. Oxford. this group was enlarged constituting the American delegation at the International Conferences. at expanding the political powers vested in it while keeping them under control through the interplay of structural constraints. B. etc. The Role of the UN Secretary-General in ROBERTS. 88. which had started to function before the conclusions of the Moscow Conference. . Among them. 125-142. It appears that President Roosevelt himself was concerned with giving the future Head of the Organization a say in political affairs. in the summer of 1944.

the Director General was to preside over the Council and participate in its deliberation without the right to vote. provided the General Secretary in Articles 3 and 4 with unprecedented executive powers such as presiding the two executive organs of the Organization. The Draft Constitution . which. under the heading United States Tentative Proposals for a General International Organization . who seems to have used the term moderator in describing his idea of this official. which organized several Conferences regrouping some American specialists and former officials of the League of Nations. As to the Draft Charter . . though referring in its Article 7 to the Secretariat as a purely administrative organ. summoning the meetings of the Council at his own discretion and even disposing of a veto right regarding any decision of the Committee.Endowment for International Peace. Washington. had similar prerogatives to those granted in the Draft Charter to the Director General . Proceedings of the Conference on Training for International Administration . . A third project. namely the Possible Plan of General International Organization of April 29 th th 1944. 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. all major drafts included innovative prerogatives aimed at giving the Secretariat a political dimension. was to be presented at the Dumbarton Oaks . Carnegie Endowment for International Peace. called President . serving as the link between these two bodies. 1944. Page 23 Page 23 14 14 “Precisely what Roosevelt had in mind is not clear from the available records. Proceedings of the Conference on Experience of International Administration . 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. 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 . In Dalam any case. the latter. For further details see: Proceedings of the Exploratory Conference on the Experience of the League of Nations . Washington. 1943 . The final version of this latter project. 1942 . Carnegie Endowment for International Peace. 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 . Carnegie Endowment for International Peace. The first two projects. In retrospect. Washington. introduced a distinction between the administrative and the political head of the Organization.

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 .. and it will be strange indeed if all members will not exert strong pressure for representation on its staff. 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. while they agreed with Americans on the principle of giving some political prerogative to it. 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. although broadly speaking it was related to the moderation of conflicts between major powers. they do not agreed on the content of such prerogatives. Lessons from experience by a group of former 46 46 RUSSELL. was however far less progressive. led the American administration to suppress the provisions providing for a political head. Curiously enough. J. First. p. For our purpose this means at least two things.. 373. 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 . 1958. its spelling out was unclear. although there were no British comprehensive projects on the organization. . Again. the extent or even the form of such prerogative was very unclear. 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. As to the Chinese and Soviet conceptions. A History of the United Nations Charter . . Second. the suppression took the form of a mere cut from the overall project. while the principle of a more political involvement was accepted. MUTHER. Indeed. R. there was indeed a political will to vest in the future Head of the Organization some kind of political prerogative. The greater the political importance of the organization. Indeed. Page 24 Page 24 15 15 officials of the League of Nations 48 48 .. This being said. Washington DC. their great emphasis on selection and control mechanisms is revealing of the uncertainty surrounding the very prerogatives to . 47 47 Both documents are reproduced as Appendix in Ibid . 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 British position was mainly based on its experience at the League of Nations. it is of the very essence of the work of the high officials ” 50 50 . Moving on now to the British view of the future secretariat. Brookings Institution.Conferences.

beyond the nomination issue.. 142.. cit . would turn out to be of paramount importance for the activity of UN Secretary-General in the following years. by implication.. 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. MUTHER. Page 25 Page 25 16 16 prerogatives of the Secretary-General. 146. As a matter of fact. Siotis thinks that the easy admission by the Soviets of this right. no use of it had been made at all by either of the two SecretariesGeneral of the League. SIOTIS. the Akibatnya. 50 50 Cited in Ibid . was nevertheless one of the main points of the instructions of the American delegation. At Dumbarton Oaks. though not present in the American project. as mentioned when we reviewed the League's experience.. op. 142. p. 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. although such right may have been argued to legally exist at the times of the League.. eventually led to the admission of this right only in the limits set by the British and Chinese proposals 51 51 . an instrument of an openly political character was being voluntarily introduced as part of the 48 48 Cf. though less debated. p. for the rest. characterize the discussions held at Dumbarton Oaks.. op. the only question related to the Secretary-General raising serious controversy was indeed the nomination procedure. during these Conferences. Consequently. J. cit .. J. the staunch Soviet opposition to discuss social and economic matters. 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. 141. pp. p. 49 49 Cited in Ibid .be vested in the Head of the future Organization. This instrument. 146. R. However. Cf. an agreement was reached on another question.. in its original limits. cit. 141 et seq. which. 141. Second. cit . Americans did not only welcome the proposal but they even tried to enlarge it to a similar right with respect to the General Assembly. First. For our purpose of identifying the idea of “political role” purported by the drafters of the Charter. This emphasis will. 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. op. the acceptance of such instrument is highly significant. the influence of the League on events – would have developed .

The Legal Position of the Secretary General of the United Nations in American Journal of International Law . this is interesting in two respects. on the one hand. on the other hand. a highly political Secretariat closely dependent on Great Powers and. the invitation made to the Secretary-General to sail across highly political waters has also an important drawback. J. 1945). . cited in KUNZ. is here particularly relevant. 52 52 PEREZ DE CUELLAR. 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 . Documents relative to the Secretariat can be found in volumes VII and VIII of United Nations Conference on International Organisation . 791. p. United Nations and Library of Congress. other violations of the UN Charter.. P/C 20. 40/4. But aren't these issues the very essence of traditional “high politics”? They are indeed. It was agreed that the diplomatic initiative would not constitute a duty but a discretionary right in the hands of the Secretary-General. 129.. In other words. The Secretary-General was thereby only authorized to “muddle” in peace and security issues. For our purpose. 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. .differently” 52 52 . . an independent but only administrative one. our brief historical survey shows that the drafters had no clear idea of how such involvement would unfold in practice. 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. The discussions held at San Francisco the subsequent year 53 53 add some more precision to the characterization of such political instrument. cit . 23 December 1945. 54 54 Cf. And such right concerned only peace and security matters excluding. Cf. JL. op. In a world increasingly scarred by Cold War politics. In order to refine our characterization of the UN Secretary-General's political role as a research object. The Preparatory Commission was indeed right when it pointed out. 22 vols. 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. 194566. 87. p. 129.. as quoted in the introduction to this study. The original ambiguity identified by Professor Siotis between. First. the issue of the Secretariat was submitted to Committee I/2. p. Second. thus justifying an analysis which distinguishes between the legal and the political scopes of action. October 1946. (San Francisco. London. Article 99 will play a crucial role in justifying the political activity of the SecretaryGeneral. contrary to the amendment proposal put forward by the delegation of Uruguay. 53 53 At San Francisco. Documents. but this in a way totally unforeseen by the drafters.

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. the focus of scholarship during this period seems to be. (ed. 3.2. Parallel to this. we can distinguish five moments in this trend. 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. 3. good offices and peacekeeping initiatives of the Secretary-General” 55 55 . General remarks Speaking at a Symposium organized by the Hague Academy of International Law to celebrate the first 40 years of the United Nations. 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. . in broad terms.1. 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. 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. Fourth. as a “time for digestion”. The . in a somewhat provocative way. First.1. 3. the period running from the end of the 1960s to the end of the 1980s could be described.Page 26 Page 26 17 17 3. 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. Th. The Role and Future Prospects of the Secretary-General in BARDONNET. interested in what will be baptised “quiet diplomacy”. Our survey will proceed chronologically in order to better grasp how scholars have progressively oriented their interest on different activities of the Secretary-General. This focus changed substantially after the first years of Hammarskjold mandate.2. at least of the way in which the political potential of the Secretary-General unfolded along the history of the Organization. especially after the Congo crisis. 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. Third.. again. less 55 55 FRANCK. The political role of the UN Secretary-General as a research object: A survey of the literature 3. it is the Office of the Secretary-General which has enjoyed modest success while other principal organs have encountered mortifying disappointment”. will progressively be associated with the crucial role of the Secretary-General in the conducting of peacekeeping operations. D. 3. the novelties that scholars writing at the end of the 1950s were still reluctant to categorise. It is at this second stage that the core contents of the Secretary-General’s political role were identified. The contents of the “political role” in the literature Although it is difficult to generalize. Indeed. but if one measures effectiveness in terms of impact on the real world beyond the precincts of United Nations Chambers. Broadly speaking.).

though using titles comparable to those of the first period. Josef Kunz devoted an entire article to Trygve Lie's competence to make either oral or written statements before the Security Council. which. the General Assembly and their subsidiary organs. 1986. was in retrospective a clearly minor one. . 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. Dordrecht / Boston / Lancaster. more relevant in conceptual terms. therefore. any action of the Secretary-General going beyond the administrative stance of the League's Secretaries was the object of immediate interest. although significant. are. This rather shy conception of the implications of the Secretary-General's political role will be . His Nya analysis led him to conclude from this sole fact that: “The legal position of the SecretaryGeneral of the UN. considered such development as embodying the political nature the Charter drafters had wished for the new Secretaryship-General. understandably. Schwebel emphasised the UN Secretary-General's superior involvement in politics. This could explain why in a number of important studies scholars return to general approaches. 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 . writing in 1946. which. At this very early moment. At the first stage identified we find but intuitions of where and how the political dimension of the office might unfold . 81 and 87 respectively. pp. to his simple right to speak. Fifth and final. Page 27 Page 27 18 18 the developments of their time than the conceptualisation of what at the beginning of the 1960s was still seen as experimental. 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 . transcends by far that of the Secretary General of the League” 56 56 . 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. For instance. . The clarification of the legal position of the Secretary-General in view of such novelty. Even the seminal study published by Stephen Myron Schwebel in 1952 1952 59 59 . Martinus Nijhoff. which will have a substantial influence in subsequent research. that is.Adaptation of Structures and Methods at the United Nations . with the decline of Cold War politics since the end of the 1980s. bunga.

1924. cit . commenting on the study of Schwebel. Josef Kunz. op. Der Völkerbund. . 2nd edition. It was Itu obvious. . 1949. Verlag von W.. In a similar vein. Elmore Jackson pointed out: “The initiative taken by Mr. O. the trip to the Middle East in the spring of 1959. and this to the detriment of a number of administrative tasks. In other words. the Swede was able to increase the political dimension of his office to unprecedented levels. In less than ten years. 1950. Le Secrétaire général des Nations Unies . 59 59 SCHWEBEL. however. SM. pp. Berlin. Hammarskjold's initiatives after October 29 have moved the core of his office onto the political side. 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 .radically modified in just a few years . 4. It is that in the meantime came Hammarskjold. GÖPPERT. J. 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 . Hammarskjold in the release of the United States airmen. The United Nations Secretariat in United Nations Studies . Organisation und Tätigkeit . The Secretary-General of the United Nations : His political powers and practice. The acknowledgement by scholars of such breakthrough came right after. giving a real content to the notion of political role. in an article published in 1957. 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.. redefining the “political role” of the Secretary-General on the basis of Hammarskjold new achievements. 1951. Harvard University Press.. Kohlhammer. 57 57 NEHLAOUI. 1938. 371-382. Paris. and the assistance to the three Foreign Ministers in the Suez discussions of October 1956. For instance. in a 1958 contribution noted that: “The importance of the Secretary General has in recent years very much increased. Page 28 Page 28 19 19 esquisse pale et hésitante de la réalité de 1958” 61 61 . Cambridge MA. Die Satzung des Völkerbundes . were political tasks not too difficult to adjust to the Secretary-General's continuing administrative responsibilities. Dag Hammarskjold's role as a diplomatic negotiator could already . F. Stuttgart. No. 1952. 792. 58 58 CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE. thèse. tingkat. 60 60 SCHÜCKING-WEHBERG. to the point that by 1958 Michel Virally. p..

376 and 385 respectively. 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. 1957.. Consequently. M. E. and most importantly. though loosely conceptualised.. 63 63 KUNZ. istilah.be seen in his mission to Peiping in 1954 and to the Middle East in 1956. 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. M. dans des proportions considérables. op.. tant par l'Assemblée que par le Conseil”. defining a United Nations “doctrine”. adding a few pages later: “Il n'est pas moins incontestable que l'activité diplomatique du Secrétaire général des Nations Unies a. the Akibatnya. which has come to be one of the major fields of . by the end of the 1950s. These remarks clearly suggest that. . It is not intended to discuss his role in the development of policy generally. But in the Suez crisis of 1956 his position was truly dominating” 63 63 . the political role of the SecretaryGeneral was perceived. 11/3. executing large political mandates entrusted to him by the deliberative organs and engaging in diplomatic consultations to solve conflicts. pp. cit . taking an official position on international political issues whenever necessary. du fait des multiples tâches dont il a été chargé.. Shortly after. on the other side of the Atlantic. but also. cit . p. 362. The Developing Role of the Secretary-General in International Organization . the main referents of which were to be found in his involvement in peacekeeping and his diplomatic initiatives. Rather. which would be a possible way of viewing the subject. The Secretary General on the Role of the United Nations in American Journal of International Law . 440-441. pris une intensité et revêtu un éclat absolument sans comparaison avec ce qu'on avait pu voir dans le passé” 64 64 . 301. 64 64 VIRALLY. role of the Secretary-General in developing and executing policies and programs of economic and social development. 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. 52/2. In these two latter respects. depuis quelques années... as having a very concrete content. Page 29 Page 29 20 20 discussion. J. pp.. the political role of the Secretary-General is defined in somewhat narrow terms. op. 62 62 JACKSON. 1958. 362. 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. p.

CORDIER. although this latter field attracted less attention than peacekeeping-related activities. 1960. AM. will not be touched upon. WY. The role of the Secretary-General of the United Nations in international relations in International Organization . 1961. Throughout the 1960s. 17/1. (ed. as well as the responsibility such powers entail 68 68 . most of the contributions we find are focused on particular cases where the SecretaryGeneral played a notorious role. 12/1. The lion's share goes. 1959. Dissertation. . pp. WF. pp. 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 . Universität Göttingen.. CY. New York. 36-72 and 450-505. 1959. AW. 16/4. 1959.activity of the Organization.). 1959. TA. BAILEY. KOUZBARI..D. The role of the SecretaryGeneral in Annual review of United Nations affairs . Ph. 2-11. naturally. to the UNEF 66 66 and dan Congo experiences 67 67 . except incidentally” 65 65 . University of Cincinnati. 10. The Secretary-General of the United Nations: constitutional powers and developments . L. 1962. present and future . LM. The United Nations: past. the American review International Organization became a rich forum for the exchange of ideas on these new developments. GORDENKER. J.. The Secretary-General in BARROS. Doctoral dissertation. 1962. Dissertations. PYMAN. The United . Université de Paris. But this emphasis should not prevent us from noticing the growing literature on the Secretary-General's diplomacy. . Ph.. the main objects of research being its peacekeeping and diplomacy aspects . With regard to the peacekeeping aspect. PAK. During this period. 620-638. Die politischen Leitungsfunktionen der Generalsekretäre internationaler Organisationen . The political role of the Secretary-General of the United Nations in theory and practice. New York University. 1963. pp. The Secretary-General of the United Nations in World Today . Doctoral Dissertation. J. JAMES. 1-14.D. p. PUENTE EGIDO. 1959-1960. the matter identified as the “political role” of the Secretary-General will become sectorized . Les pouvoirs politiques du Secrétaire général des Nations Unies . The Political Role of the Secretary-General in International Organization . P. SD. 20. As Seperti 65 65 GOODRICH. The Free Press. See also: ABBOUSHI. 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. 720. BOTTENBERG. pp.

University of Minnesota. TANDON. 2/21. pp. 22/2. 839-860. New York University. W. Page 30 Page 30 21 21 stated in a 1966 contribution: “During the first twenty years of the United Nations' existence the patterns of its activities changed significantly. Dissertation. T. Ph. 1965. Dissertation. 1967. 1963.. Southern Illinois University at Carbondale... UNEF. The United Nations intervention in the Congo crisis. 1962. 1964 . Ph. 15/3. AMIRIE.. Le rôle proéminent du Secrétaire général dans l'opération des Nations Unies au Congo .D. One of the most important changes took place in the practices of the Secretary-General. University of Virginia. Dissertation. 67 67 HOFFMANN. DC. 267276. FOOTE. 331-361. 1967. S. The United Nations Emergency Force . F. A. R. Columbia University Press. 1960-1961: with special emphasis on the political role of the late Secretary-General.D.Nations Secretary-Generalship in Australian Outlook . S. pp. SAFFELL. pp.. and International Diplomacy in the Third Arab-Israeli War in International Organization . New York. The role of the Secretary-General in the creation of United Nations forces. Dag Hammarskjold . pp.. The United Nations operation in the Congo in CORDIER. 68 68 HOVET. Ph. While the most noticeable development was his assumption of the position of executive agent for peacekeeping . The Secretary-General as chief executive of the United Nations . 1961. Ph. 1968. 1967. The Political Responsibility and Accountability of the United Nations SecretaryGeneral in Journal of Politics . 27/4. 565-631 . G. Y.. The leadership role of the Secretary-General in times of international crisis .). La Haye. 70/3... pp. A. VAN LANGENHOVE. The Dag Hammarskjold Memorial lectures .D. The quest for peace. the Secretary-General. LENTNER. 16/2. TANDON.. (eds. MICHALAK. In search of a thread : the United Nations in the Congo labyrinth in International Organization .1965. Dissertation . pp. H. New York. 301319. Institut Royal des Relations Internationales & Martinus Nijhoff. 529-556. 1966. 1962. 66 66 ROSNER.. J. Y. 240-259. Aspects de la fonction interpretative du Secrétaire général de l'ONU lors de l'affaire du Congo in Revue générale de droit international public . S. 1969. 1965. SOUBEYROL.D. BUNCHE.. Columbia University Press. BOEN. Consensus and authority behind United Nations Peacekeeping Operations in International Organization . Peacekeeping and the United Nations: the problem of responsibility in International Studies Quarterly .. pp.

of governments. and above all the peacekeeping and diplomatic activities. . . 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. by the end of the 1960s and the beginning of the 1970s. See also: LENTNER. qu'il tente de s'interposer dans les crises internationales même lorsque celles-ci.forces. M. also appeared in these years 74 .. The book was on the whole very welcomed 71 71 at a time where specializing on specific points was still the rule. H. ne sont pas du ressort des Nations Unies” 73 73 . Indeed.. The Diplomacy of the United Nations Secretary-General . by Arthur Rovine. this study no longer used the broad expression “political role” but that. The Secretary-General and the United Nations' Function of Peaceful Settlement in International Organization . 1966. The The record of two decades of development and change provides a firm basis for study” 72 72 . no later than 1967 a new attempt to provide a comprehensive analysis of this role was published by Professor Leon Gordenker 70 70 . there was no doubt that the emphasis should be put primarily on issues related to maintenance of international peace and security. The quest for a deeper understanding of the existing practice will pave the way for renewed efforts aimed at a general conceptualisation of the SecretaryGeneral's political role. In a similar vein. scholars perceived the matter as ripe for a general conceptualisation. 724. et le fait est remarquable. . . p. These remarks clearly suggest that. konseptualisasi. 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. 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 the “Maintenance of Peace”. and of political aspirations and failures. As to the core of the Secretary-General's political activity. apparently easier to circumscribe. 20/4. Another major contribution to this subject. To define its scope. This does not mean that there were no studies specializing on particular aspects of the 69 69 ZACHER. a less noticeable but equally important one occurred in his activities as an agent of peaceful settlement” 69 69 . Indeed. ni de s'étonner qu'il le fasse. The The impression that it was the right moment for undertaking such a general approach is particularly clear in Gordenker's work.

