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10 Collective security

A. The meani ng of collect ive sec urity

(a)Defini tion

Coll

ective

curity

pos

tulates

the

ins

titutiona

lization

of the

law

force in the

int

ernational

requ

ired

multilater

communW ityhat.

tre aty, where by Contra cting Parti

es create an int ernational

agenc

with

the

power

employ

force

against

aggressors (and

perh aps

law -breakers ).

Such

instru

ment

basica lly

‘introv

erted’

(de

signed

agai

nst

potenti

future

aggres sor

from

amo

Contracting Parties), unlike a collective self-defence treaty (see supra,

Chapt er B9,) wh

ich

is ‘extroverte d’

(env

isaging

agg

ression from

the system).2 Collective security shares with collective self-defence the

fundamental premise that recourse to force against aggression can (and

perhaps must) be made by those who are not the immediate and direct

victims. But self-defence, either individual or collective, is exercised at the

discretion of a single State or a group of States. Collective security

operates on the strength of an authoritative decision made by an organ

of the international community.

(b)The Covenant of the League of Nations

The system of collective security has its roots in the League of Nations. Article 10 of the League’s Covenant empowered the Council to advise Member States on the means to be taken in case of aggression or threat of aggression.3 Article 11 declared that any war or threat of war, whether or not immediately affecting any Member, was a matter of concern to the

1See G. Schwarzenberger and E. D. Brown, A Manual of International Law 153 (6th ed., 1976).

2H. Rumpf, ‘The Concepts of Peace and War in International Law’, 27 GYIL 429, 440 (1984).

3Covenant of the League of Nations, 1919, 1 Int.Leg. 1, 7.

278

	Collective security							279
whole League, wh ich had to take actio n as						require d		to	safeg
among	nation 4sArt. icle	16	stipulated	that,	if an	y Mem ber resor ted
in violation of its obl		igations under		Art	icles	12,	13 or	15	of	the
(see su	pra, Chapt er 3, c))E,		it( wasipso fa ctodeem ed			to	have commit			ted

an act of war against all other Members.5 All trade or financial relations with the transgressor, including commerce between nationals, had to be severed. The Article went on to instruct the Council to recommend to the Governments concerned what effective military, naval or air contribution they should make to the armed forces which were to be used for the protection of the Covenant’s obligations. Expulsion of a Member from the League for violation of any of the Covenant’s obligations was also authorized. Article 17 applied the provisions of Article 16 in the event that a non-Member State embarked upon war against a Member.6

Article 16 of the Covenant drew a line of distinction between economic sanctions and military action. Member States were duty-bound to apply commercial and financial measures against an aggressor, but – insofar as military action was concerned – the League’s Council was only entitled to make (non-binding) recommendations.7 Economic sanctions (partial, temporary and ineffective in nature) were indeed imposed on Italy, instigated by the latter’s aggression against Ethiopia in 1935/6.8 Yet, even mandatory economic sanctions are not likely to stop war by themselves. As long as an international organization cannot obligate Member States to impose military sanctions against an armed attack, one cannot speak of a veritable collective security system.

(c)The Charter of the United Nations

The main objective of the framers of the Charter of the United Nations was to introduce into international relations a genuine mechanism of collective security. The UN organ entrusted with the task of activating and supervising the mechanism is the Security Council. In Article 24(1), Member States ‘confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf’.9

4 Ibid. 5 Ibid., 11. 6 Ibid., 12.

7See J. F. Williams, Some Aspects of the Covenant of the League of Nations 156–7 (1934).

8See J. H. Spencer, ‘The Italian-Ethiopian Dispute and the League of Nations’, 31 AJIL 614, 624–41 (1937).

9Charter of the United Nations, 1945, 9 Int.Leg. 327, 339.

280 Exceptions to prohibition of use of force

The Charter’s collective security system is constructed in Chapter VII (Articles 39 to 51).10 Article 39, in opening Chapter VII, reads:

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.11

The last words in Article 39 put in a nutshell the Security Council’s mandate: it is to maintain or restore international peace and security.12 The notion of maintaining international peace and security has a preemptive thrust. The purpose is to ensure, before it is too late, that no breach of the peace will in fact occur. Measures taken by the Council to forestall a breach of international peace and security have deterrence and prevention as their goals. Once a breach of international peace and security occurs (notwithstanding any prophylactic measures that may have been taken), the situation changes dramatically. At this point, the Council’s mission is to restore the peace. It has to take steps calculated to reestablish international law and order.

The Charter endows the Security Council with a whole array of powers, enabling it to maintain or restore international peace and security. The fulcrum of Article 39 is the determination by the Council of the existence of a threat to the peace, a breach of the peace or an act of aggression. Once that determination is made, ‘the door is automatically opened to enforcement measures of a non-military or military kind’.13 The determination is binding on Member States, even if the Council subsequently proceeds to adopt a mere recommendation for action (as distinct from a binding decision).

Naturally, recommendations – even when issued by the Security Council – are not binding,14 and they can only urge Member States to action. Recommendations can address the country held responsible for a threat to the peace, a breach of the peace or an act of aggression. They can also be directed at other States, calling upon them to take certain action with a view to maintaining or restoring international peace and security.

10Ibid., 343–6. Of course, the last clause in Chapter VII (Article 51) deals with self-defence, rather than collective security.

11Ibid., 343.

12On the meaning of the term ‘security’, as used in Article 39 in combination with ‘international peace’, see H. Vetschera, ‘International Law and International Security: The Case of Force Control’, 24 GYIL 144, 145–6 (1981).

13I. Osterdahl, Threat to the Peace: The Interpretation by the Security Council of Article 39 of the UN Charter 28 (1998).

14See G. Schwarzenberger, International Constitutional Law (International Law as Applied by International Courts and Tribunals, III) 204–5 (1976).

Collective security

281

Either way, Me mber States can make up

the ir own minds wh

follow or to ignore non-c ompuls

ory call

s for

actio n

issued

But it must be borne

ind

that

(i)

reco

mmen

dation

the Council may be impell ed to adop t a

inding

decision;

(ii)

States choo se to h eed a Coun

cil’s

recom mendation

authori zing

take

measu

res

predic

ated

bind

ing

deter mination

conce r

exist ence

threa

t to the peace et c.,

the

measu

res

must

as lawful

twithstan

ding

their

permi

ssive

charaincterfra, B,(seea)).

Intere

stingly,

the

Council has

m ore

leeway

under

Article

resor ts to reco mmen dations. As the punctu

ation

the

text

cle

cates,

the

refere nce

Artic

les

42 app ears in conjun

decisions

rathe

than

recom

mendation

The

upsh

that,

Coun

cil

aking

mere

reco

mmenda

tions

under

Art

icle

39,

restri

cted

the

compa

Artic

les

an d

42:

‘[t]he

adop

every

measure

deems

appro

priate

for

the

res toration

tional p eace an d se

curity’.

Article

prescr ibes:

The Security Council may decide what measures

not involving the use of

force are to be employed to give effect to its

decisions, and it may call

Members

the

United

Nations

apply

such

measures.

These

may

complete or partial interruption of economic relations and of rail, sea, air,

telegraphic,

radio,

and other

means

communication,

and

the

severanc

diplomatic

relations.

The list

of m easures enumer ated

in Art icle 41 is not exhau stiv

of the steps taken under this pro

vision

the

Charter

involve s

force.17

Article 50 expou nds that, if a

State (whethe r or not a UN

confron ted with special econo

mic

proble

arisi ng from

the

carr

the

Securit

y Coun

cil

prevent

ive

enforce men

acti

anothe r

State,

may

cons ult

the

Coun

cil

regard

the s

cope with

the

plig

these prob lems.The te xt is devise d

that – owing to geographic proximity to, or special trade with, the State

against which steps are taken – suffers unduly from the imposition of the

economic sanctions, and requires special assistance.19 A telling example

is that of the Kingdom of Jordan in the first phase of the Gulf War. This

A. Orakhelashvili, ‘The Legal Basis of the United Nations Peace-Keeping Operations’,

43 VJIL 485, 492–3 (2002–3).

Charter

the United

Nations,supra note

343.

See B. Broms, The United Nations 313 (1990).

Charter

the United

Nations,supra note

346.

19See L. M. Goodrich, E. Hambro and A. P. Simons, Charter of the United Nations 341 (3rd ed., 1969).

282 Exceptions to prohibition of use of force

coun try

was

exc

eptionally

affec

ted

the econo mic sanction

Iraq

and

invoke

Article

SeptembeInr resp1990onse.

Jordan

ian

and

other

requ

ests

for

spe

cial

assistanthe Securit,

Coun

cil

adopted

Resolu

tion

669,

which

establi

shed

procedur

ing reques ts under Art icle

with

view

priateIntheactio

appro

eve

nt,

Jordan

chos

the

cours

cont

inuing

trade

tion

Resolu

tion

C, (bi),.

The

Coun

cil

dealt with

Art

661(infra,

50 situatio ns bot h before

the

Gulf

War (in respo nse to an app

zambiqu

after

sancti

ons

h ad

been

imposed

Sout

hern

(Res

olutio n

subseque

ntly

(in

the

context

the

386 (197 and6))

embargo

impose

Libya

Resoluti

748 as(1992well), as

othe

occasions).

Conc

eptuall

Artic le

may

viewed

outgrow

Cov

enant

the

League

Natio

ns.

Howe

ver,

the

fram

ers

Chart

were

not

cont

ent

with

non-forc

ible

sancti

ons.

far-

leap forward was made in Art icle 42:

Should the Security Council consider that measures

provided

for

Artic

would be inadequate or have

proved

to be inadequate, it may take such

air,

sea,

land

forces

may

necessary to maintain or restore inte

peace

security.

Such

action

may

include

demonstrations,

blockade,

and

operations

air,

sea, or land

forces of

Members

the

Nations.

United

In brief,

under

Article

42,

the

Coun

cil

may

exe

force

either

or on a compre hensive scale.

Article

arr ants

recour

the

Security

Council

m easures,

without

prejudice

the

ositions

the

arties,

bef

decisions

recommendations

are

orig

inal

bject

thi

adoptedThe.

clause

was

ensur

that

the

ea ce

does

not

br ea

practice

the

Council,

principally

utilized

ch.In

20 See V. P. Nanda, ‘The Iraqi

Invasion of

Kuwait:

The

U.N.

Response’,SIULJ 431,15

443

(1990–1).

21 Ultimately, no less than twenty-one States

from

all over

the

world

(including J

applied for assistance under Article

50. See P. Conlon, ‘Lessons from Iraq:

Functions of the Iraq Sanctions Committee

as a Source of Sanctions Implement

Authority and Practice’, 35 VJIL 633, 654 n. 94 (1994–5).

22Security Council Resolution 669, 45 RDSC 24, id. (1990).

23US Department of Defense Report to Congress on the Conduct of the Persian Gulf War, 1992, 31 ILM 612, 638–9 (1992).

24Security Council Resolution 386, 31 RDSC 7, id. (1976).

25Security Council Resolution 748, 47 RDSC 52, id. (1992).

26See R. Kolb, Ius Contra Bellum: Le Droit International Relatif au Maintien de la Paix 153

	(2003).
27	Charter of	the United Nations,supra note	9, at	343–4.
28	Ibid., 343.	29 See Goodrich, Hambro	and	Simons,supra note 19, at 303–4.

Collective security

283

hostilities

roken

–

ing

ab seeoutsupraa ,ceaseChapter-f i

(2,

C, (a),iii)),

mandate

withdrawal

troops

from

rea

disputed

(d)

The

disc

retion

the

curity

Council

The

scope

the

discreti

gra

nted

the

Secu rity

Coun

cil,

ging its duties within the

amb

the

Charter

the

Uni

ted

very

wide

com parison

etween

Article

and

Article

Chart

highlight

the Coun cil’s freedom of acti on. As per Art

(quoted su pra,

Chapt

7, a))A,

(ind

ividual

or collecti ve self-de

fence

allowed only in res ponse to an armed

attack.

Converse

ly,

keep

Article

39,

collectiv

secu

rity

can

b rought

into

acti

whe

Securit

Counci

deter

mines

that

there

exist

threa

breach

the peace or an act of aggressi on. An una mbiguou s

ensues

respect

lawful

use

int

er-State force conso

nant

Chart

er.

the

on e hand, eve ry State or group of States is

resor

force

internatio nal relations, althoug h only

the

circu

mstance

s of

self-de

fence

resp onse

armed attac

ultimate

review

the

Coun sucil pra(see,Chapt

ers7–9).

the

othe

hand,

the

Council

is empow ered to emplo y force in the name of

secu

rity,

and

the

degree

lati

tude

bestow ed

upo

the

well-nig

unl

imited.

The

Coun

cil

may

wield

force to

coun

ter

aggres sion,

not

nece ssarily

amoun

ting

mayk,

to an armedandattacit

even

respo

mere

threat

the

peace.

Since

the

Charte

r seems to give the

Securit ycarteC oulancheilb

ina

exercising its authority in pursuit o

c ollective

security,

the

ounc

free

whet

her

an d

how

force ,

determine

when

do s o and against

w ho

tently,

the

initiate

preventive

war

anticipation

future

breach

the

pea

(figuring

only

threat

the

peace

the

time

ction),

tha t

the

harte

wi thhol

rom

any

di vi

S ta

on sue pra( ,seeChapter

aB)), . (T

Council’s

entitleme

preventively

derived

not

only

Chapterfrom

VII

the

C harter

but

also

See

J. A. Frowein and

N. Krisch, ‘Article 40’, The

Charter of the United Nations:

A Commentary, I, 729, 733 (B. Simma ed., 2nd ed., 2002).

Charter

the

United

Nations,supra note

346.

32It has been argued, in the context of the consensus Definition of Aggression, that ‘it would presumably be absurd to suggest that any act that (according to the definition) the Security Council might properly find to qualify as an ‘‘aggression’’ might not give rise at least to the right of self-defense’. J. L. Hargrove, ‘The Nicaragua Judgment and the Future of the Law of Force and Self-Defense’, 81 AJIL 135, 139 n. 15 (1987). But there is no absurdity in an act of aggression failing to qualify as an armed attack.

284 Exceptions to prohibition of use of force

from Article 1(1) – quotedsupr ,a C hapter 4, a)B, – ( which, in listing the

Purposes

the

United

Nations,

refers

explicitly

the

taking

‘e

c ollec tive measure s fo r the preve ntio n and re moval of threats t

Nowhere is the Security Council lessunderstrictures than in

its

determi-

nation that a threat to the peac e exists. A ‘threat

to the p eace’ (a

Article

39)

not

confused

th. . .aof ‘tforce’,hreat

entioned

Article

(see su

pra, Chapter 4, B, (a))

a threat

orce

2(4)

. Evidently,

one

against

ther

may

b e

con

sidered

b y

Coun c

peace.

But

the

expression

‘threat

the

peace’

elastic

enough

away

from

contemplated use

force

and

beyond

inter-StateArelat io

d etermin

at ion

threat

the

p eace

t con tingent o n

or future) use of force.

Nor

i t linked even to

any

breach

law.37 ‘It is

comple tely wit hin the d iscretion

the

Security

Counci

what

con

stit

utes

‘‘threat

the38 pTeaceh ’’.’Cou

ncil

fre

‘remote

it can g

as f

‘upstream’

it d esires in id

threats’:

thre at to the pe ace. Indeed, a

threat

the

eace

not

necessa

facts: it can b e merely a stat e

of m in d; an d the

mind

that

Cou

ncil.

may

opt

sti

gmatize

as a threat to the

peace

situat

n ot appear to anyone

el se

dis turbin

the

equili

brium

secu

ty.

I n

ther

word

‘a

threat to

the

peace

the

sen s

seems to

whatever

the

Security

Council

says

threat40 to

the

true

that

some

scholar

adhere

theo

the

view

dis cretion

the

Coun

cil

deter

mine

the

exist

ence

the

leg

source

of the

peac e is no t unlimitedBut . what, then,

tion?

In theTadic case

1995, the

Appeals

Chamber

the

Internat i

Criminal Tribunal for the Former Yugoslavia (ICTY) opined that ‘the

determination that there exists such a threat is not a totally unfettered

discretion, as it has to remain, at the very least, within the limits of the Purposes and Principles of the Charter’.42 This dictum is not particularly helpful. One can, of course, disagree on the facts with the Council’s determination of the existence of a threat to the peace. Yet, it is well-nigh

33 Charter of the United Nations,supra note 9, at 331.34 Ibid., 332.

35See H. Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems 727 (1951).

