Published online by Cambridge University Press: 07 July 2009
Since the outbreak of the Second Gulf Crisis the question of the role of the United Nations Security Council in the maintenance of peace and security within the context of the institutionalized collective security system provided for in the UN Charter, and the closely related question of the principal legal and political limitations on the exercise of its authority under Chapter VII of the Charter, have been at the forefront of attention.
1. See, inter alia, Franck, T. M., ‘The Powers of Appreciation: Who is the Ultimate Guardian of UN Legality?’, 86 AJIL (1992) p. 519Google Scholar; Damrosch, L. F., “The Role of the Great Powers in United Nations Peace Keeping”, 18 Yale JIL (1993) p. 429Google Scholar; Reisman, W.M., ‘Peacemaking’, 18 Yale JIL (1993) p. 415Google Scholar; ‘The Prospective Role of the United Nations in Dealing with the International Use of Force in the Post-Cold War Period: An Analysis in the Light of the Persian Gulf Crisis’, Symposium held at the University of Georgia School of Law, 1–2 March 1991, 22 Georgia JI & CL (1992) p. 9Google Scholar; Stein, T., ‘Das Attentat von Lockerbie vordem Sicherheitsratder Vereinten Nationen und dem Intenationalen Gerichtshof’, 31 Archiv des Völkerrechts (1993) p. 207Google Scholar; Gaja, G., “Reflexions sur le Role du Conseil de Sécurité dans le Nouvel Ordre Mondial’, 97 RGDIP (1993) p. 297Google Scholar; Graefrath, B., ‘Leave to the Court What Belongs to the Court: The Libyan Case’, 4 EJIL (1993-1994)p. 185Google Scholar; ‘An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peacekeeping’, Report of Secretary-General, UN SCOR, 47th Session, UN Doc. S/24111 (1992); ‘Question of Equitable Representation on and Increase in the Membership of the Security Council’ UN GA Res. 47/62 1992, 11 December 1992, ‘Question of Equitable Representation on and Increase in the Membership of the Security Council: Report of the Secretary-General Containing Replies Received From Member States, 48th Sess. item 33 of the Preliminary List, A/48/264, 20 July 1993. See also the recent publication by (Judge) Mohammed, Bedjaoui, The New World Order and the Security Council: Testing the Legality of its Acts (1995).Google Scholar
2. Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. UK, Libya v. US) 1992, ICJ Rep. (1993), Request for the Indication of Provisional Measures, Order of 14 April 1992, reprinted in 31 ILM (1992) p. 662, and case Concerning the Application of the Genocide Convention (Bosnia-Herzegovina v. Federal Republic of Yugoslavia (Serbia and Montenegro)) Application Instituting Proceedings of the Republic of Bosnia-Herzegovina v. Yugoslavia; filed at the Registry of the Court 20 March 1993. See also the sources cited in n. 1 supra.
3. SC Res. 687 (3 April 1991).
4. SC Res. 748 (31 March 1992), in conjunction with SC Res.731 (21 January 1992).
5. SC Res. 794 (3 December 1992).
6. SC Res. 713 (25 September 1991) and other relevant SC Resolutions, UN GA Res. 47/121 (18 December 1992), etc. See also in particular the Provisional Verbatim Records (S/PV 3201, 19 April 1993) relating to the draft SC Resolution submitted by the non-aligned caucus in the Council aimed at having the arms embargo against Yugoslavia rescinded in so far as it relates to the Government of Bosnia-Herzegovina. The Resolution was not adopted due to insufficient votes, but the statements of various delegates, including those by Mr M. Sacirbey of Bosnia-Herzegovina, as well as statements by numerous delegations for non-aligned and Islamic States are indicative of the position of many States that the SC has no right to prevent a Member State of the UN from defending itself by what is termed ‘selective use’ of its enforcement powers.
7. Chapter VII of the Charter entitled ‘Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression’, embodies the Charter Collective Security System in conjunction with Art. 24 of the Charter which confers primary responsibility for the maintenance of international peace and security upon the Security Council. Chapter VI of the Charter grants the Council wide powers of preventive diplomacy and peaceful settlement (including traditional consensual peacekeeping). Chapter VI is related to the second of the purposes stated in Art. 1(1) of the Charter, viz., the peaceful settlement of disputes, while Chapter VII relates to the first of the stated purposes of the Organization referred to in Art. 1(1), namely the maintenance of international peace and security through the taking of effective collectivemeasures ‘for the prevention and removal of threats to the peace, and for the suppression of acts of aggression and other breaches of the peace.’ While the two functions are clearly related, they are nevertheless generally considered to be distinct and subject to different legal regimes. The excercise of functions under Chapter VI is governed by general international law. Enforcement measures under Chapter VII are governed by the Purposes and Principles of the Organization. What this means will be examined in section 3 of this essay infra.
8. See section 4.1 infra.
9. See section 3.5 infra.
10. Art. 24 UN Charter (emphasis supplied).
11. See, inter alia, Goodrich, L.M. and Hambro, E., The United Nations and the Maintenance of International Peace and Security (1955) at pp. 346–347Google Scholar; Schachter, O., International Law in Theory and Practice (1991) at p. 392Google Scholar and Gill, T.D., ‘The Second Gulf Crisis and the Relation Between Collective Security and Collective Self-Defense’, 10 Grotiana (New Series) (1989, published in 1991) p. 47 at p. 58Google Scholar. The Council rarely invokes specific articles in carrying out its functions, choosing rather to refer to Chapter VII in general terms. However, a determination that a threat to or breach of the peace exists has to date preceded any enforcement action the Council has taken.
12. See e.g., Kelsen, H., The Law of the United Nations (1951) at pp. 733–737Google Scholar. See also Schachter, op. cit. n. 11, at p. 391 and Gill, loc. cit. n. 11, at p. 60 and nn. 13 and 14 infra.
13. Goodrich, L.M., Hambro, E. and Simons, A.P., The Charter of the United Nations, 3rd edn. (1969) at pp. 293–294. See also Goodrich and Hambro, op. cit. n. 11, at pp. 353–354.Google Scholar
14. United Nations Conference on International Organization (hereinafter referred to as UNCIO) Documents, Vol. 12, pp. 502–514 and 578 et seq., wherein proposed amendments and comments by various States regarding Chapter VIII, Section B of the Dunbarton Oaks proposals by the Four Sponsoring Powers are contained. Chapter VIII, Section B of the Dunbarton Oaks Proposals corresponds to the present Chapter VII of the Charter. See also Goodrich, et al., op. cit. n. 13, at pp.294–295 and 326–327. Art. 44 of the Charter was added to the Charter at the behest of various medium and small States to ensure their participation in Council decisions affecting the utilization of their armed forces. See in this respect UNCIO, Vol. 12, p. 303, at p. 316.
15. UNCIO Vol. 12 at 572 (Statement of Rapporteur M. Joseph Paul Boncours at the opening meeting of the committee entrusted with the drafting of the enforcement provisions of the Charter).
16. See section 3.4 infra.
17. SC Res. 232 (16 December 1966).
18. SC Res. 418 (4 November 1977).
19. SC Res. 748 (31 March 1992).
20. SC Res. 794 (3 December 1992).
21. SC Res. 841 (16 June 1993). The sanctions against Haiti were terminated by SC Res. 944 (29 September 1994). In addition to the instances named as examples of situations constituting a threat to the peace in this paragraph, the Council has determined that a threat to the peace exists in the former Yugoslavia, in Liberia and in Angola. See section 2.8, in particular nn. 46–52 infra, for futher particulars. See also the sources cited in n. 40 infra.
22. See e.g., S/PV 3145 of 3 December 1992 relating to the situation in Somalia in which numerous delegates refer to unique circumstances calling for exceptional measures from which no precedents were to be construed. See also S/PV 3238 of 16 June 1993 in relation to the imposition of sanctions against Haiti. Similar qualifications relating to the ‘uniqueness’ of circumstances were made in Res. 929 of 22 June 1994 which authorized Member States (France) to carry out a limited humanitarian intervention in Rwanda to provide protection to refugees.
23. Kelsen, op. cit. n. 12, states at p. 727 that ‘it is completely within the discretion of the Security Council to decide what constitutes a “threat to the peace”.’ In a statement made on 31 January 1992 relating to the Responsibility of the Security Council in the Maintenance of International Peace and Security, the President of the Security Council pointed out that ‘the absence of war and military conflicts … 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. The United Nations membership working as a whole, working through the appropriate bodies, needs to give the highest priority to the solution of these matters.’ (3046th Mtg. 31 January 1992, S/23500.) This statement does not mean that the Council can or will utilize the collective security provisions of the Charter in relation to these problems. In the same statement the dangerof the proliferation of weapons of mass destruction was also pointed to as a threat to peace and security. This could in my view (see accompanying text) conceivably involve the utilizationof the collective security mechanism under certain circumstances. See also nn. 12–15 with accompanying text, supra.
24. This is what triggered SC action in relation to Haiti (n. 21 supra) and Angola where the Council imposed a mandatory arms and oil embargo upon the opposition movement UNITA when that movement failed to accept the results of a UN monitored election and reopened the civil conflict.The embargo was imposed by means of SC Res. 864 (15 September 1993).