1971. 18/3. 979-980. Page 31 Page 31 22 22 Secretary-General's role. Since the end of the 1980s. Paris. pp. M. 72 72 GORDENKER. American Political Science Review . The UN Secretary-General and the Maintenance of Peace . In addition to this development. 531-550. But such studies. xvi. pp. 73 73 SMOUTS. AW Sijthoff. pp. but this time in the light of the post Cold War political conditions. 63/3. 932-950.. Leyden.-C. All these efforts will provide a solid basis for expanding research to less salient aspects of the Secretary-General's activity in subsequent years. 70 70 GORDENKER. 157-158.. tahun. L. 74 ROVINE. 1970. 1967. The Secretary-General: some comments on recent research in International Organization . . a number of contributions focusing on one or the other of the SecretaryGenerals since 1945 are also noteworthy 76 76 . op. The peacekeeping and diplomatic powers of the Secretary-General are still the main objects of research. 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. On the Influence of the Secretary-General: Can We Know What It Is? in International Organization . 13/1. 1970. .. 1969. pp. cit . Vratislav Pechota published an important book on the Secretary-General's diplomacy for peace 75 75 . The intermediaries: third parties in international crises . Princeton University Press... 23.in The Western Political Quarterly . 1969. M. New York. A vehement critic of Gordenker's study can be found in KNIGHT. Franck and Nolte's study on the good offices function of the Secretary-General . 1314. 71 71 See the reviews in: The Journal of Politics . though of a less general ambition. This fifth wave of research points in two major directions. J. 1969. The First Fifty Years: The Secretary-General in World Politics 1920-1970 . For instance. 24/3.. 1965. O. ZACHER. 847-848. Princeton. 1968. Le Secrétaire général des Nations Unies .. often interrelated. 1970. pp. pp. Armand Colin. YOUNG. 594-600. AW. 30/3. p. L. pp. Columbia University Press. Midwest Journal of Political Science . a growing body of literature on the Secretary-General has rapidly emerged . 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. 1967.

WD. Strengthening United Nations Diplomacy for Peace : The Role of the Secretary-General in UNITAR. 78 78 NEWMAN. pp. ELARABY. The second strand covers a number of studies focusing on various issues such as early warning 79 79 . Durham. Dag Hammarskjold revisited: the United Nations SecretaryGeneral as a force in world politics . London/New York. The Quiet Approach . be classified under this category as well as the interesting book by Edward Newman 78 78 . The United Nations and the Maintenance of International Peace and Security . Dan good offices in particular areas 81 81 . Hammarskjold. . op. Dordrecht / Boston / Lancaster. Macmillan Press/St Martin's Press. 1987. cit . Carolina Academic Press. fact-finding 80 80 . 28/3. The political role of the Secretary-General under U Thant and Kurt Waldheim: development or decline? in World Affairs . JACKSON... U Thant: a political biography. The Inherent Powers of the UN SecretaryGeneral in the Political Sphere : A Legal Analysis in Netherlands International Law Review . 1983. 22-36.. 1974. Dordrecht/Boston/Lancaster. 161-175. (ed. R. TB. cit. An enquiry into the background and the major political actions of the third Secretary-General of the United Nations ...77 77 can. New York. N. the UN. . The UN Secretary-General from the Cold War to the New Era : A Global Peace and Security Mandate ?.. D. Martinus Nijhoff. 467-483. V. NOLTE.D. The Office of the Secretary-General and the Maintenance of International Peace and Security in UNITAR.. See also: CORDOVEZ. GOODRICH. . 37/1. 1990. for instance. as well as other specific issues 82 82 . 1972 76 76 MANTON. 230-244. 1987. and . 77 77 FRANCK. pp. pp. pp. These latter issues can 75 75 PECHOTA. Dissertation. and the Office of the Secretary-General in International Organization . pp. American University. Ph. L. 1968. JORDAN. Martinus Nijhoff Publishers. UNITAR. 177-209. .). E. G.. T. The United Nations and the Maintenance of International Peace and Security . 1978. LAVALLE. 1998. R.

1991. pp. 98/4. 1991. 2000. Dordrecht. 79 79 RAMCHARAN. HISCOCK-LAGEOT. CSR. The good offices of the United Nations Secretary-General in the field of human rights in American Journal of International Law .196.-P. 107-141. peran. In other terms. pp. 80 80 LEURDIJK. 22.. K. Fact-finding: the revitalization of a Dutch initiative in the UN in Bulletin of Peace Proposals.. 81 81 RAMCHARAN. 871-898 . 1982. 69-107. Greenwood Press. 28/1. BG. VAN BOVEN. Sheathing the sword: the UN Secretary-General and the prevention of international conflict . TC. 4. The UN Secretary-General and the Mediation of International Disputes in Journal of Peace Research . MC. NYU Journal of Intl. pp. BG. DA. LEVY. Boutros Boutros-Ghali.SZASZ. The Role of the UN Secretary-General since the End of the Cold War in The Indian Journal of International Law . 1991. The Role of the Secretary-General. 24. 161-198. 1995. Page 32 Page 32 23 23 however be considered mainly as sub-questions of the Secretary-General's diplomatic role. 181. RAMCHARAN. 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 . Law and Politics . Some Legal Aspects. 1994. pp. pp. 59-69. BOURLOYANNIS. TE. J. Secrétaire général de l'ONU : grandeurs et servitudes d'un mandat unique in Revue generale de droit international public . 76/1. Martinus Nijhoff. C.. Fact-Finding by the Secretary-General of the UN in NYU Journal of Intl. pp. BG. BOUDREAU.. MURTHY. February 1991. 4. the current literature still associates the Secretary-General's political role with his activities in peacekeeping and diplomacy. 21/1. SKJELSAEK. 1991. 1991. Westport. Law and Politics . pp. 1990. 4. pp. Law and Politics . P. 35. 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 . 641-669. 130-141. though richer both in terms of the issues covered and the approaches employed. 99-115. The international law and practice of early warning and preventive diplomacy : the emerging global watch . The role of the United Nations Secretariat in the area of human rights in NYU Journal of Intl. 1983. 104. The Hague. Martinus Nijhoff. Humanitarian good offices in international law: the good offices of the United Nations Secretary-General in the field of human rights . pp.

Concerning the “quiet diplomacy” of the UN Secretary-General. although both peacekeeping and good offices are well known terms frequently used in a wide range of situations. The Hague. 1994. op. p. B. the next step is to further characterize these two domains of action. a point that is highly significant in the light of the Cold War practice. they can reliably be considered as the core of his “political role”. Sir Marrack Goulding.progressively assimilated to his roles in peacekeeping and diplomacy. If we accept this latter point. 26/4. 83 83 The Singapore Symposium : The Changing Role of the United Nations in Conflict Resolution and Peacekeeping 13-15 March 1991 (UN DPI. .. S. In this regard.. Page 33 Page 33 24 24 tour à tour advanced as its core. This definition takes into account not only classic international conflicts but also internal conflicts with an international dimension. Law and Politics . The history. 184. We cannot open here the question of whether these terms can or should be assimilated or not. when it comes to define them. KANNINEN. It is not the purpose of this study to provide a detailed concept of peacekeeping or of its evolution during the Cold War years. 25. praktek. p. Sept. Let us first cope with the notion of peacekeeping operations. 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 . Leadership and reform: the Secretary-General and the UN financial crisis of the late 1980s . 59. S. This is why a useful operational definition should be general enough so to cover the differences stemming from the historical development of this concept. Indeed. pp. pp. the terminology fluctuates considerably.. 1990. civilian and/or military. role and organization of the 'cabinet' of the United Nations SecretaryGeneral in Nordic Journal of International Law . KINGSBURY. (eds.. T. cit. the characterization given by a former Under-Secretary-General for Peacekeeping Operations. According to the British officer. or to give at least a relatively clear notion of what they refer to. 103-116. UN Peacekeeping and Election-Monitoring in ROBERTS. although these two broad domains of action of the Secretary-General do not cover the whole range of activities implying a political dimension. BG. 184. 1991). 1995. peacekeeping operations can be defined as: “United Nations field operations in which international personnel. . The “archaeology” conducted in the preceding pages suggest that such an operational definition is largely justified.). A. cited in MORPHET. can be considered as a good compromise. The role of the Secretary-General in helping to prevent civil war in NYU Journal of Intl. As we said in the introduction. the notion of good offices or that of preventive diplomacy being PASTERNACK. New York. However it should be kept in mind that the reality of peacekeeping operations has indeed varied considerably over time. the definition of good offices in UN . evidences seem to disappear. Kluwer. In any case. 701-759 82 82 RAMCHARAN.

p. scholars point out. 1. NOLTE. 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. 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. cit . that legal provisions must be interpreted in the light of the changing political circumstances and . At the Pada most. G. either generally. Th. in other words.. Page 34 Page 34 25 25 PP ART ART TT WO Setting the framework Page 35 Page 35 26 26 Page 36 Page 36 27 27 1. which will be the object of the second part of this study. cf. . for these activities concern directly peace and security issues or. 144. the political role of the Secretary-General becomes very concrete. Second. Namun. As a matter of fact. finding an operational definition of the Secretary-General's political role is necessary in order to identify a well-delimitated research corpus. Whatever the precise expression used in a particular case. this is important in two respects.. 84 84 UN Press Release SG/SM/4124. However. 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. for the empirical relevance of the two domains identified as its core content is widely acknowledged. Introductory remarks The political role of the Secretary-General takes place at a crossroad between law and politics. 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. This is especially the case when it comes to his peacekeeping and good offices activities. or with regard to particular cases.. what States have traditionally considered their “high politics”. op. FRANCK. pp. 144. the literature provides no further precision of how to approach this interaction. First.practice is less restrictive than the traditional one since it also covers mediation. For our purpose. factfinding missions and sometimes even operations to oversee a troop withdrawal such as the UN Good Offices Mission to Afghanistan and Pakistan 84 84 . 20 April 1988. 7-8. Thus characterized.

Though unsystematic. these intuitions offer a very interesting startpoint for further reflection. 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 . The third and final step will be the development of our analytical framework. 1983. In this regard. AM. M. 1993..). 2. to consider the wide and rich literature focusing on the definition of law 85 85 . ALLOTT. Though of theoretical nature. with no claim other than to serve as an instrument for advancing the understanding. vol. our undertaking has no “doctrinal” pretension but only an “analytical” one. Théorie du droit international public in Collected Course of the Hague Academy of International Law . Doctrine and Theory . we will then proceed to a detailed characterization of what we call the “legal/political scopes of action”. TRUYOL Y SERRA. 85 85 For a review of theory : VIRALLY. 1964. vol. 1960. FRIEDMANN. International Law: Doctrine and Schools of Thought in the Twentieth Century in BERNHARDT. McDONALD.. 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. Page 37 Page 37 28 28 2. A. The Changing Structure of International Law . 173. we will start with a spelling out of what we understand by law and politics. DM (eds. Martinus Nijhoff.. 9-443. This is not to say that politics is the sole material source of international law. RJ. however. (ed. Paris. 1995. whatever the state of the law. refleksi lebih lanjut.. 1991.. STEINER. The object of the present section is precisely to conduct such further reflection. HJ. pp. The Structure and Process of International Law. London. Theory and International Law: An Introduction . More precisely. Encyclopaedia of Public International Law . LGDJ. 205-239. Stevens. the true possible alternatives depend upon politics rather than law. W. We do not intend. but only that it is a . major one. La pensée juridique . This common ground is solid enough to build upon it. and perhaps the . Law and politics in the international society In the current international environment. 2/87. pemahaman. 1981-IV.that. JOHNSTON. .). International Law and International Relations Theory : A Dual Agenda in American Journal of International Law . 2. and we do not need . pp. The Hague. et alt. R. P. Drawing upon the approaches of law and politics spelled out as a first step. virtually no one would seriously argue that politics has no influence on the shaping of international law. Essays in Legal Philosophy. 86 86 For an introduction to this debate see : SLAUGHTER.

but this is not required for our purpose. 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. reason and even religious thinking. itself influenced by a number of factors. For instance. Thus understood. far from an attempt to “define” what politics is. 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. From an external point of view. This has arguably been the case in the shaping of the current international human rights regime. When reviewing the drafting history of the UN Charter. we will simply assume that politics in this context means interest-oriented pressure. and in this case the UN Charter. one could say that. the role of politics in the drafting of the Charter is but too obvious. . or from the mere existence of clear interests. it serves as a criterion to determine whether a particular action is legal or illegal. one could say without too much hesitation that the natural environment of pressure is the perception of the actors involved in a particular situation. one can confidently say that law. From an internal point of view. Let us limit ourselves. The literature on legitimacy Page 38 Page 38 29 29 is wide and subtle 87 87 . Indeed. 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. As to the law underlying the action of the UN Secretary-General. In this context. Of course. very much detail would be needed to develop these assertions into a “theory”. we still need to know what it means to be legal or illegal. pendapat. All we need is to give the reader a clear idea of the general conceptions implied in what will follow. 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. it means that the formal contents of what is called law will be used for describing a situation. Of course. Such pressure can derive either from a particular action of a State. when conducting their “practice” or negotiating a treaty. First. to two short remarks . a particular situation or action can greatly benefit from being considered legal for this is a strong basis of legitimacy. This only means therefore that the statements formally included as provisions of the UN Charter reflect a political configuration at a given moment. is the result of a particular political configuration.to go beyond such intuitive and widely accepted view. including politics. in order to make the overall American stance more acceptable. The first remark is extremely general and points to what the late sociologist Max Weber called “legal-rational authority” 88 88 . To take but one example. But this assertion remains unclear unless we know what must be understood by the terms political configuration. kepentingan. but the start-point for such analysis will in any case be law itself. law has at least two major uses. In Dalam this regard. Again. or other non-State actor. for the purpose of our analysis. Sekretaris-Jenderal. such a broad assertion does not exclude other “modern” material sources such as social necessity.

The second remark is far more precise. each being the basis of an “ideal-type”. 1993. FRANCK. One very famous example can be found in what the International Court of Justice stated in the Nicaragua case. TM. Since modern times. 1-14. which it justified in this way on the political level. . It concerns how in practice States do use law for legitimising their action. was also justified on the legal level. and not an assertion of rules of existing international law. the level of its armaments. ALVAREZ. 1993. alleging the exercise of a new right of intervention … The United States has. for example. The Power of Legitimacy Among Nations . in this case the drafting of the UN Charter. JE. justified its intervention expressly and solely by reference to the 'classic' rules” 90 90 . is the resort by the US and the UK to very creative legal argumentation in order to 87 87 See among others : FRANCK. Another example. Oxford. 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 nonintervention 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. But these were statements of international policy.. Governance and Collective Legitimization in the New World Order in Hague Journal of International Law . authority has progressively been vested in impersonal and abstract rules. DENCHO. hukum internasional. the domestic policies of that country. 24. G. pp. which is obviously the case in practice. or the direction of its foreign policy. pp. If we now turn to our precise context. Politics or Rule of Law: Deconstruction and Legitimacy in International Law in European Journal of International Law . on the legal plane. authority has historically derived from three main sources. TM. D. In this case. this time very recent. CARON. its ideology. Oxford University Press. People obey not to other people but to the rules they have rationally accepted. 29-44... 88 88 . the Court noted that even in those instances where the US had intervened in other countries for political reasons. Fairness in International Law and Institutions . 1990 . According to Weber. as regards the conduct towards Nicaragua … the United States has not claimed that its intervention. pp. Clarendon Press. 1991. 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. the fact that the Charter was negotiated and adopted by a large number of States 89 89 clearly enhances its legitimacy. In particular. one of the reasons for it rests on the consent principle. ie an analytical instrument for improving the understanding of social phenomena. But the fact remains that if any legitimacy can be attached to the Charter. New York. 1995. . The Quest for Legitimacy: An Examination of the Power of Legitimacy in NYU Journal of International Law and Politics . 199-267.

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. These two cases illustrate how law is invoked even in extreme cases. give a broad picture of the understanding of law and politics that will be assumed in the following pages. The second major use that can be identified refers to the role of law in regulating behaviour. M. representing the vast majority of the members of the international community. 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. in conformity with international law. University of California Press. ICJ Reports . namely perception.WEBER. suggests that what law states is assumed to be carefully considered and therefore there are good reasons to expect it to be followed. 206. to be used or not. 89 89 As early as 1949. Page 39 30 30 justify their military intervention in Iraq. either to act in conformity or not. ICJ Reports . as an important factor in the shaping of perception. though brief. As two commentators put it: “US and British officials argued that Resolution 678 (1990). 185. This position assumed that Resolution 678's authorization to use force remained valid. 1949. despite the contrary positions of a majority of its members” 91 91 . Law Hukum thereby enters the natural environment of politics. Berkeley. 90 90 Military and Paramilitary Activities in and against Nicaragua (Merits).209. especially because of its legitimating properties. The preceding remarks. still governed and continued to provide authority to punish Iraq for cease-fire violations. Let us now turn to the characterization of what has been called the legal and political scopes of action of the UN . which has been conceptualised not only by international lawyers but also by a growing literature in political science 92 92 . 1986. to bring into being an entity possessing objective international personality.. This point. 1978. chapter III. had the power. Law is taken into account. where using law as a justification would appear as a contradictio in adjecto. and not merely personality recognized by them alone. which empowered the United States and other states to use force against Iraq. Reparation for injuries suffered at the service of the United Nations. In Dalam other terms. together with capacity to bring international claims”. 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. 185. law tends to regularize behaviour and thus makes it more foreseeable. p. par. . Economy and Society: an Outline of Interpretive Sociology .

