International Law on Peacekeeping : A Study of Article 40 of the un Charter [1 ed.] 9789047425731, 9789004172265

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International Law on Peacekeeping

International Law on Peacekeeping A Study of Article 40 of the UN Charter

By

Hitoshi Nasu

LEIDEN • BOSTON 2009

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Nasu, Hitoshi. International law on peacekeeping : a study of article 40 of the UN charter / by Hitoshi Nasu. p. cm. Includes bibliographical references and index. ISBN 978-90-04-17226-5 (hardback : alk. paper) 1. United Nations—Peacekeeping forces. 2. Peacekeeping forces. I. Title. KZ6376.N37 2009 341.5’84—dc22 2008045765

ISBN 978 90 04 17226 5 Copyright 2009 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands

To my wife, Akane, and my family

Contents Acknowledgements .............................................................................. Abbreviations ...................................................................................... Table of Cases ..................................................................................... Table of Treaties and Other Documents .............................................. International Treaties ....................................................................... Other International Documents ...................................................... List of UN Resolutions ........................................................................ Security Council Resolutions ........................................................... General Assembly Resolutions ........................................................

xiii xv xix xxv xxv xxx xli xli xlvi

Introduction ........................................................................................

1

Chapter 1 Peacekeeping in Perspective ............................................. 1. Conflict Prevention and Peacekeeping ........................................ 2. Concept of Conflict Prevention .................................................. A. The Development of UN Policies on Conflict Prevention ............................................................................. B. Obstacles to Conflict Prevention ........................................... 3. Doctrinal Paradigm of Peacekeeping ........................................... A. Consent ................................................................................ B. Neutrality .............................................................................. C. Restrictions on the Use of Force ............................................ 4. Legal Basis of Peacekeeping within the UN Charter ...............

5 5 6

Chapter 2 Origins of Peacekeeping ................................................... 1. Embryonic Rise of Peacekeeping ................................................ 2. Emergence of Peacekeeping under Article 11 of the Covenant of the League of Nations ............................................. A. Concept and Reality of Collective Security under the Covenant .............................................................................. B. Peacekeeping in Practice under Article 11 ............................. i. Aaland Islands Question (1920) ...................................... ii. Vilna Question (1920) .................................................... iii. Boundary Disputes between Albania and Yugoslavia (1921) ............................................................................. iv. Demir-Kapu Incident (1925) ..........................................

6 12 17 17 23 25 27 37 37 42 42 44 44 46 48 50

viii

Contents

C. Conceptual Development under Article 11 .............................. i. Brouckère Report ............................................................... ii. Rutgers Memorandum ....................................................... iii. General Convention to Improve the Means of Preventing War .................................................................. 3. Emergence of Forceful Peacekeeping Measures .............................. A. Background .............................................................................. B. Dispute between Colombia and Peru over Leticia (1932) ...................................................................................... C. Dispute between Bolivia and Paraguay over El Gran Chaco (1932–34) ..................................................................... D. Saar Plebiscite (1935) ............................................................... 4. Transformation from Article 11 of the Covenant into Article 40 of the Charter ...............................................................

53 53 55 57 60 60 61 63 64 67

Chapter 3 Peacekeeping as Provisional Measure ................................... 1. Types of Provisional Measures ......................................................... 2. Call for Cease-fire ........................................................................... 3. Peace Observation .......................................................................... A. Concept and Legal Basis ........................................................... B. Early Deployment of Peace Observation Mission in Practice .................................................................................... C. Post-Conflict Deployment of Peace Observation Mission .................................................................................... 4. Peacekeeping Forces ...................................................................... A. Concept and Legal Basis ........................................................... B. Early Deployment of Peacekeeping Forces in Practice ............... i. UN Operations in the Congo (ONUC: 1960–64) ........................................................................... ii. UN Peacekeeping Force in Cyprus (UNFICYP: 1964–) ............................................................................... iii. UN Emergency Force (UNEF II: 1973–79) ....................... iv. UN Preventive Deployment in the Former Yugoslav Republic of Macedonia (UNPREDEP: 1992–99) .............. C. Post-Conflict Deployment of Peacekeeping Forces ................... 5. Provisional Territorial Administration ............................................ 6. Preventive Arms Embargo ............................................................. 7. Peacekeeping and Article 39 of the UN Charter ............................

