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Use of Economic Sanctions under International Law: A Contemporary Assessment

Published online by Cambridge University Press:  09 March 2016

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Summary

The growth in the use of collective economic sanctions in the post-Cold War epoch calls for a re-examination of the legal basis and constraints on the implementation of sanctions. This article is an attempt to explore, from a legal point of view, the problems and restrictions associated with sanctions, and to suggest the ways in which economic sanctions can be rendered more legitimate in terms of international legal requirements. It is argued that, in addition to the traditional treaty basis of collective sanctions, a breach of an erga omnes obligation is also a legitimate legal basis for economic sanctions. It is also contended that, in addition to traditional economic considerations, sanctions should be subject to other limitations such as respect for principles of international humanitarian law. After determining the restrictions on the implementation of sanctions, the author makes proposals for refining current practices in imposing economic sanctions. In conclusion, it is argued that collective sanctions have the potential of being used in a more humane and institutionally coherent way.

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Articles
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Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 2002

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References

1 The Law of Nations; or Principles of the Law of Nature: Applied to the Conduct and Affairs of Nations and Sovereigns: A Work Tending to Display the True Interest of Powers, trans. from French, new edition (London: G.C.J and J. Robinson, and Whieldon and Butterworth, 1793) at 267, para. 354.

2 Of course, economic sanctions have been used for centuries in international relations. There are a myriad of historical examples of situations in which sanc-tions have been used. See Colbert, E. S., Retaliation in International Law (New York: King’s Crown Press, 1948) at 10 Google Scholar; Carter, B. E., International Economic Sanctions: Improving the Haphazard U.S. Legal Regime (Cambridge: Cambridge University Press, 1988) at 8, note 2Google Scholar; Phillipson, C., The International Law and Custom of Ancient Greece and Rome, vol. 2 (London: McMillan and Company, 1911) at 383 Google Scholar; Doxey, M. P., Economic Sanctions and International Enforcement, 2nd edition (New York: Oxford University Press, 1980) at 10.CrossRefGoogle Scholar

3 Such a study will necessarily take into account the economic and political implications of imposing sanctions.

4 Brierly, J. L., “Sanctions,” in Lauterpacht, H. and Waldock, C. H. M., eds., The Basis of Obligation in International Law and Other Papers by the Late James Leslie Brierly (Oxford: Clarendon Press, 1958) 201 at 202 [emphasis in original]Google Scholar. For the difference between sanctions in international law and sanctions in general, see Scelle, G., Droit international (Manuel de droit international public) (Paris: Éditions Domat-Moncherstien, 1948) at 865.Google Scholar

5 Charter of the United Nations, June 26, 1945, Can. T.S. 1945 No. 7 [hereinafter Charter].

6 At the outset, the meaning of the term “sanction” in the context of this article should be clarified. The following text will examine “economic sanctions” as opposed to other types of non-violent sanctions. For different types of non-violent sanctions, see Doxey, M. P., International Sanctions in Contemporary Perspective (New York: St. Martin’s Press, 1996) at 1115 Google Scholar. The term “economic sanction” can refer to “boycott,” “embargo,” and “countermeasure.” These terms are often used interchangeably. However, in most cases, they refer to unilateral sanctions. See Daoudi, M. S. and Dajani, M. S., Economic Sanctions (London: Routledge, 1983) at 2 Google Scholar; Holland, T. M., Lectures on International Law, edited by Walker, T. A. and Walker, W. L. (London: Sweet and Maxwell, 1933) at 239 Google Scholar; Kuyper, P. J., The Implementation of International Sanctions (Alphen aan den Rijn: Sijthoff and Noordhoff International Publishers, 1978) at 1 Google Scholar. The International Law Commission’s [hereinafter ILC] commentary entitled Draft Articles on Responsibility of States for Internationally Wrongful Acts clariies the terminology in the ield. It is contained in the Report of the International Law Commission on the Work of Its Fifty-Third Session, UN GAOR, 51st Sess., Supp. No. 10, UN Doc. A/56/10 (2001), which is available online at <http://wvww.un.org/law/ilc/reports/2001/english/a_56_10e.pdf> (date accessed: October 14, 2001) at 181, para. 3 [hereinafter ILC’s Report on Fifty-Third Session].

7 Implementation of economic sanctions may have different objectives. Any evaluation of the effectiveness of sanctions as well as the decision to terminate their application depends on the attainment of their objectives. These issues are not dealt with in detail in this article. See Daoudi and Dajani, supra note 6 at 161; Miyagawa, M., Do Economic Sanctions Work? (New York: St. Martin’s Press, 1992) at 89, 91–93Google Scholar; Joyner, C. C., “Sanctions and International Law,” in Cortright, D. and Lopez, G. A., eds., Economic Sanctions, Panacea or Peacebuilding in a Post-Cold War World (Boulder: Westview Press, 1995) 73 at 74Google Scholar; Joyner, C. C., “Sanctions, Compliance and International Law: Reflections on the United Nations’ Experience against Iraq” (1991) 32 Va. J. Int’l L. 1 at 3Google Scholar; Hufbauer, G. C., Schott, J. J., and Elliott, K. A., Economic Sanctions Reconsidered: History and Current Policy, vol. 1, 2 nd ed. (Washington, DC: Institute for International Economics, 1990) at 163 Google Scholar; Doxey, supra note 6 at 54–65.

8 According to some writers, the above-mentioned sanctions and embargoes are negative sanctions, as opposed to positive sanctions or incentives ( Kuyper, P. J., “International Legal Aspects of Economic Sanctions,” in Sarcevic, P., van Houtte, H., eds., Legal Issues in International Trade (London: Graham and Trotman, 1990) 145 at 145.Google Scholar

9 Unilateral sanctions — unlike collective sanctions, which are treaty-based — are based on the theory of retaliation and are usually imposed by an individual state. For the theory of retaliation, and the conditions for its application (prior breach, prior demand for redress, and proportionality), see Schachter, O., International Law in Theory and Practice (Dordrecht: Martinus Nijhoff Publishers, 1991) at 185 Google Scholar; Bowett, D. W., “International Law and Economic Coercion” (1976) 16:2 Va. J. Int’l L. 245 at 252Google Scholar; Brownlie, I., System of the Law of Nations: State Responsibility, part 1 (Oxford: Clarendon Press, 1983) at 60 Google Scholar. These conditions are confirmed in several cases, see, for example, S.S. Wimbledon Case (1923), P.C.I.J. (Ser. A) No. 1, 15 at 30 and 33; The Spanish Zone of Morocco Claims (Great Britain v. Spain) (1925), II R.I.A.A. 615 at 641; Case Concerning the Factory at Chorzów (Claim for Indemnity Merits) (Germany v. Poland) (1928), P.C.I.J. (Ser. A) No. 17, 3 at 29; Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, [1949] I.C.J. Rep. 174 at 184; Corfu Channel Case (United Kingdom v. Albania), [1949] I.C.J. Rep. 4 at 23; the Naulilaa Case (Portugal-Germany) (1928), II R.I.A.A. 1013 at 1025–26); North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), [1969] I.C.J. Rep. 3; Cases Concerning the Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and French Republic (1977), XVIII R.I.A.A. 3; Case Concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiria), [1982] I.C.J. Rep. 18. For more on the further division of unilateral sanctions to reprisals and retorsion, see Bowett, D. W., “Economic Coercion and Reprisals by States,” in Lillich, R. B., ed., Economic Coercion and the New International Economic Order (Charlottesville: Michie Company, 1976) 7 at 14–15Google Scholar; Elagab, O. Y., The Legality of Non-Forcible Coun-termeasures in International Law (New York: Oxford University Press, 1988)Google Scholar; Schachter, supra note 9 at 185–86; ILC’s Report on Fifty-Third Session, supra note 6 at 325, para. 3. See also the Declaration of Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, October 24, 1970, GA Res. 2625 (XXV), UN GAOR, 25th Sess., Supp. No. 28, UN Doc. A/8028 (1970) 121.

10 Brown-John, C. L., Multilateral Sanctions in International Law: A Comparative Analysis (New York: Praeger Publishers, 1975) at 45 Google Scholar. Other criteria suggested for this category of sanctions — which distinguish them from other types of sanctions imposed by a group of states — are: (1) the decision-making body must be universally or regionally international; (2) its membership should normally encompass all states within the universal or regional system; (3) the organization must have a formally constituted body with express powers to make mandatory decisions; (4) the organization must have a procedure for formally reaching an obligatory decision; and (5) the organization must be considered as definitive or authoritative in its sphere of international activity (at 46).

Applying such criteria, sanctions imposed by the European Economic Community (which serves the economic and political interests of its European members), the activities of the North Atlantic Treaty Organization, and the Arab League are unilateral sanctions. Sanctions imposed under the auspices of the Security Council, the Organization of American States [hereinafter OAS], and the United Nations specialized agencies — if they are oriented towards inter-national peace through legal processes — are collective sanctions.

11 International organizations should meet the criteria mentioned in note 10 for their actions to be considered to be collective sanctions.

12 Another important example of collective sanctions are those imposed by the OAS on its member-states. However, in the case of the OAS, it is doubtful whether the organization is entitled to determine that the economic sanctions are compulsory or recommendatory. According to Article 8 of the Inter-American Treaty of Reciprocal Assistance, September 2, 1947, 21 U.N.T.S. 77 (comprising the Dominican Republic, Guatemala, Costa Rica, Peru, El Salvador, and so on):

For the purposes of this Treaty, [in case of a conflict between two or more American States] the measure on which the Organ of Consultation may agree will comprise one or more of the following … partial or complete interruption of economic relations or of rail, sea, air, postal, telegraphic, telephonic, and radiotelephonic or radiotelegraphic communications; and use of armed force.

In the case of the Dominican Republic, in 1960, the organization applied compulsory economic measures against that state, but in the case of Haiti, the action was recommendatory (see Acevedo, D. E., “The Haitian Crisis and the OAS Response: A Test of Effectiveness in Protecting Democracy,” in Damrosch, L. F., ed., Enforcing Restraint: Collective Intervention in Internal Conflicts (New York: Council on Foreign Relations Press, 1993) 119 at 135–37.Google Scholar

13 Joyner, C. C., “Collective Sanctions as Peaceful Coercion: Lessons from the United Nations Experience” (1995) 16 Aus. YB. Int’l L. 241.Google Scholar

14 There are few instances of actions taken under Article 39 since 1945. However, the end of the Cold War provided the Security Council with the opportunity to play the role that the Charter envisioned for it. There were only two cases of centralized sanctions in the first forty-five years of the United Nation’s existence, South Africa and Rhodesia. Since the 1990s, there has been a dramatic increase in the number of such sanctions.

15 Article XVI of the Covenant of the League of Nations, June 28, 1919, 2 U.S.B.C. 48 (entered into force January 10, 1920) Part 1: Treaty of Peace between the Allied and Associated Powers and Germany [hereinafter Covenant of the League of Nations].

