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The Law of the United Nations and the Use of Force, under the Relevant Security Council Resolutions of 1990 and 1991, to Resolve the Persian Gulf Crisis*

Published online by Cambridge University Press:  07 July 2009

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Extract

In response to Iraq's forcible occupation of Kuwait in the summer of 1990, the United Nations Security Council adopted twelve resolutions that year.

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Articles
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Copyright © T.M.C. Asser Press 1992

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References

1. Resolutions 660 (1990) of 2 August, 661 (1990) of 6 August, 662 (1990) of 9 August, 664 (1990) of 18 August, 665 (1990) of 25 August, 666 (1990) of 13 September, 667 (1990) of 16 September, 669 (1990) of 24 September, 670 (1990) of 25 September, 674 (1990) of 29 October, 677 (1990) of 28 November, and 678 (1990) of 29 November, 1990. Two of these resolutions, 665 (1990) and 678 (1990), are part of the subject of this article, which gives accounts of the contents of three others, Res. 660 (1990), 661 (1990) and 670 (1990). In Res. 662 (1990), the Security Council declared Iraq's annexation of Kuwait, which Iraq had announced on 8 August, to be null and void. In the other six resolutions of the series the Council, among other things, demanded that Iraq allow nationals of third States to depart immediately from Kuwait and Iraq (Res. 664 (1990)); relaxed, for humanitarian reasons, the wide-ranging economic embargo it had imposed on Iraq and the occupied territory of Kuwait by Res. 661 (1990) (Res. 666 (1990)); demanded that Iraq ensure the safety and well-being of diplomatic and consular personnel and premises in Kuwait and Iraq (Res. 667 (1990)); made arrangements for dealing with requests far assistance by third States under Art. 50 of the Charter (Res. 669 (1990)); demanded mat the Iraqi authorities and occupying forces cease taking hostage and otherwise mistreating Kuwaiti and third-State nationals, also requesting the Secretary-General to make available his good offices to reach a peaceful solution to the crisis (Res. 674 (1990)); and condemned Iraq's attempts to alter the demographic composition of the population of Kuwait and destroy the civil records maintained by its legitimate government, also mandating the Secretary-General to take custody of a certified copy of the population register of Kuwait (Res. 677 (1990)).

2. The two resolutions that neither declared themselves to be based on Chapter VII nor cited any of its provisions are Resolutions 662 (1990) and 669 (1990). The former, however, reiterated, in its preamble, the demand made in Res. 660 (1990) for Iraq's immediate withdrawal from Kuwait.

3. In common with other United Nations peace-keeping forces, the observer unit established along the Kuwait-Iraq border (UNTKOM) pursuant to Security Council Res. 687 (1991) is authorized to use force in self-defence. (See para. 4(c) of the report [S/22454] by which the Secretary-General, on 5 April 1991, proposed the terms of reference of the unit, approved by Security Council Res. 689 (1991) of 9 April 1991). This limited modality of the use of force will not be dealt with here. The same goes for such use of force as may be entailed by compliance with the Security Council's call, in para. 8 of Res. 670 (1990), for States to detain ships of Iraqi registry used in violation of Res. 661 (1990) and entering their ports. Nor does this article deal with the occupation of northern Iraq by forces of the United States and certain European countries that occurred in the1 spring and summer of 1991. This operation, which could have involved the use of force but in actual fact did not do so, was not explicitly mandated or authorized by the Security Council. Also, we shall not deal with the possible use of force to ensure the effectiveness of the ‘air exclusion zone’ declared over Northern Iraq.

4. This article covers developments up to approximately mid-August 1992.

5. The resolutions relating to Korea and Southern Rhodesia will be cited later. Those relating to the Congo crisis are Res. 161 (1961) and 169(1961), of 21 February and 24 November 1961. respectively.

6. See Schachter, O. (writing under the pseudonym of E.M. Miller), ‘Legal Aspects of United Nations Action in the Congo’, 55 AJIL (1961) pp. 1, 8Google Scholar, as well as the International Court of Justice's advisory opinion on Certain Expenses of the United Nations, ICJ Rep. (1962) p. 177.

7. See Gross, L., ‘Voting in the Security Council: Abstention in the Post-1965 Amendment Phase and its Impact on Article 25 of the Charter’, 62 AJIL (1968) pp. 315, 316.CrossRefGoogle Scholar

8. Kelsen, H., The Law of the United Nations (1951) pp. 931932.Google Scholar

9. The provisions on the economic embargo are contained in para. 3 of the resolution, which reads as follows:

‘The Security Council,

3. Decides that all States shall prevent:

(a) The import into their territories of all commodities and products originating in Iraq or Kuwait exported therefrom after the date of the present resolution;

(b) Any activities by their nationals or in their territories which would promote or are calculated to promote the export or trans-shipment of any commodities or products from Iraq or Kuwait; and any dealing by their nationals or their flag vessels or in their territories in any commodities or products originating in Iraq or Kuwait and exported therefrom after the date of the present resolution, including in particular any transfer of funds to Iraq or Kuwait for the purposes of such activities or dealings;

(c) The sale or supply by their nationals or from their territories or using their flag vessels of any commodities or products, including weapons or any other military equipment, whether or not originating in their territories but not including supplies intended strictly for medical purposes, and, in humanitarian circumstances, foodstuffs, to any person or body in Iraq or Kuwait or to any person or body for the purposes of any business carried on in or operated from Iraq or Kuwait, and any activities by their nationals or in their territories which promote or are calculated to promote such sale or supply of such commodities or products.’

10. It is clear from the text of the resolution, the characteristics of civil aviation and the reference in the resolution to the Chicago Civil Aviation Convention (cf., para. 7 of the resolution) that the Council did not intend any measures to be taken against aircraft that would not be permissible under international law. (Cf., Warbrick, C., ‘The Invasion of Kuwait by Iraq’, 40(2) ICLQ (1991) pp. 482CrossRefGoogle Scholar at fn. 27, 486).

11. UN Doc. S/21492. In the same vein, the Permanent Representative of the United Kingdom to the United Nations, by a letter to the President of the Security Council dated 13 August 1990, stated that his Government had, in exercise of the inherent right of self-defence recognized by Art. 51 of the Charter, deployed military forces to the Gulf in response to requests from Kuwait, Saudi Arabia and Bahrain for assistance and agreement with Oman (UN Doc. S/21501).

