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The Security Council’s First Fifty Years

Published online by Cambridge University Press:  27 February 2017

Frederic L. Kirgis Jr.
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Extract

The provisions relating to the Security Council in the United Nations Charter of 1995 do not look much different from those in the Charter of 1945. Articles 23 and 27 were amended in 1965 to increase the membership of the Security Council from its original eleven to its present fifteen, with a corresponding change from seven to nine votes for the adoption of resolutions. No change was made in the five permanent members’ veto power over substantive matters. Article 109 was amended in 1968 to increase from seven to nine the number of votes in the Security Council needed to complement a two-thirds vote in the General Assembly for the convening of a Charter review conference. Otherwise, c’est la même chose.

Type
The United Nations at Fifty
Information
American Journal of International Law , Volume 89 , Issue 3 , July 1995 , pp. 506 - 539
Copyright
Copyright © American Society of International Law 1995

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References

1 The only other Charter amendments did not affect the Security Council. Article 61 has been amended twice—in 1965 to increase the size of the Economic and Social Council from its original 18 to 27, and in 1973 to increase it to its present 54.

2 For a forceful expression of this view, see Yehuda Z. Blum, Eroding the United Nations Charter (1993). Blum discusses not only the Security Council, but other organs as well. Some of the changes Blum criticizes are discussed later in this article.

3 The focus was not solely on international security. See Leland M. Goodrich, From League of Nations to United Nations, 1 Int’l Org. 3 (1947), discussing the influence of the Bruce Committee. That committee was appointed in May 1939 to examine the League’s experience and to make recommendations. Its principal recommendation concerned the establishment of a Central Committee for Economic and Social Questions. Although the Bruce Committee’s report came too late to be implemented by the League, it did influence the preparation of the UN Charter. See Jean Siotis, The Institutions of the League of Nations, in The League of Nations In Retrospect 19, 28 (UN Library and Graduate Inst, of Int’l Stud, symposium, 1983). See also Martin D. Dubin, Toward the Bruce Report: The Economic and Social Programs of the League of Nations in the Avenol Era, in id. at 42.

4 Article 5 of the League of Nations Covenant provided that, except for procedural matters, “decisions at any meeting of the Assembly or of the Council shall require the agreement of all the Members of the League represented at the meeting.”

5 See Brian Urquhart, The UN and International Security after the Cold War, in United Nations, Divided World 81, 101 (Adam Roberts & Benedict Kingsbury eds., 2d ed. 1993). It did not take long for observers to realize that the Military Staff Committee might be ineffective. See Clyde Eagleton, International Government 453–54 (rev. ed. 1948).

6 League of Nations Covenant Art. 15(9). Goodrich, supra note 3, at 15, points out that only 3 of the 66 disputes that came before the League were transferred to the Assembly under this provision.

7 Under Article 15(1) and (2) of the Covenant, any dispute between League members that was likely to lead to a rupture was to be submitted to the Council, with statements of the case. Under Article 15(4), if no settlement was reached, the Council was to publish a report with a statement of the facts—an implicit fact-finding authority—and with its recommendations to the parties. These provisions gave ample authority to the League Council to make quasi-judicial pronouncements, if it wished to do so. Eagleton, however, viewed the Council’s Article 15 authority as that of a conciliator. See Eagleton, supra note 5, at 278.

8 See 1 Evan Luard, A History of the United Nations 44 (1982).

9 See generally id. at 29, 33–34, 45–48; Ruth B. Russell & Jeannette E. Muther, A History of the United Nations Charter 445–55, 531–33, 713–35 (1958).

10 See p. 511 infra.

11 See Luard, supra note 8, at 87.

12 Not all observers were so sanguine. See James L. Brierly, The Covenant and the Charter, 23 Brit. Y.B. Int’l L. 83, 89–90 (1946).

13 See Russell & Muther, supra note 9, at 750–51.

14 See Mohammed Bedjaoui, Du Contrôle de légalité des actes du Conseil de Sécurité, in Nouveaux Itinéraires en droit: Hommage à Francois Rigaux 69, 73–74 (1993).

15 See, e.g., Sean D. Murphy, The Security Council, Legitimacy, and the Concept of Collective Security After the Cold War, 32 Colum. J. Transnat’l L. 201, 252–69 (1994).

16 See Russell & Muther, supra note 9, at 760.

16 See Josef L. Kunz, The Legal Position of the Secretary General of the United Nations, 40 AJIL 786, 790–91 (1946).

18 See Manley O. Hudson, The Twenty-fourth Year of the World Court, 40 AJIL 1 (1946) (presenting an article-by-article comparison of the new Statute with the old).

19 See Russell & Muther, supra note 9, at 661.

20 Id. at 895–96.

21 Professor Sohn has noted that it did not take long for the Security Council to abandon its practice of referring matters to a committee of legal experts. See Louis B. Sohn, The UN System as Authoritative Interpreter of Its Law, in 1 United Nations Legal Order 169, 227 (Oscar Schachter & Christopher C. Joyner eds., 1995) [hereinafter UN Legal Order].