25. See Goodrich and Hambro, op. cit. n. 11, at pp. 356–357 and Goodrich, et al., op. cit. n. 13, at pp. 297–298.
26. SC Res. 82 (25 June 1950) (Korea), SC Res. 502 (3 April 1982) (Falklands), SC Res. 598 (20 July 1987) (Iran-Iraq), SC Res. 660 (2 August 1990) (Kuwait).
27. Goodrich, et al., op. cit. n. 13, at p. 297, state that: ‘[v]arious kinds of acts could be considered as constituting breaches of the peace. At the least, it would seem logical that any resort to armed force would come within the scope of the phrase.’ All of the instances which the Security Council has considered as constituting breaches of the peace concerned large scale invasions by one State of another and in the case of Iran-Iraq, protracted warfare with the use of conventional and chemical weapons. The Iraqi invasion and annexation of Kuwait triggered a major response by the Council and Member States involving land, sea and air forces.
28. In SC Res. 713 (25 September 1991), the Council determined that the situation in (the former) Yugoslavia constituted a threat to the peace. All of its subsequent resolutions have referred to this resolution and have been based on that determination of the situation. The Council could, however, have deemed the situation as a breach of the peace once hostilities broke out.
29. Goodrich, et. al., op. cit. n. 13, at pp. 198–199.
30. Ibid. See in general, inter alia, Stone, J., Aggression and World Order (1958)Google Scholar; Broms, B., ‘The Definition of Aggression’, 154 Hague Recueil(1977) p. 299 et seqGoogle Scholar. and Schwebel, S.M., ‘Aggression, Intervention and Self-Defense in Modern International Law’, 136 Hague Recueil (1972) p. 411 et seq.Google Scholar
31. See e.g., Schwebel, loc. cit. n. 30, at p. 446 et seq., and Goodrich and Hambro, op. cit. n. 11, at pp. 359–360.
32. A resolution of the General Assembly is, of course, recommendatory and cannot generate legal obligations in itself upon the Security Council or Member States. The Security Council as a political organ is free to use or not to use the resolution as an aid in its determination of a situation.In the Nicaragua Judgement, the International Court referred to the Definition of Aggression as an indication of the content of customary international law in relation to so-called indirect armed attacks when carried out by ‘armed bands’ or irregulars (para. 195 at p. 103 of ICJ Rep. (1986)). However, this is in no way binding upon the Council in the exercise of its authority under Art. 39.
33. See, inter alia, Kelsen, op. cit. n. 12, at pp. 730–731 and Schachter, op. cit. n. 11, at p. 390. For a somewhat different view see Gowlland-Debbas, V., ‘Security Council Enforcement Action and Issues of State Responsibility’, 43 ICLQ (1994) p. 55 et seqCrossRefGoogle Scholar. In that article, the author examines the Council's role in the enforcement of internatonal obligations from the framework of analysis provided by the doctrine of State Responsibility (see p. 57). While I am in broad agreement with much of what she has to say, including her central point that the Council has become increasingly involved in the enforcement of international law (e.g., the establishment under Chapter VII of Tribunals for the Enforcement of Humanitarian Law in the former Yugoslavia and Rwanda) this does not in my view signify that the Council's primary function has become that of an international law enforcement agency. The enforcement activities of the Council are adjective to its primary function as a collective security organ.
34. Goodrich, et al., op. cit. n. 13, at p. 300 and UNCIO, Vol. 12, at pp. 506–508.
35. Goodrich and Hambro, op. cit. n. 11, at p. 303. See UNCIO, Vol. 12, at p. 507.
36. Herndl, K., ‘Reflections on the Role, Functions and Procedures of the Security Council of the United Nations’, 206 Hague Recueil (1987) p. 292, at pp. 324–325Google Scholar. Goodrich and Hambro, op.cit. n. 11, at pp. 383–384.
37. Herndl, loc. cit. n. 36, at p. 325.
38. Goodrich and Hambro, op. cit. n. 11, at pp. 386–387; see also White, N.D., Keeping the Peace (1993) pp. 90–93.Google Scholar
39. Goodrich, et al., op. cit. n. 13, at pp. 311–312.
40. ‘The Prospective Role of the United Nations in Dealing with the International Use of Force in the Post-Cold War Period: An Analysis in the Light of the Persian Gulf Crisis’, Symposium held in the University of Georgia School of Law, 1–2 March 1991, Remarks of Schrijver, N.J., formerly of the UN Secretariat Office of Legal Affairs, reproduced in 22 GJI & CL (1992) p. 9 et seq., at p. 42Google Scholar. See additionally, ‘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 Conflict (1994) p. 123 et seq.Google Scholar, for a comprehensive treatment of the placeand function of sanctions in the UN Charter and an extensive overview of recent UN practice inthis respect.
42. Goodrich, et al., op. cit. n. 13, at pp. 312–313.
43. Supra, nn. 17 and 18 respectively.
44. SC Res. 661 (6 August 1990) imposing a comprehensive economic and financial embargo upon Iraq, SC Res. 665 (25 August 1990) empowered States with naval forces in the area to ensure compliance with the embargo. SC Res. 670 (25 September 1990) extended the embargo to prohibit all civil air traffic to or from Iraq, except where authorized by the UN.
45. SC Res. 687 (3 April 1991).
46. SC Res. 757 (30 May 1992) imposing economic, scientific and cultural sanctions upon the Federal Republic of Yugoslavia (Serbia and Montenegro), and SC Res. 787 (16 November 1992)and SC Res. 820 (17 April 1993) in which the sanctions were further tightened and extended. The Council also imposed a ban on the use of military aircraft above the territory of Bosnia-Herzegovina in SC Res. 781 (9 October 1992) and 786 (10 November 1992) and tightened this measure in SC Res. 816 (31 March 1993) by authorizing Member States to take any necessary measures to ensure compliance with the ban of flights. The Council authorized Member States to take necessary measures to ensure compliance with the embargo by inspecting vessels bound for Yugoslav ports in the Adriatic Sea in the aforementioned SC Res. 787. In addition, the Council has in a number of resolutions, beginning with SC Res. 771 (13 August 1992) authorized UN forces operating in Bosnia-Herzegovina to take the necessary measures, including the use of force in self-defense, to ensure delivery of humanitarian relief supplies and protect civilians in so-called ‘safe areas’ – although these measures do not fall under Art. 41.
47. SC Res. 713 (26 September 1991).
48. SC Res. 733 (23 January 1992).
49. SC Res. 748 (31 March 1992) and SC Res. 883 (11 November 1993).
50. SC Res. 788 (19 November 1992).
51. SC Res. 864 (15 September 1993).
52. See n. 21 supra. In addition the Council directed the UN observer mission Uganda-Rwanda to monitor the Uganda-Rwanda border to verify that no military assistance, including in particular arms and ammunition, reached Rwanda in SC Res. 846 (22 June 1993) which constitutes an arms embargo in effect.
53. On the effectiveness of sanctions, see, inter alia. White, op. cit. n. 38, at pp. 93–100; Polealas, J., “Economic Sanctions: an Effective Alternative to Military Coercion?’, 4 Brooklyn JIL (1980) p. 289 et seq.Google Scholar; and the volume in The Cambridge International Documents Series entitled ‘Economic Sanctions and Their Consequences’ (1991). The examples of Rhodesia, South Africa, Iraq, Yugoslavia and even Haiti show that in themselves, sanctions rarely have had the effect of inducing compliance by the target States with the Security Council's wishes in the short or medium term. These same examples also demonstrate that sanctions can, in the long term, have a considerable impact upon the target State' s economystability and ability to maintain an attitude of defiance towards the international community.
54. On the breadth of the SC Mandate to use force under Art. 42 see, inter alia, Dinstein, Y., War, Aggression and Self-Defense (1988) at p. 257Google Scholar and Goodrich, et al., op. cit.n. 13, at pp. 314–315.
55. See supra, section 2.2 ‘The place of Article 39 within the Charter's Collective Security System’.
56. The relationship of Chapter XVII of the Charter to the Second World War and the Post-War Peace Settlement is made clear in Goodrich, et al., op.cit. n. 13, at pp. 627–637, and at p. 367.
57. The relationship of collective security with self-defense is treated in section 3.5 infra.
58. See Goodrich, et al., op. cit. n. 13, at p. 364, Kelsen, op. cit. n. 12, at pp. 326–328, and White, op. cit. n. 38, at pp. 21–23.
60. See, inter alia, Bowett, op. cit. n. 59, at pp. 267–268, White, op.cit. n. 38, at pp. 199–206 and the ICJ's judgment in Certain Expenses, ICJ Rep. (1962) p. 151 et seq., especially at pp. 170–171 and at pp. 175–177.
61. See supra, nn. 59 and 60.
62. See section 3.4 ‘The limitations imposed by the purposes and principles of the Charter’, infra.
63. See UNCIO, Vol. 12, p. 507. It should be pointed out that the necessity of authorizing the Council to take swift and effective military enforcement action in the event of flagrant aggression or other large scale breaches of the peace was a non-controversial proposition which received general support from all delegates in Commission III dealing with enforcement arrangements at the San Francisco Conference, including in particular those of smaller States, such as Belgium, whose views are reproduced on the indicated page of the UNCIO documents. The text of Art. 42, additionally, leaves no doubt with regard to this matter.