12. See the provisional verbatim record of the meeting, S/PV.2937, pp. 33–35.

13. Saddam Hussein might have scored a specious propaganda point by drawing a parallel between the Cuban missile crisis situation and the one that prevailed just before military operations were initiated against Iraq, with Iraq cast in the role of the US, the US in that of the USSR, and Saudi Arabia, in whose territory the bulk of the predominantly American ground and air forces arrayed against Iraq were stationed, in the role of Cuba.

14. The assertion was reiterated by the representative of the US at a meeting the Council held on 25 August (see pp. 29–30 of the provisional verbatim record of the meeting, S/PV.2938). At the same meeting the representative of the UK stated that ‘sufficient legal authority to take action already exists under Article 51 of the Charter and the request which we and others have received from the Government of Kuwait’ (ibid., p. 48). A naval interdiction against Iraq and occupied Kuwait had been instituted by the US, the UK and others powers prior to the adoption of Resolution 665 (1990). (See infra, n. 23).

15. Peace can be maintained only so long as it has not been breached and if an armed attack has occurred peace has by definition been breached. If it has, however, it can and indeed should be restored. It seems, however, that the San Francisco Conference deliberately chose the word ‘maintain’ rather than ‘restore’. But the reasons for the choice hardly make sense. (Cf., Zanardi, P. Lambertt, La Legittima Difesa nel Diritto Internazionale (1972) pp. 263264).Google Scholar

16. Lamberti Zanardi, op. cit. n. 15, pp. 264–265. Kelsen, however, appears to have been of the view that only action by the Security Council under Arts. 39, 41 and 42 may bring the limiting clause into play (Kelsen, op. cit. n. 8, p. 801).

17. Lamberti Zanardi, op. cit. n. 15, pp. 264–265.

18. Cf., Brierly, J.L., The Law of Nations, 6th edn., Waldock, H., ed. (1963) pp. 393394Google Scholar, as well as Bowett, D.W., Self-Defence in International Law (1958)Google Scholar, who correctly observes that action in self-defence should ‘cease when the machinery of the centralized system itself operates as an effective protection of the individual members' rights’(p. 195, emphasis added). Bowett fails, however, further to develop this idea.

19. The points made in the text go a long way towards resolving the disagreement between Kelsen and Lamberti Zanardi, referred to in n. 16 above, as to whether measures taken by the Council under Art. 40 bring the limiting clause into play. Two problems that nevertheless could arise in this regard may be noted. One is the case where the aggressor State complies belatedly with the Council's demands, under Art. 40, that it withdraw its forces and that a cease-fire be established. Would the limiting clause come into operation in the interim? The answer should, it would appear, be in the affirmative if the aggressor shows itself willing to suspend hostilities without pulling back its troops, and in the negative if the aggressor pays no heed at all to the Council's injunctions. The second problem would arise in a case where the Council calls for a cease-fire without ordering a withdrawal. It would appear that in this situation the limiting clause should also come into force. In both of the problematic cases considered, however, the limiting clause should continue to operate only for as long as is necessary in order that the action taken by the Council should have a reasonable chance of proving itself, particularly since the ‘provisional measures’ provided for in Art. 40 are, of course, ‘provisional’ and the Article stipulates that they are ‘without prejudice to the rights … of the parties concerned.’ So, if the aggressor cannot be persuaded to withdraw from the occupied part of the territory of the victim State, the latter has not ceded it to the aggressor and the stalemate persists for an inadmissibly long period of time, the victim State may, it is submitted, in the absence of further action by the Council, rightfully claim that it has recovered its right, under Art. 51, to seek to drive the aggressor's forces out of its territory by force. (It may be noted, finally, that we have left out of consideration the case where there is doubt as to whether the territory occupied by the aggressor State's forces appertains to the victim State or to the aggressor).

20. The difficulty that emerges at this point is of course that of determining whether it is the Council or die victim State mat authoritatively decides that the measures taken by the former have proved ineffective and that accordingly the limiting clause has become inoperative. But this difficulty did not arise in connection with the Gulf crisis.

21. It should not be thought that, because at the time of adoption of Res. 661 (1990) all-out military action against Iraq was not yet a practicable option, the interpretation of the penultimate preambular paragraph of Res. 661 (1990) was of merely theoretical importance. For one thing, prior to die adoption of Res. 665 (1990) the legality of the use or threat of force in connection with the naval interdiction instituted, around 13 August 1990, by the United States and the United Kingdom against Iraq and occupied Kuwait (cf., infra, n. 23) depended on how the paragraph was interpreted. For another, those two States, which from early on had favoured the all-out use of force, feared that the other three permanent members of the Council would veto a decision by it that, as Res. 678 (1990) finally did, would sanction the all-out use of force. (Cf., the article cited in the following note).

22. In an article published under die title ‘Asking the UN is asking for Trouble’, in the 5 November 1990 issue of the Wall Street Journal, Judge Abraham D. Sofaer, a former legal adviser to the US State Department, took the opposite view, arguing that ‘[i]t is absurd to contend that Kuwait should have less authority to defend itself after the Council has upheld its legal and moral position than it would have had before the Council acted.’ The argument is specious. For it overlooks the fundamental fact that, at the same time as it provisionally deprived Kuwait of the right to defend itself, it gave it a valuable quid pro quo, namely, the imposition of an economic embargo on Iraq and the occupied territory of Kuwait. When Res. 661 (1990) was adopted, this measure, whose execution involved far less potential detriment and suffering for Kuwait and its people than the expulsion of Iraq from Kuwait by farce of arms, did not appear to be foredoomed to failure as a means of liberating Kuwait.

