The Security Council and the Decentralised Military Option: Constitutionality and Function

Netherlands International Law Review

Volumn 44, Issue 3, 1997, Pages 378-413

  White, N D ^a   Ulgen, Ozlem ^a  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84913584038     PISSN: 0165070X     EISSN: 17416191     Source Type: Journal    
DOI: 10.1017/S0165070X00004605     Document Type: Article

References (115)

1. Whether the terms ‘armed aggression’ and ‘armed attack’ are coterminous is largely irrelevant to the discussion here since the invasions of South Korea and Kuwait were both.
2. J. Stone, Legal Controls of International Conflict (1954) pp. 234-237
3. J. Stone, Aggression and World Order (1958) pp. 189-192
4. P. Malanczuk, Akehurst's Modern Introduction to International Law, 7th edn., (1997) p. 392, p. 397
5. E.V. Rostow, ‘Until What? Enforcement Action or Collective Self-Defense?’, 85 AJIL (1991) pp. 506-510
6. O. Schachter, “United Nations Law in the Gulf Conflict”, 85 AJIL (1991), pp. 459-460
7. R. Lavalle, ‘The Law of the United Nations and the Use of Force under the Relevant Security Council Resolutions of 1990 and 1991 to Resolve the Persian Gulf Crisis’, 23 NYIL (1992) p. 3, p. 62.
8. J. Quigley, “The United States and the United Nations in the Persian Gulf War: New Order or Disorder?”, 25 Cornell ILJ (1992) p. 1 at pp. 20-28.
9. See T. Stein, ‘Decentralized International Law Enforcement: The Changing Role of the State as Law Enforcement Agent’, J. Delbriick, ed., Allocation of Law Enforcement Authority in the International System (1995) p. 107.
10. The decentralised military option was also recognised by the General Assembly when it adopted the Uniting for Peace Resolution, GA Res. 377, UN GAOR 5th Sess., Supp. No. 20, p. 10 (3 November 1950). See B. Simma, ed., The Charter of the United Nations: A Commentary (1994) p. 235.
11. F.R.Teson, Humanitarian Intervention: An Inquiry into Law and Morality, 2ndedn. (1997) pp. 228-234. R.B. Lillich, ‘Humanitarian Intervention through the United Nations: Towards the Development of Criteria’, 53 ZaoRV (1993) pp. 563-569.
12. T.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 (1995) p. 46.
13. This is not the same as the contention by Freudenschuss that the actions against North Korea and Iraq were hybrids, A cross between those provisions of Chapter VII dealing with collective selfdefence (Art. 51) and those dealing with collective security (principally Art. 42).
14. See H. Freudenschuss, ‘Between Unilateralism and Collective Security: Authorisations of the Use of Force by the UN Security Council’, 5 EJIL (1994) p. 522. The point here is that the actions were not truly collective in the original Charter sense.
15. Gill, International Journal of Law and the Family n. 7, p. 57.
16. K.P. Sakensa, The United Nations and Collective Security (1974) pp. 4-5.
17. L.A. Mander, Foundation of a Modern World Society (1948) p. 59.
18. I.L. Claude, Power and International Relations (1962) pp. 110-168.
19. C.A. Kupchan, ‘The Case for Collective Security’, in G.W. Downs, ed., Collective Security Beyond the Cold War (1995) pp. 42-44.
20. T.M. Franck, “The Bona Fides of Power: Security Council and Threats to the Peace”, 240 Hague Receuil (1993 III) p. 190.
21. J.N. Singh, Use of Force under International Law (1984) p. 82.
22. P.F. Diehl, International Peacekeeping (1994) p. 7.
23. But see D.W. Bowett, Self- Defence in International Law (1958) p. 209.
24. Art. 5 of the NATO Treaty 1949, 34 UNTS p. 243; Art. 4 of the Warsaw Pact 1955, 219 UNTS p. 3.
25. R.B. Russell and J.M. Muther, A History of the United Nations Charter (1958) p. 96, p. 105.
26. UN SCOR, 2nd Sess., Special Supp. No. 1, 1947.
27. See US Presidential Decision on US Participation in UN Operations, 33ILM (1994) p. 795.
28. United Nations Blue Book Series, The United Nations and Somalia 1992-1996 (1996) p. 33.
29. J.P. Cot and A. Pellet, eds., La Charte des Nations Unies, 2nd edn. (1991) pp. 709-711. Malanczuk, International Journal of Law and the Family n. 2, p. 389.
30. Simma, International Journal of Law and the Family n. 5, p. 633. Gill, International Journal of Law and the Family n. 7, p. 55.