71 71 72 76 76

92 95 97 102 105

Chapter 4 Legal Force and Effects of Peacekeeping Measures ............................................................................................ 1. Ambiguity of ‘Calls’ for Provisional Measures ................................

107 107

78 83 85 85 86 86 89 91

Contents

ix

2. The Determination of Legal Force ................................................. A. Interpretation of UN Charter Provisions .................................. B. Interpretation of UN Security Council Resolutions .................. C. Three Approaches to the Interpretation of Resolutions ............. i. Textual Approach ............................................................... ii. Intentions Approach .......................................................... iii. Teleological Approach ........................................................ D. Mandatory Decisions and Chapter VII Powers ......................... 3. Giving Effects to the Legal Force ................................................... A. Validity .................................................................................... B. The Scope of Application ......................................................... i. UN Member States ............................................................ ii. Non-UN Member States .................................................... iii. Non-State Entities .............................................................. 4. Legal Effects .................................................................................. 5. Peacekeeping and Article 25 of the UN Charter ............................

109 109 111 113 113 115 118 120 126 126 127 127 128 129 132 133

Chapter 5 Impartiality of Peacekeeping Measures ................................ 1. The Principle of Non-Intervention ................................................ 2. Internal Armed Conflicts and the Scope of Domestic Jurisdiction of States ...................................................................... A. Internal Armed Conflicts in Traditional International Law .......................................................................................... B. Legal Status of Non-State Entities Engaged in Internal Armed Conflicts ....................................................................... 3. Definition of Intervention and Neutrality/Impartiality .................. A. Definition of Intervention ........................................................ B. Neutrality as a Form of Intervention ........................................ C. Impartiality .............................................................................. D. Implementation of Impartial Peacekeeping Measures ............... i. Collective Recognition ....................................................... ii. Humanitarian Assistance .................................................... iii. Election Monitoring .......................................................... 4. Peacekeeping and Article 2(7) of the UN Charter ..........................

135 135

141 150 150 151 154 158 158 162 164 168

Chapter 6 Enforcement of Peacekeeping Measures .............................. 1. Enforceability of Peacekeeping Measures ....................................... 2. Conceptual Level Analysis: Peace Enforcement .............................. A. Doctrinal Basis of Peace Enforcement ...................................... B. Theoretical Basis for Peace Enforcement ................................... 3. Strategic Level Analysis: The Right of Self-Defence ........................ A. Scope of Self-Defence ...............................................................

171 171 173 173 175 176 176

138 138

x

Contents

B. Rationale behind the Right of Self-Defence of UN Personnel ................................................................................. i. National Self-Defence and Unit Self-Defence .................... ii. Safety of UN Personnel ...................................................... iii. Mandate Defence ............................................................... 4. Tactical Level Analysis: Rules of Engagement ................................. 5. Legal Constraints on the Use of Force in Peacekeeping ................... A. Legal Constraints for Peacekeeping Forces ................................ B. Legal Constraints on Intervention by Peacekeeping Forces ....................................................................................... 6. Peacekeeping and Article 42 of the UN Charter .............................

180 180 182 184 188 195 195 201 205

Chapter 7 Regulatory Framework for Peacekeeping ............................. 1. Regulation of the Peacekeeping Power ........................................... 2. Jurisdictional Bases of Peacekeeping .............................................. A. Primary Competence of the Security Council .......................... B. General Competence of the General Assembly ......................... 3. Legality of Peacekeeping ................................................................ A. General Legal Framework ........................................................ B. Justice and International Law ................................................... C. Impartiality .............................................................................. D. Proportionality and Operational Necessity ............................... 4. Legitimacy of Peacekeeping ........................................................... 5. Peacekeeping towards the Responsibility to React and to Prevent .......................................................................................... A. The Notion of Responsibility ................................................... B. Legal Consequences of Failure to Adopt Peacekeeping Measures .................................................................................. C. Regulatory Roles of Peacekeeping ............................................. D. Applicability of Legal Defence against Peacekeeping Measures .................................................................................. i. Self-Defence ....................................................................... ii. State of Necessity ............................................................... 6. Regulatory Criteria for Peacekeeping .............................................