22 Admission of a State to the United Nations (Charter, Art. 4), 1948 ICJ Rep. 57, 64 (Advisory Opinion of May 28).

23 UN Doc. A/AC.21/13 (1948), in UN SCOR, 3d Sess., Supp. for Jan., Feb. & Mar. 1948, at 14.

24 UN SCOR, 3d Sess., 253d mtg., at 265 (1948).

25 See Sydney D. Bailey, The Procedure of the Security Council 214–23 (2d ed. 1988). The double vetoes related to the Spanish question in 1946, id. at 216; the Greek frontier question in 1947, id. at 218–19; and the Czechoslovak question in 1948, id. at 219–20.

26 Doc. 852, III/1/37 (1), 11 U.N.C.I.O. Docs. 710, 714 (1945).

27 UN Doc. A/900, at 7 (1949).

28 See U.S. Dep’t of State, Conf. Ser. No. 71, Report to the President on the Results of the San Francisco Conference 71–77 (1945); [1945] I Foreign Relations of the United States 1258–60.

29 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council resolution 276 (1970), 1971 ICJ Rep. 16, 22 (Advisory Opinion of June 21) [hereinafter Namibia].

30 74 Dep’t St. Bull. 118, 119 (1976).

31 See Blum, supra note 2, at 196–98.

32 Id. at 204–05. Blum surveys Security Council practice extending beyond the early years, id. at 204–11.

33 For discussion of several instances since 1946, see Bailey, supra note 25, at 225–31.

34 See La Charte des Nations Unies 506–07 (Jean-Pierre Cot & Alain Pellet eds., 2d ed. 1991) [hereinafter Cot & Pellet].

35 Id. at 505–06.

36 See Blum, supra note 2, at 211–15. As to the Mayotte matter, see Frederic L. Kirgis, Jr., International Organizations in Their Legal Setting 196–202 (2d ed. 1993).

37 Namibia, 1971 ICJ Rep. at 23.

38 See p. 507 supra.

39 A caveat: If a preliminary determination that a dispute exists would be procedural (and thus immune from the veto), nine Council members could force the hand of a permanent member by adopting a resolution characterizing the matter as a dispute and could then make it very difficult for the permanent member to justify voting on the merits. This type of preliminary determination is not among the matters deemed procedural in GA Res. 267 (III), supra note 27. The question whether it would be procedural was raised in the Security Council in 1946, but was not resolved. See Blum, supra note 2, at 201–02.

40 Clyde Eagleton, The Jurisdiction of the Security Council over Disputes, 40 AJIL 513, 528, 530 (1946).

41 See E. M. Miller (Oscar Schachter), Legal Aspects of the United Nations Action in the Congo, 55 AJIL 1, 4 (1961). Schachter said that “Article 40 could appropriately be considered as the applicable provision.” Id. at 5.

42 Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter), 1962 ICJ Rep. 151, 177 (Advisory Opinion of July 20) [hereinafter Expenses].

43 To the same effect, though without explicitly reiving on Security Council practice, see Vera Gowlland-Debbas, Security Council Enforcement Action and Issues of State Responsibility, 43 Int’l & Comp. L.Q. 55, 61 (1994).

44 See, e.g., U.N. Sanctions against Rhodesia—Chrome: Hearings Before the Senate Comm. on Foreign Relations, 92d Cong., 1st Sess. 37–38 (1971) (statement of Dean Acheson); Charles G. Fenwick, When Is There a Threat to the Peace?—Rhodesia, 61 AJIL 753 (1967).

45 See Thomas M. Franck, Fairness in the International Legal and Institutional System, 240 Recueil des Cours 9, 202–04 (1993 III).

46 SC Res. 733, UN SCOR, 47th Sess., Res. & Dec. at 55, UN Doc. S/INF/48 (1992).

47 See UN Doc. S/FV.3039 (1992).

48 See UN Doc. S/23507, at 1, 5 (1992).

49 See generally Franck, supra note 45, at 202.

50 SC Res. 794, UN SCOR, 47th Sess., Res. & Dec. at 63, UN Doc. S/INF/48 (1992).

51 Id.

52 UN Docs. S/24859 & S/24868 (1992).

53 UN Doc. S/24868, at 1 (1992).

54 UN Doc. S/PV.3145, at 14 (Ecuador), 19–20 (Cape Verde, mentioning also, but without elaboration, peril to the stability and security of the region), 29–31 (France), 34 (the United Kingdom), 38 (the United States), 46 (Morocco) (1992).

55 Ruth Gordon, United Nations Intervention in Internal Conflicts: Iraq, Somalia, and Beyond, 15 Mich. J. Int’l L. 519, 554 (1994); see also id. at 572–73.

56 SC Res. 841, UN SCOR, 48th Sess., Res. &. Dec. at 119, UN Doc. S/INF/49 (1993), reprinted in 32 ILM 1206 (1993).

57 See UN Doc. S/PV.3238, at 11–12 (1993). For further discussion of the UN involvement in Haiti, see Gordon, supra note 55, at 557–60, 573–74.