64. It is important to distinguish here between the question of the Council's legal competence to determine that sanctions have proven to be inadequate and that military measures are necessary to restore international peace and security and the distinct question of the policy considerations related to the wisdom, morality or timing of (making) such a determination ina given situation. For example, the majority of Afro-Asian States were in favor of swiftly proceeding to military enforcement measures in relation to the illegal unilateral declaration of independence by the white minority regime in Rhodesia and the question of South Africa, while the major Western States were opposed to using military force and favored a gradual approach in those situations; whereas in the Iraq-Kuwait situation, the major Western Powers were in favor of a swift determination that military force could be used, while a number of Islamic, Arab and other States as well as a significant minority opinion in the West favored ‘giving sanctions a chance’ and opposed a military resolution of the crisis at the time this wasundertaken. Whatever one's views of these situations, it is important to bear in mind that however close the policy and legal dimensions of this question are related, they are not thesame. No serious legal argument has ever been advanced to the effect that the Council may not use military force, until sanctions have proven to be futile, but this legal discretionary power does not imply that the Council necessarily should proceed to military measures every time sanctions fail to have the desired effect, any more than it means that military enforcement measures are precluded until sanctions have clearly failed to succeed.
65. See, inter alia, Goodrich, etal., op. cit. n. 13, at pp. 319–324 where the varying positions among the permanent members with regard to the type of forces to be placed at the disposal of the Council within the context of Art. 43 agreements are discussed at length.
66. The International Court rejected this argument in its advisory opinion in Certain Expenses, ICJ Rep. (1962) p. 151, at p. 167: ‘[i]t cannot be said that the Charter has left the Security Council impotent in the face of an emerging situation when agreements under Article 43 have not been concluded. ‘This position was, nevertheless, defended by a number of authorities before, during and after the Second Gulf War. See e.g., Weston, B., ‘Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy’, 85 AJIL (1991) p. 516, at p. 519Google Scholar. See also Cot, J.P. and Pellet, A., La Chartre des Nations Unies (1985) pp. 708–716Google Scholar. See also ibid, at pp. 1399–1407
67. Goodrich, et al., op. cit. n. 13, at p. 316 and at pp. 630–631, Kelsen, op. cit. n. 12, at p. 756. See also Simma, B., ed., The Charter of the United Nations: A Commentary (1994) pp. 633–635Google Scholar where the possibility of employing Art. 42 in the absence of agreements under Art. 43 finds additional support.
68. Clearly Art. 106 provides for a linkage between Arts. 42 and 43. This is the only provision of the Charter that does so. However, even the wording of Art. 106 does not preclude the Council from taking military enforcement action outside the context of Art. 43 as is made clear by, inter alia, the authors referred to in n. 67 supra, and by the text of Art. 106 itself. To argue that Art. 106 is the only possible alternative to Art. 43, when it is clear that it is meant to be of a transitional nature and is based on an expectation held by the framers of the Charter in 1945, is to argue a political and legal absurdity 50 years after the coming into force of the Charter.
69. Vienna Convention on the Law of Treaties (done at Vienna, 23 May 1969) Art. 31.
70. The voluntary nature of Art. 43 (and for that matter of Art. 106), regarding the provision of military forces to carry out enforcement action is made clear by the sources referred to in n. 67 supra, among others. See Goodrich, et al., op. cit. n. 13, at pp. 315–316 and Kelsen, op. cit. n. 12, at pp. 756–757. Kelsen assumes at p. 757, in contradiction to his statements on p. 756 that ‘if such agreements cannot be brought about, the provisions of Chapter VII concerning the employment of measures involving the use of armed force are not applicable.’ Kelsen then goes on to find the solution to this problem in Art. 106, which he also correctly finds to be of a voluntary character in that the five powers referred to in that provision are under no obligation to reach agreement regarding the employment of force. He then (at pp. 759–760) incorrectly concludes that ‘if (agreement) cannot be reached, the most important function of the Organisation, the function which forms the core of the Charter, cannot be performed by measures involving the use of armed force.’ What Kelsen and others who take this position fail to explain is why such voluntary cooperationn by the Members with the Organization can only be realized through the means of ‘special agreements’ referred to in Art. 43. If the Council calls upon or authorizes Members to carry out military enforcement action and Member States are willing to provide the necessary forces to do the job, there is nothing in the Charter which bans such a means of cooperation. This is borne out by over 40 years of practice, starting with Korea right up through the most recent decisions of the Council with regard to the situations in the Gulf, Yugoslavia, Somalia, Haiti and Rwanda.
71. Goodrich, et al., op. cit. n. 13, at pp. 317–18.
72. See n. 65 supra, and accompanying text.
73. France offered to provide 1000 troops to the Security Council to be placed under the control of the Military Staff Committee at a Summit Conference of Heads of State of Members of the Security Council held on 31 January 1992 (see White, op. cit. n. 38, at p. 102). More recently, the Dutch Foreign Minister, Hans van Mierlo, has proposed the establishment of a Standing Mobile Brigade under the control of the Security Council to which the Netherlands would be prepared to contribute forces. Neither initiative has had much of a response by any other Member of the Organization. The Secretary-General recommended the establishment of a Rapid Reaction Force under UN command and control in UN Doc. A/50/60 of 3 January 1994. This recommendation was not adopted by the Council. The recently established Rapid Reaction Force in Bosnia-Herzegovina is not to be confused with a standing UN intervention force, but as a reinforcement of the existing UNPROFOR.
75. Kelsen argues (op. cit. n. 12, at pp. 936–937) that the action undertaken in Korea (under Art.39 in the form of a recommendation, rather than as an authorization under Art. 42) cannot have been collective self-defense ‘[f]or collective self-defense is provided by the Charter only for the period of time during which no action of the United Nations, i.e., action by the Security Council, takes place.’ He then goes on to say (at pp. 937–938) that ‘since the Charter does not define the concept of “action of (or by) the United Nations”, it is not excluded to consider an action performed by a Member (or Members) in conformity … with a recommendation made by the Security Council under Art. 39, as an “action of (or by) the United Nations”.’ Assuming that my reasoning regarding the place of Arts. 42, 43 and 106 in the Charter Collective Security System is tenable, there is equally no reason not to regard an action performed by a Member (or Members) in conformity with an authorization of the Council under Art. 42 as an ‘action of (or by) the United Nations’.
76. White, op. cit. n. 38, at p. 103. See also Freudenschuss, H., ‘Between Unilateralism and Collective Security; Authorizations fo the Use of Force by the UN Security Council’, 5 EJIL (1994) p. 492 et seqCrossRefGoogle Scholar. for an analysis of recent cases in which the Council has authorized the use of force. Dr Freudenschuss is of the opinion that these authorizations to use force by one or more Member States constitute a new legal basis for the use of force in the context of enforcement action lying between the Charter provisions of Chapter VII relating to collective security and collective selfdefense (at p. 522). In his opinion such authorizations cannot qualify as collective military enforcement action under Arts. 39 or 42. With respect, I disagree for the reasons set out in the text above.
77. Assuming in the event special agreements were ever reached between Member States and the Organization (i.e., the Council) that any operations carried out by the forces placed at the disposal of the Council under the terms of such agreements would qualify as ‘pure’ United Nations actions because they would be ‘mandatory’ rather than ‘voluntary’, then actions carried out by Member States in conformity with recommendations under Art. 39 or authorizations under Art. 42 would from this point of view be collective but would not be ‘United Nations’ actions as such.
78. See e.g., Goodrich, et al., op. cit. n. 13, at p. 334 and 557, and Bowett, op. cit. n. 59, at p. 267 et seq.
79. UNGA Res. 337 (1950). The Uniting For Peace resolution was a product of the Cold War and of Western domination of the General Assembly at the time of its adoption, leaving aside the largely academic question as to whether the resolution is or is not ultra vires, the point would seem to be that the resolution has not been invoked as a source of authority for UN military operations of any kind since the 1960s, and has not been invoked at all since the Indian invasion of Bangladesh in 1971. White (op. cit. n. 38, at p. 156) points out that ‘(s)ince Bangladesh, the Uniting for Peace procedure has become indistinguishable in its impact from Assembly actions taken in ordinary or special session.’ With the revival of the Security Council since the end of the Cold War there would seem to be even less likelihood of the resolution playing any significant role for the foreseeable future.
80. There is broad agreement among most authorities cited earlier in this article including, inter alia, Bowett, op. cit. n. 38, at p. 55. The chief dissenters are Kelsen, op. cit. n. 12, at pp. 936–937 (although the opinion of that author cited in n. 75 supra, seems ambiguous in this respect) and Stone, J., Legal Controls of International Conflict (1959) pp. 232–235.Google Scholar
81. Schachter, loc. cit. n. 74, at p. 463.
82. Several authorities including, at least to a certain extent, Goodrich, et al., op. cit. n. 12, at pp. 555–558 and Bowett, op. cit. n. 59, at p. 267, refer to the possibility that Art. 94 could constitute a possible independent basis for the taking of enforcement measures, including presumably military enforcement measures, against a State which failed to comply with a binding judgment of the International Court, in the event a judgment creditor invoked this Article and the Council was not blocked by a veto or otherwise refused the request. It seems unlikely that the Council would or could take enforcement measures, especially those involving military force, without determining first that such non-compliance constituted a threat to the peace under Art. 39. Aside from the reason given in the text which is the most important, there is no precedent for such a course of action, Art. 94 having been invoked only on two occasions (Anglo-Iranian Oil Company case and Nicaragua case) without effect for reasons which need not concern us here.