207 207 208 208 210 215 215 216 218 219 221

Chapter 8 Regulatory Control of Peacekeeping ................................... 1. Political Control ............................................................................. 2. Judicial Control .............................................................................. A. Jurisdiction .............................................................................. B. Admissibility ............................................................................ 3. Self-Regulation ............................................................................... A. Enhancing Legal Accountability ...............................................

245 245 251 251 255 262 262

225 225 229 233 234 234 237 242

Contents

xi

B. Investigation as the Basis for Peacekeeping Measures .................................................................................. C. Continuing Assessment of Peacekeeping Measures ................... 4. Towards Better Control of Peacekeeping .........................................

263 269 275

Conclusion .............................................................................................

277

Bibliography ...........................................................................................

281

Index

317

.................................................................................................

Acknowledgements This book is based on the thesis submitted to, and accepted by, the Faculty of Law, The University of Sydney in 2006 for the degree of Doctor of Philosophy. Writing a doctoral thesis is in essence a solitary work, but would have never been accomplished without benefit from the constant guidance, assistance, and encouragement of my doctoral supervisors Professor Emeritus Ivan A. Shearer and Professor Donald R. Rothwell. As a scholar of wisdom, prudence, and generosity, Professor Shearer made time for me in his extraordinary schedule, even after his retirement from Sydney, to help me in shaping and developing my ideas to reach an academic standard. I find myself greatly honoured and privileged to be one of his last doctoral students. As a scholar of diligence, courage, and friendliness, Professor Rothwell gave me much comfort and confidence in pursuing my research in the new environment. I would not have been able to reach this stage without his guidance and friendship. I have also benefited from invaluable comments, discussion, and information provided by Professor Hilary Astor, Professor Michael Byers, Professor Terry Carney, Dr Jeremy Farrall, Professor Judith Gardam, Professor David Kinley, Dr Rob McLaughlin, Mr Roland Rich, Dr Christopher Ward, Professor Nigel D. White, and anonymous reviewers during different stages of writing. The collection of United Nations documents was due to great assistance by Ms Toni Smith at the UN Information Centre in Canberra. Dr Nicholas Strobbe and Mr James McCombe have kindly offered their help to ensure the readability of this manuscript. I thank them all. I am grateful for the financial and logistical support provided by the University of Sydney during my time as a doctoral student at Sydney and also by the Australian National University after taking up the current position. Thanks are also due to Professor Kent Anderson, Associate Professor Luke Nottage, and Associate Professor Leon Wolff for their friendship and encouragement. Last, but not least, I thank Professor Takashi Tsugeyama, who let me find my own feet in the research of international law prior to my arrival in Australia. Canberra, Australia July 2008

Abbreviations AC AfJICL AJIL All ER Aust YBIL BHRC BYBIL Can YIL Col JTL Col LR Corn ILJ CTS DRC Duke JCIL EHRR EJIL EWHC FRY FYROM Ford ILJ GaJICL GAOR GA Res GYIL Hague YbIL Harv ILJ Hast ICLR ICISS ICJ ICLQ ICTY Ind JIL ILC

Appeals Cases (Law Reports, UK House of Lords) African Journal of International and Comparative Law American Journal of International Law All England Law Reports Australian Year Book of International Law Butterworth’s Human Rights Cases British Year Book of International Law Canadian Yearbook of International Law Columbia Journal of Transnational Law Columbia Law Review Cornell International Law Journal Clive Parry, The Consolidated Treaty Series (New York: Oceana Publications, 1969–81) Democratic Republic of the Congo Duke Journal of Comparative and International Law European Human Rights Reports European Journal of International Law England and Wales High Court Federal Republic of Yugoslavia Former Yugoslav Republic of Macedonia Fordham International Law Journal Georgia Journal of International and Comparative Law General Assembly Official Records General Assembly Resolution German Yearbook of International Law Hague Yearbook of International Law Harvard International Law Journal Hastings International and Comparative Law Review International Commission on Intervention and State Sovereignty International Court of Justice International and Comparative Law Quarterly International Criminal Tribunal for the Former Yugoslavia Indian Journal of International Law International Law Commission