58 SC Res. 940 (July 31, 1994), reprinted in 5 Dep’;t St. Dispatch 555 (1994).

59 UN Doc. S/1994/FV.3413 passim (1994).

60 Id. at 4, 9–10 (concerns expressed by Mexico and Brazil).

61 SC Res. 864, UN SCOR, supra note 56, at 59.

62 See UN Doc. S/PV.3277, at 31-32, 41 (1993) (statements by Spain and the United Kingdom).

63 Id. at 16, 48 (Egypt and Hungary).

64 Id. at 22 (Portugal).

65 Id. at 28 (China).

66 Id. at 46 (Russia).

67 SC Res. 731, UN SCOR, 47th Sess., Res. & Dec. at 51, 52, UN Doc. S/INF/48 (1992).

68 SC Res. 748, id. at 52.

69 See UN Doc. S/PV.3033, at 47 (Canada), 79–80 (the United States), 82 (France), 87 (Russia), 91 (Hungary), 92 (Austria), 94 (India), 103–06 (the United Kingdom, stressing Libyan government involvement) (1992); UN Doc. S/PV.3063, at 67 (the United States), 68–69 (the United Kingdom) (1992).

70 See, e.g., UN Doc. S/PV.3033, at 103, 106 (1992).

71 See Benedetto Conforti, Le Pouvoir discrétionnaire du Conseil de Sécurité en matière de constatation d’une menace contre la paix, d’une rupture de la paix ou d’un acte d’agression, in The Development of the Role of the Security Council 51, 60 (René-Jean Dupuy ed., 1993) [hereinafter Role of Security Council].

72 See UN Doc. S/PV.3063, at 6, 13–15, 18 (Libya), 32 (Mauritania), 39–40 (Uganda), 46 (Cape Verde), 52–53 (Zimbabwe), 58 (India) (1992).

73 Sept. 23, 1971, 24 UST 564, 974 UNTS 177, reprinted in 10 ILM 1151 (1971).

74 See UN Charter Arte. 24, 25, 103.

75 See generally Franck, supra note 45, at 217–18.

76 See Abraham D. Sofaer, Terrorism and the Law, 64 Foreign Aff. 901, 921 (1986).

77 See Wash. Post, Apr. 27, 1993, at Al.

78 Hereinafter “the Yugoslavia Tribunal.”

79 SC Res. 827, UN SCOR, supra note 56, at 29, reprinted in 32 ILM 1203 (1993), adopting the Statute of the Yugoslavia Tribunal as set forth in UN Doc. S/25704, annex (1993), reprinted in 32 ILM 1192 (1993).

80 Hereinafter “the Rwanda Tribunal.”

81 Statute of the Rwanda Tribunal, SC Res. 955, annex (Nov. 8, 1994), reprinted in 33 ILM 1602 (1994).

82 Statute of the Yugoslavia Tribunal, supra note 79, Art. 29(2) (e); Statute of the Rwanda Tribunal, supra note 81, Art. 28(2) (e).

83 SC Res. 827, supra note 79, para. 4; SC Res. 955, supra note 81, para. 2.

84 Madeleine K. Albright, Agenda for Dignity, 4 Dep’t St. Dispatch 803, 806 (1993). Ambassador Albright’s reference to “sanctions” presumably was to chapter VII sanctions.

85 See Oscar Schachter, The UN Legal Order: An Overview, in 1 UN Legal Order, supra note 21, at 1, 13–14.

86 For somewhat different enumerations of factors that might “internationalize” an internal conflict, see Oscar Schachter, The United Nations and Internal Conflict, in Law and Civil War in the Modern World 401, 409–15 (John Norton Moore ed., 1974); Paul C. Szasz, Role of the United Nations in Internal Conflicts, 13 Ga. J. Int’l & Comp. L. 345, 347–51 (1983). See also Gordon, supra note 55, at 539–40, 544–45, 579.

87 Bothe finds the principle of proportionality running through municipal and international public law. He concludes, “Il est donc possible de conclure que le principe de la proportionalité constitue en effet un principe général qui limite l’exercice de certains pouvoirs de l’autorité publique.” Michael Bothe, Les Limites des pouvoirs du Conseil de Sécurité, in Role of Security Council, supra note 71, at 67, 78. In the sphere of interstate countermeasures, it has been recognized that the proportionality principle is applicable, but should not be applied strictly. See Case Concerning the Air Service Agreement of 27 March 1946 (U.S. v. Fr.), 18 R.I.A.A. 417, 54 ILR 304, 338 (1978). No less leeway, and perhaps somewhat greater leeway, should be given when the Security Council adopts countermeasures under chapter VII.

88 The distinction is essentially between legitimate enforcement action and retribution. Article 24(2) of the Charter requires the Security Council to act in accordance with the purposes and principles of the United Nations. The first purpose mentioned in Article 1 is to maintain international peace and security. No mention is made of punishment or retribution to be imposed on a state or other entity diat threatens or breaches the peace. Punishment of individuals responsible for breaches of the peace or acts of aggression might be said to contribute to restoration of peace and security, and therefore to be legitimate, but retribution that affects powerless individuals within the state or territory would seem to go beyond what would normally be needed. Article 41 sanctions imposed and maintained while an actual threat to the peace or breach of the peace is occurring often affect powerless individuals, but probably cannot be considered disproportionate so long as an effort is made to gauge them to the seriousness of the situation and the sanctions allow basic supplies such as food and medicine to go through. Economic sanctions are by their nature blunt instruments. They illustrate why the principle of proportionality is inevitably a principle of avoiding excessive disproportionality.

