Article 106 of the United Nations Charter
Cooperstein, Theodore M., Texas Review of Law & Politics
Much has been and will be debated and written about the prospects for reform of the United Nations. The debate and attendant proposals focus on many aspects of the administration and function of the U.N., but they may also extend to fundamental reforms of the United Nations Charter, its structures, and its purposes. Certain portions of the Charter have been overlooked, yet they remain in effect and should be evaluated for their continuing utility, especially in light of persistent issues concerning how the U.N. and the Security Council should or might play a role in the use of force and international security enforcement as the United States pursues the global War on Terror. In prosecuting the War, the United States must confront the issue of how it can, if at all, work with the United Nations' structure to do what needs to be done and how, if at all, the U.N. can restore or attain its original purposes.
Article 106 of the United Nations Charter is an often overlooked and little-remarked provision. The Article's dormant history belies the greater expectations held for it from its creation. The persistent presence of the Article also raises the question of its continued or potential relevance to the operation of the United Nations.
Any comprehensive review and evaluation of the United Nations will necessarily entail an assessment of the original purposes and goals of the founding Great Powers and the subsequent failure or success of the U.N. to live up to its goals and intentions. The Allied Powers of World War II sought to foreclose future world wars through an international system of collective security, envisioned to retain and build upon the coordination and planning among the Four Powers that led the Second World War against the Axis Powers. Toward that end, Articles 42 and 43 of the United Nations Charter posit that member nations would train and dedicate armed forces to be placed at the disposal of the United Nations security Council, pursuant to agreements that those member nations would reach with the Security Council.1 Just as the Big Four-the United States, Britain, the Soviet Union, and China-would confer and coordinate their war against the Axis, the Security Council-led by its permanent five members, the Big Four plus France-was expected to continue a combined leadership role to maintain international peace and security.
The envisioned mechanism of Articles 42 and 43 would, of course, take time to negotiate and implement. And in the meantime, even as the United Nations organizational conferences took place in 1945, the Second World War raged on. To permit the continued prosecution of the War, as well as to provide for the interim period before the fully envisioned enforcement mechanism came into operation, the United Nations Charter contained transitional or interim provisions, including Article 106.
For many reasons outside the scope of this essay, the envisioned mechanisms of Articles 42 and 43 of the Charter never came into effect.2 Amidst the polarization of the Cold War, no member nations entrusted armed forces to the Security Council in accordance with Articles 42 and 43.3 The stated precondition for the lapse of Article 106, therefore, never occurred, and the Article remains in place to this day.
An examination of Article 106, its origins, intentions, practice, and commentary, can therefore inform any review and reform of today's United Nations. In particular, as the United States in the twenty-first century international setting considers the use of force, this aspect of the Charter can factor into United States' consideration of the United Nations and its relevance to how the United States should approach those uses of force. Article 106 is an overlooked means by which the United States could work within the United Nations Charter while still circumventing anticipated obstacles in the U.N. Security Council; in essence, Article 106 is an established escape clause that bears notice. …