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A Constitutional Moment?: United Nations Peacekeeping in the Democratic Republic of Congo

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The United Nations (UN) is the world's most prominent international organization, and a key issue is its responsibility under international law. The contemporary growth in UN powers and activities has not been matched by parallel developments in accountability and checks and balances within the UN legal order. This was recently brought to the fore in the instance of UN peacekeepers providing support to Congolese army forces responsible for serious violations of international humanitarian and human rights law. It became a significant public issue and the Secretary-General eventually withdrew UN support from a unit of the Congolese army. This article demonstrates that this withdrawal of support by the Secretary-General represents a constitutional moment for the United Nations. It confirmed a key premise that the Secretary-General is normatively constrained under the Charter, including by the Organization's obligations, when implementing the decisions of the Security Council. This is a legal development which engages a number of emerging and uncertain areas of international law relating to the United Nations, including the UN's constitutional law, the responsibility of international organizations, the substantive obligations of the Organization, and the role of international law in peace and security. Recognizing this important development not only confirms the Secretary-General's legal responsibility under the Charter, it reinforces the view of the Charter as a living instrument and provides an effective and important means for incorporating the law of responsibility into the UN constitutional order and a check upon the expansive application of the Security Council's implied powers doctrine.

Affiliations: 1: School of Law, Human Rights Centre, University of Essex, United Kingdom; formerly Legal Adviser, New Zealand Permanent Mission to the United Nations, and Vice-Chair, Sixth (Legal) Committee, UN General Assembly for the 63rd Session

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