89 UN Doc. S/PV.3063, at 54–55 (1992). At that time, there were 175 UN members.

90 Cf. Vera Gowlland-Debbas, The Relationship between the International Court of Justice and the Security Council in the Light of the Lockerbie Case, 88 AJIL 643, 663–65 (1994). See generally Bedjaoui, supra note 14, at 88–110.

91 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. UK; Libya v. U.S.), Provisional Measures, 1992 ICJ Rep. 3, 114 (Orders of Apr. 14). See Bothe, supra note 87, at 69, 80; Thomas M. Franck, The “Powers of Appreciation”: Who Is the Ultimate Guardian of UN Legality?, 86 AJIL 519 (1992); Franck, supra note 45, at 218–21; Gowlland-Debbas, supra note 43, at 97; Geoffrey R. Watson, Constitutionalism, Judicial Review, and the World Court, 34 Harv. Int’l L.J. 1, 22–28 (1993). Professor Watson’s article is a thorough review and analysis of judicial review by the ICJ.

92 W. Michael Reisman, The Constitutional Crisis in the United Nations, 87 AJIL 83, 93 (1993).

93 Provisional Rules of Procedure of the Security Council, Rule 48, UN Doc. S/96/Rev.7 (1983).

94 For the Council’s practice in this regard, see Anthony Aust, The Procedure and Practice of the Security Council Today, in Role of Security Council, supra note 71, at 365, 366–67.

96 Bailey, supra note 25, at 41.

96 Id. at 233.

97 See the French aide-mémoire concerning the working methods of the Security Council, UN Doc. A/49/667–S/1994/1279, at 3 (1994). See also the reports of Security Council presidential statements, e.g., UN Doc. S/PV.3436, at 2 (1994).

98 This was true, for example, of the resolutions on Somalia and Libya. See UN Docs. S/PV.S039, at 2, S/ PV.3063, at 2, & S/PV.3145, at 3 (1992).

99 See James O. C. Jonah, Differing State Perspectives on the United Nations in the Post-Cold War World 12 (ACUNS Rep. & Papers No. 4, 1993).

100 See id. at 11; Reisman, supra note 92, at 85–86.

101 See UN Doc. A/49/667-S/1994/1279, supra note 97, at 2, 5–6. The Council has taken a step in the right direction. See UN DOC. S/PRST/1994/81–S/PV.3483, at 28 (1994).

102 See Bailey, supra note 25, at 233.

103 UN Doc. S/PRST/1994/62.

104 UN Doc. S/PRST/1994/41 (Libya).

105 UN Doc. S/PRST/1994/45 (measures against UNITA).

106 UN Docs. S/PRST/1994/40 (specific terrorist acts), S/PRST/1994/44 (impediments to movement of UNPROFOR), S/PRST/1994/52 (offensive military action in Angola), & S/PRST/1994/57 (attack on UNPRO-FOR troops).

107 UN Docs. S/PRST/1994/42 (warning Government of Rwanda against reprisals), S/PRST/1994/57 (warning Bosnian Serbs against retaliation and against interference with functioning of Sarajevo airport).

108 UN Doc. S/PRST/1994/56 (views and recommendations to be submitted to the Council regarding provisional cease-fire in Tajikistan).

109 UN Doc. S/PRST/1994/55 (suspension of Rule 18 to skip Rwanda’s scheduled turn for presidency of the Council).

110 UN Docs. S/PRST/1994/53 (detention and mistreatment of UNOMIL observers in Liberia “are in flagrant violation of international humanitarian law”), S/PRST/1994/59 (provisions of the Convention Relating to the Status of Refugees do not apply to persons fleeing from Rwanda to escape prosecution for breaches of international humanitarian law or for acts of genocide). Regarding quasi-judicial pronouncements by the Council, see p. 527 infra.

111 Bhaskar Menon, Security Council Statements in 1994: A New Genre, Int’l Docs. Rev., No. 45–46, Dec. 31, 1994, at 4. Menon provides a summary of the presidential statements issued throughout 1994. Id. at 4–6.

112 Edward Yemin, Legislative Powers in the United Nations and Specialized Agencies 6 (1969).

112 See the authorities cited in Oscar Schachter, United Nations Law in the Gulf Conflict, 85 AJIL 452, 464 nn. 33, 34 (1991). Eagleton, supra note 5, at 450, noted that “the Security Council will actually have no jurisdiction” over a case of armed aggression until Article 43 agreements are concluded. Hans Kelsen, The Law of the United Nations 756 (1950), said that “Article 106 evidendy presupposes that the Security Council cannot take an enforcement action involving the use of armed force if not a sufficient number of special agreements referred to in Article 43 have been concluded.”

114 See Burns H. Weston, Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy, 85 AJIL 516, 519 (1991). Weston also expresses concern about the Security Council’s disinclination to identify the specific source of its authority when it authorizes the use of armed force, as in the case of Resolution 678 (against Iraq). Id. at 518–22.

