power and purpose of international law-collective_armed_measures

8/13/2019 Power and Purpose of International Law-Collective_Armed_Measures

1/40

Page 1 of 40 Collective Armed Measures

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2013.

All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a

monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: Kings

College London; date: 30 November 2013

The Power and Purpose of International Law: Insights from theTheory and Practice of EnforcementMary Ellen O'Connell

Print publication date: 2008Print ISBN-13: 9780195368949Published to Oxford Scholarship Online: Jan-09DOI: 10.1093/acprof:oso/9780195368949.001.0001

Collective Armed Measures

Mary Ellen O'Connell

DOI: 10.1093/acprof:oso/9780195368949.003.0006

Abstract and Keywords

States acting under the authority of the UN Security Council have greaterscope to use armed force to enforce international law than states actingwithout authorization. The Council has the power to order uses of force incases of threats to the peace, as well as actual breaches of the peace. The2005 World Summit Outcome recognizes that threats to the peace mayinclude situations of serious human rights violations. Uses of force authorized

by the Council are also regulated under the general principles of necessityand proportionality. Australia's use of force in East Timor in 2000 compliedwith these rules; NATO's use of force in 1999 in the Kosovo Crisis did not.

Keywords: Security Council, necessity, proportionality, humanitarian intervention, threats

On September 12, 2002, United States (US) President George W. Bushdelivered a major address at the United Nations (UN). He said, in part,

The United Nations was born in the hope that survived a worldwar, the hope of a world moving toward justiceescapingold patterns of conflict and fear. The founding members

resolved that the peace of the world must never again bedestroyed by the will and wickedness of any man. We createdthe United Nations Security Council, so that, unlike the Leagueof Nations, our deliberations would be more than talk, ourresolutions would be more than wishes. After generations ofdeceitful dictators and broken treaties and squandered lives,
http://www.oxfordscholarship.com/page/privacy-policy


2/40


3/40






bombardment of Iraq began, followed by a ground invasion in which British,American, and Australian troops participated.

Events in the six months leading up to the invasion of Iraq demonstrate the

deeply held understanding in the international community that force shouldonly be used as authorized by law. Nevertheless, that same time periodreflects intense interest by states and nonstate actors alike in using forceto enforce legal rights and important policies. The tension between thesetwo sentiments has marked the entire history of the Security Council. It isunlikely to be resolved any time soon. Still, three years after President Bush'sspeech and two and one-half years after the start of the Iraq invasion, withthe United States and British forces bogged down in Iraq, delegates to theUnited Nations World Summit renewed their commitment to the SecurityCouncil as the sole legal authority with the power to authorize force.5

I. Prelude to the Charter

At the end of Europe's bloody Thirty Years' War in 1648, the warring partiesconcluded several peace agreements that came to be called the Peace(p.196) of Westphalia (the Peace). Among the commitments in the Peacewas an agreement to settle disputes by peaceful means. If, however, afterthree years, the difference could not be resolved, all other parties to thePeace were to come to the aid of the injured party, including, if necessary, bymilitary force.6Arthur Nussbaum calls this the first attempt at internationalorganization for peace.7

The Peace of Westphalia remained in effect in Europe until the FrenchRevolution. Robespeirre and other revolutionary leaders advocated collectivewar against states that might intervene in France.8But then, imbued withthe superiority of their ideas, arguments for defensive war evolved tooffensive war. France began intervening in the name of liberation and self-determination. Of course, the Napoleonic wars had nothing to do with self-determination, but were wars of conquest. Then, [a]fter two decades ofarbitrariness and lawlessness the European nations resumed the traditionsof the law of nations, influenced by changed conditions and on the basis of a

new stabilised political balance of power.9The Final Act of the Congress ofVienna, signed on June 9, 1815, aimed at preserving the peace.10The treatygenerally made territorial dispositions settling boundaries, transferringregions, clarifying rights of passage, and the like. The treaty stated principlesfor the cooperative use of rivers, the resolution of the funds on depositin third states, amnesties, and the conduct of diplomacy. Great Britain,


4/40






Austria, France, and Russia guaranteed the cession of territory by Saxonyto Prussia.11But arbitration was to be used to resolve potential disputesrespecting Luxembourg's boundaries.12A mixed boundary commission ofprofessional members was called for to draw up the boundaries between

Prussia and the Netherlands.13The Vienna treaty had no overall enforcementprovisions, however, unlike the Peace of Westphalia. Rather, Europe saw thebalance of power era of wars in which each of the Great PowersBritain,France, Austria-Hungary, (p.197) Prussia, and Russiaintervened in theinterest of ensuring no one state became more powerful than the others.

The next collective agreement for enforcing the peace was the Covenantof the League of Nations (the Covenant of the League or the Covenant).The principles of the Covenant built on the Hague Conventions of 1899and 1907. However, US President Woodrow Wilson arrived in Paris with

a far more ambitious plan than anything ever proposed in The Hague. Itwas for a world organization that would ensure peace and justice. Basicprovisions for the organization were included in the Treaty of Versaillesthat formally ended the war. The organization itself was formed underthe Covenant of the League, adopted on April 28, 1919.14As discussed inChapter Four, Unilateral Armed Measures, Wilson did not prepare thepolitical ground well for his revolutionary new idea. He had not won overthe prominent Republican statesman Elihu Root. Root did not supportWilson's idea that the collective use of force be made available to enforcethe peaceful settlement of disputes. He did not support the automaticobligation on the United States to supply troops. Root opposed Article 10 ofthe Covenant the commitment to respect and preserve as against externalaggression the territorial integrity and existing political independence of allMembers of the League.15He helped convince the United States Senate towithhold its consent from the Covenant; the United States never joined theLeague.

In the end, the League did not intervene as an organization to protect theterritorial integrity of its members. Japan intervened in Manchuria, Chinain 1931. Italy invaded Ethiopia in 1935 with little response. By the timeGermany invaded Poland in 1939, the League was effectively dead, although

high-ranking political and military leaders of Germany and Japan wereprosecuted after the war, in part, for crimes against the peace, includingviolations of the Treaty of Versailles.16

The drafting of the UN Charter to replace the Covenant of the Leaguebegan well before the end of the Second World War and was, again,


5/40






largely an American effort.17As early as the autumn of 1939, US State(p.198) Department officials were thinking about a new organization for themaintenance of peace.18These officials began with the blueprint of theLeague of Nations. The design for the Security Council, however, was largely

new. By 1942, the idea of the four major allies (Britain, China, the SovietUnion, and the United States) as a world police force became a permanentfeature of the plan. For the next three years, various constituencies debatedthe scope of the veto power that these fourand later Francecouldexercise. The debate was over the extent of the right, not whether thereshould be a vetothat was a given.