16 See Simma, et al., eds., The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 1994) at 606 Google Scholar. See also Clark, E., ed., Boycotts and Peace, a Report by the Committee on Economic Sanctions (New York and London: Harper and Brothers Publications, 1932) at xiiiGoogle Scholar; Joyner, , “Sanctions and International Law,” supra note 7 at 80 Google Scholar; Førland, T. E., “The History of Economic Warfare: International Law, Effectiveness, Strategies” (1993) 30:2 J. Peace Research 151 CrossRefGoogle Scholar; Daoudi and Dajani, supra note 6 at 59; Doxey, supra note 2 at 45; Renwick, R., Economic Sanctions (Cambridge, MA: Center for International Affairs, Harvard University, 1981) at 16 Google Scholar; Hufbauer, Schott, and Elliott, supra note 7 at 124–31.

17 See Goodrich, L. M., Hambro, E., and Simons, A. P., Charter of the United Nations: Commentary and Documents, 3rd rev. ed. (New York: Columbia University Press, 1969) at 311.Google Scholar

18 Simma et al., supra note 16 at 607: “This is also conirmed by the fact that the Italian government protested directly to the various states involved in the imposition of sanctions rather than to the organs of the League of Nations.”

19 Goodrich, L. M. and Simons, A. P., The United Nations and the Maintenance of International Peace and Security (Washington DC: Brookings Institution, 1955) at 352.Google Scholar

20 Proposals for the Establishment of a General International Organization, the text can be accessed online at <http://www.ibiblio.org/pha/policy/1944/441007a.html> (last accessed August 6, 2002).

21 For different proposals, see Simma et al., supra note 16 at 607–8.

22 Furthermore, economic sanctions may be implemented in different ways. In the framework of the United Nations, the Security Council enjoys great discretion in implementing different forms of sanctions. The Charter details “an illustrative, non-exhaustive enumeration” of forms of implementation of sanctions (not only economic) and gives the Security Council the discretion to apply any combination of the measures that it considers appropriate (ibid. at 624). Article 41 of the Charter states that

[t]he Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

The measures enumerated in Article 41 are only by way of example, and the Security Council can take measures that are not mentioned in Article 41 . According to Simma et al.’s commentary on the Charter, “[t]he most far-reaching use of Art. 41 ordering measures not listed was made by Resolution 827 (1993) of May 25 1993 setting up the international tribunal for prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of former Yugoslavia” (at 626).

23 The text of Article 41 of the Charter can be found at note 22. However, no resolution of the Security Council has expressly referred to Article 41 of the Charter (Goodrich, Hambro, and Simons, supra note 17 at 313).

24 Article 103 of the Charter stipulates that, “[i]n the event of a conflict between the obligations of the members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter prevail.”

25 See Kunz, J. L., “Sanctions in International Law” (1960) 54 A.J.I.L. 324.Google Scholar

26 Goodrich and Simons, supra note 19 at 351.

27 Ibid. at 348.

28 Article 27(3) of the Charter, supra note 5.

29 Franck, T. M., Fairness in International Law and Institutions (New York: Oxford University Press, 1995) at 220.Google Scholar

30 Goodrich and Simons, supra note 19 at 346.

31 Ibid. at 354.

32 Ibid.

33 Simma et al., supra note 16 at 608.

34 At the same time, the statement read at the conclusion of the meeting of the Security Council held at the level of heads of state and government on January 21, 1992, stated that “[t]he absence of war and military conflicts amongst States does not in itself ensure international peace and security. The non-military sources of instability in the economic, social, humanitarian and ecological fields have become threats to peace and security” (Note by the President of the Security Council, UN Doc. S/23500 (1992), reprinted in 31 I.L.M. 759).

35 Simma et al., supra note 16 at 608.

36 Ibid. at 610.

37 The reason is that Article 2 (4) of the Charter, which prohibits the use of force, applies only to the international relations of states and not to internal situations, which belong to states’ domestic jurisdiction. As a result, the first part of Article 39 does not refer to the use of force in the international realm of states. However, a civil war can lead to a threat to international peace (ibid. at 608–9). For the discussions on this subject during the Palestine question, see Goodrich and Simons, supra note 19 at 355–6.

38 Harris, D. J., Cases and Materials on International Law, 4th ed. (London: Sweet and Maxwell, 1991) at 876 Google Scholar. See also Kooijmans, P. H., “The Enlargement of the Concept ‘Threat to the Peace,’” in Dupuy, R.-J., ed., The Development of the Role of the Security Council; Workshop of the Hague Academy of International Law, 21–23 July 1992 (Dordrecht: Martinus Nijhoff Publishers, 1993) 111.Google Scholar

39 Poland invoked Articles 2( 6) (ensuring that non-member states act in accordance with the UN principles), 34 (Security Council’s investigation of situation that may give rise to dispute), and 35 (bringing matters to the attention of the Security Council) of the Charter, supra note 5, regarding the activities of the Franco regime.

40 Report of the Sub-Committee on the Spanish Question, UN SCOR, 1st Year, 1st Series, Spec. Supp. ( 1946) at 5, cited in Harris, supra note 38 at 874.

41 Report of the Sub-Committee on the Spanish Question, supra note 40 at 10, cited in Jimenez de Arechaga, E., Voting and the Handling of Disputes in the Security Council (New York: Carnegie Endowment for International Peace, 1950) at 163.Google Scholar

42 Charter, supra note 5.

43 Goodrich and Simons, supra note 19 at 355; on Article 34 of the Charter, see the discussion in note 48 of this article.

44 Compare Poland’s position on this issue with her position on the Spanish case. This change of position in a few months shows how political considerations have an impact on the interpretation of the Charter by members.

45 Goodrich and Simons, supra note 19 at 355. It is interesting to note the similarity of the view of this commission to that of the International Court of Justice [hereinafter ICJ] in the Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), [1986] I.C.J. Rep. 14 at 103, para. 195 [hereinafter Nicaragua case], in which the court stated that,

[i]n particular, it may be considered to be agreed that an armed attack must be understood as including not merely action by regular armed forces across an international border, but also the “sending by or on behalf” of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces, or its substantial involvement therein.

46 UN SCOR, 5th Year, No. 28, 486th Mtg. (1950) at 6, cited in Goodrich and Simons, supra note 19 at 356 [emphasis added].

47 This occurred when the Berlin situation was being discussed in the Security Council. UN SCOR, 3rd Year, No. 115, 363rd Mtg. (1948) at 4, cited in Goodrich and Simons, supra note 19 at 356.

48 Another issue in this regard is the distinction between a threat to the peace and endangering peace. The relationship between the concept of endangering the maintenance of international peace and security, as expressed in Articles 34 and 37 of the Charter, with the concept of threat to the peace is not clear. Article 34 of the Charter, supra note 5, states that, “[t]he Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security;” and, according to Article 37:2 of the Charter, “[i]f the Security Council deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security, it shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate.”

In some cases, the Security Council, in its resolution, has spoken of a threat to the peace or a danger to peace without a clear differentiation between them. For instance, in Resolution 567 (SC Res. 567, June 20, 1985, UN Doc. S/RES/567 in (1985) 39 Y.B.U.N. 182), South Africa was condemned because of an act of aggression against Angola, and it was determined that international peace and security were seriously “endangered” (see Simma et al., supra note 16 at 611).

49 Goodrich and Simons, supra note 19 at 346.

50 SC Res. 217, November 20, 1965.

51 SC Res. 221, April 9, 1966.

52 For a criticism of designation of that situation as a threat to the peace, see Fenwick, C. G., “When is There a Threat to the Peace? — Rhodesia,” editorial comment (1967) 61 A.J.I.L. 753.Google Scholar

53 Simma et al., supra note 16 at 612.

54 Ibid.

55 Alternatively, Schweigman proposes the following categories for causes of Chapter VII actions of the Security Council: humanitarian concerns; extradition of alleged terrorists; preventive measures; quasi-judicial measures. See The Authority of the Security Council under Chapter VII of the U.N. Charter: Legal Limits and the Role of the International Court of Justice (The Hague: Kluwer Law International, 2001) at 150–55.

56 See Resolution 825 concerning North Korea (SC Res. 825, May 11, 1993).

57 In my analysis of the recent practice, I have relied, in part, on the categorization of “hard cases” by Thomas Franck: cases that did not involve actual or imminent international military hostilities, but were nonetheless treated by the United Nations as constituting a threat to the peace by Thomas Franck (See Franck, supra note 29 at 222–24). Examples of “easy cases” — where, as opposed to hard cases, the legitimacy of Security Council’s decisions was beyond dispute — are: the Security Council’s intervention in 1948 in Palestine, armed attack by North Korea on South Korea on June 25, 1950, and the 1990–91 crisis following Iraq’s conquest of Kuwait. While Franck uses this categorization to support his arguments about fairness in the Security Council actions, I am using the same categorization to support the conclusion that, in certain cases, the alternative base for imposing collective sanctions — that of sanctions for breach of erga omnes obligations — can be a more compelling justiication for imposing sanctions. For another example of categorization of threats to the peace, see Fielding, L. E., “Taking a Closer Look at Threats to Peace: The Power of the Security Council to Address Humanitarian Crises” (1996) 73 U. Det. Mercy L. Rev. at 551.Google Scholar

58 In Rhodesia, the Security Council decided that the situation constituted a threat to international peace and focused on “the inalienable rights of the people of Southern Rhodesia to freedom and independence.” SC Res. 232, December 16, 1966, para. 4.

59 In the case of South Africa, the Council determined “that acquisition by South Africa of arms and related material constitute[d] a threat to the maintenance of international peace and security.” SC Res. 418, November 4, 1977. In addition to “the military build-up by South Africa and its persistent acts of aggression against the neighboring States,” the decision of the Security Council was taken to react to the violent suppression of segments of the South African people by the government. The preamble of Resolution 418 “strongly condemn[ed] the racist regime of South Africa for its resort to massive violence against and wanton killings of the African people” and “Consider[ed] that the policies and acts of the South African Government [were] fraught with danger to international peace and security” [emphasis added].

60 Franck, supra note 29 at 231.

61 Boutros Boutros-Ghali in his 1992 report states that “[r]espect for human rights is clearly important in order to maintain international peace and security and to achieve social and economic development.” Report of the Secretary-General on the Work of the Organization, UN Doc. GA/47/407 (1992).

62 Sarooshi, D., “The United Nations Collective Security System and the Establishment of Peace” (2000) 53 Current Legal Problems at 626–27.CrossRefGoogle Scholar

63 SC Res. 713, September 25, 1991. In Resolution 713, the Security Council determined that the situation in the former Yugoslavia, where war had broken out between forces of the federal government and the states of Slovenia and Croatia (which had declared themselves independent) constituted a threat to the peace.

