The Bona Fides of Power Security

of 35 The Bona Fides of Power: Security Council and Threats to the Peace

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Fairness in International Law and InstitutionsThomas M. Franck

Print publication date: 1998Print ISBN-13: 9780198267850Published to Oxford Scholarship Online: Mar-12DOI: 10.1093/acprof:oso/9780198267850.001.0001

The Bona Fides of Power: Security Council and Threats to the Peace

Thomas M. Franck

DOI: 10.1093/acprof:oso/9780198267850.003.0007

Abstract and Keywords

The United Nations Security Council has potentially far-reaching enforcementpowers. These were largely underused in the stasis of the Cold War. Now,however, the Council meets almost continuously in formal or informalsession. To assert the legitimacy of its actions and to pull members towardscompliance with its decisions, the Council must be seen to be acting inaccordance with established procedures and limitations. The ‘Greenwichfoot’ by which the actions taken by the Security Council in the name of‘collective security’ are judged is Article 2(7) of the UN Charter. Collectivesecurity is a potent new instrument of international conflict resolution,added in the twentieth century to augment the more traditional tools of war,diplomacy, and litigation. Its textual authorisation is found in Chapter VII ofthe UN Charter, which envisages an institutional response by the UN SecurityCouncil to a threat to or a breach of the peace.

Keywords: United Nations Security Council, legitimacy, compliance, Greenwich foot,collective security, UN Charter, conflict resolution, peace

With all the convulsions of global society, only one power isleft that can impose order on incipient chaos. It is the power ofprinciples transcending changing perceptions of expediency.1

The question whether a certain matter is or is not solely withinthe jurisdiction of a State is an essentially relative question; itdepends upon the development of international relations.2

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1. A Charter of Limited Powers

The Security Council has potentially far-reaching enforcement powers. Thesewere largely underused in the stasis of the cold war. Now, however, theCouncil meets almost continuously in formal or informal session. BetweenJanuary 1992 and August 1993 there were 359 sessions of consultationsof the whole Council and 247 formal meetings. It adopted 137 resolutionsand 144 statements of the President summarizing consensus. ‘What hasemerged,’ the Secretary-General has commented, ‘is a pattern of operationsakin to that of a task force dealing with situations as they arise, on an almostcontinuing basis.’3

However, while the Council, has power to act on behalf of the UN as a wholeand to commit its members to action under Charter Article 25, it is only adistorted miniature executive council of the UN membership. A third of itsmembers are unelected. To assert the legitimacy of its actions and to pullmembers towards compliance with its decisions, the Council must be seento be acting in accordance with established procedures and limitations.4 AsPresident Mohammed Bedjaoui of the ICJ has said, the Council must alsopersuade states that it is exercising its powers justly.5

(p.219) The ‘Greenwich foot’ by which the actions taken by the SecurityCouncil in the name of ‘collective security’ are judged is Article 2(7) of theCharter. Collective security is a potent new instrument of internationalconflict resolution, added in the twentieth century to augment the moretraditional tools of war, diplomacy, and litigation. Its textual authorizationis found in Chapter VII of the UN Charter, which envisages an institutionalresponse by the UN Security Council to a threat to or a breach of the peace.

Unlike war, diplomacy, and litigation, collective security operates in a quasi-parliamentary, quasi-executive mode, with discourse which is formally opento public scrutiny but, in practice, carried on primarily in closed sessions.Nevertheless, the process does entail, in effect, the need to persuade almostall fifteen members of the Security Council that action should be taken,that a proposed course of action is the wisest alternative, and that it is bothcongruent with the Council’s powers under the Charter and consistent withits practice in similar cases. As in better-known national analogs (Parliament,the Cabinet), a determined political majority can hypothetically dispense withsuch fairness discourse, and in practice sometimes does so in the name ofdecisiveness and the need for expeditious response to a crisis. Nevertheless,the actions taken will be judged by standards of legitimacy and fairness,


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and that judgment will affect the capacity of the decisions made to pull thecommunity towards compliance. As the Secretary-General pointed out inhis 1992 Agenda for Peace, the ‘principles of the Charter must be appliedconsistently, not selectively, for if the perception should be of the latter,trust will wane and with it the moral authority which is the greatest and mostunique quality of that instrument.’6

In its rather circumlocutory way, Article 2(7) defines the limits of theOrganization’s delegated discretionary powers. Consequently it is thetouchstone of the Organization’s legitimacy, much as a nation judgesthe legitimacy of exercise of its public power by standards set out in itsConstitution.

The United Nations is the creature of a treaty, and as such it exercisesauthority legitimately only insofar as it deploys powers which the treatyparties have assigned to it. Or, to borrow a phrase from the jurisprudenceof the United States Supreme Court, the Charter creates a governanceof limited enumerated powers. These may be modestly augmented by a‘penumbra’ of other powers which are necessarily incidental to the effectiveimplementation of the enumerated ones.7

If the Organization were to stray beyond this perimeter—the limits of thespecifically delegated powers and their ‘penumbra’—then its actions would (p.220) cease to be legitimate. Perhaps the most important part of thisperimeter is drawn by Article 2(7)’s very specific prohibition against all formsof UN intervention ‘in matters which are essentially within the domesticjurisdiction of any state.’

That is the general rule. It is subject to two major caveats. The first islinguistic: as corporations have become multinational, and as civil warsincreasingly seem, as the Secretary-General has observed, anything butcivil,8 so too has our notion of what is ‘essentially domestic’ changed. Thesecond caveat is textual. Article 2(7)’s stricture against intervention inmatters ‘essentially domestic’ contains a crucial exception: the rule does notapply when the Security Council authorizes ‘enforcement measures underChapter VII.’9

Procedurally, such ‘measures’ are invoked whenever the Council decidesto enforce its will against one or more parties and that decision secures theconcurrence of any ‘nine members including the votes of the permanentmembers.’10 Substantively, ‘enforcement measures’ may be taken wheneverthe requisite Council majority is convinced that there exists ‘any threat to the





peace, breach of the peace, or act of aggression.’11 for which such remediesare appropriate. It is apparent that the Council has broad discretion, butthat it is to be exercised bona fide and intra vires, in accordance with thesespecific procedural and substantive standards spelled out in the Charter.

The substantive standard is particularly important because it legitimateswhat would otherwise be an open-ended, indeed wholly arbitrary, vitiationof the central purpose of Article 2(7), namely the protection of memberstates’ sovereignty from interference in essentially internal matters at thewhim of the Organization’s majority. Once the procedural and substantivestandards have been met, however, the Council’s powers of interference areextremely broad. Enforcement may take the form of ‘measures not involvingthe use of armed force’ such as ‘complete or partial interruption of economicrelations and of rail, sea, air, postal, telegraphic, radio, and other means ofcommunication, and the severance of diplomatic relations.’12 If necessary,enforcement may escalate to include ‘such action by air, sea or land forcesas may be necessary to maintain or restore international peace and security’and ‘may include demonstrations, blockade, and other operations by air, sea,or land forces of Members of the United Nations.’13

(p.221) It is thus evident that Article 2(7)’s formula—primarily describingthe outer perimeter of the UN’s powers—also opens a wide breach in thatperimeter when the Council applies an ‘enforcement measure’ against arecalcitrant party. In that exceptional circumstance the Charter empowersthe Security Council to act even when the object of its action is ‘essentiallywithin the domestic jurisdiction of a state.’ It may only do so, however, whenit has discovered a bona fide ‘threat to the peace, breach of the peace, or actof aggression.’

As in a state where a constitution defines and legitimates the exercise ofpolitical power, so too at the UN the legitimacy of the exercise of power bythe Security Council depends upon the public perception that it is beingexercised in accordance with the Charter’s applicable defining rules andstandards. Does the practice of the Security Council permit the conclusionthat it has exercised its exceptional enforcement powers legitimately andfairly? Does it, for example, treat like cases alike? Does it encourage fairnessdiscourse?

Only recently has the question even arisen. We have observed that theCouncil may waive the Charter’s ban against intervention in members’essentially domestic affairs if there is a ‘threat to the peace, breach of thepeace, or act of aggression’ and if it has decided by the requisite majority to




take ‘enforcement measures’ under Chapter VII of the Charter. The secondof these requirements, although purely procedural, in fact acted as a bar toCouncil action during much of the Organization’s first forty-five years, the‘cold war era.’ The Council did not generate much enforcement practice untilquite recently. At first sight this suggests that it is premature to assess itspractice as regards determining the existence of a ‘threat to the peace.’However, there is no reason to limit our study of Council practice solely tothe few cases of actual enforcement.