Secretary-General. The meaning of such provisions remained however unclear in the absence of substantial practice. Indeed. at least for a large part. F. 1989. Cambridge. pp. If we read the 1946 commentary of the UN Charter written by Goodrich and Hambro 94 94 . Princeton University Press. The legal and political scopes of action of the UN Secretary-General If law can be seen. as a result of a given political configuration.. Sekretaris-Jenderal. KRATOCHWIL.. 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. Page 40 31 31 armed forces from territories occupied in the recent conflict” 93 93 . and on this narrowing at least there is a common view. For further details see : KRASNER. Cornell University Press. San Francisco. (ed. the understanding of the wording is sought with relation to what the Drafters anticipated. J. As a matter of fact. Conversely. Norms and Decisions : On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs . S. International Regimes . 124-125. 3. ultimately leading to a lasting ambiguity in that the territories concerned are not specified. 1984 . 1989. . This reflection clearly applies to the provisions of the Charter governing the political role of the Secretary-General. 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. 1983 . A good startpoint is the special issue of the journal International Organization . Rules.). R. 3. M. International Institutions and State Power : essays in international relations theory .. When there is no practice regarding a legal provision. Cease-fires and the Iraqi Inspection Regime in American Journal of International Law . Cambridge University Press. 92 92 The literature on international regimes has largely developed in these last 20 years. behind the bald use of the word territories hides a five and a half months controversy. one cannot conclude from this that the fact of adopting a particular wording is totally irrelevant. 1/93. as one of the principles for the establishment of a just and lasting peace in the Middle East. 1999. KEOHANE. LOBEL. RATNER. for the: “Withdrawal of Israel 91 91 Cf. especially chapter II .. A famous example is the wording of paragraph 1 (i) of Security Council Resolution 242 (1967) asking. R. there are many wordings broad enough to admit different and even contradictory meanings. After Hegemony : Cooperation and Discord in the World Political Economy . Spring 1982. Bypassing the Security Council: Ambiguous Authorizations to Use Force. Boulder.. Ithaca/London. KEOHANE. Indeed. Princeton. the meaning of Chapter XV provisions . Cf.

the very hermeneutical procedure at play would seem to require implementation as a condition for its existence. But how far can this meaning be adapted? There must be a frontier somewhere. . This implies that the Ini berarti bahwa text. the sense arrived at by applying it at the concrete moment of interpretation. . 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.. Editions de la Baconnière. Continuum. 2002 [1960]. either in judgement or in preaching. once a wording adopted. 308-309.. pp. on the other. Neuchâtel. New York. crucially depended on the actions of the Secretary-General to be subsumed. the range of possible meanings becomes narrower necessary implies that interpretation has limits. Understanding here is always application”. Similarly. E. Truth and Method . 1946. it has no existence if it is not played.draws almost exclusively on the travaux préparatoires . but to be taken in such a way that it exercises its saving effect. in particular commentaries ad Articles 98 and 99. 93 93 Security Council Official Records . 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. it is possible to speak of a legal scope of action . to acquire a true meaning. It would seem that even a clear wording needs the resort to particular situations. the gospel does not exist in order to be understood as a merely historical document. 1382 nd nd meeting. The very idea that. given its constitutional nature. whether law or gospel.. precisely because of the difficulty to modify it 96 96 . real or anticipated. makna. And this is the case despite the fact that the UN Charter. A law does not exist in order to be understood historically. In this context. Beyond what international law tells about interpretation.. if it is to be understood properly – ie according to the claim it makes – must be understood at every moment. but to be concretised in its legal validity by being interpreted. and even the choice of which provisions are actually concerned. needs to be flexibly interpreted. Commentaire de la Charte des Nations Unies . either in a piano or in the head of its composer 95 95 .-G. 22 nd nd November 1967 (italics added). GADAMER. H. 94 94 GOODRICH.. 2 nd nd edn. in every concrete situation. HAMBRO. Very much like a Beethoven Sonata . L. in a new and different way.

c'est-à-dire l'acte de fondation de l'Organisation. the methods through which the . jusqu'à devenir une constitution de durée indéterminée dont le développement déborde le cadre à l'intérieur duquel elle avait été initialement conçue”.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.. p. The Hague. il dépasse. mais il est par ailleurs destiné à devenir la constitution. R. 1996 . à leur volonté. SCHERMERS. Such a scope of action must be understood at three different levels. 1974. p. auquel celle-ci se rattache tout au long de son existence. changes in the actual practice. Law introduces into the range of thinkable actions a criterion allowing for the distinction between what is legal and what is not. On pourrait dire. HG. without being legal. 154. To establish such state of the meaning is extremely difficult. Le caractère constitutionnel des actes institutifs d'organisations internationales in Mélanges offertes à Charles Rousseau : La Communauté internationale . pada umumnya. On the constitutional nature of institutional treaties and their interpretation see also: SATO. que l'acte institutif revêt la forme du pacte mais possède la substance de la constitution : né sur la base d'une convention. Page 41 Page 41 32 32 limiting the range of legal powers of the Secretary-General. meaning itself fluctuates to accommodate. and even sometimes desirable. son origine formelle. 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. au moment de sa formation. Within Dalam the context of the same legal wording. sur la volonté des contractants et donc soumis. en tant que tel. Kluwer. T. Evolving Constitution of International Organizations . International Institutional Law . A number of actions may still be possible. in that the recognition of what is legal and what is not depends solely on the state of law 98 98 . as far as possible. Pedone. fondé. Legality provides however legitimacy for a given action. MONACO. law is an autoreferential phenomenon. par conséquent. The first level takes into account what has already been said about international law in general. In this regard. Paris. but in the present international arena law is undoubtedly a major one.. Other sources of legitimacy may exist 97 97 . 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. avec le temps.. In order to keep the auto-referential capacity referred above.

Chapter 1 and then Chapters 5. Société. La notion de fonction dans la théorie de l'organisation internationale in Mélanges offertes à Charles Rousseau : La Communauté internationale . which reflects in this matter the state of customary law. the more a meaning is contestable the less it benefits from the Sijthoff & Noordhoff. 1991. . The interpretation of the UN Charter in SIMMA. Oxford. M. for a more general perspective see VIRALLY. 47-48. 1981 . HLA. HAYOZ. Pedone. 1-18. LUHMANN. and this is our third level. 1985. 25-44 . Oxford University Press. Clarendon Press. Paris. 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. G. The Charter of the United Nations. A Commentary . Einige Probleme mit “reflexivem Recht” in Zeitschrift für Rechtssoziologie . Département de sciences politiques de l'Université de Genève. ie a mechanism assuming the legality of the meaning established by a particular organ. But this does not entail that any meaning counts equally. the margin left in international law for the determination of the meaning of a provision is far too wide.. 6. Paris. In spite of all these mechanisms. pp.6 and 9. 98 98 HART. 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. 1961. from meta-juridical sources. Commenting on Niklas Luhmann's theory of closed systems. il ne pourrait tout simplement pas choisir des informations dans son environnement. Oxford. RESS. claims concerning different meanings are seldom solved.. politique et État dans la perspective de la sociologie systémique de Niklas Luhmann . 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. 1980 . in particular Preface. N.meaning of a particular provision is established are themselves a part of law. The Concept of Law .. N.. Genève.. As a matter of fact. SIMON. pp. 1995. Alphen aan den Rijn/Rockeville. 277-300. In Dalam the absence of an “authoritative interpretation”. D. dès lors que toute (auto-)observation présuppose une distinction … L'autonomie d'un système résulte de l'existence d'une telle distinction directrice”. L'interprétation judiciaire des traités d'organisations internationales : morphologies des conventions et fonction juridictionnelle . 1974. pp. Any interpretation disrespectful of these methods is thus unable to ensure the “legality” of the meaning derived. B. and even claim legality. pp. (ed. Pedone.).

such as those applied to constituent instruments. As noted before. should not be expected to deploy. In other terms. a first characterization of what we will call the political scope of action . say. because its meaning changes over time according the actual practice. and consequently. Evolving. or that he has indeed acted. However. The entire range of action of the Secretary-General in a particular case needs not to be in strict accordance to law. one can speak of a somewhat “mainstream” interpretation. This latter point provides. Progressive interpretation techniques. serve to keep the rigid formal wording of a provision updated to practice. by ad hoc Page 43 Page 43 34 34 . at least to a large extent. In the Dalam case of the legal scope of the Secretary-General's political role. the less it will deploy its legitimising effect. by definition. The Secretary-General may undertake such initiatives because he thinks he counts with enough political support to make a breakthrough. beyond his legal powers. The interesting point is that such interpretation. But also fixed. it is law itself that purports to regulate its own evolution. as we will see when exploring the practice. one could speak of a somewhat fixed legal scope beyond which his action would have been illegal. the legal scope of action constitutes both an evolving and a fixed realm. Certain initiatives. the main legal mechanism for adjustment to practice is interpretation. or at least not substantially. the more an interpretation is controversial. the lesser its legitimacy. If the wording and meaning of law are in some way a reflection of a given political configuration. the possibility of such illegal action is very real. Insofar as a particular meaning of a legal wording is largely admitted as such. on the political circumstances that gave birth to the “state of the law”. may go beyond what we have characterized as his legal scope of action. Although no Secretary-General may be expected to recognize that he intends to act. while possible in practice. the limits of what is legal and what is not will be understood as integrating this duality. He will of course claim to be acting in total conformity with the UN Charter. it can be claimed that it benefits from considerable political support from the members. ie the evolving dimension of the “state of the law”. Indeed. interpretation has limits. If such meaning exists. the legitimising effect of law. and. as we saw before. because of its challenge to the “state of the meaning”. But the legitimacy the SecretaryGeneral lacks when acting ultra vires may be compensated. What changes is not the legal wording but the meaning States attribute to it. the farther is the meaning claimed from such configuration. in the case of a rigid instrument like the UN Charter. 1970 was different than the one in 1950. because. if we accept the fact that the legitimacy of law is based. Characterized at these three levels. a support that in turn serves as a source of legitimacy.Page 42 Page 42 33 33 legitimising effect of law. This is for a quite simple reason. 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. interpretation has limits. in the particular case. praktek. although his legal scope in. Here. putting forward his own interpretation of how the Charter covers his present action. by the same token. at each of these two moments. so has the legal action of the Secretary-General. it is necessary to introduce a subtlety.

A further remark made even clearer the difference between his scope of study. 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. legal characteristics ” 100 100 . It is just that. If. xiii (italics added). at least in its original meaning. The framework consists of a number of idealtypes . In the present section. This is. it is still necessary to know how to analyse all these pieces together. the path followed by those who. For instance. Marie-Claude Smouts followed this same path. but its consequences are not easily derived. is most often disregarded. when he stated with regard to the concept of influence that it: “… emphasizes process rather than formal. we will use these notions to set up an analytical framework. based on the review of the peacekeeping and good offices practice of the Secretary-General. Inducting patterns of interaction: an analytical framework So far. there would be little interest in legalistic blindness. This very usual technique of the social sciences was characterized by Max Weber as follows : “In all cases. to spell out different possibilities in which the interaction between the two scopes of action may be approached. and his independent actions influence the course of international politics but never at a constant level” 99 99 . that is in studying a rigid framework. who owns his entire existence to the Charter. 100 100 . may be comfortable but is not a methodological decision to be made without reflection. 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. which. especially in the field of good offices. Conversely. especially for someone as the Secretary-General. The UN Secretary-General and the Maintenance of Peace . such influence being understood as the fact that: “… the Secretary-General can act within narrow but undefined and shifting limits. At some point law matters. started to focus on the “influence” of the Secretary-General. that we would like to present as an effort. for Hal ini. p. in practice. 4. and legal or formalistic approaches to the SecretaryGeneral's role. This latter point will be the object of the following section. the political configuration at a given moment may not allow him to use one of his well-established legal powers. 4. New York. as is often the case in recent literature. In other words. Columbia University Press.. . . of a political nature. This Ini second hypothesis is very frequent. untuk the rest.political support. from a political science perspective. L. 1967. Neglecting the relevance of the legal scope. we admit that law matters. what is politically possible for the Secretary-General in a given situation does not necessarily coincides with his legal powers at this same time. 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”. on the contrary. or at least not to use it fully. from the end of the 1960s on. This objection is highly relevant.

In order to give a precise meaning to these terms. and to still another 'charismatic'. the Secretary-General may be in such a position that the space for political manoeuvring. to another 'bureaucratic'.B Legal scope <> Political scope LEVEL II: Type1 Legal scope . both the legal and the political scopes of action of the Secretary-General are expected to coincide exactly. At the second level of analysis . Greenwood Press. Ideal-types are therefore analytical categories to be used as tools for approaching complex social phenomena in an orderly and meaningful way. this first approach may appear too simplistic to provide a satisfactory account of the situation. ie when tension between the Secretary-General's legal and political scopes of action does arise. p. M. represents what could be termed as the formal-legalistic approach. There are three different levels at which the analysis can be conducted. This is why it is necessary to go a step further. Westport. Page 44 Page 44 35 35 concepts. x (italics added). Thus stated. These types will be arranged at three levels of analysis . when this is not the case.A Legal scope >> Political scope LEVELIII: Type 1. The first level . assuming only that both scopes of action largely overlap. Chapter 5. section vii. as law is assumed to be fully effective. Broadly speaking. where both law and politics point in the same direction. 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 . Of course. First.. 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. which we use as the start-point. Table I Tabel I LEVELIII: Type 1. Basic Concepts in Sociology . Here. 101 101 WEBER. it is necessary for sociology to formulate pure ideal types of the corresponding kind of action. For example. to another 'patrimonial'. which in each case involve the highest possible degree of logical integration by their complete adequacy of meaning. the passage from one to the other being the result of different processes . this approach may appear too artificial to be empirically relevant.. But precisely because of its pureness. 1977. may in fact be very useful when addressing uncontroversial initiatives of the Secretary-General.Ibid . However. Introducing such distinction entails both increased realism and growing complexity. the same historical phenomenon may be attributed to one aspect 'feudal'. konsep. two main situations are possible. a moderate version of it. the legal and political scopes of action are assumed to be distinct though intimately related. .

<< Political scope LEVEL III: Type 2. staying at level II may not be enough either. without making explicit the results or outcomes of such tension.A refers to those cases where the Secretary-General succeeds not only in making a legally dubious breakthrough. Again. is wider than the possibilities open from a legal point of view. Both express the existence of tension between law and politics. A political breakthrough has been made. but such opening is not clearly followed by a subsequent . for instance. Subtype 1. for it does not tell us how the legal and political scopes interact. without any doubt. taking advantage of political opportunities. Two subtypes are associated to each of the two basic types. whereas approaching the Secretary-General's political role at level I might yield too simplistic results. the need to grasp this interaction in its dynamic dimension requires an adjustment of the model. tampilan. The politically driven process through which the legal scope is expanded can take different legal forms. on the basis of a particular political configuration. This latter point concerns mainly what is commonly referred to as amendment by subsequent practice 102 102 . strong pressure from one or more States. Such situations will be covered by type 2 .A Legal scope << Political scope LEVEL III: Type 2. the Secretary-General may find himself in the strict opposite situation. in order to grasp the dynamics of the interaction between the legal and political scopes of action. In this regard. and this either because the process at work is purely political or because its legal existence is itself controversial.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. we need to go a step further in the analysis. Such situations will be ranged under type 1 . progressive interpretation. Second. The legal situation in such cases is ambiguous. because of.B Legal scope <> Political scope LEVEL II: Type2 Legal scope >> Political scope LEVELI: Startpoint Legal scope = Political scope Page 45 Page 45 36 36 ie his political scope of action. but also in having his legal scope expanded accordingly. Subtype 1. Subtypes represent the possible outcomes of each basic type. but the main one is. At the third level . neither one of the two types can be seen as a stable situation. However. . namely that what he could normally do from a legal point of view does not appear politically feasible. Namun.

means in fact to respect the law. and suddenly come back turning the droit latent into fully applicable and legitimising law. There is no point in saying that. subtype 2. La pratique subséquente des Etats parties à un traité in Annuaire français de droit international . the opposite effect. as an international organ. those who consider international law as a simple chimera may think that. but legal frames seem to have a far larger life span. pembangunan. In short. ie his political scope of action. 40. But the very fact of fully exercising the result of such configuration instead of submitting to the new political circumstances. for it would lead too far away from our particular focus 103 103 . in the end. G.A to subtype 1. the Secretary-General exercises his legal prerogatives all the same. and finally become legally regularized. less clear.B . What is at stake are the very mechanisms through which law matters.A case. he owns his entire existence to law. a political breakthrough may remain controversial during a considerable lapse of time. namely the passage from subtype 1..A . pp. 102 102 See : DISTEFANO. and his legitimacy for action must be sought above all in the pursuance of the principles of the UN Charter. They may not manifest themselves for a long time. such “psychological” doubts are not relevant. or even exclusively. despite the existence of strong political pressure. . Let Membiarkan us just point out that. Indeed.A refers to those cases where. The process at work here is. however. We saw that the legal scope itself is the result of a political configuration. against the political pressure of the moment. it is always possible to think of a desuetude process in favour of new practices. Of course. is by far less frequent. 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. for political reasons that the Secretary-General decides to respect the “state of the law” of his legal scope. both in its wording and in the state of its meaning. falling under subtype 1.B situation rather than one under subtype 1. However. for our purpose. to assess whether one is facing a subtype 1.B . eventually. Of course. 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. law would seem to prevail over political constraints. thus becoming a subtype 1. the relevance of law rests mainly on the fact that. it is necessary to take into account the time dimension. In such cases. Thus. if we were to give names to the processes at work . Page 46 Page 46 37 37 With regard to the two subtypes associated to the second basic type. everything comes to politics without saying how. We cannot enter here into a general discussion of such point. as if it was possible to invoke the souvenirs of an old political configuration. upholding a political word translated into law. but his previous “politically-established” legal scope. 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. 41-71. Of course. shows that the Secretary-General is not following the politics of the moment.legal expansion. it is mostly. In this context. 1994. in the precise case of the UN Secretary-General. Curiously enough.

In such cases. by the case-studies exploration to which we now turn. though legally entitled to undertake a number of actions. They are but analytical categories. as well as the remaining uncertainties regarding other parts of the framework. it is difficult to identify one particular force preventing the Secretary-General from exercising his legal powers in a particular situation. will be dissipated. ideal-types neither have nor pretend to have a real existence. 103 103 See the literature on International Regimes referred to supra . ie by the extent to which they allow for an orderly and meaningful analysis of the actual practice. legal legitimacy and reciprocity would be reasonable possibilities. The processes leading to this very frequent hypothesis have to be found on the political side of the equation.B . Moving on now to subtype 2. at least in part. The problem with Masalah dengan such characterization is that it is far too general and ambiguous. Page 47 Page 47 38 38 Page 48 Page 48 39 39 PP ART ART TT HREE Exploring the practice: A case-studies approach Page 49 Page 49 40 40 Page 50 Page 50 41 41 1. 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.here. footnote 8. the relevance of which is measured solely by their usefulness. it points to cases where the political constraints are strong enough to actually narrow the legal range of action of the Secretary-General. only a few of them. are therefore but abstract representations of the different situations in which the SecretaryGeneral may stand between law and politics as well as of the paths such situations may . with their respective outcomes or subtypes. The reason for such choice is very simple. 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. We hope however that this latter vagueness. This exploration will take the form of a case studies analysis. or even none of them are politically realistic. Again. 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. The two main types. It is now time to use this framework for the actual exploration of the practice. As pointed out when presenting the framework.