64 Franck, supra note 29 at 237 [emphasis in original].

65 SC Res. 733,January 23, 1992. See also SC Res. 751, April 24, 1992, SC Res.767, July 24, 1992.

66 SC Res. 794, December 3, 1992.

67 SC Res. 788, November 19, 1992.

68 SC Res. 864, September 15, 1993. See also SC Res. 1127, August 28, 1997.

69 SC Res. 918, May 17, 1994. See also SC Res. 997, June 9, 1995 and SC Res. 1013, September 7, 1995.

70 SC Res. 1199, September 23, 1998. See also SC Res. 1160, March 31, 1998.

71 The following treaties were mentioned: Agreed Minutes between the State of Kuwait and the Republic of Iraq Regarding the Restoration of Friendly Rela-tions, Recognition and Related Matters, October 4, 1963, 485 U.N.T.S. 321; Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, XCIV L.N.T.S. (1929) 65 (Germany, United States, Austria, Belgium, Brazil, and so on); Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction April 10, 1972, 1015 U.N.T.S. 163, 26 U.S.T. 583; Treaty on the Non Proliferation of Nuclear Weapons, July 1, 1968, 729 U.N.T.S. 161; International Convention against the Taking of Hostages, December 18, 1979, GA Res. 34/146, UN GAOR 34 Sess., Supp. No. 46, UN Doc. A/34/46 (1979) 245.

72 Franck, supra note 29 at 232.

73 In the case of Iraq, this country’s failure to ratify the convention on biological weapons was deemed to contribute to the threat that it posed to international peace and security.

74 In SC Res. 707, August 15, 1991 , the Council took action under Chapter VII of the Charter and “condemn(ed) non-compliance by the Government of Iraq with its obligation under its safeguard agreement with the International Atomic Energy,” and “[r]equire[d] the Government of Iraq … to comply fully and without delay with all its international obligations.”

75 SC Res. 731, January 21, 1992.

76 SC Res. 748, March 31, 1992. This case was considered by some authors as “[t]he most far-reaching use of the notion of threat to the peace” (Simma et al., supra note 16 at 611).

77 SC Res. 1054, April 26, 1996. Resolution 1070 (SC Res. 1070, August 16, 1996) imposed aerial embargo. See also SC Res. 1044, January 31, 1996).

78 SC Res. 1267, October 15, 1999.

79 SC Res. 1373, September 28, 2001; See also SC Res. 1377, November 12, 2001.

80 Franck, supra note 29 at 232.

81 SC Res. 688, April 5, 1991. In 1991, in the aftermath of the Persian Gulf War, the Security Council decided that the Iraqi government’s repression of the Kurdish population threatened international peace and security in the region, because it resulted in the movement of refugees across international borders, but Chapter VII measures were not invoked.

82 Franck, supra note 29 at 235–36.

83 SC Res. 841, June 16, 1993. See also SC Res. 861, August 27, 1993, SC Res. 867, September 23, 1993, SC Res. 873, October 13, 1993, SC Res. 917, May 6, 1994, SC Res. 940, July 31, 1994, SC Res. 944, September 29, 1994, SC Res. 975, January 30, 1995, SC Res. 1048, February 29, 1996, SC Res. 1063, June 28, 1996.

84 SC Res. 1132, October 8, 1997. See also SC Res. 1156, March 16, 1998, SC Res. 1171, June 5, 1998, SC Res. 1181, July 13, 1998, SC Res. 1270, October 22, 1999, SC Res. 1299, May 19, 2000, and SC Res. 11306, July 5, 2000.

85 Goodrich, Hambro, and Simons, supra note 17 at 297.

86 Ibid. at 298.

87 Harris, supra note 38 at 876–77.

88 SC Res. 502, April 3, 1982.

89 Simma et al., supra note 16 at 609.

90 SC Res. 82, June 25, 1950.

91 SC Res. 598, July 20, 1987.

92 SC Res. 660, August 2,1990.

93 SC Res. 713, supra note 63.

94 The more recent case of Ethiopia-Eritrea conflict is one example. It can be considered a “manifest breach of … international peace and security” (Schweig-man, supra note 55 at 150). However, the council determined that it is a threat to regional peace and security and imposed a weapons embargo on both countries. SC Res. 1298, May 17, 2000.

95 Simma et al., supra note 16 at 610.

96 Ibid. at 611; The draft resolution read in part: “Gravely concerned that hostilities continue between India and Pakistan which constitute an immediate threat to international peace and security” (ibid.).

97 Ibid. at 610.

98 Goodrich, Hambro, and Simons, supra note 17 at 298.

99 Much scholarly work has been devoted to the subject of the definition of aggression. The quest dates back to the era of League of Nations. Only in Article X does the Covenant of the League of Nations, supra note 15, expressly refer to aggression (see Stone, J., Aggression and World Order (Berkeley: University of California Press, 1958) at 2740)Google Scholar. For more information on the history of attempts to define “aggression,” see generally Thomas, A. V. W. and Thomas, A. J. Jr. The Concept of Aggression in International Law (Dallas: Southern Methodist University Press, 1972) at 1445 Google Scholar; and, for a general discussion on aggression, see Aroneanu, E., La Définition de l’agression (Paris: Les éditions internationales, 1958).Google Scholar

100 Resolution on the Deinition of Aggression, January 14, 1975, GA Res. 3314 (XXIX), UN GAOR, 29th Sess., Supp. No. 31, UN Doc. A/RES/3314(XXIX) (1974), 142; UN GAOR, 29th Sess., Supp. No. 31, at 142, UN Doc. A/9631 (1974).

101 Nicaragua case, supra note 45.

102 Harris, supra note 38 at 879.

103 Resolution on the Deinition of Aggression, supra note 100 at Article 1.

104 “Act of aggression” should be distinguished from “war of aggression.” According to Dinstein, Y., War, Aggression and Self-Defence, 2nd ed. (Cambridge: Grotius Publications, 1994) at 125 Google Scholar, “[a]n act of aggression may trigger war. However, this is not a foregone conclusion, since aggression may also take the form of an act short of war. When an aggressive act short of war is committed, although a violation of international law occurs, no crime against peace is perpetrated.”

105 Resolution on the Definition of Aggression, supra note 100 at Article 2. According to this article, such circumstances include lack of sufficient gravity.

106 Ibid. at Article 3, which states that among others “invasion or attack by the armed forces,” “any military occupation,” “[b]ombardment by the armed forces of a State against the territory of another State,” and “[t]he blockage of the ports or coasts of a State by the armed forces of another State” are acts of aggression.

107 Harris, supra note 38 at 880.

108 Nicaragua case, supra note 45.

109 See text of article in note 106.

110 Nicaragua case, supra note 45 at 103, para. 195.

111 SC Res. 387, March 31, 1976.

112 Simma et al., supra note 16 at 610.

113 SC Res. 407, April 14, 1977.

114 SC Res. 573, October 4, 1985.

115 SC Res. 577, December 6, 1985.

116 Following Israel’s raid on Iraq’s nuclear installations on June 7, 1981, Resolution 487 of the Security Council condemned the military attack by Israel as a clear violation of the Charter and the norms of international conduct, and expressed its concern about the danger to international peace and security created by the Israeli air attack. However, the Council did not designate Israel’s act as an act of aggression (see SC Res. 487, June 19, 1981).

117 The argument would be that in all the cases of Security Council enforcement actions there has been some international repercussions.

118 The example of the Kosovo crisis was one such situation.

119 See also Dupuy, P. M., “Observations sur la pratique récente des “sanctions” de l’illicite” (1983) 87 R.G.D.I.P. 533–42.Google Scholar

120 This view is reinforced by Articles 40 and 41 (particular consequences of a serious breach of an obligation under this chapter) of Chapter III (serious breaches of obligations under peremptory norms of general international law) of Part 2, as well as Articles 48 (invocation of responsibility by a state other than an injured state) and 54 (measures taken by states other than an injured state) of the Draft Articles on State Responsibility, which is contained in the ILC’s Report on Fifty-Third Session, supra note 6. However, it should be noted that the subject of serious breaches of obligation to the international community as a whole (Part 2, chapter III), and especially Article 54, have been among the outstanding issues in the commission and different views were expressed on these articles (at 33–37). It was even recommended by the open-ended working group on outstanding issues that Article 54 be deleted and replaced by a saving clause (at 36).

121 As D.W. Bowett states, “although in principle these obligations rest on states whenever a crime is committed, and the decision that a crime has been committed is for each state to reach, in practice it is likely that the Security Council will both take the decision and coordinate the sanctions.” Bowett, D. W., “Crimes of State and the 1996 Report of the International Law Commission on State Responsibility” (1998) 9 Eur. J. Int’l L. 173.Google Scholar

122 According to a report prepared by a Committee of the American Branch of the International Law Association,

it is unclear whether the imposition of mandatory economic sanctions requires a determination by the United Nations Security Council, under Chapter VII of the Charter, of a threat to the peace. The uniform practice of the Council, however, has been to make such a determination before imposing mandatory economic sanctions. The authority of the Council, as well as that of such other UN organs as the General Assembly, to recommend economic sanctions is much broader.

See “Report of the Committee on Economic Sanctions: Economic Sanctions and Internal Armed Conflict, Some Salient Problems,” in Proceedings of the American Branch of the International Law Association (New York: International Law Association, American Branch, 1993–94) 45 at 65. Note should also be taken of Article 94(b) of the Charter, supra note 5, which states that “[i]f any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.” A situation may arise in which the ICJ finds a state party to litigation in breach of an erga omnes obligation, and would ask for the Security Council’s action after that party’s failure to comply with the court’s ruling.

123 So far, the Security Council has never attempted to impose sanctions on this basis. It has always used Article 39 to justify collective actions. In the case of the Tehran hostage crisis, the United States attempted to impose sanctions through a Security Council resolution, but failed to do so because of the Soviet veto. The draft resolution would have provided for mandatory sanctions against Iran in accordance with Articles 39 and 41 of the Charter, supra note 5. United States of America: Draft Resolution, UN SCOR, 35th year, Supp. for Jan, Feb., Mar., 1982, UN Doc. S/13735 (1982)at 10. In my view, in this case, an alternative justiication for the imposition of sanctions could have been the breach of an erga omnes obligation by Iran.

124 According to Article 25, “[t]he members of the United Nations agree to accept and carry out the decision of the Security Council in accordance with the pre-sent Charter.”

125 According to Simma et al.’s commentary, supra note 16 at 410, on the Charter:

[a] closer analysis reveals that the opinion according to which Article 25 declares only those decisions to be binding which are taken by the Security Council under Chapter VII, i.e. decisions on enforcement measures, is not tenable. If one followed such a narrow interpretation of Article 25, the whole system set up for the maintenance of peace and within it the position of the Security Council as the organ charged with the primary responsibility for the maintenance of peace … would be weakened, which would clearly run counter to the overall concept of the Charter.