36See B. Conforti, The Law and Practice of the United Nations 173 (2nd ed., 2000).

37 See Kolb,supra note 26, at 68.38 See Kelsen,supra note 35, at 727.

39A. Garwood-Gowers, ‘Pre-Emptive Self-Defence: A Necessary Development or the Road to International Anarchy’, 23 AYBIL 51, 63 (2002).

40M. Akehurst, Modern Introduction to International Law (P. Malanczuk ed., 7th ed., 1997).

41See E. de Wet, The Chapter VII Powers of the United Nations Security Council 134–44 (2004).

42Prosecutor v. Tadic, Judgment, ICTY Case No. IT-94–1-AR72 (Jurisdiction), Appeals Chamber, 1995, 35 ILM 35, 43 (1996).


Collective security							285
impossible		to	conjure		up circumstances in which that determinationpe r s e
may conceivably				be	regarded as invalid on the		ground of	a h
collision with the Purposes and Principles						of the	Charter.	Even
wishing	to	limit		the	Council’s wide discretion usually concede that
Purposes	and		Principles of the Charter can			play a	restrictive	role

regards concrete measures taken by the Council subsequent to su determination.43

importan

t to

remembe

that the Secu rity Coun cil is a

not

judicia

org ansup(seera, 7,

D, b()).

compose

States,

and its decisions are (a nd have eve

right

be)

linked

motiva

tions

that

are

not

nece

ssarily

congru

ent

with

legal

cons

n-judicial

b ody,

the

Coun

cil

not

requ

ired to

set

minat ion

by the Coun cil that a threa

its decis ions.Yet, a deter

peace

exists

conclu

sive.

All

mber

ates

must

the

verdict

despit e

any

misg ivings

that

they

may

entertain

conce r

merits

the

case.

12 Sep tember 2001, in Resolu

tion

1368,

the

Secu

rity

unequi

vocally cond emn ed the hor

rifying te rrorist

attac ks

the

day

(9/11)

regarding

‘s

uch

acts

lik e any act of

int ernationa l

threa t

internatio nal

peac

and45 security’Before. the

end

the

month,

the

Council

reaffirmed

that statement

Resolu

tion

1373,

under

Chapt

1377,

adop

ted

spe cial

meeti

VIIResolu. tion

the

Coun

cil

Min

isteria l

level

Nov

ember,

declared

tha

intern

ational

terro

rism

consti

tute

one

the

most

rious

intern

ational peace and security in

the

twenty-firs t47 ceThentury’gen. -

eral

propo

sition

intro

duced

solution 1368 has subseque ntl

reiterated

the

context

specific

terrorist

attacks:

Bali

(Reso

(Resolution

1440

(Resolution

( 2002 Moscow));

(2002));Kenya

1450 (2002)); and Bogota´ (Resolution 1465 (2003)).

Resolu tions 1368 and 1373 also

reco

gnized

the

right of self-d

whic h presuppo ses an armed52at(seetacksupra, Chapt er 7, B, bb(b)),. (

Obviously, a threat to the peace is a much broader concept than an armed

43 See de Wet,supra note 41, at 191–215.

44See J. E. S. Fawcett, ‘Security Council Resolutions on Rhodesia’, 41 BYBIL 103, 116–17 (1965–6).

45Security Council Resolution 1368 (2001), [2001–2] RDSC 290, 291.

46Security Council Resolution 1373 (2001), [2001–2] RDSC 291, 291–2.

47Security Council Resolution 1377 (2001), [2001–2] RDSC 294, id.

48Security Council Resolution 1438 (2002), [2002–3] RDSC 69, id.

49Security Council Resolution 1440 (2002), [2002–3] RDSC 70, id.

50Security Council Resolution 1450 (2002), [2002–3] RDSC 70, 71.

51Security Council Resolution 1465 (2003), [2002–3] RDSC 75, id.

52 Security Council Resolutions 1368 and 1373,supra notes 45–6, at 291.

286

Exceptions to prohibition of use of force

attac k,

inasm

uch

the

form

conditio

ned

any

Still , it must be stres sed that

‘the

cate gories of threat to

the

armed attac k are not

mutually exc53lusivWhen’. the same

situa

tion

can

charac

terized

both

as an armed attac k and

threa

the

differe

nce

between

the

two categories relates to the

cons

equen

ces

the

refrom.

hereas

any

State

gro

up of States can forci

bly

armed

attack

invoki

the

right

individu al

collect

def ence, only the Securit

Counci l

can

put in

motion

easures

ive secu rity that (in the

Counci

l’s

judgeme

nt)

are

called

for

in t

thre at to the peace.

The

two

differe

lines

acti

may

ollowed

simult

Thus

irre

spective

measures

lf-defenc

exercised by

the

its

allies)

respo

nse

the

armed

attac

k supraof 9/11, Chapt(see er

(b), bb( )), the Secu

rity

Counci

–

solution

1373

–

deci

bind ing fashion on a

series

steps

that States must take to

financ

ing

of terroris

acts,

supp ress recrui tment

to terroris t

gro

inate

supply

weapons

terroris

was

full

awar

ts,Thetc.Counci l

of the fact that all the

latter

measures

, ‘useful as they m ight

be’,

suffi

‘to

deal

decisive

with

the

thre

int ernational

secu

rity

posed

Qaeda

and

its

liban 55defOnlyenders’the

.use

coun

ter-force

the

exercise

ind

ividual

d collectiv

coul

root

-Qaeda from Afghan istan. Of course,

the

Coun

cil is

free

to deem

the

collecti

se curity measu res that

take

adequa

under the ci rcumstan ces. In that case,

ins ist (in a bind ing

decision)

the

sus pension of hosti lities

car

Stat es in self-defe nce. But, as long as

clear-c

ut cea

se-fire

adop ted by the Security

Council,

the

two

sets of coun ter-m

easu

def

ence

and

collecti

security)

may

proceed

independ

ently

othe

Resolu

tions

1368

and

1373

refer

any

act

intern

ational

terr

a threa t to int ernational

peac

and se

curity.

should

be added

that the Security Council is free to determine that even an act of domestic

terrorism constitutes a threat to international peace. On several occa-

sions, an internal situation (within the boundaries of a single State) was

deemed by the Council a threat to international peace and security.56 The

Security Council can deem a non-international armed conflict a threat to

C. Greenwood, ‘International Law and the ‘‘War against Terrorism’’’, 78 Int.Aff. 301,

307 (2002).

Security

Council

Resolution

1373,supra note 46,

292–3.

55T. M. Franck, ‘Terrorism and the Right of Self-Defense’, 95 AJIL 839, 841 (2001).

56See F. L. Kirgis, Jr., ‘The Security Council’s First Fifty Years’, 89 AJIL 506, 513–14 (1995).

Collective security

287

the peace, and it ‘is free to take measures against any entity which it considers to be an obstructive factor in the restoration of peace’.57 Thus, in Resolution 1127 (1997), the Council – having determined that the situation in Angola constituted ‘a threat to international peace and security in the region’, and acting under Chapter VII – imposed sanctions on UNITA (Union for the Total Independence of Angola), a non-State entity.58

In Resolution 1540 (2004), the Security Council affirmed that proliferation of nuclear, chemical and biological weapons – as well as their means of delivery – constitutes ‘a threat to international peace and security’.59

A threat to the peace may be determined by the Security Council even in the face of mere violations of human rights not entailing the use of force.60 It is a debatable – but moot – point whether the Council is necessarily animated by concern about trans-boundary spill-over effects on neighbouring countries, for instance through the flow of refugees.61 The undeniable fact is that the Council is sometimes willing to determine the existence of a threat to the peace, and take action accordingly, in the face of events that are occurring internally.

The paradigmatic case is the overthrow by a military junta of the legitimate Government of Haiti in 1993. In Resolution 841 (1993), the Security Council determined that, in these ‘unique and exceptional circumstances’, the continuation of the situation ‘threatens international peace and security in the region’.62 In Resolution 940 (1994), the Council authorized Member States to form a multinational force under unified command and control, using ‘all necessary means’ to bring about the removal of the military junta and the restoration of the legitimate Government in Haiti.63 A multinational force, led by the United States, soon accomplished this task without bloodshed.64 But the resolution was ‘unprecedented in authorizing force to remove one regime and install

57P. H. Kooijmans, ‘The Security Council and Non-State Entities as Parties to Conflicts’,

International Law: Theory and Practice (Essays in Honour of Eric Suy) 333, 339 (K. Wellens ed., 1998).

58Security Council Resolution 1127, 52 RDSC 50, 50–1 (1997).

59Security Council Resolution 1540, 43 ILM 1237, id. (2004).

60T. D. Gill, ‘Legal and Some Political Limitations on the Power of the UN Security Council to Exercise Its Enforcement Powers under Chapter VII of the Charter’, 26 NYIL 33, 42–3 (1995).

61See M. Toufayan, ‘Deployment of Troops to Prevent Impending Genocide: A Contemporary Assessment of the UN Security Council’s Powers’, 40 CYIL 195, 229–41 (2002).

62Security Council Resolution 841, 48 RDSC 119, id. (1993).

63Security Council Resolution 940, 49 RDSC 51, id. (1994).

64See 48 Yearbook of the United Nations 427 (1994).

288

Exceptions to prohibition of use of force

anot

her (ho wever democrati cally elected) withi n a MemItberis St a

note

worthy that Art icle 2(7) of the Chart er, in preclu ding

int er

the

United Natio ns ‘in matte rs wh ich are essenti ally within the

juri

sdiction

stat e’,

expr

essly

ds a

res

ervation

that

‘t

shall

not

prej

udice

the

app lication

enforce

ment

measu

res

Chapt

broad

powers

conferre

the

Coun cil

VII’. The

pro

vince

collecti

security

over

ride,

where

necessary,

the

sove

of any UN Me mber Stat e.

Once the S ecurity Council d

etermines

that

threat

the

exists

that

determinati

remains

valid

rrespec

tive

the

even

radical

chan

ges

the

tual

situ

ion:

the

ace

continues

exist

until

Council

expressly

otherwise.67

Attempts are occasionally made to d emarcate

unblurred

between

the

categories

breach

the

peace

d68 aggressionBut

the

Charter

(or,

for

that

atter,practiceth

the

Security

Council

does

not p rovide any clear guidance in distingu ishing betwee

two

expressions . In pragmatic terms, a s long a

the

authorit

Council

act

a given

con

text

assailable u

nder

the

little

eight

hether

one

stamp

the

ther

affi

measu

res

taken.

the

Security

Council

may

take

actio

agai

nst

thr

peac

e that is impe rceptible to

the

public

eye,

also

ackn

owled ge

the

existence

manife

threa

the

peace.

the

time

that

the

Counci

form

ally

dis

cerns

threa

the

pea

affairs

may

have

deter

iorate

pas

the

mark

ere

threa

wh at

hap pened

Ma y

2000,

wh en

–

follo

wing

resumpt ion

that had been raging bet ween Eritr ea and E thiopia – the Coun determined that the situation constituted ‘a threat to regional peace and security’.69 By the same token, in mid-July 1948, two months after an inter-State war had been in progress in the area, the Council determined

that the situation in Palestine constituted ‘a threat to the peace within the

65 D. Malone, Decision-Making in the UN Security Council: The Case of Haiti, 1990–1997 110 (1998).

66 Charter of the United Nations,supra note 9, at 332.

67See K.Wellens, ‘The UN Security Council and New Threats to the Peace: Back to the Future’, 8 JCSL 15, 27 (2003).

68See G. Cohen Jonathan, ‘Article 39’, La Charte des Nations Unies 645, 657–9 (J.-P.Cot and A. Pellet eds., 1985).

69Security Council Resolution 1298, 55 RDSC 146, 147 (2000). This resolution cited Chapter VII of the Charter. Already in February 1999, the Council – without citing Chapter VII – ‘stressed’ (but did not formally determine) that the situation constituted ‘a threat to peace and security’. Security Council Resolution 1227, 54 RDSC 65, 66 (1999).

	Collective security						289
meani	ng	of		70		resolut	ion seemed unsyn chro
			Article 39’Fac. tually, the
ized	wi	th	what	was	hap pening	in the	71	. the
							conflic Legallytregion,
Coun	cil	was fully compe tent to make the					speci fic deter	minatio
when	it	deeme d		app	ropriate .

B.The deci sion-maki ng pro cess

(a)

The

dutie s in cumbent on UN

Member

States

As no tedsupra( , A, (c)), it is the

func

tion

the

Security

Coun

conformi ty

with Art icle 39 of

the Chart er, to decid e or reco m

measu res are to be take

order

maintai

restore

peace

an d

security. Decisi

ons,

unl ike

reco mmenda

tions,

are

bin

all

Member

States. Und er Art icle 25 of

the

Charter:

The Members of the United Nations

agree to accept and carry out the de

the

Security

Council in accordance with the present72Charter.

no t

altoge ther free

doubt

which

decisions

are

covered

25. But ind isputabl y, decis ions adop ted by the Coun cil under

Chapt

VII, aimed at

maint aining

resto

ring

the

peac

binding .

its

1971 Ad visory OpinionNamonibia, the Internat ional Court of

Justice

held

that

Article

does

app ly

solely

Securit

decisions

que

stion abo

under Chapter VIIHow. ever, there was

the

man

datory nature of the Counci l’s decis ions under Chapt er

Court

prono

unced that

the bind ing effec t of

such

decisions

not

only

the

general

stip

ulation

Article

25,

but

also

terms of Artic les 48 and 49.

Article

sets

forth:

1.The action required to carry out the decisions of the Security Council

maintenance of international peace and security shall be taken by al Members of the United Nations or by some of them, as the Security Council

may determine.

70Security Council Resolution 54, 3 RDSC 22, id. (1948).

71For the ‘discrepancy between the nature of events in Palestine and the response of the Security Council’, see I. S. Pogany, The Security Council and the Arab-Israeli Conflict

27–44 (1984).

72 Charter of the United Nations,supra note 9, at 339.

73Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), [1971] ICJ Rep. 16, 52–3.

74Ibid., 53.

290	Exceptions to prohibition of use of force
2.	Such	decisions		shall	be	carried	out	by	the Members of the United
directly		and	through		their	action	in	the	appropriate international agencie
which		they	are		75
which		they	are	members.

Art

icle

enjoins

all

Me mber

States

afford

mutu

assis

carry

ing

out the measu res decided upon

Coun cil.

the

The

importan

Article 48

lies

first

in its specific cont ext:

adop

ted

the

Secu

rity

Coun

cil

under

Chapter

VII

for

the

of intern ational peac e and security. Secon dly, Article

clarifies

Coun

cil

may

lay

the

burden of

impleme

nting

its

decis ions

mber

ates

(presumab ly,

those

bette

equipped

so),

app

ortion

different

assignme nts

all

mbers.

Thir

dly,

Art

allow s the Coun cil’s decisions to be carri ed ou

thro ugh

regio

zations . Howe ver, it m ust be empha sized that

Article

deals

decis

ions

the

Coun

cil

wh ich

orda

ates

take

acti

app

‘permi

ssiv e

acti on’

not

prescr

ibed

m andatory

Coun

cil.

Per

missive

acti

on,

animate d

ere

reco

mmen dation

the

Securit

Coun

cil,

anchored

Art

icle

and

not

Art

Me mber State is require d to take par t

in any enforce ment oper

abse

nce

of a bind ing decis ion to tha t

effec

t by

the Coun cil.

shoul

Mem ber

St ates

(acting

joint

verally)

voluntarily

enf

orcemen

actio

in res ponse to a

n-obligat

ory

call

iss

Coun

cil,

these measures would be full

legitimize

the

bind

ing

determinat

ion

that there

exist

thre

the

peace,

the

peac

or an

act

of agg resuprasion, A(see,c)).

(b)The responsi bility of the Se curity Coun cil

Chapt	er	VII	obl igations devolve not only on Member States, but
the Securit y			Council itself.			After all,	the Coun	cil is	charged
Chart	er	with	the	primar	y	res ponsibil	ity for the maint enance o
tional	peace		and	security	(seesupra, A, (c)).		Article 39	emplo	ys the

mandatory expression ‘shall’ to describe the Council’s task in the field of collective security: the Council ‘shall’ determine the existence of a threat to the peace, a breach of the peace or an act of aggression, and ‘shall’ either make recommendations or decide what is to be done in order to maintain or restore international peace and security.

75 Charter of the United Nations,supra note 9, at 345–6.76 Ibid., 346.

77See O. Schachter, ‘Legal Aspects of the Gulf War of 1991 and Its Aftermath’, Law, Policy, and International Justice (Essays in Honour of Maxwell Cohen) 5, 20 (W. Kaplan and D. McRae eds., 1993).