31. Certain Expenses of the United Nations, ICJ Rep. (1962) p. 151, p. 168.
32. SC 3046th meeting UN SCOR 47th Sess. (31 January 1992).
33. But see Quigley, International Journal of Law and the Family n. 3.
34. Gill, International Journal of Law and the Family n. 7, p. 61.
35. Stein, International Journal of Law and the Family n. 4, p. 125. A.C. Arend, ‘The United Nations and the New World Order’, 81 Georgetown LJ (1993) p. 491, pp. 507-511.
36. Russell and Muther, International Journal of Law and the Family n. 20, p. 688.
37. The US argument that the OAS's recommendation of military measures in the Cuban Missile Crisis of 1962 was not subject to UN authorisation is rightly dismissed by M. Akehurst, ‘Enforcement Action by Regional Agencies, with Special Reference to the Organisation of American States’, 42 BYIL (1967) p. 175, p. 202.
38. See also Art. 103 of the UN Charter.
39. Witness the domination of the ECOWAS force in Liberia by Nigeria - see M. Weller, ed., Regional Peace-keeping and International Enforcement: The Liberian Crisis (1994) pp. 84-87, 97-98, 101-102, 373-374. See also the Arab League force in Lebanon since 1976 dominated by Syria - I. Pogany, The Arab League and Peacekeeping in the Lebanon (1987).
40. 35ILM (1996)p. 73. SCRes. 1031, UNSCOR50th Sess. (15December 1995). Resolution 1031 referred only to Chapter VII of the Charter. Previous resolutions authorising NATO action referred to Chapter VII. See for example SC Res. 770, UN SCOR 47th Sess. (13 August 1992). However, SC Res. 816, UN SCOR 48th Sess. (31 March 1993) did refer to Chapter VIII as well.
41. N.M. BlokkerandS. Muller, ‘NATO as the Security Council's Instrument: QuestionMarks from the Perspective of International Law’, 9 Leiden JIL (1996) p. 41
42. UN Docs. S/21492, S/21501 (1990).
43. See for example, Prime Minister Thatcher's statement in the House of Commons, Hansard, H.C., 6th series, vol. 7, p. 737. For the US position see SC 2937th meeting, UN SCOR45th Sess. (18 August 1990).
44. The Independent (London), 9 November 1990, USSR; The Observer (London), 11 November 1990, France and China. See also The Independent (London), 9 November 1990 for statement to this effect by the Secretary-General.
45. SC Res. 665, UN SCOR 45th Sess. Resolutions p. 21 (25 August 1990).
46. SC Res. 678, UN SCOR 45th Sess. Resolutions p. 27 (29 November 1990).
47. SC 2938th meeting, UN SCOR 45th Sess. (25 August 1990). This appears to be incorrect in that the enforcement of an embargo imposed by the Council is only possible by a further resolution of the Council. See Gill, International Journal of Law and the Family n. 7, p. 99.
48. Schachter, International Journal of Law and the Family n. 2, p. 460.
49. See Amerasinghe, International Journal of Law and the Family n. 38, p. 50.
50. SC 477th meeting, UN SCOR 5th Sess. (25 July 1950).
51. Farrar-Hockley, International Journal of Law and the Family n. 38, pp. 83-84.
52. International Journal of Law and the Family, p. 100, p. 102, p. 191.
53. GA Res. 376, UN SCOR 5th Sess. (7 October 1950).
54. Farrar-Hockley, International Journal of Law and the Family n. 38, p. 209.
55. International Journal of Law and the Family, p. 402.
56. D.W. Bowett, United Nations Forces (1964) pp. 45-47.
57. T. Lie, In the Cause of Peace (1954)
58. See Transcript of Radio-Press Conference on the Korean Crisis, in Cordier and Foote, International Journal of Law and the Family n. 12, pp. 321-322.
59. UN Doc. A/1287 (1950). See also his reference to UN ‘collective security action’ at a Press Conference, 16 Feb 1951, Cordier and Foot, International Journal of Law and the Family n. 12, p. 381.
60. Also found in SC Res. 84 (1950) regarding the Korean operation.
61. SC 2963rd meeting, UN SCOR 45th Sess. (29 November 1990).
62. SC 2981st meeting, UN SCOR 46th Sess. (3 April 1991).
63. S.D. Murphy, ‘The Security Council, Legitimacy, and the Concept of Collective Security After the Cold War’, 32 Columbia JTL (1994) p. 275 n. 227. See also D.J. Scheffer, ‘United Nations Peace Operations and Prospects for a Standby Force’, 28 Cornell ILJ (1995) pp. 649-651.