23. In the 13 August 1990 edition of the New York Times it was reported that President Bush had ordered the United States aimed forces to block exports of Iraqi oil and all imports to Iraq except for some food shipments and that the order was in response to a request by the exiled Emir of Kuwait satisfying the requirements of the United Nations Charter. (The text of the request was circulated, as a Security Council document, under the symbol S/21498). The Times added that the administration was reluctant to call the blocking of Iraqi commerce on the high seas a naval blockade, a word that raised legal and political concerns on account of its association with declared war. Justifying what he called ‘naval interdiction’, the Times further reported, Secretary of State Baker had cited Kuwait's formal request for a United Nations economic embargo on Iraq, as well as Art. 51 of the United Nations Charter. The request by the Kuwaiti Government to the United States and the United Kingdom had also been made to the other powers that had deployed naval units to the area and it seems to have been accepted by some of them prior to the adoption of Res. 665 (1990) (cf., infra, n. 32). The United States, the Times added, was coordinating its actions with those of the other countries participating in the ‘interdiction’. (See the two articles on the matter on pages A-1, A-8 and A-11 of the New York Times (13 August 1990), as well as the corresponding articles on p. 1 of the London Times (14 and 15 August)). By a letter dated 16 August 1990 to the President of the Security Council, the Chargé d'affaires of the United States Permanent Mission to the United Nations informed him of the action taken by the United States (UN Doc. S/21537). (For an account of doubts expressed by the United Nations Secretary-General as to the lawfulness of the action in question, see, on p. A-12 of the New York Times (17 August 1990), the article entitled ‘UN Chief Argues Blockade is Hasty’). It appears that the naval units conducting the interdiction instituted before the adoption of Res. 665 (1990) were not authorized to use force, but merely to fire warning shots (which could be regarded as a threat of force). Thus US naval vessels fired shots across the bows of two Iraqi tankers, but took no further action when they continued on course. (See ‘US Warship Fires Warning at Iraqis’, New York Times (19 August 1990) p. A-11, col. 1). For further information on the pre-Res. 665 (1990) interdiction, see Greenwood, C., ‘New World Order or Old? The Invasion of Kuwait and the Rule of Law’, 55 MLR (1992) p. 153 at pp. 161162.CrossRefGoogle Scholar

24. The probable reason for these omissions is that any such reference would have been unpalatable to China, whose representative on the Security Council stated his understanding that the resolution did not authorize the use of force. But this is speculation and is at any rate legally irrelevant. The reference in Res. 665 (1990) to the Military Staff Committee involves a reference to the Charter provisions relating to mis body, established by the Charter. (The provisions are Arts. 45, 46 and 47). For interesting comments and information on Res. 665 (1990) see the note by F. Presutti on pp. 380–382 of 73 Rivista di Diritto Internazionale (1990).

25. The only provisions of Res. 661 (1990), which does not expressly refer to shipping, to which para. 1 of Res. 665 (1990) can refer are those quoted in n. 9 supra.

26. For an account of the off-the-record negotiations that preceded the adoption of Res. 665 (1990), see Weller, M., ‘The Kuwait Crisis: A Survey of Some Legal Issues’, 3 African J. Int. Comp. L. (12 1991) part 1, p. 1 at pp. 2122.Google Scholar

27. See pp. 54–55 of the provisional verbatim record of the meeting (S/PV.2938).

28. These were the representatives of the US, France and the UK. (See pp. 26, 32 and 48 of the provisional verbatim record of the meeting, S/PV.2938).

29. These were the representatives of Colombia, Yemen and Malaysia. (See pp. 11, 21 and 37 of the provisional verbatim record of the meeting, S/PV.2938).

30. These were the representatives of Cuba and Iraq (not a Council member). (See pp. 21–22 and 67–70 of the provisional verbatim record of the meeting, S/PV.2938).

31. Arts. 45, 46 and 47 of the Charter.

32. At the meeting that representative made the following statement (which, it may be noted incidentally, implied that States other than the United States and the United Kingdom were, at the request of the Kuwaiti Government, cooperating in enforcing the blockade): ‘A number of Member States have already acted to deploy units of their naval forces to ensure that the sanctions are effective. These forces were there before the adoption of this resolution [Res. 665 (1990)] at the request of the legitimate Government of Kuwait — requests made fully in accordance with the inherent right of individual and collective self-defence confirmed in Art. 51 of the United Nations Charter and consistent with Security Council resolution 661 (1990).’ (S/PV.2938, pp. 29–30). Cf., supra, n. 23.

It is not without interest to note that there would have been another way of seeking to justify the legality of the naval interdiction. The US representative could have argued that use of force under it was not violative of para. 4 of Art. 2 of the Charter inasmuch as that use of force was not ‘against the territorial integrity or political independence of any State’, nor ‘inconsistent with the Purposes of the United Nations’. This argument, whose ingenuity is matched by its weakness, would have been a reprise of the one advanced by L. Henkin in support of the legality of the quarantine imposed by the United States on the Soviet Union during the Cuban missile crisis. (Cf., Chayes, A., The Cuban Missile Crisis (1974) p. 32, fn. 19).Google Scholar If the argument were valid, which is most doubtful, Res. 665 (1990) would have been largely unnecessary.

33. In a letter to the Secretary-General dated 19 September 1990 and circulated as a Security Council document as requested in it, the Permanent Representative of Argentina to the United Nations stated that in response to a formal request from the Government of Kuwait Argentina ‘had decided to send a contingent of its armed forces to the Gulf region to contribute to strict compliance with’ the measures provided for in Res. 661 (1990) (see UN Doc. S/21791). Moreover, some of the reports the Council received on the use of force pursuant to Res. 678 (1990) (see infra, n. 80) contain incidental reference to action taken under Res. 665 (1990) by the navies of the States that submitted them. (See, for example, the report submitted by Canada, on 26 February 1991, issued under the symbol S/22292).

34. According to information that the author has received from the United States navy, in addition to American naval vessels, the multinational force that carried out the interdiction included, at its height, ships from the navies of Argentina, Australia, Belgium, Canada, Denmark, France, Greece, Italy, the Netherlands, Norway, Spain and the United Kingdom. While operations were initially conducted in the Persian Gulf, the North Arabian Sea and the Red Sea, as at the end of February 1992 operations continued only in the Northern Red Sea, with only the United States and the French navies being involved. For information on the interdiction see pp. 20–25 and J-2-J-7 of the (mimeographed) report issued by the United States Department of the Navy under the title The United States Navy inDesert Shield and Desert Storm’ and dated 15 May 1991, as well as pp. 22–41 of the publication of the French Navy entitled Marine et Guerre du Golfe.