In fact, the veto lay at the heart of the Security Council scheme. The FourPolicemen would have greater responsibility, but also greater rights:Roosevelt adhered unswervingly to one central realpolitik tenet derived

from his disillusion with the League's enforcement operations, that the fourmajor powers should act as policemen and provide the security for anyworld organization.19Roosevelt was also committed to ensuring the UnitedStates would join the new organization. The US history with the Leagueof Nations would not repeat itself. He organized a national campaign topromote American membership in the UN. One particular hurdle he had toovercome was concern about the great-power veto right in the planned-forSecurity Council:

On April 15, the National Catholic Welfare Conferenceexpressed its fear that, in permitting the veto power, the planfor the world body could allow the Big Powers to use theirmilitary muscle against smaller nations without fear of reprisal.On April 23, a group of eminent Protestant ministers issued adeclaration chiding the organizers for setting up an inequitablesystem. It called the U.N. proposals a mere camouflage forthe continuation of imperialistic policies and the exercise ofarbitrary power by the Big Three for the domination of othernations. Even the editors of Timefelt the charter should beliberalized, giving more authority to the General Assembly.20

(p.199) When a reporter who asked Roosevelt whether he'd achieved a

victory for the nation, the president replied, I should say it was a commonagreement. If anybody has a better idea, we would be glad to considerit.21

One idea that was seriously considered at the San Francisco Conference wasto include Brazil as a permanent member of the new Security Council, also


6/40


7/40






41 and 42) to maintain or restore international peace and security if there isa threat to the peace, breach of the peace, or act of aggression. The SecurityCouncil's authority to use force is broader than that of individual states. Ithas the right to respond to threats to as well as to actual breaches of peace

and aggression.26

Breach of the peace, includes hostilities plainly engaged in betweenarmed units of two States,27but today it is understood that the SecurityCouncil may respond to a broader range of violence, including humanrights violations.28As for threats to the peace, this concept is not so easilydefined. The Security Council plainly has wide discretion to determine whata threat to the peace is, but the UN Charter indicates there are limits to thatdiscretion, for example in Article 2(7):

Nothing contained in the present Charter shall authorize the

United Nations to intervene in matters which are essentiallywithin the domestic jurisdiction of any state or shall requirethe Members to submit such matters to settlement underthe present Charter; but this principle shall not prejudice theapplication of enforcement measures under Chapter VII.29

(p.201)These provisions reveal that the Security Council was not originallyauthorized to use force to enforce general international law or even themost important rules of international law. The Security Council is authorizedto enforce the peace.30Nevertheless, the meaning of breach of the peacehas likely been broadened to include serious human rights violations. The

2005 World Summit Outcome document includes a provision for the SecurityCouncil to act in cases of serious threats to human rights.31

When acting under Article 39, the Security Council has the authority toorder UN members to take action per Articles 41 and 42.32Article 41 refersto nonmilitary enforcement. Should those prove inadequate, the SecurityCouncil may order member states to use military force. In addition to the useof combat forces, Article 42 contemplates demonstrations and blockadesmeaning the sealing off of territory or forceful inspection of shipping.33Tocarry out these activities, the Security Council was to form agreements with

member states under Article 43(1):All Members of the United Nations, in order to contribute to themaintenance of international peace and security, undertaketo make available to the Security Council, on its call and inaccordance with a special agreement or agreements, armedforces, assistance, and facilities, including rights of passage,


8/40






necessary for the purpose of maintaining international peaceand security.

These agreements were never formed, and to the extent the UN has relied

on armed forces it has been on an ad hocbasis. In many cases, the UN hasprovided a mandate only. The command of the forces has remained withstates or regional organizations. Some of these cases are discussed below.

The UN Charter does make one explicit exception to the focus oninternational peace in the enforcement area. The Security Council has(p.202) explicit authority to enforce decisions of the International Court ofJustice (ICJ).34Article 94(2) of the UN Charter provides:

If any party to a case fails to perform the obligationsincumbent upon it under a judgment rendered by the Court,the other party may have recourse to the Security Council,which may, if it deems necessary, make recommendationsor decide upon measures to be taken to give effect to thejudgment.35

Article 94 does not require the Security Council to take action; the languageis discretionary. This formulation was to avoid issues that had confronted theCouncil of the League of Nations, which was mandated to enforce decisionsof the ICJ's predecessor, the Permanent Court of International Justice.36Thereis a good argument that the Security Council's permanent members haveno authority to veto resolutions designed to enforce ICJ judgments,37but

on the one occasion that states brought requests for enforcement to theSecurity Council (for Nicaragua), the US vetoed them.38In 1954, the UnitedKingdom requested enforcement by the Security Council of interim measuresof protection ordered by the ICJ in the Anglo-Iranian Oil Company Case.39

Before the Security Council reached a decision on whether it could enforceinterim measures, as opposed to judgments, the question became moot.40

It is also not entirely clear what measures the Security Council could take toenforce judgments.41What is clear is that the drafters understood they hadto include (p.203) an explicit authorization for the Security Council to takeenforcement action outside the area of international peace and security.

What is also clear is that whether or not the Security Council acts to enforcean ICJ judgment, such judgments are binding. The binding nature of ICJjudgments and the concomitant obligation to comply are derived from ICJ'snature as a court and the consent given by states to the Statute of the ICJand to ICJ jurisdiction in particular cases and disputes. The practice andattitude of states, as well as specific provisions of the court's Statute make


9/40






it clear beyond doubt that judgments in contentious cases bind the parties.Article 59 of the Statute provides, The decision of the Court has no bindingforce exceptbetween the parties and in respect of that particular case.42

The statement of the United States Supreme Court in a 2008 opinion,

Medelln v. Texas, erroneously finds the obligation on parties to comply withjudgments in the Security Council's authority to enforce ICJ judgments. Theopinion says, The obligation on the part of signatory nations to complywith ICJ judgments derives not from [the treaty providing for ICJ jurisdiction], but rather from Article 94 of the United Nations Charterthe provisionthat specifically addresses the effect of ICJ decisions.43This view is akinto saying US Supreme Court decisions are binding becausethe Court has amarshall service that can potentially help enforce decisions in some cases.The possibility of forceful enforcement signals that the obligation to complyis a legal obligation, but Security Council enforcementlike enforcement by

the Supreme Court's marshallis not the only way to get a decision enforcedand not often the appropriate way.

Enforcement of ICJ decisions has been a negligible part of Security Councilactivity. By contrast, it is involved daily in the business of enforcing peace.The first major use of force authorized by the Security Council came in 1950when North Korean forces invaded South Korea. The authorization could onlyoccur because, at the time of the invasion, the Soviet Union was boycottingthe Security Council. Also in connection with the Korean crisis, the GeneralAssembly attempted to overcome, to some extent, the problem of the vetowhen there was a need for action to (p.204) maintain international peaceand security.44The result was the Uniting for Peace Resolution, in which theGeneral Assembly decided that

if the Security Council, because of lack of unanimity of thepermanent members, fails to exercise its primary responsibilityfor the maintenance of international peace and security in anycase where there appears to be a threat to the peace, breachof the peace, or act of aggression, the General Assemblyshall consider the matter immediately with a view to makingappropriate recommendations to Members for collectivemeasures, including in the case of a breach of the peace or

act of aggression the use of armed force when necessary, tomaintain or restore international peace and security. If notin session at the time, the General Assembly may meet inemergency special session within twenty-four hours of therequest therefor.45


10/40






The Uniting for Peace Resolution, however, does not change the UN Charterscheme. The General Assembly may only recommend military actionwhen states would otherwise have the right to take such action, absenta Security Council resolution. The General Assembly can recommend

collective self-defense when a state is the victim of an armed attack. But forother breaches of or threats to the peace, the General Assembly may notrecommend the use of armed force for enforcement purposes.46

The UN also sent troops during the complicated Congo Crisis in 1960.47

The General Assembly called for the sending of volunteers, which (p.205)the French and the Soviets both called a contravention of the Charter.They refused to pay the expenses associated with the Congo action,which eventually resulted in the establishment of a separate account forpeace-keeping expenses, to be paid by members voluntarily.48UN troops

were supposed to intervene to counter Belgian intervention on the eve ofCongolese independence. The UN, however, ended up fighting alongside thecentral government against the people of the Katanga province who wereattempting to secede. The UN strove to remain neutral but could not and,thus, tipped the balance against those striving for their own state.49

Indeed, the problem of getting Security Council consensus, despite theclear interest and desire of the international community to respond toconflicts, in addition to the challenges of intervening in such conflicts, ledto the development of peacekeeping. The termpeacekeepingdoes notappear in the UN Charter. The Security Council has no express authority

to send peacekeepers. But UN lawyers have long argued that as long aspeacekeeping actions have the consent of all the parties to the particularconflict, act impartially, carry only defensive weapons, and interveneonly following a ceasefire, there could be no real legal challenge to theirdeployment.50Under Chapter VI of the UN Charter, the Security Councilhas authority to recommend to states a variety of measures for peacefulsettlement of disputes, and, under Chapter VII, it can send troops ofthe member states to conflict areas. Putting these provisions together,international lawyers believe the authority can be found. If the peacekeepershave the consent of all parties following a ceasefire, and use limited force,

the UN would be able to avoid interfering in the political struggle behind suchconflicts.