2. Evidence of Principled Standards

Actual enforcement actions such as those taken since 1990 in respect ofIraq, Haiti, and Libya are only the most dramatic instances in which theSecurity Council has assumed Chapter VII jurisdiction, thereby implicitly, oron rare occasions explicitly, deciding the non-applicability of the Article 2(7)limitation clause. In the earlier period, however, there were other situationswhich the Council regarded as a ‘threat to the peace, breach of the peace,or act of aggression,’ even though they did not result in enforcement action,due to the lack of a requisite majority (the veto). These invocations of thelanguage of Chapter VII are nevertheless important to our inquiry becausethey establish the basis of the Council’s jurisdiction and empower it to takeenforcement measures, even those which might intervene in matters (p.222)‘essentially domestic.’ In other words, while Article 2(7)’s perimeter mayonly be breached by the Council in connection with an enforcement action,once a bona fide ‘threat to the peace’ has been identified, the Council hasplaced the offending state on notice that it may no longer be able to invokeArticle 2(7) to challenge the legitimacy of whatever action the members maythereafter choose to take against it. Thus understood, the relevant Councilpractice is extensive and dates right back to the UN’s inception.

How should we approach this data to examine the Council’s practice?Several approaches are possible. One could survey Council action underChapter VII by reference to the three ‘titles’ of jurisdiction established byArticle 39: 1) threat to the peace, 2) breaches of the peace, and 3) actsof aggression. However, these three categories have not been deployedsystematically. For example, Iraq’s invasion of Kuwait was never specificallylabelled ‘aggression’—despite the fact that it was undoubtedly the mostegregious example of the genre—probably to build a broad consensus inthe Council and to keep the door to peaceful settlement open for as long aspossible.








A more fruitful approach is to focus primarily on the ‘hard’ cases, wherethe Council invoked its Chapter VII jurisdiction in the absence of clear-cutinternational military confrontation, cases less obviously ‘international’ andmore arguably ‘domestic’ than is the spectacle of armies marching acrossrecognized state boundaries. Cases may be described as ‘hard’ when it is notimmediately apparent that they involve an essentially international crisis,as contrasted with ‘easy’ cases which involve facts—such as military conflictacross recognized international boundaries—making their non-domesticcharacter clear.

3. Historic Usage: The Easy Cases

The Security Council has invoked Chapter VII in a number of situations whichcannot plausibly be said to be ‘essentially within the domestic jurisdiction’of any state. These ‘easy cases’ will be reviewed briefly, for the record. Theydo not greatly assist in assessing the legitimacy of UN intervention since inthose particular instances that legitimacy was beyond serious dispute.

The first essentially indisputable invocation of Chapter VII came with thetermination of Britain’s Palestine mandate and the outbreak of fightingbetween forces of the new state of Israel and Arab armies. On July 15, 1948the Council ordered both sides to ‘desist from further military action.’ Itfound the situation in Palestine to constitute ‘a threat to the peace within themeaning of Article 39 of the Charter’ and ordered a cease-fire ‘pursuant toArticle 40,’ while threatening ‘further action under Chapter VII’ if the (p.223)parties to the conflict failed to comply.14 Remarkably, the parties obeyed,and the Council sent UN truce observers to ensure that the cease-fire wasadhered to. This may be accounted the first successful invocation of ChapterVII, and it evidently occurred in circumstances in which no reasonable doubtcould arise concerning the applicability of Article 2(7)’s ‘domestic jurisdiction’caveat.

Another incontrovertible example of the Council’s jurisdiction under ChapterVII followed the armed attack by North Korea on South Korea on June 25,1950. Again the Council responded by invoking Article 39, finding the actionof the North to constitute ‘a breach of the peace’15 and calling for a cessationof hostilities. Two days later the Council voted to ‘recommend’ that ‘themembers of the United Nations furnish such assistance to the Republicof Korea as may be necessary to repel the armed attack and to restoreinternational peace and security in the area.’16










By far the most dramatic and clear challenge to, and response of, theCouncil’s collective security regime envisaged by Chapter VII came inthe 1990–1 crisis following Iraq’s conquest of Kuwait. As Professor OscarSchachter has observed, it ‘was not the first time a state used force to seekrecovery of territory it claimed as its own’ but it was the first time sincethe founding of the UN ‘that the entire territory of a member state wasforcibly annexed.’17 While the Council did not brand Iraq an aggressor, it didimmediately and unanimously condemn the invasion and characterized it asa ‘breach of the peace’ by reference to Articles 39 and 40.18 The Council’ssecond resolution imposed extensive mandatory sanctions under Article41.19 Clearly, the Council did not accept the argument that the invasion wasin any way justified by reason of Iraq’s historic claim to Kuwait, or because ofdisputes regarding the boundary or trans-boundary resources. A Committeeof the Council was established to monitor all states’ compliance with itsordained sanctions.

When it became clear that these enforcement measures were insufficient,the Council called on states ‘co-operating with the Government of Kuwait’which had naval forces in the region to take the necessary measures ‘tohalt all inward and outward maritime shipping in order to inspect and verifytheir cargoes and destinations and to ensure strict implementation’ of theembargo.20 The embargo was tightened a month later with respect to airtraffic, trade, and fiscal relations.21 States seeking to maintain strictly (p.224) ‘humanitarian’ intercourse with Iraq needed permission, in each case,from the sanctions committee.

By late November a large majority of the Council appear to have concludedthat still further action was required.22 A new resolution authorized the statesco-operating with Kuwait, if Iraq failed to comply by January 16, 1991, to takethe necessary steps, including the use of force, to uphold and implement theCouncil’s prior resolutions and to restore peace and security in the area.23

Whether this resolution authorized an ‘enforcement measure’ implementingArticle 42 of the Charter, or was a mere grant of authority to states to usemilitary force in individual and collective self-defense within the meaningof Article 51, is an important and much debated point.24 The UN Secretary-General has recently argued the latter position.25 Whatever the answer, itwas clearly an invocation of Chapter VII jurisdiction. There could scarcelybe a clearer or more widely acknowledged case of a breach of the peaceinvolving acts which could not conceivably be regarded as ‘essentially withinthe domestic jurisdiction’ of Iraq.






As we shall see in the next section, the Council continued to applymandatory sanctions against Iraq long after the end of international militaryhostilities, when the jurisdictional issue posed by Article 2(7) became morepertinent and less clear.

4. The ‘Hard Cases’

Even during its early days, the UN treated some matters as constituting athreat to the peace even though they did not involve actual or imminentinternational military hostilities. A survey of these cases suggests thatthey fall into two overlapping categories: (1) those involving governmentsdemonstrably in gross violation of fundamental norms of international lawand (2) those involving especially egregious civil wars. The decisions underChapter VII taken by the Council in both kinds of situations are important (p.225) sources of evidence as to the emergence of principled practice andthe application of consistent standards in the ‘hard’ cases.

The question whether General Francisco Franco’s Falangist regime inSpain constituted a ‘threat to the peace’ was debated by the SecurityCouncil in April 1946. Proponents pointed to the regime’s close wartimeideological and military association with Hitler’s Germany and Mussolini’sItaly, and to its continued repression of the Spanish people. Although theemerging cold war prevented the adoption of a resolution on the matter, thedebate is nonetheless instructive. Invoking Articles 2(6), 34, and 35 of theCharter, the representative of Poland placed on the Council’s agenda ‘thesituation arising from the existence and activities of the Franco regime inSpain.’26 He proposed a resolution which declared that Franco ‘endangeredinternational peace and security.’ Invoking Articles 39 and 41 of the Charter,he called on members ‘who maintain diplomatic relations with the FrancoGovernment to sever such relations immediately.’27 The Soviet Union’sambassador Andrei Gromyko took the position that sanctions would notviolate Article 2(7) since that provision envisaged ‘circumstances’ in which‘the United Nations both can and should take certain measures required bythe situation arising even out of the internal affairs of a State when theseinternal affairs constitute a menace to international peace and security.’28

Although British and American representatives challenged the view thatthe nature of Franco’s regime in itself constituted a threat to the peace,Gromyko remained unmoved. ‘When it is said…that Spanish fascism doesnot constitute a threat to the peace,’ he asserted, ‘we are inclined to draw acomparison between such statements and assertions and the old bankruptpolicy of non-intervention pursued before the war.’29





In the event, sanctions were not imposed by the Security Council. InDecember 1946, however, the General Assembly revisited the same issueand passed a resolution which recommended ‘that all members of the UnitedNations immediately recall from Madrid their Ambassadors and Ministersplenipotentiary’ while requesting the Secretary-General to monitor theircompliance.30 The resolution does not make an explicit finding, though, asto whether the regime constitutes a ‘threat to the peace.’ Moreover, thediplomatic sanctions were not reiterated by subsequent Assemblies and wereformally revoked by a resolution passed in November 1950.31

The boundary between threats to the peace and domestic affairs becamea crucial source of debate during the ‘Congo crisis’, which landed on theSecurity Council’s agenda as soon as that colony attained independencefrom (p.226) Belgium on June 30, 1960. The ensuing events are of interest inthat they generated what was, at that time, both the Organization’s largestdeployment of forces and its most serious crisis of legitimacy. That crisis tookthe form of controversy as to the UN’s right to ‘intervene’ in a dispute amongtribes and political factions of the Congo.

