The Law of the United Nations as Applied to Intervention Within the Frame Work of Article 2, Paragraph 7 of the Un Charter: A Comparative Analysis of Selected Cases to Establish the Underpinning Reality of the Danger of the Principles of Sovereign Equality and Domestic Jurisdiction Against Un Mandate for Total Humanity's Peaceful Co - Existence and Prosperity.

By Agola Auma-Osolo

Ever since the first generation of man, whereby our first patriarch, Adam, and matriarch, Eve, were commanded by God on what to do if they were to live and enjoy a happy life of perpetual peace and prosperity (Genesis 2: 1617) right up to our own generation today (2014), numerous prophets, prophetesses, philosophers, statesmen, scientists, and jurists alike have also arisen echoing the same. These include, for example, Hosea, Isaiah, Micah, Samuel, Jeremiah,etc. (prophets); Miriam, Deborah, Anna, etc. (prophetesses); Confucious, Socrates, Zeno, Thomas Hobbes, Jeremy Bentham, John Stuart Mill, John Locke, etc. (philosophers); Ur-Num, Hammurabi, Marcus Tullis Cicero, Woodrow Wilson, Mohandas Karamchand Gandhi, Marcus Garvey, Rev. Dr. Martin Luther King Jr., Kwame Nkrumah, Patrice Lumumba, Nelson Madiba Mandela, etc. (statesmen); Hugo Grotius, L. Oppenheim, H. Lauterpacht, Hans Kelsen, Louis B. Sohn, etc (jurists); Albert Einstein, Inis L. Claude Jr., Robert J. Oppenheimer, Sir Norman Angell, Raymond Aron, Henri Saint-Simon, Immanuel Kant, David Easton, etc (scientists); and more so, the Founding Fathers of The United Nations in 1945. But like Gods effort, all their efforts also have fallen on mans deaf ears, leading humanity to a perpetual perish (Hosea 4:6). Using a case study methodology, this book has established that various forms of conflict perennially scourging the international community are influenced by obsessive self-seeking political passions for national interest defined in terms of power; that these passions are cunningly packaged in dangerous principles of sovereign equality and domestic jurisdiction and the doctrine of survival of the fittest; that it is these viruses that have always undermined and consequently retarded the United Nations efforts to realize fully its mandate as the chief custodian of world peace and security as was intended by its Founding Fathers in 1945 when all nation-states had already proved totally incapable of achieving this elusive goal, thus leading to the eruption of both World War I and II; that this tragedy is a function of mans paradoxical nature, his appetite for both peace and war; that although man is endowed with a unique natural ability to listen and understand better than all other members of the animal kingdom, unfortunately, like Adam and Eve, man is a perpetual hostage to his own double standard nature, which consequently does not allow him to pass an acid test on the virtue of pacta sunt servanda (honesty); and finally that this is why the wishes of the Founding Fathers of the United Nations contained in both the preamble and entire charter have always failed to bear fruit in full since its inception. Hence, an urgent need for an emergency revival of the original concept of this world bodys role by depreciating the existing dangerous supremacy of nation-states sovereignty and legitimacy in appreciation of the sovereignty and legitimacy of the United Nations as a panacea. This pragmatic innovation is cost-effective and, therefore, extremely necessary. Like a nation-states effectively authoritative responsibility over its intercitizen interaction within its respective nation-state jurisdiction, this newly revitalized world body could similarly possess an effectively authoritative responsibility over its interstate interaction, including acts of all nonstate actors within its international jurisdiction. Also, it would be able to contain both those viruses stated above and pathological tendencies of certain temporary insane actor(s) from emotionally resorting to thermonuclear, biological, or any other means of suicide mass terrorism/ genocide as ones payoff option to the source(s) of ones long helpless frustration and suffering that could consequently lead humanity to an automatic global Doomsday simply because of absence of such a needed world body to serve as an umpire for all in conformity with the wishes of the UN Founding Fathers.