Before the end of the Cold War, seventeen peacekeeping missions wereorganized. These missions aided compliance with ceasefires by literallyimposing blue-helmeted soldiers between warring factions or setting up


11/40






observer posts to report breaches of the ceasefire. Peacekeepers were not,however, peace enforcersthey did not take coercive action to compelcompliance with a ceasefire.51Traditional peacekeeping is not, therefore,categorized as an enforcement measure.

(p.206) With the end of the Cold War, the veto ceased temporarily to bea problem. The Security Council was able to respond more closely to theoriginal plan of the UN Charter when, by unanimous vote, it found that Iraqhad violated Article 2(4) by its invasion of Kuwait. The Security Councildid not authorize its own force, but rather, akin to the action in Korea, itauthorized a coalition of national forces under United States commandto compel Iraq back into compliance with the UN Charter. Following thesuccessful enforcement in the Gulf War, some members of the SecurityCouncil, with support especially from European states, introduced the idea

that restoring international peace could include far more than counteringcross-boundary force.52

It was with the establishment of the Iraqi Exclusion Zone that theinternational community saw the first indication of a new attitude towardthe UN Charter by the Security Council. At the end of February 1991, as thefighting to liberate Kuwait was ending, the Kurds of Northern Iraq began arebellion against the Iraqi government, apparently either to secede from Iraqor at least to establish an autonomous Kurdish region.53This developmentseems to have caught the UN and the coalition off guard. Both resistedinitial calls for intervention on behalf of the Kurds. The United States took

the position that it could not intervene militarily to support the uprisingsbecause intervention would be unlawful interference in Iraq's internal affairs.The French agreed with this legal assessment, yet argued that [t]he law isone thing, but the safeguard of a population is another, quite as precious, towhich humanity cannot be indifferent.54

France could not, however, persuade the other permanent members of theSecurity Council to authorize force to liberate the Kurds. Instead, the Councilordered only humanitarian aid on the Kurds' behalf. In Resolution 688, theSecurity Council found that Iraqi attacks on the (p.207) Kurds constituted

a threat to peace in the region.55In the subsequent operative paragraphsof the resolution, the Security Council called on Iraq to end its repressionof the Kurds and to allow international humanitarian assistance to reachnorthern Iraq. This was as far as the Security Council could go withoutinviting a Chinese veto or failing to get the required two-thirds vote of itsfifteen members. As it was, China and India abstained from supporting the


12/40






resolution, while Cuba, Yemen, and Zimbabwe voted against it. All statedthey believed the resolution interfered in Iraq's internal affairs.56

Providing humanitarian aid is not considered to be interference with

internal affairs and therefore is not unlawful.57Creating the protective zone,however, went well beyond distributing humanitarian aid. There is a questionabout whether such a move was really authorized by the Security Council.The British have argued that Resolution 688, read together with Resolution678 (which authorized all means to bring peace to the region), provided theauthority to create the zone as part of the response to Iraq's violation ofinternational peace.58It appears that Iraq gave consent to the establishmentof the zone in May 1991.59It was then that US-led forces left the area and UNpolice entered.60Subsequent cases more clearly defined the trend begunin Iraq.61

In midsummer 1991, fighting broke out in Yugoslavia between the provinceof Croatia, which had declared its independence, and the Yugoslav federalgovernment. This conflict also raised the question of UN intervention in civilwar. In the early months of the war, the UN played no role. The EuropeanCommunity (EC) wished to mediate the conflict, declaring it a Europeanmatter. But the EC had not succeeded in securing a ceasefire by midSeptember. The Security Council then became involved, beginning withResolution 713, which imposed an arms embargo on the (p.208) entireterritory of the former Yugoslavia.62This embargo had the consent ofBelgrade, and thus avoided a Chinese veto.

In November 1991, Zagreb and Belgrade agreed to the formation of apeacekeeping force, the United Nations Protection Force (UNPROFOR), toact as a buffer under Resolution 743. To this point, no significant departuresfrom traditional peacekeeping practice had been made by the SecurityCouncil. However, Resolution 743 states that UNPROFOR was neededbecause the situation in Yugoslavia continues to constitute a threat tointernational peace and security.63There was no tangible threat to otherindependent states, and it appeared that this language was included with apossible view that UNPROFOR would be more than a bufferthat it would be

used to stop the civil war. The Security Council, oddly, failed to give a clearmandate to that effect, nor did it provide the resources to support such aneffort. Indeed, the later assessment that UNPROFOR was a serious failure islargely attributable to what is viewed as its unclear mandate.64By May 1992,the former Yugoslav republics of Slovenia, Croatia, and Bosnia were admittedto the United Nations. The conflict became international and, as such, fell


13/40






under the traditional interpretation of the UN Charter in connection with theformer Yugoslavia. With the recognition of the three new states, the disputeclearly could no longer be deemed an internal affair of Yugoslavia.

On December 3, 1992, the Security Council authorized a similar missionin Somalia that at least began much as the missions to northern Iraq andYugoslavia had. In Resolution 794, the Security Council authorized allnecessary means to establish as soon as possible a secure environmentfor humanitarian relief operations in Somalia, 65The magnitude of thehuman tragedy in Somalia constitutes a threat to international peaceand security.66As explained above, the authorization of protection tohumanitarian relief is not considered a use of force. In Somalia, however, theSecurity Council again indicated a willingness to reduce the limit of Article2(7) and expand its interpretation of Article 39. Under Resolution 814, the

Security Council ordered troops wearing blue helmetssome (p.209) underUN command and others under US commandto disarm warring partiesand armed bands. Secretary-General Boutros Boutros-Ghali said this wasthe first time the UN had used force for exclusively, humanitarian, internalreasons.67

But the situation was not as clear-cut as that. In Somalia's case, it wasdifficult to accuse the UN of interfering with internal affairs when thegovernment had collapsed and chaos reigned. Even in that situation, the UNhad organized a conference of factional leaders in Addis Ababa to get somesort of consent to the presence of the Blue Helmets.68

It was, therefore, in Haiti that the Security Council first clearly went beyondthe traditional UN Charter interpretation. In 1994, with Resolution 940, theSecurity Council found that the situation in Haiti threatened peace in theregion.69Yet, there was no threat to international peaceas traditionallyunderstood.70A contingent of primarily American troops was authorized touse force to restore democracy. Due to the efforts of former US PresidentJimmy Carter, military force was not needed to oust the military dictatorship.However, the finding of the Security Council that it could authorize militaryintervention to restore democracyin a place where a government

was in effective controlwas likely the zenith of the Security Council'sreinterpretation of the Charter. There was an international concern in thecase, namely, the flight of refugees in small boats from Haiti, but it neveramounted to a threat to international peace. The Security Council authorizedforce to alter the internal affairs of a state.


14/40






Subsequently, however, it failed to act to stop the slaughter in Rwanda in thespring of 1994.71This tragedy posed no legal issues about UN intervention.It was, from the outset, a problem of international peace and security.Following years of civil war, Tutsi rebels took refuge in Uganda and Kenya.