115 See Robert C. Hilderbrand, Dumbarton Oaks: The Origins of the United Nations and the Search for Postwar Security 156 (1990).

116 If Article 43 agreements had been successfully negotiated, the Military Staff Committee probably would have emerged as a significant participant in UN enforcement action. The United States was a vigorous proponent of Article 43 agreements, but the Soviet Union frustrated the effort because it saw the agreements as vehicles for stationing U.S. and other Western forces in forward positions that would threaten the USSR. See Frederic L. Kirgis, Jr., The United States Commitment to the Norms of the United Nations and Its Related Agencies, 1 Transnat’l L. & Contemp. Probs. 125, 130–31 (1991); Oscar Schachter, Authorized Uses of Force by the United Nations and Regional Organizations, in Law and Force in the New International Order 65, 71–72 (Lori Fisler Damrosch & David J. Scheffer eds., 1991).

117 See, e.g., David J. Scheffer, Commentary on Collective Security, in Law and Force in the New International Order, supra note 116, at 100, 106.

118 See Franck, supra note 45, at 286; Schachter, supra note 113, at 464.

119 On implied UN powers dictated by functional necessity, see Reparation for injuries suffered in the service of the United Nations, 1949 ICJ Rep. 174, 179, 182 (Advisory Opinion of Apr. 11). See also Expenses, 1962 ICJ Rep. at 167 (expressing the Court’s view that UN authorization of armed force in the Middle East and the then-Congo did not have to be based on Article 42).

120 SC Res. 678, UN SCOR, 45th Sess., Res. & Dec. at 27–28, UN Doc. S/INF/46 (1990), reprinted in 29 ILM 1565 (1990). See Schachter, supra note 113, at 457–61 (making the case for Article 51 as the Charter source of Res. 678). See also Schachter, supra note 116, at 78–79. But see Murphy, supra note 15, at 226–29 (expressing reservations about the Article 51 explanation).

121 SC Res. 83, UN SCOR, 5th Sess., Res. & Dec. at 5, UN Doc. S/INF/5/Rev.1 (1950). See Schachter, supra note 116, at 78.

122 See Philippe Weckel, Le Chapitre VII de la Charte et son application par le Conseil de Sécurité, 37 Annuaire Francais de Droit International 165, 166–67 (1991); Cot & Pellet, supra note 34, at 774.

123 Cf Schachter, supra note 116, at 67; Weston, supra note 114, at 520–21, 528–32.

124 See Hilderbrand, supra note 115, at 138.

125 See the remarks of Michael Reisman in the panel entitled The Costs and Benefits of Economic Sanctions: The Bottom Line, 89 ASIL Proc. (forthcoming 1995).

126 See Statute of the Yugoslavia Tribunal, supra note 79; Statute of the Rwanda Tribunal, supra note 81.

127 See the Secretary-General’s explanation of the basis for the Yugoslavia Tribunal, in UN Doc. S/25704, supra note 79, at 8. Article 29 was adopted without discussion at San Francisco. See Russell & Muther, supra note 9, at 1068.

128 It may not be necessary to rely on an implied power. Express authority might be found in Article 41. See ABA Task Force, Report on the International Tribunal to Adjudicate War Crimes Committed in the Former Yugoslavia 10–11 (Monroe Leigh, Chair, 1993) [hereinafter ABA REPORT]; Christopher C. Joyner, Enforcing Human Rights Standards in the Former Yugoslavia: The Case for an International War Crimes Tribunal, 22 Deny. J. Int’l L. & Pol’y 235, 257 (1994).

129 See UN Doc. A/48/170–S/25801, at 3 (1993).

130 Early uses of Article 29 fell into three categories: standing commissions or committees meeting at UN headquarters; commissions or committees dealing with particular political matters, meeting in the field; and ad hoc drafting and other committees not of a judicial character. See Leland M. Goodrich, Edvard Hambro & Anne Patricia Simons, Charter of the United Nations 236 (3d rev. ed. 1969).

131 As the Secretary-General noted, the Yugoslavia Tribunal “would not be subject to the authority or control of the Security Council with regard to the performance of its judicial functions.” UN Doc. S/25704, supra note 79, at 8.

132 But see ABA Report, supra note 128, passim (expressing some concerns about possible issues of fairness). See also Jose E. Alvarez, The Once and Future Security Council, Wash. Q., Spring 1995, at 5, 11.

133 UN Doc. S/25704, supra note 79, at 8.

134 See especially Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, Art. 130, 6 UST 3316, 75 UNTS 135; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Art. 147, 6 UST 3516, 75 UNTS 287.

135 Convention [No. IV] Respecting the Laws and Customs of War on Land, Annex, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631.

136 Reported in Wash. Post, Jan. 17, 1994, at A19.

137 See James C. O’Brien, The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia, 87 AJIL 639, 646–47 (1993). O’Brien also makes the point that the Tribunal could apply common Article 3 of the Geneva Conventions (on noninternational conflict) if necessary, even though there may be doubt whether that article would give rise to individual criminal responsibility in the absence of the Statute. Id. at 647.

