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The Gulf Crisis and the United Nations

Published online by Cambridge University Press:  21 July 2009

David Raič
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1. introduction

As a result of the Iraq-Iran war, Iraq's economy has been exhausted. It had a foreign debt of nearly 80 billion dollars. Iraq apparently failed in its attempts to borrow in foreign capital markets the amounts for investment-in particular for the reparation and expansion of oil production capacity-which it needed to restore its economy. In June 1990, Iraq stated that Kuwait and the United Arab Emirates had undermined the Iraqi economy by persistently producing more than their OPEC quotas. On July 18, 1990, the Iraqi Minister of Foreign Affairs Tariq Aziz stated in the Arab League that Kuwait had stolen Iraqi oil worth 2.4 billion dollars from the Rumaila Oilfield and that Kuwait had built military installations on Iraqi territory. The President of Egypt, Mubarak, then stated that Iraq and Kuwait would negotiate in Jeddah about the Iraqi claim. At the OPEC conference in Geneva on July 26, the minimum reference price was raised to $21.0/b. This despite Iraq's pressure to raise it to $25.0/b. Iraq then warned Kuwait that it had legitimate and historical rights in respect of the Rumaila Oilfield and two islands in the Persian Gulf. On August 1 it turned out that the negotiations in Jeddah had failed. Kuwait stated that it had refused to cede territory. On August 2 Iraqi troops invaded Kuwait. Because of the small capacity of the Kuwaiti army to offer resistance, Kuwait was occupied by Iraq in a very short time.

Type
Current Legal Developments
Information
Leiden Journal of International Law , Volume 4 , Issue 1 , April 1991 , pp. 119 - 134
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1991

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References

1. Res. 660, Aug. 2, 1990.

2. Ress.661, Aug.6, 1990; 662, Aug. 9, 1990; 664, Aug. 18, 1990; 665, Aug. 25, 1990; 666, Sept 13, 1990; 667, Sept. 16,1990; 669, Sept. 24, 1990; 670, Sept. 25, 1990; 674, Oct. 29, 1990; 677, Nov. 28, 1990. Including Res. 660 and Res. 678, eleven resolutions concern substantive issues and one (669) deals with procedures.

3. The United States has on several occasions justified a military intervention without see king an authorization by the Security Council by invoking Art. 51 as was the case in Vietnam, Grenada and Libya (Tripoli). The most recent example is the U.S. intervention in Panama. See U.N. Doc. S/21035 for the American notification of exercising the right of self-defence. For a discussion of the Vietnam, Grenada and Panama case see D.P. Moynihan, On the law of nations, A historical and personal account of the role of international law in foreign policy (1990).

4. See H.Kelsen, Collective Security and Collective Self-Defence under iheChaner of the United Nations, AJIL738(I948). For ihe concept of collective security see also I.L. Claude, Swords into plowshares, The problems and progress of international organization (1971) and J.Delbröck, Collective Security, in R. Bernhard (ed.), Encyclopedia of Public International Law, Instalment 3 at 104–114 (1981).

5. Under Chapter I-Purposes and Principles of the United Nations- Art. 1 (1) reads as follows: “To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace”.

6. Kelsen, supra note 4 at 784.

7. See the American notification to the Security Council of their invocation of Art. 51: U.N. Doc. S/21537. Also from the reports of the meeting of (he Security Council it appears that the U.S. and the U.K. believe that the use of force within the framework of self-defence is already permitted on the basis of Art. S1: U.N. Doc. S/PV 2938, at 31 and 48. See also U.N. Doc. S/PV 2934, at 7–8 (U.S.), and 18.

8. Art. 27 reads as follows: “1. Each member of the Security Council shall have one vote. 2. Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members. 3. Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under Paragraph 3 of Art. 52, a party to a dispute shall abstain from voting.”.

9. See W.E. Rappard, The Quest for Peace since the World War (1940). See also L.M. Goodrich, From League of Nations to United Nations, 1 International Organization 3–21 (1947).

10. See also). Barros, The United Nations; Past, Present and Future 33 (1972). Until the end of 1966 the veto had been used 109 times, in all but five instances by the Soviet Union. See also S.D. Bailey, Voting in the Security Council 26–74 (1969).