• Language: English
• Publisher: Trafford Publishing
• Release date: Sep 8, 2015
• ISBN: 9781490759289

Agola Auma-Osolo

Professor Agola Auma-Osolo is currently an associate professor of international relations, diplomacy, and international law; chairman of Post-Graduate Studies Programme, School of Development and Strategic Studies (SDSS), Maseno University; and president of the International Centre for Peace and Conflict Reconciliation Initiative for Africa (ICPCRIA), a nongovernmental organization based in Nairobi under whose jurisdiction he published an in-depth clinical diagnosis and prescription of the 1994 Rwanda Civil War titled The Rwanda Catastrophe: Its Actual Root-Causes and Remedy to Pre-Empt a Similar Situation in Rwanda (May 1995) in English, French, and Spanish, and disseminated it to all heads of state and international organizations. He earned his PhD in political science from Howard University (1979); his Hague Certificate in International Law from the Hague Academy of International Law based at the International Court of Justice (1969); and his MA and BA degrees in international relations from University of North Carolina (UNC) at Chapel Hill (1969 and 1968, respectively). He is a Fellow of the American National Science Foundation (1969) and an Institute of International Education (IIE) scholar (1964). His publications include Cause-Effects of Modern African Nationalism on the World Market (1983), which earned a nomination for the Herskovists Award (1985) organized by African Studies Association in North America; “Rationality and Foreign Policy Process” the Yearbook of World Affairs 1977, which earned him a PhD studies fellowship from the American Society on Foreign Policy (1978); Conflict Vaccination and Its Application to Conflict Menace (soon coming out from the press); etc. He has also served as a diplomat in a position of chief administrative secretary cum technical assistance coordinator (CAS/TAC) with Desert Locust Control Organization for Eastern Africa (DLCO-EA), Addis Ababa (1988–1992); as director/administrator, the Kenya National Academy of Sciences (KNAS) Nairobi (1985–88); and as vice president of the Cosmopolitan Student Club at UNC, where, in l969, he played a significant role through the UNC Office of the Provost to the ending of the Vietnam War and its scourge to the American universities’ infrastructure.

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THE LAW OF THE UNITED NATIONS AS APPLIED TO INTERVENTION WITHIN THE FRAMEWORK OF ARTICLE 2, PARAGRAPH 7 OF THE UN CHARTER:

A Comparative Analysis of Selected Cases to Establish the Underpinning Reality of the Danger of the Principles of Sovereign Equality and Domestic Jurisdiction Against UN Mandate for Total Humanity’s Peaceful Co - Existence and Prosperity.

AGOLA AUMA-OSOLO

©

Copyright 2015 Agola Auma-Osolo.

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the written prior permission of the author.

From THE LAW OF THE UNITED NATIONS AS APPLIED TO INTERVENTION WITHIN THE FRAMEWORK OF ARTICLE 2, PARAGRAPH 7 OF THE U.N. CHARTER, by Auma-Osolo © 2015 United Nations. Reprinted with the permission of the United Nations.

ISBN:

978-1-4907-5927-2 (sc)

ISBN:

978-1-4907-5928-9 (e)

Because of the dynamic nature of the Internet, any web addresses or links contained in this book may have changed since publication and may no longer be valid. The views expressed in this work are solely those of the author and do not necessarily reflect the views of the publisher, and the publisher hereby disclaims any responsibility for them.

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CONTENTS

Dedication

Preface

Foreword (A)

Foreword (B)

I: Introduction

1. Problem

(a) The Origin, Basis and Significance of the UN’s Creation, Authority and Legitimacy in the International Community.