This view is supported by Kelsen, , The Law of the United Nations (New York: Frederick A. Praeger, 1951) at 9798 Google Scholar; see also Bailey, S. D., The Procedure oftheUNSecu-rity Council (Oxford: Clarendon Press, 1975), at 206–10)Google ScholarPubMed and the ICJ’s advisory opinion on Namibia (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), [1971] I.C.J. Rep. 16, at 53–54, paras. 114–16 [hereinafter Namibia case]). The court states that, “[i]f Article 25 had reference solely to decisions of the Security Council concerning enforcement action under Article 41 and 42 of the Charter, that is to say, if it were only such decisions that had binding effect, then Article 25 would be superluous, since this effect is secured by Articles 48 and 49 of the Charter” (at 53).

The court has reached the same conclusion as Kelsen and uses the exact same words as him (only three words differ). However, the court has authoritatively omitted any citation! Yet, this majority opinion of the ICJ judges was not shared by several leading ICJ judges (compare with the dissenting opinions by Judges Fitzmaurice at 292–5, and Gros at 340–1, and separate opinions by Judges Petrén at 136, and Dillard at 165–6). Judge Fitzmaurice states: “If the effect of [Article 25] were automatically to make all decisions of the Security Council binding, then the words ‘in accordance with the present Charter’ would be quite superluous. They would add nothing to the preceding and only other phrase in the Article, namely: ‘The Members of the United Nations agree to accept and carry out the decisions of the Security Council,’ which they are clearly intended to qualify (at 292) [emphasis in original]. In the view of some, this approach does not appear appropriate in the light of the overall structure of the Charter.

See further Simma et al., supra note 16 at 613–14. The view of the majority of the court has not found support in practice. During the discussion of the advisory opinion in the Security Council, many permanent members rejected that view (UN SCOR, 26th Year, 1588th Mtg., UN Doc. S/PV.1588 (1971) para. 18 (Mr. Koscinsko-Morizet, France); UN SCOR, 26th Year, 1589th Mtg., UN Doc. S/PV.1589 (1971) para. 50–53. (Sir Colin Crowe, United Kingdom)); see also Mori, T., “Namibia Opinion Revisited: A Gap in the Current Arguments on the Power of the Security Council” (1997) 4 I.L.S.A. J. Int’l and Comp. L. at 121 Google Scholar and, more recently, Arangio-Ruiz, G., “On the Security Council’s ‘Law Making’” and “Article 39 of the ILC First Reading Draft Articles on State Responsibility” (2000) Rivista di diritto internazionale at 609 and 747, respectivelyGoogle Scholar. Notwithstanding these opposing views, I find the majority opinion of the court persuasive.

126 Judge Petrén in his separate opinion has stated that “it is quite out of the question that in this case the Court is confronted with Security Council decisions invested with binding force for States. They cannot be anything other than recommendations which, as such, obviously have great moral force but which cannot be regarded as embodying legal obligations” (Namibia case, supra note 125 at 136).

127 See the entire discussion in note 120. For a comprehensive study of this issue, see Frowein, J. A., “Reactions by Not Directly Affected States to Breaches of Public International Law” (1994) 248 Rec. des Cours at 345.Google Scholar

128 In addition to the restraints on use of economic sanctions, there are certain problems associated with the enforcement and effectiveness of sanctions. These questions are more relevant in the political analysis of sanctions. See Doxey, supra note 2 at 80–105 and Doxey, supra note 6 at 82–93 and at 91.

129 For a detailed study of this problem, see Caron, D. D., “The Legitimacy of the Collective Authority of the Security Council” (1993) 87 A.J.I.L. 552.Google Scholar

130 Ibid. at 562. On justifications of the veto power of permanent members, see Reisman, W. M., “The Constitutional Crisis in the United Nations” (1993) 87 A.J.I.L. 83 at 83–84 and 98Google Scholar; Goodrich, Hambro, and Simons, supra note 17 at 291. In contrast, see Caron, supra note 129 at 566–68. See also Fassbender, B., UN Security Council Reform and the Right of Veto: A Constitutional Perspective (Hague: Kluwer Law International, 1998) at 197207 Google Scholar; Resolutions 1991 Adopted by the General Assembly, GA Res. 1991A (XVIII), UN GAOR, 18th Sess., Supp. No. 15, UN Doc. A/5515 (1963) 21 . On other questions related to voting and veto in the Security Council, see Simma et al., supra note 16 at 443; Bailey, S. D., Voting in the Security Council (Bloomington: Indiana University Press, 1969) at 1825 Google Scholar; Rudzinski, A. W., “The So-Called Double Veto” (1951) 45 A.J.I.L. 443 Google Scholar; Ewing, M., Justifying Humanitarian Intervention (LL.M. thesis, McGill University, Institute of Comparative Law, 1993) [unpublished] at 83.Google Scholar

It is in response to these challenges that proposals for reform in the UN system and the Security Council have been submitted. Such proposals, including reform of the veto, increasing the membership of the Security Council and increasing the involvement of the General Assembly, will be evaluated in the inal section of this article. These challenges are, however, directed at the composition and practice of the Security Council in general and not merely at the enforcement powers of the Council.

131 Supplement to an Agenda for Peace: Position Paper of the Secretary-General on the Occasion of the Fiftieth Anniversary of the United Nations, UN Doc. A/ 50/ 60; S/1995/1, 25 (1995), para. 68 [hereinafter Supplement to an Agendafor Peace].

132 Caron, supra note 129 at 578.

133 SC Res. 460, December 21, 1979.

134 Letter dated December 12, 1979, from the representative of the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council, UN SCOR, 34th Sess., Supp. for Oct.-Dec. 1979 at 119, 120, cited in Caron, supra note 129 at 581.

135 Letter dated December 14, 1979 from the representative of Madagascar to the President of the Security Council and letter dated December 21, 1979 from the representative of the Union of Soviet Socialist Republics to the President of the Security Council, UN SCOR, 34th Sess., Supp. For Oct.-Dec. 1979, at 119, 120, and 138, cited in Caron, supra note 129 at 581.

136 SC Res. 460, UN SCOR, 34th Sess., Res. and Dec., 2181st Mtg., UN Doc. S/PV.2181 at 2, cited in Caron, supra note 129 at 582.

137 Ibid. The United States position, however, was not exactly the same. It expressed its pleasure that the Council was ter minating its measures and stated that “it was in recognition of that fact that the United States made its recent announcement regarding [termination] of sanctions.” Tanzania, on the other hand, emphasized that any individual interpretation concerning sanctions should not be accepted (at 582).

138 See Caron, supra note 129.

139 See statements of Mr. Pickering, representative of the United States: “It is only here in the Security Council that we could agree to lift sanctions against Iraq” (UN SCOR, 34th Sess., 2977 Mtg., UN Doc. S/PV.2977 (1991) (part II) (closed-Resumption 3) at 301 [provisional]); and statement of Hannay, David Sir, representative of the United Kingdom: “[O]nly the Security Council itself can make that judgement” (ibid. at 313).Google Scholar

140 Caron, supra note 129 at 582–83.

141 Franck, supra note 29 at 218.

142 Ibid.

143 Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiryia v. United Kingdom), Provisional Measures, Order of 14 April 1992, [1992] I.C.J. Rep 3; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiryia v. United States), Provisional Measures, Order of 14 April 1992, [1992] I.C.J. Rep 114 at 142 (separate opinion ofJudge Shahabuddeen) [hereinafter Lockerbie case].

144 See Kennedy, R. F., “ Libya v. United States: The International Court ofJustice and the Power ofJudicial Review” (1993) 33 Va. J. Int’l L. 903.Google Scholar

145 Franck, supra note 29 at 230.

146 The extreme version of this position is best stated by former US Secretary of State, Foster Dulles, John, War or Peace (New York: MacMillan, 1950) at 194–95:Google Scholar

The Security Council is not a body that merely enforces agreed law, it is a law unto itself. If it considers any situation as a threat to the peace, it may decide what measures shall be taken. No principles of law are laid down to guide it; it can decide in accordance with what it thinks is expedient. It could be a tool enabling certain powers to advance their selish interests at the expense of another power.

147 Kelsen, supra note 125 at 287–95; compare with Bedjaoui, M., “Du Contrôle de Légalité des Actes du Conseil de Sécurité” in Nouveaux Itinéraires en Droit: Hommage à François Rigaux (Bruxelles: Bruylant, 1993) at 8387.Google Scholar

148 [emphasis added].

149 Article 1 (1) [emphasis added].

150 See Kennedy, supra note 144 at 906.

151 Kelsen, supra note 125 at 294.

152 Ibid. at 295.

153 As stated in Article 1 (1) of the Charter, supra note 5.

154 Kelsen, supra note 125 at 295.

155 Goodrich, Hambro, and Simons, supra note 17.

156 Namibia case, supra note 125 at 294 (dissenting opinion of Judge Sir Gerald Fitzmaurice) and 340 (dissenting opinion of Judge Gros).

157 Ibid. at 294.

158 Bedjaoui, supra note 147 at 87.

159 Franck, supra note 29 at 219.

160 Ibid. at 219.

161 Ibid. at 220.

162 Hart, H. L. A., The Concept of Law (Oxford: Clarendon Press, 1960) at 120.Google Scholar

163 These resolutions include: SC Res. 687, April 3, 1991, concerning Iraq, which established an observer mission for Iraq and Kuwait, a UN Special Commission for supervising neutralization of Iraq’s chemical or biological weapons, a UN Compensation Commission, and a Sanctions Committee; SC Res. 731 , January 21, 1992, and 748, March 31, 1992, concerning Libya; SC Res. 808, February 22, 1993, and 827, May 25, 1993, on the establishment of an international criminal tribunal; SC Res. 837, June 6, 1993, concerning Somalia; and SC Res. 713, September 25, 1991, concerning the arms embargo on Bosnia and Herzegovina. Thomas Franck has also referred to these resolutions when he reached the conclusion that, in certain cases, the Security Council “has significantly extend[ed] its Chapter VII jurisdiction” (Franck, supra note 29 at 241).

164 Bedjaoui, M., The New World Order and the Security Council: Testing the Legality of Its Acts (Dordrecht: Martinus Nijhoff Publishers, 1994) at 52.Google Scholar

165 Ibid. at 52–53.

166 See ibid. at 32–35. Bedjaoui presents a long list of arguments. Among others, he points out that the organs of the United Nations are not empowered to create new customs through their concordant, consistent, and undisputed practice according to the Charter. Even a plenary and representative organ such as the General Assembly can, at most, make “recommendations” to encourage progressive development of international law (Article 13 of the Charter, supra note 5). On the subject of the rule making power of international organizations, Bedjaoui shares the view according to which, “having been created by states, international organizations themselves create legal rules addressed to various entities, all of whose provisions, however, even if they have their due place within the particular legal order of the organization concerned, are subjected to international law” ( Dupuy, P.-M., Droit international public (Paris: Dalloz-Sirey, 1992) at 127 Google Scholar, cited in Bedjaoui, supra note 164 at 32–33). Bedjaoui also points out that if, like any other international treaty, the Charter may contradict rules of international law, at the very least, it cannot contradict imperative norms of international law. Kelsen, supra note 125 at 294–95, holds that, in order to restore international peace and security, the Security Council may in some cases not be able to act in accordance with international law (use of force under Chapter VII being an example). Bedjaoui, on the other hand, deems it to be impossible for the Security Council to brush aside, when it resorts to use of force, fundamental norms of the law of war (humanitarian law), or on human rights and self-determination of peoples: norms which express principles rooted in the “universal conscience of mankind.” Finally, Bedjaoui believes that today it is no longer possible to draw a distinction between peace and law: “The restoration of peace can only be illusory without the observance of international law.” Bedjaoui, supra note 164 at 35.