83. See sections 2.3 and 2.6 supra. It should be pointed out that the term ‘threat to the peace’ in Art. 39 need not be synonymous with the term ‘threat of force’ used in Art. 2(4) of the Charter. As pointed out by, inter alia, Dinstein, op. cit. n. 54, at p. 258: ‘a threat of force under Article 2(4) is an illegal act, whereas a threat to the peace alluded to in Article 39 “may be the consequence of legitimate activities”’ (quoting in the last part of this citation B.V.A. Roling in 2 NTIR (1955) p. 167, at p. 173). Likewise, while abreach of the peace will almost invariably involve a violation of the prohibition of the use of force also contained in Art. 2(4) it need not be so serious as to constitute an ‘armed attack’ in the sense used in Art. 51 of the Charter.
84. In its ruling on provisional measures in the Lockerbie Aerial Incident case the Court ruled that the basis for denying Libya's request for provisional relief was to be found in Art. 103 of the Charter which provides that Charter obligations prevail over other international agreements, see 81 ILM (1992) p. 662, pp. 671–672 in which the Court order is reproduced. See also Gowlland-Debbas, V., ‘The Relationship Between the International Court of Justice and the Security Council in the Light of the Lockerbie Case’, 88 AJIL (1994) p. 643, at pp. 646–647CrossRefGoogle Scholar. See also Goodrich, et al., op. cit. n. 13, at pp. 614–616.
85. See n. 4 supra.
86. The Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Montreal Convention) of 23 September 1971, which entered into force on 26 January 1973, 974 UNTS, reproduced in 10 ILM (1971) p. 1151, provides for overlapping or concurrent bases of jurisdiction whereby, inter alia, the flag State, the State or the territory in which the offense is committed and the State where the alleged offender is present all have the right toexercise criminal jurisdiction. All of these treaty bases for the exercise of jurisdiction have their counterparts in customary international law. There is no requirement in either the Montreal Convention or in customary law that a State extradite its nationals to stand trial in another State which has prescriptive jurisdiction over the alleged offenders. Art. 7 of the Montreal Convention provides that in the case of non-extradition, the State in the territory of which the alleged offender is present shall without exception institute criminal proceedings. This was precisely the right which Libya sought to defend through proceedings at the International Court and which the Security Council chose to ‘override’in Resolutions 731 and 748.
87. The interplay between the Court and the Council and the perception that the Council had interfered with the judicial function has given rise to a vigorous reaction in the legal literature – much of which has had at least some connection with the alleged ‘constitutional’ shortcomings of the Security Council's action in the affair – especially the adaption during the Court's deliberation of Resolution 748 under Chapter VII. The entire question has been further complicated by the question of the existence of, or the desirability of a power of ‘judicial review’ by the Court of Council decisions. See, inter alia, Franck, loc. cit. n. 1, at p. 519 et seq.; Graefrath, B., ‘Leave to the Court What Belongs to the Court: The Libyan Case’, 4 EJIL (1993) p. 184 et seq.Google Scholar; ‘UN Checks and Balances, The Roles of the ICJ and the Security Council’, remarks made by T.M. Franck and T.D. Gill at the 1993 Joint Conference of the American Society of International Law and the Nederlandse Vereniging voor Internationaal Recht at The Hague, 23 July 1993, Contemporary International Law Issues: Opportunities at a Time of Momentous Change (1994) pp. 280–286Google Scholar. See also the article by Gowlland-Debbas, loc. cit. n. 84, and Judge Bedjaoui's publication, op. cit. n. 1, inter alia, at p. 43 et seq. This question will be dealt with infra, in section 3.6.2 of this article.
88. See supra, nn. 84 and 87 for an assessment of the Court's decision in Lockerbie. See also the text subsequent to n. 178 infra.
89. Goodrich, et al., op. cit. n. 13, at pp. 27–28. It is submitted that this quotation provides a succinct and accurate assessment of the place of international law in relation to the two primary functions of the Council and of the Organization as a whole, while the last sentence there of could, in this author's view, have been written specifically in relation to the present situation in Bosnia-Herzegovina. See also Kelsen, op. cit. n. 12, at p. 16. See also n. 90 infra.
90. UNCIO Vol. 6, pp. 452–453 (remarks by the President of the Commission M. Henri Rolin of Belgium). For the texts of the proposed amendments see ibid., p. 534 et seq. For the speeches of the delegates both for and against amending Art. 1 to include a reference to international law and justice in relation to the carrying out of collective enforcement measures and the voting record on the proposals see ibid., pp. 1–23 (English version). It should be noted that this was one of the most intensively debated provisions of the Charter and that the final voting regarding the inclusion of the proposed amendment resulted in an even split amongst the delegates (21 in favor-21 against, see p. 23). This was far short of the necessary two-thirds majority necessary for adoption of the amendment. This should not disguise the fact, however, that there was in fact a majority in favor of inserting some such amendment. Earlier votes in Committee 1 (charged with preparatory work on the Preamble, Purposes and Principles) had resulted in slight (19 for-15 against) and larger (19 for-12 against) majorities in favor of similar amendments (see ibid., at p. 12). The matter was then brought before the full Commission (Commission I General Provisions) with the results first alluded to. During the debates, the delegates in favor of the amendments made frequent references to the dangers of smaller nations being sacrificed in the context of expediency or appeasement – with references to the fate of Czechoslovakia in 1938 by some delegates, and the necessity of peace being based on justice and international law. The delegates opposed to the amendments all pointed out the necessity of providing the Council with maximum flexibility and power in the application of collective enforcement measures in the context of maintaining or restoring peace and security and pointed out the potential pitfalls of conditioning such action on considerations of international law or ‘justice’ which were considered to be too open-ended and capable of conflicting interpretation.On the other hand, there was no opposition in principle to the thes is that once peace was restored it must be based ultimately upon considerations of justice and that settlement of disputes must be carried out ‘with due regard’ for legal considerations and the rights of States. In the end a compromise was reached, with the Sponsoring Powers giving way in accepting the strengthening of the text of Art. 1 by agreeing to the inclusion of the phrase ‘in conformity with the principles of justice and international law’ in relation to the peaceful settlement of disputes, while the smaller States in favor of the amendments gave up their opposition to the original text of the Sponsoring Powers relating to collective measures ‘for the prevention or removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace’ when it became clear that the major powers would not give way on this issue and they could not achieve the necessary majority.
91. See infra, section 3.6.2 for an assessment of the consequences of this discussion for the question of the possibility and appropriateness of ‘judicial review’ by the International Court of Security Council decisions.
92. See e.g., The New Webster Encyclopedic Dictionary of the English Language (1980) p. 176Google Scholar where it states ‘confer differs from bestow, in as much as it always implies a certain amount of condescension or superiority on the part of the giver.’
93. ICJ Rep. (1962) (Certain Expenses of the United Nations), p. 151, at p. 163.
94. Art. 51 Charter.
95. See infra, section 3.5 entitled ‘The right of self-defense and the primary responsibility of the Security Council for the maintenance of peace and security.’
96. Goodrich, et al., op. cit. n. 13, at pp. 204–205, refer to the controversies surrounding the retention by the Council on its agenda of the question of withdrawal of Soviet forces from Northern Iran in 1946 in the face of Soviet opposition and the placing of the Free Territory of Trieste under Council authority as examples of situations in which the scope of the Councils ‘implied powers’ under Art. 24 were specifically debated. It was in the latter of these two controversies that the Secretary-General (Mr Trygve Lie) made the statement relating to the Council's general powers in the maintenance of peace and security referred to by the Court in the Namibia Opinion (see text above and the following note). White, op. cit. n. 38, at pp. 62–66, points to the controversy surrounding the binding nature of the Council decision to revoke the Mandate over Namibia and discusses the attitude of those States – in this case the Western States, which take the position that binding decisions can only be taken under Chapter VII of the Charter (White is clearly opposed to this position). He also discusses the possibility of the Council imposing a binding settlement by means of a combination of Article 24 and Chapter VI (ibid., at pp. 83–88) in relation to a number of situations, including most notably the imposed cease-fire terms on Iraq (SCOR Res. 687). However, this was not based upon Art. 24 or a combination of Article 24 and Chapter VI, as were some of the other examples he refers to in these pages, but upon Chapter VII.
97. ICJ Rep. (1971) p. 16, at p. 52 (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding SC Res. 276 (1970). The statement by the Secretary-General is referred to in the previous note and was made on 10 January 1947, SCOR/2nd Yr/91 stmtg/p. 44 et seq.
98. ICJ Rep. (1971) at p. 52 (para. 110).
99. Art. 1(1) designates two ‘paths’ or courses of action open to the Council (see supra, section 3.2 and accompanying notes). In exercising its authority to bring about a settlement of a dispute, the Council is specifically limited by the principles of international law and justice. Arts. 33, 36, 37 and 38 emphasize the recommendatory nature of the Council's powers in finding a settlement and the principle of free choice of means and relevance of international law to the terms of a settlement, even if the Council chooses to actively pursue a particular means of settlement of a dispute. Art. 39 specifically restricts the Council in its power to take binding measures to those contained in Arts. 41 and 42, i.e., in the context of collective security measures for the maintenance or restoration of peace and not to measures aimed at providing a solution to controversies or settlement of disputes. Art. 40 gives the Council the power to take provisional measures, which under certain circumstances can be binding. But these measures, clearly by the text of Art. 40 may not prejudice the rights of or impose the terms of settlement upon the parties concerned. See supra, section 2.7.