Collective security

291

Any

action taken by the Secu rity Coun cil is

conting

ent

the

enablin

resolut ion.

Und

Art icle

27,

amend

ed,

res

the

Coun

cil

can

only

carried

affirm ative

vote

of at

fifteen

Memb

reover,

resol

ution

must

obtain

the

concurr

ers.Mo

votes

the

five

Per

manen t

mbers

the

Counci

This

brate d veto powe r: even shoul d fourteen of

the

fifteen

Coun

cil

support

draft

res olution, a lone dissenter

–

Perm

anent

Memb ers

(China,

Franc

e,79Ruthe ssia,Uni

ted

K ingdom

and

the

Unite

St ates)

–

would

prevent

adoption

the

propose

castin g a negative vote.

Article

has

been

constru

the

Securit

Coun

cil’s

procee

such

a way that only a

neg

ative

vot

Per

manen

that it do es not concur

wi th

resolut

ion,

thus

consti

tuting

defeats

the

motion)

wh ereas

abste

ntion

(or

n-parti

cipat

vote)

no t

the

gen

erally

interpret

ation

counWhet. n

Article 27 was challe nged, Nin amibiathe proceed ings, the Internat ional

Court

Justice

endor sed

the

consis

tent

and

unifor

pra

ctic

Coun

Abs

tentio

non-parti

cipation

vote)

one

cil.

Perm anent

Me mbers

comm on

phen omenon,

regist ered

mately a quarter of the resolut ions adop ted by

Coun

cil.

the

Article 27 lays do wn

that,

certain

matters,

party

disp

abstai

from

voting

in the

Securit

Coun

cil.

But

the

obligat

ion

apply

to decis ions under Chapter VII. Hence , a

Permanen

Mem

cast the veto, in a vote on the application of Chapter VII measures,

notwithstanding the fact that it is a party to the dispute. That is to say, a

Permanent Member may always bar the adoption of any resolution put-

ting into effect the scheme of Chapter VII, if the action decided upon (or

recommended) is pointed at itself (or at a State with which it is closely

Charter

the United

Nations,supra note 9, at 340. The

numbers

involved

were

amended as of 1965. Protocol of Entry into Force of the Amendments to Articles 23,

27 and 61 of the Charter of the United Nations, [1965] UNJY 159, 160.

The five Permanent Members are listed in Article 23(1) of the Charter (Charter of the

United

Nations,supra note

338),

which

refers

the

Union

of Soviet

Soc

Republics. Following the collapse of the USSR, its permanent membership in the Security Council – and its membership in other organs of the United Nations – is continued by the Russian Federation. On the manner in which this change was brought about, see B. Fassbender, UN Security Council Reform and the Right of Veto: A Constitutional Perspective 183–9 (1998).

80See C. A. Stavropoulos, ‘The Practice of Voluntary Abstentions by Permanent Members of the Security Council under Article 27, Paragraph 3, of the Charter of the United

Nations’, 61 AJIL 737, 742–4 (1967).

81 Advisory Opinion onNamibia, supra note 73, at 22.

82For a list of 319 such instances – out of 1,322 resolutions – see T. M. Franck, Recourse to Force: State Action against Threats and Armed Attacks 8 n.16 (2002).

292 Exceptions to prohibition of use of force

assoc iated). In realistic

te rms, there is more tha

an el

ement

the

cynical

observat ion

that

the

collecti

security

syst em

the

only geare d to han dle ‘mi nor

distur

bers

of Armedthepeaconflice’. ts

(wh

ether

intern

ational

intern

al)

–

which

Per

manent

Mem

direc

tly or

indire ctly

invo

lved

– are,

to most int ents and p urp

call

exclu

ded

from

the

reac

the

Charter’s

syst

secu

rity.

C. An ov erview of the Securi ty Counc il’s record

(a)The ‘Cold War’ era

The

rec

ord

the

Security

Council over a perio d of forty -five

the

inception

of the

United

Nati ons

to the

tbreak

of the

Gulf

dis appoint

ing

the

extreme.

That

r ecord

replet

e with

cases

notw

ithstandin

g the outbre ak of

hostili ties, the Council was dead

due to the polit ical cleavages spli

tting the

five

Perman ent

Me m

unable to

take

a commo n stand . The Council was primari ly ham

the

use

abuse

the

veto

power,

for

which

there

were

illust

rations.

ring

the

ent

ire

time

span

the

‘Cold

War’,

the

Secu rit

expr

essly

deter

mined

that

breach

the

peac

exi sted

occ

asions:

the

Korea

War

(Res olution 82 the(19 Falkland50)),

Islands War (Resolution 502 (1982)),86 and the Iran–Iraq War

(Resolution 598 (1987)).87 Relatively speaking, the Council took the

strongest action in the Korean War (in the temporary absence of the

Soviet delegation owing to a badly timed boycott). Even there, as

obse

rved su( pra,

Chapt

B6),

the

Counci

mere ly

rec ommend ed

Member States to render assistance to the Republic of Korea in order to repel the North Korean armed attack,88 and permitted the use of the

83I. L. Claude, ‘The United Nations and the Use of Force’, 532 Int.Con. 323, 330 (1961).

84By 2004, the veto was cast in the Security Council on more than 250 occasions (in some instances, more than one Permanent Member wielded its power to prevent the adoption of a resolution). The veto was used much more frequently prior to the Gulf War. See S. D. Bailey and S. Daws, The Procedure of the UN Security Council 230–7 (3rd ed., 1998). The figures do not tell the whole story for two countervailing reasons: (a) in many instances, the veto has had nothing to do with collective security; however, (b) in a host of cases affecting peace and security, the mere threat of a veto has had a chilling effect, so that the Council did not proceed to a formal vote.

85Security Council Resolution 82, 5 RDSC 4, id. (1950).

86Security Council Resolution 502, 37 RDSC 15, id. (1982).

87Security Council Resolution 598, 42 RDSC 5, 6 (1987).

88Security Council Resolution 83, 5 RDSC 5, id. (1950).

Collective security

293

fla

the

Coali

tion

tha

volunteere

under

comma

the

Falkland

Islan

War,

the

Counci

did

not

nd.

who

had com mitted the armed attack: the res olution

only

dete

that

‘there

exists

breac

the

peac e

the

regio

Islan

(Isla

Malvin

as)’,

confi

ned

itself

anody

imme

diate

cess ation

hosti

lities

withd

rawal

Argent

from

the

Islan

the

polit

ical

atmosphe

prevale

the

dsIn.

enforce

ment

measures

invo

lving

military

actio

coul

not

years

contemp lated by the CouncilIn. the Iran–Ira q War, after seven

hostili

ties,

the

Coun

cil

deter mined

that

‘ther

exist

a breach

regard s

the confl ict between Iran and Iraq’

and

(acting

under

and

40)

dem ande d

imm

ediate 92cea

se-fire.

Addit

ionally,

1984,

the

Secu

rity

Council

also

condemn

attac

South

Africa

against

Angol

reaffi

rmed

Angola

’s

defend

itsel

under

Article

requ

ested

mber

ates

assistan ce to the vict im

res olution

beco

the

cat

counHadtry.that

lyst

for

other

int

ernationa

coa

lition,

the

ensui

use

have

amoun

ted on ce again to

collectiv e

self-defe nce

exercised

imprimat urof the Counci l. In actualit y, the resolut ion

remained

unhee

ded.

three

sit

uations,

the

Security

Counci l

form

ally

determ

ined

tence

of a threa t to the peac e: during Israel’s War of

Inde

pende

both

Articles

39 and 40 (Resol ution

5494(1948));asregards

the

situatio

Souther

Rhodes

(Resoluti

23295(1966));andwith

resp

ect

the

acquisi tion

of arms by South Afri ca (Res olutio

(1977

)).

418

several

ad ditional

occ

asions,

the

Secu

rity

Coun

cil

empl

phrase ‘threat to the peac e’ in an inform al manne

For

Resolution 353 (1974) relating to Cyprus, the Council stated that it

was ‘[g]ravely concerned about the situation which has led to a serious

threat to international peace’.97 Similar language had been used in

Resolution 161 (1961) in reference to the situation in Congo.98 Trying

another

tack,

the Council – in Resolution

405

(1977)

–

strongly

Security Council Resolution 84, 5 RDSC 5, 6 (1950).

Security Council

Resolution

502,supra note

86,

15.

91See A. C. Arend, ‘The Falklands War and the Failure of the International Legal Order’, The Falklands War 52, 54–5 (A. R. Coll and A. C. Arend eds., 1985).

92	Security	Council	Resolution	598,supra note	87,	at	6.
93	Security Council Resolution 546, 39 RDSC 1, 1–2 (1984).
94	Security	Council	Resolution	54,supra note	70,	at	22.

95Security Council Resolution 232, 21 RDSC 7, id. (1966).

96Security Council Resolution 418, 32 RDSC 5, id. (1977).

97Security Council Resolution 353, 29 RDSC 7, id. (1974).

98Security Council Resolution 161, 16 RDSC 2, 2–3 (1961).

294

Exceptions to prohibition of use of force

cond

emn ed ‘as an act of

armed

aggressi on’

ercena

ry attac

sid e

Benin

against

the

air

port

ci ty99ofHowever,Coton ouabsent.

form

determ

ination under

Chapter VII

of the

exist

ence of

thr

peac

or an

act

agg

ression, an

allusion by the Coun cil

can

be dis missed as a no

n-bindin

locution .

two cases, the Secu rity Coun cil also impose d m andatory sa

trade

embar

go on

Sout hern

Rhodes

ia,

referri ng

Article

(Res

olutio n

232

100

arms

embargo

on South

Afri

(196

6));an

acti ng

under

Chapt

er VII

general

(Res olutio

101

(1977 )).

418

(b)The Gulf War

The

Gulf

r started

1990

is still

not over

2004.

regard

the

major

hosti

lities

agai

nst Iraq that occurred in 20

armed conflict independ ent of the

invasion

Kuwa

1990.

differe

pha

ses

of the

single

Gul

War

dese rve

discrete anal

The

vasion

and

liberat

ion

Ku waitThe(1990inva– 1)sion

Kuw ait by Iraq in Au gust 1990 was

a turn ing point in the h

Secu rity

Counci l, since

sign

ified

the

end

of the ‘Cold Wa r’

the colla

pse

the

Sov

iet

Union).

unanimit

among

Per manen t Me mbers in 1990/1

(or,

certain point

leas

to allow the m ajority

to pro ceed with approp riate measures ) en

adop tion of a whole

string of resol utions unde r Chapt er VII f

acti

against

Iraq .

Several

the

resolut

ions call for an exa

deta

il,

they

vividl

sho

how

the Counci l gradua lly flexed

ile

rec

oiling

from

the app lication of Article 42.

rst

came

Resolu

tion

660

August

1990

(the

very

inva

sion

Kuw

ait),

whic

the

Security

Counci

deter

mined

tence

‘a

breac h

intern

ational

peace

and

security’,

and

spe

cifically

under

Art

icles 39 an d 40 of the Chart er – cond

invasion, demanding immediate and unconditional withdrawal of the

Iraqi forces.102 A few days later, the Council adopted Resolution 661,

which – citing Chapter VII – imposed on Iraq mandatory economic

sanctions: the Council decided in particular that all States must prevent

any imports or exports from or to Iraq or occupied Kuwait (except for

Security Council Resolution 405, 32 RDSC 18, id. (1977).

100

Security

Council

Resolution

232,supra note

95,

7–8.

101

Security

Council

Resolution

418,supra note

96,

102

Security Council Resolution 660, 45 RDSC 19, id. (1990).

Collective security

295

med

ications

and,

huma

nitaria

circum stances,

foodstuf fs),

any

oth er

type

trade,

supp

trans

103

of funds.

fer

In Resolution 665, the Security

Council

recorded

that

Resolution

had

imposed

‘economic

sanctions

under

Chapter

VII

the

Charter

United

104

called upon

the ‘Member States co-operating

Nations’.

the Government [in exile] of Kuwait’

(which

were

deploying

mari

forces in the area) to use such measures ‘as may

necessary

authority of the Security Council

halt

for

inspection

purposes all

and

outward

maritime

shipping’,

order

‘to

ensure

strict

implementa

of Resolution

105

practical

terms,

Iraq

was

subjected

cons

661.

106

quence to a blockade, although Resolution 665 avoided that expressio

While

the

mandatory

onomic

sanc

tions

imposed

Ira

Resolu

tion

661

were

plain

edicated

Article

41,

the

went

beyond

the

scop

that

clause.

Assu

pranote,A,d(c)),(

the

expr

ession

‘block

ade’

app

ears

in the Chart er in

Article

(mili

tions)

rathe

than

Art

icle

(econo

mic

sancti

ons).

Did

the

Coun

cil

intro

duce

and

apply

‘Articl

107

and Thea halm faritime’?

operati

ons

int

ercepting

impo

rts

and

export

from

Iraq

ducted

the

United

States

the United K ingdom and

othe

Pow

ers

coope rating

with

Kuwa

the

bas

the

right

self-defe nce p

ursuant

108

661,

ich

Reso

lution

Article Resolu51. tion

665 was design ed to impleme

nt,

akes

all-inclus

ive

refer

Chapt

VII.

ought

reca

lled

that

Artic

(jus

and

42)

figur

that

chapt

er.

The

Secu

rity

Coun

cil

acted

agai

under

Chapt

VII

670,

decidin

that

–

irrespec

tive

any

right

obligations

imposed

internat

ional

109

licenc

–

agr eemecontra, ct

States

ust

deny

permi

ssion

any

aircr

aft

take

off

from

their

territori

when

des

tined

land

Iraq

occupie

authori zed

Sanctio

110

ittee)The. Council

furth

called

Comm

103 Security Council Resolution 661,RDSC45

19,

19–20

(1990).

104 Security Council Resolution 665,RDSC45

21, id.

(1990).

105

Ibid.,

21–2.

106 On the similarities and dissimilarities

to blockade, see H. B. Robertson, ‘Specific

and

Methods

Application of

Force’,DJCIL1 1,

(1991).

107The phrase was coined, in the general context of the Council’s activities in the Gulf War, by P. Weckel, ‘Le Chapitre VII de la Charte et son Application par le Conseil de Se´curite´’, 37 AFDI 165, 202 (1991).

108See C. Greenwood, ‘New World Order or Old? The Invasion of Kuwait and the Rule of Law’, 55 Mod.LR 153, 161 (1992).

109The Council expressly recalled in this context the provision of Article 103 of the Charter

(Cf. supra, Chapter 9, Ca)), . ( Security Council Resolution 670,RDSC45 24, 25

(1990).

110 Ibid.

296 Exceptions to prohibition of use of force

upo

all

St ates

deta

any

ships

Iraqi

regi stry

ich

por

in violation

Resolu tion

661,

an d

threa

tened to cons ide

111

in case of evasi on of either res olution.

Chapt

VII

was

invo ked

the

Secur

ity

Coun cil

Resolu

autho

rizing

the

‘Memb

States

co-oper ating

with

the

Govern m

Kuw ait’

–

after

prescr ibed spac e of time

– ‘to use al l neces

upho

and impleme

resolut ion

660

(1990)

and

all subs

equen

res

olutions

and

res tore internationa l peace

secu

112

in t

rity

ind icatedsu (pra, Chapt

er E9),

this

landma rk

resolution cons

tituted

spe

cific

andate

for the

exerc

ise

collec tive

self-de fence

und

by a coali tion

113

that

the

res

olution was

base d

the willingClaims.

Art

icle

114

lly

unwa

115

42 are tota

rranted.

Both before and after the Iraqi military defeat at the hands of the Coalition,

the Security Council also alluded to Chapter VII in multiple additional texts,

the most important of which is Resolution 687,116 dictating the definitive

terms of a cease-fire that Iraq reluctantly accepted. As pointed out (supra,

Chapter

2 ,

C, iii(),a), this

text

–

albeit

unprecedented

117

many

respects–

was merely a scheme for a cease-fire. It has to be appreciated that, although the conditions of the cease-fire were delineated by Resolution 687, the ensuing cease-fire constituted an agreement between the Coalition – rather than the United Nations (which remained above the fray) – and Iraq.

ii. The cease-fire period (1991–2003) The cease-fire in Iraq went on for a dozen years, but it failed to spawn peace. Instead of moving towards a peaceful settlement, the Coalition and Iraq were constantly at loggerheads, inasmuch as Iraq – from the very onset of the cease-fire – was unwilling to comply with its agreed terms, especially as regards disarmament. Quite frequently between 1991 and 2003 (in particular, in 1998/9), Coalition warplanes raided Iraqi targets striving unsuccessfully to compel Iraq to abide by the cease-fire conditions and especially to cooperate with UN disarmament inspectors.118 The sundry air strikes by the Coalition

111 Ibid. 112 Security Council Resolution 678, 45 RDSC 27, 27–8 (1990).

113See O. Schachter, ‘United Nations Law in the Gulf Conflict’, 85 AJIL 452, 459–60 (1991).