11. During the Cold War most of the member states of the U.N. were prepared to follow the United States. The Soviet Union saw the veto as the only means of preventing decisions from being taken which it considered contrary to its ideology.

12. See Art. 42,43. The latter article remains fruitless because of the missing agreements mentioned in this article.

13. In this respect, several proposals have been advanced in the discussions in the General Assembly of the veto problem soon after the establishment of the UNO. For instance, in 1946 the Philippines proposed that Art. 27 be amended so that substantive decisions of the Security Council be made “by an affirmative vote of 7 members including the concurring votes of at least three permanent members”. See for this proposal U.N. General Assembly, First Session - letter from the Philippine Republic to the Secretary-General and Enclosed Draft Resolution concerning the Method of Voting in the Security Council, U.N. Doc. A/C 1/ 34, (1946). See also the proposal by New Zealand. U.N. Doc. A/AC 18/38 (1948).

14. In respect of the voting procedure, the conferees at Dumbarton Oaks could not reach agreement and the matter was postponed until the Crimea (Yalta) Conference. Participating states were: the United Kingdom, the Soviet Union and the United States. There President Roosevelt submitted a formula that was approved by Stalin and Churchill and was later accepted by China. This formula, in effect, reinforced the special position of the permanent members by assuring each of them that the organization could take no important action without its consent.

15. See, e.g., the statement of the Australian Delegate, UNCIO, Summary Report of 16th Meeting of Committee HI/1, June 9,1945, U.N. Doc. 897, IH/1/42 at 9. See also the statement of the Dutch Delegate, UNCIO Summary Report of 9th Meeting of Committee HI/1, May 7, 1945, at 4: “[…] it would be impossible for the Security Council to determine the existence of a threat to the peace or act of aggression by one of the permanent members, if, as in the supposed case is practically certain to happen, that permanent member should veto such a decision”.

16. See UNCIO, Questionnaire on Exercise of Veto in Security Council.U.N. Doc. 855, III/l/B/2(a).

17. See UNCIO, Statement by the Delegates of the 4 Sponsoring Governments on Voting Procedure in the Security Council, U.N.Doc. 852,111/1/37(1), at 1.

18. See F.O. Wilcox and CM. Marcy, Proposals for Changes in the United Nations 311 (1955).

19. Art. 51 reads as follows: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the U.N., until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security”.

20. See Art. 51.

21. See N.M. Blokker, De Veiligheidsraad en Irak: over collectieve veiligheid en collectieve zelfverdediging, Internationale Spectator, Dec. 1990, at 743.

22. For an opposite view see P.J.I.M. de Waard, Eensgezinsheid is geen basis voor actie, Parool, Oct. 26, 1990, where he states that even with a paralyzed Security Council the member states are not authorized to take military action. In his point of view, the decision whether or not military action is necessary rests with the Security Council and not with the individual members.

23. See Art. 24 of the Charter, see also Art. 41 of the Charter.

24. See H. Kelsen, Collective Security and Collective Self-Defence under the Charter of the United Nations, AJIL, 793 (1948).

25. See Goodrich and Hambro, Charter of the United Nations, Commentary and Documents 4 (1946). The League of Nations was not capable of preventing the second world war because of the lack of a consensus by the members of the Council.

26. See for the text of this request Security Council Doc. S/21498,13 (1990).

27. One should understand that the U.S. in theory has three kinds of troops in the Gulf area: one on the basis of a bilateral agreement (collective self-defence) with Saudi Arabia, one on the basis of a bilateral agreement (collective self-defence) with Kuwait and one which supervises the implementation of the resolutions of the Security Council (collective security).

