THE UN SECRETARY-GENERAl'S ROlE IN PEACEFUl SEnlEMENT OF DISPUTES: OVERCOMING DilEMMAS

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1 THE UN SECRETARY-GENERAl'S ROlE IN PEACEFUl SEnlEMENT OF DISPUTES: OVERCOMING DlEMMAS Dr. özgür Mengller Ankara Ünverstes Syasal Blgler Fakültes BM Genel Sekreter'nn Uyuşmazlıkların Barışçı çözümündek Rolü: İklemler Aşmak Özet BM Genel Sekreter, uluslararası uyuşmazlıklann banşçı yöntemlerle çözümünde vazgeçlmez br rol üstlenmektedr. Ancak, başarılı olablmes çn Genel Sekreter'n karşılaştığı temel klem aşması gerekmektedr. Bu klem, BM sstemnn lke olarak devletlern egemenlğne dayalı şlemesne karşın; uluslararası toplumun etkn ve bütünleştrc br yaklaşıma gereksnm duymasından kaynaklanmaktadır. Genel Sekreter' n yetkler yaratıcı uygulamalar gelştrmes çn yeterl olmakla brlkte, uygulamanın başansı uyuşmazlık taraflarının ve BM Güvenlk Konsey'nn desteğne bağlıdır. Genel Sekreter, barışçı çözüm amacıyla grşmde bulunurken yeternce esnek hareket etme gereksnm duymasına karşın, örgütün syas organlarının çzmş olduğu hukuksal çerçevenn çnde kalmak durumundadır. Barışın kalıcı kılınması dört koşulun braraya getrlmesne bağlıdır: Taraflann banş sürecne bağlılıgı, uluslararası toplumun desteg, Güvenlk Konsey'nn desteğ ve barış sürecnn her aşamasında bu üç unsur arasında eşgüdümün sağlanması. Bu şeklde, her devletn kend çıkan doğrultusundak rızasının esas alınrnasıyla şleyen barışçı çözüm mekanzmasının daha etkn çalışması sağlanablecektr. Dğer br deyşle, yasallık le etknlk braraya getrlerek Genel Sekreter'n karşılaştıgı klemler aşması mümkün olablecektr. Anahtar Kelmeler: Brleşmş Mlletler, BM Genel Sekreter, uluslararası uyuşmazlık, barışçı çözüm, BM'n banş operasyonları. Abstract The UN Secretary-General's role s ndspensable n nternatonal dspute seulement. Yet, to functon effectvely, helshe must overcome the dlemmas posed by the gap between the UN system, whch s manly based on the consent of States, and the needs of the nternatonal communty, whch demand an effcent and ntegrated approach. The Secretary-General's powers are suffcent for developng creatve practces, but hslher performance s closely lnked to cooperatve stance of the partes and of the UN Securty CouncL. The UN practce n both entetlng the peace process and the mplementaton phase of that process demonstrates the same fact. The Secretary-General must act flexble enough to ntate UN nvolvement n case of a dspute but helshe has to stay wthn the lmts outlned by the representatve organs. To perform successfully durng the mplementaton process, the Secretary-General must brng together four condtons: consent of the partes, support of the nternatonal communty, backng of the Securty Councl and provdng coordnaton among these three factors to help combne legtrnacy wth effeency. Keywords: Unted Natons, UN Secretary-General, nternatonal dsputes, peaceful settlement, UN peace operatons.

2 244. Ankara Ünverstes SBF Dergs The UN Secretaıy-ffeneral's Role n Peaceful Settlement of Dsputes: Overcomng Dlemmas INTRODUCTION Internatonal dspute settlement demonstrates two facts whch reveal the ndspensablty of usng flexble n!ıethods such as good offce s and medaton whch have no bndng effect lon dsputants. Frst, every dspute has characterstcs of ts own, demandı;ıg the use of varous methods whch would ft ts nature. Second, the decentralzed character of nternatonallaw makes the mplementaton of thrd-party settl~ment methods rather dffcult. Internatonal legal system lacks a central judcai mechansm whch would have compulsory jursdcton for all dsputes. Theref~re, peaceful means of settlement cannot be mposed by a judcal decson. Moreover, nternatonal norms cannot be promulgated unless major actors oflthe nternatonal scene reach consensus. All ths shows that the consent of the partes s sne qua non of a successful settlement. The reasons for the dffculty wth mplementng the methods of peaceful settlement also count for the necessty for usng flexble means nstead of ntatng legally bndng procedu'res. Ths necessty ponts to the crucal role to be played by the Unted Natons (UN) Secretary-General. ıthe Secretary- General holds a unque poston to make use of the advantages of medaton. The latest nternatonal threats- rangng from armed conflcts to the spread of weapons of mass destructon, to envronmental degradaton, underdevelopment and rngraton- all of whch requre a collectve res~onse of the world communty make the contrbuton of the Secretary-Gener'al all the more mportant. Whereas the UN Secretary - General' s contrbuton ro peaceful settlement s crucal more than ever, unfortunately, crtcsms of UN's performance have ncreased for falng to act n face of the Iraq war. :ı'herefore, t s sgnfcant to assess the effectveness of the secretary-gene1al' s role and propose some remedes. n assessng the effectveness of hs her role one must be careful to avod certan stereotypes emanatng from crtcsms that are wdely expressed!