(b) Its Preamble

(c) A Psychiatric Analysis of the Preamble

2. Purpose and Methodology of this Study

CHAPTER 1

COMPETENCE AND LIMITATIONS OF THE UNITED NATIONS TO INTERVENE: THE Problem Of Domestic Jurisdiction

1. AN OVERVIEW OF THE LEGAL NATURE OF THE U.N.’S RESPONSIBILITIES AND OBSTACLES IN WORLD POLITICAL CRISES

A. The Birth and Responsibilities of the United Nations

B. The U.N.’s Obstacles: The Problem of Domestic Jurisdiction

1. Is domestic jurisdiction a serious problem to the Security Council and the General Assembly?

2. Is domestic jurisdiction a serious problem to the International Court of Justice?

II. A COMPARATIVE ANALYSIS

A. Analysis

B. A Theory of International Policy and Law

CHAPTER II

QUESTION OF NATIONALIZATION INVOLVING INTERNATIONAL DISPUTES

Case Number 1: Anglo-Iranian Question – 1951 – Nationalization Of Anglo-Iranian Oil Company

Stage A : Political Situation

1. The Road to Anglo-Iranian Oil Company, Ltd.

2. From Anglo-Iranian Oil Company, Ltd, to Iranian Government control.

a. First Attempt:

b. Second Attempt

Stage B: The Legal Situation – (at both UN and The Hague)

1. How and why did the case come to the UN?

2. At the UN: Anglo-Iranian Oil Company Case before the Security Council-September 28, 1951.

3. At the International Court of Justice: Anglo-Iranian Oil Company Case (United Kingdom Vs. Iran)

Case Number 2: The Suez Canal Question – 1957

Stage A: Political Situation

1. The Construction of the Canal: A Prelude

2. The Road to Nationalization

3. Suez Crisis at the Climax

Stage B. Legal Situation (at the UN)

CHAPTER III

QUESTIONS INVOLVING CONFLICTS WITHIN AREAS BETWEEN COLONIAL POWERS AND REVOLUTIONISTS

Case No. 1: Indonesian Question 1947

Stage A: Political Situation (at the target)

Stage B: Legal Situation

Case No. 2: Algerian question 1955

Stage A: Political situation

Stage B: Legal Situation (at the U.N)

(1) How did the case come to the U.N?

CHAPTER IV

QUESTIONS INVOLVING THE ESTABLISHMENT OF ORDER WITHIN A NATION

The Congo Question – 1960

Stage A: Political situation

(i) The Road To Belgian Colonialism

(ii) From colonialism to independence

(iii) What was the United Nations’ reaction?

(iv) Application of Article 2 (7) of the U.N. Charter:

(v) Legal Principles Authorizing the U.N. Forces to the Congo.

CHAPTER V

CONCLUSION: A COMPARATIVE ANALYSIS OF AFOREMENTIONED CASES

A. Different interpretations of Article 2, paragraph 7 in the cases considered:

(a) Mediation

(b) Commisions of Inquiry and Fact-Finding

(c) Adjudication

(a) Cease-fire and withdrawal:

(b) Truce supervision:

(c) Armed U.N Buffer Force And Border Patrol:

(d) Police Action

Bibliography

Appendix

Appendix II

Biography

THE LAW OF THE UNITED NATIONS AS APPLIED TO INTERVENTION WITHIN THE FRAMEWORK OF ARTICLE 2, PARAGRAPH 7, OF THE UN. CHARTER: A Comparative Analysis of Selected Cases to Establish the Underpinning Reality of the Danger of the Principles of Sovereign Equality and Domestic Jurisdiction Against UN Mandate for Total Humanity’s Peaceful Co - Existence and Prosperity.

By

AGOLA AUMA-OSOLO

Forwarded by:

Prof. Philip Okinda Owuor

Professor of Chemistry and

Dean, School of Graduate Studies and Research

Maseno University

Maseno Kenya

Shem S. Balongo,

Advocate of The High Court of Kenya;

Former Commissioner, Electoral Commission of Kenya (ECK); and

Retired Chancellor, The Diocese of Nambale, Anglican Church of Kenya (ACK).

