LAWS2250 Lecture Notes - Lecture 10: Member States Of The United Nations, United Nations Security Council Resolution 678, United Nations Operation In The Congo
ENFORCEMENT MEASURES
a. UN Charter Terminology: ‘Measures’ and ‘Action’ – concepts considered (and related
to ‘Sanctions’).
b. The determination under article 39 UNC
i. Criteria: threat, breach or act of aggression, if decide can go to art.41 or 42
ii. A political decision with legal consequences (Bosnia Genocide (2007))
If the Council decides a matter is a genocide, it does not mean it is genocide for the
purpose international law
iii. Options once an article 39 determination has been made: recommendations
(Chapter VI UNC), provisional measures (article 40 UN Charter), decisions
(articles 41 or 42 UN Charter). Note Chapter VII measure as an exception to
article 2(7) UN Charter.
c. Non-forcible measures under article 41 UN Charter
i. Non-exhaustive
ii. Decision
iii. Execution/implementation of article 41 measures is delegated
iv. Illustrations
i. SC Resolution 660 (1990): sanctions, creation of a Sanctions
Committee and obligation of non-recognition (ex injuria jus non
oritur)
ii.What else can be done under article 41 UN Charter?
1. Creation of a jurisdictional body: Tadic Interlocutory Appeal
(1995)
2. ‘Legislation’ against terrorism...? (briefly noted)
3. ‘Quasi-judicial’ activity...? (briefly noted)
d. Measures involving the use of force under article 42 UN Charter
i. Articulation between article 41 and article 42 measures
ii. What the UN Charter envisages in respect of forcible measures: centralised
measures (articles 42-49 UN Charter)
iii. Execution of article 42 measures in practice: ‘Contracting out’ or delegation
iv. The fate of the MSC (article 47 UN Charter) – World Summit Outcome (GA
Res. 60/1 (2005))
e. Practice
i. Iraq
- 1990/1991: UNSC Resolutions 678 and 687: Operation ‘Desert Storm’
- 1998 ‘Operation Desert Fox’ – the question of implied authorisation
- 2003 ‘Operation Iraqi Freedom’ – the question of implied authorisation
revisited.
ii. Libya: force ultra vires the autorisation? Resolution 1973 (2011)
Acting under CH VII of the Cahrter, the SC demanded an end to the violence that was
happening in Libya, where demonstrations broke out in Libya against the regime of President Qadhafi
And these demonstrations were met with violence on the part of the security forces
Violence did not cease and many more were killed
Later SC adopted Res 1973, authorised the taking of all necessary measures to
protect civilians
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Following this Resolution, military intervention commenced in Libya, initially
undertaken by a coalition led by the US, the UK and France, NATO took command of air operations
over Libya
iii. Afghanistan: a Collective Security Measure? UNSC Resolution 1368 (2001).
Recourse to all necessary means to restore international security
Council delegated its functions to member states
Authorises the use of force: all necessary means
Implied power: lawful on implied power doctrine
Necessary to fulfil its purposes and objects : art1 and preamble
Here to fulfil international peace
Principle of effectiveness: dynamic
SC Resolution 678: SC authorise the use of force against Iraq
Demanded and gave last chance for Iraq to comply with resolution 660 and all
subsequent resolutions
Authorised all member states to use all necessary means to implement SC resolution
660 if Iraq did not implement
The SC decided sanctions were insufficient and therefore authorised Member states to
use all necessary means including armed forces to enforce the decisions of the SC
After post-cold War period, the SC had clearly established that despite art.43
agreements, it may act under art.42 by authorising states to use force,
Another interpretation was the action of the Coalition states throughout was an
eexercise of the right of collective self-defence and not CH VII action
SC Resolution 687: formal ceasefire, conditional ceasefire, Iraq's acceptance was required for the
declaration of a formal ceasefire.
Required Iraq to return all Kuwaiti property that had been seized and to compensate
those who had suffered loss or injury
Also imposed obligations requiring the destruction etc under international supervision
of Iraq's weapons of mass destruction
However Iraq did not comply with its disarmament obligations of Resolution 687 by
obstructing the work of UN weapons inspectors who were looking for WMD
This was a material breach of Res 687
US, FRANCE AND THE UK made air raids on sites in Iraq : as a response to their
defiance
US AND UK invaded Iraq after much SC debate and effort to cause Iraw to cooperate
fully
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Document Summary
Note chapter vii measure as an exception to article 2(7) un charter: non-forcible measures under article 41 un charter, non-exhaustive, decision, execution/implementation of article 41 measures is delegated, illustrations, sc resolution 660 (1990): sanctions, creation of a sanctions. 1990/1991: unsc resolutions 678 and 687: operation desert storm". 1998 operation desert fox" the question of implied authorisation. Acting under ch vii of the cahrter, the sc demanded an end to the violence that was happening in libya, where demonstrations broke out in libya against the regime of president qadhafi. And these demonstrations were met with violence on the part of the security forces. Violence did not cease and many more were killed. Later sc adopted res 1973, authorised the taking of all necessary measures to protect civilians. Recourse to all necessary means to restore international security. Authorises the use of force: all necessary means. Necessary to fulfil its purposes and objects : art1 and preamble.