100. See supra, n. 90 and accompanying text.
101. Vienna Convention on the Law of Treaties of 23 May 1969, entered into force on 27 January 1980, 1155 UNTS 331, reproduced in ILM (1969) p. 679.
102. Jowitt's Dictionary of English Law, 2nd edn., J. Burke, ed. (1977) at p. 1090.
103. See supra, n. 97 (Namibia Opinion), at p. 56 (para.125).
105. See supra, n.97 and accompanying text. For a discussion of the specific limitations upon the Council's exercise of its enforcement powers by the ‘Purposes and Principles of the Organization’ see infra, section 3.4.
106. The literature on the right of self-determination is vast and in particular since the demise of the Soviet System and Post War Political Order in Central and Eastern Europe increasingly contentious views have emerged regarding the content of self-determination and its applicability to non-colonial situations. See, inter alia, Crawford, J., ed., The Rights of Peoples (1988)Google Scholar; Driessen, B., A Concept of Nation in International Law (1992)Google Scholar; Brolmann, C., Lefeber, R. and Zieck, M., eds., Peoples and Minorities in International Law (1993)Google Scholar; and Tomuschat, C., ed., Modern Law of Self-Determination (1993)Google Scholar, for an overview of contending theories with regard to the current scope and applicability of the right of self-determination to various situations. See also Simma, op. cit. n. 67, at pp. 57–72.
107. In the context of so-called ‘failed States’ such as Somalia and Liberia, the possibility that the UN Trusteeship System or some variation there of could or should be revived has on occasion been put forward as a possible means of providing a solution. See D.A. Leurdijk, ‘Towards a new interpretation of the right to Self-determination: The relevance ofoptions for a governmental role of the UN’, paper presented at the Symposium ‘Naar een nieuwe interpretatie van het recht opzelfbeschikking’(Towards a new interpretation of the right to self-determination) held at the Free University of Brussels, 20–21 January 1995. This could clearly only be legally carried out if the State concerned (all concerned partiesincluding of course the population) were to agree to such an arrangement. Art. 78 of the Charter would preclude any imposition of the Trusteeship System as such and there is no basis in Chapter VII or elsewhere of the Charter for an imposition of a UN Trusteeship or similar administration upon a State which was a Member of the UN.
108. The law of belligerent occupation which is part of the law of armed conflict is applicable to UN (authorized) military forces engaged in sustained military operations and is treated separately, infra, section 3.4.2.
109. For an overview of these operations see e.g., Boutros Boutros, Ghali, Building Peace and Development, 1994Google Scholar Annual Report on the work of the Organization from the 48th to the 49th session of the General Assembly, pp. 212–215 (Mozambique) and pp. 185–187 (El Salvador). The Namibian Operation is given coverage in White, op. cit. n. 38, at pp. 247–250. The concept of peace-building was set out by Secretary-General Boutros Ghali in his Agenda for Peace, cited supra, n.1 and reproduced in 31 ILM (1992) p. 956, at pp. 969–970. See also The Blue Helmets. A Review of United Nations Peacekeeping, 2nd edn. (1990) (UN Pub. Sales No. e.90.I.18)Google Scholar. See also Simma, op. cit. n. 67, pp. 572–603.
110. In setting up the Tribunal for the Former Yugoslavia, the SC has refrained from following the precedent set by the Allies in World War II in declaring certain organizations to be criminal.The Tribunal only possesses jurisdiction over individuals for their alleged violations of humanitarian law. Yet there is no reason why the Council could not choose if the circumstanceswere appropriate, to criminalize a particular organization. For the controversy surrounding thecriminalization of organizations such as the Gestapo and the SS, see e.g., Tusa, A. and Tusa, J., The Nuremburg Trial (1983) at pp. 107–109Google Scholar. See also Taylor, T., The Anatomy of the Nuremburg Trials (1993) p. 501 et seq.Google Scholar
111. One of the cardinal principles of the law of occupation – indeed of the law of armed conflict – is that the occupying authority does not exercise sovereign rights over the occupied territory and population and that an occupied State does not cease to exist as a subject of international law.
112. The literature on the place of human rights in contemporary international law is vast. Two excellent overviews can be found in Meron, T., Human Rights and Humanitarian Norms as Customary Law (1989)Google Scholar and Schachter, op. cit. n. 11, at pp. 330–361. See also in general Henkin, L., ed., The Internatonal Bill of Rights (1981).Google Scholar
113. See supra, nn. 96 and 97 and accompanying text. Regarding the duty of the Council to take account of the impact of sanctions upon the civilian population of a target State see e.g., Provost, R., ‘Starvation as A Weapon: Legal Implications of the UN Food Blockade Against Iraqand Kuwait’, 30 Col. JTL (1992) p. 577 et seq.Google Scholar
114. The fact that the Security Council is the ultimate repository of authority in deciding upon or authorizing Member States to carry out enforcement action signifies that both the Organization (on behalf of which the Council operates in exercising its authority to maintain peace and security according to Art. 24 of the Charter) and the Member States concerned incur international responsibility for violations of human rights and humanitarian rules of conduct. This can be implied from Arts. 9 and 28 of the Draft Articles on State Responsibility.
115. For example, allegations of misconduct by UN personnel in the context of the Somalia Operation have resulted in the disbanding of an elite Canadian paratroop regiment by the Canadian Government and proceedings by the Belgian Government against a number of Belgian military personnel accused of involvement in racist incidents or excessive use of force. Likewise television pictures of US personnel engaged in heavy handed methods of stopping suspected Somali gunmen in the streets of Mogadishu contributed to a lessening of support by the media and general public in many countries for what was intended to be a humanitarian operation.
116. Art. 4 of the International Covenant on Civil and Political Rights of 19 December 1966 (entered into force 23 March 1976) refers to a number of core provisions which States may not derogate from ‘in time of public emergency which threatens the life of the nation.’ Likewise, Art. 2 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (entered into force 26 June 1987) provides, inter alia, that ’[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal instability or any other public emergency, may be invoked as a justification of torture.’
117. See in this respect Bowett, op. cit. n. 59, at pp. 493–499 where the author points out that a number of leading authorities questioned the relevance and applicability of the law of war to UN enforcement action. He refers to such authors as Lauterpacht, Wright and Kunz who haveexpressed such doubts in this respect. Bowett, however, states the opposite view. See also Schachter, loc. cit. n. 74, at p. 465, where he points out the controversy in the legal circles concerning the applicability of the law of war to the Korean Conflict. Schachter too is clearly in favor of the full applicability of the law of armed conflict to UN enforcement operations. See also ‘Conditions of Application of Humanitarian Rules of Armed Conflict to Hostilities in which United Nations Forces May be Engaged’, resolution adopted by the Institute of International Law at its session in Zagreb, 3 September 1971, and ‘Conditions of Application of Rules, Other Than Humanitarian Rules of Armed Conflict to Hostilities in which United Nations Forces May be Engaged’, resolution adopted by the Institute of Law at its session at Wiesbaden, 13 August 1975, reproduced in Schindler, D. and Toman, J., The Laws of Armed Conflict (1988) pp. 903–908Google Scholar. See also Schindler, D., ‘United Nations Forces and International Humanitarian Law’, in Swiniarski, C., ed., Studies and Essays on International HumanitarianLaw and Red Cross Principles; Essays in Honour of Jean Pictet (1984) p. 521 et seq.Google Scholar
118. See US Department of Defense ‘Report to Congress on Conduct of Persian Gulf War’ reproduced in 31 ILM (1992) p. 612.Google Scholar
120. SC Res. 645 (25 August 1990) and SC Res. 674 (29 October 1990) both refer specifically to Iraq's duties under the Fourth Geneva Convention. SC Res. 686 (2 March 1991) refers to Iraq's responsibilities under the Third Geneva Convention and SC Res. 687 (3 April 1991) makes various references to the applicability of a number of conventions of humanitarian law of war nature such as the Gas Convention of 1925.
121. Schachter, loc. cit. n. 74, at pp. 445–466. See also Weller, M., ed., ‘Iraq and Kuwait: The Hostilities and their Aftermath’, Cambridge International Documents Series (1993) Vol. 3Google Scholar, which includes copious documentation relating to the applicability of the law of armed conflict.
122. Schindler, op. cit. n. 117, states at p. 527 that ‘[s]ince the United Nations is bound by the customary rules of international law, States whose armed forces oppose UN forces are equally obliged to apply these rules.’