3 Özgür MengUer The UN Secretary-General's Role n Peacelul Settlement ol Dsputes 245 regardng nternatonal nsttutons. These crtcsms are mostly based on two approaches, nether of whch s approprate. Fndng functonal equvalents for the nternatonal nsttutons n natonallegal systems tends to expect too much of these nsttutons and underrate ther mpact, whle shftng the focus entrely from nternatonalorganzatons could lead to the same result, even f for opposte reason (FALK, 1970: ). t seems to be the same wth the UN Secretary-General. Nether comparng the Secretary-General to the executves n natonal legal systems nor degradng hs / her efforts as useless would be suffcent for rghtly consderng the effectveness of the Secretary - General. To make a reasonable assessment, the framework wthn whch the Secretary- General functons should be taken nto account. But ths framework produces many dlemmas to be overcome. He/she functons wthn a framework shaped maniyon the bass of the soveregnty of Member States. On the other hand, he/she must face the challenge posed by the transboundary ssues of securty whch sometmes requre actng beyond the natonal postons n order to be effectve. Thus to perform hs/her duty effectvely, the Secretary-General must overcome many dlemmas resultng from the gap between the consent of States and workng effcently. Consent of states s needed to reach a peaceful settlement where state partes to a dspute wsh to retan ther postons as ntact and refran from makng concessons for that settlement. However, effectveness demands reachng a satsfactory result for both of the partes as soon as possble and means concesson for ether party. As amatter of fact, the gap between the consent of the partes and the need for effcency s an ongong theme of the nsttutonalzaton process of the peaceful settlement prncple. Though the am of peaceful settlement s hghly desred, relevant partes do not want nvolvement of thrd partes n the settlement process_ Internatonal law has not yet gven a elear answer to ths contradcton snce the Permanent Court of Internatonal lustce delvered ts stll wdely recalled judgment of Eastem CareZa Case when t stated that peaceful settlement cannot be enforced wthout the consent of the partes. The UN system tres to strke a balance between the partes takng ntatve on ther own and nvolvement of the thrd party n the process. Artele 33 of the Charter, whch s an elaboraton of the peaceful settlement prncple enshrned n Artele 2(3), lays down the oblgaton of the dsputants to seek, frst of all, a soluton by peaceful means. The commtment of Member States, under the Charter, to resolve ther dsputes through peaceful means has prorty over ntatves to be taken by the Organzaton. n other words, nsttutonal responsblty of the UN for achevng a peaceful settlement s subsdary to the oblgaton of the dsputants to reach a settlement by themselves, as s alsa reflected n Arteles 36(2) and 37(1) of the Charter. Artele 33 defnes

4 246. Ankara Ünverstes SBF Dergs respect~ye. responsı'b'l' ıtıes, Of the Partıes I, and of the O rganızatıon.. WL'th regard to reachng a setdement. The complance of the partes wth ther oblgaton comes frst. The partes should [exhaust the avalable means to reach a settlement-whether through negotaton, enqury, medaton, conclaton, arbtraton, judcal settlement, sp~cal mechansms of regonal agences or arrangements, or other peaceful means of ther own choce, as stpulated n Artde 33(1). The Organzaton s td get nvolved only when the contnuance of the dspute s lkely to endanger the mantenance of nternatonal peace and securty. n such crcumstances, the ıorganzaton s authorzed to call upon the partes to settle ther dspute by peaceful means. But ths knd of recommendaton has no bndng effdct. Though enforcement- through the use of armed force pursuant to Chapter VII of the Charter or through judcal mechansm whch s lmted to cas~s n whch the partes have accepted the ıcr s compulsory jursdcton- s avalable, the UN system and general nternatonal laware far from provdng for a mechansm nducng complance comparable to those n domestc or srpranatonallegal systems (SCRACRTER, 1995: 21). Ths s why peaceful sett~ement efforts have prorty wthn the UN system. The Secretary - General s confronted wth the dlemma every tme he / she takes acton for peace and seılı-ches for a lastng settlement. However, necessty of reform s mostly felt n!these areas: mprovng capablty n order to address dsputes and make the setdement lastng. Therefore, when reform proposals are made these consderat9ns should be taken nto account. 1. THE SECRETARY"IGENERAL'S POSITION AS A PEACE-BROKER The Secretary-General's po~ton s consderably enhanced when compared to a tradtonal medatorl But what makes ths post unque also requres cooperaton wth the UN organ whch has the prmary responsblty for mantanng nternatonal peace add securty, the Securty CouncL THE SECRETARY-GENERAL'S POWERS The UN Charter had envsagdd a prmarly admnstratye role for the Secretary-General (SZASZ, 1991: 1711).But to control such an organzaton as the UN s, alone, deemed as a source of power (ZIRING et al.,2000: 133). Accordng to Artde 98 of the Charter, the Secretary-General perforrns functons entrusted to hm by the Geheral Assembly and the three Councl s of the Organzaton, Besdes usng thej authorty granted by the representatve

5 Özgür Mengler e The UN Secretary-General's Role n Peaceful Settlement of Dsputes e 241 organs, under Artele 99 the Secretary-General may brng to the attenton of the Securty Councl any matter whch, n hs opnon, may threaten the mantenance of nternatonal peace and securty. Ths provson establshes the foundaton of hslher peacemakng efforts. The rght of poltcal ntatve also forms the legal bass to extend beyond the Hmts of tradtonal medaton. Whereas proposals put forward by any other medator have no bndng effect, the Secretary-General may actvate a process at the end of whch the Securty Councl s enttled to adopt bndng resolutons. The su geners poston of the Secretary-General helped hm shape creatve practces. Durng the cold war, when the Organzaton was frequently at stalemate, t was consdered more approprate to charge the Secretary-General wth medaton efforts rather than establshng an ad hoc organ to deal wth a specfc dspute. The Secretary- General's powers have expanded over the years (WHITE, 1997: 58). The practces of the Secretary-General resulted n a more comprehensve concepton of medaton and good offces: every effort made by the Secretary-General toward reachng the ams of the UN Charter (RAMCHARAN, 1991: 16). Thereafter ths practce has evolved so that the Secretary-General's Specal Representatves are authorzed under relevant Securty Councl resolutons to promulgate local legslaton where the UN has undertaken admnstratye tasks, such as n Kosovo and East Tmor (RUFFERT, 2002: 622). Beng left wth Httle gudance by the Securty Councl, whch was unable to functon effectvely durng the cold war, the Secretary-General performed varous tasks he had not prevously undertaken (HILLlER, 1998: 556). Back n 1973 the Secretary-General was gven authorty for only the day-to-day operaton of the Unted Natons Emergency Force (UNEF) II, whle the Securty Councl reserved to tself the rght to take all decsons on pohtcal matters. Now the Secretary-General s responsble for overall admnstraton of peace operatons. Ths development runs parallel to the Secretary-General' s pohtcal dscreton to seek hslher own dmenson n case of conflct. (MC WHINNEY, 1984: 146) hı a way, the Secretary-General "flls n gaps that may exst n the [UN] system." (AMERASINGHE, 1996: 429). Peacekeepng operatons were also developed by the practces of the Secretary-General as a su geners method to be complementary to other means of peaceful settlement. The efforts amng to estabhsh a lastng peace, whch came to be called as peace- buldng, have been shaped by the practces of the Secretary-General and hs Specal Representatves as well. These efforts, whch nelude dsarmament and rentegraton of conflctng partes, provdng the return of refugees, electon montorng, promoton of the respect for human rghts and the rule of law, all am at creatng more open and nelusve governng nsttutons and help buld a model of civl socety (HAN, 1994: 876; JOHNSTONE, 2004: 820).