35. That the class is open-ended is clear from the action by Argentina referred to in n. 33 supra.

36. The only practical significance of the question relates to Article 49 of the Charter, which applies to action under para. 1 of Res. 665 (1990) only if the call contained in the paragraph is binding on its addressees.

37. See on pp. 7–11, 11–21, 21–25, 26–31, 36–38 and 44–47 of the provisional verbatim record of the meeting (S/PV.2938), the statements made on behalf of Yemen, Cuba, Colombia, the United States, France, Malaysia and Finland.

38. See Bowett, op. cit. n. 18, pp. 23–24.

39. The representatives taking that position were those of Cuba and Iraq. (See pp. 12–20 and 66–77 of the provisional verbatim record of the meeting, S/PV.2938).

40. The provisions of Res. 661 (1990) quoted inn. 10 above show that the interdiction (or, more precisely, the embargo as complemented by the interdiction) was similar to the ‘long-distance blockades’ instituted during the two world wars against Germany and its allies. This was particularly the case with Iraqi exports, which Res. 661 (1990) and hence the interdiction sought to suppress altogether. There are, however, two fundamental differences between the interdiction and a blockade properly so-called, whether of the traditional type or of the ‘long-distance’ variety. One difference concerns sanctions. Those applicable to carriers breaching blockades in the strict sense of the term have not been imposed on those acting in violation of Res. 661 (1990), who only risk being compelled to effect a diversion or a return to the port at which the voyage originated. The second difference is that to the distinction between belligerent and neutral States that is characteristic of normal blockades there corresponds, in the case of the interdiction established by Res. 665 (1990), a distinction between States enforcing the interdiction and States which must allow merchant vessels flying their flags to submit to control measures taken on the high seas by navies other than their own (two categories mat partly overlap inasmuch as a merchant vessel flying the flag of a State whose navy participates in the interdiction may be subjected to control measures by warships of other participating navies). Far comments and information on the geographical scope of operations under Res. 665 (1990) see Burci, G.L., ‘L'Azione del Consiglio di Sicurezza delle Nazioni Unite nella Crisi del Golfo’, XLVI La Comuntá Internazionale (1991) no. 3, pp. 278 fn. 20, 291.Google Scholar

41. An article published in the 18 March 1991 edition of the New York Times sheds some light on the diversity of the rules of engagement applied by the various naval forces that have participated in the interdiction (and also in operations under Res. 678 (1990)). The article, which also contains information on the air, land and naval forces provided by the various countries that acted pursuant to Res. 665 (1990) and 678 (1990), is on page 18 L of the above-mentioned edition.

42. The records of the Council contain no trace of the Secretary-General having performed the advisory functions which para. 4 of Res. 665 (1990) assigns to him. As for the role that paragraph gives to the Military Staff Committee, it should first be observed that all that is officially known of the work of this body, whose meetings are closed, is the brief information about its activities contained in the reports of die Security Council to the General Assembly and the scheduling of its (fortnightly) meetings, which is given in the daily United Nations Journal (but without any indication of the questions discussed). From the relevant part of the report of the Security Council to the General Assembly at its 46th session, a report covering the period from 16 June 1990 to 15 June 1991, it appears that the Committee took no practically meaningful action under para. 4 of Res. 665 (1990). (See GAOR, 46th session. Supplement No. 2, Part III (dealing with the Committee), which differs from Part III of the immediately preceding report (GAOR, 45th session, Supplement No. 2) only in respect of the number of meetings held by the Committee in the one-year periods respectively reviewed by the two reports, which state that the Committee held 27 meetings in the period covered by the earlier one and 26 in that covered by the subsequent report). Since two of the five Member States of the Committee, China and the Russian Federation (formerly the USSR), have not participated in the interdiction and the former of the two had in fact maintained in the Security Council that Res. 665 (1990) did not permit the use of force, one could hardly have expected the Committee to play any meaningful role in the implementation of para. 1 of Res. 665 (1990). It was nevertheless reported in the press that the Military Staff Committee considered the matter. (Cf., New York Times (6 September 1990) p. A.20, column 2, and (19 September 1990) p. A-11, column 1). As pointed out by Burci, loc. cit. n. 40, p. 291 fn. 21, it is likely that the reference to the Military Staff Committee contained in Res. 665 (1990) was included therein in order to overcome the reluctance of the USSR to vote in favour of the resolution.

43. Except if the Council were to employ military personnel recruited directly by the UN and thus not forming part of any national armed forces (which the Council has never done and is not likely to do.) Of the view that this may be done are Kelsen, op. cit. n. 8, p. 756, and Sohn, L.B., The Authority of the United Nations to Establish and Maintain a Permanent United Nations Force, in International Law in the Twentieth Century (1969) pp. 686 and 693Google Scholar. This view ties in with the fact that the force commanders of the United Nations peace-keeping forces in Cyprus, the Golan Heights and Lebanon (UNFICYP, UNDOF and UNIFIL, respectively) are appointed by the Secretary-General as UN staff members.

44. The possibility of the Council acting through military personnel recruited directly by the UN (cf., supra, n. 43) is disregarded.

45. As noted above (cf., supra, n. 43), commentators on the Charter have taken the view that this may be done.

46. The reference is to Kelsen (Kelsen, op. cit. n. 8, p. 756).

47. ICJ Rep. (1962) p. 12.

48. ICJ Rep. (1962) p. 182.

49. ICJ Rep. (1949) p. 182. Cf., also the dictum of the International Court of Justice in its advisory opinion on Certain Expenses of the United Nations that ‘when the Organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is mat such action was not ultra vires the Organization’ (ICJ Rep. (1962) p. 167). These dicta reflect the fact, noted earlier by a late member of the Court in a separate opinion, ‘that an institution, once established, acquires a life of its own, independent of the elements which have given birth to it, and it must develop, not in accordance with the views of those who created it, but in accordance with the requirements of international life.’ (Individual opinion of Judge Alvarez in the case concerning the Effects of the Awards of Compensation made by the United Nations Administrative Tribunal, ICJ Rep. (1954) p. 68). In a general context Bertrand Russell has observed that ‘[o]rganizations have alife of their own, independent of the intentions of the founders.’ (Russell, B., A History of Western Philosophy, 13th edn. (1967) p. 378).Google Scholar

50. ICJ Rep. (1962) p. 167.

51. Sohn, op. cit. n. 43, p. 685.

52. The resolutions were procedurally praeter legem in that they charged the Secretary-General with selecting the States which provided forces. As to their being substantively praeter legem, cf., die view expressed by the Secretary-General, with which the ICJ concurred, that the UN operations in the Congo did not come within Chapter VII of the Charter. (See Repertory of Practice of United Nations Organs, Supplement No. 3. Vol. 2, under Art. 43, para. 9, and ICJ Rep. (1962) p. 166).