They were on the verge of making a push back into Rwanda when the Hutu-controlled government decided to slaughter (p.210) anyone who might aidthem when they arrived. It was not necessary to even reach the questionof whether outside intervention was lawful to stop the door-to-door killingin Rwanda. Not only was it part of an international conflict, but the UN wasalready in Rwanda policing a nonexistent ceasefire between the Hutus andthe Tutsis. Even if a real ceasefire had existed, the size of the UN forceswas inadequate. Rather than try to truly establish a ceasefire or pull outaltogether, providing some notice to people that they had no UN-enforcedceasefire or protection, the UN stayed, lulling people into a false sense of

security. The Tutsi rebels succeeded despiteor perhaps because ofthefrenzy of killing within the country. Hutus then fled to neighboring Zaire, andthe Rwandan conflict spread to a third country.72

In the aftermath of Rwanda, scholars concluded that the UN may lawfullyintervene to stop genocidal killing even if that killing occurs only withinone state. Despite this new conclusion about the law, the Security Councilsubsequently avoided intervening in largely internal conflicts unless theelements of classic peacekeeping were in place, in particular consent.Secretary-General Boutros-Ghali in his Supplement to An Agenda for Peace73advocated a return to traditional peacekeeping. These developments canbe explained by the fact that internal conflict is far more complicated, inalmost all cases, than transboundary aggression.74Determining whose causethe UN should supportwhose cause is worthy enough for troops to die forhas been at the heart of the problem. Did Security Council activism of the1990s, nevertheless, have an impact on the UN Charter? Although the 2005World Summit Outcome document makes clear that the Security Councilmay authorize the use of force in serious human rights crises, the experienceof the 1990s appears to have led to a more cautious attitude about force.Generally, wide consent has been sought post-2005, as in Congo, Sudan,East Timor, and Afghanistan.

(p.211)The 2005 World Summit Outcome was the final product of a two-yearreview of the United Nations, including a complete review of the SecurityCouncil begun in 2003 by a panel of experts convened by the SecretaryGeneral.75The panel's final report largely supported the substantive rulesof the UN Charter on the use of force. It called for no changes to the text or


15/40






reinterpretation of Article 51. It endorsed the text and current interpretationsof Chapters VII and VIII.76The panel also called for expanding the size ofthe Security Council, which led to months of lively discussion and debatewith many proposals for new permanent members, elimination of the veto,

and the like. Finally, no structural changes could be agreed, and at the 2005World Summit, the UN Charter provisions on the Security Council as agreedin 1945 were reconfirmed.

The discussion so far has concerned what the UN Charter says about theSecurity Council. The UN Charter is silent about whether the Security Councilmust obey general international law beyond the rules expressly included inthe Charter, such as international humanitarian law principles on the use ofarmed force. Some scholars continue to contend that the Security Councilcannot be held to any standard in how it uses measures to maintain or

restore peace and security. During the long years of sanctions against Iraq,however, a new argument grew up that the Security Council is limited bygeneral international law. In the case of armed force, the Security Council iscertainly restricted by the customary principles of international humanitarianlaw: distinction, necessity, and proportionality.77

Michael Reisman argued in 1996 that the Security Council must respecthumanitarian restraint in the application of sanctions in Haiti. He pointedout that the wealthy elite and the military command were waxing richoff the contraband industry the economic sanctions spawned. The restof the population, which had been deprived of its popularly elected

government and whom we were supposed to be helping, was, without(p.212) exaggeration, starving to death.78It was, however, the impact ofUN sanctions on Iraq that shifted the debate fully toward standards. Johnand Karl Mueller, in their article, Sanctions of Mass Destruction, rivetedattention to the human tragedy accompanying Iraqi sanctions, sanctionswhich were supposed to be an attractive alternative to the use of armedforce: No one knows with any precision how many Iraqi civilians have diedas a result [of the sanctions], but various agencies of the United Nations have estimated that they have contributed to hundreds of thousands ofdeaths.79

Rather than abandoning sanctions in light of these accusations, theSecurity Council sought to make them smarter, more targeted, with moreexceptions for humanitarian needs.80The Secretary-General must reporton the humanitarian impact of sanctions now. He reported in March 2001that the sanctions on Afghanistan had by then had no adverse humanitarian


16/40






impact. The popular pressure against sanctions receded. The internationalcommunity apparently supported Security Council measures of the type usedagainst Afghanistan as well as those imposed on the diamond trade in Liberiaand the widespread measures adopted in the aftermath of 9/11.81This shift

is meeting a standard of proportionality in the application of sanctions.

Is the Security Council bound to meet a standard of proportionality or anyother standard in how it imposes sanctions or uses force? Some internationallawyers maintain that the Security Council is not legally bound by anyinternational law standards in the imposition of sanctions. This positionis founded on the view that nothing in the UN Charter explicitly binds theSecurity Council to meet any general requirements of international lawand that in the maintenance of international peace and (p.213) security,the Security Council is particularly free to act. Yet, this position would

appear to contradict Article 24(2) of the UN Charter which provides that[i]n discharging [its] duties the Security Council shall act in accordancewith the Purposes and Principles of the United Nations. The specific powersgranted to the Security Council for the discharge of these duties are laiddown in Chapters VI, VII, VIII, and XII. Jost Delbrck, relying on Hans Kelsen,interprets Article 24(2) as a requirement that the Security Council conformwith the UN Charter, not general international law.82Other supporters of theno limits position cite a statement of the Secretary General, repeated inthe ICJ advisory opinion on Namibia:[T]he Members of the United Nationshave conferred upon the Security Council powers commensurate with itsresponsibility for the maintenance of peace and security. The only limitationsare the fundamental principles and purposes found in Chapter I of theCharter.83Chapter I, Article 1(1) does refer to international law, statingthat a purpose of the UN is to bring about by peaceful means, and inconformity with the principles of justice and international law, adjustment orsettlement of international disputes.84Rdiger Wolfrum contends that thereference to justice and international law is only a reference to the basis ofany peaceful settlement, not how the Security Council conducts business. Healso relates that a proposal made in San Francisco to link the maintenanceof international peace and security to international law was rejected becauseit might unduly hinder the work of the Security Council if it had to determine

international legality before responding to a breach of the peace.85

Members of the Security Council, however, never embraced the viewthat general international law did not apply to their conduct. The GeneralAssembly also rejected the ICJ's view that the Council need not observeinternational law.86Judge ad hocSir Elihu Lauterpact in the Bosniacase


17/40






said: one only has to state the opposite proposition thus that a SecurityCouncil Resolution may even require participation in (p.214) genocidefor its unacceptability to be apparent.87Judge Christopher Weeramantryexpressed a similar view in the Lockerbiecase: The history of the United

Nations Charter thus corroborates the view that a clear limitation on theplenitude of the Security Council's powers is that those powers must beexercised in accordance with the well-established principles of internationallaw.88In the Reparationscase, too, the Court emphasized that the UN hasboth rights and responsibilities beyond the specific provisions of its Charter.It said rights and responsibilities would evolve with time influenced by theUN's purposes and functions as specified or implied in its constituent treatydeveloped in practice.89This assessment leads Vera Gowlland-Debbas toconclude: The application of these principles today could serve not toexpand, but to constrain, the use of these powers in certain situations. This is

particularly relevant with respect to the powers of the Council under chapterVII.90