6 ! 248. Ankara Ünverstes SBF Dergs RELATIONSHIP WITH THE SECURITY COUNCIL The methods used by the: Secretary-General can take many forms, ncludng the use of specal represrntatves, drect contact wth partes to the dspute, admnstratng feld mssons and, all of them are, by nature, noncoercve. But somethng more th~n medaton s requred for the efforts of peacemakng to be successful. Medaton needs to be supported wth the capacty to sever the lnk between the means of volence and the desre of the partes to resort to t (CARMENT/Jk.MES, 1998: 78). And t goes well beyond the powers of the Secretary-Generaıl ı It s the Securty Councl whch s the deterrent power wthn the UN system. Wth the end of the coldj war, competence wthn the UN system concentrated n the hands of the Securty Councl, a development predcted earler (REISMAN, 1990: 862). nere s reason to be cautous, though. The organzatonal scheme of the UN mght be conceved as two opposte extremes, nether of whch s approprate: thatlone organ alone attends to all the affars or that tasks are strctly dstrbuted among relevant organs (ROSS, 1950: 49). The organzaton was not desgned to allow for domnance by one of the organs. Accordng to Artcle 7 of the Chartdr the Secretarat s a prncpalorgan. But t s out of the queston for the Secretdry-General to rse above the representatve organs and be n a somewhat parambunt poston (ALEXANDROWICZ, 1962: 1127). It was not the purpose of th~ founders to create an offcer who would presde over and lead the Securty erouncl (SCHWEBEL, 1994: 237). Indeed, the relatonshp between the UN drgans s a compromse between the two approaches, requrng close coopetaton of the Secretary-General wth the Securty Councl ı. Ths cooperaton Ishould be based on a mutually renforcng relatonshp, wth the Councl havng the power to mpose and the Secretary- General possessng the ablty to berform effcently when he/she has the backng of the CouncL. Frst, the Secretary-General s the one who actvates the Securty Councl, mostly through hs/her reports. The Securty Councl becomes nvolved n a dspute "only when holence has aiready occurred on a large scale" (UN, 2001a: 11-12). The frst appeal on the rasng of a dspute has frequently been made by the Secretaty-General, not by the Securty CouncL. n fact, the Councl s not to deal wth ~very dspute but only the one s whch are ı Some authors see a elear dvson of Jthorty and therefore, support leavng the noneoereve aetons to the Seeretary-Gene~al only after the stuaton has stablzed. See, for nstanee (PICCO, 1994: 15; CLAUDE, Jr., 1996: ). However, the efforts toward aehevng a peaeeful resoluton khould be İndvsble.

7 Özgür Mengler e The UN Secretary-General's Role n Peaceful Settlement of Dsputes e 249 lkely to endanger the mantenance of nternatonal peace and securty or whch form a threat to peace. n the case of Angola, the Securty Councl confrmed the presence of a threat to peace under Artde 39 of the Charter only after the Secretary-General reported that the stuaton had become a cvl war. Agan, t s the Secretary-General who keeps the attenton of the Securty Councl alve. Ths s sgnfcant, snce the need for the Councl's contnung wll to act cannot be confned to only the earlest stages of a conflct. The Secretary-General also contrbutes to the Securty Councl' s takng decsons. He/she helps the Councl develop a common understandng. Though peace-makng process needs quck decsons due to changng condtons, the Organzaton's many layers of bureaucracy mght easly hamper the decson-makng (BERCOVITCH, 1998: 60). Ths can be tolerated to a certan extent, snce the Organzaton' s legtmacy derves from the unversalty whch makes the decson-makng cumbersome. Yet ths cumbersome procedure could easly transcend ts ordnary lmts when Member States, partcularly the permanent members of the Securty Councl, are unable to reach consensus on man ponts of a resoluton. The lack of consensus among the Councl members could obstruct the success of peace operatons. The eventual falure of the Unted Natons Protecton Force (UNPROFOR) n Bosna-Herzegovna emanated from the nablty of the Councl members to develop a common understandng to address the conflct (UN, 2000a: 7). The Secretary-General, through hslher reports, provdes each Councl member wth a common pont of departure for decdng on the acton to be taken (UN, 2001b: 8). Hslher preparng reports and formulaton of proposals were approprately consdered to be the man bass of the decson-makng process (SAYRE, 1950: 24). The peacekeepng operaton n Mozambque (ONUMOZ) whch was establshed by the Securty Councl resoluton 797 (1992) to help mplement the 4 October 1992 General Peace Agreement showed how unanmty of purpose can enhance effcency by offerng flexble means to confront conflct n face of unforeseen developments (UN, 1998a: 8). Actng on the recommendaton of the Secretary-General, the Securty Councl could, wthout any dffculty, add a new mandate for a cvlan polce component (CIVPOL) under resoluton 898 (1994) of 23 February 1994 to verfy the consstency of polce actvtes wth the peace agreement. On the other hand, n order to succeed, the Secretary-General needs the backng of the Securty Councl at each stage of an ntatve. The admnstraton of peace operatons cannot be expected to functon effectvely wthout the Securty Councl' s strong support. Ths fact has been dernonstrated by the UN experence as well (SUTTERLIN, 1989: 92). n the case of Inda- Pakstan dspute n 1971, the Secretary-General's efforts to fnd a peaceful setdement proved to be nsuffcent. Though the Secretary-General reported the