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. Again. ie whether it helps understand rather than predict the practice. for the number of cases lying under our operational definition of the Secretary-General's political role is limited. admittedly. There is no definitive solution to such a problem.follow. It is therefore not necessary that the framework explain all possible cases. It all depends on what the ambitions of the empirical study are. However. without any doubt. What Apa counts is whether or not it can say something interesting of any case or not. the approach itself presents. provided the analysis of the cases selected is enhanced through the use of the framework. by definition. how to justify the choice of one or the other case. One may expect from this a somewhat “symmetrical” presentation. an unbalanced choice could be misleading in that Page 51 Page 51 42 42 the reader could think of the existence of “theoretical” reasons for such imbalance. 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. The next difficulty is then how to choose. Whereas. it would be very much the same to use only peacekeeping rather than good offices cases or vice-versa. but only to see how different moments of such evolution can be grasped in both its legal and political aspects. 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. the exploration would greatly benefit from including some of the major cases in which the Secretary-General was involved. In our case. it would be more interesting to explore the usefulness of the framework both in cases of peacekeeping and of good offices. The main one is. The The fact that the framework presented has no predictive pretensions excludes however any such confusion. From a theoretical point of view. As a way to integrate this dimension into the analysis. the intention of the framework is merely to provide a tool for an orderly and meaningful analysis of the practice. This is why we will accommodate the presentation to include both. Let us introduce a caveat here. Of course. Another difficulty stems from the fact that the operational definition of the Secretary-General's political role includes two fields. In this context. Whereas Sedangkan for the particular topic at hand this would not be unthinkable. We need a set of criteria to justify analysing some cases rather than others. It even seems to go beyond the scope of far larger studies. there are no definitive answers. this is a mainly aesthetical consideration. especially those where the tension between law and politics seemed particularly strong. which would leave the dynamic dimension identified in the preceding section out of the game. A final but not less relevant difficulty is that case studies are often conducted separately case by case . such a solution would go far beyond the reasonable scope of our study. praktek. ikuti. if the choice of the approach is not problematic. The only real way out would be to treat all the existing cases. namely a selection procedure ensuring that the number of cases of peacekeeping and of good offices be the same. certain methodological difficulties. we must choose. .

the eminent Anglo-Saxon legal scholar Louis Henkin recalls that “. These words of a holder of the Office show strikingly well the legal difficulties of acting between law and politics . ketegangan. . role. General remarks In a very suggestive as well as provocative statement. succumbing to modesty. to . . In what follows. Here. politics and law go together. 2. that is. On one side is the Scylla of trying to inflate the role through too liberal a reading of the text: of succumbing. that is on what has been referred to as levels two and three . Page 52 Page 52 43 43 concentrate on cases where tension between law and politics are manifest. once again. 2. 2. The Secretary-General's political role in practice 2. In such cases. p.. his direction will be undoubtedly affected by their force. we referred to these unproblematic cases as level one situations. Columbia University Press. Both are equally damaging to the vitality of the institution. we will come back to the situation of the Secretary-General between law and politics in order to provide some guidelines for future reflection. The mythological monsters Scylla and Charybdis were in reality very dangerous streams. How Nations Behave . 47. we could then say that even if a Secretary-General is a good enough navigator to sail across them. on the contrary. Very often. to vanity and wishful thinking.. 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.1. Law Hukum being fully effective. the Secretary-General adopts a particular behaviour that is both perfectly legal and politically desired by States. There are. After exploring the practice. When setting the framework. L. It is however precisely when such interaction becomes conflictive that the Secretary-General finds himself between law and politics. The SecretaryGeneral's political role is not an exception to this general statement.1. to the instinct of self-effacement. Whether a Secretary-General tends to enlarge his role or. for both largely coincide. Comparing these streams to the forces governing international affairs. we will only 104 104 HENKIN. I submit that no Secretary-General should give way to either of them” 105 105 .. 47. The position of the Secretary-General in such cases has been elegantly described by Javier Perez de Cuéllar. thus. the analysis of the legal scope goes in hand with that of the political scope.In the following pages. and to the desire to avoid controversy. 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. the interaction between law and politics cannot be understood as a tension. and no political constraints playing against the choice of a clearly legal alternative. 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. almost all nations observe almost all principles of international law and almost all of their obligations almost all the time” 104 104 . temptations on both sides. 1979. Let us quote. New York.

Page 53 Page 53 44 44 Council was considering the alleged communist infiltration in Greece's northern frontier. the essential political confirmation of such independent diplomatic role came five years later when. and the outcomes of such tension are described by their corresponding subtypes . A. Divided World . after condemning: “as contrary to the Korean Armistice Agreement. The conquest of an independent good offices role ( subtype 1. Indeed. the trial and conviction of prisoners of war illegally detained after 25 September 1953” requested the Secretary-General: “… in the . In this particular case.. Clarendon Press. within a larger framework. 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.1..). Within each part. This line of action was confirmed by his initiatives in the October 1948 Berlin crisis as well as in the Korean conflict.2. The UN's Roles in International Relations. the holders of the Office have tried to assert an independent diplomatic role. Already in September 1946. konflik. For the sake of clarity. the legal powers and competences of the Secretary-General cannot so easily change. Resolution 906 (1954).2. namely interpretation. Such modus operandi came to be known as the “Peking formula”. 2. This choice has the advantage of situating the “traditional” approach in legal scholarship.A ) From the very beginning of the Organization. The Role of the UN Secretary-General in Roberts. J. When politics goes beyond law: exploring type 1 2. (eds. we have preferred to pursue the analysis from level two to level three in the same section. tindakan. when the Security 105 105 PEREZ DE CUELLAR. United Nations. B. 126. p.2. 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 . in relation to the 1955 Sino-American crisis. Kingsbury. 1993. However. 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.2. a number of episodes or “bites” on the practice continuum will be analysed in order to illustrate the passage from basic types to subtypes. This is the start-point for both types 1 and 2 . In order to situate the analysis at level two. However. We will divide the presentation in two main parts. 2nd edn. 126. Legal analysis will be integrated as part of the process description. each focusing on one of the basic types. 2. 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. as one among several other processes characterizing the interaction between the Secretary-General's legal and political scopes of action. 2.minimise it will heavily depend on world affairs at that time.1. . the transition from basic types to subtypes being thus assimilated to the passage from the “static” level two to the “dynamic” level three.. Dag Hammarskjold acted on his own authority to obtain the release of a number of American prisoners. Oxford.

however. 107 107 Cf. Hammarskjold .name of the United Nations... 1993. and all other captured personnel of the United Nations Command still detained” and “… to make. Oxford. Divided World . 1972. The Chinese communist government had strongly reacted against this resolution. 70 th th meeting. 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 . claiming an independent say in peace and security issues. NOLTE. 109 109 Ibid . cited in FRANCK. Knopf. General Assembly Official Records . B. to seek the release. 10 th th December 1954. 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 . 20 September 1946.. 404. KINGSBURY. 106 106 Security Council Official Records . A. especially if we take into account that. p. Hammarskjold had prepared the ground . 509 th th plenary meeting. Hammarskjold took the legally dubious stance of dissociating himself from his mandate. B. It is interesting to mention that the Secretary-General's claim was encouraged by the representative of the Soviet Union. Page 54 45 45 From a political point of view. New York. by the means most appropriate in his judgement. United Nations. Article 98 states that the Secretary General: “… shall perform other functions entrusted to him by these bodies (the General Assembly and the Council)”. 108 108 UN Doc. replying to a letter of Henry Cabot Lodge Jr. 144... can he refuse to perform a mandate. 102-103. p. 99. Alfred A. pp. of these eleven United Nations Command personnel. declaring. There is nothing in the Charter granting such power to the Secretary-General... continuing and unremitting efforts to this end” 107 107 . taking the liberty of choosing an alternative way? Legally speaking. asking him to get personally involved.. A/2889 cited in URQUHART. In such circumstances. G. 99. The Good Offices Function of the UN Secretary-General in ROBERTS. . 144. in accordance with the Korean Armistice Agreement. Clarendon Press. this would be highly contestable. Th. p. But.

applied to his mission in general 111 111 . And its very “quietness” also presented the advantage of leaving the Secretary-General's “diplomacy” out of the reach of legally motivated disturbances. through the Swedish Embassy in Switzerland. 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 . let us just mention two.. the US attached great importance to obtaining a resolution judgemental enough. . This release from serving their full term takes place in order to maintain friendship with Hammaskjold and has no connection with the UN resolution. 3. Knowing that. Reducing the public pressure to the minimum. writes: “(he) explained that in fulfilling his obligation to try to reduce international tensions anywhere in the world. Hammarskjold needed this to legitimise his action before both the UN organs and. In Dalam any case. The The cable ran as follows: “… 2. for domestic reasons. introduced at the request of Western European delegations in connivance with Hammarskjold. In his first meeting with the Chinese official.meticulously. Of the several steps taken in this regard. on December 8 th th . 3. which were applicable to members and non-members of the United Nations alike. and surely also a mutual respect between Hammarskjold and Chou En-lai. above all. As a matter of fact. formed the legal basis for his present visit ” 112 112 . The Chinese Government has decided to release the imprisoned US fliers. 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. it is interesting to note the wording of the confidential cable sent by Chou En-lai to Hammarskjold. no Secretary-General would acknowledge to be acting outside his legal powers. . he informed Lodge. while increasing the private pressure to the maximum. the face-saving dimension of Hammarskjold's initiative became fully operational. who had access to Hammarskjold's private notes on the meeting. Brian Urquhart. Hammarskjold put great emphasis on clarifying his position. It was on this basis that he had come to Peking. 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. but the Charter of the United Nations. The January visit to Peking did not yield any concrete results. 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. However. which in the following months will become very important. Since. not the condemnation of the General Assembly in its resolution of December 1o. he underlined that the phrase: “by the means most appropriate in his judgement”. In this last respect. to announce the release of ten more prisoners. that was the recipe for “quiet diplomacy”. of the way he intended to interpret the mandate the Assembly was likely to give him. as soon as public pressure decreased. The resolution once adopted. in our view particularly suggestive. it established a first contact. The The . before Chou En-lai. Chou En-lai expresses the hope that Hammaskjold will take note of this point.

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. In his September 99 th th report to the General Assembly on the mission 114 114 . Dalam hal ini. the rules of interpretation are clearly established both in customary and treaty law. p. in peace and security matters. by its own nature. we find only a short review of major facts. even with regard to questions arising between non-members States. p. the Peking mission had been a striking political success. desperately requires progressive interpretation to keep its relevance. . 105 (italics added). In Dalam international law.. for political correctness. In this case. p. 4.. a type 1 situation such as the one described may end up in a subtype 1.. To Untuk resume with the terminology of our analytical framework. 101. and this through a process of interpretation. keep the message secret. The message is clearly addressed to Hammarskjold personally. The The Secretary-General will. and as such. namely in the enlargement of the UN Secretary-General's legal powers. After all. But the Tapi confirmation sought did not come . Chou En-lai congratulates Hammarskjold on his 50 th th birthday” 113 . 100. it is indeed extremely difficult to say when a particular interpretation becomes the somewhat “accepted” meaning of a provision or set of provisions. 112 112 Ibid . But a straight line needs at least two points to be drawn. which. In the meantime. a notion that includes both a dimension of political acceptability and its formal recognition. a precedent had been created.A situation. on his own authority. 100. what we referred to as the “state of the law” is totally equated with what we called the “state of the meaning”. A particular initiative cannot be seen as a “precedent” if the idea of a new rule has not yet come to mind. 111 111 Ibid . The practice of interpretation is however more difficult to grasp. In this cable there is no question of the UN. In analysing the conquest of an independent good offices role for the UN Secretary-General. This meant the acceptance by the great powers that the Secretary-General was entitled under the Charter to intervene. In many cases. This is especially the case when it comes to interpreting a document such as the UN Charter. Page 55 Page 55 46 46 Chinese Government hopes to continue the contact established with Hammarskjold. 4. no one would seriously question the details of its legality. 101.110 110 Ibid . we must therefore look for some point where such role received a first formal recognition.

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. . without raising criticism from the Soviet Union. The affair of Bahrain is extremely interesting as a key moment of the process connecting type 1 to subtype 1.. It Ini shows how the subtleties of establishing a “state of the meaning”.. cited in URQUHART. the formal recognition element was still missing. . we will have to wait until U Thant's involvement in the Bahrain affair 116 116 . . 113 Unpublished document. B.115 115 . 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. this does not mean that the approach itself was not considered as politically desirable. 114 114 UN Doc. based on the spirit of Article 99. Of course. at least in some situations. recalling two other letters dated 27 August 1966 118 118 and 19 March 1969 119 119 . The action of the Secretary-General did not go. despite the usefulness of such increasingly admitted approach. However. Indeed. without previously consulting it.. the good offices initiative was in the end widely accepted by the parties to the dispute as well as by the international community. 1954. In a letter of 3 April 1970 117 117 . 130-131. September 9 th th . pp. however.A . on May 11 th th 1970. A/2954. the Security Council acknowledged a good offices initiative that U Thant had undertaken. p. Page 56 Page 56 47 47 For such recognition. Ibid . In spite of such criticism. cit . 115 115 See URQUHART. B. For the first time. 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 . Further Lebih lanjut confirmations of this point are to be found in Hammarskjold's intervention in the Laotian civil war. 126. The letter emphasized. which is an . 126.. 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. op..

146. for to do otherwise would be to thwart a commendable effort by Member States to abide by a cardinal principle of the Organization. In this reply. Page 57 Page 57 . 1966. 121 121 Letter of 6 April 1970 from the Secretary-General. 1736 th th meeting. 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. the SecretaryGeneral felt: “obligated to assist Member States in the manner requested. once the Security Council had acknowledged his initiative. transmitting to the Security Council the reply dated 4 April 1970 to Permanent Mission of USSR. The Secretary-General's use of good offices and the question of Bahrain in Millennium . 120 120 Security Council Official Records . 1970. 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. 335-348. Piagam. At the Pada heart of such interrogation lies the progressive interpretation of Article 99 of the UN Charter. 1969. even if no specific 116 116 For a detailed study of this case see JENSEN. 11 th th May 1970. is a profoundly political matter. 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. pp. p.indispensable step towards the actual enlargement of the Secretary-General's legal scope. E. p. 146. cited in United Nations Yearbook . 118 118 United Nations Yearbook .. 1970. These conditions being met. In an address to the Royal Commonwealth Society at London. namely.. 1985. April 3 rd rd 1970. S/9737. p. 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. 117 117 UN Doc. 285. 14/3. 163. 119 119 United Nations Yearbook . 163. UN Doc S/9738. U Thant noted that from time to time States asked the SecretaryGeneral to exercise his good offices considering that an amicable solution can thus be reached. U Thant sought to enlarge the Bahrain precedent this time asserting a totally independent standing in peace and security matters. the peaceful settlement of disputes” 121 121 . Later in that year.

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

vol. The wording of these two paragraphs constitutes a clear acknowledgement of the legal standing claimed by previous incumbents. The Quiet Approach . Columbia University Press. Javier Perez de Cuéllar will show how useful the legal acceptance of such role can be. June 15 th th 1970. offer a very good illustration of how solid the politicallydriven expansion of the Secretary-General's role can be or. to extrapolate Marx's terminology. if approached by a State or States directly concerned with a dispute or situation. 1977. A. 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. cited in CORDIER. The SecretaryGeneral. New York.. 25 th th session. 384 (italics added). The point of no turning back referred to above was arguably reached during the second mandate of Javier Perez de Cuéllar. and more generally: PECHOTA. The involvement of Kofi Annan as a mediator rather than a good officer in the Cyprus affair. VIII. New York. While often seen as a dull and colourless personality. V. General Assembly Official Records . HARRELSON. (eds. 1968-1971 . London. . it would have been almost impossible to question the legality of the Secretary-General good offices role.Speech to the Royal Commonwealth Society on the Role of the Secretary-General. As Seperti George Lankevich puts it: “In ten years as a secretary-general. 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. U Thant. p. as he deems appropriate . and the absence of legally motivated criticism on the part of Member States. supplement No 1A (A/8002. M. UNITAR. 1972. 21. Cf.). and is embodied in General Assembly Resolution 43/51 (1988) of 5 December 1988 124 124 . 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 . 1) . . Perez de Cuéllar gained the . how superstructures may outlive changes in the infrastructure . Introduction to the Annual Report. Page 58 Page 58 49 49 original role. Add. 123 123 Cf.. Public Papers of the Secretaries-General of the United Nations. 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.

Whereas the geopolitical overstretch of the USSR was becoming more and more notorious. The United Nations. 107. vii-viii. In a similar vein. p. face-saving. would fit here as a crucial face-saving instrument in the Soviet disengagement strategy. such as the Central-America conflict. . the Iran124 124 General Assembly Official Records . as part of a disengagement strategy. what counts for our purpose is. gave the Secretary-General a considerable political margin for diplomatic initiative. combined with Perez de Cuéllar's respectful attitude towards the Permanent Members in the first years of his mandate. Edward Newman points out that: “from a position of frustration and in some cases even irrelevance until 1986-7. to a large extent. the unheralded secretary-general managed to have the newly unified Security Council urge him to act in areas where he wanted to perform. and he led the United Nations to its highest levels of accomplishment” 126 126 . . and above all the Secretary-General. issues once thought to be insoluble were settled. p. Macmillan Press / St Martin's Press. and facilitation” 127 127 . 126 126 LANKEVICH. London / New York. which had poisoned international relations until then. The Scarecrow Press. 1998. This. 107. it was too costly for the Soviet government to simply abandon its role in a number of conflicts.. The United Nations under Javier Perez de Cuéllar. 1982-1991 . 127 127 NEWMAN.trust and respect of the great powers while carving an independent place for the United Nations in international affairs. Page 59 Page 59 50 50 Iraq war or the Soviet occupation of Afghanistan. 2001. The change in the USSR attitude towards the United Nations involvement in Cold War tainted conflicts can be seen. to examine how the Secretary-General found the legal and political space for such successful action. again. GJ. The UN Secretary-General from the Cold War to the New Era: A Global Peace and Security Mandate? . However. In this regard. 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. 125 125 Italics added. Of course. 5 th th December 1988. 68 th th plenary meeting. Maryland/London. the Secretaryship-General came to represent an organ of authority and facilitation in the roles of creative mediation. . Taking full advantage of the decline in Soviet strength. one cannot understand much of this late success without referring to the evolving political conditions in which Perez de Cuéllar deployed his action. E. As a result. as well as his prestige within the Third World movement.