167 Bedjaoui, supra note 164 at 35. On the other hand, in 1988, Sonnenfeld wrote, “in its practice the Security Council has adopted only a few resolutions referring expressis verbis to Article 39 … This proves that the content of resolutions negotiated in the Security Council rarely reflects the real situations.” Sonnenfeld, R., Resolutions of the United Nations Security Council (Dordrecht: Martinus Nijhoff Publishers, 1988) at 8991.Google Scholar

168 This is also relected in the following words of Fitzmaurice, Gerald Sir: “This is a principle of international law that is as well-established as any there can be — and the Security Council is as much subject to it (for the United Nations is itself a subject of international law) as any of its individual members are” (Namibia case, supra note 125 at 294 (dissenting opinion ofJudge Sir Gerald Fitzmaurice))Google Scholar. As for Bothe, M., he states that “Les Nations Unies sont basées sur le respect du droit, et il serait inconcevable d’exclure le droit comme facteur déterminant d’un élément clé de leurs activités. Le Conseil de sécurité n’est pas une sorte de pape du droit international: ‘Roma locuta, causa finita’”(“Les limites des pouvoirs du Conseil de sécurité,” in Dupuy, R.-J., ed., supra note 38 at 69)Google Scholar. Such limits should also be borne in mind in connection with the proposal for an alternative legal basis for collective sanctions (for breach of erga omnes obligations).

169 Reisman, supra note 130 at 84.

170 Ibid. at 85.

171 Ibid. at 85–86.

172 Ibid. at 86 [emphasis in original].

173 See Kennedy, supra note 144 at 910. There have been cases of concurrent jurisdiction of the court and the Council over the same issue; The Case Concerning United States Diplomatic and Consular Staffin Tehran (United States v. Iran), [1980] I.C.J. Rep. 3, and the Nicaragua case, supra note 45, are two examples of such a situation. I should also mention Article 36 of the Charter, supra note 5, according to which the Security Council should, as a general rule, refer legal questions pertaining to the paciic settlement of disputes between parties to the ICJ. This provision seems to imply that at least in the cases involving legal questions — that is, in the case of legal disputes as enumerated in Article 36(2) of the Statute of the ICJ — the court can play a role. According to Article 36(2) of the Statute of the ICJ, subject to voluntary recognition of the compulsory jurisdiction of the court by the states party to disputes, the court will in fact have juris-diction in “all legal disputes concerning: (a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if estab-lished, would constitute a breach of an international obligation; (d) the nature or extent of the reparation to be made for the breach of an international obli-gation” (Statute of the International Court ofJustice, June 26, 1945, Can. T.S. 1945 No. 7, at 48).

174 The court’s decision was only in response to a request for interim measures and the question will be considered again in a merits phase. After Libya filed its written pleadings, the United Kingdom and the United States raised objections to the court’s jurisdiction and to the admissibility of the Libyan claims. In two separate judgments handed down on February 27, 1998, on these preliminary objections, the court declared that it had jurisdiction to deal with the merits of the disputes between Libya and the United Kingdom, and Libya and the United States. It based its jurisdiction on Article 14, paragraph 1, of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (with Final Act of the International Conference on Air Law held under the auspices of the International Civil Aviation Organization at Montreal in September 1973), September 23, 1971, 974 U.N.T.S. 177 [hereinafter Montreal Convention], which concerns the settlement of disputes on the interpretation or application of the provisions of this convention. The court also found the Libyan claim admissible and stated that it was not appropriate at this stage of the proceedings to make a decision on the arguments of the United Kingdom and the United States that resolutions of the United Nations Security Council have rendered these claims without object (Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiryia v. United States), Preliminary Objections, Judgment of February 27, 1998, reprinted in I.L.M. (1998) 37 at 590. See also Gray, C.The Lockerbie Case Continues” (1998) Cambridge L. J. 57 at 433.Google Scholar

175 Ewing, supra note 130 at 76.

176 Montreal Convention, supra note 174.

177 SC Res. 731, January 21, 1992.

178 Articles 5(2), 5(3), 7, 8(2), and 11 of the Montreal Convention, supra note 174, were invoked by Libya. The convention has adopted the customary international law rule of aut dedere aut judicare, according to which the alleged offender found in the territory of a contracting state should either be extradited to the country in whose territory the offence was committed or submit the case to its competent authorities for the purpose of prosecution. Libya claimed that it has taken such measures as were necessary to establish its jurisdiction over the offences charged. Libya also claimed that the United Kingdom and the United States by their actions and threats were in breach of their obligations under the Montreal Convention.

179 Lockerbie case, supra note 143 at 8 and 119.

180 SC Res. 748, March 31, 1992.

181 Reisman, supra note 130 at 88.

182 Lockerbie case, supra note 143 at 15 and 126–27. The court, by eleven votes to ive, “[found] that the circumstances of the case are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures” (at 15 and 127).

183 Reisman, supra note 130.

184 Reisman has criticized this reference to Chapter VII as formalistic and as the result of an “unsound constitutional policy reasoning, which may prove to be troublesome in subsequent cases.” In his view, it is enough for the Council to be factually in a Chapter VII mode, and, as such, even recommendations may have the effect of overriding treaty or custom-based rights (that is, Resolution 731 was enough for the court to reach this conclusion) (see ibid. at 87–90).

185 Ibid. at 90 [emphasis in original]. I should emphasize that, according to Article 59 of the Statute of the ICJ, “[t]he decision of the Court has no binding force except between the parties and in respect of that particular case.”

186 Franck, T. M., “The ‘Powers of Appreciation’: Who is the Ultimate Guardian of UN Legality?” (1992) 86 A.J.I.L. at 521.Google Scholar

187 Ibid.

188 Franck, supra note 29 at 243.

189 Franck’s conclusion from the court’s decision is that

[t]he majority and dissent opinions seem to be in agreement that there are such limits and that they can not be left exclusively to the Security Council to interpret. The legality of actions by any UN organ must be judged by reference to the Charter as the “constitution” of delegated powers. In extreme cases, the Court may have to be the last-resort to enjoy the adherence of its members. This seems to be tacitly acknowledged judicial common ground (Franck, supra note 186 at 522–23 [emphasis in original]).

190 Kennedy, supra note 144 at 913.

191 See Article 94(2) of the Charter, which is discussed in note 122.

192 For the text of Article 59 of the Statute of the ICJ, see note 185.

193 See also Bowett, D. W., “Judicial and Political Functions of the Security Council and the International Court of Justice,” in Fox, H., ed., The Changing Constitution of the United Nations (London: B.I.I.C.L., 1997) at 73.Google Scholar

194 Lockerbie case, supra note 143 at 139.

195 See, for instance, the views expressed by two prominent scholars, Franck and Reisman: Franck claims that in its decision on provisional measures in the Lockerbie case, supra note 143, the ICJ “marked its role as the ultimate arbiter of institutional legitimacy” (Franck, supra note 186 at 523). Reisman states that “[h]ard substantive and procedural standards for review of Chapter VII actions are dificult to pinpoint in the Charter. Their very absence, in a context where so much power is assigned to the Council, is telling. A judicial review function, viewed in the formal Charter regime, seems somewhat dificult” (Reisman, supra note 130).

196 Kennedy, in his article on this subject, supra note 144 at 925, has reached the same conclusion, in that he hopes that “Court and Council will continue to complement each other, as required by the spirit of the U.N. Charter, and will remain cognizant of their roles and capabilities, each acknowledging the distinctive competence of the other for addressing particular kinds of disagreements in the international arena.”

197 Such rules were embodied in four Geneva conventions of 1949: (1) Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949, 75 U.N.T.S. 31 (entered into force on October 21, 1950); (2) Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949, 75 U.N.T.S. 85 (entered into force on October 21 , 1950); (3) Geneva Convention relative to Treatment of Prisoners of War, August 12, 1949, 75 U.N.T.S. 135 (entered into force on October 21, 1950); and ( 4) Geneva Convention relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 75 U.N.T.S. 287 (entered into force on October 21 1950).

198 Reisman, W. M. and Stevick, D. L., “The Applicability of International Law Standards to United Nations Economic Sanctions Programmes” (1998) 9 Euro. J. Int’l L. 86 at 94.CrossRefGoogle Scholar

199 Wild, P. S. Jr., Sanctions and Treaty Enforcement (Cambridge, MA: Harvard University Press, 1934) at 219 Google Scholar. In spite of such concerns, for many years the impact of economic sanctions on the population of target states was ignored. The First Report of the Collective Measures Committee enumerates functions of the proposed “co-ordinating committee” for collective economic and inancial measures which includes co-ordination, making speciic recommendations to the Council or the Assembly regarding additions to, and ampliication or modiication of collective economic measures, but considering the human impact of sanctions was not mentioned. See First Report of the Collective Measures Committee, UN GAOR, 6th Sess., C1, 480th Mtg. (Jan. 4, 1952) at 15–16, cited in Goodrich and Simons, supra note 19 at 419.

200 Damrosch, L. F., “The Civilian Impact of Economic Sanctions,” in Damrosch, , supra note 12 at 275.Google Scholar

201 Cassese, A., International Law in a Divided World (Oxford: Clarendon Press, 1986) at 242.Google Scholar

202 In the case of Haiti for instance, “the United Nations observed the legal formalities for implementing sanctions pursuant to the framework set out in the Charter. Yet the organization virtually ignored Haiti’s socio-economic history despite the obvious poverty of the country.” Swindells, F., “U.N. Sanctions in Haiti: A Contradiction under Articles 41 and 55 of the U.N. Charter” (1997) 20 Fordham Int’l L. J. 1878 at 1960.Google Scholar

203 Cuba has criticized economic sanctions imposed by the United States as a policy of deliberate genocide. See “Cuba Condemns US Embargo as Genocide,” which can be found online at <http://news2.thls.bbc.co.uk/hi/english/world/americas/newsid_446000/446761.stm> (date accessed: September 14, 1999).