Less than two weeks after independence, on July 12, 1960, the Presidentand Prime Minister of the Congo jointly asked the UN Secretary-Generalfor military assistance to end a ‘Belgian…act of aggression against ourcountry.’32 In fact, however, the Belgian intervention was merely oneelement in the unravelling of the new nation. The Congolese army had begunto mutiny on July 5. The province of Katanga, containing most of the Congo’snatural resources, proclaimed its secession on July 11. Against the backdropof these events, the Security Council passed its first resolution on July 14,which does not make any finding under Chapter VII but instead ‘calls uponthe Government of Belgium to withdraw their troops.’ It also decided

to authorize the Secretary-General to take the necessarysteps, in consultation with the Government of the Republicof the Congo, to provide the Government with such militaryassistance as may be necessary, until, through the efforts ofthe Congolese Government with the technical assistance of theUnited Nations, the national security forces may be able, in theopinion of the Government, to meet fully their tasks.33

Although the July 14 resolution fixed no blame and invoked no threat to thepeace, Secretary-General Dag Hammarskjold’s first report to the SecurityCouncil on troop deployment did assert that the breakdown of the Congo’sinstitutions for the maintenance of law and order ‘represented a threat to





peace and security justifying United Nations intervention on the basis of theexplicit request of the Government of the Republic of the Congo. Thus,’ headded, ‘the two main elements, from the legal point of view, were on theone side this request and, on the other hand, the implied finding that thecircumstances to which I had referred were such as to justify United Nationsaction under the Charter.’34 This formulation of authority to intervene wasnot a masterpiece of lawyering. Professor Rosalyn Higgins has observed thatthe Secretary-General seemed to prefer a degree of ambiguity: ‘the degreeof fault to be traced to Belgium…was not assessed. The request [of theCongo] by itself was not sufficient: it was necessary that the United Nationsactions be justified in terms of the Charter. Yet without the request (as apractical political reality), the United Nations would almost certainly havebeen unwilling to act in the way it did—even though the Charter authoritywas still available.’35

(p.227) In fact, up to this point (and even beyond) only the Secretary-General, not the Council, had decided that conditions in the Congo createdan Article 39 justification for Security Council deployment of troops. OnlyHammarskjold had asserted that there was a ‘threat to peace and security.’Indeed, on August 9, 1960 the Security Council, in authorizing the entryof UN forces into secessionist Katanga against the seceding provincialgovernment’s opposition, reiterated that it would ‘not be a party to or in anyway intervene in or be used to influence the outcome of any internal conflict’between the secessionists and the central authorities.36 This, too, was notentirely convincing as a statement either of law or of fact. By this time theUN had already deployed 11, 000 troops, although as the Secretary-Generalpointed out, the resolution did not invoke mandatory enforcement measuresunder Articles 41 and 42,37 but referred instead to Articles 25 and 49 incalling on members to ‘afford mutual assistance in carrying out measuresdecided upon by the Security Council.’ To some members, however, itseemed as if the UN were intervening against the secessionist side in whatwas essentially a civil war, even while denying it.

In theory it would not have been difficult to justify the UN’s role. A Councilresolution might have decided that the collapse of central governmentalauthority had created a vacuum of great potential danger, into whichcompeting national interests might rush, thereby transforming the Congo’scivil agony into a surrogate regional and global war. The Council, followingthe Secretary-General’s lead, could have decided to identify this as a ‘threatto the peace.’ Alternatively, the Council could have relied upon the presenceof foreign mercenaries and militias to pronounce a threat to the peace




justifying recourse to Article 42. However, if either of these theories werein the minds of Council members they did not feel it prudent to say so. Inbasing the UN’s action not on Charter principles but on expediency, theCouncil seemed to underrate the importance of perceived legitimacy andfairness to its success and to the authority of the UN.

Following the murder of the Congolese Prime Minister Patrice Lumumba onFebruary 21, the Security Council passed its fourth resolution. Matters on theground had now deteriorated to the point where the Council acknowledged‘the danger of wide-spread civil war and bloodshed in the Congo and thethreat to international peace and security…’ (my italics).38 Having thusestablished its Article 39 jurisdiction, the resolution then authorized ‘the useof force, if necessary, in the last resort’ by what was now a deployment of23, 000 UN troops to ‘prevent the occurrence of civil war in the Congo.’39

On the morning of August 28, these forces launched a full-scale militaryoperation which led the UN chief in Katanga to conclude, rather too (p.228)optimistically as it turned out, that Katanga ‘is now a Congolese province,run by the Central Government.’40

On September 17, 1961 Secretary-General Hammarskjold, en route tomeet Maurice Tshombe, the Katanga premier, died in an airplane crash. OnNovember 24 the Security Council passed its fifth resolution.41 It restates the‘policies and purposes’ of the Organization’s Congo operation as being (1)to maintain the Congo’s ‘territorial integrity and political independence,’ (2)to assist the Central Government to restore law and order, (3) to preventcivil war, (4) to evacuate foreign military personnel and mercenaries notunder UN control, and (5) to render technical assistance. In its operativeparagraphs the Council ‘strongly deprecates the secessionist activities’ inKatanga and declares ‘that all secessionist activities against the Republicof the Congo are contrary to…Security Council decisions.’ The resolution‘specifically demands that such activities which are now taking place inKatanga shall cease forthwith’ and commits UN forces to assist the CentralGovernment to maintain ‘national integrity.’42 After extensive militaryactions, the Katanga secession was defeated, its leaders bowing to ‘theindissoluble unity of the Republic of the Congo.’43

It has been argued that the UN action in the Congo does not invite discussionof Article 2(7) because, although taken under Article 39, it constitutes neitheran enforcement action nor an intervention. It can be argued that there wasno enforcement action because, when force was used by the UN, it wason behalf of— not against—a member state, deployed at its government’s




request. Even if this argument were factually convincing, it does not addressthe more important allegation that the UN, by siding with the centralauthorities at their behest, was ‘intervening’ in domestic strife. Indeed, if theUN action did not constitute an enforcement action under Article 42, thenArticle 2(7)’s rule of self-restraint assumes even greater cogency. It mayperhaps be argued that enforcement is not enforcement if it is requestedby a member government, but it is surely not credible as a matter of lawto say that intervention in a civil war is not intervention whenever it followsa government request. The protracted use of overwhelming military forceagainst Congolese secessionists can be legitimated only by demonstratingthat the civil war itself was not ‘essentially domestic,’ in the sense of Article2(7), not by trying to prove that the UN action was not an intervention.

When the Council invoked Article 39, it had in effect already determined thethreshold jurisdictional question, deciding that the civil war had ceased tobe essentially domestic and had become a threat to the peace. There wasample basis for such a conclusion. For political reasons, however, the (p.229)Council still preferred to base its decision to intervene on the Congolesegovernment’s invitation. As a matter of law, however, the Council need nothave restrained itself had no invitation been forthcoming. It is the threat,not the invitation, which legitimated its recourse to force. No invitationcould justify UN intervention in a civil war in the absence of a threat tointernational peace.

That civil wars can satisfy the Chapter VII conditions for UN intervention hassince been confirmed by other Council actions. On November 11, 1965 theself-governing British colony of Rhodesia, ruled by the small white settlerminority, unilaterally declared its independence (UDI) to pre-empt theintroduction of majority rule. The next day, the Security Council adopteda resolution condemning UDI and calling on ‘all states not to recognizethis illegal racist minority regime in Southern Rhodesia and to refrain fromrendering any assistance to this illegal regime.’44 A few days later theCouncil determined that the ‘situation’ resulting from UDI ‘is extremelygrave, that the Government of the United Kingdom of Great Britain andNorthern Ireland should put an end to it and that its continuance in timeconstitutes a threat to international peace and security.’45 The resolutionalso called on all states to refrain from ‘any action which would assist andencourage the illegal regime’ and to ‘do their utmost in order to break alleconomic relations’ with it.46 Again, the Council acted at the behest ofRhodesia’s nominal or de jure authorities, the British Government, but it is at





least questionable whether this in any way added to the Council’s legal, asdistinct from political, authority to act.

One year later, with UDI still in effect, the Council invoked Articles 39 and 41of the Charter to establish detailed trade, transport, and fiscal sanctions afterdeciding that ‘the present situation in Southern Rhodesia constitutes a threatto international peace and security.’47 It warned members that a failure tocomply ‘shall constitute a violation of Article 25 of the Charter.’48 As to whyUDI, an event occurring entirely within the colonial territory of a memberstate, constitutes a threat to the peace warranting forceful measures ofintervention by the Organization, the resolution focussed on ‘the inalienablerights of the people of Southern Rhodesia to freedom and independence.’49

The Rhodesian sanctions may thus be seen as an important first exampleof the Security Council deciding that a secessionist regime which denies aportion of its own people freedom and self-rule may thereby constitute athreat to peace—even in the absence of (p.230) actual civil war—and thatthis warrants collective measures under Chapter VII.