129 129 UN Doc.A . 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. If the episode recounted illustrates how our framework may be used to analyse a politically driven legal conquest.S/24111.Moreover. the legal and political scope of action seemed now to converge. 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. keadaan. Boutros Ghali's Agenda for Peace takes for granted the extent of the SecretaryGeneral's legal powers in this respect. op.. .. In many of the settlements successfully achieved by Perez de Cuéllar. despite such conquest.6/43/SR. and later on by Boutros Ghali. A/47/277 .. 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 SecretaryGeneral in taking preventive action” 129 129 . 33. masalah. paragraph 16. p. 35 (italics added). 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. It only shows how this is possible. reflecting 128 128 LAVALLE. the good offices of the Secretary-General may at times be employed most effectively when conducted independently of the deliberative bodies …” 130 130 . while “digesting” former practice. cited in Ibid . that the legal recognition of an independent good offices function for the Secretary-General implied both a conquest and a limitation . To use a provocative metaphor.. it only intends to provide an orderly and meaningful way to analyse this kind of phenomena. Page 60 51 51 the abstract traits of subtype 1. but does not inhibit him from future use of his autonomous powers to undertake novel activities” 128 128 . cit . or. par. more precisely. In Afghanistan and Cambodia the use of a Pekingformula modus operandi appeared particularly useful. this does not mean that such conquest remained fully operational irrespectively of political circumstances. no political room is left to the . 17 June 1992. when. A different situation may indeed arise. the aforementioned resolution carefully avoided ordering a “second dish”. A/C. Such interpretation seems to be consistent with the travaux préparatoires . the General Assembly and the relevant Member States acting in their national capacity.19. 37. 130 130 UN Doc. 37. R. by the General Assembly or by the Secretary-General … While the mediator's effectiveness is enhanced by strong and evident support from the Council. p. when presenting the project. . It must also be added. 33. taking into account that.

. every march towards legal recognition implies. as we have seen in the preceding section. 2. In these cases. the initiatives that fall under this category are of an exceptional kind and. unless similar conditions are met. one cannot properly speak of law. keamanan. no process of legal integration seems to find its way through. for the prospects of legal recognition are too vague. not every innovation introduced by Hammarskjold benefited from such a bright fate. 131 (italics added). subtype 1. of course. Yemen and Bosnia ( subtype 1. The connection between type 1 and subtype 1 . as if.B ) Reflecting on Hammarskjold's first steps as a facilitator.. The consecration of an independent good offices role for the Secretary-General is. B. Facing a deadlocked Security Council. and in later years he tended to recall it as a measure of the tension and quality of other crises. a great success. Reining in the Secretary-General : Lebanon. The The processes at work are far less clear than in subtype 1. using other examples. there are initiatives that are so closely linked to the personality of the incumbent or to particular historical circumstances that. cit . their regularization into legal powers seems less probable. many cases come to mind.Secretary-General to deploy his legal good offices powers. in which Hammarskjold's creativity and impetus were not matched by subsequent legal conquests.A is not adapted. he had come of age as SecretaryGeneral” 131 131 . After August 1955 his style changed noticeably. The crisis set off by the landing of American Marines in Lebanon in 1958 provides a first illustration. For the time being let us complete the analysis of basic type 1 by turning to its other outcome. Of course. Brian Urquhart points out: “Hammarkjold enormously enjoyed the challenge of the Peking experience. I would. For the analysis of these other cases. as such. namely subtype 1. To summarize. because of their exceptional nature. no exception. Hammarskjold decided independently to increase the UN Observer 131 131 URQUHART. At this point. a transition characterized by legal vagueness..B .A and this either because they are of a political nature or because. In such cases.2. p.B is intended to model precisely this kind of situation. Page 61 Page 61 52 52 Group in Lebanon in order to make it strong enough to replace the American presence. at the completion of the affair of the American prisoners in China on his fiftieth birthday. nor of law in statu nascendi . they cannot be easily regularized.B . having the ambition of being legal. Such a situation could be better approached under type 2 and subtype 2. op. We will see how later on. contoh. they are too controversial. as a necessary step. To justify his action before the Security Council he recalled what he had stated at the time of his re-election.2. 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. If the launching of an independent good offices role for the SecretaryGeneral was. However. accept the consequences of your judgement” . in this regard. And he then added: “Were you to disapprove … of the way in which these intentions are translated by me into practical steps. It stimulated in him a new taste and new ideas for using his office and his position to tackle difficult problems .

Moreover. as a “Declaration”. This conclusion is confirmed if we take into account the wording of the already cited General Assembly Resolution 43/51 (1988). 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. if the Security Council was deadlocked. to say the least. the initiative comported a face-saving dimension for the retreat of American troops without jeopardizing security in Lebanon. 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.. R. in the sense of Article 98 of the Charter. among which there was one authorizing the enlargement of the Observation Group. One could still argue that the use by U Thant of this modus operandi provides a basis to invoke an amendment by subsequent practice. 33 seq. the adoption by the Security Council of a decision disapproving Hammarskjold's initiative would have been. This remark has a two-fold interest. following the line previously adopted. In short. between May and June 1963. The second point is subtler. 22 nd nd July 1958. 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. 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. In such conditions. In Dalam addition. Indeed. Even the assertion of a general competence in peace and security matters. Indeed. A fortiori . though politically convenient at some particular moment. Roberto Lavalle persuasively argues that the two major limitations for the autonomous political action of the Secretary-General remained unchanged 133 133 . Page 62 Page 62 53 53 consecutive reports . such initiative. quite unlikely. never received a clear legal recognition. such an independent competence remained controversial. op. on his own initiative. This Ini competence. 837 th th meeting. has no clear basis in the Charter. . Indeed. cit . still in 1970. paragraphs 10-18. When analysing the development of the Secretary-General's good offices role. . pp. is put forward as the rule. a UN observer force to monitor the disengagement of foreign troops in Yemen. we saw that. the disapproval being the exception. 133 133 LAVALLE. the Secretary-General asserts a competence of principle to act in the interest of the world peace when the political organs are deadlocked. In three 132 132 Security Council Official Records . although subject to disapproval of the organs.132 132 . from which such independent capacities where consciously excluded. But these are all political arguments. the Secretary-General took the liberty of establishing.. First.

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. again. but also. showing how the Secretary-General's political space seemed wider than what was legally well established. Referring to this period. U Thant had been clearly inspired by Hammarskjold’s initiative during the 1958 Lebanon crisis.134 134 . Indeed. to invoke an amendment by subsequent practice. resorting to such a political precedent constituted a somewhat middle ground between illegality and legality. what is interesting is to focus. including the mandate he had himself given to the force and proceeded to send a small team of Yugoslav military borrowed from UNEF. Under subtype 1. this is but a further confirmation that the legal standing of such practice remains highly controversial.B . At the beginning of Boutros-Ghali's tenure. to justify the very possibility of such legal device. let us first subsume the situation under basic type 1 . . to the exception of the Congo and Somalia crisis. 27 . U Thant's initiative did not go unnoticed. Edward Neumann points out that: “Boutros-Ghali was in many ways suited to an environment which offered the UN and the Secretaryship134 134 UN Doc S/5321. from a political point of view the way was open for the Secretary-General to pursue his initiative. Moreover. For our purpose. he informed the Security Council of the different modalities.B can also be a useful tool for approaching some aspects of the SecretaryGeneral's involvement in Bosnia and Herzegovina. never had the Secretary-General been so closely involved in military operations than in Yugoslavia. Yet. it would be necessary not only to clearly state the provision concerned and the content of the amendment. the measures adopted by the Secretary-General were within the competence of the Security Council 135 135 . great enthusiasm as to the new possibilities of the United Nations seemed to characterize the international public opinion. 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. As before. First of all. Though legal argumentation remains possible. 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. from a legal point of view. . This first case thus shows how a type 1 situation may not lead to a subtype 1. it may be both more suggestive and more accurate to speak of a “doctrine”. the Council did not intend to consider it as part of the Secretary-General's legal powers. Subtype 1. The Soviet delegation made it clear enough that. later joined by another small team of Canadian military. on how a political “doctrine” may be advanced by an incumbent to gain legitimacy for legally dubious action. and perhaps above all.A outcome. More precisely. pendapat. Whereas. ie a particular conception of his office that an incumbent tries to assert 137 137 . under the Charter. Although not a legal power pertaining to the Secretary-General. But such an argument would be fairly persuasive.

JP. 136 136 Security Council Official Records . 1039 th th meeting. 135 135 Security Council Official Records . 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. 1039 th th meeting. at least initially. Meeting for the first time at the level of Heads of State and Government. UN Doc S/5325. 137 137 See for instance: LASH. 8 th th June 1963. 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. the British Prime Minister John Major: “… to prepare. 542-566. 1962. for peacemaking and for peacekeeping” 139 139 . Page 63 Page 63 54 54 General opportunities to increase their activity in international peace and security. for circulation to the Members of the United Nations by 1 July 1992. both material and financial. They could also cover the need for adequate resources.. The The post-Cold War period. was such that the personality of the incumbent could help to shape the post-Cold War model of the Secretaryship-General” 138 138 . Dag Hammarskjold's Conception of his Office in International Organization . 3 rd rd June 1963. 16/3. the Security Council invited the UN Secretary-General. and of his other functions under the United Nations Charter” 140 140 . 11 th th June 1963.th th May 1963. through the voice of his President. pp. UN Doc S/5325. 7 th th June 1963. 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. . He could also consider how greater use might be made of his good offices.

and undertake to work closely with him and his staff in fulfilment of their shared objectives.S/24111.. ie the consent of the host State. 143 143 Regarding peace-keeping. the Agenda calls. Of this widely heralded document. p. S/23500.. A/47/277 . hitherto with the consent of all the parties concerned .. 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. peacekeeping is defined as: “… the deployment of a United Nations presence in the field. among others: for an improvement of the financial mechanisms through which peace-keeping operations are supported (par. . As stated in the conclusion: “. Not only did it acknowledge the relevance of the Office in peacekeeping and good offices. 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 . keamanan. UN Doc. normally involving United Nations military and/or police personnel and frequently 138 138 Ibid . His Excellency Dr. 140 140 Idem. namely the suggestion that the number one rule of peacekeeping. including a more efficient and effective United Nations system” 141 141 . for the conclusion of stand-by agreements making troops available directly to the Organization (par. for the innovative idea of preventive deployment (par. This document was seen. 44). Boutros Boutros-Ghali.. 31 st st January 1992. 111. Indeed. UN Doc. The result of such request is widely known. we will only focus on one particular point 143 143 . 17 June 1992.. 139 139 Note by the President of the Security Council. at the time. may be by-passed if necessary. 38 and Chapter IX). for the creation of peace-enforcement units under the command of the UN SecretaryGeneral (par. 142 142 An Agenda for Peace . They pledge their full support to him . and note with satisfaction his intention to strengthen and improve the functioning of the United Nations. 111. . but it also placed the Secretary-General in a pivotal strategic role in these fields. 141 141 Idem. which can be seen as Boutros Ghali's “doctrine”. 51). . as a full endorsement of the UN Secretary-General's role with regard to international peace and security. in paragraph 20 of the Agenda . 28-32). (italics added).

B . according to paragraph 45 of the Agenda: “…there may not be a dividing line between peacemaking and peacekeeping”. . Boutros Ghali's proposal to create peaceenforcement units under command of the Secretary-General “as in the case of peacekeeping forces” 145 145 .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. the case of Bosnia and Herzegovina provides an interesting illustration of the boom-bust pattern characterizing subtype 1. In June 1993.A outcome. put many States en garde against repeating the mistakes of the past. In this regard. more precisely. Resuming with the terminology of the framework. The traditional frontiers of peacekeeping are further blurred in later paragraphs. under the authority of the Security Council and subject to close coordination with the Secretary-General and UNPROFOR. Here. for the time being. 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 . through the use of air power. to the military capabilities which were vested in him. We refer to the Secretary-General's involvement with the North Atlantic Treaty Organization (NATO) in Bosnia and Herzegovina and. we would like to focus our attention particularly on one. the Security Council. Peacekeeping is a technique that expands the possibilities for both the prevention of conflict and the making of peace” 144 144 . Among the different issues raised by the Yugoslav crisis 147 147 . acting nationally or through regional organizations or arrangements. 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.Page 64 Page 64 55 55 civilians as well. the efforts of Boutros Ghali to enlarge his legal powers did not yield. in and around the safe areas in the Republic of Bosnia and Herzegovina. Subtype 1. with the Governments of the Member States contributing forces to UNPROFOR: a. inter alia. which we consider as the most controversial issue regarding the Office of the Secretary-General. as well as the inclusion of peace-enforcement under the label peace-making. Indeed. taking into account that. . all necessary measures. at least in this regard. decided that: “Member States. to support UNPROFOR in the performance of its mandate …” 148 148 . requesting the Secretary-General: “… in consultation. to a point where it is impossible not to recall the Congo experience. may take. The position of the UNPROFOR mission became increasingly difficult during 1993 and 1994. acting under Chapter VII of the UN Charter. a subtype 1. into a legal conquest for the Secretary-General. Especially. 1994.

148 148 Resolution 836 (1993). 10. Peacekeeping and Peace-Enforcement in the Republic of Bosnia and Herzegovina in Zeitschrift für ausländisches öffentliches Recht und Völkerrecht . 147 147 For further detail on the UN's experience in Yugoslavia see: BENNET. in particular. 1995. At the same time. pp. 59. 155-195.. the NATO Council eventually approved a series of Operational Options for Air Strikes in Bosnia and Herzegovina stating. HIGGINS. 1993. C. respectively. London. as a former UN senior officer pointed out: “giving orders as to whether or not people should be killed has serious implications: this . WELLER. . M. 67. 10. 1996. in January 1994 152 152 . 70-177. 465485. Course and Consequences . 44. as well as in a number of Security Council presidential statements and letters. the Council: “Call(ed) upon Member States to contribute forces. 1996. 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 . with the agreement of the Governments contributing forces” 149 149 . Bosnia and Herzegovina: Civil War or Inter-State Conflict? Characterization and Consequences in British Year Book of International Law . 3228th meeting. Causes. par. pp.145 145 Par. adopted on 18 December 1992 and 20 September 1993. Security Council Official Records . 44. pp. C. 69/3. However. . Yugoslavia's Bloody Collapse. R. GRAY.. ... including logistic support. 146 146 The official reaction was given in General Assembly Resolutions 47/120 A and B. Page 65 Page 65 56 56 entrusted with protection of safe areas. 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 . 4 th th June 1993.. The Secretary-General was thus put into a key policy-making as well as military position with regard to the Bosnian conflict. Hurst. In this context. This commitment was later confirmed at the Ministerial Meeting of the North Atlantic Council. The New United Nations and Former Yugoslavia in International Affairs .

Press Communiqué M-1(94)3. Of course. 151 151 Decision taken at the meeting of the North Atlantic Council on 9th August 1993. If that remains the Council's wish. to carry out air strikes in order to prevent the strangulation of Sarajevo. but should we conclude from this the existence of a legal conquest? Beyond any personal crusade. the consent and cooperation of the warring parties. Declaration of the Heads of State and Government at the Ministerial Meeting of the North Atlantic Council. par. 152 152 “We reaffirm our readiness. June 1994). The The absence of a clear enforcement mandate in the Council's resolutions on Bosnia and Herzegovina. on a continuous basis. cited in NEWMAN. the Secretary-General observed that: “64. 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. like all peacekeeping operations. 7. 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. op. so far. 65. but in my opinion it also threatens the role of the Secretary-General” 153 153 . the official interviewed is former UN Assistant Secretary for General Political Affairs. 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 ”. par. 1. who had stated elsewhere that: . Brussels.. the consequence is that. Apparently. 10-11 January 1994. 150 150 Ibid . the safe areas and other threatened areas in Bosnia-Herzegovina”. 7. notwithstanding their frequent references to Chapter VII.has enhanced the role of the Secretary-General. 135. UNPROFOR will be able to carry out its mandate only if it enjoys. 8. it has wished UNPROFOR to be a peacekeeping operation. Press release (93)52 (italics added). cit . 25.. par. E. In one of his reports to the Security Council on the situation in Bosnia and Herzegovina. Given Mengingat 149 149 Ibid .. 8. 135.. p. Giandomenico Picco. . par. 65. under the authority of the United Nations Security Council and in accordance with the Alliance decisions of 2 and 9 August 1993. 153 153 Interview conducted by Edward Newman with a former senior member of the Executive Office of the Secretary-General (New York. he was entitled in practice. 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.

were troops to take the initiative in an armed attack on an organized army group in the Congo ” 157 157 . 15. in my opinion. while the possibility of becoming such a party would be open. this would not. He did want a peaceenforcement operation to be carried out and he assumed the conduct of military operations. 73/5. mean that they became party to a conflict. Hammarskjold had all the same maintained that: “United Nations troops should not become parties to armed conflict in the Congo. it is important to avoid creating unrealistic expectations of what the Force can achieve” 154 154 . Page 66 Page 66 57 57 their lamentable record in this respect. in my opinion. in the last resort” 156 156 .“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”. after the Security Council adopted Resolution 161 (1961) 155 155 authorizing all necessary measures to prevent civil war : “including … the use of force. p. If following such efforts – or measures taken in support of their result – United Nations troops engaged in defensive action. persuasion or conciliation were to fail. operasi.. if necessary. PICCO. written long after the adoption of Security Council Resolution 836 (1993) that had put him into the position of using NATO air power. September/October 1994. Leave the Secretary-General Out of It in Foreign Affairs . Contrary to Hammarskjold's approach in Congo. when attacked while holding positions occupied to prevent a civil war risk. However. resort being had to force only when all other efforts such as negotiation. The basic intention of the resolution is. . In February 1961. G. in order to “enforce the will of the international community”. The UN and the Use of Force. no clear peace-enforcement mandate arose from the Security Council resolutions.. In a press conference in The Hague. the taking of all appropriate measures for the purposes mentioned. Boutros Ghali was asking to be put into the position of leading a peace-enforcement operation.. from February 1994 to September 1995 the Secretary-General asked and obtained the use of NATO's air power . But as he seems to recognize in the preceding report. he had declared that he: “favored the use of air power and was ready to give the green light if asked” 158 158 . 15. on January 21 st st 1994. The contrast of the two approaches makes clearer the novelty of Boutros Ghali's view.