In 1999, the Secretary General accepted that humanitarian law obligationsapply to UN forces.91No provision of the UN Charter requires the SecurityCouncil to comply with humanitarian law standards when armed force is usedunder UN auspices. Even before the explicit acknowledgement, however,Dietrich Schindler never doubted that customary humanitarian law applied tothe UN.92Judith Gardam, too, argues that the Security Council must respectthe customary principles of international humanitarian law, such as necessityand proportionality, both in the decision to authorize force and in the wayforce is used when authorized.93The inclusion in Article 24 of the SecurityCouncil's need to observe international (p.215) law, mentioned in ChapterI of the Charter, could only be interpreted as mandating Security Councilcommitment to humanitarian law.94

In authorizing the use of force, the Security Council is bound by the UNCharter and rules of customary international law. In particular, it is boundby the principles of necessity and proportionality. Necessitymeans thatthe Security Council may only authorize force if it is probable that theuse of military force can accomplish a reasonable military objective.95

Proportionalityprohibits that which may be expected to cause incidentalloss of civilian life, injury to civilians, damage to civilian objects, or acombination thereof, which would be excessive in relation to concrete anddirect military advantage anticipated.96


18/40






These general principles condition the legality of a resort to force. In theNicaraguacase, decided in 1986, the ICJ said, Even if the Untied Statesactivities in question had been carried on in strict compliance with thecanons of necessity and proportionality, they would not thereby become

lawful. If however they were not, this may constitute an additional groundof wrongfulness.97Similarly, in 2003, the ICJ stated the following regardingnecessity and proportionality: whether the response to the [armed] attackis lawful depends on observance of the criteria of the necessity and theproportionality of the measures taken in self-defence.98

Whenever there is a decision to resort to force, the decision must beconsistent with the principles of necessity and proportionality. Lawful armedforce, today, is for the purpose of law enforcement. It is force to counter aprevious unlawful use of force or threat of unlawful force. (p.216) Lawful

resort to force, today, can be compared to the force of the police counteringthe force of the criminal. The exceptional uses of force that are lawful, today,must arguably be as limited as possible. The limit of proportionality mustapply to the Security Council, just as to states

Roughly speaking, the proportionality principle requires thatthe probable good consequences achieved by war shouldoutweigh the probable harmful consequences caused by it.In short, benefits should outweigh harms. [W]hen we arenot reasonably certain that benefits outweigh harms, theprinciple is not satisfied. For with the aim of constrainingwar, just war theories are (usually) based on a strong moralpresumption against war. To override this moral presumption,we have the burden of proving that the just war principles aresatisfied.99

The application of customary law to the Security Council's use of economicsanctions and other measures short of armed force is discussed further inChapter Seven, Collective Countermeasures. It will be argued there thatjust as with the use of force, the Security Council is bound by general law,certainlyjus cogensnorms and fundamental human rights principles.

B. Other Organizations

The UN Charter did provide for other collective security organizations besidesthe UN itself. The US and Latin American countries had already organizedduring the Second World War for their mutual defense and wished to keeptheir organization after the formation of the UN. For that reason, Chapter


19/40






VIII was formed, which will be discussed below. Before any major debatesrespecting that chapter took place, however, North Atlantic countries and theSoviet bloc founded their mutual defense organizations: the North AtlanticTreaty Organization (NATO)100and the Warsaw Treaty Organization.101

Viewing Chapter VIII as too restrictive, both organizations were based onArticle 51's reference to collective (p.217) self-defense. The original NorthAtlantic Treaty provided that NATO would act in the collective self-defense ofits members and for no other purpose. In Article 5,

[t]he Parties agree that an armed attack against one or moreof them in Europe or North America shall be considered anattack against them all and consequently they agree that,if such an armed attack occurs, each of them, in exercise ofthe right of individual or collective self-defense recognized inArticle 51 of the Charter of the United Nations, will assist the

Party or Parties so attacked by taking forthwith, individually,and in concert with the other Parties, such action as it deemsnecessary, including the use of armed force, to restore andmaintain the security of the North Atlantic area.

Any such armed attack and all measures taken as a resultthereof shall immediately be reported to the Security Council.Such measures shall be terminated when the Security Councilhas taken the measures necessary to restore and maintaininternational peace and security.102

Being formed on the basis of Article 51 and not Chapter VIII was alsobelieved to free both organizations from the requirement of Chapter VIII'sArticle 54 that [t]he Security Council shall at all times be kept fully informedof activities undertaken or in contemplation under regional arrangementsor by regional agencies for the maintenance of international peace andsecurity.103

Neither NATO nor Warsaw ever took action on the basis of collective self-defense. Indeed, few claims of collective self-defense have been madeat all. In the 1980s, the Organization of Eastern Caribbean States (OECS)

recommended that its members (plus the United States) organize a forceto invade Grenada. The OECS was founded to be a general cooperationorganization. Article 8(4) of its constituent instrument provided (p.218) forcollective self-defense in the face of external aggression.104John NortonMoore argued that the use of force by the OECS members on the island ofGrenada was a permissible exercise of collective self-defense.105No Security


20/40






Council authorization was sought,106however, nor was the force used aimedat an aggressor external to the OECS, but rather at one of its own members.The action was condemned as unlawful in the UN General Assembly by avote of 108 to 9, with 27 abstentions. The United States vetoed a UN Security

Council resolution finding the invasion in violation of international law.107

The UN Charter's actual provisions for other collective security organizationsin Chapter VIII was a compromise between two visions of the post SecondWorld War security system. One view, favored by US President FranklinD. Roosevelt, preferred a universal organization for security; the other,favored by British Prime Minister Winston Churchill, a regional one.108

The Chapter VIII compromise permits regional security arrangements butsubjects them to the authority of the Security Council. Latin Americanstates were responsible for the inclusion of Chapter VIII at the San Francisco

Conference. The Latin Americans had already laid the groundwork for theOrganization of American States (OAS)109and the Rio Treaty110beforeSan Francisco and were determined to preserve their efforts. The resultingChapter VIII consists of three Articles, 5254. Article 54, the reportingrequirement, was referenced above. Article 53(1) provides that:(p.219)

The Security Council shall, where appropriate, utilize suchregional arrangements or agencies for enforcement actionunder its authority. But no enforcement action shall be takenunder regional arrangements or by regional agencies withoutthe authorization of the Security Council. 111

The OAS, the Organization for Security and Cooperation in Europe (OSCE),and the Commonwealth of Independent States (CIS) are all acknowledged tobe Chapter VIII organizations.112

The charter of the OAS expressly states that the organization is a regionalagency, within the meaning of the charter.113Nevertheless, in the case ofthe Cuban Missile Crisis, the OAS did not strictly follow the requirementsof Chapter VIII. The US wanted to use a particular means of force, a navalembargo, to prevent the delivery of missiles by the Soviet Union to Cuba, butit did not wish to characterize the embargo, which it called a quarantine,

as an act of self-defense. If it had, it could have been a dangerous precedentin the future. Instead, the US went to its Rio Treaty partners and organizeda collective effort, with OAS authorization. The US did not request SecurityCouncil authorization, knowing the Soviets would veto it; instead, theUS merely informed the Security Council.114As long as a multilateralorganization was involved, the acting US legal adviser argued, the basic


21/40


22/40






Monitoring Group (ECOMOG). Despite the name, there was no ceasefire whenthe force deployed in August 1990. Nevertheless, the Security Council didnot react to ECOWAS until July 1991, when it praised the effort.125It thenapproved the action citing Chapter VIII. ECOWAS's subsequent intervention in