This was a major shift in the way in which the Council interprets Article 39,different from its justification of the failure to enact diplomatic sanctionsagainst General Franco in 1946. However, it makes sense to assume that anact of secession which suddenly disempowers a large population within theseceding state is very likely to give rise to civil war. Indeed, this has beenborne out by more recent events in the former Yugoslavia and the formerSoviet Union.

A problem with Security Council resolutions is that they speak in the coveredlanguage of diplomacy, sometimes out of political necessity, sometimesout of the drafters’ professional habit. They often fail to address issues offairness, which leaves Council actions vulnerable to attack as exercises inunprincipled power. This adversely affects the resolution, its capacity togarner voluntary compliance, and perceptions of the process’ legitimacy.The problem has been exacerbated by the growing tendency of the SecurityCouncil to conduct its negotiations in closed ‘informal’ sessions, off theofficial record. James O. C. Jonah, the UN Under-Secretary-General forPolitical Affairs until 1993, has reported that ‘informal consultations of theCouncil now outnumber the formal meetings, which have become mereceremonial events, typically of very short duration.’ Thus, ‘in 1992 theCouncil held 129 formal meetings but held 188 informal consultations ofthe whole. In addition, there were many more informal consultations by





subgroups of the Council, such as the Perm Five and non-aligned caucus.’ Hefound this ‘club-like atmosphere…personally…disturbing.’50

In 1977 the Security Council, invoking Chapter VII, imposed a mandatoryarms embargo on South Africa.51 In so doing, it determined ‘that theacquisition by South Africa of arms and related materiel constitutes a threatto the maintenance of international peace and security.’52 Significantly,the resolution identifies two bases for invoking collective measures: firstly,the policies of the South African government in ‘its resort to massiveviolence against and killings’ of its own people and, secondly, ‘the militarybuild-up by South Africa and its persistent acts of aggression against theneighbouring States.’53 While the second basis for invoking Articles 39 and41 is unexceptional, the first marks a further decision by the Security Councilto create a threshold of conduct by a government towards its own peoplewhich, when crossed, may be deemed a threat to the peace. That thresholdin the South African case is established by international law’s prohibition ofthe offense of apartheid.

(p.231) The Security Council’s authorization of sanctions in the Rhodesianand South African cases may have established the principle that a ‘threatto the peace’ can be created by the conduct of a government towardsits own citizens which grossly and persistently violates firmly establishedinternational law. Such a principle specifically recognizes the historicallydemonstrable connection between the proscribed behavior and a propensityto war. Not every violation of international human rights law, however, wouldnecessarily constitute that threat and it would be useful for the sponsors ofsuch actions to engage the members in a fairness discourse to clarify thebasis on which action was being proposed.

Without such principled justification, the applicable principles must bededuced from the circumstances surrounding the taking of such action.The next significant instance is the Council’s actions under Chapter VIIagainst Iraq after the end of the Gulf War. In a landmark decision,54 theCouncil made a cease-fire conditional on Iraq’s explicit agreement tomeasures limiting the domestic sovereignty of its government which, iftaken outside the context of Chapter VII, would undoubtedly invite anArticle 2(7) challenge. In the name of restoring peace and security in theregion, the Council imposed intrusive conditions on Baghdad comparableto those of the Treaty of Versailles.55 As regards military capability, theCouncil required Iraq to destroy all its chemical and biological weapons56

and to renounce development of nuclear weapons and all but short-range







ballistic missiles.57 It empowered the International Atomic Energy Agency58

to engage in extensive inspection of suspected nuclear capability within Iraqand permitted an international commission59 to conduct searches by landand air and to destroy a large range of prohibited weapons and facilitiesfor their manufacture. It also established and authorized an observer forceto monitor a demilitarized zone.60 Although defeated Iraq agreed to theseconditions, they were not consent-based, but unilaterally imposed by theCouncil acting under Chapter VII.

The Council thus showed itself willing to continue to use economic sanctionsand mandatory inspections to control important aspects of Iraq’s armamentspolicy,61 even after the termination of the act of aggression which had givenrise to Chapter VII countermeasures. The end of Iraqi transgression wasnot deemed by the Council to prevent its continued intervention in mattersnormally considered essentially domestic, apparently because the Councilbelieved that this was necessary to ensure that the threat should not recur.Put another way, in ending the military confrontation with Iraq the Councilappears to have acted on the assumption that a continuing (p.232) threatto the peace could be posed by Iraq’s past conduct. That conduct mightreasonably cause apprehension about its unreconstituted government’slatent tendency to engage in further aggressive behavior. In an importantinterpretation of its jurisdiction to contain threats to the peace under ChapterVII, the Council apparently decided that such expectations about futureconduct justify recourse to enforcement measures, including some whichobviously involve intervention in matters essentially domestic. However,this is surmise. The Security Council is not a forum conducive to fairnessdiscourse but seems driven almost entirely by short-term policy. This doesnot mean that its decisions are wrong, unfair, or illegitimate. It means that ithas largely failed to prove that it has exercised fairness and legitimacy.

If this is a correct interpretation of the Council’s actions under SecurityCouncil Resolution 687, ending the military hostilities against Iraq andimposing a loser’s regime, it suggests a new interpretation of the scope ofArticles 2(7), 39, and 41, with significant implications in other situationswhere a ‘threat to the peace’ might be deduced from collateral evidenceof a government’s ‘tendencies,’ even in the absence of ongoing aggressivebehavior.

Perhaps of even greater significance in that case is the Council’s invocationof Iraq’s non-compliance with five bilateral and multilateral agreementsto which it is a party to justify the imposition of sanctions, control,







and inspection. These agreements are the 1963 Kuwait-Iraq boundarysettlement,62 the Geneva Protocol on gas and bacteriological warfare,63

the convention on biological weapons,64 the nuclear nonproliferationtreaty,65 and the hostages convention.66 From the Council’s action onemight conclude that egregious violations of treaties imposing duties of majorimportance to the preservation of peace may be deemed to be threatsto the peace, inviting recourse to remedies under Chapter VII, even if thetreaties themselves contain no enforcement provision or provide only judicialremedies or arbitration in the event of an alleged breach. Moreover, theCouncil asserted the right to decide itself whether a treaty had been violated,(p.233) the sort of determination usually reserved to judicial or quasi-judicialprocess.

Even more significant is this resolution’s implication that a state’s failureto ratify major international conventions, taken together with behavior atvariance with their peacemaking norms—for example, Iraq’s failure to ratifythe convention on biological weapons—contributes to ‘the threat that allweapons of mass destruction pose to peace and security.’67 The Council didnot, of course, say that failure of a state to ratify such a convention of itselfjustifies the application of Chapter VII remedies. It does imply, nonetheless,that such non-ratification in combination with past behavior justifies theCouncil obliging Iraq, even as a non-party, to comply with the Convention’snorms, arguably because they have become customary internationallaw, and because the intent to comply in future can best be attested byratification. Thus, the Council ‘[i]nvites Iraq…to ratify the Convention.’68 andinvokes Chapter VII to require that Iraq renounce biological weapons andopen itself to inspection.

In making these demands, backed by enforcement sanctions, the Councilfurther decided that its jurisdiction could be extended and indefinitelyprolonged, that it would ‘remain seized of the matter’ and could ‘take suchfurther steps as may be required for the implementation of the presentresolution and to secure peace and security in the area.’69

The legitimacy of such a sweeping interpretation by the Council of itsjurisdiction under Chapter VII, in spite of Article 2(7), was justified by theUN Under-Secretary-General for Legal Affairs. Iraq, he stated, ‘through itsunco-operative behavior, has forfeited the possibility of a speedy lifting ofthe sanctions.’70 That a member state’s ‘unco-operative behavior’ can rise tothe level of a threat to the peace and justify the use of collective measuresto compel co-operation with international normative standards beyond








the specific binding obligations of the Charter represents a significantelucidation, or perhaps extension, of the Council’s jurisdiction and range ofoptions. It raises issues of legitimacy and fairness in the use of power in theglobal system, and of its decisions. It provokes serious questions of controland accountability.