xvi

Abbreviations

ILM International Legal Materials ILR International Law Reports JACL Journal of Armed Conflict Law LJIL Leiden Journal of International Law LNOJ League of Nations, Official Journal Mich JIL Michigan Journal of International Law MINUGUA Mission for the Verification of Human Rights and of Compliance with the Commitments of the Comprehensive Agreement on Human Rights in Guatemala MONUC Mission des Nations Unis au Congo MPYUNL Max Planck Yearbook of United Nations Law NILR Netherlands International Law Review NYIL Netherlands Yearbook of International Law NYUJILP New York University Journal of International Law and Politics ONUB UN Operation in Burundi ONUC UN Operation in the Congo ONUCA UN Observer Group in Central America ONUMOZ UN Operation in Mozambique ORCI Office for Research and the Collection of Information PCIJ Permanent Court of International Justice Polish YIL Polish Yearbook of International Law Proc ASIL Proceedings of the Annual Meeting of the American Society of International Law RdC Recueil des Cours RIAA Reports of International Arbitration Awards ROE Rules of Engagement SCOR Security Council Official Records SC Res Security Council Resolution Stan JIL Stanford Journal of International Law Syd LR Sydney Law Review Temp ICLJ Temple International and Comparative Law Journal Tex ILJ Texas International Law Journal UAR United Arab Republic UK United Kingdom of Great Britain and Northern Ireland UN United Nations UNAMET UN Assistance Mission in East Timor UNAMIR UN Assistance Mission for Rwanda UNAMSIL UN Mission in Sierra Leone UNASOG UN Aouzou Strip Observer Group UNAVEM UN Angola Verification Mission UNCIO Documents of the United Nations Conference on International Organization (New York: UN Publications, 1945)

Abbreviations

UNCIP UNDOF UNEF UNFICYP UNIIMOG UNITA UNITAF UNJY UNGOMAP UNMIK UNMIL UNMOGIP UNOCI UNOGIL UNOSOM UNPREDEP UNPROFOR UNSCOB UNTAC UNTAG UNTAES UNTAET UNTS UNTSO US USTS VaJIL Vand JTL Yale JIL YbIHL YbILC YbUN ZaöRV

xvii

UN Commission for India and Pakistan UN Disengagement Observer Force UN Emergency Force UN Peacekeeping Force in Cyprus UN Iran-Iraq Military Observer Group Uniao Nacional para a Independencia Total de Angola Unified Task Force United Nations Juridical Yearbook UN Good Offices Mission in Afghanistan and Pakistan UN Interim Administration Mission in Kosovo UN Mission in Liberia UN Military Observer Group in India and Pakistan UN Operation in Côte d’Ivoire UN Observation Group in Lebanon UN Operation in Somalia UN Preventive Deployment UN Protection Force in the Former Yugoslavia UN Special Committee on the Balkans UN Transitional Authority in Cambodia UN Transition Assistance Group UN Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium UN Transitional Administration in East Timor United Nations Treaty Series UN Truce Supervision Organisation United States of America; Reports of Cases in the US Supreme Court United States Treaty Series Virginia Journal of International Law Vanderbilt Journal of Transnational Law Yale Journal of International Law Yearbook of International Humanitarian Law Yearbook of International Law Commission Yearbook of the United Nations Zeitschrift für ausländisches und öffentliches Recht und Völkerrecht

Table of Cases Aegean Sea Continental Shelf Case (Greece v. Turkey) (Interim Measures of Protection) [1976] ICJ Reports 3. Aegean Sea Continental Shelf Case (Greece v. Turkey) (Jurisdiction) [1978] ICJ Reports 3. Al-Jedda v. Secretary of State for Defence [2008] 1 AC 332. Anglo-Iranian Oil Company Case (United Kingdom v. Iran) (Preliminary Objections) [1952] ICJ Reports 93. Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations (Advisory Opinion) [1989] ICJ Reports 177. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia (Serbia and Montenegro)) (Request for the Indication of Provisional Measures) [1993] ICJ Reports 3. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia (Serbia and Montenegro)) (Further Requests for the Indication of Provisional Measures) [1993] ICJ Reports 325. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Judgment) [2007] ICJ. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) (Judgment) [2005] ICJ. Attorney-General v. Nissan (House of Lords) [1969] 1 All ER 629. Baker v. Carr 369 US 186 (1961). Bankovic v. Belgium (2001) 11 BHRC 435. Behrami v. France (2007) 45 EHRR SE10. Bici and Another v. Ministry of Defence [2004] EWHC 786. Border and Transborder Armed Actions (Nicaragua v. Honduras) (Jurisdiction of the Court and the Admissibility of the Application) [1988] ICJ Reports 69. Celiberti de Casariego v. Uruguay (1981) 68 ILR 41.