And with the Assistance of:

Dr. Pauline Andang’o

BEd (KU), MSc (Flinders University), PhD

(Wageningen

Deputy Dean,

School of Graduate Studies and Research

Maseno University,

Maseno Kenya

DEDICATION

To Mary Anne and Sarah Leah Osolo (USA); Rispah, Raheli, Zakaria, Joseah and Joseph (Nairobi); and Esita, Shuja Munywalo, Consolata Okomba, Faith Karen, Jemima and Hope (Maseno),; and in memory of My Father Zakaria Obwora Osolo and Mother Reheli Auma and to all those (e.g. Hon. U. Thant) who during their lifetime devoted their time struggling for world peace and security for Total Humanity and who also influenced me to do the same. These words that I have uttered are not in wrapped with in-direction, but, firmly based on rules of justice, science and of good, are plain alike to simple and to wise. But if’, as Hugo Grotius thus puts it, anything has here been said by me inconsistent with piety, with good morals, with Holy Writ, with the concord of the Christian Church,[Science] or with any aspect of truth, let it be as if unsaid".

Prof. Agola Auma-Osolo

2015

PREFACE

This book is a message for all of those who love most dearly our International Community and the total Planet and who are, therefore, very concerned of their survival unless a specific drastic revival is undertaken by The International Leadership as so extensively articulated in this book.

The call for one supreme body to act as a referee to all bodies in the international system is not new. It was this same need that influenced great thinkers of the past such as Hugo Grotius (1583-1645) who, because of the anarchical tendencies evidenced by the Armada War (1588) between Spain and England whereby the latter sought to challenge the former’s sovereign monopoly claim over the entire Western Hemisphere,i resolved to codify and publish specific norms under the title De Jure Belli Ac Pacis Libri Tres (March,1625) in order to give the existing nations of that time a modus operandi by which each would liberally associate, interact and transact business with others as civilized nations without any discrimination in the International System. It was by the virtue of this treatise that the International System now began to realize and recognize the essence and significance of a norm called International Law to regulate order and peaceful co-existence between and among its members who by virtue of The Peace Treaty of Westphalia (1648) came now to be recognized as "nation states".

But the existence of such treatise alone was not enough. It also required a supreme body above sovereignty of all those nation states to act as a referee and regulate their interaction into order(or orderly conduct) using this treatise. Hence the creation of the Concert of Europe on the advice of the same Hugo Grotius as follows:

"It would be advantageous, indeed in a degree necessary,

to hold certain conferences of Christian powers,

where those who have no interest at stake may

settle the disputes of others, and where,

in fact, steps may be taken to compel parties to

accept peace on the fair terms".ii

But Hugo Grotius’ effort is not alone. As far back as the generation of Ur-Nammu (2060 BC) and Hammurabi (1792-1750 BC) in Persia as well as the generation of the architects of the first treaty ever known in the International Relations viz: The Egypto –Hittite Treaty of Non-Aggression (1284 BC), all those great thinkers called for a single supreme body to regulate peace and order between and among individuals and peoples or nations alike.

It is, in fact, this body which according to Thomas Hobbes (1588-1679) characterized as a Leviathan (1651) - - a third party with a status of a supreme sovereignty empowered to do all that pertains to its supreme authority entrusted to it by all its subjects under it to sustain and restore peace and order whenever this two are disturbed by any of its subjects.iii

And that any failure or in absence of such a body in the International System; given the anarchical nature of nation states characterized by perennial lawlessness, e.g. self-seeking passions leading to impunity, aggression, anti- pacta sunt servanda passions, and various other politically unhygienic acts against the systemic eufunction (i.e., a normal functioning) of the International System, Humanity is an automatic endangered species.

Given the highly destructive war weaponry that man has today discovered and developed, called thermo-nuclear, our Earth Planet would be doomed as both Cities of Sodom and Gomorrah were done in 2000 B.C. into a Dead Sea that we see today if immediate remedial measures were not taken appropriately.

In this regard, the call for an immediate revival of the authority status of the United Nations by its Member states in terms of their attitude vis a’ vis this World Body by appreciating its existing status to a new higher status is timely.

It is extremely necessary in order to save Humanity from this real potential danger manifested in man’s present extremely destructive war weaponry on the one hand, and the anarchical tendencies of its members influenced by the principles of sovereign equality and domestic jurisdiction on the other and using veto powers as a weapon.