53. de Aréchaga, E. Jiménez, El Derecho Interanaional Contemporáneo (1980) pp. 162163.Google Scholar

54. See Gross, loc. cit. n. 7.

55. Since authority normally goes hand in hand with accountability, one wonders whether, by reason of the authority (he Security Council vested in itself, in Res. 665 (1990), over the operations provided far in its para. 1, the UN would not be liable for damages unlawfully caused by the naval units involved.

56. These were the representatives of Finland and the USSR (see pp. 83–85 and 88–96 of the provisional verbatim record of the meeting, S/PV.2963).

57. These were the representatives of Colombia, the Ivory Coast, Ethiopia, Romania, Yemen and Zaire (see respectively pp. 38–42, 86–88, 48–52, 97–100, 31–38 and 43–47 of the provisional verbatim record of the meeting, S/PV.2963).

58. These were the representatives of Canada, China, Cuba, France, Malaysia, the United Kingdom and the United States (see respectively pp. 69–74, 61–63, 52–60, 66–68, 74–78, 78–83 and 101–105 of the provisional verbatim record of the meeting, S/PV.2963).

59. See, however, what is said on this point in the text at infra, n. 80.

60. Two alternative courses of action whose interest has thus far been theoretical rather than practical are left out of account in the text One is the possibility of the Security Council using force through military personnel recruited directly by the United Nations (cf., supra, n. 43). Another is its taking such action under Art. 53(1) of the Charter.

61. At the San Francisco Conference Norway proposed that the provision that was to become Art. 2(4) of the Charter read as follows: ‘All Members of the Organization shall refrain in their international relations from the threat of force and from any use of force not approved by the Security Council as a means of implementing the purposes of the Organization’ (UNCIO vi, 720–721, emphasis added). Had this become the text of para. 4 of Art. 2 of the Charter there would appear to exist a fairly clear distinct legal basis for the authorization contained in para. 2 of Res. 678 (1990). But, as adopted, that paragraph does not contain the phrase underlined.

62. The records of the Council shed no light on the question as to why the particular date of 15 January 1991 was chosen (cf., in this regard as well as in regard to the related question of the time required to complete the preparations for offensive action to liberate Kuwait, the article published on page A-10, first column, of the New York Times (14 January 1991)).

63. It should be noted that the ‘pause of goodwill’ the Council granted to Iraq was not to be regarded as an authorization to delay the commencement of its withdrawal from Kuwait. This is because in Res. 678 (1990) the Council demanded that Iraq ‘comply fully with’ Res. 660 (1990), in which the Council demanded that the withdrawal be effected ‘immediately and unconditionally’. The ‘pause of goodwill’ is therefore merely an assurance that military force beyond that permitted by Res. 665 (1990) would not be used prior to 16 January 1991.

64. The only situations considered here are those where no doubt at all exists as to which of two States between which hostilities have broken out is the aggressor.

65. It has been contended that action in self-defence should be initiated immediately, which would mean that such action is unlawful if not taken as soon as possible after die armed attack justifying it has occurred (cf., Cot, J.-P. and Pellet, A., La Charte des Nations Unies (1985) p. 733Google Scholar). It is submitted that, unless it is qualified, there is no basis for this view.

To begin with, it is clearly not inferable from the language of Art. 51. Moreover, a delay in engaging die forces of me aggressor may well make sense tactically or strategically. And, at any rate, one fails to see why an initial attitude of defeatism, or even outright cowardice, on die part of die victim State should deprive it of the right to repel the attack that it began to enjoy upon its occurrence. It should also be noted that what most of die authors who maintain that die right of self-defence should be exercised immediately probably mean is that action by die victim State should take place before die attack has ended and die part of its territory occupied by die aggressor has been liberated. It would be particularly unreasonable and inequitable for State action in self-defence to be subject to a short time-limit in cases where die action is confined within die territory of die victim State and produces no effects outside it. It may be noted that the foregoing accords with the comments by the International Law Commission's special rapporteur on State responsibility on the question whether self-defence should be initiated immediately. (Cf., BLC Yearbook (1980) Vol. II part 1, p. 70, para. 122).

66. Except, perhaps, if it is extremely likely that the armed attack may soon recur and the action taken by the victim State aims solely at preventing its recurrence. But this situation, which also relates to or involves the concepts of anticipatory self-defence and self-help, is not relevant here. (For an analysis of cases somewhat similar to the situation envisaged, see Combacau, J., The Exception of Self-Defence in UN Practice, in The Current Legal Regulation of Use of Force (1986) pp. 2527)Google Scholar.

In the opinion of a former chairman of the ILC, if the aggression has been premeditated, action in self-defence may be pursued after the expulsion of the aggressor's forces from the territory of the victim State and, in exceptional circumstances, continue until those forces have been entirely destroyed (see in the Institute of International Law YB (1975), the study by Zourek, J. entitled ‘La Notion de légitime défense en droit international’, p. 50Google Scholar). Similar views are taken by Dinstein, for whom a war of self-defence, ‘once it is legitimately started … can be fought to the finish.’ (Dinstein, Y., War, Aggression and Self-Defence (1988) pp. 217218, as well as p. 219)Google Scholar. In the opinion of the present author these views go too far if not qualified. The only scenario where a reasonable case exists for considering that the victim State that successfully counter-attacks may, after driving the aggressor's forces out of its territory, pursue its onslaught until their complete destruction is where the aggressor's forces not only prove impossible to rout and fight à outrance, but also manifest an unshakable determination to push back, if at all possible, into the territory of the victim State and destroy its forces completely. In such circumstances the victim State has no alternative, if it wishes not only to recover its lost territory but also to restore peace and secure its territorial integrity, but to annihilate the aggressor's forces. Such a scenario (which is what Zourek may have had in mind when speaking of ‘exceptional circumstances’) is, however, an unlikely one and, given modem military technology, perhaps inconceivable in practice.