143. Annex VII. we have preferred to follow the second path and this because. the exceptional nature of such powers would prevent them from becoming a regular part of the Secretary-General's legal scope of action. in accordance with subtype 1. 1. 147. if my advisers want to use it”. Naturally. paragraphs 61. But there are good reasons to believe that Boutros Ghali's action was legally unfounded. IB Tauris Publishers. 156 156 Part A.A outcome. tidak berdasar. In this regard. the author also points to an interview he gave to The New York Times . on the contrary. If. we still need to know if this has expanded the SecretaryGeneral's legal scope of action. 147. 21 st st February 1961. 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. B.B would be a closer category. S/4741. 27 th th February 1961 (italics added). Here. mainly the Security Council. in our opinion. Page 67 Page 67 58 58 This means that. In this section. 1999. par. respectively (italics added). A US – UN Saga . 158 158 Cf BOUTROS GHALI. . subtype 1. Assessing the legal standing of this action is a very complex task. let us first note that. Unvanquished.159 159 . the Secretary-General has the power to interpret the mandates conferred to him in the limits of good faith. p. everything appeared to be duly authorized. Ibid . Indeed. 143. in both cases what really matters is the analysis. 154 154 UN Doc. S/1995/444. S/4752. we rejected this view. 64 and 65. If we accepted this view. p. 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)”.. we would be concluding to a subtype 1. 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.. where he stated: “Everyone in Europe thinks I'm blocking the use of air power in Bosnia. Pada bagian ini.B . But I'm not. unless a clarification is provided by the corresponding deliberative body. London / New York. and his . 155 155 UN Doc. 157 157 UN Doc. 1. 159 159 In April 9 th th 1994.

To address this question from a legal perspective. law and politics are extremely intertwined. The Secretary-General cannot decide independently that a peacekeeping force will carry out military measures amounting to peace-enforcement. there has been a clear development. the distinction drawn shows also the limits set for the use of force by peacekeeping operations. organ. . of very close co-operation between the Secretary-General and the Security Council in the form of regular reports and permanent dialogue. the Secretary-General was in charge of more than a mere peacekeeping operation. acting under the authority of the Assembly and within the scope of its resolutions. The distinction can be traced back to the important report of Hammarskjold on the experience of UNEF. . Indeed. which involves the use of air power for the purposes of self-defence. he is responsible for the command and administration of the peacekeeping operations. but are entitled to respond with force to an attack with arms. For such precise policy-making decision. As a rule. Speaking of his position with regard to the Bosnian conflict. . particularly over the last twenty years. Although what is mainly at stake in both texts is the right of a peacekeeping mission to self-defence. . the SecretaryGeneral needs an express authorization from the Security Council. However. But can we speak of a peaceenforcement situation? In the already cited report. in Bosnia. including attempts to use force to make them withdraw from positions which they occupy under orders from the Commander. The basic element involved is clearly the prohibition against any initiative in the use of armed force” 161 161 . and air strikes . the Secretary-General seems to conclude in the negative. discussing the right to selfdefence.interpretation cannot be challenged by Member States outside the appropriate deliberative organs. as we said before. the Secretary-General has the power 160 Professor Suy sees here a rule of international customary law conferring on the UN SecretaryGeneral the legal right to manage peacekeeping operations : “The role of the Secretary-General has also become better defined. unless a clarification is expressly provided by the original deliberative body. the Security Council. which involves the use of air power for preemptive or punitive responses” 162 162 . ie. 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 . it is first necessary to carefully distinguish between the contexts of peacekeeping and peaceenforcement given that the powers of the Secretary-General are substantially different depending on whether he acts in one or the other context. command and control over peacekeeping forces has been delegated to the Secretary-General in virtually all cases 160 . Under the authority of the organ which decides to send the force. Although he has acted in a fairly autonomous way in the past. where the former Secretary-General. Boutros Ghali reaffirmed this difference distinguishing between: “… close air support . But here again.

The Russian delegation considered that. which means that the precise nature of the measures necessary to accomplish the mandate are also a matter of interpretation.. while in the case of “close air support”. this same claim was. this point did not go unnoticed. p. it acts itself on behalf of the States Members of the United Nations. subsumed under the broad context of peacekeeping. Page 68 Page 68 59 59 to interpret the mandate given to him. 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. 2. 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. A/3943. In other words. SUY. including NATO” 168 168 . from a strictly legal point of view.. from a legal perspective. 3. 2. 161 161 Report to the General Assembly of 9 October 1958. 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”. p. . 179. dia. Legal Aspects of UN Peace-keeping Operations in Netherlands International Law Review . UN Doc. 162 162 UN Doc. 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 . itself a consequence of Security Council Resolution 836 (1993). This comes from the fact that when the Security Council proceeds to such a delegation of powers. par. 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. 319. E. Besides. . excluded with regard to air strikes. 319. 1988. Indeed. put the Secretary-General's finger on the trigger 163 163 .Thus. from which it derives its authority. . 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 . S/1994/94. But the precise way in which this position was used did not always remain within the Secretary-General's legal scope of action.

3228 th th meeting. acting nationally or through regional organizations or arrangements. p. since an effective transfer of power in these cases requires a degree of specificity”. B. 1999. all necessary measures.. Clarendon Press. to close air support and air strikes respectively. 10. 10. 141 et seq. 166 166 According to the European Court of Justice. 1999. to support UNPROFOR in the performance of its mandate set out in paragraphs 5 and 9 above”. in and around the safe areas in the Republic of Bosnia and Herzegovina. though necessary subjective. .. p. Ibid . pp. 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. p. Paragraph 11 of this same resolution further: “Requests the Member States concerned. In Dalam 163 163 For a detailed. 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 . 83. 165 165 SAROOSHI. through the use of air power. 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”. ECR 133 (1958). under the authority of the Security Council and subject to close coordination with the Secretary-General and UNPROFOR. op.According to Boutros Ghali himself. a general delegation of powers does not apply in the case of UN organs. review of the politics surrounding the “dual-key” debate see: BOUTROS GHALI. may take. D. Security Council Official Records . The United Nations and the Development of Collective Security . cited in Ibid . 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”.. 9.. Oxford. 83. 164 164 In paragraph 10 of Resolution 836 (1993) the Security Council: “Decides that … Member States. Paragraphs 5 and 9 refer. thereby depriving Russia of the use of its veto” 169 169 . using the terminology introduced above. 4 th th June 1993 (italics added). in the case Meroni v. 9. Case 9156. 167 167 “As such. cit ..

168 168 UN Doc. B. By the same token. As to the second question. Those beyond such scope. thus enhancing the Secretary-General's peacekeeping-related military capabilities. there are different uses of air power. for the time being. Our second point. 169 169 BOUTROS GHALI. though unquestionably useful in some particular cases. Thus. 145. let us just note two main points. the mandate of the present UN operation authorizes it to use force. and sometimes even hostility. 84. namely whether the Secretary-General's action operated an enlargement of his legal powers or not. cited in Ibid . and not all of them can be undertaken by the Secretary-General without an express and specific delegation of powers. p. 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. it is no less dangerous. p. but on the fact that the use of force remains impartial or not. cit . were it to become the rule on the matter. That gives us a first answer to the question stated above. in recent years a trend has emerged tending to enlarge what falls within the scope of peacekeeping. guard key installations and keep communications open” 170 170 . The leaders of the hostile parties may have given their consent but because of weak chains of command. founds here an interesting echo. 145. 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. which is intimately related to the first. the commander of the UN operation cannot be confident that he can rely on full consent. First. a basis for an effective command and control process”. However. remained legally dubious. 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. p. the new doctrine no longer places the distinction between peacekeeping and peace-enforcement on the actual initiative to use force. Boutros Ghali's doctrine. 84. in order to protect humanitarian operations. The Secretary-General's precise action. 2. This Ini is also applicable mutatis mutandis to a delegation in favour of the Secretary-General. In these circumstances an operation can now be authorized to use force. a political midway between peace-keeping and peace-enforcement has developed in the idea of what Marrack Goulding calls “forceful peacekeeping”. in . as explained in his Agenda for Peace and developed in practice. 1999. Page 69 Page 69 60 60 short. for instance. which. require an express and specific authorization. if necessary.. the peacekeeping rule requiring the consent of the host State is put under severe pressure. prevent gross violations of human rights. Only those falling within the scope of peacekeeping are part of the Secretary-General's legal powers. this remains a political doctrine. In Sierra Leone. if necessary.provides. refers to the increasing reluctance of great powers towards Boutros Ghali's conception of his office. . op.. in the context of military enforcement action.. S/1994/50. to achieve objectives that have been agreed by the parties. internal disputes or dishonesty on the part of the leaders. though politically possible.

failure or neither?. in a speech dated 25 th th June 1995. Of course. 171 171 UN Doc. Not only does the Secretary-General strongly moderate his original ambitions. This conclusion is. . Whereas some may have seen a “New Hammarskjold” in the first 174 . though a new political doctrine regarding the limits of peacekeeping may be in progress. M. Indeed. Europaeum Lecture delivered at the Graduate Institute of International Studies. . 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” . States do not intend to have a defiant Secretary-General to capitalize on it. chosen among the administrative staff of the Organization. April 8 th th 2003. without taking into account the changing political environment. As a Sebagai matter of fact. pointed out that: “Mr Boutros-Ghali would do better to confine himself to acting as the UN's chief administrative officer” 175 175 . lingkungan. consistent with the differing State perception of Boutros-Ghali and Kofi Annan. for the enlargement it purports is equated with the far more moderate style of Mr Annan. In this regard. 9. the then US Representative to the UN. Mme. . for the first time in the history of the UN. This would mean that. 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 . the second was. whether things have turned out to be the way they had been intended is a matter of discussion. The Supplement to An Agenda for Peace 171 171 . Geneva. arguably with the precise intention to have a low profile Secretary-General. clearly reflects the changing environment.the years to come. we cannot understand the more prudent approach towards peacekeeping of the acting UN Secretary-General. Madeleine Albright. but he even dares to criticize “the increasing tendency in recent years for the 170 170 GOULDING. for the rest. 9. 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. Page 70 Page 70 61 61 Security Council to micro-manage peacekeeping operations” 172 172 . p. 3 January 1995. lingkungan.. A/50/60 – S/1995/1. The United Nations and Peace since the Cold War: success.

If. 39. 3. to find a satisfactory equilibrium between too audacious a Scylla and a far too discrete Charybdis. according to which: “the absence of agreement was due essentially to a lack of political will on the Turkish Cypriot side”. 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. using the symbolism of Perez de Cuéllar. Oxford University Press. without entering into overt confrontation with major powers. 174 For a discussion. op. Oxford. which for the main part fall under what in classical diplomacy was called “low-politics”. respectively: BOUTROS GHALI. par. 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 . not devoid of irony. Why Washington wants rid of Mr Boutros-Ghali in Le Monde Diplomatique .. 180-197. 243 et seq. the whole question is. as well as that of the Organization as a whole. 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.. November 1996. 1980. 1996. 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. see MEISLER. The strategy adopted by Kofi Annan is mainly focused on the long-term. Dateline UN: A New Hammarskjold? in Foreign Affairs . Of course. 173 173 For a description of these two sequences see. B. S. 39. vol. pp. pp. power politics leaves the Secretary-General only a very limited room for direct intervention in issues of international peace and security. Again. 1999. 1946-1967 . 172 172 Ibid . . 176 176 The current Secretary-General is extremely conscious of the increasingly difficult political conditions to which his office is confronted. United Nations Peacekeeping.. 175 175 Cited in ROULEAU. E.. R. HIGGINS. as opposed to “highpolitics”. within the Cyprus conflict..176 176 .. cit . 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. in the present circumstances.

for the very idea of manoeuvring implies the adjustment to both legal and political constraints in the best way possible. Both developments may have been perceived as politically desirable at a given moment. 7 June 2001. respectively. from the point of view of the interactions between the Secretary-General's legal and political scopes of action. In moving onto basic type 2 this assumption is reversed. 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. type 2 leads to a subtype 2.3. as such. exclusive of Kosovo and East Timor. and concluded that a preventive approach would have saved the international community almost $130 billion”. Here. by Cold War and post Cold War politics in each one of the cases studied crystallized in political doctrines. in such a way his margin of manoeuvring becomes narrower.1. which. analisis. 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. 2. The political space provided. Somalia. When law goes beyond politics: exploring type 2 2. they serve as tools for approaching the wealth and diversity of practice in an orderly and meaningful manner. 2. Rwanda.involvement in domestic affairs.A ) So far. subtype 1. In the present section. Needless to say that neither situation can be expected to concretise as such.A situation whereas in the second case the outcome is subtype 2. did not appear to be legally regularized. Cambodia and El Salvador. the Secretary-General may decide to uphold his legal powers against political pressures exerted by States or rather to give in. However. Putting law over politics: Congo and the retreat of UNEF ( subtype 2. or what is perceived as such. Confronted with such situations. that every Secretary-General will try to avoid.3. S/2001/574.3. In any case. 2. as seen before. 2. In the first case. In his important 2001 Report on the prevention of armed conflict. the Persian Gulf. The idea of prevention rather than correction is also appealing in financial terms. 2. par. Report of the Secretary-General on the Prevention of Armed Conflict . Haiti. Both subtypes represent abstract extremes.B . The study Penelitian calculated the cost differentials between these conflict management activities and potential preventive action. UN Doc.B. what the Secretary-General could normally do is strongly affected by politics.A. we will concentrate on the connection between basic type 2 and subtype 2.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. but the exceptional political and personal circumstances in which they unfolded suggest that their eventual regularization is still very problematic. Our exploration will focus on two major moments of the history of . in Bosnia and Herzegovina. but this goes far beyond the scope of our study.1.3. A/55/985. Page 71 Page 71 62 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.

NA. F. in the last resort. The United Nations Operation in the Congo 1960-1964 . Our analysis will try to show how 177 177 For the Congo case see in particular: ABI-SAAB. expressly invoking Article 99 of the Charter. For the retreat of UNEF see in particular: BURNS. United Nations Peacekeeping: The Egyptian Experience as well as COMAY. Informed of the situation by the Congolese authorities. some of them of outstanding quality 177 177 .. winter 1967-1968. This does not mean that law is irrelevant compared to politics. In the two cases studied.peacekeeping. 1980. M.. the Secretary-General summoned an urgent meeting of the Security Council. we saw that upholding a legal stance against political pressures may be interpreted. even though political circumstances pointed in a different direction. 1964 . the Secretary-General had to operate within the boundaries of what is legally well established. means that law can be effective. Indeed. La Haye. VAN LANGENHOVE. 1962. of political configurations. Let us now turn to the exploration itself. to provide the Government with such military .. HIGGINS. Both moments have been the object of a huge amount of scholarly studies. The withdrawal of UNEF and the Future of Peacekeeping in International Journal . cit . winter 19671968. . The Demise of UNEF in International Journal . Shortly after the Congo became independent in June 30 th th 1960 a mutiny broke out in Leopoldville and spread to several other cities. ELARABY. this remark will be assumed whenever the SecretaryGeneral is said to uphold his legal powers. United Nations Peacekeeping: The Israeli Page 72 Page 72 63 63 sometimes. In search of a thread : the United Nations in the Congo labyrinth in International Organization . Hostility and harassment against Belgian and European population brought about a Belgian military intervention without the consent of the Congolese government.. Institut Royal des Relations Internationales & Martinus Nijhoff. Le rôle proéminent du Secrétaire général dans l'opération des Nations Unies au Congo . COHEN. if the state of the law is the result. behaving according to law means to actualise former political compromises.. G. the circumstances in which it developed and even be upheld when confronted with the changing winds of politics. ECM. 16/2.. 1-17. R. pp. The very fact that a particular political configuration can outlive. HOFFMANN. Oxford. Oxford University Press. for law is precisely such a vehicle. 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. When discussing our analytical framework from a general perspective.. in the form of law. 18-51. pp. S. at least to a large extent. as upholding a previous political view. 331-361. M. in consultation with the Government of the Republic of Congo. 1978 . namely the operation in Congo and the retreat of the United Nations Emergency Force. pp. op.

The resolution was adopted by a 8 to 3 majority. . Moreover. It was him who. in the opinion of the Government. we think there are good reasons to use type 2 . pp. the Council from the start injected an inherent contradiction into the Congo operation” 179 179 . put together the building blocks of the whole mission in the hours following the adoption of the resolution. Already before the independence. Precisely what. both in WISEMAN. cit. the sending of United Nations troops. New York. and he had considered the possibility of providing technical assistance through the United Nations. op. Pergamon Press. to meet fully their tasks” 178 . Although approaching the case of Congo under type 2 main seem controversial. 14 th th July 1960. proposing United Nations assistance in security and administration . Page 73 Page 73 64 64 no time for building up a real political consensus. par. 873 rd rd meeting.. 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. after requesting the establishment of a peacekeeping force. As Brian Urquhart notes: “The terms of the original Security Council resolution on the Congo were clear in one respect only.). At luncheon that day he briefed the members of the Council at length. and the shipment of emergency . 2. the resolution did not and could not say … In this expedient vagueness. France and Nationalist China abstaining. through the efforts of the Congolese Government with technical assistance of the United Nations. 179 179 URQUHART. Beyond the sole interest of changing perspectives. Peacekeeping: Appraisals and Proposals . B. 403-404 (italics added). Hammarskjold had been worried about the Congolese lack of preparation to assume immediately the reins of the government. H. which had for the time being papered over the real differences among the members of the Council. in directing the Secretary-General to eliminate any justification for foreign intervention by restoring law and order. (ed.. the national security forces may be able. with Britain. for this case is traditionally seen as a founding experience where the Secretary-General managed to established a very developed political role. . 65-117. lay the seeds of many future problems. 178 Security Council Official Records . pp. 1983. as far as possible with the help of the Congo government but without using force or interfering in internal affairs. The mandate was indeed vague.assistance as may be necessary until. the circumstances of such mandate provide a solid basis for the fruitful use of type 2 . namely that the Secretary-General had the responsibility for doing something about the Congo crisis. 2. Hammarskjold asked for an urgent meeting of the Security Council. for the situation in Congo had left Experience.

the operation was already under way” 180 180 . No authority delegated to the Secretary-General. 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.. and supplies. 146-147. op. was the mainspring.. 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. pp. in many cases. can fill the existing vacuum in collective security” 181 181 . When the mandate is too vague the principle of good faith requires the Secretary-General to ask the corresponding organ for clarification. behind which there was only deadlock and disagreement. From a legal point of view. The precipitation with which everything was decided also suggests that major Powers had not. and this on the basis of his own interpretation. I have referred the matter back to the Security Council. staging areas. telephoning all over the world for troops. B. this organ was often unable to give further precision. and by governments. A life in Peace and War . Harper & Row. the probability of an even-close-to-accurate assessment of the political configuration was low. The problem with such situation was that. Article 98 of the Charter provides that the Secretary-General must perform the functions entrusted to him by the deliberative organs. in August 1960. 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. when we dispersed for breakfast. During the Cold War years. the Secretary-General was nevertheless obliged to perform the mandate given.. 1987. The Council met at 8:30 pm on the hot. by the General Assembly. aircraft. 132-133.. 181 181 PEREZ DE CUELLAR. setting up command and staff organization. or at least not yet. J. however. Hammarskjold told the Security Council: “Let me simply point out that the Security Council has asked me to implement the resolution. That guidance can be given in any form. In such cases. But it should be obvious that if the Security Council says nothing I have no other choice than to follow my conviction” . . London. and choosing a name for the new operation … Three hours later. the Secretary-General ran into a dilemma. Hammarskjold. The position of the Secretary-General when confronted to a vague mandate is indeed extremely delicate. Implementation obviously means interpretation in the first instance. as usual. Page 74 Page 74 65 65 this pattern. pp. and no exercise by him of this authority. evolving instructions and directives. As this view became increasingly established and as great Powers started to fear each other's taking advantage of the situation. I gave an interpretation and that interpretation was challenged. a clear political view of the situation. The operation in Congo provides a particularly striking illustration of 180 180 URQUHART. 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. I have the right to expect guidance.food supplies. cit . humid evening of July 13. When.