123. Schachter, op. cit. n. 112, at p. 400, argues vigorously in favor of the applicability of the law of armed conflict to UN and UN authorized military enforcement operations. See also his views expressed in the article cited supra, n. 74, at pp. 465–466. Schachter points out thatthe argument voiced by certain leading authorities during the Korean War to the effect that the law of war was not entirely applicable to a UN force engaged against an aggressor were mistaken. He goes on to say that ‘[t]o abandon the principles of equality and reciprocity in this regard would weaken the basis for any observance of the humanitarian rules of armed conflicts.’ He states the position that ‘the practical necessity of equality to ensure observance remains the compelling reason for requiring that UN forces comply fully with the humanitarian rules of armed conflict.’ He also points to the fact that the prestigious ‘Institut de Droit International’ recognized this in its 1971 Resolution declaring that humanitarian rules of armed conflict applied to UN forces engaged in hostilities (54 AIDI (1971-II) at pp. 465–470) and its 1975 Resolution declaring that non-strictly humanitarian rules of humanitarian law also apply to the UN and its forces engaged in hostilities (56 AIDI (1975) at pp. 541–545). With respect, I do not wholly agree with Prof. Schachter's reasoning in this respect. To be sure, reciprocity can often contribute to the effectiveness of a rule, but this is not the reason why the rule is legally binding in itself. The problem with determining that the reason for observing the law of war by UN forces is essentially practical is that this reasoning only holds water in so far as it is effective. If the other side fails to be deterred from serious violations, there is no reason according to this viewpoint for the UN to continue to observe its obligations. In both Korea and the Gulf the aggressor side systematically violated the law of war; however, this did not in any way lessen the obligation of the UN forces to continue to observe the law of armed conflict. The possibility of inducing compliancethrough belligerent reprisals does not in any way contradict this, since they are part of the law, provided they are carried out within the legal limits of exercising reprisals. See Kalshoven, F., Belligerent Reprisals (1971).Google Scholar
124. Art. 24 of the Charter uses the word ‘confer’. If the Member States are boundby the law of armed conflict they cannot ‘confer’ a right to ignore that law or pick and choose which rules of the humanitarian law will be observed upon the Organization or its organ the Security Council. The fundamental legal maxim Nemo plus juris ad alium transferre potest, quam ipse haberet which can be attributed to the classic Roman jurist Ulpianus is partand parcel of every modern major legal system and is a ‘general principle of law’.See Spruit, J.E., Textus luris Romani (1977) para. p. 462 at p. 198.Google Scholar
125. (First) Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949), 75 UNTS, 31; (Second) Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949), idem, 85; (Third) Geneva Convention Relative to the Treatment of Prisoners of War (1949), idem, 135; (Fourth) Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949), idem, 287; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict (Protocol I) (1977), UNJY (1977) p.75, reproduced in 16 ILM (1977) p. 1442. Many major military powers including, inter alia, the United States, Russia, France and the United Kingdom have not ratified Protocol I. Nevertheless many, but not all, of its provisions can be considered to constitute customary law. See e.g., Meron, op. cit. n. 112, at pp. 62–70 and US DOD Report supra, n. 118, at pp. 624–625 where, inter alia, Arts. 48 and 49(1) of Protocol I are designated as customary law. (Protocol II relating to Non-International Armed Conflicts is irrelevant to the conduct of military enforcement action by UN forces or the forces of Member States acting under UN authorization or recommendation, since such operations are by definition international, regardless of the nature of the conflict concerned. The Hague Conventions are generally considered to constitute customary law in so far as they are not outdated. Likewise, the Geneva Conventions are generally considered by most authorities to constitute customary law. See, inter alia, Green, L.C., The Contemporary Law of Armed Conflict (1993)Google Scholar and Greenwood, C., ‘Customary Law Status of the 1977 Additional Protocols’, in Delissen, A. and Tanja, G., eds., Humanitarian Law of Armed Conflict:Challenges Ahead (1991) at p. 93 et seqGoogle Scholar. See also Schindler, loc. cit. n. 117, at pp. 526–528.
126. Dinstein, op. cit. n. 54, at p. 153.
127. Ibid. In the Falklands-Malvinas conflict, the SC passed Res. 502 on 3 April 1982 determining that a breach of the peace had occurred (Art. 39) and implementing a number of provisional measures including a demand for a withdrawal of Argentinian troops which had occupied the islands the day before. See Wellens, K., ed., Resolutions and Statements of the United Nations Security Council (1946–1989): A Thematic Guide (1990) at pp. 403–405Google Scholar. A number of States supported Argentina diplomatically (e.g., Panama, the only State voting against Res.502) while others supported the UK. Still others like the US in the initial stage, Brazil, and a number of EC States maintained an attitude of neutrality with more or less diplomatic sympathy for one side or the other. The US switched to support for the UK when its efforts at mediation aimed at achieving an Argentine withdrawal failed. No State offered open military assistance to either side and all other States could be legally viewed as either neutral or non-belligerent.
128. See section 3.2 supra, especially n. 90 and accompanying text.
129. The Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, GA Res. 2625, 24 October 1970, UN Doc. A/8028, states, inter alia, that ‘the territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force.’ No territorial acquisition resulting from the threat or use of force shall be recognized as legal and ‘the territorial integrity and political independence of the State are inviolable.’
130. Arts. 52 and 53 respectively of the Vienna Convention on the Law of Treaties.
131. Mendelson, M.H. and Hulton, S.C., ‘The Iraq-Kuwait Boundary’, 64 BYIL (1993) p. 135, at p. 149Google Scholar, citing the corresponding Articles (Art. 52) from the Vienna Convention on Treaties Between International Organizations and States or Between International Organizations, states this argument: ‘It follows that it is only the illegal (emphasis in the original) threat or use offeree which can bring about the nullity of a treaty. It would seem to follow, a contrario, that the sanction of nullity will not apply to a treaty imposed by the UN in the course of an enforcement action upon a State guilty of an act of aggression.’ See also ibid., n. 52, at p. 149, where the argument is reinforced by reference to Art. 76, of the Vienna Convention on Treaties Between International Organizations and States or Between International Organizations (Art. 75 Vienna Convention on the Law of Treaties) in relation to treaties affecting aggressor States.
132. Idem. p. 144 where the authors distinguish between the terms allocation, delimitation and demarcation. See also H.H.G. Post, ‘Adjudication as a Mode of Acquisition of Territory? Some Observations on the Iraq-Kuwait Boundary Demarcation in Light of the Jurisprudence of the International Court of Justice’, in Fitzmaurice, M. and Lowe, V., eds., Fifty Years of the International Court of Justice (1995) pp. 237–263.Google Scholar
133. SC Res. 662 (9 August 1990), SC Res. 678 (3 April 1991) reproduced in Weller, loc. cit. n. 121, at pp. 3 and 877, respectively. Under part A of the latter resolution the Council demanded that Iraq and Kuwait respect the international boundary agreed between them in Baghdad in 1963(para. 5, idem. 9) and called on the S-G to lend his assistance in demarcating that boundary (para. 6, idem.). In part B (paras. 5 and 6, idem.) reference is made to the establishment of an interpositionary force to prevent border violations and provided ‘that as soon as the Secretary-General notifies the Council of the completion of the observer unit, the conditions will be established for the Member States cooperating with Kuwait … to bring their military presence in Iraq to an end …’ Regarding the demarcation itself see, inter alia, n. 131 supra, and 32 ILM (1943) p. 1425, as well as Weller idem., pp. 433–482.
134. SC Res. 687 in its third preambular paragraph specifically affirms ‘the Commitment of all Member States to the sovereign, territorial integrity and political independence of Kuwait and Iraq.’
135. See the sources cited in the previous note. In addition to the above stated arguments, the question of Iraq's consent should be added. Iraq formally consented to the demarcation. See Mendelson and Hulton, loc. cit. n. 131, at pp. 148–149 including fn. 45, atp. 148. Iraq subsequently claimed that its consent was only given under duress. The important point would seemto be not whether the Council requires Iraq's consent to carry out something it is entitled to do, i.e., demarcate or delimit an existing boundary in order to prevent further threats or breaches of the peace, nor is the fact that a peace treaty imposed by the Council against the will of a defeated aggressor State is not in itself void as argued by the authors in their article at issue. What is at issue is whether the Council has the right to allocate territory without the free consent of the States (and populations)concerned. The fact that cease-fire agreements and even treaties with aggressor States are not automatically void if they lack the consent of the aggressor State does not signify that the Council has the right to allocate territorial rights. This is recognized by the Council itself in Resolution 687 (see previous note) and Resolution 773 (26 August 1992) which reaffirms ‘that through the demarcation processthe Commission is not reallocating territory between Iraq and Kuwait, but it is simply carrying out the technical task necessary to demarcate for the first time the precise coordinates of the boundary.’ (See Weller, loc. cit. n. 121, at p. 481). It follows that if the Commission did in fact exceed its mandate and reallocated territory that this would be without final legal effect.
136. Hendry, I.D. and Wood, M.C., The Legal Status of Berlin (1987), state (at p. 19)Google Scholar: ‘The State of Germany was not extinguished in 1945 at the time of the unconditional surrender of the German armed forces and the assumption of supreme authority and occupation by the Four Powers.’