114See C. Warbrick, ‘The invasion of Kuwait by Iraq – Part II’, 40 ICLQ 965, 966 (1991).

115See P.-M. Dupuy, ‘Apre`s la Guerre du Golfe’, 95 RGDIP 621, 624–5 (1991).

116Security Council Resolution 687, 46 RDSC 11, 12 (1991).

117On the meaning and significance of the resolution, see S. Sur, ‘La Re´solution 687 (3 Avril 1991) du Conseil de Se´curite dans l’Affaire du Golfe: Proble`mes de Re´tablissement et de Garantie de la Paix’, 37 AFDI 25–97 (1991).

118For an overview of the sporadic hostilities between the Coalition and Iraq, from 1992 to 2002, see A. E. Wall, ‘The Legal Case for Invading Iraq and Toppling Hussein’, 32 IYHR 165, 183–7 (2002).

Collective security

297

must

cons

trued

res umption

combat

operati ons

119

Iraqi violati ons of the cease -fire terms.

Already

under

Resolu tion

688,

adop

ted

within

few

days

onset

the

cease-fire

the

Securit

Coun

cil

ithout

nam

ing

VII)

held

that

the

Iraqi

repres

sion

the

civilian

populat

ion

(

nentl

the

Kurds

)

‘threaten

internatio

nal

peace

and

secu

rity

regio

n’,

and

insis ted

that

Iraq

‘allo

imme diate

acc

ess

humani

tarian

organizati

ons

all

those

need

assi stance

Iraq

and

mak

availab

all

necessary

facilit ies

for

120

oper

their

As a

res

ult, with the military hel p of

armed forces of the Unite

othe

Coali

tion

countri

es,

‘access

’

humani

tarian

aid

was

through

the

creation of an air exclu

sion

(‘no-

fly’)

zone

Kurdi

enclave in the north of Ir aq.

In 1992, an other ‘no-fly

establi shed over the Shiite areas in the

south of the coun try. In

decade ,

many

air

strikes

were

launched

Coalition

warpl anes

Iraq

response

Iraq

i def

iance

the

121

’

zones .

‘no-fly

iii.

The

occupati on of Iraq (20The03)stat

e of war between Iraq

the

Coa lition

continu

no twithst

anding

the

suspen

sion

gen

tilitie s in 1991. When the fric tion betw

een

Iraq

and

the

Coa

lit

nated

the

resumpt

ion

gen

eral

hosti

lities

2003,

eve

exami

ned

nume

rous

comme

ntators

agai nst the backd rop of

of ‘preem

ption’

set

out by

Pre

sident

122

Chapt er

W(see.Bushsupra,

B, a()). But referenc es to preemp tion

the

Bush Admini stratio

only

part

the

argum

ent

for

resort

force

and

they

can

looked at

123

as no t much more than ‘rhet orical Asflourish’conce. ded by

the

Legal

Adviser of the Departme nt of

ate:

Was

Operation

Iraqi Freedom an example of

preemptive use of force? Vie

the

final

episode

in a

conflict

initiated

than

dozen

years

earlier

invasion

Kuwait,

may

so.

not seem

There is absolutely nothing preemptive about the resumption of hostilities when a cease-fire disintegrates. The leading partner of the US in the Coalition against Iraq – the United Kingdom – formally took the position

119See R. Wedgwood, ‘The Enforcement of Security Council Resolution 687: The Threat of Force against Iraq’s Weapons of Mass Destruction’, 92 AJIL 724, 726(1998).

120Security Council Resolution 688, 46 RDSC 31, 32 (1991).

121 See Wall,supra note 118, at 184–7.

122See C. Henderson, ‘The Bush Doctrine: From Theory to Practice’, 9 JCSL 3, 8–13 (2004).

123D. Kritsiotis, ‘Arguments of Mass Confusion’, 15 EJIL 233, 249 (2004).

124W. H. Taft IV and T. F. Buchwald, ‘Preemption, Iraq, and International Law’, 97 AJIL 557, 563 (2003).

298 Exceptions to prohibition of use of force

that the legal basis of

the

2003

hostili

ties

was a r evival of the

right

use

force

agai

nst Iraq

cons

equent

upon

the

Iraq

‘mat

125

of the cease-f ire.

The Coali tion of 2003 (still

the

)

was

differe

tion compare d to the

original anti-Ir aq array

1990/1,

but

this

imma

terial.

Wa rtime

coa litions

are

not

engrave d in stone: th

Allian

that

def

eated

Germ any and Japa n in Wo

rld

War

eve

great

permutati

ons

thin

shorter

perio

time.

Of the manifold obligations impose

I raq in the cease-fire

the one that it found most

onerous

was

the

requ

iremen t

dis a

wea

pons

m ass

destru

ction

(WMD

Huge

qua

ntities

wea

pons

agent

and

a vari ety of biologi

cal

weapo

pro

duct

men t

an d

mater

ials,

were

subseq

uently

des

troyed

under

the

126

.But

eports

abou

cont

inuous violation s by I

inspectors

its

disar

mament obligat

ion

persisted.

The fact

that

WMD

were

Iraq in 2003 is irre

levant:

the

eve

the

resumpt

ion

eve

rybody

–

includin g

the

ins

pectors

–

believ

that

Iraq

obse rved

its

disar

mament

127

refusal

coo

perate

undert akingsIraq. i

unreservedly with UN inspectors led to a series of Security Council

resolutions; these climaxed with Resolution 1441 (2002), determining

(under Chapter VII) that Iraq was in ‘material breach’ of its disarmament

obligat ions

(seesup ra,

128

Chapt er 2, c))C.,

(

Many commentators maintain that – subsequent to Resolution 1441 –

the Coalition could not take military action against Iraq in 2003 without

obtaining a specific go-ahead signal from the Security Council to resort to

force.129 The fact that the Coalition failed to persuade the Security

Council to adopt a further resolution expressly authorizing – in the vein

of Resolution 678 – ‘all necessary means’ (i.e. the use of force) against

Iraq was regrettable from a political standpoint. But, legally speaking,

such an additional resolution was not required. Even those contending

that Resolution 1441 ‘does not contain any ‘‘automaticity’’ as concerns

the potential use of force’ have to concede that the text lends itself to a

different

interpretation.130

It assuredly does

not

prescribe

–

or even

125Foreign and Commonwealth Office Paper, ‘Iraq: The Legal Basis for the Use of Force’, 52 ICLQ 812–14 (2003).

126See S. D. Murphy, ‘Missile Attacks against Iraq’, 93 AJIL 471, 472 (1999).

127See J. Yoo, ‘International Law and the War in Iraq’, 97 AJIL 563, 566 (2003).

128Security Council Resolution 1441 (2002), [2002–3] RDSC 114, 116.

129See, e.g., R. Wolfrum, ‘The Attack of September 11, 2001, the Wars against the Taliban and Iraq: Is There a Need to Reconsider International Law on the Recourse to Force and the Rules in Armed Conflict?’, 7 MPYUNL 1, 15–18 (2003).

130R. Hofman, ‘International Law and the Use of Military Force against Iraq’, 45 GYIL 9, 25–8 (2002).

Collective security

299

necess

arily

impl

–

that,

prior

recours

force

the

Coal

return

the

Securit

y Coun cil

for

second

(con

131

)

reso

firmatory

The clear infere nce from the det erminati on by

the

Secu

rity

regard s the Iraqi ‘mat erial breac h’ was tha t

the

other

sid

agreem

ent

was

released

from

its

obligat

ion

continue

resp

cease

-fire

(seesup

ra, Chapt

2, cC)).,

132

salient

point

often

missed

( A

com

mentators

133

the

othe

side

to ceasefire i

this topis ic,that

on-go ing stat e of war with Iraq

was

the

Uni

ted

Nations

coali tion of the willing. Resum ption of the hostili

ties,

the

refore,

require

explicit

appro

val

from

the

Security

Counci

reali

ty,

eve

the

deter

mination

the

exist

ence of an Iraq

breach’

need

not

have been made by the

Secu

134

ByCounright,cil.

rity

this

determ

ination

could

have

been

made

the

Coalition

Differ

ently

put,

there

was

legal

(as

distinct

from

polit ical)

the

Coali

tion

have turn ed to the Secu rity

Council

in the

first

1990/1

the

Coalition

did

not

have

go the Secu rity C

Resolu

tion

678

or,

for

that

atter,

Resoluti

687) .

Yet,

Coali

tion

chos

bring

the

matter

before

the

Securit

2002

–

and

since the Coun cil did

set

enhan ced

regime,

giving

Iraq

‘final

opportunity’

comply

with

the

disarm

obliga

135

–

the

Coalition

was

constrain

give

that

inspec

tion

regime

chanc

success.

Resolu

tion

678,

ich

equally

Iraq

‘fina l

opp

136

tied

the

han

the

Coalition

ortunity’and

intro ducing a tempo ral interval when it

had

hold supraits , fire

(

Chapt er E9,), Resoluti on 1441 did no t leave

the Coa lition the o

recom

mencing

hosti

lities

imm

ediately.

spite

the

deter

minat

ion

existence of a ‘material breach’ of the cease-fire terms, the Coalition had

to await new UN inspectors’ reports. However, when a number of reports

were in, it plainly emerged that there were still unresolved issues and that

Iraq had failed to meet all the demands (made by the UN inspectors) with a view to putting an end to its ‘material breach’.137 Whereupon the freedom of action of the Coalition was regained.

131 See Taft and Buchwald,supra note 124, at 560–2.

132See M. Byers, ‘Preemptive Self-Defense: Hegemony, Equality and Strategies of Legal Change’, 11 JPP 171, 183 (2003).

133See, e.g., P. Weckel, ‘L’Usage De´raisonnable de la Force’, 107 RGDIP 378, 386

134	(2003).
134	See Taft	and Buchwald,supra note 124, at			560.
135	Security	Council	Resolution	1441,supra note	128,	at	116.
136	Security	Council	Resolution	678,supra note	112,	at	27.

137See C. Greenwood, ‘International Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaida, and Iraq’, 4 SDILJ 7, 31–2 (2003).

300 Exceptions to prohibition of use of force

is wron g to arg ue (as was done

the

UK)

that

the

Coa

lition’s right

use

force

agai nst

Iraq

2003 hing ed

Secu

138

gave

the

blessing

rity Coun cil Resolu tion 678Re.solution 678

the

Secu rity Coun cil to the military

actio n taken in 1991, and

had

nothi ng to do with operati ons

cond ucted a dozen yea rs l

totall y

differe

circum

stances.

However,

there

was

need

for

of Resolu tion 678 in 2003, just as

the re was no strict need for

adop tion in 1990. Both in 1991 and in

2003,

the

Coali tion

act

basis

the

right

of collecti

lf-defenc

with

which

vest

ed by Article 51 of the Charter

custom

ary

intern

The

exercise

that

right

coul

terminat ed

by a

cease-

Foll owing a final ultimatu m, the

Coa

lition

resume

gen

eral

agai

nst

Iraq

March

2003.

Bag

hdad

fell

on 9 Apri l, and i

maj

or combat operati ons were over.

All

the

same,

irregul

figh

pers

isted long after

the

occupa tion

Iraq

(with

upsurge in

lence in 2004) . Already in May 2003, the Secu rity Council deter

Resolu

tion

1483

that

the

situati

Iraq, althoug

improv

ed,

constitut

‘a

threat to internatio nal peace

139

Insecurity’October.

and

2003,

Resolu

tion

1511,

the

Coun cil

expressly

autho

rized

‘a

nation al

force

under

unified

command

’

(structur

around

Coa

lition

military

units)

‘to

take

all

nece

ssary

measu

res

cont

the

maint

enance

of secu rity and stabi

140

inIn IraqJune’. 2004,

lity

acc

ordance

with

Secur ity Coun

cil

Resoluti on

1546,

the

form

tion

Iraq

b y

the

Coalition

end

ed,

and

Inte

rim

Govern

ser ted full res ponsibil ity and authori

ty;

but

the

multinat

ional

(

force

remained

the

country

–

at the request of the Interim

Gover

and its authori ty ‘to take all

necess

ary

measu

res’

was

reaffir

Council.141 Late in 2004, the US forces engaged in a major battle that

destroyed an insurgents’ base of operations in the city of Fallujah.

(c)The post-‘Cold War’ era (other than the Gulf War)

In the years since the outbreak of the Gulf War, the Security Council has become inured to citing Chapter VII, and has frequently adverted to it in diverse contexts.142 The Council has not determined since August 1990

138 Foreign and Commonwealth Office Papesupr,a note 125, at 812–14.

139Security Council Resolution 1483 (2003), [2002–3] RDSC 139, 140.

140Security Council Resolution 1511 (2003), 43 ILM 254, id., 256 (2004).

141Security Council Resolution 1546, 43 ILM 1459, 1460–2.

142Between 1990 and 1996, the Council adopted no less than 107 resolutions under

Chapter VII. Bailey and Daws,supra note 84, at 273. Since then, the number ha grown at a brisk pace.

Collective security

301

the

exist

ence

of a

breac h

the peac e. However, in

five

spe

cific

cases

(unrelat ed

Iraq; no

coun

ting

reitera

tion

addition to a general refe rence

to te rrorist attacks as well as the

tion of nuc lear, chem ical and

biologi

cal

wea pons), it

has

form

mined the exist ence of a threa

t to the peace (either globally or

particul

ar region). This was

done

Resolu

tion

733

(1992)

rel

Somali

143

solution 748

(199

conce

rning

Libyan

failure

renou nce terro rism (as dem onstr ated by its refu sal to surrend e

suspect

the

Locke

rbie

bom

bingfra,(seeE,

(bii),);144 Reso

lution

757

(1992

)

perta ining to the situati on

goslavia, especial

145

Resoluti

788

(1992)

respect

146

ria;

Herzego vina;

Libe

Resolu

tion

807

(1993

)

otivated

repeated

vio

lations

fire

147

841 (1993

)

148

Croati

a;Resoluti

regard

s ResoHai ti;lution

918

(19

94)

149

tion

1054

(1996

)

pro

mpted by

Suda

Rwanda;Resolu

non-c omplianc e with dem ands for extraditio n of susp

150

ected te r

Resolu

tion

1078

(19 96)

generat ed

the

situatio

Easter

(Great

Lakes

151

tion

1101

(1997)

abou

152

ania;

gion);Resolu

Alb

Resolu

tion

1125

(1 997)re the Central African

153

lution

Republ

ic;Reso

1127 (199

dealing with

154

1132

(19

97)

app lying

gola;Resoluti on

Sierra

155

1199

(1998)

15 6

1264

Leone ; Resolution

Kosovo;Resolution

(1999)

in the

157

1267

(1999)

engendered

at ter of East Timor;Resolution

the

iban

authorities

ngprovia

disafe

ave

Afghanistan

terrorist Osama bin Laden;158 Resolution 1291 (2000) germane to

Congo;159 Resolution 1298 (2000) triggered by the war between Eritrea

and Ethiopia;160 Resolution 1343 (2001) generated by Liberian support

for rebels in Sierra Leone;161 Resolution 1363 (2001) brought about by

143

Security Council Resolution 733, 47 RDSC 55, id. (1992).

144

Security

Council

Resolution 748,supra note

25,

at 52.

145Security Council Resolution 757, 47 RDSC 13, 14 (1992).

146Security Council Resolution 788, 47 RDSC 99, id. (1992).

147Security Council Resolution 807, 48 RDSC 23, id. (1993).

148 Security Council Resolution 841,supra note 62, at 119.

149Security Council Resolution 918, 49 RDSC 6, 7 (1994).

150Security Council Resolution 1054, 51 RDSC 75, id. (1996).

151Security Council Resolution 1078, 51 RDSC 115, 116 (1996).

152Security Council Resolution 1101, 52 RDSC 58, id. (1997).

153Security Council Resolution 1125, 52 RDSC 92, 93 (1997).

154 Security Council Resolution 1127,supra note 58, at 50.

155Security Council Resolution 1132, 52 RDSC 83, 84 (1997).