8 250. Ankara Ünverstes SBF Dergs ı matter to the Securty Councl, t dd not respond mmedately and when t dd, t left the Secretary-General unclclar on how to approprately mplement the mandate. When the Secretary-Gendralhas the support of the Councl, the result can be satsfactory. For nstance, the Unted Natons Transtonal Authorty n Eastern Slavona, Baranja and Western Srmum (UNTAES) was able to accomplsh ts man objectve of Ipeacefully rentegratng these regons nto Croata wthn two years, as the COıuncI's actons were commensurate wth the Secretary-General's efforts for the fnal settlement (UN, 1997: 1-3). 2. TAKING ACTION for PEACE It s a crtcal decson for the Secretary-General to ntate peacemakng efforts and he/she has to act accordng to certan parameters n order to acheve a peaceful settlemenl 2.1. ENTERING THE PEACE PROCESS: WHETHER TO INITIATE UN INVOLVEMENT ı To determne n case of a partcular dspute whether or not the UN nvolvement s necessary and f so, when to ntate peacemakng efforts poses a dlemma for the Secretary-Genedl. The condtons for enterng the peace process are mostly shaped by the Setretary - General. One of the varous condtons[ İs related ~o ~henature of medato~. It s a well-known fact that good offces and medıatıon enter where the ımpasse emerges and only to help the parte~ break the mpasse (Bll..DER, 1998: 198). Yet thrd party nterventon can ısometmes hnder, rather than facltate, peacemakng process, especally whrn the partes are tryng to reach agreement by themselves (DRUCKMAN, 1997: 93). The UN experence n electon montorng also demonstrated thatl ll-tmed electons conducted n volatle stuatons can exacerbate exstng trnsons, as wtnessed n Angola, Burund and Bosna - Herzegovna (NEWMtNIRICH, 2004: 2). One of the partes may. perceve the thrd partyas ally of the other partyar of ts own. The stuaton s not dfferent for the secretary-genenıaı. Even hs/her confrmed mpartalty can be challenged, just as the partes to the Westem Sahara dspute reacted to the settlement plan proposed by the Secretary-General over voter elgblty for a referendum to be held to determne! the future of the terrtory. The Secretary- General may decde to ntervene anyime peacemakng process tends to become stalled, even when the process was lntated by the partes themselves. n the case of the dspute over the Bakass pennsula whch had been taken to the Internatonal Courtof Justce (ICJ), the Secretary-General called on the partes,

9 Özgür MengUer e The UN Secretaıy-General's Role n Peaceful Settlement of Dsputes e 251 Cameroon and Ngera, to contnue ther efforts wth a vew to achevng a peaceful settlement and he hosted negotatons both before and after the Court delyered ts judgment n September 2002, so as to smooth out dffcultes n the mplementaton of the rulng. lt s also sgnfcant to judge by whom the ntatve should be taken fırst. n the case of the dspute between Ertrea and Yemen over the Hansh archpelago, the Secretary-General chose to recommend medaton by a Member State, snce the partes had the wll for a peaceful settlement whch resulted n the sgnng of the 21 May 1996 Arbtraton Agreement. Sometmes a representatve organ' s formal nvolvement may result n rgd postons that may handcap the process from the begnnng (CORDOVEZ, 1987: 166). Sometmes a Securty Councl decson s not taken untl the Secretary-General makes progress wth the partes. For nstance, the Secretary-General dd not wat for a formal authorzaton when he ntated efforts n 1991 to secure the release of Western hostages n Lebanon (FRANCKlNOLTE, 1994: 159). But t s equally mportant to avod the poltcal organs' beng nvolved too Iate at crtcal tmes. For nstance, the Unted Natons Preventve Deployment Force n Macedona (UNPREDEP), establshed under Councl resoluton 795 (1992) of 11 December 1992, served as an early warnng source untl t was ended n 1999 (UN, 2001b: 5-6). It s also mportant to avod overlappng n medaton efforts. To ths end, the Secretary-General may, nstead of establshng a new framework, choose to support regonal efforts, such as the appontment of a jont Specal Representatve wth the Afrcan Unon for the Great Lakes regon n 1997 (UN, 1998a: 6) DEFINING PARAMETERS FOR THE SCOPE OF ACTIVITY: LEGITIMACY AND FLEXIBILITY Effcency n peacemakng efforts can be acheved through mpartalty and the use of leverage to move the partes toward a peaceful settlement (SMITH, 1994: 446). Peacemakers are often requred to do more than sharng nformaton and to change the way the partes thnk (BERCOVITCH, 1997: 146). The UN Secretary-General brngs together these two n hslher personalty. The Secretary-General's mpartalty, whch requres servng only the nterests of the Organzaton but not the nterests of any government or other external authorty, s an assurance of the Charter for the partes and for the nternatonal communty. Hs/her leverage s based on the rules of the Charter and of nternatonal law n general. The Secretary-General' s functon s a combnaton of lawand dplomacy, snce "the [mere] exstence of legal rules may not prevent a crss occurrng" (MERRILLS, 1976: 79). However, t leaves