138 See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature Dec. 12, 1977, 1125 UNTS 609, reprinted in 16 ILM 1442 (1977). As noted by O’Brien, supra note 137, at 646, the Yugoslav War Crimes Tribunal might apply common Article 3 and Protocol II even though the Statute of that Tribunal does not expressly direct it to do so.

139 Statute of the Yugoslavia Tribunal, supra note 79, Arts. 9(2), 10(1); Statute of the Rwanda Tribunal, supra note 81, Arts. 8(2), 9(1).

140 The term “directive” is used advisedly here and in connection with the Security Council’s force majeure pronouncement in Resolution 687, discussed in text at note 142 infra. The effect of these pronouncements on UN member states is similar to the effect on European Union states of formal directives issued by the institutions of the Union. See Treaty on European Union (Feb. 7, 1992) Art. 189.

141 See text at note 119 supra.

142 This is the effect of SC Res. 687, para. 29, UN SCOR, 46th Sess., Res. & Dec. at 11, 15, UN Doc. S/INF/ 47 (1991), reprinted in 30 ILM 847, 854 (1991).

143 SC Res. 757, para. 9, UN SCOR, 47th Sess., Res. & Dec. at 13, 15, UN Doc. S/INF/48 (1992), reprinted in 31 ILM 1453, 1457 (1992).

144 SC Res. 687, supra note 142, paras. 18, 19, 30 ILM at 852.

145 SC Res. 692, UN SCOR, supra note 142, at 18.

146 UN Doc. S/22559, at 8–9 (1991), reprinted in 30 ILM at 1706, 1709.

147 Id. at 3, 30 ILM at 1706–07.

148 For further explication of the points made in this paragraph, see Frederic L. Kirgis, Jr., Claims Settlement and the United Nations Legal Structure, in The United Nations Compensation Commission 103, 110–13 (13th Sokol Colloquium on Private International Law, Richard B. Lillich ed., 1995). See also Murphy, supra note 15, at 238–39 (noting that the Compensation Commission’s credibility might be enhanced if Iraq were allowed to participate more significandy than has been the case).

149 SC Res. 705 & 706, UN SCOR, supra note 142, at 21.

150 SC Res. 778, UN SCOR, supra note 143, at 72.

151 Namibia, 1971 ICJ Rep. at 52.

152 SC Res. 276, UN SCOR, 25th Sess., Res. & Dec. at 1, 2, UN Doc. S/INF/25 (1970).

153 Namibia, 1971 ICJ Rep. at 52–53.

154 UN SCOR, 2d Sess., 91st mtg. at 45 (1947).

155 See Doc. 597, III/1/30, 11 U.N.C.I.O. Docs. 393–95 (1945); see also Kelsen, supra note 113, at 284–85 n.6. The proposed amendment received a favorable vote of 14–13, but failed because it lacked the necessary two-thirds majority. 11 U.N.C.I.O. Docs, at 395.

156 See Goodrich, Hambro & Simons, supra note 130, at 204–05. See also 2 Repertory of United Nations Practice 19, UN Sales No. 1955.V.2 (Vol. II) (1955).

157 See United Nations Resolutions and Declarations, 1975 U.S. Digest §4, at 88–90.

158 See Doc. 750, IV/2/B/1, 13 U.N.C.I.O. Docs. 831–32 (1945).

159 See Sohn, supra note 21, at 174.

160 See, e.g., Eagleton, supra note 5, at 450. Russell & Muther, supra note 9, at 465–66, point out that at Dumbarton Oaks China raised the question who was to judge whether a state was using force aggressively or defensively. The consensus was that it was probably the Security Council.

161 Vera Gowlland-Debbas has usefully distinguished peaceful setdement procedures (which in my view would include, but not be limited to, the Security Council’s chapter VI functions) and institutionalized countermea-sures (which are imposed under chapter VII, based on determinations under Article 39). See Gowlland-Debbas, supra note 43, at 73.

162 That nonbinding decisions may be judicial in nature is shown by the authority of the ICJ to issue nonbinding advisory opinions. See UN Charter Art. 96; ICJ Statute Arts. 65–68. The League of Nations Council had a mediation function that clearly was quasi-judicial in the sense used above, even though it did not result in binding awards. See note 7 supra.

163 See Russell & Muther, supra note 9, at 663–64; Goodrich, Hambro & Simons, supra note 130, at 284.

164 Goodrich, Hambro & Simons, supra note 130, at 283.

165 Id. at 285; Cot & Pellet, supra note 34, at 629.

166 On the interpretation and effect of Article 38, see Goodrich, Hambro & Simons, supra note 130, at 288–89.

167 SC Res. 958 (Nov. 19, 1994).

168 A fortiori, when the Council declares a violation of municipal law, as it did in SC Res. 169, para. 8, UN SCOR, 16th Sess., Res. & Dec. at 3, 5, UN Doc. S/INF/16/Rev.1 (1961) (declaring that secessionist activities against the Republic of the Congo violated its Loi fondamentale).