156Security Council Resolution 1199, 53 RDSC 13, 14 (1998).

157Security Council Resolution 1264, 54 RDSC 128, 129 (1999).

158Security Council Resolution 1267, 54 RDSC 148, id. (1999).

159Security Council Resolution 1291, 55 RDSC 51, 53 (2000).

160	Security Council Resolution 1298,supra note 69, at 147.
161	Security Council Resolution 1343 (2001), [2001–2] RDSC 204, 205.

302

Exceptions to prohibition of use of force

post-Taliban

Afghan

162

1464

(2003)

affecting

the

Ivory

istan; Resolution

Coast;163 Resolut

ion

1484

(2003)

contend

ing

the

uri

Region

the

164

1529

(2004)

linked

once

165

Haiti;

Congo;

Resolution

Res

ution

1545

(2004)

stigated

16 6

di;Resolution

1556

Buanrund

(2004)

stimulated

the

crisiinthes

Darfur

egi on

16 7

an.

Sud

least

eighteen

occ asions

(not

countin g

Iraq

the

Coun

cil

decided

res

ort

sanction

Resoluti

713

(199

arms

embar go

168

tion

733

(19

92)

impose

YugoslavResoluia;

arms

embargo

169

748

(1992 )

imposed

variou

Somalia;Resolu tion

sanc tions on

Libya,

especial

air

170

757

arms embargoResolution;

(19 92)

imposed

econom

sanction

Serbia

and

171

Montene

Resolu

tion

781

(19

92)

the

Coun

cil

banned

ilitary

fligh

Bosni

a-Herze

172

lution

788

(1992)

imposed

arm

govina; Reso

embargo

173

(1993)

impose

trade

emba

on Libe ria;Resoluti on 841

Hai

174

Resolu

tion

918

(1994)

impo

sed

arms

embargo

ti;

175

Resolu

tion

942

(19

94)

imposed

econom

sanc

tions

Rwa nda;

Bosni

176

Reso

lution

1070

(199

impo

sed

air

emba

Serbs;

177

Resolu tion

1127

(19 97) impo sed

sanc tions

UN ITA,

Sud an;

Stat

entit

178

1132

(19

97)

imposed

arm

gola;Resolu tion

embargo

Sierra

179

1160

(199 8)

impo

sed

Leone;Resolu tion

arms embargo on Yugoslav ia in connecti on with

the

180

osovo

Resolu

tion

1267

999)

impose

air

embargo on

Afghan

froz

fund

cont

rolled

the

181

1298

(2 000)

TalibanReso lution;

impo sed

an arms embarg o on Eritr ea

182

EthiopiResolu tiona;

1343

and

162

Security

Council

Resolution

1363

(2001),

[2001RDSC–2] 268, id.

163

Security

Council

Resolution

1464

(2003),

[2002RDSC–3]

176,

177.

164Security Council Resolution 1484 (2003), [2002–3] RDSC 24, 25.

165Security Council Resolution 1529, 43 ILM 963, id. (2004).

166Security Council Resolution 1545, 43 ILM 1453, 1455 (2004).

167Security Council Resolution 1556, 43 ILM 1244, 1245 (2004).

168Security Council Resolution 713, 46 RDSC 42, 43 (1991).

169	Security	Council	Resolution	733,supra note	143,	at	55.
170	Security	Council	Resolution	748,supra note	25,	at	52.
171	Security	Council	Resolution	757,supra note	145,	at	14.
172	Security Council Resolution 781, 47 RDSC 27, id. (1992).
173	Security	Council	Resolution	788,supra note	146,	at	100.
174	Security	Council	Resolution	841,supra note	62,	at	119.
175	Security	Council	Resolution	918,supra note	149,	at	7.

176Security Council Resolution 942, 49 RDSC 30, 31 (1994).

177Security Council Resolution 1070, 51 RDSC 75, id. (1996).

178	Security	Council	Resolution	1127,supra note	58,	at	51.
179	Security	Council	Resolution	1132,supra note	155,	at	84.
180	Security Council Resolution 1160, 53 RDSC 10, 11 (1998).
181	Security	Council	Resolution	1267,supra note	158,	at	149.
182	Security	Council	Resolution	1298,supra note	69,	at	147.

Collective security

303

(2001

) impo

sed

sanction

iberia,

prima rily

the

impo

monds

from

that

183

tion

1556

(200

–

which

coun

try;Resolu

expressed

the

in tention

onside

measures

under

Article

the Gove

rn m

ent

Sud

an – armsimposedmbargoan

on non-governmental

entitie

and

individu

als

operati

in184Darfuand r;Resoluti on

1572

(2004

) impose d an arms

185

embargo on the Ivory Coast .

In nine

cases (again,

not

counting

Iraq),

the

Security

Council

auth

Member States to use ‘all necessary means’ (or ‘measures’), with a

attaining a specific enforcement goalinfra(see,D, (c)). Thus,	Resolution
787 (1992) allowed States, acting either individually or	regionally, to

‘such measures commensurate with the specific circumstances as may necessary’ – a euphemism for the use of force – to inspect cargoe ensure strict implementation of Resolutions 713 and 757 relating

Yugoslavia;186 Resolution

794

(1992)

authorized

Member

States

the

‘all

necessary

means’

establish

‘a

secure

environment

for

huma

ian

relief

operations

187

816

(1993)

authorized

the

Somalia’;Resolution

use

‘

all

necessary

eans’

the

irsp

ace

osnia-H

Resolution 929

(

94)

a uth

ized

e u se of

‘all

necessary me

civilians

risk

189

940

(1994) authorized the use o

in Rwanda;Resolution

‘all

necessary

means’

bring

about

the

removal of the military lea

and

the

restoration

the

legitimate

Government

insupraHaiti,A,

(

(d));190 and

Resolution

1264

(1999)

–

stirred

request

Indonesia

–

authorized

‘the

establishment

multinational

force

a unified

command

structure’,

with

the task

restoring

peace

and

East

Timor,

coupled

with

specific

authorization

‘the

States

pating in the multinational force to take all necessary measures to fu

mandate’.191 Similarly, Resolution

1386

(2001)

authorized the

establish

ment

International

Assistance Force to assist in the maintena

security in Kabul and its

surrounding

areas in

Afghanistan –

after th

the

Taliban regime – and the

Member

States participating

the

were

explicitly authorized

‘to take all necessary measures to fulfil its

date’.192 Exactly

the

same

formula was used in Resolution 1484 (2003

regards the

Interim

Emergency

Multinational

Force deployed

183

Security

Council

Resolution

1343,supra note

161,

206.

184

Security

Council

Resolution

1556,supra note

167,

1246.

185

Security

Council

Resolution

1572, doc. S/RES/1572 at 2 (2004).

186

Security

Council

Resolution

787,RDSC47

29,

30–1

(1992).

187

Security

Council

Resolution

794,RDSC47

63,

(1992).

188

Security

Council

Resolution

816,RDSC48

4, id.

(1993).

189

Security

Council

Resolution

929,RDSC49

10, id.

(1994).

190

Security

Council

Resolution

940,supra note

63,

at 51.

191

Security

Council

Resolution

1264,supra note

157,

129.

192

Security Council Resolution 1386 (2001), [2001–2] RDSC 272, 273.

304 Exceptions to prohibition of use of force

Congo (not to be confused with the UN Mission in C (MONUC)).193 In Resolution 1464 (2003), relating to the Ivory Co

ECOWAS and French forces were authorized ‘to

take

the

necessary

and

use

‘the

means

available

them’

for

protection

civilians

force

194

protection.

manifest

from

the

spate

res

olutions

that

the

Security

cur

rently

int

erpret

its

mandate

under

Chapt er VII in the m

man

ner.

Tha

being

said,

remarka

ble

that

–

despit e

refere

nces

Chapt

VII

–

the

Coun

cil has never atte mpted

the

key

clause

in the

collecti ve

security

system:

Art

icle

the

1992,

the

then

Secr etary-G

eneral,

Boutros

-Ghali

was

the

Council

(follow

ing

special

and

unpre

cedented

meeti ng

of Heads of St ates and Govern ments)

submit

reco mmen da

streng

thenin

the

effec tiveness

the

collectiv e

security

syst e

Chart

195

Bou

tros-Gha

dressed

the

issue

report

entitle

er.

Agend a

for

196

ted

that

the

Coun cil had not made

Peace’.He

Art

icle

42,

and

sugges

ted

tha

such

move ‘is esse ntial

to the

the

United

Nations

guara

ntor

internat

197

secuSinc rity’ea.

ional

pre-c

ondition

the

conc

lusion

the

spe

cial

agree

ments

req

Art

icle

(seein fra, D, (a)), the

Secret

ary-Gen

eral

thought

that

neg o

tions

should

198

Counci l

was

disincline

initiated However,. the

purs

this

199

path.

D. The mech anism of em ploying collect ive fo rce

(a)Article 42 and the absence of special agreements

The Charter does not envisage the establishment of a permanent international force with troops recruited directly by the UN Organization itself.200 Instead, Article 42 refers to the carrying out of military

193	Security	Council	Resolution	1484,supra note	164,	at	25.
194	Security	Council	Resolution	1464supra note	163,	at	177–8.

195‘The Responsibility of the Security Council in the Maintenance of International Peace and Security’, 47 RDSC 65, 66 (1992).

196Report of the Secretary-General, ‘An Agenda for Peace’, 31 ILM 956 (1992).

197Ibid., 966. 198 Ibid.

199For the Council’s response to the Report of the Secretary-General, see ‘An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-Keeping’, 47 RDSC 101–4 (1992).

200It is consequently doubtful whether the Council is authorized by the Charter to require States (without their consent) to allow the enlistment of individual volunteers against an aggressor. Such a view is expressed by L. C. Green, The Contemporary Law of Armed Conflict 272 (2nd ed., 2000).

Collective security

305

operati ons

(as

decid

the

Security

Coun

cil)

through

the

Member

States.

w thwesi

lle

a cces

si b

Under Article 43, UN Members

areligatedobto make available to the

Council the n ecessary armed

forces,

but

duty

bjec

condition

that

this

will

done

‘in

accordance

with

special

agre

agree

ments’

(gov

erning

t he numbe rs a nd t

ypes

forces,

re adi

ess

and

gene

ral

201

ale

rlyi

loc Theationr )at. ion

the

cial

agreements is pl ain. The Council cann

plish the

mission assigned to it by the

Charter unless it acts swiftly

once

crisis

reaks

out.

S ince

noentpermaninternationa

forc

e xists

advance

preparations

have

to be made for the

pid

eploym

forces

belonging

Membe

States.

particular,

ember

must identify combat-ready

units

that

can

drawn

pon

Council

moment’s

n otice.

It stands to reason that

theitySecurCouncil

not

requi

red

clude

s pecial

a gree

ments

with

all

embers,

not

eve

all

question

whethe r

Mem

Members of the Council.But t he

State is bound to place

armed forces for enforcement acti on

disposal

the

uncil

when

spec

ial

agreement

has

been

are

two

con

fli

cti

in terpret ati

ons

t he

art

One

approac

hat

Counc

may

insist

Member

ary

b ehes

spit

on-c

agreements (or i n excess

the

force s

pledge

agre

The other, and more common,

opin

ion

that

duty

States

under

the

Charter

–

their

collective

operation

mounted

the

C ouncil – is purely

abstract,

and,

concretized

special

agreents,emt

Members

ma y

evade

the

undertaking.204

Article 43 prescr ibes that

the spe cial agreemen ts ‘sha ll be neg

soon

possible

the

ini

tiative

the

Security

Coun

cil’.

six decades later, no special agreements have been reached. Article 106

enunciates that, pending the coming into force of the special agreements

referred to in Article 43, the five Permanent Members shall consult with

a view to taking ‘such joint action on behalf of the Organization as may

be necessary for the purpose of maintaining international peace and

security’.205 Since no special agreement pursuant to Article 43 has ever

201

Charter

the

United

Nations,supra note

344.

202

See L. M. Goodrich and A. P. Simons, The United Nations and the Maintenance of

International Peace and Security 395–6 (1955).

203

See

Kelsen,supra note

35,

756.

204

See C. Chaumont, ‘Nations Unies et Neutralite´’, 89 RCADI 1, 39–40 (1956).

205

Charter

the

United

Nations,supra note

362.

306 Exceptions to prohibition of use of force

been

conclu

ded,

the

tra nsition

peri

envisage

Article

106

yet

end

206

ver,

‘[s] o

far,

Art.

106

has

not

attain

any

ed’. Howe

sign

207

ificance’.

pul

ate

beingthat

,c beforealled upon

provide

armed

forces,

Member

State

not

presente

the Security

Cou

ite d

artic ipat

an y

cis

ion

onc

erni

the

208

a regular UNMember

forces. The case is exceptional, for

hereby

entitled

not

just

to have

voice

heard

the

deliberati

C oun

act

ua lly

to ta ke part in the

Cou

cil ’s

process by voting on any

proposal(albeit only in regard to the use

made

the

ember’s

own

armed

me,

forces)All . t

Member

has

only

one

vote,

a nd

may

overruled

the

Counc il.

To enable carryin g out a combi ned UN enforcem ent

action

cases,

Me mber

States

are

instru cted

Article

keep

cont

ingents

imm

210

ause,

too,

cond

itio nal

ediately availableThis.

the

exi stence of the specia

l agr eements projected in Art icle 43.

Art icles 46 and 47

establish

a Military St aff Commi

ttee,

cons

the

Chi

efs

Staff

the five Per manen t Me mbers

the

Secu

or their

repres

entatives,

its

mission

being to

ad vise

and

assi

all

mili

tary

211

Commi

ttee

was

stalema

ted

the

attersThe.

days

the

and,

ile cont inuing

mee

perio

dically,

acti

vate it have so far

met

212

enou gh,

with littl e enthusiasmInterest.ingly

Resoluti on

665

(1990),

the

Securit

Coun

cil

requ

ested

‘co

-operating

with

the

vernment of K uwait’ – wh ile carry

block

ade

Iraq

–

coordi nate their acti ons using

the

mecha

Mil

itary

aff

213

Ame

rican-le

Coa

lition

Commi

tteeHowever,. the

ferred to leave the Committee dormant.214

By dint of the failure to conclude special agreements, as perceived in Article 43, no advance preparations have been made for prompt action in the event of a breach of the peace, and no standing military units are ready to do as the Security Council bids. Yet, in the words of the International

206R. Geiger, ‘Article 106’, The Charter of the United Nations: A Commentary, II, supra note 30, at 1327, 1328.


207	Ibid., 1329.	208 Charter of the United				Nations,supra note 9, at 344.
209	See Goodrich,		Hambro	and Simons,supra note 19, at 327.
210	Charter of	the	United	Nations,supra note 9,		at	344–5.
211	Ibid., 345.	212	Bailey and		Daws,supra note	84,	at	280.
213	Security Council Resolution				665,supra note	104,	at	22.

214See G. K. Walker, ‘The Crisis over Kuwait, August 1990 – February 1991’, 1 DJCIL 25, 49 (1991).

Collective security

307

Court	of	Ju	stice	in	its	Ad visory OpinionCert ainonExpense	s of the	United
Natio	ns:
It cannot		be	said	that	the	Charter has left the Security	Council	impoten

face of an emergency situation when agreements under Article 43 have no concluded.215

Over the years, two mechanis ms have evo lved: (i) peac ekeepin g, non-A rticle 42 enf orcemen t actio ns.

(b)Peaceke eping forces

Since

the

1950s,

dozens

niationsed Nfo

rc es

have

been

set u

(principally

the

ecurity

Councilb ut

exceptionally by

the

ener

Assembly)

for ‘peace

ke eping’

216

c ommon

enominator

purposesThe.

of all

acekeeping

force

s i s

that

they

hav

e adco hocme,

into

as a nd when re quired in spec ific emergencie s, and their d epe

voluntary c ooperation by M

ember States

(

willing

contribut

military

contingents

hich

the

forces

are

composed)

has

lu te21. 7The

origina

l i

acekee

ping

was

rimarily

tha

a co

rdo

n s

an, itasetireti

oppone nt s apart and preve nt

But,

especially

after

end

ofoldt

heWa ‘Cr’,

acekee ping

operation

have

gradually

become

219

extreme example

multi-dimensionalAn.

is that of UNAM SIL (United Nati ons Mission in

Sierra

Leone

manda te was revised in

2000 to

provi

curity

key

loca

install ations, as well as

facilit

ate

the

free

flow

people,

humani

tarian

assi stance,

and

assist

local

law

enforcem

ent

aut

(affo

rding

prote ction

civilians

under

immin

ent

threat

220

vio

peacek

eeping

operati

on is supposed to be complet ely

differen

an enf orcemen t action.