Professor Agola Auma-Osolo

FOREWORD – PROF. AGOLA AUMA-OSOLO

Happy life enjoyed in peace and prosperity is a right enshrined in the Bible. This right has been voiced by prophets, prophetesses, philosophers, statesmen, jurists, scientists and humanity in general. Indeed, in efforts to ensure this fundamental right is upheld, The United Nations was founded in 1945 with a mandate to be the Chief Custodian of World Peace and Security. Despite the recognition, different forms of conflicts are occurring within international community unabated. The conflicts are driven by the obsessive self-seeking passions for national interests, usually manifested in terms of power. Such powers are packaged in flowery languages like sovereign equality and domestic jurisdiction, in which the fittest survives at the expense of the weaker powers. The guest of these powers have produced catastrophic events including World War I and II, as nation states became incapable of living together in peace and prosperity. The tragedy arises from man’s paradoxical nature:- the quest for both peace and war. Despite man’s ability to lead quality of life superior to all other members of Animal Kingdom, man is perpetual slave of his own double standard nature. Man is forever dishonest, leading to failure of the achievement of the wishes of the Founding Fathers of The United Nations as outlined both in the Preamble and the entire Charter. In this book, Prof. Agola Auma-Osolo examines and gives insights into plausible mechanisms for the revival of the original role of The United Nations through depreciation of the supremacy of sovereignty and legitimacy of nation states and appreciation of the sovereignty and legitimacy of The United Nations. The approach could be cost effective as nation-state’s authoritative responsibility over her inter-citizen interaction within its nation-state jurisdiction, can be revitalized by the World Body possessing authoritative responsibility over its inter-state interaction, including activities of all non-state actors within its International Jurisdiction. This could pre-empt conflicts and tendencies of certain temporary actor(s) from resorting to activities that could destroy world peace like thermonuclear, biological wars or any other means such as mass terrorism/genocides, etc.

Prof. Philip Okinda Owuor

Professor of Chemistry and

Dean, School of Graduate Studies and Research

Maseno University

FOREWORD

Many books have been written which deal with subjects covered in this volume by Professor Agola Auma-Osolo but we must acknowledge the fact that this book by an African intellectual of Professor Auma-Osolo caliber is perhaps the first attempt in a difficult and controversial legal and political study which is expected to contribute significantly in understanding the position of the United Nations Organization’s seventy years in history.

As a teacher of international relations, diplomacy and international law and author and authority on the subject under review, Professor Auma-Osolo’s revelations and recommendations contained in his book, "United Nations as Applied to Intervention Within the Framework of Article 2, Paragraph 7 of the UN Charter." must not be taken lightly.

Professor Auma-Osolo analyses selected cases to establish the understanding reality of the danger of principles of Sovereign Equality and Domestic Jurisdiction against the UN Mandate and for total humanity.

Despite the existence of hundreds of books written about the World Body, this book is designed to illustrate the "might" of the United Nations forces in specific areas such as Palestine, Cyprus and the Congo in terms of its efforts and excellence as an instrument of world peace and security in keeping with the wishes of the UN Founding Fathers reflected in The Preamble of The UN Charter.

A survey of seventy years in the legal and political history of the United Nations brings to mind serious difficulties the Organization has so far suffered at the hand of certain insincere political class acting as advocates of the principles of the Sovereign Equality and Domestic Jurisdiction for their political ends in contravention of the intended purposes of the UN as per the wishes of the UN Founding Fathers. But Professor Auma-Osolo has attempted to overcome this difficult by presenting his facts in simple and in a readable language which can assist to understand and interpret the legal framework of the United Nations that must be honored.

This book by the diplomat and teacher of political science and International law is must read for students of the international law at both undergraduate and graduate levels. It is also a welcome read by the general reader who wishes to re-sharpen their curiosity in world affairs.

Shem S. Balongo,

Advocate of The High Court of Kenya;

Former Commissioner, Electoral Commission of Kenya (ECK); and

Retired Chancellor, The Diocese of Nambale, Anglican Church Of Kenya (ACK).