169 See SC Res. 955, supra note 81, preamble (in the context of the situation in Rwanda).

170 Namibia, 1971 ICJ Rep. at 147 (Onyeama,J., sep. op.).

170 See, e.g., SC Res. 799, para. 2, UN SCOR, supra note 143, at 6.

172 UN Doc. S/19443, at 9 (1988), reprinted in 27 ILM 1684, 1692 (1988).

173 For several examples, see Elihu Lauterpacht, Aspects of the Administration of International Justice 39–41 (1991).

174 SC Res. 687, supra note 142, para. 16, 30 ILM at 852.

175 See, e.g., UN Doc. S/AC26/1992/9, para. 2, reprinted in 31 ILM 1037, 1037 (1992) (stating that paragraph 16 of Resolution 687 is “[t]he basic premise underlying all of the findings concerning business losses”).

176 The International Law Commission rejected the “direct/indirect damage” dichotomy, and provisionally substituted as the test: “the presence of a clear and unbroken causal link between the unlawful act and the injury.” Commentary to Draft Articles on State Responsibility, pt. 2, Art. 8, Report of the International Law Commission to the General Assembly, UN GAOR, 48th Sess., Supp. No. 10, at 172, UN Doc. A/48/10 (1993). For more on this point, see Kirgis, supra note 148, at 107–09.

177 SC Res. 687, supra note 142, para. 17, 30 ILM at 852.

178 See Restatement (Third) of the Foreign Relations Law of the United States §712(2) (1987).

179 See Expenses, 1962 ICJ Rep. at 166, 177. Cf. Schachter, supra note 116, at 82 (noting that chapter VII was the basis for mandatory Security Council decisions affecting the Congo, even though they were not enforcement action).

180 Arguably, by singling out Iraq’s repudiation of its foreign debt and failing to respond when other governments have repudiated their debts—sometimes on a massive scale—the Council was acting inconsistently with the principle of sovereign equality of all members, found in Article 2(1). The ICJ said in the Expenses case that, “if an expenditure were made for a purpose which is not one of the purposes of the United Nations, it could not be considered an ‘expense of the Organization’.” 1962 ICJ Rep. at 167. It would seem equally true that a Security Council decision made inconsistently with the principles of the United Nations could not be considered a “decision of the Security Council” under Article 25—if an authoritative decision maker determines that the decision is inconsistent with the principles of the United Nations. The audioritative decision maker cannot be each member government, deciding according to its own lights. Chaos would result, and the Security Council’s effectiveness would be undermined.

181 SC Res. 687, supra note 142, para. 2, 30 ILM at 849. See Agreed Minutes Between Kuwait and Iraq Regarding the Restoration of Friendly Relations, Recognition and Related Matters, Oct. 4, 1963, 485 UNTS 321, 326, reprinted in 30 ILM at 855.

182 See Iraqi documents reprinted in 13 Hous. J. Int’l L. 282, 284, & 286, 288 (1991).

183 See Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 46, 1155 UNTS 331, reprinted in 8 ILM 679, 697 (1969).

184 As Professor Alvarez, supra note 132, at 7, has put it: “For the first time, the UN told a supposedly sovereign state what its borders are supposed to be … .” But see John F. Murphy, Force and Arms, in 1 UN Legal Order, supra note 21, at 247, 273–74.

185 See UN Doc. S/22456, annex (1991).

186 Franck, supra note 45, at 205, reaches the same conclusion. See also Alvarez, supra note 132, at 7; Gowlland-Debbas, supra note 43, at 83.

187 Russell & Muther, supra note 9, at 458–59.

188 Id. at 664. China and the Soviet Union went along as well. Id.

189 See id. at 669–70; see also Goodrich, supra note 3, at 8. Article 39 authorizes the Security Council to “make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”

190 SC Res. 687, supra note 142, para. 4, 30 ILM at 850. The Council later reiterated its guarantee and its decision to take, as appropriate, “all necessary measures to that end.” SC Res. 773, para. 4, UN SCOR, supra note 143, at 72.

191 Russell & Muther, supra note 9, at 604.

192 See UN Doc. S/PV.3108, at 3 (1992).

193 Id. at 3–4. Ecuador made a legal argument to the effect that Article 36 of the Charter does not grant the Security Council competence under chapter VII to pronounce itself on a territorial boundary. Id. at 3. Article 36 is in chapter VI, and does not affect the Council’s chapter VII powers. Perhaps Ecuador meant that the Council was attempting to do under chapter VII what it could legitimately do only under chapter VI, and then only in nonbinding fashion.

194 Id. at 6.

195 Mat 7.

195 It does not seem viable to argue that Resolution 687 has no precedential value at all. Before it was adopted, six nonaligned members of the Security Council proposed an amendment to it that would have called the circumstances unique, requiring unprecedented actions “which do not set undue precedents.” See Int’l Docs. Rev., No. 11, Apr. 8, 1991, at 4. The amendment was rejected, leaving open the possible future use of the resolution as a precedent. Whether it will be strictly limited to the facts that gave rise to it is an unresolved question.

197 For elaboration of this point, see Lauterpacht, supra note 173, at 42–43.

198 Brian Urquhart, The United Nations, Collective Security, and International Peacekeeping, in Negotiating World Order: The Artisanship and Architecture of Global Diplomacy 59, 62 (Alan K. Henrikson ed., 1986).