The tw o speci al attribut es

eacek

are that (i) it is establishe

and

maintai

ned

with

the

consen

States concerned; and (ii) it is not authorized to take military action

215Advisory Opinion on Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), [1962] ICJ Rep. 151, 167.

216For an updated survey of all UN peacekeeping operations until mid-2001, see M. Bothe, ‘Peace-Keeping’, The Charter of the United Nations: A Commentary, I, sup a note 30, at 648–700.

217See R. Sommereyns, ‘United Nations Forces’, 4 EPIL 1106, 1109.

218See E. Jime´nez de Are´chaga, ‘International Law in the Past Third of a Century’, 159 RCADI 1, 130 (1978).

219See W. J. Durch, ‘Keeping the Peace: Politics and Lessons of the 1990s’, UN Peacekeeping, American Politics, and the Uncivil Wars of the 1990s 1, 3–4 (W. J. Durch ed., 1996).

220Security Council Resolution 1289, 55 RDSC 96, 97–8 (2000).

308

Exceptions to prohibition of use of force

agai

nst

any

221

speci al

featu

res are

general

conceded

State.These

the

ory,

yet

they

are

not

free

compl ications

pra

ctice.

The conce

of consent

asd

ustirrep a

number

thorny

problems

its

still

ccepted

principle

con

application,

although

prece de

for

stationing

p eac

ekeepingIt hasforcet

recognized that consent may be induced by the Security C oun

circumstances

where

the

host

State

little

real

choic

the United Nations Iraq-Kuwait

Observation

Mission

(U NIKOM)

set

u p

with

Iraq’s

reluctant

consenterhataft country’s

military defeat

the

first

phase

the

fWhile,War. as a rule, a withdrawal of prior

c o ns en t

t-St

ateinatewoua ldpe teacekeepingrm

225

operation,

Resolutio

n 689

(1991)

pro

claimedgoricallycate

that

deployment

U NIKOM ‘c an on l y be

termi nat ed by a

226

cis ion Theof the

special regime must be understood against the

background

a cea

impo

sed

Iraq.

essenc

peacek

eepin

force s

are

not

designed

for

Nev

ertheless,

has

alw ays

been

unders

too

tha t

the

are

def

end

themse

lves.

This

spe

cific

right

self-defe nce,

applic

peac

ekeepin

forces,

shoul

not

confu

sed

with

the

uch

right of self-def ence vested

in Statessupra(se, Chapte ers7–9). A peace-

keepi

force’s

exercise

self-defe nce is m

ore

akin

milit

self-defence,227 in

the

context of

on-the-spot

reactionsu

pr( ,see8a, A, (a), i).

noteworthy

tha t

the

Security

Counc

occ

asionally refers

attacks’

against

nited

N ations

22 8

personne

Sec

urit

Cou

nci

hasmeg

rape ntacekeeds pingo

forces

permis-

sion to use forc e in circ umstancesgb eygoiond s

elf-defence. Alre ady

Bosnia-Herzegovina, U NPROFOR (Unite d Na tio ns

P rote ction

was explicitly authorized in Resolution 836 (1993), ‘acting in self-

defence, to take the necessary means, including the use of force, in

reply to bombardments against the safe areas’ (free from hostile acts)

established by the Council, as well as to protect freedom of movement

221

See

Advisory

Opinion Certainon

Expenses

of the United

Nationsupra,

note

215,

170,

177.

222See J. I. Garvey, ‘United Nations Peacekeeping and Host State Consent’, 64 AJIL 241–69 (1970).

223See C. Gray, International Law and the Use of Force 232 (2nd, 2004).

224 Security Council Resolution 687,supra note 116, at 12.

225See D. Wippman, ‘Military Intervention, Regional Organizations, and Host-State Consent’, 7 DJCIL 209, 234 (1996–7).

226Security Council Resolution 689, 46 RDSC 15, id. (1991).

227See N. D. White, Keeping the Peace: The United Nations and the Maintenance of International Peace and Security 240 (2nd ed., 1997).

228See, e.g., Security Council Resolution 837, 48 RDSC 83, id. (1993).

Collective security				309
	22	9		the	multina-
and huma nitaria n convoysIn. Resolution 1101 (1997),
tional protection	force in	Albania	was authorized ‘to	ensure	the se
and freedom of	movement’	of its	230
			personnelMost. significantly, ONUB

(United Nations Operation in Burundi) was authorized by the Counc

Resolution	1545		(2004),	‘to use	all necessary			means’	to	carry o
extensive		231			a	new	robust	concept	of	‘peaceke
	mandate.		Clearly, this is
ing with	teeth’,	which is		viewed by		some	as ‘a	mutation	between		tr
							232
peace-keeping and peace-enforcement operations’.
Whate ver the sc ope of their m ission m ay								be, ‘[a]ll		UN	pea
forces have so		far been		made	up	of	nation al cont ingent s,				su

233

membe r stat es’.The component units are nei ther fully int egrated

released from national dis cipline.

the

word s

L ord

Pearc

Nissan case (whic

h aros e before the House

ords, in

1969, a

the Unite

Nati

ons force in

Cypru s):

the

commander

the

United Nations

force

is head

the

chain

comm

is answerable to the United Nations. The functions of the force as a w

international.

But

its individual

component forces have

their own

national

and discipline

and

234

remain in their own national service.

Whe

intern

ational

force

put

toget

her

consen

sually

peacek

eeping

–

oppos

ed to

enforce

ment

–

purpo ses,

need

up spe cifically by the Secu rity

Coun cil

(or

for

that

matter,

organ

the

Uni

ted

Nati ons).

Und

Protoc ol

annexed

Egyp tian–Israe

Treaty

Peace of 1979, the parties

requ

est

United

Nati

ons

provide

forces and obs

ervers

for supe

rvising

men tation of the terms agreed upon betw

235

out

eenWhethemn. it turned

that the Secu rity Counci l

was unable to accede to that

requ

est,

Israe l (with the acti ve assi stance of the Uni ted States)

conclu d

another

Protocol

Establishing

the

Sinai Multinational

Force

and

Observers.236 This force operates successfully in lieu of the UN force originally visualized, without being linked to the UN Organization.237

229 Security Council Resolution 836, 48 RDSC 13, 14 (1993). 230 Security Council Resolution 1101,supra note 152, at 58.

231 Security Council Resolution 1545,supra note 166, at 1455.

232See D. Kritsiotis, ‘Security Council Resolution 1101 (1997) and the Multinational Protection Force of Operation Alba in Albania’, 12 LJIL 511, 538 (1999).

233R. C. R. Siekmann, National Contingents in United Nations Peace-Keeping Operations 9 (1991).

234Attorney-General v. Nissan (1969), [1970] AC 179, 223.

235Egypt–Israel, Treaty of Peace, 1979, 18 ILM 362, 367, 372 (1979) (Article VI).

236Egypt–Israel, Protocol Establishing the Sinai Multinational Force and Observers, 1981, 20 ILM 1190 (1981).

237See M. Tabory, The Multinational Force and Observers in the Sinai: Organization, Structure and Function passim (1986).

310 Exceptions to prohibition of use of force

In the 1990s, the Security

Coun

cil

found a pragma tic way

Art

icle

flagra nt

cases

threat

the

peace.

the

spe

cial

agr eements

require

Articlesup

ra,43(a)),(

the

Counci

still

refrai ns from imposing on Me mber States the obligat ion

take

measu

res.

Instead

the

Coun

cil

now

resorts

the strat

egy

of a

mber

St ates

–

acti

ther individu ally or within

the

fra

regi

onal

organ

izations

–

use

force

sharpl

def ined

situat

vol untary basis. Some scho lars ad

here

the

view

that,

wherea

‘rec

ommend ation’

would

not

suffice

activate

Article

42,

‘aut

tion’

ilitary

acti

mber

States

comes

withi

the

Art

238

This

view

unt

enable.

the final analy sis, there

icle.

differe

ntiation

betw

een an

thoriz

ation

ilitary

actio

an d

239

men dation . Authoriz ation is no less permi ssive than recom mend

Both

thoriz ation

and

recomm endation share a non-m andatory

and,

the

refore,

neither

action

comes

under

the

rubri c

Arti

Enfo

rceme

measures

keeping

with

Article

must

man

datory

decisions

the Secu rity Coun cil, and no thing

sho

decis

ions will do. Per missive

enforcem

ent action,

predica

ted

eith

reco

mmen

dation

thorizat

ion

issue d

the

Council

its

intrins ic

legal

validity

not

from

Art

icle

but

from

Article

sup ra, A, (c) – Ba,)).(

The

m ost

intrigu

ing

aspe

the policy of authori zation

force

the

Secu

rity

Council.e.

volunt–

ary

enforce

ment

actio

–

eleme nt of ‘s ub-contrac

ting’

240

ani

the use of force to regio nal

org

This

modus

oper

andiis

speci

fically

envi saged

Chapter

VIII

Chart

(Articles

241

52(1)

(referre dsuprato ,

Chapt

52–

4)Article.

B) expres sly permits the

exist

ence of ‘regi onal arrangeme

nts

for dealing with matters that relate to the maintenance of international

peace and security (and are appropriate for regional action), provided

that such arrangements or agencies (and their activities) are consistent

with the Purposes and Principles of the United Nations.242 Article 53(1)

promulgates:

238 See J. A. Frowein and N. Krisch, ‘Article 42’, The Charter of the United Nations: A

Commentary, I, supra note

30,

749,

756–8.

239See E. V. Rostow, ‘Until What? Enforcement Action or Collective Self-Defense?’, 85 AJIL 506, 509 (1991).

240N. D. White, ‘The UN Charter and Peacekeeping Forces: Constitutional Issues’, The

UN, Peace and Force 43, 58 (M. Pugh ed., 1997).

241 Charter of the United Nations,supra note 9, at 346–8.242 Ibid., 346–7.

Collective security

311

The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council.243

Already in Resolution 199 (1964), the Security Council expressed its conviction that the Organization of African Unity should be able – in the context of Article 52 of the Charter – to help find a peaceful solution to the problem of the Congo.244 Similarly, in Resolution 217 (1965) concerning Southern Rhodesia, the Council called upon the Organization of African Unity to assist in the implementation of the resolution, in conformity with Chapter VIII of the Charter.245

A contextual interpretation of its language might lead to the conclusion that Article 53(1) can only be invoked when the State ‘in which action is intended to take place’ is a member of the regional organization invited by the Security Council to intervene.246 But (as demonstrated by the Southern Rhodesia case), that is not the way in which the Council has construed the Charter in practice. The Council may utilize a regional organization for enforcement action beyond the bounds of the region, simply because the organization in question is willing and able to serve as an instrument for performing the task assigned to it.

The functioning of a regional organization does not modify the fundamental rules governing the use of force. The position of a regional group of States is not appreciably different from that of an individual State.247 Chapter VIII of the Charter interlocks with Chapter VII to retain the monopoly of the Council in the field of collective security. The wording of Article 53(1) is unequivocal: the legality of regional enforcement action is entirely contingent on Security Council authorization.248 An authorization resolution ‘produces a permissive effect by making lawful a conduct otherwise prohibited by article 2(4) of the charter’.249 Unless it gets a clear-cut go-ahead signal from the Council to perform enforcement functions, a regional organization (like any single State) can resort to lawful force only within the ambit of collective self-defence (see supra, Chapter 9).

243 Ibid., 347. 244 Security Council Resolution 199, 19 RDSC 18, 19 (1964).

245Security Council Resolution 217, 20 RDSC 8, 9 (1965).

246G. Gaja, ‘Use of Force Made or Authorized by the United Nations’, The United Nations at Age Fifty: A Legal Perspective 39, 44 (C. Tomuschat ed., 1995).

247See D. Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of Its Chapter VII Powers 248–9 (1999).

248See C. Walter, ‘Security Council Control over Regional Action’, 1 MPYUNL 129, 154 (1997).

249T. Gazzini, ‘NATO’s Role in the Collective Security System’, 8 JCSL 231, 255 (2003).

312

Exceptions to prohibition of use of force

dressing

the sam e subject from a compl ement ary angle, one

that

when

armed attack occurs, an y

State

cluster

State

direc

tly

from

the Chart er a right to

use

force

collecti

The

need

suc

instanc

pro

cure

any

prior

the

Coun

cil

(a lthough any exerc ise of self-de fence is ultimate ly

review

the

Coun cil;su sepra,e Chapter

Da)), . ( The

Coun cil

may

choo

ive

its

blessing

the

initiatio

coll

ective

measu res

agai

nst

armed

attac

(as

did

the

firs

pha

r),

but

mere

bless

ing

for

actio

take

right must no

with

Coun

cil

authori zation

acti

not

oth

erwise

permiss i

250

long as no armed attac

mounted,

regi

onal

Chart er.

tion

(like

any

ind ividua l State) is dis entitled under the Charter to

reco

urse

force.

O nly

the

authori

zation

the

Coun

cil

regi

onal

org

anizatio n with the right to use force

circumst

armed

attack.

conspicuo

authori

zation

the

Securit

Counci

l of

the

regiona l

org anizatio n

occ

urred

Bosni

a-Herze gov

Resolu

tion

816

(199

3),

the

Coun

cil

–

invoking

Chapter

VII

–

that

Member

States, ‘actin g na tionally or

through

regiona

organ

arrangeme

nts’ could,

‘under

the

autho

rity

the

Security

take

‘all

nece

ssary measu res’ in the air space of

251

rzego

Bosnia-He

Resolu

tion

816

was designed

ensure

compl ianc

with

ban

the

airspac e

osnia-He

252

836 (19

93),

rzegovinI aResoluti. on

sam e call was made with a vi ew to

supp orting

UNPROF O

performa

nce

its

mandate

(incl

uding

the

pro

tection

of253safe

Accord

ingly

1994/5,

NATO

aircr

aft

repeatedl

cond

ucted

the

area,

coo

rdination

with

254

UN.

the

If the premi se is

accepted

that

regiona

organizati on

may

reac

its

membe

rship

when

acti

unde

Artic

53(1),

816 an d 836 lend

full

legitima

the

NATO

military

oper

Bosni a-Herze

govina .

regi

onal

org

anizatio

255

fact

that

was

originally

envi sioned

merely

of Art icle 53(1).The

coll ective self-defe nce organ izationsupra(see, Chapt

9,b))B, does(

not

diminish from NATO’s objective character as a regional arrangement.

Any

attempt

erect

barrier

between

collective

self-defence

250For an example of such confusion, see L.-A. Sicilianos, ‘L’Autorisation par le Conseil de Se´curite de Recourir a` la Force: Une Tentative d’Evaluation’, 106 RGDIP 5, 23–4

251	(2002).						4.252 Ibid.
251	Security	Council	Resolution	816,supra note	188,	at	4.252 Ibid.
253	Security	Council	Resolution	836,supra note	229,	at	14.

254See S. M. Hill and S. P. Malik, Peacekeeping and the United Nations 181–4 (1996).

255See Kelsen,supra note 35, at 920.

Collective security

313

organizations and regional arrangements for enforcement purposes is artificial.256 For sure, there is a difference between the exercise of collective self-defence and an enforcement undertaking stemming from Article 53(1). But that difference relates to the organization’s interface with the Security Council. When exercising collective self-defence, NATO does not require the advance authorization of the Security Council. Contrarily, when functioning as a regional organization in keeping with Article 53(1), NATO must seek first the authorization of the Security Council. Once that authorization was obtained with respect to Bosnia-Herzegovina, NATO’s air-raids constituted a lawful enforcement action compatible with the UN Charter.

The role played by NATO in Bosnia-Herzegovina gained a new dimension when it was agreed in Article I(1)(a) of Annex IA (Military Aspects of the Peace Settlement) of the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina (negotiated in Dayton, Ohio, and signed in Paris):

The United Nations Security Council is invited to adopt a resolution by which it will authorize Member States or regional organizations and arrangements to establish a multinational military Implementation Force (hereinafter ‘IFOR’). The Parties understand and agree that this Implementation Force may be composed of ground, air and maritime units from NATO and non-NATO nations, deployed to Bosnia and Herzegovina to help ensure compliance with the provisions of this Agreement.257

The transfer of authority from the United Nations Protection Force (UNPROFOR) to IFOR was accomplished by the Security Council in Resolution 1035 (1995).258 Under Resolution 1088 (1996), IFOR was succeeded by SFOR (Stabilization Force),259 run by NATO. In 2004, NATO transferred its responsibilities to the European Union. In Resolution 1575 (2004), the Council recognized EUFOR as the legal successor to SFOR.260

Unlike its operation in Bosnia, NATO did not act within the confines of the Charter in 1999, when it deemed fit to compel Yugoslavia – without prior authorization by the Council – to accept a settlement of the issue of Kosovo. NATO relied on the fact that the Security Council (acting

256Cf. E. P. J. Myjer, ‘Some Reflections on Collective Security and the Use of Force: A Critical Review of Dinstein’s War, Aggression and Self-Defence’, 44 NILR 89, 96–100 (1997).