137. The law of self-defense has been extensively analyzed and commented upon by both authorities tending towards a restrictive approach, including, inter alia, Ago, R. (Special Rapporteur) 2 ILC Yearbook (1980-1981) p. 51 et seq.Google Scholar; Brownlie, I., International Law and the Use of Force fry States (1963) p. 251 et seq.Google Scholar; Falk, R., ed., The Vietnam War and International Law (1969) pp. 362–400Google Scholar; Henkin, L., ‘Force, Intervention and Neutrality in Contemporary International Law’, Proceedings of the American Society of International Law, 57th Annual mtg. (1963) p. 148 et seq.Google Scholar; Kelsen, op. cit. n. 12, at p. 749 et seq.; de Aréchaga, E. Jiménez, ‘International Law in the Last Third of a Century’, 159 Hague Recueil (1978) pp. 86–116Google Scholar; and by authors taking the view that the contemporary right of self-defense is closer to the pre-Charter customary right, including Bowett, D., Self-Defence in International Law (1958)Google Scholar; McDougal, M. and Feliciano, F.P., Law and Minimum World Order (1941) p. 231 et seq.Google Scholar; Stone, op. cit. n. 30, and Waldock, C.H.M., ‘The Regulation of the Use of Force by Individual States in International Law’, 81 Hague Recueil (1952) p. 455 et seqGoogle Scholar. More recent works on self-defense include Dinstein, op. cit. n. 54 and 2nd edn. (1994); Schachter, op. cit. n. 11, at pp. 135–183 and Gill, loc. cit. n. 11, at pp. 47–76.
138. See Gill, loc. cit. n. 11, and Schachter, op. cit. n. 11 and n. 139.
139. Under the pre-Charter system relating to collective security and the use of force which was in force during the League of Nations era between the two world wars, the use of force was not prohibited as such, but regulated by the League Covenant. Art. 10 of the Covenant obliged the Members to guarantee the political independence and territorial integrity of any other League Member which was the object of external aggression. It did not, however, provide for any automatic duty to provide military assistance, but rather stated that the League Council would advise upon the means by which this obligation would be fulfilled. Art. 11 stated the central principle of the system, namely that any war or threat of war was a ‘matter of concern to the whole League’. Arts. 12, 13 and 15 dealt with means and procedures of peaceful settlement and regulated the right of Members to engage in war. Art. 16 provided for non-military sanctions against a State which engaged in war in contravention of Arts. 12, 13 and 15 and for the possibility of military enforcement measures on a voluntary basis. The Kellogg-Briand Pactof 1928 extended this system by prohibiting war as an instrument of national policy but in no way limited or altered the right of self-defense or the use of force as an instrument of international policy by League Members on a voluntary basis. See Gill, loc. cit. n. 11, at pp. 50–51and at pp. 56–57 and Dinstein, op. cit. n. 54, at pp. 77–83.
140. Necessity and proportionality are universally recognized components of the (customary) right of self-defense, see Dinstein, op. cit. n. 54, at pp. 190–191 and 216–221, Schachter, op. cit. n. 11, at pp. 152–155 and Gill, loc. cit. n. 11, at pp. 67–70. The requirement of an armed attack was stated unequivocally by the International Court in the Nicaragua case. See ICJ Rep. (1986) p. 14 at p. 103 (paras. 194–195).
141. Schachter, op. cit. n. 11, at p. 402. See also the Dissenting Opinion of Judge Schwebel in the Nicaragua Judgment, ICJ Rep. (1986) p. 284 et seq.
142. Dinstein, op. cit. n. 54, at pp. 195–197, Schachter, op. cit. n. 11, at pp. 401–404.
143. A continuation of the attack by the attacking State, notwithstanding any cease-fire orderby the Council would justify continued self-defense since the requirement of an armed attack would have been met and the necessity of self-defense would still be present and relevant; minor cease-fire violations would justify ‘on the spot reaction’, i.e., what Dinstein, op. cit. n. 54, at pp. 200–201, calls as a situation ‘in which a small-scale armed attackelicits at once, and in situ the employment of [localized] counter-force (thereby closing the incident).’ If, however, a cease-fire order by the Council had the effect of temporarilyinducing the parties to end hostilities, but after a period of time the attacking State resumed large scale offensive operations, this could be viewed as a new attack which would give riseto the right of self-defense independently of any previous situation that might have pertained. Violation of cease-fire, truce or armistice constitutes in itself a violation of Art. 2(4) of the Charter according to General Assembly Resolution 2625 and numerous Security Council Resolutions. See e.g., Wellens, op. cit. n. 127, at p. 446 et seq. for SC Resolutions relating to the Arab-Israeli Conflict where violations of cease-fire orders and armistice lines are clearly viewed as violations of Art. 2(4).
144. This duty is provided for in Arts. 25 and 49 of the Charter and by the Council's primacy in the matter.
145. See Gill, loc. cit. n. 11, at pp. 67–69. For a contrary opinion see e.g., Lavalle, R., ‘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’, 23 NYIL (1992) pp. 39–40CrossRefGoogle Scholar. See also n. 151 infra.
146. Dinstein, op. cit. n. 54, at pp. 192–193.
147. This is evident from a textual interpretation of Art. 1(1) which uses the words ‘effective collective measures’, from Art. 51 of the Charter which provides for the right of self-defense ‘until the Security Council has taken the measures necessary to maintain international peace and security,’ and from an examination of the discussions in San Francisco relating to the Council's powers and duties from which it is clear that the centralassumption of all States, both large and small, was that in the event of a clear breach of thepeace the Council would be both ready and able to take swift and effective measures. See UNCIO Vols. 11 and 12 where this assumption was stated repeatedly by numerous delegates, as well as by the subsequent practice of the Council which is examined in the following pages.
148. See e.g., White, op. cit. n. 38, at pp. 55–56 and Wellens, op. cit. n. 127, at p. 403.
149. Wellens, op.cit. n. 127, at pp. 353–357 and 362–363. See for a general account of the Iran-Iraq War Hiro, D., The Longest War: The Iran-Iraq Military Conflict (1988)Google Scholar and Dekker, I. and Post, H.H.G., eds., The Gulf War of 1980–1988 (1992)Google Scholar. It follows from the above that if Iraq had refused to comply with the terms of the Council resolutions then Iran's right of self-defense would not have been suspended.
150. On the illegality of punitive armed reprisals see, inter alia, Dinstein, op.cit. n. 54, at pp. 202–203 (where he distinguishes between defensive reprisals and those which are not) and Barsotti's, R. ‘Armed Reprisals’ in Cassese, A., ed., The Current Regulation of the Use of Force (1986) p. 79 et seq.Google Scholar
151. This position is not free of controversy. During the lead up to the adoption of SC Res. 665 and SC Res. 678 some argued that sanctions had the effect of suspending or terminating the right of self-defense while others contended that the fact that the Council had imposed sanctions did not in itself suspend or otherwise effect the right of self-defense. For the first opinion see e.g., Chayes, A., ‘The Use of Force in the Persian Gulf’, in Damrosch, L.F. and Scheffer, D.S., eds., Law and Force in the New International Order (1991) at pp. 5–7Google Scholar and Mullerson, R., ‘Self Defense in the Contemporary World’Google Scholar, in idem., at p. 22 where he states ‘the Security Council took measures necessary to maintain international peace and security, it adopted trade and financial sanctions against Iraq, and it authorized measures to enforce these sanctions. From the moment the Security Council adopted these measures and imposed them on Iraq, the inherent right of self-defense was replaced by these collective measures.’ See also Lavalle, loc. cit. n. 145. For examples of the contrary opinion, see, inter alia, Rostow Agora, E., ‘Gulf Crisis in International Law’, 85 AJIL (1991) pp. 504–514Google Scholar, Schachter, op. cit. n. 11, at p. 403, Dinstein, op. cit. n. 54, at pp. 196–197, Waldock, loc. cit. n. 137, at pp. 495–496, White, op. cit. n. 38, at p. 56. My position is clearlyin favor of the latter opinion for the reasons stated above and elsewhere in this article.
152. See supra, n. 151.
153. ‘Developments in the Law of Naval Operations’, meeting held on 24 July 1993 during the Second Joint ASIL/NVIR Conference in The Hague. Remarks by Ove Bring published in the proceedings of that Conference entitled Contemporary International Law Issues: Opportunities at a Time of Momentous Change (1994) p. 343 et seq.Google Scholar
154. The use of the word ‘legal’ in this context is intentional and is meant to signify that action in self-defense would have been in conformity with international law as longas the Council did not state otherwise. Clearly the operation could not have been undertaken in the form it was without Res. 678 for political reasons.
155. Schachter, loc. cit. n. 74, at p. 457 et seq. and Gill, loc. cit. n. 11, at p. 76.
156. See section 4, infra, entitled ‘Some comments on the legitimacy and effectiveness of the Security Council.’
157. See section 3, supra, ‘Legal limitations on the exercise of enforcement powers.’
158. The literature relating to State responsibility is vast and can be divided into two main types of sources: the work of the ILC on codifying and developing the law of responsibility starting with the reports of Rapporteur F. Garcia-Amador in 1956 and continuing to the present with the reports by Rapporteurs R. Ago, W. Riphagen and B.G. Arangio Ruiz with the commentariesby the Commission and Sixth Committee of the General Assembly; and the work of many noted publicists including, inter alia, Brownlie, I., Principles of Public International Law, 4th edn. (1990) p. 432 et seqGoogle Scholar. and by the same author System of the Law of Nations: State Responsibility (1983); Gowlland-Debbas, V., Collective Responses to Illegal Acts in International Law: United Nations Action in the Question of Southern Rhodesia (1990)Google Scholar; Riphagen, W., in MacDonald, R.St.J. and Johnston, D.M., eds., The Structure and Process of Intemational Law (1983)pp. 581–625Google Scholar; the contributions by various authors including M.B. Akehurst, G. Hand I and others in 16 NYIL (1985) (Symposium on State Responsibility), Schachter, op. cit. n. 11, at pp. 202–226 and Spinedi, M. and Simma, B., eds., United Nations Codification of State Responsibility (1987) to name but a few.Google Scholar
159. Arts. 1–4, Draft Articles on State Responsibility of the ILC, ILC Yearbook 1980 Vol. II, Part Two, p. 30 et seq. (the above statement assumes that the element of imputability covered in Arts. 5–15 in ibid, is present and Arts. 24–34 in ILC Yearbook 1985 Vol. II, Part Two, at pp. 24–25.