199 As of mid-December 1994, 17 UN peacekeeping operations were in the field—9 of them traditional, the other 8 “multifunctional.” This was up from 5 in January 1988—all of them traditional. The number of military personnel deployed increased from 9,570 in January 1988 to 73,393 in December 1994. See Boutros Boutros-Ghali, Supplement to An Agenda for Peace: Position Paper of the Secretary-General on the Occasion of the Fiftieth Anniversary of the United Nations, UN Doc. A/50/60–S/1995/1, at 4 (1995).

200 The aide-mémoire between Egypt and the United Nations on the presence and functioning of UNEP said that the United Nations reaffirmed “its willingness to maintain UNEF until its task is completed.” UN Doc. A/3375, annex, UN GAOR, 11th Sess., 2 Annexes, Agenda Item 66, at 9 (1956). Dag Hammarskjöld, the Secretary-General in 1956, recorded his interpretation of the text. He said that if Egypt were to request withdrawal of UNEF, the General Assembly would take up the matter. “If [the General Assembly] found that the task was not completed and Egypt, all the same, maintained its stand and enforced the withdrawal, Egypt would break the agreement with the United Nations.” Hammarskjöld Aide-Mémoire at 7 (Aug. 5, 1957), reprinted in 6 ILM 595, 601 (1967).

201 See Thomas M. Franck, Nation Against Nation 89–91 (1985).

202 GA Res. 1000 (ES–I), UN GAOR, 1st Emergency Special Sess., Supp. No. 1, at 2, UN Doc. A/3354 (1956).

203 SC Res. 143, UN SCOR, 15th Sess., Res. & Dec. at 5, UN Doc. S/INF/15/Rev.1 (1960).

204 See UN Doc. S/4523 (1960).

205 GA Res. 377A, UN GAOR, 5th Sess., Supp. No. 20, at 10, UN Doc. A/1775 (1950). The General Assembly resolution that took over from the Security Council in the Congo situation was GA Res. 1474 (ES–IV), UN GAOR, 4th Emergency Special Sess., Supp. No. 1, at 1, UN Doc. A/4510 (1960). Eastern European governments challenged the constitutionality of the Uniting for Peace Resolution when it was adopted. See the arguments described in Miller (Schachter), supra note 41, at 21–22. Western commentators at the time generally found an adequate legal justification for it. See, e.g., L. Cavaré, Les Sanctions dans te cadre de l’O.N.U., 80 Recueil des Cours 191, 281–82 (1952 I); Francis Vallat, The General Assembly and the Security Council of the United Nations, 29 Brit. Y.B. Int’l L. 63, 96–100 (1952); Lester H. Woolsey, The “Uniting for Peace” Resolution of the United Nations, 45 AJIL 129, 133–35 (1951) (expressing some doubt about part C, on maintaining national armed units for the use of the General Assembly as well as of the Security Council).

206 See text at note 41 supra.

207 Expenses, 1962 ICJ Rep. at 163–64, 166–67, 177.

208 See Schachter, supra note 116, at 84–85.

209 UN Doc. S/4775, UN SCOR, 16th Sess., Supp. for Jan., Feb. & Mar. 1961, at 261, 262–63, 269.

210 For a full account of the ONUC experience, see Georges Abi-Saab, The United Nations Operation in the Congo 1960–1964 (1978).

211 SC Res. 837, UN SCOR, supra note 56, at 83, “reaffirming” under chapter VII a none-too-clear authorization in a previous resolution. An investigation commissioned by the Secretary-General found convincing evidence that General Aidid and his faction were responsible. See UN Doc. S/26351, annex (1993).

212 SC Res. 757, supra note 143; SC Res. 787, UN SCOR, supra note 143, at 29; SC Res. 820, id., supra note 56, at 7; SC Res. 942 (Sept. 23, 1994). In addition, several Security Council resolutions authorized the use of armed force to protect UN safe areas in Bosnia. These resolutions were ostensibly directed against any party that violated the safety of the areas, but as a practical matter they were directed against the Bosnian Serbs and their supporters.

213 Boutros-Ghali, supra note 199, at 8–9.

214 Id. at 6.

215 Id.

216 SC Res. 687, supra note 142, paras. 8–13, 30 ILM at 850–52.

217 On the use of the “reverse veto” to prevent the Security Council from terminating or altering an enforcement regime it has imposed, see David D. Caron, The Legitimacy of the Collective Authority of the Security Council, 87 AJIL 552, 577–88 (1993).

218 Boutros-Ghali, supra note 199, at 16.

219 UN Doc. A/47/277–S/24111, at 7–10 (1992), reprinted in 31 ILM 953, 960–63.

220 Boutros-Ghali, supra note 199, at 7–8.

221 Id. at 8.

222 In Expenses, 1962 ICJ Rep. at 177, the ICJ equated “preventive or enforcement measures” with “enforcement action” for purposes of UN Charter Article 11(2).

223 The push for a more representative Security Council is not new. It dates all the way back to 1945 at San Francisco. See Doc. 881, III/3/46, 12 U.N.C.I.O. Docs. 502, 503–04 (1945). See also Luard, supra note 8, at 50–51; Russell & Muther, supra note 9, at 443–44, 646–54.