257General Framework Agreement for Peace in Bosnia and Herzegovina, 1995, 35 ILM 75, 92 (1996).

258Security Council Resolution 1035, 50 RDSC 23, id. (1995).

259Security Council Resolution 1088, 51 RDSC 42, 44–5 (1996).

260Security Council Resolution 1575, doc. S/RES/1575 at 4 (2004).

314 Exceptions to prohibition of use of force

under

Chapt er

VII)

had

twice

deter mined

that

the

situati

cons

tituted

‘a

threat

peac

an d

security

the

regio

n’:

1199

261

and

1203

(19

262

ver,

long

the

(1998)

98).Howe

spe

cific

authori

zation

by the Counci l to take

enforce

ment

Stat

group

States

entit

led

res ort

forci

ble

res ponse to a m ere

threat

263

Counci

decid

tha

the Hadpeacthe.

the

was

breac

of the peace (assumin g that

amoun

attac k),

the

legal

state

affairs

would

have

been

entirely

inasm

uch

NATO

could

then

have

exerc

ised

the

right

self-de fence. But the

was

uestion

armed

attac

Kosovo

(whic h

integr

par

Yugoslav ia

and

not

Stat

264

Any decis

ion

ecommen

dation

ether,

when

e).

to respo nd to a threa

the

peace

matter

within

preroga tive

the

Secu

rity

Coun

cil.

true

that

the

Securit y

Coun

cil

did

not

condemn NA

campa

ign

265

inaction

the

Counci

does

Kosovo.But

thoriz ation

enf

orcemen t

easures,

even

regi

ona

tion.

266

for

Resoluti

1244

267

ted

the

Securit

(199 adop9),

Coun

cil

ing

agr

eement

between

the

par

ties

which

NATO

attacks,

was

not

phra

sed

language

impl

ying

retr

268

bar

ring

exce

ratifi cation of the use of force by

NATOInany. eve nt,

tional

circu

mstan

ces,

the

Counci

l’s

authori

zation

regiona

men

acti

ust

be sought before – and not subseq uent

operation.269 The supremacy of the Council in the province of interna-

tional peace and security can be utterly eroded if the expression ‘authorization’ in Article 53(1) is construed in a manner encompassing tacit acquiescence with a fait accompli.270 One reason is that a Permanent

261 Security Council Resolution 1199,supra note 156, at 14.

262Security Council Resolution 1203, 53 RDSC 15, 16 (1998).

263See N. Krisch, ‘Unilateral Enforcement of the Collective Will: Kosovo, Iraq, and the Security Council’, 3 MPYUNL 59, 86–9 (1999).

264See M. Byers and S. Chesterman, ‘Changing the Rules about Rules? Unilateral Humanitarian Intervention and the Future of International Law’, Humanitarian Intervention: Ethical, Legal, and Political Dilemmas 177, 182 (J. L. Holzgrefe and R. O. Keohane eds., 2003).

265See R. Wedgwood, ‘NATO’s Campaign in Yugoslavia’, 93 AJIL 828, 830–1 (1999).

266See O. Schachter, ‘The Right of States to Use Armed Force’, 82 Mich.LR 1620, 1640–1 (1984).

267Security Council Resolution 1244, 54 RDSC 32 (1999).

268See U. Villani, ‘The Security Council’s Authorization of Enforcement Action by Regional Organizations’, 8 MPYUNL 535, 547–8 (2002).

269See G. Ress and J. Bro¨hmer, ‘Article 53’, The Charter of the United Nations: A

Commentary, I, supra note 30, at 854, 864–5.

270 See N. D. White, The Law of International Organisations 215 (1996).

Collective security

315

Mem

ber is apt to

‘shift

the

burden

the

veto’

by acting

uni

then frust rating the adop

tion

any resolut

ion

terminat

271

the

ing

The NA TO opera tion

may

also

viewed as

‘an

impo rtant

niabl

e invocat

ion

of the

so-cal

led

right of

humani

tarian

int erv

state

272

(see supra, Chapter

3, cB)), . ( Yet,

‘humanitarian

inter-

practice’

vention is not an exception to the Charter prohibitions on the use of force’.273 If the situation in Kosovo in 1999 was so agonizing that it warranted humanitarian intervention from the outside, this should have been decided upon by the Security Council and not unilaterally by NATO. Obviously, in Kosovo – as in Bosnia-Herzegovina – there was room for ‘synergy’ between the Security Council and NATO, but only on condition that the Council authorized NATO action against Yugoslavia.274 The fact that NATO acted independently of the Council is a source of considerable disquiet, since a precedent has been created wreaking havoc on the Charter’s system of collective security.

E.Is there an alternative to the Security Council?

(a)The General Assembly

The impasse reached by the Security Council during the ‘Cold War’ – due to the frequent exercise of the veto power – became apparent shortly after the entry into force of the Charter. In 1950, the General Assembly adopted a famous resolution – entitled ‘Uniting for Peace’ – which was supposed to surmount the obstacles standing in the way of concerted international action in the face of aggression:

Resolves that if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security. If not in session at the time, the General

271L. Henkin, ‘Kosovo and the Law of ‘‘Humanitarian Intervention’’’, 93 AJIL 824, 827 (1999).

272D. Kritsiotis, ‘The Kosovo Crisis and NATO’s Application of Armed Force against the Federal Republic of Yugoslavia’, 49 ICLQ 330, 357–8 (2000).

273J. I. Charney, ‘Anticipatory Humanitarian Intervention in Kosovo’, 93 AJIL 834, 836 (1999).

274See B. Simma, ‘NATO, the UN and the Use of Force: Legal Aspects’, 10 EJIL 1, 12 (1999).

316

Exceptions to prohibition of use of force

Assembly

may

meet

emergency

special

session

within

twenty-four hours

request

275

therefor.

W hen adop ted, the ‘Unitin g for Peace’ Resolution was gr eeted

making’.276 With

the

passage

time,

uch

origin al

Resolution

vani

277

increase

omp

ositi

shedThe.

Gener

ssemb

has

turn

into

nwiel dy body, ill-suite

hand.

Apart

its

size,

overall

record

the

General

has given rise to a

lot

criticism

and

sense

278

disenchantment.

The re is no need to

ell

upo

the

fact

that

the

‘Uni

tin

Resolu

tion

did

not,

and

could

not,

amend

the

Chart

er.

Nowhere

tex

did

the

Genera

As sembly

purport

arrogat

powe

those

allotted

279

the

Resoluti

say

tha

in the ChartNorer. does

the

neral

Assem

bly will supp lant the Secu

rity

Coun

cil.

The

central

question

conc erning

‘Unitin

for

Peace

’

often

one

defini ng

failu

the

part

the

Secur

ity Coun

its

res

ponsibil ity

or,

least,

ascert

aining

ich

organ

that such a failu re

has

280

reality

this is a side issue. T

occurredBut.

mai

roblem

that,

all

matters

perta

ining

intern ational

secu rity,

the

neral

Assem

bly

authori

zed

(underIV)

281

Chapterto

adop t

on ly

no n-bindin

recomm endation s. Each

Member

State

leg

ally fr ee to act

or not to act on such

282

reco

mmenIitsdation’1962.

visory

Opin ion

Certaion

Expen

ses

the

United

, Natiothe ns

Interna

tional

Court

stice

held

that

–

althoug h,

gen erally

the

responsibil ity

the

Secu

rity

Council

respecti

the

maint

int

ernational

peace

and

security

‘primary

’

rather

than

exclusive

the

Coun

cil

pos

sesses

the

power

impose

explicit

obl

igations

plian ce

under

Chapt

er283VII.

Du ring the ‘Co ld War’ era, the Ge neral

Assembly

tried

‘

prima ry

res

ponsibil

ity

of the Securit y Coun

cil

quit

occ

asions’,

althoug

recen

years

app

ears

have

large

275 General Assembly Resolution No. 377 (V),RGA 10,5 id. (1950).

276L. H. Woolsey, ‘The ‘‘Uniting for Peace’’ Resolution of the United Nations’, 45 AJIL 129, 130 (1951).

277See P. R. Baehr and L. Gordenker, The United Nations in the 1990s 75–6 (2nd ed., 1994).

278See T. M. Franck, Nation against Nation 117 (1985).

279See J. Andrassy, ‘Uniting for Peace’, 50 AJIL 563, 572 (1956).

280See H. Reicher, ‘The Uniting for Peace Resolution on the Thirtieth Anniversary of Its

Passage’, 20 CJTL 1, 10 (1981).

281 Charter of the United Nations,supra note 9, at 334–8.

282 J. Stone, Legal Controls of International Conflict: A Treatise on the Dynamics of Disputes – and War – Law 274–5 (1954).

283 Advisory Opinion onCertain Expenses of the United Nationsupra, note 215, at 163.

Collective security

317

itself

taking

‘a

se condary

284

event,

the

or silent Inrole’any.

Gene

ral

Assembly ad opts a rec ommend ation for action by Stat

realm

internationa l peac e and security, such

a res

olution

–

bereft

politic al significanc e – does no t alte r

the

legal

rights

those

States. In

particul

ar,

the

Genera l

Assembly

inca

pable

any

forci

ble measu res employed on a new juri

285

dicalIn footthat,inga.

Gene

ral

Assembly

res

olution

falls cons

picuous

short

Coun

cil

decision, which (pursuant to Chapter

VII)

can

le gitimi

othe

rwise

unlawfu l

use

force.

A Genera l Asse mbly recom menda tion to empl oy force should

preted

exhort

ation

addre ssed

to Member States

take

the

exerc

ise

their

inhere

right

collectiv

286

e (seelf-defenc

supra,

Chapt

er9).

Unl

ike

similar

rec ommend ation

the

Coun cil (seesupra, A, (c)), the

Gene

ral

Asse mbly is unable eve n to

the

action

the

cachetbonaof fideself-defe

nce.

That is

not

assert

(

287

Ge neral Assemb ly lack s com

some sc holars stringe ntly do)that the

tence to recomm end that Me mber

States res ort to se lf-defenc e.

the

Securit

Counci

retains

its

ultima te

powe r to come to

gri

situati

on,

the

prerogat

ive

the

neral

Assem

bly

Mem ber States to exercise

right

which

is bestow ed upon the

the

Chart

(as well as by custom

ary int ernational law).

Collect ive

secu

rity

differs

from collecti ve

self-de

fence

tha

to decid e whether to fight

agg

ressor

accord

State,

but

a centr

org

the internationa

l com

munity.

the

Chart

er that the organ in

que stion is the Securit y Cou

the

Coun

cil

fails to carry out its man date, no othe r UN org an

its

surrogat

Collect ive self-de fence may be org anized on the in

the

Genera

Assem bly. But if it is, freedom of inaction redounds

Mem ber

State.

Whe

the

Secu rity Coun cil refrains from setting in motion c

security measures, any force used by States must be restricted to self-

defence (individual or collective), namely, a response to an armed attack.

The ‘Uniting for Peace’ Resolution was carefully phrased in specifying that the General Assembly may recommend recourse to armed force only when an actual breach of the peace or aggression occurs, and not in circumstances of a threat to the peace. Perhaps the Resolution ought to

284 White, supra note 227, at 143.

285See C. Leben, ‘Les Contre-Mesures Inter-Etatiques et les Re´actions a l’Illicite dans la Socie´te Internationale’, 28 AFDI 9, 33 (1982).

286See A. V. W. Thomas and A. J. Thomas, Non-Intervention: The Law and Its Import in the Americas 175–6 (1956).

287See H. Kelsen, Recent Trends in the Law of the United Nations 979 (1951).

318 Exceptions to prohibition of use of force

have been drafted even more meticulously, for, under the Charter, a breach of the peace or aggression as such is not an adequate justification for the use of counter-force (unauthorized by the Security Council), unless it constitutes an armed attack.

(b)The International Court of Justice

There are two separate, albeit related, issues concerning the interaction of the Security Council and the International Court of Justice. The first is the concurrent or consecutive competence of the Council and the Court. The second is whether the Court can invalidate Council resolutions, adopted under Chapter VII.

i. Concurrent or consecutive competence of the Council and the Court In the Nicaragua case, the United States challenged the jurisdiction of the International Court of Justice (as a judicial organ) to deal with complaints concerning the unlawful use of force (including acts of aggression or other breaches of the peace), on the ground that this is a task assigned by the Charter to the political organs of the United Nations, chiefly the Security Council.288 The Court, in 1984, rejected the argument, inasmuch as the responsibility ascribed to the Security Council in this domain is only ‘primary’ and not exclusive.289 The Judgment distinguished between the purely judicial role of the Court and the political duties entrusted to the Council.290 In the Court’s words, ‘[b]oth organs can therefore perform their separate but complementary functions with respect to the same events’.291 Judge Schwebel upheld the same line of approach in his Dissenting Opinion of 1986:

while the Security Council is invested by the Charter with the authority to determine the existence of an act of aggression, it does not act as a court in making such a determination. It may arrive at a determination of aggression – or, as more often is the case, fail to arrive at a determination of aggression – for political rather than legal reasons. However compelling the facts which could give rise to a determination of aggression, the Security Council acts within its rights when it decides that to make such a determination will set back the cause of peace rather than advance it. In short, the Security Council is a political organ which acts for

political reasons. It may take legal considerations into account but, unlike a court, it is not bound to apply them.292

288Case Concerning Military and Paramilitary Activities in and against Nicaragua

(Jurisdiction), [1984] ICJ Rep. 392, 431–3.

289Ibid., 434. 290 Ibid., 435. 291 Ibid.

292Case Concerning Military and Paramilitary Activities in and against Nicaragua (Merits), [1986] ICJ Rep. 14, 290.

Collective security	319
This is a corre ct analysis	of the powers o f the Securi ty Coun

the Charter,het Council is put in charge of the all-important missio

maintaining

restoring

inte

rnational peace and security. The Cou

must concentrate on t hat t

ask,tionfuncin g

poli ti

cal

ather

judicial organ. As st ress ed

Sir

erald Fit

zmaurice,

the

Cou

pposed

ett

uch,

preven

n tern

ati

ona

alt

hough

irect

may

Co un

n ot the most s

ita

ll.

The

which

id e

armed

con

f li

‘gui

obli gati

ons’;

such

determin

ation

may

impede

fro

the

measu re s conducive to

the

safeguarding

nt ernati

onal

294

ntra

st,

the

Court,

not

ing

hampered

se cu ri ty.By

constraints

motivations

expediency,

fully

qualified

yardsticks

ear

pomedn

theconflictar

dispassionate

fashion.295

Sinc

the

Securit

Coun

cil and the Internat ional Court

both autho rized to prono unce on the same

eve nts – one body

politic al,

and

the

other

legal, cri

teria

–

the

que stion that come s

how to obvi ate the theo retical cont ingency

two

contradic

tory,

binding

decisions

being

reached by

the

two organ

simult

aneously

assur

edly,

such

head-o

collis

ion

not

296

likel y to happen in

The Court is not often seized with disput es

affecti ng

the

mainte

restora

tion

int

ernationa

peace and security. For juri

sdiction

othe

reason

able

assum e

that

the

judici

such

matte

‘remain

periphe

ral’

297

yre.event,

on ce

theInfutuan

the

Coun

cil

issue

verdi

abou

the

occ

urrenc

act

it is har d to believ

tha

the

Court

would

incline

Nevert heless, as a matter of

spe

culative

inqu

iry,

the

scenario

discord between the Coun cil

an d the Court cannot be ligh tly d

What happen s if the Counci

deter

mines

tha t an act of aggr

been com mitted by Arcadia

against

Utopia , wherea s

the

Court

293

G. G. Fitzmaurice, ‘The Foundations of the Authority of International

Law

Problem

of Enforcement’, Mod19 .LR 1,

(1956).

294O. Schachter, ‘The Quasi-Judicial Role of the Security Council and the General Assembly’, 58 AJIL 960, id. (1964).