67. Cot and Pellet, op. cit. n. 65, pp. 773–774. It should be noted further that since, as demonstrated in n. 65, there is no substance to die view that self-defence must be immediate, the break may be longer without precluding the application of Art. 51.

68. Cf., the third preambular paragraph of Res. 674 (1990) and Res. 677 (1990).

69. Cf., the reference, in the second preambular paragraph of Res. 674 (1990) of 29 October, to ‘the urgent need for the … immediate withdrawal of all Iraqi forces from Kuwait’ (emphasis added).

70. No treaty to which the United States was a party obligated it to come to the assistance of Kuwait. The same appears to be the case with the European States that formed part of the coalition which, together with Kuwait, took offensive action against Iraq under Res. 678 (1990), as well as Saudi Arabia and the other non-European States also participating in the joint military effort. (Cf., Glennon, M.J., ‘The Gulf War and the Constitution’, Foreign Affairs (Spring 1991) p. 84, at p. 85).Google Scholar

71. Bowett, op. cit. n. 18, pp. 200–220.

72. ICJ Rep. (1986) p. 545.

73. Kelsen correctly observes that if a State that has been the victim of an armed attack is being assisted in repelling it by one that has not been attacked the joint operation should be termed ‘collective defence’ rather than ‘collective self-defence’. (Kelsen, op. cit. n. 8, p. 792; see also Bowett, op. cit. n. 18, pp. 182–184).

74. Cf., Kelsen, op. cit. n. 8, pp. 795–796; Zourek, loc. cit. n. 66, p. 48; Verdross, A. and Simma, B., Universelles Völkerrecht (1984) p. 291Google Scholar; and Rostow, N., ‘The International Use of Force after the Cold War’, 32 Harvard ILJ (1991) p. 416Google Scholar, with particular reference to fn. 21.

75. ICJ Rep. (1986) pp. 104 and 105. It is true that in the judgment the Court was basing itself not on the Charter but on customary international law. But its findings regarding the matter under consideration are not inconsistent with the Charter and it is hardly conceivable that with respect to it the Charter and customary international law could be at variance.

76. See the following provisional verbatim records of Security Council meetings held in 1990 at which the Gulf crisis was discussed, at the pages cited: S/PV. 2932, pp. 3–10; S/PV.2933, pp. 3–10; S/PV.2934, pp. 32–37; S/PV.2937, pp. 37–41; S/PV.2938, pp. 56–65; S/PV.2939, pp. 74–82; S/PV. 2940, pp. 36–37; S/PV. 2943, pp. 78–83; S/PV. 2950, pp. 3–15; S/PV. 2951, pp. 37–45; S/PV. 2959, pp. 13–22 and 56–61; S/PV. 2962, p. 26; and S/PV. 2963, pp. 7–18 and 107–108.

77. Another undesirable possibility is that the assisting State intends to take over, in whole or in part, the territory of the victim State from which it expects to be able to expel the forces of the aggressor. Alternatively, it may have been moved to act against the aggressor by the likelihood of being able, following its defeat, to exact a price far the assistance given to the victim State, which might thus find itself in an uncomfortable position after its territorial integrity is restored.

78. In the dissenting opinions they appended to the Court's judgment on the merits in the case between Nicaragua and the United States Judges Jennings and Schwebel criticized the holdings of the Court under consideration as excessively formalistic (ICJ Rep. (1986) pp. 356 and 545).

79. By letters dated 17 January 1991 to the President of the Security Council the Permanent Representatives to the UN of the US, the UK and France reported the initiation of military actions by the States they represented and others cooperating with the Government of Kuwait for the purpose of liberating Kuwait (Cf., UN Docs. S/22090, S/22097 and S/22100).

Additional reports on their participation in the military actions were submitted on behalf of the US and the UK as well as Italy, Canada, Romania, Saudi Arabia and New Zealand (Cf., UN Docs. S/22115, S/22117, S/22126, S/22130, S/22153, S/22156, S/22180, S/22192, S/22194, S/22206, S/22210, S/22217, S/22218, S/22227, S/22248, S/22251, S/22258, S/22259, S/22292, S/22341, S/22350, S/22358, S/22413 and S/22522).

80. See the text at supra, n. 38.

81. Weston, B.H., ‘Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy’, 85 AJIL (1991) p. 516.CrossRefGoogle Scholar

82. It appears reasonable to make a distinction in this regard between action to liberate Kuwait taken on the territory of Iraq, or producing effects there, and such action taken on the territory of Kuwait and not producing effects outside it, the latter type of action being subject to a far longer time-limit than the former.

83. It should also be recalled that, paradoxically, the Security Council was kept reasonably well informed of activities under Res. 678 (1990), which were not under its authority, but has been kept almost completely in the dark about activities under Res. 665 (1990), which are under its authority.

84. Cf., supra the text at nn. 47 to 51, as well as the contents of those notes.

85. See, in UN Doc. S/22273, the text of the letter dated 27 February 1991 from the Permanent Representative of Iraq to the United Nations to the President of the Security Council, transmitting a letter of the same date to the latter official from the Iraqi Foreign Minister (also reproduced in Doc. S/22273) and, in UN Doc. S/22275, the text of another letter dated 27 February 1991 from the Permanent Representative of Iraq to the United Nations to the President of the Security Council, transmitting another letter of the same date to the latter official from the Iraqi Foreign Minister.

86. For the texts of the notifications sent by Iraq pursuant to para. 7 of the resolution, see UN Docs. S/22276, S22320 and S/22321.

87. Cf., in UN Doc. S/22306, the amendment to that effect submitted by Cuba to the draft resolution that was to become Res. 686 (1991). (The amendment, together with no less than 17 other amendments submitted by Cuba to the draft resolution (in UN Docs. S/22300–22305 and S/22307–22317), was rejected by the Council at the meeting at which Res. 686 (1991) was adopted).