10 ı 252. Ankara Ünverstes SBF Dergs ı the Secretary-General wth a dlenma as to how to strke a balance between flexbltyand legtmacy. Ths wls termed as "conflctng responsbltes" of the Secretary-General, namely the ablty to act ndependently not to lose mpartalty and beng, at the samj tme, confned to the lmts outlned by the representatve organs (RIVLIN, 19~3: 17). When one of the partes cpnsders the actvty of the other to be n contradcton wth nternatonally accepted standards, the medator's rnpartalty s parteularly sgnfbnt (HAFNER, 1998: 37). The Secretary- General's locus stand overcomes ~hese objectons. It s because the Secretary- General's "locus stand rests an the rules to wheh that state [party] has formally comrntted tself' (SCRtCRTER, 1962: 6). Yet hs/her post s not comparable to a supranatonal organzaton' s execut ve, for nstance the Comrnsson of the European Undn (EU), n that the Comrnsson s gven the duty to ntate the procedure to sqelne volatons of the organzatonal law by the member states. Unlke the EU; executve, t s out of the queston for the Secretary-General to apply to the prmary judcal organ of the Organzaton, the Internatonal Court of Justee. Even requestng an advsory opnon s seen as a power lmted to the ntergov6rnmental organ s of the UN (SZASZ, 1976: 513; ROSENNE, 1961: ). ı The Secretary-General shou~d act flexble enough to address the specfc condtons of each conflct. Howeyer, the lmts envsaged by the Charter and the resolutons of the representatve organs should not be overrdden. The ablty to act flexble enough shbuld not brng about a contradcton wth Securty Councl resolutons, srlce any contradeton would undoubtedly produce negatye mpacts on the wbrk of the Organzaton. There s no concem for the Secretary-General wherl the Councl shapes a comprehensve framework. For nstance, the Secretary-General' s good offces msson pursuant to the Securty Councl resolutan J;62 (1985) was only based on a request that the Councl be kept nformed of an~ related developments. Yet he was nvolved n all stages of the Central Amerean peace process and all the Councl dd n the end, under resolutan 637 (1989), was to endorse the agreement reached on the establshment of a UN msson Icharged wth verfyng the electoral process n Ncaragua (ONUYEN). n the case of Namba, a Councl resoluton was not even requred for the establshm6nt of the Transtonal Executve Councl (TEC) whch functoned to montdr the negotatons on the electoral process. However, the Secretary-General's takng ntatve wthout the authorzaton of a representatve organ should not tle extended too far. After all, the Secretary- General s not furnshed wth thel decson-makng authorty. Therefore, the Secretary-General's ntatve sh6uld not result n leavng the Councl neffectve. Whenever t comes to rhantan the respect for the prncples of the

11 Özgür Mengler e The UN Secretary.General's Role n Peaceful Settlement of Dsputes e 253 Charter and nternatonal law, the Secretary-General's framework to act has aıready been shaped by relevant resolutons. For nstance, Securty Councl resoluton 674 (1990) of 29 October 1990 requested the Secretary-General to use hs good offces but only towards achevng the am of Iraq's total and mmedate wthdrawal from Kuwat. In the case of the damage caused by the Lockerbe ncdent, the Secretary-General' s role was confned to exchangng messages and reportng to the Councl towards reachng a peaceful settlement on surrenderng the two suspects by Lbya. Both nstances ndcate that confnement to the Secretary-General's role ams to provde for the respect for nternatonallaw. 3. SEARCHING FOR A LASTING SETTLEMENT Dspute settlement s not a sngle-phased effort. Durng the mplementaton phase the Secretary-General faces obstructons emanatng from the lack of wll on the part of Member States and the decson-makng organs alke. Adopton of resolutons by the representatve organs s not an end n tself, snce resolutons of the Securty Councl or the General Assembly do not automatcally provde for a settlement. Implementaton of those resolutons needs to be montored by the UN executve. The Securty Councl' s recommendatons under Chapter VI of the Ch arter are not bndng. It s for the Secretary-General to convnce the partes to consder acceptng those recommendatons. Moreover, the oblgaton of the dsputants under the Charter to exert efforts towards a peaceful settlement does not nclude reachng a specfc result. Even f the Councl resolutons are adopted under Chapter VII and therefore, have a legally bndng character, the Secretary-General has a role to play n ensurng complance through holdng negotatons wth the partes. However, the Secretary-General lacks the necessary resources and manageral powers to enhance chances for wagng an effectve acton and s certanly posed wth another dlemma 2. There s no such mplementaton mechansm wthn the UN framework that compares to the executve wthn a supranatonal organzaton. The EU executve has mplementng powers of ts own. However, t s not approprate to expect the same knd of authorzaton beng granted to the UN Secretary-General. Whereas the European Commsson operates under 2 Indeed, the falure to follow up early warnng wth effectve acton s a tradtonal gap wthn nternatonalorganzatons and chef executves functon to brdge ths gap. In the case of the Organzaton for Securty and Cooperaton n Europe (OSCE), the ncreased authorty of the Charman-n-Offce facltated takng acton (OSCE, 1996: 6).

12 254. Ankara Ünverstes SBF Dergs a system that s based on a com~rehensve delegaton of powers by member states, the UN Secretary-General s performng under the Charter system, whch foresees no authorzaton for the prganzaton to utlze the powers possessed by Member States except when the Securty Councl adopts enforcement measures 3. \ 3.1. ESTABLlSHING PEACE OPERATIONS The frequently used me~hod n assstng the partes wth the mplementaton of peace agreemehts s establshment of UN peace operatons. Though deployment of peace operlıtons requres a Securty Councl resoluton, ı the Secretary-General plays a crucal role. The condtons of a possbleldeployment are consdered by the Secretary- General, snce the establshment of peace operatons s based on the factors that are emphaszed by the medator\ (GRüüM, 1986: 507). For nstance, the Securty Councl, through İts resoluton 724 (1991) of 15 December 1991, endorsed the Secretary-General's ~ecommendaton that the preparatons should be made to assess the condtons of a possble deployment n Croata. Ths s a crtcal decson for the Secretary t General, as deployments mght sometmes be counterproductve and sdelne other efforts whch could be more constructve f appled. Sometm~s regonal ntatves take the lead. n the Central Afrcan Republc, for exaıhple, the UN deployment was advanced by regonal medaton efforts and a lotal securty force, the Inter-Afrcan Msson to Monİtor the Implementaton df the Bangu Agreements (MISAB) (UN, 1998b: 9). When the mandate ofl a peace operaton s to be proposed, the Secretary-General makes an assessment as to whether the mandate fts the nature of the conflct. n the case \of the Unted Natons Msson n Burund (MINUB), a human rghts component was envsaged to be the core element of a mult-dscplnary operaton n orqer to address the ssue of genocde (UN, 2004a: 18). Some conflcts demand a regonal approach. Then, the Secretary - General needs to assess the stuat~on by takng dfferent conflcts n a gyen regon as the bass for hs / her d~cson. For nstance, the mssons n Côte d' Ivore, Lbera and Serra Leon~ were envsaged as mutually renforcng operatons. The mandate of the UJted Natons Msson n Lbera (UNMIL) was formulated, nter ala, to su~port the protecton of Ivorean and Serra Leonean refugees n accordance ~th the Comprehensve Peace Agreement 3 ICL has stated and reterated that the lun s not a 'super-state', although t possesses rghts and oblgatons and has nternatonal personalty to operate upon nternatonal plane (ICl, 1949: 179; ICL, 1980: 89).