204 For example, in the case of the UN sanctions against Iraq, the United States claims that Saddam Hussein refuses to distribute food and medicines to his people. Then State Department spokesman James Rubin said: “We often hear that sanctions are hurting the Iraqi people, but an analysis, an objective analysis of the facts reveals that Iraq has access to international markets and the money to buy food, but Saddam will not buy or distribute it to the needy.” Another senior State Department official Martin Indyk said that while the mortality rate continued to rise amongst children, it was not due to a lack of food or medicine as a result of international sanctions: “Those medicines and nutritional supplements are either sitting in warehouses under Saddam Hussein’s control, or he has refused to order them” (“As Iraqis Starve, U.S. Asserts Their Leaders Live in Luxury,” New York Times (September 14, 1999) A8). Another report concerning Iraq states that Iraq is re-exporting the supplies intended for children it says are suffering because of sanctions. In August 1999, Kuwait impounded a small boat, bound for the United Arab Emirates, when it was discovered to contain two-hundred-and-fifty tonnes of baby goods and other supplies. Rubin said Iraq was showing cynical disregard for children’s suffering by exporting baby supplies for hard currency in violation of international sanctions. The official Iraqi news agency said the supplies, including feeding bottles from India and baby powder from China, were of poor quality and were being returned (“Iraq: Mysterious Traffic,” New York Times (August 18, 1999) A14).

205 Letter from Rep. Robert Torricelli to President George Bush ( January 10, 1992), cited in Reisman and Stevick, supra note 198 at note 207.

206 Crossette, B., “Children’s Death Rates Rising in Iraqi Lands, UNICEF Reports,” New York Times (August 12, 1999) A6.Google Scholar

207 “Special Report: Sanction-Breakers Risk Jail,” text can be accessed online at <http://news2.thls.bbc.co.uk/hi/english/special_report/regions/wales/new sid_420000/420544.stm> (date accessed August 14, 1999).

208 The UNICEF report sparked a controversy between Iraq and the United States over who is to blame. Baghdad claimed it proved that sanctions are killing thousands of children every month. The United States alleged that Iraqi inefficiency and obstructionism are also key factors. Carole Bellamy said she would plead the cause of Iraq’s children before the UN sanctions committee (“UNICEF Chief Pleads the Cause of Iraqi Children,” Agence France Presse (October 17, 1999), which can be accessed online at Lexis-Nexis (News. CURNWS)).

209 Ibid.

210 See the following reports: Dreze, J. and Gazdar, H., “Hunger and Poverty in Iraq, 1991” (1992) 20:7 World Development and FAO Nutritional Assessment Mission to Iraq, November 1993Google Scholar, cited in Grey, M., “UN Sanctions against Iraq: The Human Impact” (1994) 70:11 Current Affairs Bulletin 11 at 13.Google Scholar

211 “Sanctions ‘Have Hurt People,’ not Leader,” which can be accessed online at <http://www.irish-times.com/irish-times/paper/1998/0225/wor5.html (date accessed: February 28, 1998).

212 Swindells, supra note 202 at 1955.

213 UN SCOR, 49th Year, 3376th Meeting, UN Doc. SC/5841 (1994) (following the adoption of Resolution 917).

214 Letter dated 13 April 1995 from the Permanent Representatives of China, France, the Russian Federation, the United Kingdom of Great Britain and Northern Ireland and the United States of America to the United Nations addressed to the President of the Security Council, UN Doc. S/1995/300 (1995).

215 General Comment 8: The Relationship between Economic Sanctions and Respect for Economic, Social and Cultural Rights, UN ESCOR, 17th Sess., Annex V, UN Doc. E/C. 12/1997/10 (1998) at 119.

216 SC Res. 661 , August 6, 1990,para. 4.

217 SC Res. 666, September 13, 1990, paras. 6 and 8.

218 SC Res. 687, April 3, 1991, paras 20 and 22.

219 Reuther, D. E., “UN Sanctions against Iraq,” in Cortright, and Lopez, , supra note 7 at 130.Google Scholar

220 SC Res. 706, August 15, 1991; SC Res. 712, September 19, 1991.

221 Dayton Agreement of Implementing the Federation of Bosnia and Herzegovina of 10 November 1995, Republic of Bosnia and Herzegovina and Federation of Bosnia and Herzegovina, 35 I.L.M. 172; General Framework Agreement for Peace in Bosnia and Herzegovina, Republic of Bosnia and Herzegovina, Republic of Croatia and the Federal Republic of Yugoslavia, December 14, 1995, 35 I.L.M. 89.

222 Reisman and Stevick, supra note 198 at 113. For instance, according to Resolution 943, para. 12, international passenger air traffic with Serbia and Montenegro, passenger services to Bari, Italy, and Serbia’s participation in international sporting and cultural exchanges were permitted (see SC Res. 943, September 23, 1994).

223 SC Res. 841 , June 16, 1993.

224 Report ofthe Secretary-General on Haiti, UN Doc. S/26480 (1993).

225 Note by the President ofthe Security Council Concerning the Situation in Haiti, November 15, 1993, UN Doc. S/ 26747.

226 For example, some measures adopted under Resolution 917, May 6, 1994.

227 See Reisman and Stevick, supra note 198 at 122–23. The authors have given two reasons for the international community’s failure to recognize the disproportionately harmful impact of sanctions on the Haitian people; irst, the fact that Aristide strongly supported economic sanctions against his country, and second, Haiti’s strategic insignificance to the great powers on the Security Council (ibid.).

228 Ibid. at 109.

229 UN Security Council Oficial Records, UN SCOR, 47th Year, 3063 Mtg., UN Doc. S/PV.3063 (1992), at 67, 69 and 74.

230 Alabrune, F., “La pratique des comités des sanctions du Conseil de sécurité depuis 1990” (1999) 45 A.F.D.I. at 49.Google Scholar

231 See Pisik, B., “The U.N. Report,” Washington Times (August 30, 1999) A14Google Scholar; “Emirate Calls for Diplomatic Solution to Iraq Crisis,” Agence France Presse (January 26, 1999), which can be accessed online at Lexis-Nexis (News. CURNWS); Bryant, E., “Arab Meeting Ends in Disarray,” United Press International (January 24, 1999)Google Scholar, which can be accessed online at Lexis-Nexis (News. CURNWS); Pisik, B., “U.S. Plan Would Ease Iraqi Pain; Unlimited Oil Sales Would Buy Food,” Washington Times (January 15, 1999) A1Google Scholar; Goshko, J. M., “On Security Council, Mixed Views of Attack; Some Question Action but Also Blame Iraq,” Washington Times (December 17, 1998) A30.Google Scholar

232 Reisman and Stevick, supra note 198 at 95 [emphasis in original].

233 See also the heading “Applying International Humanitarian Law Standards to Sanctions,” later in this article.

234 Regarding the relationship of international humanitarian law and human rights, McCoubrey, H., International Humanitarian Law: Modern Developments in the Limitation of Warfare, 2 nd ed. (Darthmouth: Ashgate, 1998) at 56, states thatGoogle Scholar

[t]here is manifestly a significant degree of convergence between the concerns of international humanitarian law and those of the international law of human rights. However, the precise nature of the interface between these two sectors is a more controversial question. The idea of fundamental entitlements inherent in the human social condition is of ancient provenance, with long roots in the tradition of naturalist jurisprudence, and it has played a prominent role in the constitutional development of some states since the late 18th century. As a distinct sector of public international law, however, the law of human rights has taken shape largely since 1945.

For a comprehensive bibliography on the subject, see International Committee of the Red Cross, Bibliography of International Humanitarian Law Applicable in Armed Conflicts (Geneva: International Committee of the Red Cross and Henry Dunant Institute, 1987).

235 According to this article, “[c]ountermeasures shall not affect … (c) Obligations of a humanitarian character prohibiting reprisals; (d) Other obligations under peremptory norms of general international law.” ILC’s Report on Fifty-Third Session, supra note 6.

236 See Report ofthe Commission to the General Assembly on the Work of Its Forty-Seventh Session, UN Doc. A/ 50/10, in Yearbook ofthe International Law Commission 1995, vol. II, part 2 (New York, United Nations, 1996) (UN Doc. A/CN.4/SER. A/1995/Add.1 (Part 2)) at 72 [hereinafter Commission’s Report on Forty-Seventh Session].

237 Naulilaa case, supra note 9 at 1026.

238 Paragraph 4 of Article 6 of this resolution states that

Dans l’exercice des représailles, l’Etat doit se conformer aux règles suivantes: … 4- S’abstenir de toute mesure de rigueur qui serait contraire aux lois de l’humanité et aux exigences de la conscience publique. “Résolutions votées par l’Institut au cours de sa XXXIXe Session” (1934) 38 Ann. inst. dr. int. 708 at 710.

239 For example, in the case of the United Kingdom’s sanctions against Argentina during the Falkland Islands crisis, funds that would normally be necessary for living, medical, and educational supplies and similar expenses of residents of the Argentine republic in the United Kingdom were not frozen. Or, in the case of United States’s total blockade of trade relations with Libya, an exception was made for the publications and donations of articles intended to relieve human suffering, such as food, clothing, medicine, and medical supplies, which were intended strictly for medical purposes (see Commission’s Report on Forty-Seventh Session, supra note 236 at 73). More recently the United States changed its sanctions policy in line with the concerns over the humanitarian impact of sanctions. Accordingly, humanitarian items will be exempted from future sanctions. Under-Secretary of State Stuart Eizenstat told reporters: “[S]ales of food, medicine and other humanitarian necessities do not generally enhance a nation’s military capacity or support terrorism … our purpose in applying sanctions is to influence the behavior of regimes, not to deny people their basic humanitarian needs.” “U.S. Eases Policy on Some Sanctions,” New York Times (April 21, 1999) A1 and A12.

240 This is also in line with the regime of the Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 311 (entered into force January 27, 1988) in Article 53, which states that “[a] treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.” Prohibition of countermeasures that are in contravention of a peremptory norm of general international law encompasses some of the prohibited countermea-sures mentioned earlier in the text. The reason is that there is a certain overlap between the spheres of human rights and jus cogens in general. Certain general rules protecting speciic human rights (including racial discrimination, apartheid, slavery, genocide, and the self determination of peoples) have been described as peremptory norms (see Cassese, supra note 201 at 149). See also Judge Tanaka’s dissenting opinion in the South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa) Second Phase, Judgement, [1966] I.C.J. Rep. 5 at 298, in which he states that “surely the law concerning the protection of human rights may be considered to belong to the jus cogens.”

241 Commission’s Report on Forty-Seventh Session, supra note 236 at 74 [footnote omitted]. See also Alland, D., “International Responsibility and Sanctions: Self-Defence and Countermeasures in the ILC Codiication of Rules Governing International Responsibility,” in Spinedi, M. and Simma, B., eds., United Nations Codification of State Responsibility (New York: Oceana Publications, 1987) 143 at 185Google Scholar; and Elagab, supra note 9 at 99.