64. For example, the Presidential Decision Directive 25 (PDD-25) signed by President Clinton on 2 May 1994 sets out strict guidelines for US involvement in UN military operations, International Journal of Law and the Family n. 22. See also Scheffer, International Journal of Law and the Family n. 66, pp. 652-655.
65. The UK Ambassador to the UN, John Weston, identified humanitarian intervention as a major role for the UN in the 21st century. The Times (London), 11 April 1997.
66. At the 1992 UN Summit of Council Members a declaration was issued recognising that ‘the absence of war and military conflicts amongst states does not in itself insure international peace and security. The non-military sources of instability in the economic, social, humanitarian, ecological fields have become threats to peace and security. The United Nations membership as a whole needs to give the highest priority to the solution of these matters’. New York Times (New York), 1 February 1992. See SC 3046th meeting, International Journal of Law and the Family n. 27.
67. SC Res. 794, UN SCOR47th Sess. (3 December 1992) (Somalia); SC Res. 816, UN SCOR 48th Sess. (31 March 1993) (Bosnia-Herzegovina); SC Res. 836, UN SCOR48th Sess. (4 June 1993) (Bosnia-Herzegovina); SC Res. 929, UN SCOR49th Sess. (22 June 1994) (Rwanda); SC Res. 940, UN SCOR 49th Sess. (31 July 1994) (Haiti); SC Res. 1031, UN SCOR 50th Sess. (15 December 1995) (Bosnia-Herzegovina); SC Res. 1080, UN SCOR 51st Sess. (15 November 1996) (Zaire); SC Res. 1101, UN SCOR 52nd Sess. (28 March 1997) (Albania).
68. N.D. White, Keeping the Peace: the United Nations and the Maintenance of International Peace and Security, 2nd edn. (1997) p. 48.
69. SC Res. 688, UN SCOR 46th Sess. (5 April 1991).
70. For further discussion on implications of SC Res. 794 see M.R. Hutchinson, ‘Restoring Hope: UN Security Council Resolutions for Somalia and an Expanded Doctrine of Humanitarian Intervention’, 34 Harvard ILJ (1993) pp. 624-640.
71. See comments of Zimbabwe representative, SC 3145th meeting, International Journal of Law and the Family n. 74, p. 7, and the speech be the Austrian representative calling for similar action to be taken in Bosnia-Herzegovina, pp. 31-32.
72. See speech by Indian representative, International Journal of Law and the Family n. 74, p. 51, and the British representative's emphasis on the uniqueness of the Somali case, pp. 34-35.
73. See Zimbabwe representative's speech, International Journal of Law and the Family n. 74, p. 7.
74. SC Res. 713, UN SCOR 46th Sess. (25 September 1991).
75. Emphasis added. O. Schachter, ‘The United Nations and Internal Conflicts’, in J.N. Moore, eds., Law and Civil War in the Modern World (1974) p. 403.
76. For a detailed discussion of American pressure for the adoption of Resolution 678 see B.H. Weston, ‘Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy’
77. AJIL (1991) p. 516.
78. International Journal of Law and the Family n. 71.
79. Member States at the Council meeting for the adoption of SC Res. 816 admitted that the lack of enforcement mechanisms in many of its resolutions concerning the former-Yugoslavia had permitted ‘the intransigent party to act with impunity, unafraid of any consequences of its deeds’ (Djibouti representative). By authorising ‘all necessary measures’ to enforce the no-fly zone over Bosnia-Herzegovina the Council signalled that it was not prepared to have its resolutions flouted, (UK representative), SC 3191st meeting, UN S/PV 48th Sess. (31 March 1993) pp. 12, 16.
80. See the speech by the Venezuelan representative at the Council meeting for the adoption of SC Res. 816 on the enforcement of the no-fly zone over Bosnia-Herzegovina, International Journal of Law and the Family, pp. 8-11.
81. C. Kelly, ‘Responding to disaster during conflict: need for changes in disaster management techniques’, Paper presented at the International Emergency Management and Engineering Society Conference 1994 in W. B. Wood,‘ From Humanitarian Relief to Humanitarian Intervention: Victims, Intervenes and Pillars’, 15(8) Political Geography (1996) p. 679.
82. Letter dated 29 November 1992 from the Secretary-General addressed to the President of the Security Council, UN Doc. S/24868 (1992).
83. Hutchinson, International Journal of Law and the Family n. 75, p. 632.
84. International Journal of Law and the Family, p. 631.
85. P. Rowe, “The United Nations Rules of Engagement and the British Soldier in Bosnia”, 43 ICLQ (1994) p. 947.
86. P. Rowe, “The United Nations Rules of Engagement and the British Soldier in Bosnia”, 43 ICLQ (1994) p. 947.
87. International Journal of Law and the Family, pp. 947-949.
88. The concept of ‘safe areas’ was extended to areas in the Republic of Croatia under SC Res. 958, UN SCOR 49th Sess. (19 November 1994) which authorised the use of air power by NATO to protect such areas.