28. See Res. 661, Aug. 6, 1990 of the Security Council.

29. See Europe (Agence Internationale d'Information pour la presse), Dec. 29, 1990.

30. See in this respect Art. 42 of the Charter. The first sentence of this article reads as follows: “should the Security Council consider that measures provided for in Art. 41 would be inadequate or have proved to be inadequate [emphasis added, DR], it may take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security”. Because the article makes a distinction between inadequate measures and measures which have proved to be inadequate, one cannot say that the Security Council is only allowed to take further-reaching measures, if the inadequacy of a measure has been proved. Because, in respect of the Security Council measures the member states are also authorized to pass judgement regarding the adequancy of those measures, it could be defended that the afore-mentioned interpretation of Art. 42 similarly applies to the member states. Likewise in this view, the member states do not need a proven inadequacy before they can proceed to the use of military force on the basis of Art. 51. However, it must be very plausible that the Security Council measures will be ineffectual and that the condition that all non-violence sanctions in the Charter are exhausted, has been fulfilled. See for an opposite view, N.M. Blokker, De Veiligheidsraad en Irak: over collectieve veiligheid en collectieve zelfverdediging, Internationale Spectator 747 (1990).

31. The Charter is not an ideal one. During the meeting of Committee HI/1, during the UNCIO in 1945, the United Kingdom delegate formulated this as follows: “Do we want to sign something which on paper is theoretically satisfying about the operation of which we must have some doubt, or do we want to sign something which we honestly believe will work within its limitations?”.

32. See J. Power, The High Costs of Saddam's Policy, World Press, Oct. 20, 1990. See also P. de Graaf, Wereldbank vraagtforse offers van gedupeerde landen Golf-crisis, Volkskrant, Sept. 28, 1990.

33. See I. Brownlie, International Law and the use of force by states 275–278 (1983).

34. See in this respect Art. 51 of the Charter where is stated: “[…] if an armed attack occurs […]”.

35. See W. Satire, Beware a Phony Peace Offensive From Iraq, International Herald Tribune, Nov. 13, 1990. See also W. Safire Het goat niet om olie en ook niet om banen, Volkskrant, Nov. 11,1990 and M. Huygen Bush wil vrees over kernwapen van Irak exploiteren, Volkskrant, Nov. 28,1990.

36. Supra note 40. At the airport in Frankfurt German Customs officials found, just three weeks before the invasion of Kuwait, a shipment of strategic metal on its way from Switzerland to Iraq. Three weeks later Swiss police raided a production facility near Bern. Five computer-controlled lathes were found there, being readied for shipment to Iraq along with thirty centrifuge parts similar to those seized in Frankfurt This was the tail end of a larger order that had already been delivered to Iraq. The materials can be used for the production of gas centrifuges which can produce weapons-grade uranium.

37. This anticipatory invocation of Art. 51 is subject to restrictions. There must be clear evidence of possession of a nuclear weapon and the aim to use it. Moreover, the action of self-defence must be proportionate to the threat of a nuclear attack. See in this respect Res. 487 (1981) of the Security Council.The Security Council condemned an attack by Israel on a nuclear reactor in Iraq. The installation had been made subject to IAEA control and no evidence was found that Iraq was trying to produce a nuclear weapon.

38. The U.N. has not been a fruitless organization up to and until the conflict in the Gulf. Under its auspices several conflicts have been reduced and/or solved in the field of peace and security. For instance, the conflicts in Namibia, Cambodia, Rhodesia and the withdrawal of Soviet troops from Afghanistan. Moreover, the U.N. set up several ‘peace-keeping operations’ (UNIFIL, UNDOF, UNEF I, UNEF II, UNIMOG), but never before has the U.N. played such an important role in a conflict of such global interest as is the crisis in the Gulf.

39. The member states are somewhat restricted by Res. 678. The operations must be related to the liberation of Kuwait or to the restoration of international peace and security in the area. In this respect military objects may be destroyed, because they can obstruct the operation of liberating Kuwait. As regards Res. 678, what is prohibited is the total destruction of Iraq. The Soviet Union has already questioned in public whether the bombing of almost all Iraq's infrastructure falls within the mandate of the U.N. However, the mandate under Res. 678 is so liberal that every destruction of an object (e.g. a supply line, a chemical production facility, or the overthrow of Saddam Hussein himself) is legitimate if it has either a relation to the liberation of Kuwait or forms a threat to the restoration of international peace and security in the area. If and how the U.N. will respond to this question remains to be seen.