13 Özgür Mengller e The UN Seeretary-General's Role n Peacelul Settlement of Dsputes e 255 (UN, 2003: 13). Smlarly, the Unted Natons Operaton n Côte d'ivore (UNOCı) was desgned to montor the border wth Lbera and to ensure the securty of Lberan refugees (UN, 2004b: 15) to alter the dmate of poltcal nstablty whch was fueled when mltary nstallatons n the captal Abdjan were allegedly attacked wth the support of some natonals of neghborng countres. The tmng of a deployment, too, mostly depends on the Secretary- General's choce. For nstance, the Securty Councl resoluton 1135 (1997) of 29 October 1997 postponed the wthdrawal of UN mltary unts from Angola, on the recommendaton of the Secretary-General. But, n the fnal analyss, t s up to the Securty Councl to share the Secretary-General' s vew or not. The Securty Councl may not endorse the Secretary-General' s recommendatons as a whole. In the case of the Unted Natons Organzaton Msson n the Democratc Republc of Congo (MONUC), the Councl endorsed hs recommendaton that prorty should be gven to the holdng of electons but authorzed only less than half of the proposed ncrease n troop strength, posng a real challenge at a tme when the securty stuaton n neghbourng countres was stll volatle (UN, 2004c: 7) MOBILlZING SETTLEMENT SUPPORT FOR PEACEFUL The UN experence n peace operatons makes t dear that the most sgnfcant element s the consent and cooperaton of the partes. Where there have been stalemates t s manly because of the stance of the partes themselves (BRATT, 1997: 74). The Secretary-General acts to wn the confdence of the partes for reachng a peaceful settlement and to convnce the nternatonal actors n order to shore up ther support for that settlement. That must be why the Secretary-General was stated to combne the UN' s actor status wth ts framework status (FORSYTHE, 1969: ). Even n stuatons where agreements provdng for a settlement have been sgned, the partes may not stay loyal to ther commtments. Ths may stall the whole process or at least cause delays, as recently wtnessed n Côte d'ivore (UN, 2005a: 1-21) where Lnas - Marcousss Agreement of 23 January 2003 set out a program for resolvng the root causes of the dspute ndudng the status of foregn natanals and elgblty to run for presdeney. Indeed, gettng the partes accept the UN's efforts, let alone ts resolutons, has been carred out wth dffculty snce the frst years of the Organzaton (GOODIUCH SIMONS, 1957: 318). The Secretary-General, then, faces another gap between the commtments made under peace agreements and the ntransgent stances n

14 256. Ankara Ünverstes SBF Dergs ı the afterınath. The partes' stand~ may easly change after an agreement has been made. Even f the UN n~ates peace enforcement, lack of agreement among the partes mght lead to Ealure or wthdrawal of the operaton, just as the Unted Natons Operaton n Somala (UNOSOM) came to an end. n the case of UNPROFOR the Secret~-General ponted out that even a mnmal UN troop presence could have contrbuted to the preventon of volatons of the safe areas, provded that the parte~ themselves had been comrntted for the settlement (UN, 1995: 16). The! Secretary-General may help prevent these dffcultes to a certan extent, through gettng assurances from the partes, admnstratng UN mssons to lnvestgate alleged ceasefre volatons, to observe dsengagement, demltarzaton and wthdrawal of combatants and to enhance delverng humantaranl assstance, or through appontng Specal Representatves to work ether oj a partcular dspute or on a regonal scale, such as the Unted Natons Mssoh for West Afrca (UNOWA). The Secretary-General must also encourage the nternatonal communty to reman engaged. He / she acts on behalf of the nternatonal communty. There s no dfference, n terıns ıof access to the Securty CouncL, between Member States actng on ther ovjn moton under Artele 35 (1) of the Charter and the acton of the Secretary-General (STONE, 1959: 187) n brngng a dspute to ts attenton.the SecretJry-General functons as an mpartal observer when' Member States refran ftom actng. Thus, the Secretary-General's functon s complementary, mak~g the suggested lnk between the rare usage of Artele 99 by the Secretary-G6neral n practce and the frequent callng of attenton to the obvous threats by Member States (SZASZ, 1991: 187) sound reasonable. n fact, the comprehehsve mandates gven to the UN mssons to run the terrtores wth fulllegsljtve and executve powers, as n Kosovo and East Tmor, are based on the s~pport of the nternatonal communty. The nternatonal support gven to the ISecretary-General represents legtmacy. The legtmacy derves from the <bpportunty provded to the nternatonal communty to lye safe from negjtve mpacts of the conflct and accordng to the rules of nternatonallaw, n rbturn for fulfllng ther oblgatons under the Charter. n Kosovo, where the Organzaton was able to undertake admnstratye tasks to serve as Jn nterm structure, the mandate of the UN msson (UNMIK) had wde support of the nternatonal communty. Though ts mandate s derved from the Seclırty Councl resoluton 1244 (1999), t was establshed takng full account of the nternatonal efforts, neludng the negotaton process of the Rambolıllet accords whch had not come nto force. n ths way, UNMIK, head~d by the Secretary-General's Specal Representatve, easly utlzed legslatve powers so that Regulaton No. 1999/1 adopted by UNMIK establshed \the prncple that the local legslatve acts