88. Since Iraq's use of force against the allied forces was inherently unlawful and contrary to the Council's prior demands, the cease-fire imposed on Iraq was legally necessary only to the extent that the Council thereby enjoined Iraq, however scrupulously those of its forces that were on Kuwaiti soil fulfilled their obligation to withdraw, from seeking to expel from the territory of Iraq the allied forces occupying it.

89. In an article published in its 14 March 1991 edition, the New York Times reported that in the agreement concluded by the commander of the allied forces with his Iraqi counterparts on 3 March 1991 Iraq had pledged not to use any of its combat aircraft until such time as a permanent cease-fire was concluded (Cf., on p. A-1 of the New York Times (14 March 1991) the article entitled ‘Bush Accuses Iraq of Breaking Truce in Fighting Rebels’). Moreover it was widely reported in the press that subsequent to 2 March allied military aircraft continued to overfly Iraqi territory (see, e.g., the article entitled ‘Iraqi Domestic and Diplomatic Concern’, on p. A-13 of the New York Times (15 March 1991)). After the adoption of Res. 668 (1991) but before Res. 687 (1991) was adopted, two Iraqi aircraft were shot down by the United States air force over Iraq (cf., the 21 and 23 March editions of the New York Times, pp. A-1 and I-1, respectively). This action was permissible since the breach by Iraq of its pledge not to use its combat aircraft can properly be regarded as ‘provocative action’ within the meaning of para. 3(a) of Res. 686 (1991).

90. Cf., the doubts voiced by the representative of Yemen, at the meeting at which Res. 686 (1991) was adopted, about the propriety of force being used if Iraq did not live up to one of the paragraphs of the resolution (see the provisional verbatim record of the meeting, S/PV.2978, p. 27).

91. According to Rostow it ‘may well have been deemed “reasonably necessary” to have allied forces occupy Iraq for a time.’ (Rostow, E.V., ‘Until What? Enforcement Action or Collective Self-Defence?’, 85 AJIL (1991) p. 506 at p. 516).CrossRefGoogle Scholar

92. See SC Res. 692 (1991) of 20 May, 699 (1991) of 16 June, 700 (1991) of 17 June, 706 (1991) of 15 August, 707 (1991) of the same date, 712 (1991) of 19 September, and 715 (1991) of 11 October, 1991.

93. UN Doc. S/22456.

94. UN Doc. S/22480.

95. UN Doc. S/22485.

96. Mr Bush was supported by die US Congress. See on p. 4-L of the New York Times (3 August 1991) the article entitled ‘US Again Threatens Force to Stop Iraki Atom Program’. Cf., also ‘Hussein Risks Enormous Mistake by Veiling A-Anns, Bush Warns’, ibid. (29 July 1991) p. A-3. For accounts of like-minded pronouncements by President Mitterand and the British Foreign Secretary, see ‘France Backs US on Using Force if Iraq Pursues Nuclear Weapons’, ibid. 15 July 1991, p. A-1, and ‘7 Leaders at Summit Praise Gorbachev but Differ on Aid’, ibid. (17 July 1991) p. A-1 at p. A-10. Similar threats continued to be made by US and UK officials up until the March 1992 meetings of the Security Council at which the deputy prime minister of Iraq responded to charges that Iraq had not fulfilled its obligations under Res. 687 (1991). The threats were resumed, in July 1992, as a result of the crisis that arose from the refusal by the Iraqi authorities to allow UN inspectors to enter certain government premises.

97. Baxter, R.R., ‘Armistices and other Forms of Suspension of Hostilities’, RCADI (1976-I), p. 355, at pp. 383384Google Scholar. It may be observed further that the Council is hardly likely purely and simply to withdraw a call for a cease-fire, since this would amount, in most cases, to an incitement to violate Art. 2(4) of the Charter. (Baxter's observation was no doubt meant to apply only to cease-fires ordered under Art. 40 of the Charter; but it is clear that it should also apply to ‘definitive’ cease-fires, ordered under Art. 41, both types of cease-fire being binding on the parties under Art. 25 of the Charter).

98. If the provisions of Res. 687 (1991) binding on Iraq are comparable to Germany's obligations under the Treaty of Versailles, the use of force against Iraq to sanction breaches of those provisions not involving any violation of Art. 2(4) of the Charter could be compared to the occupation of the Ruhr by France and Belgium that took place in 1923.

99. In a statement issued by the President of the Security Council, on behalf of its members, on 28 February 1992 (UN Doc. S/23663), ‘the members of the Council emphasize mat Iraq must be aware of the serious consequences of continued material breaches of resolution 687 (1991).’ It is a matter for speculation whether this statement amounts to an insinuation that the Council would sanction the use of force against Iraq were it to continue not to live up to its obligations under Res. 687 (1991).

100. Cf., the fourteenth, fifteenth, seventeenth and twenty-third preambular paragraphs of Res. 687 (1991).

101. Cf., supra, n. 34.

102. Since the rules of engagement applied by the various naval forces involved in die interdiction are not in the public domain, it is not known whether this is also the view of the navies concerned. As regards, in particular, the US navy, the author has been informed that the rules of engagement applied by it in connection with the naval interdiction are classified.

103. See on column 3 of page A-16 of the New York Times (8 May 1991), the article published by that newspaper on the final withdrawal of American troops from Iraq.

104. Cf., Schachter's observation that ‘[s]ome of the provisions’ of Res. 687 (1991) ‘are reminiscent of terms of such treaties of peace as the Versailles Treaty’ (Schachter, O., ‘United Nations Law in the Gulf Conflict’, 85 AJIL (1991) p. 452 at p. 456).CrossRefGoogle Scholar

105. Some similarity exists between the position in which Iraq finds itself vis-à-vis the United Nations and the tutelage to which the United States subjected the Dominican Republic and Haiti from 1907 to 1940 and 1915 to 1933, respectively. (Cf., Fenwick, Ch.G., International Law, 4th edn. (1965) pp. 130131).Google Scholar

106. Iraq is not a party to the Vienna Convention, but Art. 75 is no doubt opposable to it as reflecting general international law.