I: INTRODUCTION

1. Problem

Out of all ornaments of the United Nations (UN) such as name, titles, flag, symbols, infrastructures, machinery, personnel, and other various elements or manifestations of the glory and majesty of the Organization, none of them may be as much meaningful and informative enough for one to understand and appreciate fully about its real unique significance to Mankind as the actual circumstance(s) that led to its creation which, therefore, constitute(s) the real fundamental basis of its special legitimacy; authority; supremacy; and above all, its unique sacrosanct role and status above the role and status of all other members of the International System. This includes, e.g., why and how it came into being; by whom and when; and above all, for what purpose that all other existing members of the System were found totally unable to do for themselves and the whole System.

This deficiency in our global understanding of this Organization is obviously the actual nucleus of all obstacles that have always faced and challenged it ever since its inception in 1945. And, this deficiency could possibly have forced it to extinction as also evidenced by a myriad of unbearable viruses astonishingly generated by the same man who created it to save him from the same agonies of war that made him to create it. That this World Body has managed to persistently exist to this day so far is obviously unbelievable. Its survival must solely have been by the grace of God; and, therefore, a remarkable achievement indeed. Thus, the paradox of mankind - -ready to create for his survival but again ready to disown and kill what he has himself created for that very purpose!!

Granted! But why and how did the UN come about? What unique or so special circumstance(s) that might have led to its creation so that one may be in a better position to understand and appreciate the significance of its creation and existence in order to reverence and support it fully?

The following retrospective analysis about it is, therefore, very crucial indeed in order to unveil those existing darkness covering reasons why this World Body was actually created; and enable one to recognize and appreciate the significance of its creation, authority and legitimacy. This action is necessary so that this Organization may be well understood and its functions and legitimacy appreciated and recognized fully globally by not only states which are its actual members but also individual persons alike. This may be the long time needed antibiotics against the viruses that have always been hindering satisfactory success of the UN’s functions, authority and legitimacy ever since its creation in 1945. And it is, therefore, expected that those who are still living in thick darkness ready to oppose its functions, authority and legitimacy such as the Sudanese President Omar al- Bashir and others who, in spite of their proven crimes against humanity, have chosen to disregard all that and trash into the dustbin all indictments by the International Criminal Court (ICC) in Rome, will now be able to be flashed out of those darkness by this light so that they may now come out in the open and join the crusade in support of not only this Organization’s functions, authority and legitimacy for the good of Humanity but also in support and appreciations of/for the most extraordinary and exemplary sacrifice of The Organization’s Founding Fathers from the agonies of the pains of War they encountered as also noted in The Preamble of The UN Charter.

In the same vein, it is also hereby expected that on the strength of this revelation on the origin and significance of the authority and legitimacy of this World Body due to the mandate bestowed upon it by The Founding Fathers as so vividly documented in both The Preamble and The Charter itself, i.e., to save this and succeeding generations from the scourge of war, President al- Bashir and the like him will all emulate the obedience model of The Kenyan President Uhuru Kenyatta, his Deputy President William Ruto and their co-accused, Joshua Sang, who have willingly accepted to lay down their self-pride, etc and report in person to the ICC at The Hague and answer all charges against them by the ICC. President Al-Bashir and all others of his mentality ought to recognize that the obedience of his counterpart in Kenya is neither an act of cowardice nor an act of compliance to the Rule of International Law and Justice alone. Also, it is an act of honoring the aim and efforts of those tear-flowing Founding Fathers of this World Body (UN) as so vividly documented in both The Preamble and Principles of The UN Charter. Their acts are a full manifestation and testimony of their maturity, full understanding and appreciations of the pains and lamentations of The UN Founding Fathers and the latter’s SOS Call to the entire Civilized World to recognize the aim, authority and legitimacy of The UN if this Planet is to be saved from certain leaders’ dangerous abnormal survival of the fittest political passions defined in terms of the scramble for power and wealth accumulation that had sought to destroy total Humanity during World War I and World War II under the influence of such passions.

It is submitted that