Sierra Leone was also approved under Chapter VIII.126

Given this history, one would expect that for any use of force other thancollective self-defense, the Security Council would have authorized NATOenforcement action under Chapter VIII, not Chapter VII. And, indeed, thefirst two active missions ever undertaken by NATO might well have beenauthorized under Chapter VIIIfrankly, it is difficult to tell. In 1992, theSecurity Council adopted Resolution 781, which declared no-fly zonesover Bosnia-Herzegovina and called upon States to take nationally orthrough regional agencies or arrangements all measures necessary to

provide assistance to the United Nations Protection Force. 127

(p.222)Thereference to regional agencies or arrangements is from Chapter VIII andNATO took part in policing the no-fly zones.128NATO's next operation was tohelp enforce the embargo of Yugoslavia. This was authorized in Resolution787. Particularly noteworthy is paragraph 12, in which the Security Council,

[a]cting under Chapters VII and VIII of the Charter of theUnited Nations, calls upon States, acting nationally or throughregional agencies or arrangements, to use such measurescommensurate with the specific circumstances as may benecessary under the authority of the Security Council to halt allinward and outward maritime shipping. 129

Based on these two resolutions, it might have been possible to conclude thatNATO was acting under Chapter VIII. When the Security Council authorizedNATO participation in the implementation and stabilization forces in Bosnia-Herzegovina, however, the Security Council referred only to Chapter VII.130From then on, it was clear that the Security Council would not treat NATOas a Chapter VIII organization. When NATO organized the ImplementationForce (IFOR) for Bosnia, the Security Council worded its authorization not aspermission to undertake enforcement action per Chapter VIII, but as a call toNATO to participate in a Security Council force. Arguably, any enforcement

action by a regional organization that was the organization's own initiativewould have to cite Chapter VIII. On the other hand, the simple device ofcalling an action a Security Council call for troops would lead to Chapter VIIand obviate the reporting requirement of Article 54.


23/40






Authorizing action under Chapter VII which should more appropriately beauthorized under Chapter VIII is not unlike the Security Council's practiceof authorizing force under Chapter VII without greater specification amongthat chapter's various articles (3951). Article 39 confers on the Security

Council the responsibility to determine the existence (p.223) of any threatto the peace, breach of the peace or act of aggression. The Security Councilthen shall make recommendations or decide what measures shall be takenin accordance with Articles 41 and 42, to maintain or restore internationalpeace and security. Articles 43 to 49 concern the modalities of taking suchmeasures, especially the establishment of a military staff committee andagreements with member states for troops to be made available to the UN.

In November 1990, the Security Council authorized a coalition of willingstates to take enforcement action against Iraq. Resolution 678 called

on these states to use all necessary means to liberate Kuwait fromIraqi aggression.131The resolution states that the Security Council wasacting under Chapter VII of the UN Charter, though it does not state whichprovision. Article 51 of Chapter VII fit the situation and perhaps mademost sense.132Iraq had invaded Kuwait, thus Kuwait could respond inindividual or collective self-defense. The Security Council could take over thedefense of a victim state, like Kuwait, but, presumably, if it did so and sentor authorized troops, it would be acting under Article 42. Yet to act underArticle 42, it was still thought the Security Council might need agreementswith states for providing troops, and the UN would need to be in command,as contemplated in Article 43.133Operation Desert Storm was under UScommand. The Security Council simply avoided the obvious questions byciting only Chapter VII but no specific article. Following the Gulf War, theSecurity Council used the same formulation of calling on states to use allnecessary means in authorizing operations not involving collective self-defense and without Article 43 agreements. These authorizations have notbeen criticized by the international community but generally welcomed.Nor was this practice of vaguely referring to Chapter VII the first innovationby the UN in the area of peace and securitythat was the developmentof peacekeeping.134And, as with (p.224) peacekeeping, the internationalcommunity reflected the consensus that the Security Council should be

active after the long dormancy of the Cold War. One heard little or nocriticism when the Security Council authorized missions by only generallyciting Chapter VII. Similarly, despite the facial applicability of ChapterVIII to the tasks of regional security arrangements beyond collective self-defense, shifting to authorization under Chapter VII has passed without muchnotice.135


24/40






To the extent that the international community has not expressed significantopposition regarding the Security Council's conduct, there is likely no needfor concern.136The Secretary General's review of the UN, including theSecurity Council, and the resulting World Summit Outcome indicates broad

acceptance of current peacekeeping and peace enforcement practice. Today,it would appear that the Security Council can authorize peacekeeping andcoalitions of willing forces, even regional organizations, under Chapter VII,without precise textual authority.

The Security Council's move to Chapter VII authorization eased the wayfor NATO in its evolution to taking on new tasks. NATO can claim to remainan Article 51 organization that can legally answer the call of the SecurityCouncil without becoming a Chapter VIII organization. Similarly, in the 1992Agenda for Peace, which contemplates the use of regional organizations

for the expanded work of the UN in the field of peace and security, theSecretary General wrote, [b]ut no enforcement action shall be taken underregional arrangements or by regional agencies without the authorization ofthe Security Council.137The Secretary General did not specify that ChapterVIII must be the basis of the authorization and apparently under the currentpractice of the Security Council, it could be Chapter VII or VIII. He stressed,however, that for an international organization to use force not in collectiveself-defense, Security Council authorization was required. Finally, if NATO orany other regional security organization receiving authorization to use force,would still have to meet humanitarian law requirements, in particular the useof force would have to be effective for the purpose and proportionate.

(p.225) Some scholars, especially in the United States, have argued for aright by regional or collective security organizations to take offensive militaryaction without Security Council authorization to protect human rights.138

During NATO's use of force in Yugoslavia, Alan Gerson and Anthony ClarkArend, for example, suggested that the right of humanitarian interventionmight extend to international organizations.139As discussed in the previouschapter, however, there is little evidence of a right of unilateral humanitarianintervention; there is equally little evidence of an organization's right tointervene, nor is any new authority provided in the World Summit Outcome

document.140

NATO's unauthorized use of force during the Kosovo crisis did lead to intensediscussions of alternatives to Security Council authorization. The Swedishgovernment commissioned an independent commission to look into NATO'suse of force. The commission, chaired by Richard Goldstone, produced


25/40






a report that most memorably found the use of force against Yugoslaviahad been unlawful but was nevertheless still legitimate.141Soon after,the Canadian government established the International Commission onIntervention and State Sovereignty (ICISS) to study the existence of a

responsibility to protect. The ICISS Report led to the idea known today asR2P.

For the most part, however, the ICISS Report reinforces existing internationallaw, especially states' human rights obligations, but it does include asignificant departure from the UN Charter in the following passage:

E. If the Security Council rejects a proposal or fails to deal withit in a reasonable time, alternative options are:

I. consideration of the matter by the General Assembly inEmergency Special Session under the Uniting for Peace

procedure; and (p.226)II. action within area of jurisdiction by regional or sub-regional organizations under Chapter VIII of the Charter,subject to their seeking subsequentauthorization from theSecurity Council.142

Had this been the rule in place during Kosovo, it might have provided alegal basis for the use of force. But given that human rights monitors weremitigating violence against Kosovo Albanians, the situation may not havemet the atrocity parameters of the ICISS report.143A great deal of attention

was devoted to the R2P concept after the ICISS report was published. Itencouraged a proposal by Anne-Marie Slaughter and Lee Feinstein to bypassthe Security Council in decisions to use force in respect of arms control andpossibly other issues.

We propose a corollary principle [to R2P] in the field of globalsecurity: a collective duty to prevent nations run by rulerswithout internal checks on their power from acquiring or usingWMD.