A further example is the invocation, in a resolution of August 15, 1991, ofChapter VII to condemn the failure of Iraq to disclose weapons capabilitiesand to co-operate with the inspectors, as well as its ‘noncompliance…withits obligations under its safeguard agreement with the International AtomicEnergy Agency…which constitutes a violation of its commitments as aparty to the Treaty on the Non-Proliferation of Nuclear (p.234) Weaponsof 1 July 1968.’71 The resolution demands full compliance under a clearlyimplied threat of further collective measures. In this instance the Councilactually interpreted the legal obligations which a member had assumed byratifying an international convention, adjudged its non-compliant conductto constitute a violation, and indicated that such a violation gave rise tothe Council’s Chapter VII enforcement jurisdiction. This too is a precedentof significance, raising questions about the legitimacy of Council actions toenforce treaty-based norms of conduct. It raises speculation, for example, asto whether a gross violation of an environmental convention could be foundby the Council to constitute a threat to the peace and security of humanitywhich would justify the Council in ordering compliance under threat ofChapter VII measures.72

It is also prudent to consider whether such Council involvement in assessingnon-compliance and mandating compliance with treaty-based norms is ahelpful augmentation of the fragile but more traditional means of redressthrough adjudication. For example, there is a broad hint in remarks of BritishPrime Minister John Major summarizing the 1992 Heads of Governmentmeeting of the Security Council that violations of the nuclear Non-Proliferation Treaty, when notified by the International Atomic Energy Agencyto the Council, imbue the Council with jurisdiction to take enforcementaction.73 The 1994 crisis over charges by the IAEA against North Korea ofnon-compliance with the Treaty seemed to raise the possibility that theCouncil would brand that violation as a threat to the peace and would orderenforcement measures. One might ask whether an advisory opinion renderedby the International Court of Justice, perhaps at the request of a Secretary-General authorized by the General Assembly to make such a request, wouldnot be a useful legitimizing intermediate step between a finding by the IAEAof a fact and the decision of the Council to resort to collective measures.







Neither the Agency nor the Council appears to be the best authority fordetermining whether a state by its conduct has violated a treaty-based legalobligation.

Another innovation should be noted. By decision of the Council an observerunit was established to patrol to a depth of ten kilometers on the Iraqi side ofthe border and five kilometers on the Kuwaiti side.74 This unit is specificallyauthorized under Chapter VII. It is not a peacekeeping force stationed at theinvitation of the host countries. Indeed, under the resolution’s terms, it ‘canonly be terminated by a decision of the Council,’75 (p.235) that is, with theconsent of the necessary majority, including the permanent members. Thispermanence distinguishes it from previous peacekeeping activities whichwere usually authorized for a fixed period and renewed with the consent ofthe parties on whose territory the forces were stationed.

The Council also created a fund to compensate victims for losses and costsof the war and its aftermath.76 The fund is to be financed by a levy of thirtyper cent on any sale of Iraqi petroleum, which must first be authorized bythe Council.77 All other sales remain prohibited. Another novel decisionof the Council, again acting under Chapter VII, was ‘that petroleum andpetroleum products’ exported under the Council’s waiver ‘shall while underIraqi title be immune from legal proceedings and not be subject to any formof attachment, garnishment or execution, and that all States shall take anysteps that may be necessary under their domestic legal systems to assurethis protection, and to ensure that the proceeds of sale are not diverted fromthe purposes laid down’ by the Council.78

An interesting contrast to these bold Chapter VII initiatives, all taken afterthe end of hostilities in the Gulf, is the Council’s more muted response tothe plight of the insurgent Kurdish population in post-war Iraq. On April5, 1991 the Security Council did condemn ‘the repression of the Iraqicivilian population in many parts of Iraq, including most recently in Kurdishpopulated areas, the consequences of which threaten international peaceand security in the region.’79 However, it went on to demand that ‘Iraq, asa contribution to removing the threat to international peace and securityin the region, immediately end this repression.’ and ‘expresses the hope…that an open dialogue will take place to ensure that the human and politicalrights of all Iraqi citizens are respected.’80 It further insisted that Iraq ‘allowimmediate access by international humanitarian organizations’ to thedevastated Kurdish areas and ‘[r]equests the Secretary-General to pursue hishumanitarian efforts in Iraq.’81







While this resolution twice refers to Iraqi repression of the Kurds asthreatening international peace and security—language strongly redolentof Chapter VII (as also of the interesting but obscure Article 106)—no‘measures’ envisaged by Articles 39, 41, and 42 were taken ‘to maintainor restore international peace and security.’82 Nevertheless, even in theabsence of a Council decision to take collective measures, it is noteworthythat a (p.236) purely civil war and the ‘repression of the…civilian population’by its own government were thought not to be primarily within the ‘domesticjurisdiction’ of Iraq, but rather within the purview of the UN. To reinforcethe legitimacy of this assumption of jurisdiction, the Council resolutionpointed out that ‘a massive flow of refugees’83 caused by Iraqi repressionof the Kurds contributed to the threat to peace and security in the region.Both the ‘magnitude of human suffering’84 and ‘repression of…civilianpopulation’85 were seen as justifying Council intervention, although theSecretary-General’s Legal Counsel was careful to take the cautious view that‘the resolution was not adopted under Chapter VII’ and that, accordingly,‘the Secretary-General…could not legally undertake or participate inhumanitarian intervention and [/] or send to Iraq United Nations “BlueHelmets” to protect the Kurdish population without Iraqi consent or explicitSecurity Council authorization.’86

The Legal Counsel’s opinion actually means that Resolution 688 did notauthorize UN collective measures under Chapter VII or enforcement actionby the Secretary-General. The resolution did nonetheless locate itself withinthe Chapter VII precincts of ‘threats to the peace.’ This careful distinctionmust be understood against the background of Security Council consultationswhich had made it clear that China would veto any resolution to intervenewith force to protect the Kurds.87 Although it opposed the setting of such aprecedent, Beijing did not object when 13, 000 U. S., British, French, Dutch,Spanish, Italian, and Australian troops, without UN authorization, enteredNorthern Iraq to protect the Kurds. On April 18 agreement was reached withIraq to deploy a team of 500 United Nations Guards carrying sidearms only.88

The Kurdish crisis illustrates the changing view of the Security Counciland the Secretary-General regarding the legitimacy of UN interventionin situations of extremely aggravated civil war and civil oppression. InResolution 688 the Council endorsed the view that when both, or perhapseither, of these factors reach a certain level of ferocity, the crisis may becharacterized as a threat to the peace and placed under UN surveillance.Although in that instance the Council chose not to authorize ‘measures,’ itis implicit in the opinion of the Secretary-General’s Legal Counsel that the








Council would have had legal grounds for ordering forceful action underChapter VII, had it opted to do so.

(p.237) This view of Article 2(7)’s diminished power to prevent the UNfrom taking a role in resolving civil war crises was further reinforced bythe Organization’s experience in dealing with fighting among parts of theformer Yugoslav Socialist Federation. On September 25, 1991 the SecurityCouncil passed its first resolution, which expressed its concern ‘that thecontinuation of this situation constitutes a threat to international peaceand security’89 and which, ‘[r]ecalling its primary responsibility under theCharter of the United Nations for the maintenance of international peace andsecurity’90 decided ‘under Chapter VII of the Charter of the United Nations,that all States shall, for the purposes of establishing peace and stability inYugoslavia, immediately implement a general and complete embargo on alldeliveries of weapons and military equipment to Yugoslavia until the SecurityCouncil decides otherwise following consultations between the Secretary-General and the Government of Yugoslavia.’91

These Chapter VII sanctions were imposed despite the fact that the conflictin Yugoslavia initially involved parties within what was still a member stateof the UN. This made the decision to find a ‘threat to international peaceand security’ and the invocation of Chapter VII an important indicator of theCouncil’s view of its powers. The resolution sought to soften the edges of thisprecedent by noting in its opening preambular paragraph ‘that Yugoslaviahas welcomed the convening of a Security Council meeting.’ More to thepoint, the preamble expressed concern that the fighting ‘is causing a heavyloss of human life and material damage’ and has ‘consequences for thecountries of the region, in particular in the border areas of neighbouringcountries.’92 The resolution constitutes another clear precedent for Councilaction under Chapter VII, deploying collective measures to dampen a civilwar. Both in its Kurdish and in its Yugoslav resolutions the Council hadgone on record as deeming itself entitled to ‘intervene.’ In the formerinstance, intervention took the form of exerting pressure through a hortatoryresolution; in the Yugoslav case, however, intervention advanced to thestage of invoking mandatory collective measures. It is possible, but neitherpersuasive nor particularly helpful in assessing the legal posture of theCouncil, to distinguish between a Council-mandated arms embargo and an‘enforcement measure.’ However, for such an embargo not to be seen asan ‘enforcement measure,’ the Security Council’s action would have to bejustified—as earlier in the Congo-Katanga crisis—as not being an intervention









in an essentially domestic matter, in the circumstances an even more radicalbut less credible basis for asserting Council jurisdiction.