256 257 133, 199 116, 144

200, 259

236, 254

216, 236, 254

216 199 200 257 198 199 200

257 198

xx

Table of Cases

Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter) (Advisory Opinion) [1962] ICJ Reports 151. Certain German Interests in Polish Upper Silesia (Germany v. Polish Republic) (Preliminary Objections) [1925] PCIJ Reports (Series A) No. 6. Competence of the International Labour Organization with respect to Agricultural Labour (Advisory Opinion) [1922] PCIJ Reports (Series B) Nos 2 and 3. Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) (Advisory Opinion) [1948] ICJ Reports 57. Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization (Advisory Opinion) [1960] ICJ Reports 150. Corfu Channel Case (United Kingdom v. Albania) (Pleadings) [1949] 1 ICJ Pleadings 6. Corfu Channel Case (United Kingdom v. Albania) (Merits) [1949] ICJ Reports 4. Cruz Varas v. Sweden (1991) 14 EHRR 1. Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) [1999] ICJ Reports 62. East Timor (Portugal v. Australia) [1995] ICJ Reports 90. Free Zone of Upper Savoy and the District of Gex (Orders) [1929] PCIJ Reports (Series A) No. 22. Gabčíkovo-Nagymaros Project (Hungary v. Slovakia) (Judgment) [1997] ICJ Reports 7. Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Advisory Opinion) [1950] ICJ Reports 65. Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Second Phase) (Advisory Opinion) [1950] ICJ Reports 221. Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion) [1980] ICJ Reports 73. Jaworzina (Polish-Czechoslovakian Frontier) (Advisory Opinion) [1923] PCIJ Reports (Series B) No. 8. Juan Carlos Abella v. Argentina (Inter-American Commission on Human Rights) Case No. 11.137 (18 November 1997).

28, 123, 126–127, 213, 245–246, 260

256

124

127, 208, 257

254 210 123 108

200 118 123 238–239, 241 260

123

127 117, 249

144

Table of Cases

Judgments of the Administrative Tribunal of the International Labour Organisation upon Complaints Made against the United Nations Educational, Scientific and Cultural Organization (Advisory Opinion) [1956] ICJ Reports 77. LaGrand Case (Germany v. United States) (Judgment) [2001] ICJ Reports 466. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Reports 16.

Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Reports 3. Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Reports 226. Lotus (France v. Turkey) (Merits) [1927] PCIJ Reports (Series A) No. 10. Libyan Arab Foreign Investment Company (LAFICO) v. Republic of Burundi (1994) 96 ILR 279. López v. Uruguay (1981) 68 ILR 29. Mahmut Kaya v. Turkey (ECHR) (Judgment) Application No. 22545/93 (28 March 2000). Marbury v. Madison (1803) 5 US (1 Cranch) 137. Markovic v. Italy (2007) 44 EHRR 52. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) (Jurisdiction of the Court and the Admissibility of the Application) [1984] ICJ Reports 392. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) (Merits) [1986] ICJ Reports 14. M/V “Saiga” (No. 2) Case (St Vincent and the Grenadines v. Guinea) (1999) 38 ILM 1323.