Given the Security Council's propensity for paralysis,alternative means of enforcement must be considered. Thesecond most legitimate enforcer is the regional organizationthat is most likely to be affected by the emerging threat.After that, the next best option would be another regionalorganization, such as NATO, with a less direct connection to


26/40






the targeted state but with a sufficiently broad membershipto permit serious deliberation over the exercise of a collectiveduty. It is only after these options are tried in good faiththat unilateral action or coalitions of the willing should be

considered.144

(p.227)The authors do not explain how the authority of the Security Councilor the UN Charter itself can be maintained under their plan. Others, forexample, Michael Glennon, simply proposed new organizations to replacethe Security Council to authorize force. NATO, for example, should be a self-authorizing body.145US Undersecretary of State John Bolton argued thatcoalitions of the willing in the summer of 2003 had the legal right to self-authorize in the US-led global war on terror. NATO, however, split duringthe Iraq invasion and proposals for Security Council bypass faded with the

mounting casualties. The Security Council process appeared to many to havebeen vindicated when it became evident that the advice of Security Councilmembers to give UN weapons inspectors in Iraq more time had been right.

The US-led invasion of Iraq in March 2003 seemed to lead to a new,general antiwar sentiment throughout the world and the interest in war forhumanitarian and purposes seemed to wane with the rising toll of deaths,injury, and destruction. The UN Secretary General's High Level Panel onUnited Nations Reform, reporting in November 2004,146and the SecretaryGeneral's own report of September 2005,147both included referencesto R2P but reaffirmed the prohibition on the use of force without prior

Security Councilauthorization except in the case of an armed attack. Thatrestatement of the UN Charter is reflected even more emphatically in the2005 World Summit Outcome.

Despite pressure since the founding of the United Nations to reform,bypass, or eliminate the Security Council, it remains the one body withlegal authority to authorize the use of force in situations other than self-defense. The Security Council has a powerful mandate to maintain andrestore international peace and security. In recent years the understandingof peace has been expanded to include the right to respond to serious

human rights violations. The Security Council has the authority to call onmember states to carry out that mandate. In any authorization of force,(p.228) the Security Council is bound by the law of the UN Charter as wellas general international law, including the general principles of necessityand proportionality. It must respectjus cogensnorms, other fundamentalhuman rights, and principles of humanitarian law. Other organizations


27/40






such as the AU or NATO have capacities to use force as do ad hoccoalitions.That capacity is not as extensive as the Security Council in the interest oflimiting the use of force. There continues, rightly, to be widespread interestin seeing reform of the Security Council. The most immediately achievable

and perhaps most important reformis to develop greater clarity regardingthe international law applicable to Security Council action. Not only theCharter but general rules of international law limit the right to use force.Other means are available for enforcement and are the topic of the next fourchapters.

Notes:

(1) George W. Bush, Address to the United Nations General Assembly,Sept. 12, 2002, available athttp://www.whitehouse.gov/news/

releases/2002/09/20020912-1.htm; excerpted inMARY ELLEN O'CONNELL,INTERNATIONAL LAW AND THE USE OF FORCE 5155 (2005).

(2) SeeMary Ellen O'Connell, Resolution 1441: Compelling Saddam,Restraining Bush, JURIST, Nov. 21, 2002, available athttp://jurist.law.pitt.edu/forum/forumnew73.php.

(3) For a detailed account of UN weapons inspections in Iraq, including in themonths before the US-led invasion, see, HANS BLIX, DISARMING IRAQ (2004).

(4) Richard Norton-Taylor, Revealed: The Government's Secret Legal

Advice on the Iraq War, GUARDIAN (London), Apr. 28, 2005, at 1. Theattorney general [Lord Goldsmith] warned Mr. Blair that Britain might beable to argue it could go to war on the basis of past UN resolutions, butonly if therewere strong factual grounds that Iraq was still in breach of itsdisarmament obligations. Id. See alsoGlobal Policy Forum, British AttorneyGeneral's Advice to Blair on Legality of Iraq War, (Mar. 7, 2003), athttp://www.globalpolicy.org/security/issues/iraq/document/2003/0307advice.htm.From the full text of the Attorney General's memorandum to Blair: In otherwords, we would need to be able to demonstrate hard evidence of non-compliance and non-cooperation [to justify use of force against Iraq]. Id. at

para. 29; see also, for analysis of resort to war in Iraq and conclusion that itwas unlawful, Sean D. Murphy,Assessing the Legality of Invading Iraq, 92GEO. L.J. 173 (2005); Richard A. Falk, What Future for the UN Charter Systemof War Prevention?, 97 AJIL 590 (2003); Mary Ellen O'Connell,Addendum toArmed Force in Iraq: Issues of Legality, INSIGHTS, Apr. 2003, available athttp://www.asil.org/insights/insigh99a1.htm.
http://jurist.law.pitt.edu/forum/forumnew73.phphttp://jurist.law.pitt.edu/forum/forumnew73.phphttp://www.asil.org/insights/insigh99a1.htmhttp://www.globalpolicy.org/security/issues/iraq/document/2003/0307advice.htmhttp://www.globalpolicy.org/security/issues/iraq/document/2003/0307advice.htmhttp://jurist.law.pitt.edu/forum/forumnew73.phphttp://jurist.law.pitt.edu/forum/forumnew73.phphttp://www.whitehouse.gov/news/releases/2002/09/20020912-1.htmhttp://www.whitehouse.gov/news/releases/2002/09/20020912-1.htmhttp://www.oxfordscholarship.com/page/privacy-policy


28/40






(5) 2005 World Summit Outcome, UN GAOR, 60th Sess., paras. 7980, UNDoc. A/60/L.1(Sept. 15, 2005) [hereinafter World Summit Outcome].

(6) SeeO'CONNELL, supranote 1, at 11617. See alsoch. 1.

(7) Id. at 114 (quoting ARTHUR NUSSBAUM, A CONCISE HISTORY OF THE LAWOF NATIONS 113 (1953)).

(8) WILHELM G. GREWE, THE EPOCHS OF INTERNATIONAL LAW 41618(Michael Byers trans. & rev'd, 2000).

(9) Id. at 41416, 424.

(10) Vienna Congress Treaty, June 9, 1815, reprinted in1 KEY TREATIES FORTHE GREAT POWERS 18141914, at 41 (Michael Hurst ed. 1972); see also

NUSSBAUM, supranote 7, at 186.(11) Vienna Congress Treaty, art. XVII.

(12) Vienna Congress Treaty, art. LXIX.

(13) Vienna Congress Treaty, art. LXVI.

(14) 1 F.P. WALTERS, A HISTORY OF THE LEAGUE OF NATIONS 4, 3839(1952).

(15) Covenant of the League of Nations, art. 10.(16) See, e.g., the trial of Joachim Von Ribbentrop, 10 TRIAL OF THEMAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL,NUREMBERG, 14 NOVEMBER 19451 OCTOBER 1946.

(17) SeeSTEPHEN C. SCHLESINGER, ACT of CREATION: THE FOUNDINGOF THE UNITED NATIONS: A STORY OF SUPERPOWERS, SECRET AGENTS,WARTIME ALLIES AND ENEMIES, AND THEIR QUEST FOR A PEACEFUL WORLD(2003).

(18) Id. at 33.

(19) Id. at 3940.

(20) Id. at 6768.

(21) Id. at 65.
http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780195368949.001.0001/acprof-9780195368949-chapter-2#http://www.oxfordscholarship.com/page/privacy-policy


29/40






(22) Id. at 49.

(23) Richard C. Edis,A Job Well Done: The Founding of the United NationsRevisited, 6 CAMBRIDGE REV. INT'L AFF. 29, 3638 (1992). See also

DOCUMENTS OF THE UNITED NATIONS CONFERENCE ON INTERNATIONALORGANIZATION (1945).

(24) UN Charter art. 39.

(25) UN Charter art. 24(1).