107. Schachter, loc. cit. n. 104, p. 463.

108. In a statement made at the 1991 annual meeting of the American Society of International Law, the United Nations Legal Counsel implied that enforcement action could be taken by the United Nations without the action being under its command. It is submitted that this view is not well-founded: enforcement action should be regarded as taken by the UN if and only if it is under UN command. (For the text of the pertinent passage of his statement, in which the Legal Counsel correctly asserted that Res. 678 (1990) had not been adopted under Art. 42 of the Charter, see fn. 28, on p. 461, of the article by Schachter, loc. cit. n. 104).

109. Nevertheless, in a report he submitted to the General Assembly, in 1956, regarding the establishment of the first UNEF, the Secretary-General took the view that the forces which acted under UN auspices in Korea came within the second of ‘the three different concepts’ on the basis of which ‘[a]n emergency United Nations international force can be developed’ (emphasis added). The essence of this ‘concept’, as outlined in the report, is the ‘possibility’ that ‘the United Nations charge acountry, or a group of countries, with the responsibility to provide independently for an international force serving for purposes determined by the United Nations.’ (UN Doc. A/3302 of 6 November 1956, paras. 4 and 5). The reason for the inconsistency of this view of the Secretary-General and legal reality is, in the author's opinion, mat the drafters of the report were influenced far more by political than legal considerations.

110. Kelsen, H., Recent Trends in the Law of the United Nations (1951) p. 932.Google Scholar

111. GAOR, Fifth Session, verbatim record of the 285th plenary meeting, para. 98. This also appears to be the view of Brierly, op. cit. n. 18, p. 419.

112. The Republic of Korea was not a UN member. But this was no reason why Member States should have been precluded from assisting it in repelling the armed attack launched against it. The Charter prohibits both Member and non-member States from using force, since para. 6 of Art. 2 subjects the latter States to para. 4 of the same article. Moreover, the right of self-defence can be invoked by non-member States under customary international law. It would therefore be unreasonable for the exception to that prohibition made by Art. 51 not to apply also to all States. Since an unlawful armed attack against a non-member State violates a fundamental Charter principle and endangers the security of Member States, it would be equally unreasonable for them not to be allowed to assist a non-member State forcibly reacting to such an attack under customary international law. (See Kelsen, op. cit n. 8, p. 793; Bowett, op. cit. n. 18, pp. 193–194; Brownlie, I., International Law and the Use of Force by States (1981) p. 331Google Scholar, and Whiteman, M., Digest of International Law, Vol. 12 (1971) pp.101103).Google Scholar

113. This interpretation of the Council's action with respect to the Korean crisis does not appear to be mat of most commentators (Cot and Pellet, op. cit. n. 65, p. 715, fn. 55). Their mistake is due to a misapprehension: from the fact mat it was under Art. 39 that the Council recommended that States come to the assistance of the Republic of Korea it cannot be concluded that in complying with the recommendation States acted under Art. 39: action by the Council is one thing, action by States another, and Art. 39 deals exclusively with action by the Council. As far the position, adopted by Chaumont (Cot and pellet, op. cit. n. 65, p. 711), mat the action taken by States in compliance with the recommendation could come within the scope of the second sentence of Art. 42, it should be noted that, as demonstrated in the course of our discussion of Res. 665 (1990), the sentence does not empower the Council to delegate the authority to use force it derives from Art. 42. Moreover, it would be altogether anomalous for a delegation of authority to be effected through a recommendation.

114. Kelsen, op. cit. n. 110, p. 931. Cf., also Bowett, D.W., United Nations Forces, a Legal Study of United Nations Practice (1964) p. 32.Google Scholar

115. Cf., in this regard Bowett, op. cit. n. 114, pp. 29–53.

116. See GA Res. 376 (V), 483 (V) and 906 (IX). Cf., also GA Res. 498 (V), which spoke of the ‘determination of the United Nations to continue its action in Korea’ (emphasis added).

117. Bowett, op. cit. n. 114, p. 46.

118. Text in 346 UNTS 289.

119. Bowett, op. cit. n. 114, pp. 29–53. The same view is taken by Halderman, S.W., ‘Legal Basis for United Nations Forces’, 56 AJIL (1962) p. 971 at p. 975.CrossRefGoogle Scholar

120. Without having received any mandate to do so from the Security Council or any other United Nations organ, the Secretary-General served as intermediary between States wishing to contribute forces to the Korean operation and the United States, made informal proposals about certain modalities of the operation and appointed a liaison officer to the Unified Command. But these activities obviously created no organic link between the United Nations and the forces. (For more detailed information on the activities in question, see Bowett, op. cit. n. 114, pp. 36, 37, 39, 41 and 42).

121. As Bowett points out, ‘political and strategic control of the United Nations Command vested, effectively, in the United States Joint Chiefs of Staff in Washington, rather than in a United Nations organ or even in a body representative of the contributing States.’ (Bowett, op. cit. n. 114, p. 42).

122. For the text of the Agreement, concluded by the above-cited Command, on the one hand, and, on the other, the Supreme Commander of the Korean People's Army and the Commander of the Chinese People's Volunteers, see TIAS 2782. For the text of the Regulations cited see 76 UNTS XDC and GA Res. 33/141 A.

123. The farces acting under SC Res. 665 (1990) and 678 (1990) were not allowed to use the UN flag. This is because the United Nations Flag Code that the Secretary-General adopted in 1952, pursuant to the authorization the General Assembly granted him by Res. 167 (II) of 20 October 1947, provides in Art. 6 that the ‘flag may be used in military operations only upon express authorization to that effect by a competent organ of the United Nations.’ With regard to the use of the UN flag by the forces acting to repel the aggression by North Korea, see Kelsen, op. cit. n. 110, pp. 938–939. That use of the UN flag may be purely symbolic is shown by Section II(1)(b) of the relevant Regulations made by the Secretary-General pursuant to Art. 11(2) of the Flag Code. Far under the former provision the UN flag may be displayed merely ‘to demonstrate support of the United Nations and to further its principles and purposes.’

124. Labouz, M. F., L'ONU et la Corée, Recherches sur la fiction en droit international (1980).Google Scholar

125. The only legal consequences that the fiction could have produced would have been to impose on the UN the obligation to make reparation for damages unlawfully caused by the so-called UN forces. But, although requests for such reparation were submitted by the People's Republic of China to the Organization, the latter took no action thereon (cf., Bowett, op. cit. n. 114, p. 57).

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