(p.238) After intense efforts by the Secretary-General and Cyrus Vance, hisPersonal Envoy, a cease-fire in Croatia was achieved on January 3, 1992.93

On February 21 the Council approved the sending of 14, 000 peacekeepersto Croatia (UNPROFOR)94 for an initial period of twelve months, ‘unless theCouncil subsequently decides otherwise.’95 This mandate was renewed andthe force augmented both in members and mission.

As Under-Secretary-General Fleischhauer has observed, this deployment ofUN forces ‘[a]s in past cases…is linked to the consent of the parties [to theUN’s peacekeeping mission].’96 That consent, however, is somewhat lessthan meets the eye. The 12-months’ authorization by the Council makes theforces’ presence mandatory in the sense that the operation could not beterminated by Croatia or its adversaries.

There is at least one other sense in which the Security Council’sinterpretation of its authority for maintaining peace and security in Yugoslavhas added to the text-defining canon of practice. In its very first resolution,on September 25, 1991, the Council recalled ‘that no territorial gains orchanges within Yugoslavia brought about by violence are acceptable.’97

This important application of uti possidetis to the borders of Croatia inthat entity’s effort to secede from Yugoslavia was even more stronglyexpressed by the Secretary-General in reporting to the Council on his effortsto negotiate a cease-fire. Endorsing the decision of the European Conferenceon Yugoslavia which ‘ruled out any changes in external or internal bordersby means of force,’ he added his own emphasis: ‘I believe that any selective,unco-ordinated departure from these principles could hold very seriousdangers, not only for the republics of Yugoslavia, but for all of her peoplesare indeed for the maintenance of international security in the region’98 (myitalics).

By the time the UN had recognized the breakup of the former Yugoslavia byadmitting Slovenia, Croatia, and Bosnia-Herzegovina to membership, the‘intervention’ issue, far from vanishing, simply changed nomenclature. Thecivil wars of Yugoslavia were now the civil wars of Croatia and, especially,of Bosnia. On October 9, 1992 the Security Council, acting under ChapterVII, decided ‘to establish a ban on military flights in the airspace of Bosniaand Herzegovina.’99 This was binding on all parties in Bosnia’s civil war,as well as on outsiders. It required UN authorization for any such flights100

and (p.239) military enforcement of the ban was mandated by the Council





on March 31, 1993.101 By this decision, additionally, severe mandatorysanctions were imposed on the former Yugoslav Republic (Serbia andMontenegro) to prevent supplies from reaching Serb forces in Bosnia andCroatia.102

Similarly, the Security Council, invoking Chapter VII, has imposed ‘a generaland complete embargo on all deliveries of weapons and military equipmentto Liberia’103 and to the UNITA insurgents in Angola after their refusal toaccept the outcome of a UN-observed election.104 The Council also invokedChapter VII to impose mandatory sanctions on the military regime in Haitiafter it became clear that it would not relinquish power to the governmentof President Bertrand Aristede, which had been elected in a UN-supervisedvote (see Chapter 4). It determined that ‘in these unique and exceptionalcircumstances, the continuation of this situation threatens internationalpeace and security in the region.’ These exceptional circumstances werestated to include: ‘mass displacement of population’; requests for collectiveaction by the representative of the legitimate government of Haiti; and callsfor action against the usurpers by the OAS and the UN General Assembly.105

Another application of Chapter VII to a civil war is found in the Council’sresponse to the crisis in Somalia. The Security Council’s authorization ofhumanitarian military intervention in that civil war106 recognized that ‘themagnitude of the human tragedy caused by the conflict…constitutes a threatto international peace and security.’ The resolution imposes mandatoryrestraints on the Somali factions (paragraphs 2, 3, and 4). In invokingChapter VII the resolution cites ‘widespread violations of internationalhumanitarian law’107 and orders the factions ‘immediately [to] cease anddesist’ therefrom.108 It authorizes deployment of US-led forces ‘to establisha secure environment for humanitarian relief operations’109 and authorizesthem to ‘use all necessary means’110 to achieve that goal.

By resolution of March 26, 1993 the Security Council agreed to establish asuccessor multinational UN force for Somalia, UNOSOM II, with some 30, 000troops under the direct authority of the Secretary-General and with ChapterVII authority to use all necessary force.111 This very significantly stretchedthe half-hearted precedent of UN intervention in the Congolese civil warthirty years earlier. The Somali force was authorized to do more (p.240)than merely defend itself. It could use force to disarm the factions, and wascharged to help create a democratic government and administration forSomalia. The great latitude afforded by this resolution, to which no consentby the host state was elicited, is somewhat vindicated by the undisputed










fact that Somalia has no government which could give consent, as thegovernment of the Congo did, to UN action to bring secessionism undercontrol.

That leaves unanswered the key legal and political issue: should the UNintervene in civil wars to hold together a disintegrating nation and if so,under what circumstances and with what jurisdictional authority? ProfessorRichard Lillich rightly cautions that ‘wisdom calls for the elaboration ofcriteria by which the legitimacy of UN humanitarian intervention may bejudged.’112

Those answers may be found by comparing of the human costs ofintervention and the virulence of any alternative. The notion that ‘a lethalcivil war and a rapidly deteriorating humanitarian situation’113 could threatenpeace and security was underscored by Secretary-General Boutros-Ghali,who observed: ‘Civil wars are no longer civil and the carnage they inflictwill not let the world remain indifferent. The narrow nationalism that wouldoppose or disregard the norms of a stable international order and the micro-nationalism that resists healthy economic or political integration can disrupta peaceful global existence.’114

The Council’s decisions to act under Chapter VII in civil wars are not nearlyso clearly explained, but its actions speak. Quite as dramatic is the Council’sdecision in February 1993 to establish an international tribunal ‘for theprosecution of persons responsible for serious violations of internationalhumanitarian law committed in the territory of the former Yugoslavia since1991.’115 This resolution asked the Secretary-General to report on optionsfor the implementation of this tribunal. On May 3, 1993 his report wassubmitted to the Council. It notes that ‘in the normal course of events’ theestablishment of such a tribunal would be accomplished by a treaty.116

However, it points out, a treaty approach would require much time and thestates whose citizens would be affected might never ratify it. The Secretary-General therefore recommended that the tribunal should be establishedand given jurisdiction ‘by a decision of the Security Council on the basis ofChapter VII of the Charter of the United Nations.’ He added (p.241) that sucha decision ‘would constitute a measure to maintain or restore internationalpeace and security, following the requisite determination of the existenceof a threat to the peace, breach of the peace or act of aggression.’117 Theadoption of this proposal has made violations of humanitarian law in civilstrife capable of being deemed a ‘threat to the peace.’ It has also establishedthe authority of the Council to create a criminal court with jurisdiction to






try individuals of any nationality for such violations. These decisions by theCouncil significantly extend its Chapter VII jurisdiction.

A further invocation of Chapter VII by the Council, in another context,occurred in January 1992 when it unanimously passed a resolution statingthat ‘acts of international terrorism…constitute threats to international peaceand security.’118 The resolution ‘strongly deplores the fact that the LibyanGovernment has not yet responded effectively’119 to French, UK, and USrequests for extradition of persons in Libya who, after investigation, werealleged to have been involved in the 1988 bombing of Pan American flight103, which cost 270 lives, and the 1989 bombing of UTA flight 772, with theloss of 171 lives. The resolution urges ‘the Libyan Government to provide afull and effective response to those requests.’120

When this resolution failed to elicit a sufficiently positive response, theSecurity Council adopted a further resolution on March 31, 1992121 inwhich it specifically purports to act under Chapter VII and adopts collectivediplomatic, fiscal, trade, and transportation sanctions against Libya,122

effective until such time as the Council decides that Libya has compliedwith the requests for extradition123 and has committed itself ‘definitively tocease all forms of terrorist action and all assistance to terrorist groups.’ Libyaalso ‘must promptly, by concrete actions, demonstrate its renunciation ofterrorism.’124

Presumably the Council’s majority had carefully considered the evidence ofLibya’s complicity in the aerial explosions, and only upon concluding thatextraordinary remedies were required had invoked collective measuresto compel Libya to extradite several of its own citizens as well as tooffer evidence of compliance with international anti-terrorist norms.International bombing is among the ‘easy cases’ in the sense that a ‘threatto international peace’ is self-evident. Nevertheless, the Security Council’sdecision to assume jurisdiction, determine the matter of the complaint, andinvoke collective measures against Libya is not a minor precedent.125 Underthe 1971 (p.242) Montreal Convention,126 to which more than 140 statesare party, Libya was only obliged either to bring the accused to trial itselfor to extradite them. This seems to capture the fairness consensus of theinternational community: extradite or bring to trial. The Libyan Governmentasserted that it had ‘complied with all its own obligations under the MontrealConvention’127 by having ‘submitted the case to its competent authoritiesfor the purpose of prosecution.’128 The Council nevertheless assumedjurisdiction to fashion a different remedy under Chapter VII. It evidently








decided that a trial in Libya would be a sham, but the proposition is notdiscussed, let alone demonstrated, nor is any principle stated which justifiesthe Council’s applying sanctions to prevent a state from doing somethingwhich a treaty permits it to do.