15 Özgür MengUer e The UN Secrelary-General's Role n Peacelul Selllemenl of Dspules e 251 whch had been n force before the formaton of the UN msson could only be vald so long as they dd not contradct wth UNMIK regulatons that cover a wde range of matters ncludng customs, taxes, fnance, communcatons and admnstraton of justce. The extensve nternatonal support lent to UNMIK s also reflected n ts components led by regonal organzatons, such as the OSCE and the EU. Whereas the OSCE was responsble for buldng capabltes n protecton of human rghts, the rule of law, meda development and, regulaton and montorng democratc electons, the EU was held responsble for rebuldng nfrastructure for a compatble free market economy and a secure envronmenl The Secretary-General may summon the necessary nternatonal support through establshng contact groups or organzng an nternatonal conference. But ths s not suffcent, as demonstrated by the falure of the UN msson n Rwanda (UNAMIR) II. Accordng to Securty Councl resoluton 872 (1993) of 5 October 1993 UNAMIR was mandated, nter ala, wth montorng the securty stuaton durng the transtonal perod (of the mplementaton of the 1993 Arusha Peace Agreement), ncludng nvestgatng and reportng ncdents. However, the presence of UNAMIR could not prevent the events from takng a sharp tum for the worse. Independent Inqury held later made t clear that t was the lack of poltcal wll of the nternatonal communty that led to the weak response of the Secretarat (UN, 1999: 3). To provde for actve engagement of the partes, the Secretary-General should lead quckly delvered projects wthn UN mssons. Local people who observe postve mpacts of the msson's presence would contrbute to realzaton of such an engagemenl To ensure actve partcpaton of the nternatonal communty, the Secretary-General should gve asound assessment that the nternatonal actors have nterest n supportng the process BRIDGING OPERATIONAL GAPS Beyond convncng the partes, the UN s serously n need of a strong mplementaton mechansm. Yet the lack of asound mplementaton mechansm to transiate the support for peaceful setdement nto operatonal terms forms another dlemma. The man reason for ths dffculty s that the UN has to assemble mltary unts from member countres. The Organzaton lacks an army ready for feld operatons. The UN nether has reserve personnel for msson leadershp. As a result, the Secretary-General lacks the necessary means to provde an effectve deployment one e the decson s made. n fact, the lack of means and resources also makes t dffcult for the Councl to

16 258. Ankara Ünverstes SBF Dergs determne the operaton's mandate, the overall result beng that most of the operatons are volatle from the beknnng of ther establshment. To brdge the gap betwjen the Securty Councl resolutons and operatonal nstructons n the feld, there are two thngs to be done. Frst, the mandates should make t precse J.hether use of force s authorzed or nol It s sgnfcant, snce t often proved \mpossbıe to mplement peace agreements because operatonal consderatons had not been assessed adequately durng decson-makng of the Councl (CHOPRA, 1994: 305). The authorzaton to deploy a force ncapable of soldfyng a fragle peace would rather drag an operaton to falure (UN, 2000a: 110). Sometmes a peacekeepng operaton could be deployed even though ndı fnal soluton was forthcomng, such as the establshment of the Unted Natons Dsengagement Observer Force (UNDOF). The Securty Councl' s usng vagu~ terms n ts decsons only makes t harder for the Secretary-General to mplement them (RNLIN, 1996: 98). Moreover, terms resultng from a negotated s~ttlement between the partes generally tend to be vague (CHOPRA, 1994: 306). Ths further complcates the problem. It s suggested that t would be most lapproprate to formuiate the mandate frst (CHESTERMAN, 2002: 39). H0"'lever, ths seems rather dffcult due to the UN' s lack of a mltary force of ts own. Poolng necessary resources for a peace operaton s often as dffbult as determnng ts mandate. For the mandates to be clear enough, the Srlcretary-General should provde the Securty Councl members wth tmely abd accurate nform~ton. Any change of mandate should take place after hoıbng consultatons wth the partes and troop contrbutng countres, as well as major donors. Indeed, referrng to the UN nvolvement n Somala and Bosn~- Herzegovna, both of whch were obvous falures, the then Secretary-Generalllater wrote that t had been wrong to change the mandate of the operaton wtho~t changng ts composton and capabltes (EKWA;LL - UEBELHART / RAfVSKY, 1996: 69). What the Secretary - General should do next s to fachtate the mplementaton process. He / she should provde the UN msson' s ldadershp wth necessary strategc gudance to help the leadershp mplement tht mandate n face of unforeseen challenges. Ths could prevent the msson's cbmponents from determnng on ther own the way to mplement the Councl'~ mandate. Second, the Secretary - General should be granted the authorty and resources to thoroughly dscuss wth the partcpatng states ther preparedhess wth a vew to assurng that the contrbutors meet threshold condtons pror to the deployment and reman engaged durng the whole process.! Otherwse, natonal contngents of troop contrbutng countres may ndvd~aııy reman orented toward ther natonal command authortes (CONETTA 1KNIGHT, 1995 : 16). Besdes, natonal

17 Özgür Mengler e The UN Secretary-General's Role n Peaceful Settlement of Dsputes e 259 troops may be underequpped. Thus, ths authorty s a necessty to provde for the full orentaton of the contrbutors and fnal success of operatons ENSURING AN INTEGRATED RESPONSE: COULD A PEACE-BUILDING COMMISSION' HELP? Peace-buldng demands lnkng dplomatc and mltary efforts to other means used to enhance sustanable development and respect for the rule of law. n fact, the am of peaceful settlement can only be acheved through a comprehensve framework, ncludng nternatonal economc development (JENKS, 1964: 112). It s an mperatve for preventng war-torn countres from lapsng back nto volence. Ths certanly brngs about a requrement for an ntegrated and well-coordnated approach by the Secretary-General. However, the Organzaton s not capable of delyerng coordnaton servces effectvely. Moreover, the Secretaral' s work has become overloaded n recent years. n spte of efforts to solve the coordnaton problems, the UN seems ncapable of shakng ts reputaton as an organzaton too large to functon effcently (SMITH, 2003: 1). Frst, there s the need to brdge the gap between the poltcal and mltary components of a peace operaton 4. n the case of the Unted Natons Assstance Msson for Rwanda (UNAMIR), the lack of communcaton between the Specal Representatves and the force commanders resulted n the fai1ure to respond to warnngs from the feld (MINEAR, 1997: 13). To meet ths challenge, the Secretary-General grants overall authorty to hs Specal Representatves. Wth regard to the Unted Natons Msson n Ethopa and Ertrea (UNMEE) whch was establshed to end the border dspute that led to fghtng n 1998 and to contrbute to the blateral efforts conc'ernng the delmtaton and demarcaton of the colonal treaty border, the Secretary- General chose to acheve ths end by envsagng a coordnaton mechansm to be headed by a Specal Representatve who, at the same tme, held observer status at the proxmty talks n order to keep the Organzaton nformed of any developments that could change the mplementaton process (UN, 2000b: 3). Wthn the Unted Natons Assstance Msson n Afghanstan (UNAMA), for nstance, the responsblty for coordnaton was granted to the Deputy Specal Representatve. Secondly, the Secretary-General ensures coordnaton wthn 4 Coordnaton rnght also be requred to take place between the two UN operatons, such as the mssons n Burund (ONUB) and the Democratc Republc of Congo (MONUC), as stpulated under Securty Councl resoluton 1545 (2004).