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 SecretaryGeneral 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 75 66 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 SecretaryGeneral 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 76

Eban should know that I did engage in consultations before taking my decision. Eban's picturesque simile of the fire brigade which vanishes from the scene as soon as the first smoke and flames appear! Mr. UNEF could not resist the Egyptian will in any realistic way. 1987. This Ini meant. Eban would agree. acting in such way meant to make a first step towards the break off of a military confrontation. it was convenient to pretend that the tiny symbolic UN 192 192 Cited in URQUHART. 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. tangan. The situation of UNEF can be compared to that of the United Nations force in Cyprus. for Egypt had the sovereign right of have UNEF evacuated from its territory. 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. the former US ambassador before the UN.. 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. p. Addressing the General Assembly. 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 . the Secretary-General was harshly criticized. op. Expressions such as “poltroonery”. 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 . Mr. B. I am sure. Abba Eban. This placed U Thant in a dilemma. . has no easy answer.. . the Israeli Foreign Minister. . cit . Ernest Gross. 213. 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. As Brian Urquhart puts it in his memoirs: “Since no one could control or influence Nasser. both in terms of the mandate received and in its contribution to the ossification of the dispute. The question raised by U Thant's action has a double dimension.. It was not his fault” 195 195 . The SecretaryGeneral himself recognizes this point in his aforementioned address. and everyone knew it at the time. He failed.67 67 and the Security Council. . “U Thant's war”. Whereas legally there was no doubt he could not do otherwise than acceding to Nasser's request. to the full extent required of me and even somewhat more … The Secretary-General tried to prevent the crisis from getting out of hand. At the Pada same moment. “a thief in the night” or “wet noodle” were used against him 192 192 . It was quite clear at the time that UNEF was necessary to keep the situation in hand. U Thant replied both in a number of reports and in an address before the General Assembly: “… may I say that Mr. 213. Moreover.

although certain that his action would set off a political crisis. U Thant and his collaborators tried desperately to seek a way out. as Nasser had allowed UNEF to . New York. 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 . M. 420. who knew too well. 194 194 New York Times . pp. 20 June 1967. some 80. BJ. as it was indeed the case. Lanham/Maryland/London. the Secretary-General had no other choice than to behave legally. 156-158. was dropped by U Thant. The The possibility of using Article 99 to summon a meeting of the Council. VII. 1525 th th meeting.). . cited in FIRESTONE. Columbia University Press. 1527 th th meeting. The United Nations under U Thant. which had nothing to do with UNEF”. Faced with such dilemma. 195 195 General Assembly Official Records . A. the Secretary-General could have argued that the withdrawal decision could only be taken by the General Assembly. 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. cited in CORDIER. and that everything would have been all right if U Thant had had the courage to take the 'right decision'. 2001. 420. It is precisely here that the use of basic type 2 in connection with subtype 2. 1961-1971 . Page 77 Page 77 68 68 Force could . Trapped by law. The pattern here is different than the one seen in Congo. 19 June 1967. The situation was further complicated by the fact that UNEF had been established by the General Assembly and. The political narrowing does not play against the use by the Secretary-General of his legal powers. both outside and inside the United Nations. HARRELSON. This hypocritical and escapist nonsense is still remarkably prevalent in Western folklore” 196 196 . U Thant 19651967 . . have resisted the Egyptian Army. He took instead the position that.193 General Assembly Official Records .000 strong. which Urquhart sees as the only alternative way. The Scarecrow Press. 20 June 1967. (eds. on Egyptian soil. that the Security Council would have run into a deadlock. 1976. 5 th th Emergency Special Session. 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..A can be interesting. p. as Urquhart points out: “It was therefore impossible to refer the problem to the Security Council. vol. The affair of UNEF retreat shows how. and should . Public Papers of the Secretaries-General of the United Nations.

this suggests that the political space for manoeuvring available to the Secretary-General tended to narrow. he has in many cases preferred not to deploy his legal powers beyond the narrow scope set by politics. kegiatan. It is widely known that these two crises deeply affected the Office of the Secretary-General as well as the Organization as a whole. 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.. In retrospective. one could hardly challenge the power politics stance. op. this position clearly turned against him. 2. Even so. Reacting to the terrorist incident of Lockerbie 199 199 . In this regard. Writing in July 1991. The The promise of a new world order based on the rule of law still seems far from fulfilment. 212. type 2 in connection to subtype 2. cit. A plausible case can be made for each of these views. and in the context of increasing tension between.3. they illustrate how dangerous it may be to defy the politics of the moment on the basis of law or. .2. The cases of Libya and Iraq show a Secretary-General increasingly constrained by the political stances of major powers acting in the Security Council. Page 78 Page 78 69 69 activities. one cannot help being frustrated at the risks encountered by the Secretary-General when using his legal powers. however. Translated into UN terms. He took this stance perhaps in order to assert the position developed by Hammarskjold as to the Secretary-General's powers regarding peacekeeping. . By the beginning of the 1990s this picture admitted different interpretations. the question of an eventual retreat was to be regarded as a matter falling within the competence of the Secretary-General. on the . it has also been perceived by many as still another example of the dominant role of power and national self-interest in international relations.2. 197 197 Idem . but there is renewed hope that the UN Charter will be taken seriously as an instrument of collective responsibility” 198 198 . The political limits of law: From the Lockerbie incident to Iraq ( subtype 2. the decline of the Soviet Union seemed to open a considerable space for the deployment of the Secretary-General's political 196 196 URQUHART. 212. put differently. Let us first cope with the case of Libya. they suggest that the price the Secretary-General has to pay for upholding law against politics is extremely high.B provide a meaningful approach of how. 1987. in spite of the wide international recognition of the legality of the Secretary-General's good offices powers.3.B ) As we pointed out in preceding sections. However.enter the Egyptian territory only after negotiating with Hammarskjold himself. in December 1988. At the same time. p. B. An optimist may conclude in the rosy glow of the desired outcome that law and power have happily converged in this case. As noted in relation to Congo. the scarce political space at his disposal in a number of cases prevented him from effectively deploying his legal powers. From our particular perspective. 2. the massive devastation of civilian life during the war and the threat of renewed violence are troubling features. As we will see in the next section.

. Cf. 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 . 452.. 1999. 200 200 Security Council Official Records . pp. where the Council: “2. be interpreted taking into account that in the preamble of Resolution 731 (1992). most notably. 183-202 and 206-207.one hand. The Secretary-General was mandated to act within a strictly defined framework 202 202 set. 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”. which by the way was adopted unanimously. 3033rd meeting. in paragraphs 2 and 3 of the aforementioned resolution. Page 79 Page 79 70 70 situation of the Secretary-General was rendered even more difficult by the passing of Resolution 748 (1992). 21 st st January 1992. The The 198 198 SCHACHTER. paragraph 4. . 203 203 Italics added. 201 201 Cf. in addition. United Nations in the Gulf Conflict in American Journal of International Law . the Council declared itself: “Deeply concerned over the results of investigations.. . the United Kingdom and the United States asking for the surrender of Libyan nationals suspected of having organized the incidents. p. The requests referred to in this statement are those addressed by the governments of France. the United Kingdom and the United States and. B. in September 1989. 199 199 As well as to the destruction of a UTA airplane flying over Niger. on the other hand. which implicate officials of the Libyan Government …” 203 203 . the Libyan government. O. France. cit . acting under Chapter VII of the Charter. 85/3. op. 1991. 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 . where the Security Council. 202 202 For the insider's view see: BOUTROS GHALI. These two paragraphs must.

the Libyan Government had requested the International Court of Justice to order provisional measures against coercive .. this possibility did exist at the time. The second is subtler and refers to the way in which political pressure may 204 204 Security Council Official Records . However. 31 st st March 1992. 3063 rd rd meeting. After this. turning the Secretary-General into a messenger rather than a negotiator. 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”.Libyan authorities by France. to implement a number of sanctions against Libya 206 206 . 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. until November 1993. to which Libya was strongly indebted. In the meantime. Under such stringent conditions.B . For some time.A . a US-led Security Council adopted Resolution 883 (1993) deciding. paragraph 1. The political space for such modality was however scarce. When analysing subtype 1. based on Chapter VII of the Charter. we saw that. the Libyan recalcitrance eventually forced the Secretary-General to recognize that his efforts had been “a total failure” 205 205 . Boutros Ghali succeeded in suspending the implementation of the sanctions in order to find some room for Libyan cooperation. . . This view is consistent with the characterization assumed in subtype 2. 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. The first and most obvious is manifested by the way political considerations resulted in such a narrow legal mandate. apparently supported the easing of the sanctions. In Dalam these circumstances. There were multiple interpretations of what Libya was being asked to do” 208 208 . 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. the United Kingdom of Great Britain and Northern Ireland. In legal terms. . 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 . 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. legally speaking. and the United States of America” 204 204 and imposed sanctions on Libya.

Such modus operandi depends. however. 205 205 Washington Post . 2 November 1993. 206 206 Cf. from a political point of view. 88/4. It then agreed to increase the amount due as reparation for the UTA plane. 187.. upon two main considerations. 187. we know that the issue was settled between August and September 2003 by negotiation between the governments of the States involved. UK and France. This resolution kept. op. to some extent. terlibat. distinguishing these two levels permits to clearly isolate the loci of political pressure. 1999. the Libyan government accepted responsibility for the Lockerbie incident and agreed to pay reparation to the families of the victims. G. than to the will of the three governments in question. At the time Boutros Ghali undertook his mission. 1994. which is undoubtedly one of the most important cases in the history of the Organization. When in August 1990 Iraq invaded Kuwait the Security . As a matter of fact. it is first necessary to situate the case within the context of basic type 2 . the narrowing stemming from a judgmental resolution may be. pp. the Security Council agreed to lift the sanctions that had been imposed on Libya. In retrospect. in turn. Security Council Official Records . 162-163. whatever its bias. 3312 th th meeting.measures from the US. Invites the Secretary-General to continue his role as set out in paragraph 4 of resolution 731 (1992)”. The first one refers to its acceptability from a legal point of view. From an analytical point of view. it was easier for the Libyan government to submit to a United Nations act. Page 80 Page 80 71 71 have prevented (or did prevent) the Secretary-General from attempting a “Peking formula”.. V. the legality of such proceeding was no longer in doubt. the original mandated entrusted to the Secretary-General by Resolution 731 (1992): “14. the resolutions adopted were but a reflection of a strong political stance. cit . In a statement delivered to the President of the Security Council. for which no solution other than that requested was acceptable. pp. op.. avoided if the Secretary-General assumes an independent role. 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 . 11 th th November 1993. 207 207 See FRANCK. which was denied by decision of 14 April 1992 of the Court adopted by 11 votes against 5.. From this point of view. B. p. Let us now turn to the case of Iraq. The The second consideration concerns the political pressures surrounding the whole mission. cit . Finally. See also: GOWLLAND-DEBBAS. on September 12. 643-677. 208 208 BOUTROS GHALI. As we saw when discussing Hammarskjold's negotiations with Peking authorities in 1955. Th... NOLTE. As usual. one could argue that.

according to which the right to self-defence exists only: “until the Council has taken measures necessary to maintain international peace and security”.. . In Schachter's view this is an absurd interpretation. even in violation of the Charter principles . 457. asserted the legality of an armed intervention on the sole basis of the right of collective self-defence.. In other words. authorizing Member States to use all necessary means to enforce the decision. p. this view should not prevent us from seeing the strong political forces lying behind. benefited from a large consensus. For an out-ofmainstream analysis of the basis of this resolution see WESTON. Security Council Resolution 661 (1990) had. the case of Lockerbie had already shown how the Council might serve the interests of particular States. Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy in American Journal of International Law . . Though persuasive. were asserted simultaneously. In such circumstances. cit . One must indeed bear in mind that the United States and the United Kingdom had.Council found itself into a much stronger position than the one that had characterized it throughout the Cold War years. Page 81 Page 81 72 72 individual and collective 211 211 . Although the issue is highly controversial 212 212 . O. pp. Kuwait had requested their aid and. 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). the activist States considered that they were legally entitled to undertake military action against Iraq. including Article 51. 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. Though the wording of the Charter is extremely clear. There is no assurance that the Security Council acts always in conformity with the Charter. recognized the right to collective self-defence as applicable in a particular situation 210 210 . from the outset. 516-535. one could hardly consider them inconsistent with one another. 210 210 SCHACHTER. 1991. In the new environment. if both terms. BH. the famous Security Council Resolution 678 (1990). op. what is more interesting from a legal point of view. While this resolution has often been heralded as the rebirth of collective security 209 209 . Schachter's interpretation is not the only plausible one. 457. 85/3. In this regard. 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. namely collective self-defence and economic sanctions. for the first time.

. In Schachter's view this is an absurd interpretation. In this regard. Ibid . 213 213 . the adoption by Resolution 661 (1990) of economic sanctions against Iraq would suspend the right to selfdefence both individual and collective 211 211 . In any case. few weeks after. according to which the right to self-defence exists only: “until the Council has taken measures necessary to maintain international peace and security”.. Mr. By the end of August. leading to a situation close to subtype 2. Years later. V. cf. 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 . Perez de Cuéllar observed that he had no doubt that the United States would have acted unilaterally if necessary 215 215 . it is easier to understand why and how the political margin of the Secretary-General was restricted. many consider that his good offices efforts fell short of what he could and should have done.. 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 . 661. 458. 90/1. preferably next week. p. . in New York or Geneva. . 212 212 For two detailed studies on the “constitutionality” of Security Council's action see: GOWLLAND-DEBBAS. Tariq Aziz. 458. the ineffectiveness of the economic sanctions taken led.213 213 . 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.. op. to urgently meet with me. pp. 1-39. ALVAREZ. Among the different resolutions adopted by the Security Council. 662. 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. With such context in mind. . JE. the Secretary-General's good offices are mentioned for the first time in the preamble of Resolution 664 of August 18 th th 1990.. 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. in order to engage with me without delay. Such a judgemental assertion cannot be seriously assessed without going into the detail of the legal and political circumstances. 664 and 665). Judging the Security Council in American Journal of International Law . I have invited today the Minister of Foreign Affairs of Iraq. Despite the difficult political configuration. 1996. cit .B .

Reflecting on the Past and Contemplating the Future in Global Governance . . 164. To take an example. echoing Perez de Cuéllar's statement. 460-461. op. the international environment had profoundly changed. Brent Scowcroft. pp. case in which the Western powers had to a large extent acquiesced. At this point.. cit . 1996. 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. 214 214 For further details see WESTON. which had previously condemned the annexation of Kuwait in extremely firm terms. 18 th th August 1990. J. The Place of Law in Collective Security in Michigan Journal of International Law . 216 216 Security Council Official Records . 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 . played against the initiative of the . p. 1995. . In this particular case. the experience of the Iraqi aggression to Iran. the American National Security Adviser. 164. 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. but only the special interests …”. in such way the activist States within the Security Council intended to assume a much stronger position than before. Second. even if the United States had adopted a more flexible stance.B seems so pronounced that Perez de Cuéllar legal scope of action appeared of almost no use. He further added that he was acting on his own initiative. cit. In our view. 215 215 PEREZ DE CUELLAR. had declared. the pattern characterizing subtype 2. First. Page 82 Page 82 73 73 exchange of views on the crisis” 217 217 . 17. Third. the answer to this question must be negative. ½. the question arises whether the Secretary-General's position allowed him to untie the imbroglio using the “Peking formula”. 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. 2937 th th meeting. not at the behest of the Security Council.As Martii Koskenniemi puts it: “Why Libya. BH.

. . as he considers appropriate. to postpone the eruption of the crisis. Page 83 Page 83 .Secretary-General. in spite of the strong narrowing of his role. in conformity with the Charter. giving the appearance of having exhausted all peaceful channels 220 220 . UN Leader to Meet With Iraqi Minister in The New York Times . 219 219 (The Security Council) “Reposes its trust in the Secretary-General to make available his offices and. 102.B to a less extreme situation. on the basis of resolutions 660 (1990). August 27 th th 1990. These Ini circumstances strongly suggest that the legal space for action left to the Secretary-General was only formal. and calls upon all States. 220 220 Cf. cit. in February 1998. where some political space was left (or found) for the exercise of the Secretary-General's legal powers. op. . In the strategy of activist States. such move prepared the ground for intervention. with 2 abstentions (Cuba and Yemen). Another illustration of this pattern is given by Kofi Annan's good offices initiative in Iraq. Cf. 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. to pursue on this basis their efforts to this end. 218 218 Idem. 1990. 102. the US and the UK threatened using force in order to obtain full and unconditional 217 217 Cited in PACE. the Secretary-General managed. the large good offices mandate granted to the SecretaryGeneral in paragraph 12 of Resolution 674 (1990) 219 219 should not mislead us as to the real political situation. In this regard. in order to improve the situation and restore peace. the chances for any face-saving solution for Iraq virtually disappeared. As the United States' stance became tougher. Sekretaris-Jenderal. Security Council Official Records . and the eventuality of an armed action credible.. NEUMAN. adopted by 13 votes to none. E. security and stability”. After the Iraqi Government refused the access of UN inspectors to a number of presidential sites. p. In this case. both those in the region and others. The case is interesting in that it applies subtype 2. E. 662 (1990) and 664 (1990). 2951 st st meeting. 29 29 th th October 1990.