The Council is implicitly propounding a radical proposition: that it may finda threat to the peace in a state’s exercising rights specifically declared by auniversal treaty. Its adoption calls out for principled fairness discourse, if notin the Council then in a juridical forum able to hold the Council accountableto the law.

5. Judicial Review?

Libya took its case to the International Court of Justice, complaining thatits rights under the Montreal Convention had been arbitrarily abrogatedby the Security Council. It argued that the Council’s actions were ‘contraryto international law’ and that the Council had ‘employed its power tocharacterize the situation for purposes of Chapter VII simply as a pretext toavoid applying the Montreal Convention.’129

The Libyan application left the Court with three jurisprudential choices.It could have suspended the Security Council’s actions until the merits ofthe case could be decided. Or it could have decided that it had not beendemonstrated at this preliminary stage of litigation that the Council hadacted mala fides or ultra vires, and that consequently there were (or wereas yet) no grounds upon which the Court could order such relief. Finally, theCourt could have held that no relief would be available at any stage of the (p.243) proceedings because there was no basis upon which the Court couldreview the exercise of authority by the Council if that body purported to actunder Chapter VII. It will be evident that the first and second options assumean implicit right of judicial review, albeit leading to opposite results, while thethird assumes judicial restraint or abdication.

The Court’s majority appears to have elected, if rather softly, the secondoption. The very brief majority opinion turns on a finding that ‘both Libyaand the United States, as Members of the United Nations, are obliged toaccept and carry out the decisions of the Security Council in accordancewith Article 25 of the Charter,’ including the obligations imposed by SecurityCouncil resolutions.130 It concludes further that ‘the obligations of the Partiesin that respect prevail over their obligations under any other internationalagreement, including the Montreal Convention.’131 The majority reached thisconclusion by an interpretation of the effect of Charter Article 103.132






Most significant, however, is what the Court left unsaid. The majority opinionappears to accede to the broad discretionary power of the system’s political‘branch.’ But it accedes not by refusing to decide, but by exercising its powerof decision. The Security Council’s action in imposing sanctions is adjudgedintra vires precisely because the majority of judges seemed to agree—atleast on preliminary consideration—that Article 103 of the Charter ‘trumps’the terms of the Montreal Convention, and thus frees the Security Councilto apply sanctions as a suitable remedy in exercise of its powers underChapter VII. On the other hand, had Libya been able to allege a more generalground of ultra vires—that a coercive demand for extradition of a state’sown national ‘could be deemed contrary to international law’—then, in thewords of Acting President Oda, that ‘would have instituted a totally differentlitigation, and whether or not the Court has jurisdiction to deal with that issueis certainly a different matter.’133 It is interesting to speculate on what mighthave happened had Libya been a party to the Court’s mandatory jurisdictionunder Article 36(2) of its Statute and had it brought its action ‘under generalinternational law’ against Britain, another party to 36(2).

As it is, the interim measures decision represents a delicate balancing act.As Judge Lachs noted in his separate opinion confirming the majority’s result:‘While the Court has the vocation of applying international law as a universallaw, operating both within and outside the United Nations, it is bound torespect, as part of that law, the binding decisions of the Security Council.’134

The operative verb is ‘respect’—not ‘defer to.’ The Court’s (p.244) decision,Lachs emphasized, ‘should not…be seen as an abdication of the Court’spowers.’135

This carefully crafted non-abdication is succinctly put by the SeparateOpinion, concurring in the majority’s result, by Judge Shahabuddeen.

The question now raised by Libya’s challenge to the validityof resolution 748 (1992) is whether a decision of the SecurityCouncil may override the legal rights of States, and, if so,whether there are any limitations on the power of the Councilto characterize a situation as one justifying the making of adecision entailing such consequences. Are there any limitsto the Council’s powers of appreciation? In the equilibrium offorces underpinning the structure of the United Nations withinthe evolving international order, is there any conceivablepoint beyond which a legal issue may properly arise as to thecompetence of the Security Council to produce such overriding





results? If there are any limits, what are those limits and whatbody, if other than the Security Council, is competent to saywhat those limits are?136

That is the nub of the matter, highlighted in the dissent of JudgeWeeramantry, who asked whether: ‘…the Security Council discharges itsvariegated functions free of all limitations, or is there a circumscribingboundary of norms or principles within which its responsibilities are tobe discharged?’137 The majority and dissenting opinions seem to be inagreement that there are such limits and that they cannot be left exclusivelyto the Security Council to interpret. The legality of actions by any UN organmust be judged by reference to the Charter as a ‘constitution’ of delegatedpowers. In extreme cases the Court may have to be the last-resort defenderof the system’s legitimacy if the UN is to continue to enjoy the adherenceof its members. This seems to be tacitly acknowledged judicial commonground, and is an elementary prerequisite of fairness in the Council’sexercise of its newly ebullient powers.

As the UN system increasingly effects its intended operation, the rule oflaw imposed on the political process by the Charter will assume increasingimportance.138 The Libyan case may not be an instance of uncheckedpolitical power, but it did provoke that complaint and directed it squarely tothe Court, the institution of last resort in the system able to legitimize thegrowing—and welcome growth of—political activism by UN organs and by theSecurity Council in particular.

Notes:

(1) Secretary-General Boutros Boutros-Ghali, Statement at Security CouncilSummit Meeting, SC/5360/Rev. 1, Jan. 31, 1992.

(2) Nationality Decrees Issued in Tunis and Morocco, 1923 PCIJ (ser. B) No. 4,27.

(3) Report of the Secretary-General on the Work of the Organization, A/48/1,Sep. 10, 1993, 9, 25, fig. 3.

(4) D. Caron, ‘The Legitimacy of the Collective Authority of the SecurityCouncil,’ ms. (1993).

(5) Bedjaoui, ‘Du Contrôle de Légalité des Actes du Conseil de Sécurité,’ inNouveaux itineraires en droit, Hommage à François Rigaux (1993).




(6) A/47/277; S/24111, June 17, 1992, 23.

(7) McCulloch v. Maryland, 4 Wheat. 316 (1819). See also Myers v. UnitedStates, 272 US 52 (1926); United States v. Curtiss-Wright Corporation, 299US 304 (1936).

(8) See infra note 116.

(9) Article 2 (7) states: ‘Nothing contained in the present Charter shallauthorize the United Nations to intervene in matters which are essentiallywithin the domestic jurisdiction of any state or shall require Members tosubmit such matters to settlement under the present Charter; but thisprinciple shall not prejudice the application of enforcement measures underChapter VII.

(10) UN Charter, Art. 27 (3).

(11) Ibid., Art. 39.

(12) Ibid., Art 41.

(13) Ibid., Art. 42.

(14) SC Res. 54 (1948), July 15, 1948. See also Draft US Resolution S/890, July13, 1948, paras. 2–4.

(15) SC Res. S/1501, June 25, 1950.

(16) SC Res. S/1511, June 27, 1950.

(17) O. Schachter, ‘United Nations Law in the Gulf Conflict,’ 85 AM J INTL L452, 453 (1991).

(18) SC RES. 660 (1990), Aug. 2, 1990.

(19) SC Res. 661 (1990), Aug. 6, 1990.

(20) SC Res. 665 (1990), Aug. 25, 1990.

(21) SC Res. 670 (1990), Sep. 25, 1990.

(22) Cuba and Yemen opposed the November initiative by the Council.

(23) SC Res. 678 (1990), Nov. 29, 1990.



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(24) See Schachter, supra note 17, 457–63. See also Thomas M. Franck & F.Patel, ‘UN Police Action in Lieu of War: “The Old Order Changeth”,’ Agora,The Gulf Crisis in International and Foreign Relations Law, 85 Am J Intl L 63(1991); E. V. Rostow, ‘Until What? Enforcement Action or Collective Self-Defense?’ Ibid., 506.

(25) ‘The Security Council has not so far made use of the most coercive[Chapter VII] measures—the action by military force foreseen in Article 42.In the situation between Iraq and Kuwait, the Security Council chose toauthorize Member States to take measures on its behalf.’ An Agenda forPeace. Report of the Secretary-General pursuant to the Statement adoptedby the Summit Meeting of the Security Council on Jan. 31, 1992. A/47/277,S/24111, June 17, 1992, 12.

(26) S/32 and S/34, SCOR, I.1, Supp. 2, 54–5.

(27) Security Council, Apr. 17, 1946, SCOR I.1, No. 2, 167.

(28) Ibid., 185.

(29) Ibid., 192.

(30) GA Res. 39 (1), Dec. 12, 1946. GAOR, 1.2, Resolutions (A/64/Add.1), 63–4.