18 ı 260. Ankara Ünverstes SBF Dergs ı ı the UN system as a whole. Thohgh not explctly stated n the Charter, the assstance the Secretary-Generalllends to the General Assembly and the Economc and Socal Councl n coordnatng the polces and actvtes of the specalzed agences under ArtCıCıs57, 58 and 63 (1) s a clear ndcaton of hs/her coordnatve functon. It al~o covers the actvtes of the Bretton Woods nsttutons, whch have a role td play n supportng the efforts for a stable fnancal sector. To ensure operatlonal coordnaton of development actvtes, the Secretary-General nstal1ed the Resdent Coordnator system, the frst of whch started functonng n Se~a Leone. Thrdly, coordnaton must be ensured between the UN and the relevant regonal organzatons whch work together wth the Organzaton Iwhether n the form of holdng regular consultatons, provdng dplomatc and operatona! support to each other or ntatng co-deployment or jont o~eratons. The recent practce of establshng Peace-buldng Support Offces under the Secretarat framework ams to enhance coordnaton wth regonall organzatons 5. The Unted Natons Support Offce n Gunea-Bssau (UNOGmS) was establshed under Securty Councl resoluton 1233 (1999), wth the Secretary-General's ntatve, to strengthen the efforts of the Economc Comm~nty of West Afrcan States (ECOWAS) n the mplementaton of the 1 November 1998 Abuja Agreement to support the holdng of orderly presdental ele~tons n the aftermath of the fghtng that erupted over the forcbly removal of the presdent from offce. The Secretary-General, as th~ chef coordnator of a unque organzaton wth a global mandate, s also expected to ensure coheson among other nternatonal actors. In the case of IAfghanstan, the central role played by the UN n organzng nternatonal ~fforts has been confrmed, although the mandate of UNAMA s lmted, under Securty Councl resoluton 1536 (2004) of 26 March 2004, to coordnlton and assstance to the Transtonal Admnstraton n nsttuton-bulddg and reconstructon n accordance wth the 5 December 2001 Bonn Agreemeht. The Unted Natons Msson for Iraq (UNAMI) also functons as a key Icomponent to coordnate the nternatonal communty's humantaran efforts durng the transton process n the aftermath of the formal restoraton of Iraq sovbregnty (UN, 2004d: 12). A 'Peace-buldng CommssJn', as proposed by Secretary-General Kof Annan, could provde a forum wthn the UN to brdge the larger coordnaton gap. Such an ntergovernmental or~an, capable of mprovng coordnaton of 5 Fo, n,"""". P,,,,.buldng sup!" ütf" n ıh, C,n".! Afrc'n R'publc (BONUCA) partcpated n several kssons, ncludng the jont Central Afrcan Republc - Sudan verfcaton msson ~n the Chadan border (UN, 2001c : 1-7).

19 Özgür Mengler e The UN Secretary-General's Role n Peaceful Settlement of Dsputes e 261 fnancng peace operatons, s to nclude representatves from the Securty Councl, troop contrbutors and major donors, as well as the partes themselves and the regonal actors (UN, 2005b: 31; UN, 2005c : 69). The Commsson s proposed to functon n order to provde perodc revew on progress, ensure fnancng and mprove coordnaton of funds and agences. Its members can share nformaton about ther respectve strateges. In other words, ganng support of the partes and the nternatonal communty wthn the same forum can be consdered as a tool to brdge the coordnaton gap. t could also be useful n compensatng for the falure of the partes to demonstrate the wll requred to mplement the terms of settlement, through establshng more nvolvement on the part of Member States. However, such a commsson, desgned as a subsdary organ of the Securty Councl under Artcle 29 of the Charter, should not presde over the coordnatve role of the Secretary-General but t should work n close cooperaton wth hm/her. Perhaps, asmlar mechansm formerly proposed by the Secretary-General, whch would brng together hs Specal Representatves and a specal commttee consstng of the representatves of the partes and the major contrbutors (UN, 1998b: 8), could be more useful n ensurng the Secretarat' s coordnatve functon. It should be recalled that, wthn UNMIK the mandates of all components headed by the regonal organzatons were subordnate to the overall authorty of the Secretary-General's Specal Representatve and ths subordnaton mproved the level of coordnaton (STEINER, 2003: 89). Thus, f such a Commsson s formed t s mperatve to keep the leadng authorty of the Secretary - General. A Peace-buldng Support Offce, proposed as an addtonal structure to be establshed n the Secretarat to lend support to the Peace-buldng Commsson, could be nstrumental n ensurng the Secretary-General' s ablty to ntegrate system-wde polces and strateges. The Peace-buldng Support Offce - through collectng nputs for meetngs for the proposed Peace-buldng Commsson, contrbutng to the plannng process of UN operatons, conductng analyss and developng polcy gudance - could ntegrate the Secretary- General's work wth the Commsson's (UN, 2005b: 32; UN, 2005c: 70). If the proposal of establshng a Peace-buldng Commsson s endorsed, t should not lead to a practce whch had been expected of several suggestons made n the past n order to establsh a major role for the Securty Councl n every aspect of UN peace operatons (SKJELBAEK, 1991: 107). n other words, the future practce should not result n the Secretary-General keepng a low profle n dspute settlement. It would be most useful f ths structure can be consdered as part of a larger reform process to be ntated n order to ncrease the democratc and accountable nature of the Securty CouncL. Wder partcpaton by the relevant states n the plannng and decson-makng phases should be the bass