295See B. S. Chimni, ‘The International Court and the Maintenance of Peace and Security: The Nicaragua Decision and the United States Response’, 35 ICLQ 960, 967–9 (1986).

296The present author was taken to task for this statement, reflecting ‘an optimism readily dispelled by the events leading to the Lockerbie cases in 1992’. S. A. M. Pasha, ‘Book Review’ [of the second edition of this book], 37 IJIL 790, 794 (1997). But as will be shown infra, ii, in the event, the author’s guarded optimism was only confirmed International Court of Justice.

297O. Schachter, ‘Self-Defense and the Rule of Law’, 83 AJIL 259, 276–7 (1989).

320 Exceptions to prohibition of use of force

Arca

dia

t to blame and that

actually

the

victim

initiat ed by Utopi a? NicaraguIn the acase,

the Court obse rved that, in t

cont

ext

those

pro

ceeding

was

‘ask

say

that

298

the

Court

the

future,

Coun cil was wron g’But. wh at woul

requ ested to say precis ely that?

One

way

res

olve

the

diffi

culty

apportion

different

tim

for

the

performan

the

dissim

ilar

function

the

Securit

and

the

Court

Thus,

on-going

armed

confl

ict

(as

arg

Uni

ted

299

it would be prefera ble

for

the Coun

cil

alo

States),

its

mission

restorin g

int

ernational

peace

and

curity.

The

may

ordain

cease-fire

insist

withd

rawal

force

and

eve

enf

orcemen

acti

on,

without tackling

the

legalit

the

issue

s. The measures taken by the

Counci l

need

not

diminis

powe r of the Court to invest igate

the

legalit

y of the use of forc

othe

legal

right

an d

wrongs

–

after

the

hostili

ties

are

ove

mat

h of the fighting ,

the

Court

wi ll

libert y to ta ke a

situa

tion from the pers pectiv e of

juridica l stand ards. It may th

conc

lusions that are at varian ce

with those previ ously reached

Coun cil.

For

instanc

the

Court

may

rule

that

disput

zon

from

ich

Arc

adia

was

ord

ered

the

Coun

cil

actu

ally belongs to it. In that case

Arcadian

troops

would

reoc

cupy

the

area.

An alyticall

given

differe

time-fra

mes

dive

rgent

cri

decis ion-maki ng,

the

need

real

clash

bet

ween

decr

Secu

rity

Coun

cil

and

differe

ruli

the

Court

res

ponsibil ity

in an on-go ing confl

ict

restore

int

ernatio

and

secu

rity.

The

Court

’s

role

ttle

disput

accor

int ernational law. The restora tion of peace

urgent

than

tleme nt of the disput e, and it shoul d

given

tempo

ral

priori

measu res taken by the

Counci

are

not

nece

ssarily

the

last

subj

ect.

The

final

judg

men

left

the

Court

(prov

ided,

it has jurisdiction).

There is a remote possibility that the parties to an international

armed conflict, acting together, may elect to submit their dispute to

the Court even in the midst of hostilities. Should that happen, there is

no reason for the Court to decline jurisdiction.300 Under these circum-

stances, the Security Council ought to allow the Court to exercise its

judicial

powers

without

undue

interference,

although

cease-fire

298 Nicaragua case, supra note 288, at 436.299 Ibid.

300See R. B. Bilder, ‘Judicial Procedures Relating to the Use of Force’, 31 VJIL 249, 265 (1990–1).

Collective security

321

ord er w ill not

place. Howe ver, i f the

parties

not at o ne i n

their

des

ire

to b rin g t heir d ispu te before t

long as hosti lities are not

termi

nated,

s ubmit ted

that

ought

exercise

dic ial

estraint

. The

reason

n ot

t hat

matrix

flu

const

ntly

the

Court

shou

chanbu gint tg’,hat

do whatever

can

avoid

actual

potential

dissension

Council. While the armed conflictcontinues, and in the absence of

agreement b etween the p

arties eas Ctourt’sth

jurisdiction,

Court

ought

defer

the

ncil

lettin

dis charge

the

Charter.

appl

ication

nsti

tuting

contenti

ous

roce

led

ith

peCourtnde nte

bel,

ulo nless

all

the

parties

explicitly

the

Cou

tertain

the

disput

wit

hout

elay,

tter

to r egard

the

case

nripe

–

yet – for judi cial d

ii.

Can

the

Cou rt

validate

binding

decisio

adopted

Council?

Does

the

nternational

Court

o f Justice have the

ju dicial

review

over bi nding resolutions, adopted b y

th e

Securit

und

Chap ter

VII

questi

cam

the

Lock

erbiecase.302 Her e

b omb

was

p laced

aboar d

Pan

Am erica

which

expl od

mid -air

over

Lockerb

(Scotland)

with

vast

Two

Lib

icials

were

su spected

resp

on sibility

for

and

ibya

was

equested

rren

der

ial

eith er

States

(the

State

nationality

the airline)

the

United

Kingdo

State in whose airspace the explosion occurred). Libya refused to do

Council

op ted thr

resolutions

o n

the

sub

ject.

irs

731 o f January 1992),

mer

ely

ged

ibya

coop

erate

fully

ing

responsibility for

the terrorist

act

by responding

the

requests

sur render

the

303

the

second

(Resolution 748

sus

pectsI.n

1992),

the

Council

– acting under Chapter VI I – d ecid ed that

comply

with

those

requests, determined that failure by

Libya

strate b y concr ete

action

its

enunciation

ter

rorism

constitutes

‘

inter

nation

peace

an d secur ity’, and imp osed on L ibya sund

(mainly, arms and air embargo).304 In the third (Resolution 883 of

November 1993), the Council – again acting under Chapter VII and

reiterating the existence of a threat to the peace – extended the range of the sanctions (primarily, by the freezing of Libyan assets abroad).305

301K. Highet, ‘Evidence, the Court, and the Nicaragua Case’, 81 AJIL 1, 43 (1987).

302For the facts, see F. Beveridge, ‘The Lockerbie Affair’, 41 ICLQ 907–20 (1992).

303Security Council Resolution 731, 47 RDSC 51, 52 (1992).

304	Security Council Resolution 748,supra note 25, at 52–3.
305	Security Council Resolution 883, 48 RDSC 113, 114 (1993).

322 Exceptions to prohibition of use of force

March

1992, after

Resoluti

731

but

prior to

Resolu

tion

of cours e, Resolu tion

883) , Libya institut ed

legal

proceed

ings

Uni ted Kingd om and the United Stat es before

the

nternat

iona

Justi

ce.

The

Libyan clai m

was

that

the

1971

ntreal Conve

nti

Sup

pression

Unla

wful

Acts

agai

nst

the

Safe

ty of

306

Civil

shoul

app

licable

the

case.

The

and

the

maint

the case was inadmi ssible

bei

governe

Securit

Counc

tions

ich

supe

rsede

any

obligat

ions

under

the

Montr eal

Conve

ligh

Articles supra25

,(B, (a))

and 103

the

307

103

CharterArticle.

sets

forth

that obligat

ions

unde

the

Charter

prevail

over

any

assum

Member States under othe r

intern

ational

308

agr(seeeemen t

sup ra,

Chapt

er 9, aC))., (

In an early pha se of

the

pro

ceeding

1992,

the

Court

confi

rmed the

bind ing

effect

Resolu

tion

748

(give

the

pro

Art icles

and

103)vis-a`

-visany

rights

cl aimed

Libya

under

309

Court uphe ld a L

Mo ntreal Conve ntion.How ever, in 1998, the

submi

ssion

that

adm

issibility

must

deter

mined

the

critical

the

filing

the

Libyan

Applic

ation:

Security Council resolutions 748 (1992) and 883 (1993) cannot be taken

consideration in this regard, since they were adopted

at a later date. As to

Council resolution 731 (1992), adopted before

the

filing

the

Applicati

could not form a legal impediment

the

admissibility

the

latter because

310

mere recommendation without binding effect.

Clearl

y, had the Liby an Applica tion

been

filed

subseq uent

748,

this

binding

text

woul d

have

form

legal

impedim

adm issibili

ty.

it is,

the Court’ s ruli ng

was issued

Prelimina

Obje

How

the Court would have pronounc ed itself

on the merits is a

conjec

ture. In the eve nt, the two Libya n sus pects were surrend

Nethe

rlands, which

undert ook

host

Sco

ttish

Court

for

the

the ir

311

.The Secu rity

Council,

in Resolu

tion

1192

(1998),

agre

trial

306Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1971, [1971] UNJY 143.

307Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Preliminary Objections) (Libya v. the UK ), [1998] ICJ Rep. 9, 24; (Libya v. US), ibid., 115, 129–30.

308 Charter of the United Nations,supra note 9, at 361.

309Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Request for the Indication of Provisional

Measures) (Libya v. the UK ), [1992] ICJ Rep. 3, 15; (Libya v. US ), ibid., 114, 127. 310 Lockerbie case, supra note 307, at 26, 130–1.

311The Netherlands–United Kingdom, Agreement Concerning a Scottish Trial in the Netherlands, 1998, 38 ILM 926, 927 (1999) (Articles 2–3(1)).

Collective security

323

suspen

the

sancti

ons

agai nst

Liby

the

accuse d

arri

Netherl

312

Ultima

tely,

one

the

acc

used

was

convic

ands.

2001

313

The convict ion was upheld on

app

eal

314

murder.

inIn2002.

2003,

Libya

consente

to p ay app ropriate compe nsatio n to

the

the victims (a payme nt of $2.7 b illion was

made) , and its c

Internat

ional

Court

Justice

agai

nst

the

and

the

draw

315

For

its

par

the

curity

Coun cil

terminat

the

san

Resolu

tion

1506

316

(2003

The Court in Lockerbthe

iecase shied away from a

dire

confron

tat

with the Securit y Coun cil, althoug

evident

that

the

Cou

exclu

the

feasibil

ity

simult

aneous

proceed

ings

efore

the

317

But

the

case

triggered

the

que stion

whet her

the

Cou

and itself.

the

powe

ove

rride

binding

decis

ions

the

Council

(

Resolu

tion

748).

his

Diss

enting Opin

ion,

1998,

Schweb

denied

that

the

Court

general ly

‘empow

ered

judicia l

review of

the decisions

the

Securit

Coun

cil’,

and

that the Court ‘is particula rly without power

ove

rrule

decisions

the

Securit

Counci

l made by it

purs

uance

under Article s 39, 41

318

and 42 of the Charter’.

The

presen

writer

belie ves

that Pre

sident

Schweb

went

A m or e modulated assessm ent o

inter-relationsh

b etween

and the Coun cil was

mad e

dge

eerama ntry,

his

Opin

ion

1992:

Thus, any matter which is

the subject of a valid Security Council decisio

Chapter

VII

does

not

appear,

prima

facie,

one

with

which the

properly

deal.

The word that shoul d

underl

ined

this

proposition

the

‘valid’ .

The

Coun cil

vest

Chapter

VII

with

ext

ensiv

coupled

with

the

wide

possible

discre

tion,

rule

312 Security

Council

Resolution

1192,RDSC53 74, id. (1998).

313 Scottish High Court of Justiciary at Camp

Zeist

(the

NetheHerlands):Majesty’s

Advocate

Megrahiet

al.

(2001), ILM40

582,

612–13 (2001).

314 Verdict in Libya Terrorist Case: Pan Am 103,Digest[2002]of United States Practice in

International

Law111, id.

315 See S. D.

Murphy,

‘Libyan

Payment

Families

Pan

Flight

103

Victi

AJIL 987, 990–1 (2003). The Court placed on record the discontinuance of proceedings in Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Order) (Libya v. UK ),

[2003] ICJ Rep. 149, 150; (Libya v. US), ibid., 152, 153.

316Security Council Resolution 1506, 43 ILM 251, id. (2004).

317See B. Martenczuk, ‘The Security Council, the International Court and Judicial Review:

What Lessons from Lockerbie?’, 10 EJIL 517, 532 (1999). 318 Lockerbie case, supra note 307, at 73, 164–5.

319 Lockerbie case, supra note 309, at 66, 176.

324 Exceptions to prohibition of use of force

cann

gains

ay the Coun cil. To take but on e prime exampl e,

nation

the

Council

that

particul

situa

tion

cons

titutes

thr

peac e is non-re

viewabl

the

facts

320

the(see Courtsupra, A, (d)).

Nev

ertheless,

the

Coun

cil’s

decisio ns

–

bind

ing

–

valid.

implie

Judge

Weeram

antry’s

word

thereprimaustfabecie a

pres

umption

that the Secu rity Coun cil’s

resolutions

are

valid.

But

not be forgotten that the Council’s powers and compete nce

flow

Chart

er.

Cons

equen tly,

any

resolut

ion

opted

b yultrahe

Cou

vires the

Charter

itself

(owing

exce

ptional

rcumstan

ces

rebu

pres

umption),

the Court may have no choice but

321

declare

Even the pivota l te xt establishi

ng the Council’s powe r to

ad o

decis ions – Artic le 25

–

procl

aims that the se decisions are

and

carried

out

mber

States

‘in

acc

ordance

with

the

Chart

er’ sup(

ra, B, (a)).322 For

ins

tance,

should

professed

decision

the

Coun

cil

run afoul of the pro cedural

requirem

ents

laid

dow

Chart

er,

the

result

may

eld

the

Court

null

and

Whe

reas

is true that a bind ing decision of the Securit y C

supers

ede

ordinary

norm

intern ational

law

(by

virtue

bined

thrust

of Art icles 25 and 103

the

Charter)

the

differe

regard

perempt

ory

norms

general

internjusational

coge

ns)

(seesu pra,

Chapt er

4, a))E,.

(It is notew orthy that the reach

Art

icle

103

confi

ned

conflic

betw een

Chart er

oblig

‘obl igations under any other

int

ernational

323

Articment’.le

103

is,

agree

the

refore,

german

conflicjus

coget withnsanchore

customa ry

int

ernational

324

may

that

‘[a]n

Secur

ity

Coun

cil

law. It

in conflic t wi th

normjus cogeof nsmust

necess arily

without

325

effect’.

cite

illustra

tion

offere

byad JudgehocE.

Lau

terpacht

Separate Opinion in the Application of the Genocide Convention case of

320See J. G. Merrills, International Dispute Settlement 251 (3rd ed., 1998).

321D. Bowett, ‘The Impact of Security Council Decisions on Dispute Settlement

Procedures’, 5 EJIL 89, 95–6 (1994). The possibility of a UN organ acting ultra vires was touched upon tangentially in the International Court’s Advisory Opinion on Certain Expenses of the United Nationsupra, note 215, at 167.

322See V. Gowlland-Debbas, ‘Security Council Enforcement Action and Issues of State Responsibility’, 43 ICLQ 55, 90 (1994).

323See R. F. Kennedy, ‘Libya v. United States: The International Court of Justice and the Power of Judicial Review’, 33 VJIL 899, 908 (1992–3).

324See M. N. Shaw, ‘The Security Council and the International Court of Justice: Judicial Drift and Judicial Function’, The International Court of Justice: Its Future Role after Fifty Years 219, 229 (A. S. Muller et al. eds., 1997).

325D. Akande, ‘The International Court of Justice and the Security Council: Is There Room for Judicial Control of Decisions of the Political Organs of the United Nations?’, 46 ICLQ 309, 322 (1997).

Collective security

325

1993,326 should the Council require States to participate in the perpetration of genocide, the obligation may be set aside by the Court. However, due account must be given to the fact that the prohibition of aggression is the paradigmatic illustration of a peremptory norm. When the Council ordains collective security measures to counter aggression (with a view to safeguarding this peremptory norm), and the action entails a violation of another peremptory norm, the legal situation may boil down to a clash between two norms of jus cogens and it may be debatable which one should prevail.327

All these scenarios are more easily imaginable in theory than in practice. Still, the present writer agrees with those who take the position that en principe the Court is competent to declare invalid a purportedly binding decision, adopted by the Security Council, on the ground of being either

ultra vires the Charter or incompatible with peremptory norms of international law ( jus cogens).328

326Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Further Requests for the Indication of Provisional Measures), 1993, [1993] ICJ Rep. 325, 440.

327See K. Svanberg-Torpman, ‘The Security Council as a Law Enforcer and Legislator’,

Peace and Security: Current Challenges in International Law 85, 94–5 (D. Amne´us and K. Svanberg-Torpman eds., 2004).

328See K. Doehring, ‘Unlawful Resolutions of the Security Council and Their Legal Consequences’, 1 MPYUNL 91, 108 (1997).

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