Article 39 of the United Nations Charter reads:
“The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”
If one nation attacks another using cyber weapons, then is it possible for the UN Security Council to become engaged?
The existence of the Franco Government ("The Spanish Question") was considered in 1946 by the Security Council. Article 39 was considered as regards the "distinction between imminent and potential 'threats to the peace' ". The UNSC Sub-Committee on the Spanish Question stated in its report (1 June 1946) that "the activities of the Franco Régime do not at present constitute an existing threat to the peace within the meaning of Article 39 . . . nevertheless such activities [are] . . . likely to endanger the maintenance of international peace and security". The Security Council then went on to consider Greek Frontier Incidents involving "armed bands". The Indonesian Question involved hostilities between the armed forces of the Netherlands and the Republic of Indonesia. Consideration of the Palestine Question also involved military action.
In the 1960-1963 period, Article 39 was used when Adolph Eichmann was exfiltrated from Argentina to Israel to stand trial for genocide. Argentina had launched a complaint. The race conflict in South Africa also was the subject of a complaint. Territories under Portuguese administration also were subject of concern. South Africa, Portuguese territories and the situation in Southern Rhodesia remained in focus of the UNSC through 1965. Again, these were kinetic conflicts. As the situation in Rhodesia heated up, the Security Council passed Resolution 221 (1966) of 9 April 1966 that declared the situation was a threat to international peace and security. Rhodesia continued to endanger international peace and security. (See Resolution 277 of 18 March 1970) It took the strong measure to calling for a cut off of petroleum. Concerning the situation in the Democratic Republic of the Congo, the Security Council demanded that countries not allow their territory to be used as a base for interfering in the domestic affairs of other states. (See Resolution 226 (1966) of 14 October 1966) This is similar to language recently adopted as regards cyber.
In the 1972-1974 period, the Security Council made seven decisions on Article 39. These concerned events in Africa (Zambia, South Africa, territories under Portuguese administration, and Senegal), Latin America, and Cyprus.
The Long Term Trend for Article 39
We went through the resolutions adopted by the United Nations Security Council from the mid-1940s until approximately 2010. What they show is that the definition of "threat to international peace and security" has been broadened significantly. See Figure 1.
What the preliminary analysis shows is that in the early days of the United Nations, the Security Council was seized primarily with issues involving military violence. Over time a broader range of threats were considered to be threats to international peace and securing.
What is the implication for cyber conflict? For example, could a "cyber war" or "cyber conflict" be taken up by the Security Council? It appears we can draw the following conclusions:
The Security Council is not limited on what it can declare to be a threat to international peace and security.
Since the Security Council has considered issues as general as economic development and the environment as being a possible threat to international peace and security, there is no barrier to doing the same with cyber.
We should note that already there are many issues being considered already that have a significant cyber component, such as the environment and economic development.
In future posts we will examine the role of cyber weapons in peacekeeping activities of the United Nations, and also in enforcement actions.