160. See, inter alia, the dictum of the PCIJ in the Chorzow Factory (indemnity) case, PCIJ Series A, No. 17, at p. 47, where it was stated that: ‘The essential principle contained in the actual notion of an illegal act … is that reparation must, as far as possible, wipe out all the consequences of the illegal act and re establish the situation which would in all probability have existed if that act had not been committed … Restitution in kind or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear … are the principles which should serve to determine the amount of compensation due …’
161. See supra, sections 2.2, 2.6 and 3.1.
162. See supra, sections 1 and 3.1.
164. See Walker, D.M., ed., Oxford Companion to Law (1980) p. 1246Google Scholar. The doctrine of ultra vires acts and the consequences of such acts as being void is widely recognized in numerous legal systems and can be considered to be a general principle of law. See also Gowlland Debbas, V., ‘The International Court and the Security Council’, 88 AJIL (1994) p. 643 at p. 672Google Scholar, including accompanying notes.
165. See supra, section 3.3. See also Sonnenfeld, R., Resolutions of the United Nations Security Council (1988) at pp. 138–139.Google Scholar
166. See supra, section 3.4.
167. This is the normal consequence of an act or agreement which is in conflict with an overriding peremptory norm, as for example is stated in a slightly different context in Art. 53 of the Vienna Convention on the Law of Treaties.
168. Individual criminal liability for certain categories of war crimes, genocide and related acts is well established in international law (see, inter alia. Art. 6 of the International Military Tribunal of 8 August 1945, 39 AJIL (1945), suppl. 258–260). There is no legal reason why such liability could not apply to individuals responsible for or acting under an (illegal) SC Resolution who had committed such acts.
169. See Zoller, E., Peacetime Unilateral Remedies: An Analysis of Countermeasures (1984)Google Scholar and Schachter, op. cit. n. 11, at pp. 184–201.
170. See Caron, D., ‘The Legitimacy of the Collective Authority of the Security Council’, 87 AJIL (1993) p. 552, at p. 557 et seqCrossRefGoogle Scholar. Something like this appears to have occurred with regard to the sanctions in force against Iraq. A number of Council Members, including France and Russia, have recently expressed the opinion that sanctions should be mitigated, while the UK and US have opposed the easing of sanctions until there was more evidence that Iraq had complied with sanctions provisions relating to Iraq's production capacity of weapons of mass destruction (chemical, nuclear and bacteriological weapons). On the other hand, sanctions against Yugoslavia were partially suspended, following that State's agreement to apply pressure upon the Bosnian Serbs (SC Res. 943, 23 September 1994) which illustrates at least some possibility of a trade-off between the Council and the target State of sanctions.
171. Zoller, op. cit. n. 169, p. 46 et seq.
172. In addition to the Articles relating to the Lockerbie case and the question of the relationship between the Court and the Council referred to in nn. 1 and 164 supra, see also Bortz, S., ‘Avoiding a Collision of Competence: The Relationship between the Security Council and the International Court of Justice in Light of Libya v. United States’, 2 J Trans. Law & Pol. (1993) p. 353 et seq.Google Scholar; Kooijmans, P.H., ‘Zwijgt het recht als de Veiligheidsraad spreekt?’, NJB (1992) p. 847 et seqGoogle Scholar. and the statements made during the panel entitled ‘UN Checks and Balances: the Roles of the ICJ and the Security Council’ at the 1993 Joint Conference of the ASIL and NVIR in: Contemporary International Law Issues: Opportunities at a Time of Momentous Change (1994) p. 280 et seq.
173. See Franck, loc. cit. n. 1, at pp. 519 and 523, and the same author in his lectures at the Hague Academy entitled ‘Fairness in the International Legal and Institutional System’, 240 Hague Recueil (1993-III) at pp. 220–221. See also Gowlland-Debbas, loc. cit. nn. 33 and 164.
174. See supra, sections 2.2, 3.1 and 3.2. Regarding the Court's lack of general powers to review Council decisions as to their ‘constitutionality’ see Rosenne, S. and Gill, T.D., The World Court. What It Is and How It Works, 4th rev. edn. (1989) at p. 36.Google Scholar
175. See UNCIO Vol. 13, p. 703, at p. 704. See also Rosenne, S., The Law and Practice of the International Court, 2nd rev. edn. (1985) pp. 44–59.Google Scholar
176. See supra, n. 14, and Goodrich, et al., op. cit. n. 13, at pp. 241–242.
177. Rosenne and Gill, op. cit. n. 174, at pp. 32–33.
178. Rosenne, op. cit. n. 175, at p. 94 and Rosenne and Gill, op. cit. n. 174, at pp. 38 and 241–242. The classic treatment of the question of justiciability in which it was demonstrated that given the political will most, if not all, disputes can be resolved through the application of legal terms of reference and judicial techniques is, of course, Sir Hersch Lauterpacht's definitive work on the subject, The Function of Law in the International Community(1933).
179. This is essentially what happened in the Bosnia-Herzegovina v. Yugoslavia (Genocide) case whereby Bosnia attempted to have the arms embargo against the territory of the former Yugoslav Federal Socialist Republic contained in SC Res. 713 (1991) ruled incompatible with Bosnia's rights under Art. 51 of the Charter and customary international law. Bosnia's claim to jurisdiction was based upon Arts. 8 and 9 of the Genocide Convention. The Court could not and did not provide Bosnia with the relief requested in this respect. For a different assessment see the individual opinions in the Lockerbie, and Genocide decisions relating to the imposition of provisional measures; ICJ Rep. (1992) p. 7 et seq. reprinted in 31 ILM (1992) p. 662 et seq. (Lockerbie), and ICJ Rep. (1993) p. 3 (Order of 8 April) idem 325 (Order of 13 September) reprinted in 32 ILM (1993) at pp. 888 et seq. and 1599 et seq. respectively. See also Bedjaoui, op. cit. n. 1, p. 43 et seq.
180. See Application Instituting Proceedings filed by the Government of the Republic of Bosnia-Herzegovina v. Yugoslavia (Serbia and Montenegro) in the Application of the Conventionof the Prevention and Punishment of Genocide (20 March 1993) paras. 110–124, pp. 116–130 of the Application. Following the Court's rejection of this crucial part of Bosnia's request forinterim relief, it repeated its request only three months later in a renewed attempt to have the Court overturn the arms embargo, with the same results. See case Concerning Application of the Genocide Convention, Further Requests for the Indication of Provisional Measures, Order of 13 September 1993, ICJ Rep.(1993) p. 325. See also n. 6 supra.
181. The well known ‘political questions’ doctrine stipulates that the Federal Judiciary, including the US Supreme Court, will refrain from pronouncing on matters which it has historically regarded as non-justiciable, including in particular matters dealing with ‘War Powers’ under the US Constitution. See Hall, K., ed., The Oxford Companion to the Supreme Court of the United States (1992) at p. 651Google Scholar. Courts in other countries either do not have the power to exercise jurisdiction in questions relating to War Powers, national security and foreign and defense policy to begin with, or generally exercise similar restraint in such matters where they do. Recently (April 1995) one of the Advocates-General (F.G. Jacobs) of the European Court of Justice opined that the European Court may have some degree of supervisory authority in relation to security questions involving the Community. Be that as it may, it remains to be seen if the EC Court does possess such powers, and if so, whether supervision would extend to determining the existence of threats to the peace or security of the Member States. In view of the limited authority of the Community in this area, this would appear to be unlikely.
182. Rosenne and Gill, op. cit. n. 174, at pp. 192–193.
183. Rosenne, op. cit. n. 175, at pp. 711–712. See also Bedjaoui, op. cit. n. 1. at p. 115 et seq. for a highly interesting examination of the prospective role of the Court's advisory competence inrelation to the new and prospective role of the UN in general and the Security Councilin particular.
184. See supra, section 3.6.1.
185. Locke, J., Two Treatises of Government (1690)Google Scholar Book Two, para. 202, Everyman's Library edn. (1978).
186. In the Marbury v. Madison decision the Supreme Court first exercised the power of judicial review by declaring an act of the US Congress void.
187. Taken from Gill, loc. cit. n. 11, at pp. 52–54, in slightly abridged and amended form.
189. See e.g., Caron, loc. cit. n. 170, at p. 552 et seq.
190. UNGA Res. 47/62 (1992) on the question of equitable representation on and increase of the membership in the Security Council. This resolution resulted in a Report by the Secretary-General containing the replies and views of a large number of Member States on this subject, UN Doc.A/48/264, 20 July 1993 (48th Session, A/48/50).