(26) See generally, Jochen Frowein and Nico Krisch, Chapter VII. Actionwith Respect to Threats to the Peace, Breaches of the Peace, and Acts ofAggression, inI THE CHARTER OF THE UNITED NATIONS, A COMMENTARY701 (Bruno Simma et al. eds., 2d ed. 2002).

(27) Id. at 717, 721.

(28) SeeWorld Summit Outcome, at para. 139.


(30) OSCAR SCHACHTER, INTERNATIONAL LAW IN THEORY AND PRACTICE227 (1995).

(31) World Summit Outcome, at para. 139.

(32) The Security Council can also recommend action. Frowein and Krischare clearly right that recommendations should not be classified withenforcement. Jochen Frowein and Nico Krisch,Article 39, in, I THE CHARTEROF THE UNITED NATIONS, supranote 26, at 72728.

(33) Frowein and Krisch,Article 42, in, THE UNITED NATIONS CHARTERCOMMENTARY, supranote 26, at 758. Failure to form standing agreementsfor troops under Article 43 is not seen as an obstacle to the SecurityCouncil's invocation of Article 42. Id. at 633.

(34) For a more detailed discussion, seeMary Ellen O'Connell, The Prospectsfor Enforcing Monetary Judgments of the International Court of Justice: AStudy of Nicaragua's Judgment Against the United States, 30 VA. J. INT'L L.891 (1990).

http://www.oxfordscholarship.com/page/privacy-policyhttp://www.oxfordscholarship.com/page/privacy-policy


30/40






(36) O'Connell, Prospects for Enforcing, supranote 34, at 90607.

(37) Id. at 90809.

(38) Two attempts were made to get the Council's assistance with enforcingthe Nicaragua judgment: S/PV 2704, July 31, 1986, UN Doc. S/18250, pp.545; S/PV 2718, Oct. 28, 1986, UN Doc. 5118428, p. 51. The judgmentwas handed down in June 1986, in Military and Paramilitary Activities Inand Against Nicaragua, (Nicar. v. U.S.) 1986 I.C.J. 14 (June 27) [hereinafterNicaragua].

(39) Anglo-Iranian Oil Co. (U.K. v. Iran), 1951 I.C.J. 100 (Interim ProtectionOrder of July 5).

(40) O'Connell, Prospects for Enforcing, supranote 34, at 909.

(41) Mary Ellen O'Connell, CONTINUING LIMITS ON UN INTERVENTION INCIVIL WAR, 67 Ind. L. J. 903, 90910 (1992)[hereinafter O'Connell, ContinuingLimits on UN Intervention in Civil War].

(42) Statute of the ICJ, art. 59; see alsoarts. 1, 28, 60, and 65. LaGrand Case(F.R.G. v. U.S.), I.C.J. 466, 506, para. 109 (June 27). See alsoCase ConcerningAvena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12, whereit was made clear that provisional measures are binding as well as finaljudgments.

(43) Medelln v. Texas, 128 S.Ct. 1346, 1358 (2008).

(44) When the Soviet Union returned to the Security Council, the US triedto devise an end run around the Security Council using its many alliesin the General Assembly. In November 1950, the Assembly adopted theUniting for Peace resolution, which gave it power to discuss and makerecommendations on matters of peace and security if the Council found itselfdeadlocked. Members were also to hold armed forces ready in the eventthat the Council failed to act. The Uniting for Peace resolution was first usedduring the Suez Crisis when the United Kingdom and France vetoed Security

Council resolutions. Following a General Assembly demand to do so, the UKand France did withdraw their troops. But the Soviet Union did not in 1956,when it was called upon to pull its troops out of Hungary. SeeROBERT R.BOWIE, SUEZ 1956 (INTERNATONAL CRISIS AND THE ROLE OF LAW) (1974).

(45) G.A. Res. 377, para. 1, UN Doc. A/RES/377(U) A (Nov. 3, 1950).


31/40






(46) Recommending other types of action, such as economic sanctions,have occurred. SeeLouis B. Sohn, Global Attitudes on the Role of the UnitedNations in the Maintenance and Restoration of Peace, 26 GA. J. INT'L &COMP. L. 77 (1996).

(47) GEORGES ABI-SAAB, THE UNITED NATIONS OPERATION IN THE CONGO19601964 (INTERNATIONAL CRISIS AND THE ROLE OF LAW) (1978).

(48) Certain Expenses of the United Nations, Advisory Opinion, 1962 I.C.J.151, 156 (July 20).

(49) SeeNIGEL D. WHITE, THE UNITED NATIONS AND THE MAINTENANCE OFINTERNATIONAL PEACE AND SECURITY 5051 (1990).

(50) Carl-August Fleischhauer, Remarks86 ASIL PROC. 586, 58890 (1992).

(51) For a comprehensive discussion of peacekeeping under internationallaw, seeWHITE, supranote 49, at 17276.

(52) The Security Council took measures with regard to Rhodesia in the1960s and South Africa in the 1970s. See e.g., S.C. Res. 418, UN Doc. S/RES/418 (Nov. 4, 1977). Although the real motive for action may not havebeen international peace, the Security Council found such breaches beforeissuing resolutions. Thus, it behaved consistently with a legal requirement torespond only to violations of international peace.

(53) For a detailed account of these events, seeO'Connell, Continuing Limitson UN Intervention in Civil War, supranote 41, at 90409.

(54) THE TIMES (LONDON), 5 April 1991, at 4 (Statement of French ForeignMinister Roland Dumas).

(55) S.C. Res. 688, UN Doc. S/RES/688 (Apr. 5, 1991).

(56) O'Connell, Continuing limits on UN Intervention in Civil War, supranote41, at 90506.

(57) SeeNicaragua, at 13233, para. 242.

(58) O'Connell, Continuing Limits on UN Intervention in Civil War, supranote41, at 90607.

(59) Id. at 909.


32/40






(60) Id.

(61) The Security Council sent peacekeeping troops in the early 1990s toCambodia, but secured the consent of the parties and, thus, Cambodia

cannot be considered a peace enforcement case.(62) S.C. Res. 713, UN Doc. S/RES/713 (Sept. 25, 1991).

(63) S.C. Res. 743, pmbl., UN Doc. S/RES/743 (Feb. 21, 1992).

(64) SeeJames B. Steinberg, International Involvement in the YugoslaviaConflict, inENFORCING RESTRAINT: COLLECTIVE INTERVENTION IN INTERNALCONFLICTS 27 (Lori F. Damrosch ed., 1993).

(65) S.C. Res. 794, para. 10, UN Doc. S/RES/794 (Dec. 3, 1992).

(66) S.C. Res. 794, pmbl.

(67) S.C. Res. 740, paras. 2, 4, UN Doc. S/RES/740 (Jul. 31, 1994).

(68) SeeLucia Mouat, UN to Break New Ground in Plan for Peacekeepers inSomalia, CHRISTIAN SCI. MONITOR, Mar. 16, 1993, at 2; Mark R. Hutchinson,Restoring Hope: U.N. Security Council Resolutions for Somalia and anExpanded Doctrine of Humanitarian Intervention, 34 HARV. INT'L L.J. 624,626 (1993).

(69) S.C. Res. 740, paras. 2, 4, UN Doc. S/RES/740 (Jul. 31, 1994).(70) See, e.g., Michael J. Glennon, Sovereignty and Community after Haiti:Rethinking the Collective Use of Force, 89 AJIL 70, 72 (1995).

(71) For a detailed account, seeReport of the Independent Inquiry intothe Actions of the United Nations during the 1994 Genocide in Rwanda,addressed to the President of the Security Council, UN Doc. S/1999/1257(Dec. 16, 1999), available athttp://www.un.org/news/dh/latest/rwanda.htm.

(72) Seefor a detailed account of

power and purpose of international law-collective_armed_measures

Documents