(31) GA Res. 386 (V), Nov. 4, 1950. GAOR, V, Supp. 20 (A/1775), 16.

(32) UN Doc. S/4382, July 12, 1960.

(33) SG Res. S/4387, July 13, 1960.

(34) UN Doc. S/4389, July 18, 1960.

(35) Rosalyn Higgins, The Development of International Law Through thePolitical Organs of the United Nations (1963).

(36) SC Res. 4426 Aug. 9, 1960.

(37) UN Doc. S/PV.887, 17.

(38) SC Res. S/4741, Feb. 20, 1961.

(39) Ibid., Part A, para. 1.









(40) The Observer, Sep. 17, 1961.

(41) SC Res. 5002, Nov. 24, 1961.

(42) Ibid., para. 9.

(43) UN Doc. S/5038.

(44) SC Res. 216 (1965), Nov. 12, 1965.

(45) SC Res. 217 (1965), Nov. 20, 1965.


(47) SC Res. 232 (1966), Dec. 16, 1966.


(49) Ibid., para. 4. An even more rigorous sanctions regime under Article 41was invoked by the Security Council in SC Res. 253 (1968), May 29, 1968.

(50) J. O. C. Jonah, ‘Differing State Perspectives on the United Nations in thePost-Gold War Perspective,’ ACUNS Reports and Papers No. 4, 11 (1993).

(51) SC Res. 418 (1977), Nov. 4, 1977.


(53) Ibid., preamble.

(54) SC Res. 687 (1991), Apr. 3, 1991.

(55) Schachter, supra note 17, 456.


(57) Ibid., paras. 8, 12.

(58) Ibid., para. 9(iii).

(59) Ibid., para. 9 (1).

(60) Ibid., paras. 5–6.

(61) Ibid., paras. 21–25.
















(62) Agreed Minutes Between the State of Kuwait and the Republic of IraqRegarding the Restoration of Friendly Relations, Recognition and RelatedMatters, Oct. 4, 1963. 485 UNTS No. 7063.

(63) Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonousor Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925.XCIV LNTS (1929), No. 2138.

(64) Convention on the Prohibition of the Development, Production andStockpiling of Bacteriological (Biological) and Toxin Weapons and on TheirDestruction, Apr. 10, 1972, 26 UST 583, 1015 UNTS 163.

(65) Treaty on the Non proliferation of Nuclear Weapons, July 1, 1968, 729UNTS 161.

(66) International Convention Against the Taking of Hostages, Dec. 18, 1979.GA RES. 34/146, 34 UN GAOR Supp. No. 46, 245, UN Doc. A/34/46 (1979).

(67) Ibid, preamble.


(69) Ibid., para. 34.

(70) Carl-August Fleischhauer, The Year of International Law in Review,Address to the 86th Annual Meeting, American Society of International Law,Apr. 4, 1992, 3 (mimeo.).

(71) SC Res. 707 (1991), Aug. 15, 1991, para. 2.

(72) For discussion of this very point see Paul Szasz, UNU Project onInternational Law and Global Change, Draft, Apr. 6, 1992, ch. 14, 22–23(mimeo).

(73) SG/SM/4692, SC/5362, Jan. 31, 1992, 2.

(74) SC Res. 687 (1991), Apr. 3, 1991, para. 5.

(75) SC Res. 689 (1991), Apr. 9, 1991, para. 2.

(76) SC Res. 692 (1991), May 20, 1991, para. 3.

(77) SC Res. 705 (1991), Aug. 15, 1991, para. 2; SC Res. 706 (1991), Aug. 15,1991, paras. 1–4.








(78) SC Res. 712 (1991), Sep. 19, 1991, para. 5.

(79) SC Res. 688 (1991), Apr. 5, 1991, para. 1.



(82) Article 35, by contrast, refers only to the Council’s power ‘to investigatea dispute or situation [which] is likely to endanger the maintenance ofinternational peace and security.’ Article 106, a transitional provision whichmay still be of some current relevance, has never been used.


(84) Ibid.


(86) Fleischhauer, supra note 70, 6.

(87) P. Malanczuk, ‘Humanitarian Intervention and the Legitimacy of the Useof Force,’ Inaugural Lecture, U. of Amsterdam (1993).

(88) Ibid. See also P. Malanczuk, ‘The Kurdish Crisis and Allied Intervention,’ 2(2) Eur J Intl L 114 (1991).

(89) SC Res. 713 (1991), Sep. 25, 1991, preamble.

(90) Ibid.


(92) Ibid., preamble. The Council provided for monitoring compliance with itsembargo in SC Res. 724 (1991), Dec. 15, 1991, which again invokes ChapterVII in para. 5.

(93) SC Res. 727 (1992), Jan. 8, 1992.

(94) SC Res. 743 (1992), Feb. 21, 1992, para. 2.

(95) Ibid., para. 3. See also SC Res. 749 (1992), Apr. 7, 1992, whichauthorizes UNPROFOR’s full deployment.















(97) SC Res. 713 (1991), Sep. 25, 1991.

(98) Report of the Secretary-General Pursuant to Security Council Resolution721 (1991), S/23280, Dec. 11, 1991, 8–9.

(99) S/RES/781 (1992), Oct. 9, 1992.

(100) S/RES/786 (1992), Nov. 10, 1992.

(101) S/RES/816 (1993), Mar. 31, 1993.

(102) S/RES/820 (1993), Apr. 17, 1993.

(103) S/RES/788 (1992), Nov. 19, 1992.

(104) S/RES/864 (1993), Sep. 15, 1993.

(105) S/RES/841 (1993), June 16, 1993. See also S/RES/873 (1993), Oct. 13,1993 and S/RES/875 (1993), Oct. 16, 1993. For a study of the efficacity ofsuch mandated economic sanctions see Lori F. Damrosch (ed.), EnforcingRestraint: Collective Intervention in Internal Conflicts (1993); Ibid., ‘TheEnforcement of International Norms Through Economic Sanctions,’ 8 Ethicsand Intl Aff 59 (1994).

(106) S/RES/794 (1992), Dec. 3, 1992.


(108) Ibid., para. 4.

(109) Ibid., para. 7.

(110) Ibid., para. 10.

(111) NY Times, Mar. 27, 1993.

(112) R. Lillich, ‘Humanitarian Intervention Through the United Nations:Toward the Development of Criteria,’ 53 ZaöRV 557, 570 (1993).










(114) Secretary-General’s Statement at Security Council Summit Meeting, SG/SM/4691/Rev.1, SC/5360/Rev.1, Jan. 31, 1992.

(115) SC Res. 808 (1993), Feb. 22, 1993.

(116) Report of the Secretary-General Pursuant to Paragraph 2 of SecurityCouncil Resolution 808 (1993). S/25704, May 3, 1993, 6.

(117) Ibid., 7.

(118) SC Res. 731, Jan. 21, 1992, preamble.

(119) Ibid., para. 2.

(120) Ibid., para. 3.

(121) SC Res. 748. This resolution was adopted by a vote often in favor, oneopposed, and five abstentions.

(122) Ibid., paras. 4–6.

(123) Ibid., para. 3.

(124) Ibid., at para. 2.

(125) See Sorel, ‘Les Ordonnances de la Cour Internationale de Justice du14 Avril 1992 dans l’Affaire Relative à des Questions d’ Interprétation etd’Application de la Convention de Montréal de 1971 Resultant de I’IncidentAérien de Lockerbie,’ 3 Revue Générale de Droit Intl Pub 689 (1993) andTomuschat, ‘The Lockerbie Case before the IGJ,’ 48 Intl Comm Jur Review 38(1992).

(126) Convention for the Suppression of Unlawful Acts Against the Safety ofCivilian Aviation, Art. 5 (2). Montreal, Sept. 23, 1971. 24 UST 564, 974 UNTS177.

(127) Question of Interpretation and Application of the 1971 MontrealConvention arising from the Aerial Incident at Lockerbie (Libyan ArabJamahiriya v. United Kingdom), Provisional Measures, Order of Apr. 14, 1992,ICJ Reports 1992, 3, para. 4.

(128) Ibid., para. 5.

(129) Ibid., para. 36.












(130) Ibid., para. 39.

(131) Ibid.

(132) Ibid.

(133) Ibid., 19 (Oda Declaration).

(134) Ibid., 26 (Separate Opinion of Judge Lachs).

(135) ICJ Reports 1992 3, para. 27.

(136) Ibid., 32 (Separate Opinion of Judge Shahabuddeen).

(137) Ibid., 61 (Dissenting Opinion of Judge Weeramantry).

(138) See J. Rideau, Jurisdictions Internationales et Contrôle du Respectdes Traités Constitutifs des Organisations Internationales (1969) and Sato,‘An Emerging Doctrine of the Interpretative Framework of ConstituentInstruments as the Constitutions of International Organizations,’ 21Hitotsubashi Jour L and Politics, 1 (1993).









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