89. See speech by the Bosnian representative at SC 3228th meeting, UN S/PV 48th Sess. (4 June 1993) p. 5.
90. See speeches by the French and British representatives, International Journal of Law and the Family, pp. 11-14, pp. 56-58, respectively.
91. Venezuela and Pakistan abstained disagreeing with the way in which SC Res 836 proposed to implement ‘safe areas’. Venezuela had been at the forefront in the adoption of SC Res 819 and 824 and agreed with the concept of ‘safe areas’, but felt the concept had lost all credibility since these areas were ‘nothing more than ethnic reservations under the wing of the United Nations’ synonymous with prisons, concentration camps and ghettoes. Instead, it favoured a more determined resolution which would guarantee freedom of movement into and out of the areas with an international military presence. Security against military attacks would only be possible by seizing or neutralising the heavy armaments of the Serbs, International Journal of Law and the Family n. 93, pp. 22-23.
92. International Journal of Law and the Family n. 86.
93. International Journal of Law and the Family n. 93, p. 16.
94. See speech by the Venezuelan representative, International Journal of Law and the Family n. 93, p. 21.
95. Art. 47(3).
96. Although proposals have been put forward to the UN for such an arrangement, see SC 3046th meeting, International Journal of Law and the Family n. 27. Furthermore, the Dutch Government proposed the establishment of a ‘UN Rapid Deployment Brigade’ to be deployed immediately following a Council resolution, and not only used for peace-keeping operations but Chapter VII operations too. The Canadian Government recommended the creation of a standby ‘UN Vanguard Force’. See Scheffer, loc. citn. 66, pp. 657-658.
97. Murphy, International Journal of Law and the Family n. 66, pp. 223-224.
98. See Hutchinson, International Journal of Law and the Family n. 75.
99. Para. 12.
100. Murphy, International Journal of Law and the Family n. 66, pp. 222-235 and 278.
101. At the Council meeting for the adoption of SC Res. 794, the Hungarian representative recognised that international action, especially important offers made by a number of States, had led to the adoption of the Resolution, International Journal of Law and the Family n. 74, p. 47.
102. Murphy, International Journal of Law and the Family n. 66, p. 278 n. 236.
103. SC Res. 1080, UN SCOR 51st Sess. para. 3 (15 November 1996).
104. Murphy, International Journal of Law and the Family n. 66, p. 283.
105. Murphy believes that closer cooperation will enhance the ability of a regional organisation to bring pressure to bear on the potential aggressor, whilst at the same time keeping in the front line the organisation best equipped to resolve the problem, International Journal of Law and the Family n. 66, pp. 283-284.
106. The Times (London), 30 August 1995.
107. See Zimbabwe representative's speech, International Journal of Law and the Family n. 74, p. 7.
108. See, for instance, speech by the Indian representative at the meeting for the adoption of SC Res. 794, favouring a UN commanded and controlled action but welcoming the compromise for political control by the UN and strategic control by the Commanders, International Journal of Law and the Family n. 74, p. 51. The Chinese representative took the view that SC Res. 794 authorised certain countries to take military action ‘which may adversely affect the collective role of the UN’, International Journal of Law and the Family n. 74, p. 17.
109. Although the representative from the Ukraine called for IFOR's right to self-defence to be interpreted restrictively, SC 3607th meeting, UN S/PV 50th Sess. (15 December 1995) p. 29.
110. The Nigerian representative at the Council meeting for the adoption of SC Res. 1031 argued that multinational forces should be placed at the disposal of the UN and operated under the command of the Secretary-General. The UN should not continue ‘to contract out what would normally be a UN responsibility to a group of powerful states’, International Journal of Law and the Family n. 115, p. 15.
111. The Russian representative at the Council meeting stated that ‘Russia will consistently defend the need to avoid unjustified use of force in the course of the operation’, International Journal of Law and the Family n. 115, p. 25.
112. SC 3413th meeting, UN S/PV 49th Sess. (31 July 1994) p. 5. The resolution was adopted with 12 votes in favour and 2 abstentions (Brazil and China).
113. Establ ished to oversee political control of the operation. Consisting of die Pol itical Directors of the troop-contributing countries, the Commander of the operation, and chaired by Italy with France as Vice-Chairman.
114. Letter dated 14 June 1997 from the Secretary-General addressed to the President of the Security Council, UN Doc. S/1997/460 (1997).
115. Murphy, International Journal of Law and the Family n. 66, p. 280.