242 For this very reason, the Draft Articles on Responsibility of States for Internationally Wrongful Acts do not contain a list of peremptory nor ms, and the commentary in the ILC Draft Article 40 points out that the examples given in this commentary are not exhaustive (see ILC Report on Fifty-Third Meeting, supra note 6 at 283, paras. 4 to 6). The ambiguity exists especially as to which breaches of human rights obligations, other than slavery, genocide, and apartheid — often-cited examples — constitute international crimes.

243 “Impact of Armed Conflict on Children: Note by the Secretary-General” (A/51/306), annex, para. 128, cited in General Comment 8, supra note 215 at 120.

244 Minear, L., et al., Toward More Humane and Effective Sanctions Management: Enhancing the Capacity ofthe United Nations System (Providence: Thomas J Watson Jr. Institute for International Studies, 1998) at vii.Google Scholar

245 See Paul, J. A., “Sanctions: An Analysis,” text can be accessed at <http://www.globalpolicy.org/security/sanction/analysis.htm> (date accessed November 28, 1998).+(date+accessed+November+28,+1998).>Google Scholar

246 See, for example, Note by the President of the Security Council on Greater Recourse to Open Meetings ofthe Security Council, October 30, 1998, UN Doc. S/1998/1016. Note by the President of the Security Council on Improvements to Make Procedures of the Sanctions Committees More Transparent, March 29, 1995, UN Doc. S/1995/234. Note by the President of the Security Council on Improvements to Make Procedures of the Sanctions Committees More Transparent, January 24, 1996, UN Doc. S/1996/54. Note by the President of the Security Council: Work of the Sanctions Committees, Januar y 29, 1999, UN Doc. S/1999/92.

247 Goodrich, Hambro, and Simons, supra note 17 at 343.

248 Kuyper, supra note 8 at 154.

249 The case of Rhodesia is a good example. There, the economies of Zambia and Botswana were affected by the sanctions against Rhodesia and, as a result, they did not apply the sanctions. Renwick, R., Economic Sanctions (Cambridge, MA: Center for International Affairs, Harvard University, 1981) at 46.Google Scholar

250 The problem of third states was addressed before the Charter in a report of the secretary-general of the League of Nations. See Wild, supra note 199 at 145.

251 Simma et al., supra note 16 at 659. However, even non-member states are entitled to consultation under Article 50. Germany, in the case of sanctions against Rhodesia, and Switzerland and Korea, in the case of sanctions against Iraq, have used this right (ibid. at 660).

252 See especially the following Security Council resolutions regarding sanctions against southern Rhodesia: Resolution 253 (May 29, 1968), Resolution 277 (1970), Resolution 329 (1973), in which it was mentioned that Zambia and Mozambique deserved such assistance. The Council followed up its call by sending an expert commission to Zambia to study its problems (see Simma et al., supra note 16 at 660).

253 Schrijver, N., “The Use of Economic Sanctions by the UN Security Council: An International Law Perspective,” in Post, H. H. G., ed., International Economic Law and Armed Conlict (Dordrecht: Martinus Nijhoff, 1994) at 149.Google Scholar

254 SC Res. 661 , August 6, 1990.

255 Simma et al., supra note 16 at 661.

256 SC Res. 687, April 3, 1991 , at 16.

257 On May 2, 1991, pursuant to paragraph 19 of Security Council Resolution 687, the secretary-general submitted a detailed report to the council on the work of the commission and the fund established under the resolution. Report of the Secretary-General Pursuant to Paragraph 19 of Security Council Resolution 687, UN Doc. S/ 22559 (1991), reprinted in 30 I.L.M. 1706. The exemplary categorization of the claims given in paragraph 23 of this report does not contain claims related to economic sanctions. Neither does the letter dated August 2, 1991 from the President of the Governing Council of the United Nations Compensation Commission to the President of the Security Council, UN Doc. S/ 22885 (1991), reprinted in 30 I.L.M. 1711, mention such claims. Later, the Governing Council excluded compensation for losses suffered as a result of the trade embargo and related measures. Decision Taken by the Governing Council ofthe United Nations Compensation Commission during Its Third Session at the Eighteenth Meeting, Held on 28 November 1991, as Revised at the Twenty-Fourth Meeting Held on 16 March 1992, UN Doc. S/23765, S/AC.26/ 1991/7/Reva, reprinted in 31 I.L.M. 1045 at 1046.

258 Alabrune, supra note 230 at 50.

259 Butchkov, P., Kovatcheva, N., and Raytcheva, R., “The Economic and Political Effects of the ‘Yugo-Sanctions’ on Neighbouring Bulgaria,” in Van Genugten, W. J. M. and de Groot, G. A., eds., United Nations Sanctions (Antwerpen: Inter-sentia, 1999) at 35.Google Scholar

260 Schrijver, supra note 253 at 150.

261 See SC Res. 841 , June 16, 1993.

262 Supplement to an Agenda for Peace, supra note 131 , para. 73. See also Resolution on Implementation of the Provisions of the Charter of the United Nations Related to Assistance to Third States Affected by the Application of Sanctions, January 25, 2000, GA Res. 54/107, UN Doc. A/RES/54/107 [hereinafter Resolution for Assistance to Third States].

263 See Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization: Implementation of the Provisions of the Charter of the United Nations Related to Assistance to Third States Affected by the Application of Sanctions, September 23, 1999, UN Doc. A/ 54/383; and Resolution for Assistance to Third States, supra note 262.

264 An Agenda for Peace, infra note 336 at 23.

265 Damrosch, L. F., “The Collective Enforcement of International Norms through Economic Sanctions” (1994) 8 Ethics and Int’l Affairs 59 at 62.CrossRefGoogle Scholar

266 Rosen, A., “Canada’s Use of Economic Sanctions for Political Purposes” (1993) 51 U.T. Fac. L. Rev. 1 at 42.Google Scholar

267 Damrosch, supra note 200 at 277.

268 Kelsen, supra note 125 at xiii.

269 Reisman, supra note 130 at 83.

270 Caron, supra note 129 at 567.

271 See, generally, Fassbender, supra note 130 at 221–75. See also Question of Equitable Representation on and Increase in the Membership of the Security Council, GA Res. 47/62, UN GAOR, 47th Sess., Agenda Item 40, UN Doc. A/RES/47/62 (1993); Question of Equitable Representation on and Increase in the Membership of the Security Council: Report of the Secretary-General, UN GAOR, 48th Sess., Agenda Item 33, UN. Doc. A/48/264 (July 20, 1993) and Add.1 (July 26, 1993), Add. 2 (July 27, 1993) and Add.2/Corr.1, Add. 3 and 4 (September 28, 1993); Resolution 48/26 of December 3, 1994, which was adopted consensually (Draft Resolution A/ 48/L.28); Conference Room Paper by the Bureau ofthe Working Group, UN Doc. A/AC.247/1997/CRP.8, at para. 1; Bailey, S. D., The Procedure ofthe UN Security Council (Oxford: Clarendon Press, 1975) at 167–71Google Scholar; Schweigman, supra note 55 at 288–95. Furthermore, there are some proposals that avoid the modification of the Charter. According to Caron, in order to avoid the complications of amending the Charter and adding new members to the Security Council, the demands of states seeking membership in the Security Council can be satisied through the establishment of informal mechanisms for their involvement in the Security Council activities. See Caron, supra note 129 at 574. Other ways of satisfying the need for change include offering the promise of increased consultations with regional powers and placing some regional powers or representatives of certain groups of states on special Council committees on different issues (ibid.).

272 Supplement to an Agenda for Peace, supra note 131 at para. 68.

273 Caron, supra note 129 at 584.

274 SC Res. 692, May 20, 1991.

275 Caron, supra note 129 at 585.

276 Ibid. at 586.

277 Ibid. at 587. The case of Iraq may be a good example. If the target states feel that no matter what they do the sanctions will remain in place due to the veto of a few members of the Security Council, they will see no point in trying to comply with the Security Council resolutions.

278 Ibid. at 584. Similar solutions are proposed in the Draft Report of the Working Group on General Issues of Sanctions, February 14, 2001, text can be accessed online at <http://wvww.cam.ac.uk/societies/casi/info/scwgs140201.html> (date accessed: October 14, 2001) [hereinafter Draft Report of the Working Group on Sanctions].

279 SC Res.1298, May 17, 2000.

280 See, for example, SC Res. 1343, March 7, 2000.

281 Reisman, supra note 130 at 99.

282 Ibid. Reisman also points out the importance of consultation in international law as a practice that does not give a veto power to the party consulted but, at the same time, is more than mere notification (ibid.).

283 Ibid.

284 Caron, supra note 129 at 575.

285 Ibid.

286 Damrosch, supra note 265 at 62.

287 The possible exercise of supervisory power by the ICJ in the Lockerbie case will be an indirect control, based on the Montreal Convention, supra note 175, and not on the Charter. It is suggested that if there are indirect ways for the court to exercise a judicial control on the Security Council’s actions, there can be a direct control to avoid the problem of haphazard judicial control of some actions and not others (see Bothe, supra note 168 at 80).

288 Bedjaoui, supra note 164 at 129.

289 Ibid. at 130.

290 Bedjaoui has mentioned these efforts, and the related texts can be found in an annex to his book. See ibid. at 55–61 and annexed documents.

291 Chamberlain, J. P., Sohn, L. B., and Woolsey, L. H., “Report of Special Committee on Reference to the International Court of Justice of Questions of United Nations Competence” (44th Annual Meeting of the American Society of International Law, Washington, DC, April 27–29, 1950) (1950) Am. Soc. Int’l L. Proc. 256 at 256–69.Google Scholar

292 Schwarzenberger, G., “Second Report on the Review of the Charter of the United Nations” (Forty-Seventh Conference of the International Law Association, Dubrovnik, August 28, 1956) (1956) Rep. Int’l L. Assoc. 109 at 109–20.Google Scholar

293 Gros, A., “The Problem of Redress against the Decisions of International Organizations” (Proceedings of the International Law Conference, Second Session, Middle Temple Hall, London, October 28, 1950) (1951) 36 Grot. Soc. 30 at 30–31.Google Scholar

294 Wengler, M. W., “Recours judiciare à instituer contre les décisions d’organes internationaux” (La quarante-huitième session de l’Institut de Droit International, Septmber 24, 1957) (1957) 47:2 Ann. inst. dr. int. 274 at 275.Google Scholar

295 See, generally, Bedjaoui, supra note 147 at 93–107.

296 For a comprehensive case study of the work of sanction committees (in the case of Iraq), see Conlon, P., United Nations Sanctions Management: A Case Study of the Iraq Sanctions Committee, 1990–1994 (Ardsley, NY: Transnational Publishers, 2000).Google Scholar

297 Reisman and Stevick, supra note 198 at 140.

298 Letter dated 13 April 1995 from the Permanent Representatives of China, France, the Russian Federation, the United Kingdom of Great Britain and Northern Ireland and the United States of America to the United Nations addressed to the President of the Security Council, supra note 214 at 2–3.