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 . the Secretary-General did receive some support. . It's not of concern to us if he gets the Russians to think this is the right proposal. such political resources were all the Secretary-General had at his disposal. . The US government succeeded. As to the endorsement of the Security Council. . provides full access for Unscom and gives us some confidence this won't be endlessly repeated” 222 222 . Annan understand where our lines are … We want him to have no ambiguity about it. it has to be carefully prepared. As a senior American official noted: “What’s vital is that Mr. No Need to Humiliate Iraq. February 11. Kofi Annan considered that such endorsement was an indispensable condition for his mission to be successful: “If the trip is going to be successful. in the form of a vague oral statement by the president of the Security Council 226 226 . Though extremely scarce. The The 221 WREN. CS. the Secretary-General Says in The New York Times . to be “kept in mind” by the Secretary-General. in putting forward a number of guidelines. drawing upon the unhappy experience of Javier Perez de Cuéllar. however. 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. beyond superficial arrangements in the conduction of the inspections. both here and in Baghdad” 223 223 . kepatuhan. In such context. originally established by Resolution 986 (1995) 225 225 . so long as the proposal is consistent with the relevant Security Council resolutions. the SecretaryGeneral tried to dissociate his image from that of the two Anglo-Saxon powers in order to gain space for negotiation.. who had undertaken his mediation effort in 1991 without the prior support of the Security Council. In the first days of February. . Moreover. . the only elements which. 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. before announcing his good offices initiative.74 74 compliance. discussed with the other permanent members. French and Russian governments as well as by the passing of Resolution 1153 (1998) 224 224 renewing the “oil-forfood” program. could provide the Secretary-General with some room for negotiation were given by the moderate stance of the Chinese. Facing an extremely delicate political environment.

namely the General Assembly Resolution. February 17. 222 222 ERLANGER. US Seeks to Limit the Role of UN Chief during Iraq Talks in The New York Times . 1998. was perfectly legal. 225 225 Ibid . 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”. Kofi Annan's Biggest Headache in New York Times Magazine . the Iraqi VicePresident: “I was so surprised and even frankly disappointed at the note which came after approval of the $5. Annan was reported to having said.. for it not only raises a delicate legal issue. but it also provides a demarcation line to distinguish between the present situation and cases like Hammarskjold's mission in Peking. cf.. Kofi Annan's initiative was legally unquestionable. which is more than before. 1998. 3519 th th meeting. one could argue that the very . 1998. 1998. which made in fact Hammarskjold's initiative legally dubious. Februari 1998. In this latter case the main source of pressure. as does the legality of the US threat itself.2 billion … After the discussions that we had gone through. whereas what is legally dubious is the source of pressure. In the present case. Article Pasal 1oo paragraph 2 of the UN Charter states indeed that: “Each Member of the United Nations undertakes to respect the exclusively international character of the responsibilities of the Secretary-General and the staff and not to seek to influence them in the discharge of their responsibilities”. Scarcely Room for Negotiating in The New York Times .256 billion.. 224 224 Security Council Official Records . Paragraph 2 of this resolution allows Iraqi oil pumping to attain a sum of US$ 5. I would have expected at least a little thak-you for those people here who worked and helped make it happen”. 20 th th February 1998. Page 84 Page 84 75 75 contrast between this latter point and the pressures overtly exerted on him is important. 14 April 1995. For UN Chief. The text is very clear. J. S. cited in SCIOLINO. February 19. 3855 th th meeting. E. 223 223 Idem.. reacting to the sarcasm showed during the negotiation by Taha Yassin Ramadan.1998. TRAUB. Of course. April 5.

as it entails to find solutions acceptable to the parties to a conflict. S/1998/166. At best.exercise of the Secretary-General's good offices powers. 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 …”.. On March 2. 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. paragraph 1. The project set forth in the introduction. digunakan. . 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. kerangka. Kofi Annan did nevertheless hammer out a peaceful solution. T. 227 227 UN Doc.. 2003. we have indeed presented the main lines of an analytical framework. The Secretary-General between law and politics: a preliminary assessment 3. General remarks At this stage of our study. the US action would remain legally dubious. Namun as we know such solution did not last long. 3. in the form of a Memorandum of Understanding 227 227 . Security Council Official Records .1. as applied to the American initiative referred to above. so far. Resolution 1154. is prima facie inconsistent with Article 100 paragraph 2. but .1. pp. 1998. We think however that such an argumentation. What we would like to add as the third aspect of our project is an assessment of the framework. First. it may be useful to stop for a moment and take a look at the road that lies behind us. the Security Council. 97/3. 228 228 For an analysis of the present situation see : FRANCK. 3. specifying its different types as well as its purely operative purpose. would be inconsistent with the principle of good faith. 2 nd nd March 1998. 3. acting under Chapter VII of the Charter: “1. the conflict leading eventually to the use of force by an American-led coalition in March 2003 228 228 . which governs legal interpretation. What Happens Now? The United Nations after Iraq in American Journal of International Law . 3858 th th meeting. 2. being expanded in two directions. 607-620. 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 that is all we need for our purpose of illustrating how politics may overtly intervene in the SecretaryGeneral's legal powers narrowing his scope of action. Second.

many studies make explicit the way law and politics have influenced each other in particular cases. given the attempts made at understanding the interactions between law and politics in general. however. less tied to post-modern views. Different styles are followed depending upon a number of factors such as the practice at the time. the Secretary-General's political role being but one among many others.Page 85 76 76 The assessment will focus on the particular insights that can be derived from an approach such as the one proposed here. La discipline est un principe de contrôle de la production . while our framework has. when we go over the daunting amount of scholarly contributions on the Secretary-General. Certainly. In this regard. Indeed. the academic discipline concerned. constitute one of the major difficulties when approaching the Secretary-General's political role. 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 . at some point. that there is a lot to be gained in proceeding to such spelling out. It seems to us. above all. or expected to be worthless. Indeed. would be to say that. beyond the different styles and stresses. A first possibility is that the overall question of the relations between law and politics is extremely complex and. though extremely interesting. as we have tried to make clear. for they represent in some way the legal or political philosophy of major authors. it remains the chasse gardée of eminent scholars. and perhaps more importantly. there is not much to lose. unless of course we simply ignore one of the two sides. the purpose of every empirical study is. tidak. for one reason. Let us just point out that. 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 SecretaryGeneral. But the approach itself. 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. there is no need to make such approach explicit when analysing particular cases or particular topics . If we admit this view. nor on whether the study of law is to be ranged among the social sciences or not. This may well describe in practice why such difficulty is not overtly addressed in the literature on the Secretary-General. Namun. and many others. is either merely outlined or simply left silent. as such. for they are disrespectful of the ordre établi 229 229 . to derive conclusions either to guide future action or to simply further the understanding of a particular topic. and that this difficulty remains a constant.. The reason for this is not clear. contributions on this topic are either expected to be doctrinal. the “school of thought” represented. However. in the present study. ie the “analytical lenses” through which the matter is approached. Indeed. This is of course not the place to open old epistemological debates on whether social science should focus on explaining or rather on understanding . 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. no doctrinal pretension. Another possibility. we think that most authors would agree that the interactions between law and politics. we have preferred to put the accent on understanding and this. we find that authors describe and analyse in great detail the peculiarities of his role in particular circumstances.

. 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. since every legal conquest implies a period of transition. L'ordre du discours .2. Paris. Page 86 77 77 it may nevertheless reveal a “comfortable” tool for approaching the issue. though to some extent cumulative. the fact that a different pattern is associated to each path calls for the maintenance of the distinction. Their purpose was. whereas one could consider that. M. Keeping this caveat in mind. though operational during certain periods of time. 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. a boom-bust pattern is meant to describe a practice that. Extracting particular patterns characterizing each path presents a clear analytical advantage. Elle lui fixe des limites par le jeu d'une identité qui a la forme d'une réactualisation permanente des règles”. 1971. We will present them according to the basic types to which they are related. FOUCAULT. Gallimard. which. Indeed. though not the main focus of the literature. is not translated into a legal enlargement of the Secretary-General's powers. 37-38. however. 3.du discours. the process of legal adjustment is virtually in all cases progressive interpretation. to serve as an implementation of our analytical framework. The terminology used here is perhaps not precise enough. Insights arising out of subtypes will be treated under the corresponding basic types . Indeed. Page 87 . that the insights we intend to mention here are to be taken as mere pistes de réflexion . Let us note. as we said before. Conversely. And such spelling out may nevertheless provide a number of interesting insights. here. It is however difficult to understand why a practice like the Secretary-General’s independent good offices may appear to follow a cumulative pattern. The difference between subtypes 1. pp. let us now turn to the assessment of the main insights stemming from our exploration. 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. have remained legally unclear. perkembangan. whereas practices such as the establishment of military observers or the conducting of military operations seem to adopt rather a boom-bust pattern. the few cases selected for analysis cannot serve as a solid basis for drawing conclusions. 3. there is no point in distinguishing two different paths. cukup. are worth to be considered when analysing future developments.A and 1. very much like the traditional process of customary law but with the peculiarity that.B is intended to distinguish between practices that have indeed become law and practices that. The term cumulative is only used to convey the idea that social or political sedimentation may eventually yield a legal expansion. 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.2.

In order Dalam rangka to match this increase. the political conditions serving as fertilizers must be abundantly and regularly supplied. and perhaps rather.B. In the case of the UN Charter. This would explain why some of the outer practices of the Secretary-General might be more easily regularized ( Subtype 1. the state of the law depends on what we called the state of the meaning .A and 1. According to this view. If the rigidity of legal adjustment comes from the existence of a limited number of fixed methods of legal reception. are more likely to be recurrent than others. the two paths are not to be approached simply as different moments of the evolution of a practice but also. For a meaning to be established. for instance. This was clearly the case throughout the Cold War years. these methods are in practice limited to the sole mechanism of progressive interpretation. When Ketika considering the discrete personalities States appear to favour for the post. the capacity and willingness to conduct military operations. such rigidity is a fortiori exacerbated when. benefits from a constant “demand”. as understood in UN practice. The first direction concerns the characteristics of the actions at stake. Moreover. We see how law and politics are extremely interdependent. the Secretary-General has developed a network of prestigious personalities to serve as his Special Envoys. In this view. the emergence of a meaning can greatly benefit from a constant demand for the practice concerned as well as from its Page 88 79 79 availability. interpretation has limits. going beyond the purely analytical vocation of our framework. The legal conquest of the Secretary-General's independent good offices role. the different reception granted to different practices would have to be sought in the very characteristics of the methods of legal reception . there are no realistic alternatives to progressive interpretation for regularizing a legal practice. In short. to find empirical reasons explaining these different paths. Recalling what we have said above as to the characteristics of the actions at stake. This is of course not an easy question. and this in very . The elements to be derived from our exploration point in two directions . 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. as alternative roads. As a matter of fact. for instance. and it remains a characteristic feature of the present context. we may be tempted. by their own nature. Quiet personalities seem to be best suited for quiet diplomacy than for conducting air strikes. and this. as with regard to the UN Charter.78 78 Thus. which is in turn heavily dependent on political circumstances. When the wording of a text remains unchanged. This seems consistent with our empirical analysis of the two subtypes arising out of type 1 . The second direction identified above is perhaps more interesting. It refers to the very rigidity of law. Indeed. konteks. such demand has strongly increased in recent years. the negotiation ability can be expected to be more frequent than. because they are less dependent on particular traits of the personality of the incumbent or because the “demand” for such actions is more constant. suits quite clearly the picture given. there would be some actions that. there are good reasons to suggest that good offices are best suited for following the path leading to Subtype 1. the good offices role. If we admit this latter view.B ). These methods would welcome constant and regular actions much better than exceptional ones.A outcome. as we pointed out several times.A ) than others ( Subtype 1. thus explaining the different outcomes represented by subtypes 1.

. U Thant could have benefited from sending the decision on UNEF's retreat to the General Assembly or the Security Council. when the Secretary-General finds himself trapped. cit .. the legal digesting of exceptional precedents is far more complex than what a linear view of the development of law might . The first is that. NOLTE. now more readily able to take decisions. 180. 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. and provided the prospects for his controlling the situation are very low. 3. and especially after the US veto on the renewal of Boutros Ghali's mandate.subtle ways. Th. Whereas for this latter he could have used Article 99. the Secretary-General had no other choice than to abide by the rules.A assumes that law. G. 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 former would have been forced to consider the matter. However. In any case. Our analysis of Hammarskjold's position in Congo provides a good illustration of how this has been so. The crises set off by the retreat of UNEF sheds a somewhat different light. cahaya. itself a result of political and other considerations. 3. As far as the handling of legal and political constraints is concerned. 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 . had the Secretary-General declared himself powerless to take the decision of withdrawal. In line with basic type 2 . The Council. 180. the trend after the “post-Somalia syndrome”. In this case.. as we said when analysing this case. they are on the whole quite discouraging for the Office of the Secretary-General. These risks are particularly worth considering in the present international context. Assessing type 2 Concerning now the insights related to basic type 2 .3. This latter point serves as a springboard for the second lesson. The present view was already clear in 1993. Page 89 80 80 powers. Whether this same view characterizes also the conducting of peacekeeping operations or not is a matter of discussion. if we recall the insights of basic type 1 . has been one of increasing moderation. characterized by the narrowing of the Secretary-General's political scope of action. In the case of UNEF. . it may be a good idea to open legal cages by using legal keys . the Congo operation constitutes a warning of the risks that the Secretary-General may incur in following this path.3. Subtype 2. when Thomas Franck and Georg Nolte wrote with regard to the SecretaryGeneral'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. can to some extent prevail over the politics of the moment. p. there are at least two lessons to be derived from this experience. op. Viewed from this angle. 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. He was. “trapped by law”.

there are no legal explanations for such legal restrain. lurking until new political conditions allow it to flourish once again. many inhabitants would seem to be grey. Curiously enough. But the lessons stemming from such interpretation may nevertheless be relevant in the present context. Indeed. Although such forces often result in the narrowing of the legal options available. namely derogation through desuetude. is hardly applicable to legal expansions operated by means of interpretation. The cases of Libya and Iraq illustrate this situation. The institutional crisis set off. both during the Cold War and afterwards. Even a cursory analysis of the practice. where the action of the Secretary-General appears to be subject to close control by the Great Powers. the political role of the Secretary-General has become less prominent. Whereas the Secretary-General's good offices function remains legally unchallenged.B . In the Dalam context we are discussing. the reverse movement is far more difficult. begitu. shows that there are strong political forces shaping the real scope of action of the Secretary-General. In the apparently black and white kingdom of legality. once conquered. in many cases they have also expanded the Secretary-General's legal powers. by refusing a step backward may be far graver than the overall impact of the step backward itself. 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 that the Secretary-General may fear to lose his political role if he does not fully exercise his legal powers in this regard. without any doubt. Curiously enough. especially when such choice stems from political circumspection. 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. Page 90 81 81 CC 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. Whereas the personality of the incumbent is. or at least less visibly so.B . such an insight may be very welcomed. In Dalam other words. In such an increasingly unilateral world. In an increasingly politically uncomfortable situation for the SecretaryGeneral.suggest. Grey. 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 . one may wonder about the consequences if the new political context is incorporated in the state of the law . The The main mechanism supposed to take over the situation. It is however interesting to note. the mechanisms of interpretation do not seem to deploy here as fully as when it comes to expanding the Secretary-General's legal scope. even a man as proactive as Boutros Ghali fell eventually under the weight of political constraints. this is perhaps the most encouraging insight arising out of our exploration. in part. in that a legal action may appear politically forbidden or at least restricted.A and 1. Grey. then. first. This being said. the situation of U Thant at the time can hardly be interpreted in such simple terms. as part of the state of the meaning . a major factor to be taken into account. that once a practice has crystallized into law. In the aftermath of the Cold War. recalling what we said when we first discussed subtypes 1. If we now move on to subtype 2. the new state of the law may either be further enlarged or remain latent.

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. There are. This latter point is of course highly controversial. 2. we think that such position would be as unrealistic as merely concentrating on legal aspects 231 231 . as we have tried to show. First of all. 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. 2. Page 91 82 82 international system. lingkungan. Though many would be tempted to answer negatively to this question. of course. Second. Neither Juga tidak multi-polarity nor cooperation are features characterizing the present international environment. We saw however that in some cases the SecretaryGeneral is confronted with a trade-off between keeping the impartiality inherent to his office and acting pragmatically. January 1962. they see no meaningful application of law except in terms of an effective judicial system. Dag Hammarskjold on Law and Politics in American Journal of International Law . If the Secretary-General has resumed a prudent approach comparable to that envisaged by the drafters of the Charter. On the contrary. In any case.Boutros Ghali's conception of the office. this should not be interpreted as criticism against the current incumbent.. In such context. and they regard references to 'law' in a political body as no more than rhetorical flourishes without influence on actual conduct or policy. and this in spite of the strength and the direction of the winds. the political conditions on which such approach was based lack completely. there would still be a wide range of opportunities for the SecretaryGeneral to intervene. O. SCHACHTER. many who answer in the negative. p. the precise balance within this trade-off . kebijakan. Hammarskjold's beliefs and his practical actions were in a sense a challenge to this view. The main virtue of a Secretary-General is to keep the Organization relevant in the accomplishment of its goals. 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. either because the main power of the system shows disinterest or because it considers the Secretary-General's intervention as a useful tool. 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. The apparent calm that emerged with the decline of the Soviet power was soon followed by a violent storm. . However. for they affirmed the importance of law in the United Nations while acknowledging the realities of power and political pressures”. 56/1.

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 . and as the current incumbent seems to have clearly understood. 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. Whatever the precise modalities of intervention that the Secretary-General will adopt in the future. soit un secrétariat réellement indépendant … libre de prendre des initiatives dans certains domaines. and finally. Essai sur le Secrétariat international . Intervening in such domains requires the elaboration of a comprehensive plan. car l'article 99.. 130.. for the simple reason that its use in such difficult environment could actually undermine the perceived impact of this power. under Article 99. To quote the regretted Dag Hammarskjold. J. when political circumstances appear virtually insurmountable. 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. Genève. Soit un secrétariat dominé par les grands … mais disposant des moyens nécessaires à l'exercice des droits prévus par l'article 99. it may sometimes be better. Page 92 83 83 be seen above all as the one who. 156. p. the very curse of the Office of the SecretaryGeneral mentioned by Siotis. . in practice. mais dont les fonctions se limiteraient essentiellement au plan administratif. 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. the concrete relevance of such enlargement remains and will remain in the future heavily dependent on political circumstances.. qui a une importance capitale pour le fonctionnement de l'organisation internationale. and the Security Council then does nothing” 232 232 . 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. the very existence of an international officer competent on matters of international peace and security constitutes an important feature of the contemporary international order. is also its main source of adaptability to the ever-changing political environment. Despite the fact that. the Secretary-General's legal scope for political action has been substantially enlarged all along the last 50 years. lingkungan. the Secretary-General should 232 232 Ibid . namely the necessity to constantly interpret the Charter provisions. 156.should be decided on the basis of the goals and principles of the UN Charter. there is a key role to be played by the United Nations in eliminating the social and economic roots of conflict. Fourth. when confronted to a particular conflict. which is the natural task of an executive administration such as the Secretariat. has the ability . not to use a particular legal power. 1963. 233 233 SIOTIS. To a large extent. Droz. On the contrary. p. Third.

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