299 General Comment 8, supra note 215 at 122.

300 See Article 103 of the Charter, which is quoted in note 24.

301 See Conlon, P., “Lessons from Iraq: The Functions of the Iraq Sanctions Committee as a Source of Sanctions Implementation Authority and Practice” (1995) 35 Va. J. Int’l L. 633 at 664–65.Google Scholar

302 Ibid. at 666–67.

303 According to Pictet, J., Humanitarian Law and the Protection of War Victims (Leyden: A. W. Sijthoff, 1975) at 28 Google Scholar, “the fundamental principle of humanitarian law is the result of a compromise between opposing concepts: humanity and necessity.” This fundamental principle can very well be applied to economic sanctions.

304 Pierce, A. C., “Just War Principle and Economic Sanctions” (1996) 10 Ethics and Int’l Affairs 99 at 100CrossRefGoogle Scholar. And, in words of Pictet, “[t]he belief is gaining ground that it is the functions of international law to ensure minimum safeguards and humane treatment for all, whether in time of peace or in time of war, whether the individual is in conflict with a foreign nation or with his own community” (Pictet, supra note 303 at 31).

305 In terms of international humanitarian law, necessity and proportionality are principles of jus ad bellum. “The aim of jus ad bellum is to avert and restrain resort to armed force in the conduct of international relations.” Discrimination between combatants and non-combatants is a principle of jus in bello which “is vested with the secondary, but vital, office of mitigating the impact and consequences of those armed conlicts which occur despite the jus ad bellum.” McCoubrey, supra note 234 at 1–2.

306 Reisman and Stevick, supra note 198 at 128–40.

307 Ibid. at 128.

308 Ibid.

309 Ibid. at 129. As an example, they compare the cases of sanctions against Saddam Hussein and Fidel Castro and conclude that a higher level of collateral damage should be legally tolerable for Saddam than for Castro.

310 See ibid. at 130. In addition, the implications for the environment should also be taken into account.

311 Ibid. at 130.

312 Ibid. at 131.

313 Pierce, supra note 304 at 105.

314 See the discussion in note 9 in this article.

315 Pierce, supra note 304 at 106. However, de Hoogh, A., Obligations Erga Omnes and International Crimes (The Hague: Kluwer Law International, 1996) at 268, claims thatGoogle Scholar

[t]o the extent that it concerns itself with the enforcement of prohibitions of the use of force, slavery, genocide and racial discrimination, denial of self-determination, breaches of basic human rights, the criteria for judging proportionality between wrongful acts and responses thereto seem to provide more than enough leeway to justify even the imposition on a State of a complete trade embargo.

316 According to Pierce, supra note 304 at 106:

[t]he sanctions case poses no special conceptual problems in applying the proportionality criterion, which already incorporates many kinds of human suffering to be inlicted and many kinds of human values to be protected and advanced. Thus severe hunger, illness, and other forms of deprivation found in cases of sanctions are included in the traditional concept, which need no basic modiication here.

317 See Reisman and Stevick, supra note 198 at 131. In terms of international humanitarian law, the means of warfare should discriminate between combat-ants and non-combatants. This leads, then, to the problem of deinition of “combatants” and “non-combatants.” See generally Baxter, R. R.1, “The Privy Council on the Qualifications of Belligerents” (1969) 63 A.J.I.L. 290 Google Scholar; Brungs, B.1, “The Distinction between Combatants and Non-Combatants” (1964) Military Law Review 76 Google Scholar; De Zayas, A. M., “Combatants,” in Bernhardt, R., ed., Encyclopedia of Public International Law, vol. 3 (Amsterdam: North-Holland Pub-lishing Company, 1982) 152.Google Scholar

318 General Comment 8, supra note 215 at para. 4. The ILC has also taken note of this subject in its commentary to Article 50 of the Draft Articles of State Responsibility. ILC’s Report on Fifty-Third Session, supra note 6 at 335, para. 7.

319 Reisman and Stevick, supra note 198 at 132.

320 Ibid.

321 Ibid. at 133.

322 See Pierce, supra note 304 at 108; and Reisman and Stevick, supra note 198 at 133.

323 Reisman and Stevick, supra note 198 at 136.

324 Swindells, supra note 202 at 1955.

325 Ibid.

326 General Comment 8, supra note 215 at 119.

327 See also Draft Report ofthe Working Group on Sanctions, supra note 278.

328 Cassese, supra note 201 at 244. According to Cassese, this pronouncement can be in the form of a Security Council resolution designating a situation as a breach of the peace (for example, Resolution 502 (1983) to the effect that Argentina committed a “breach of the peace” in the case of the Falklands/Malvinas), a decision of the competent body of a regional organization (for example, EEC Council of Ministers decision in the same case), or a resolution adopted by a very large majority in the General Assembly (for example, Resolution ES-6/2 on January 14, 1980 deploring the arm intervention in Afghanistan as contrary to the fundamental principles of respect for sovereignty) (ibid.).

329 See Dumas, L., “A Proposal for a New United Nations Council on Economic Sanctions,” in Cortright, and Lopez, , supra note 7 at 187.Google Scholar

330 Ibid. at 191.

331 Even though Dumas who has presented this proposal describes it as “far from utopian,” there is no doubt that reaching an agreement on such a broad range of issues especially involving veto power of the permanent member of the Security Council is impossible. In fact, it is very utopian!

332 In the past, there have been similar proposals for increasing the eficiency of the enforcement of economic sanctions. In the case of sanctions against Rho-desia, the African delegations advanced proposals for the appointment of a commissioner for United Nations sanctions against Rhodesia, who would be responsible to the Security Council and with a broad mandate to coordinate all existing actions under the Security Council sanctions resolutions. This proposal failed (see Zacklin, R., The United Nations and Rhodesia, a Study in International Law (New York: Praeger Publishers, 1974) at 99).Google Scholar

333 Swindells, supra note 202 at 1955, 1956.

334 In the case of Haiti, agencies and organizations working in Haiti proved to be the most useful in helping to monitor the impact of sanctions on the target’s population by the information, constructive comments, relevant input that they provided (ibid. at 1956).

335 Article 68 states that “[t]he Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence. Such arrangements may be made with international organizations and, where appropriate, with national organizations after consultation with the Member of the United Nations concerned.”

336 An Agenda for Peace; Preventive Diplomacy, Peacemaking and Peace-keeping, Report of the Secretary-General pursuant to the Statement Adopted by the Summit Meeting ofthe Security Council on 31 January 1992, UN Doc. A/47/277; S/24111 ( 1992) at 75, reprinted in 31 I.L.M. 956 [hereinafter An Agenda for Peace].

337 Ibid.

338 Doxey, supra note 6 at 80.

339 Supplement to an Agenda for Peace, supra note 131 at para. 74.

340 Ibid. at para. 75. This mechanism would have to be located in the UN Secretariat and should be empowered to utilize the expertise available through the UN system, in particular, that of the Bretton Woods institutions (ibid. at para. 76).

341 In addition to various academic studies at universities, conferences, and round-tables and policy think-tank projects on the subject of sanctions, the Security Council has been preoccupied with improved implementation of sanctions. Several notes by the president of the Council and creation of the working group on sanctions are witnesses to new trend in the Council. See also We the Peoples: The Role ofthe United Nations in the 21st Century, Millennium Report ofthe Secretary General, UN Doc. A/54/2000, paras. 229–233, in which the secretary-general recalls some of the problems of imposing economic sanctions discussed in this article and “invite[s] the Security Council, in particular, to bear them in mind when designing and applying sanctions regimes” (ibid. at para. 233).

342 Opening Remarks of Secretary-General Kofi Annan to the International Peace Academy Seminar on Sanctions, in New York, April 17, 2000, UN Press Release SG/SM/ 7360, text can be accessed online <http://wvww.un.org/News/Press/docs/ 2000/20000417.sgsm7360.doc.html> (date accessed: October 14, 2001).

343 It is becoming more difficult for states to impose unilateral economic sanctions due to the regulation of trade and new state obligations that have resulted from the General Agreement on Tariffs and Trade (October 30, 1947, 58 U.N.T.S. 187, Can. T.S. 1947 No.27 (entered into force January 1, 1948) and agreements in the framework of the World Trade Organization [hereinafter WTO], established according to Agreement Establishing the Multilateral Trade Organization, December 15, 1993, 33 I.L.M. 13. Considering the limitations placed on the use of unilateral economic sanctions by provisions of the WTO agreements, the likelihood that unilateral sanctions will be used in the near future is slight (See Reisman and Stevick, supra note 198 at 95). Even the United States, which, traditionally, has frequently been using sanctions as a policy tool, seems to have reached the conclusion that priority should be given to collective sanctions in comparison with unilateral sanctions. In April 1999, in the context of a broader attempt at comprehensive sanctions reform, it was announced that the goal is to resort to unilateral sanctions only after all other options, including diplomacy and multilateral sanctions have been exhausted (“U.S. Eases Policy on Some Sanctions,” New York Times (April 21, 1999) A1 and A12).

344 Dumas, supra note 329 at 190.

345 Roberts, A., “The United Nations and International Security” (1995) 35:2 Survival 3 at 6.CrossRefGoogle Scholar

346 See Conforti, B., “Non-Coercive Sanctions in the United Nations Charter: Some Lessons from the Gulf War” (1991) 2 European J. Int’l L. 110 at 112.CrossRefGoogle Scholar

347 See Reisman, supra note 130 at 98.

348 Caron, supranote 129 at 588.

349 Ibid. at 587

350 Article 103 of the Charter, supra note 5. For example in Resolution 841 (imposing sanctions on Haiti) at paragraph 9 stated that “[the Security Council] calls upon all states, and all international organizations, to act strictly in accordance with the provisions of the present resolution, notwithstanding the existence of any rights or obligations conferred or imposed by any international agreement or any contract entered into or any license or permit granted prior to 23 June 1993.”

351 See Conlon, supra note 301 at 664–65.

352 In line with such proposals it is suggested that under Article 55 of the Charter, the United Nations is required to create a sustainable development policy and the sanctions applied under Article 41 of the Charter should not undermine that duty (see Swindells, supra note 202 at 1961).

353 Boulden, J., The Application of Sanctions under Chapter VII of the United Nations Charter: A Contemporary Assessment (Ottawa: Canadian Centre for Global Security, 1994).Google Scholar

354 Reisman and Stevick, supra note 198 at 141.

355 Hart, supra note 162 at 228.

356 Damrosch, supra note 200 at 275.

357 Ibid. at 277.

358 Claude, I. L. Jr., “Sanctions and Enforcement: An Introduction,” in Paxman, J. M. and Boggs, T. G., eds., The United Nations: A Reassessment; Sanctions, Peacekeeping, and Humanitarian Assistance (Charlottesville: University Press of Virginia, 1973) 21.Google Scholar

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Use of Economic Sanctions under International Law: A Contemporary Assessment
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Use of Economic Sanctions under International Law: A Contemporary Assessment
Available formats