xxi

260 108

100–101, 109, 113–114, 116, 121–122, 125, 127, 129, 209, 245, 253–255, 259

199 220, 237–238, 259 21

239 198 204 253 200

256–257

125, 147, 165, 180–181, 229, 241, 255, 259 239

xxii

Table of Cases

Nationality Decrees Issued in Tunis and Morocco (Advisory Opinion) [1923] PCIJ Reports (Series B) No. 4. Nissan v. Attorney-General (Queen’s Bench Division) [1967] 2 All ER 200. Nissan v. Attorney-General (Court of Appeal) [1967] 2 All ER 1238. N.K. v. Austria (Superior Provincial Court of Vienna), 77 ILR 470. Northern Cameroons (Cameroon v. United Kingdom) (Preliminary Objections) [1963] ICJ Reports 15. Nuclear Tests Case (Australia v. France; New Zealand v. France) (Judgment) [1974] ICJ Reports 253, 457. Öcalan v. Turkey (2005) 41 EHRR 985. Oil Platforms (Islamic Republic of Iran v. United States) (Merits) [2003] ICJ Reports 161. Opinion No. 1 (Arbitration Commission, Conference on Yugoslavia) (1993) 92 ILR 162. Opinion No. 8 (Arbitration Commission, Conference on Yugoslavia) (1993) 92 ILR 199. Osman v. United Kingdom (1998) 29 EHRR 245. Powell v. McCormack 395 US 486 (1968). Prosecutor v. Dario Kordić and Mario Čerkez (Judgment) (Appeals Chamber) Case No. IT-95-14/2-A (17 December 2004). Prosecutor v. Duško Tadić (ICTY) (Jurisdiction) (Trial Chamber) (1997) 105 ILR 427. Prosecutor v. Duško Tadić (ICTY) (Jurisdiction) (Appeals Chamber) (1997) 105 ILR 453. Prosecutor v. Duško Tadić (ICTY) (Judgment) (Trial Chamber) (1999) 112 ILR 1. Prosecutor v. Duško Tadić (ICTY) (Judgment) (Appeals Chamber) (1999) 38 ILM 1518. Prosecutor v. Jean-Paul Akayesu (ICTR) (Judgement) Case No. ICTR-96-4-T (2 September 1998). Prosecutor v. Joseph Kanyabashi (ICTR) (Jurisdiction) Case No. ICTR-96-15-T (18 June 1997).

137, 151 200 200 199

257, 259

259 198 181, 255 159 159 204 257

147 258 105, 120, 144, 197, 208, 257 146 148

144, 197

258

Table of Cases

Prosecutor v. Kupreskić et al (ICTY) (Judgment) (Trial Chamber) Case No. IT-95-16-T (14 January 2000). Prosecutor v. Rutaganda (Judgment) (Trial Chamber) Case No. ICTR-96-3 (6 December 1999), (2000) 39 ILM 557. Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom; (Libyan Arab Jamahiriya v. United States) (Provisional Measures) [1992] ICJ Reports 3, 114. Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom; (Libyan Arab Jamahiriya v. United States) (Preliminary Objections) [1998] ICJ Reports 9, 115. R (Al-Skeini and others) v. Secretary of State for Defence [2008] 1 AC 153. R (Daly) v. Secretary of State for the Home Department [2001] 2 AC 532. Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Reports 174. Texaco Overseas Petroleum Company and California Asiatic Oil Company v. The Government of the Libyan Arab Republic (Merits) (1977) 53 ILR 389. United States Diplomatic and Consular Staff in Tehran (United States v. Iran) (Merits) [1980] ICJ Reports 3. Voting Procedure on Questions Relating to Reports and Petitions concerning the Territory of South-West Africa (Advisory Opinion) [1955] ICJ Reports 67. Western Sahara (Advisory Opinion) [1975] ICJ Reports 12.

xxiii

194

145, 197

127, 132, 252, 256, 258

252, 262 198 220

184, 200

144 256

122, 124 259

Table of Treaties and Other Documents International Treaties 1856

1878

1899

1907

1911

1913

1919

Paris Convention between France and Great Britain and Russia respecting the Aaland Islands, 114 CTS 405, signed at Paris, 30 March 1856, entered into force 27 April 1856. Treaty between Austria-Hungary, France, Germany, Great Britain, Italy, Russia and Turkey for the Settlement of Affairs in the East, 153 CTS 171, signed at Berlin, 13 July 1878, entered into force 3 August 1878. Convention for the Pacific Settlement of International Disputes, 187 CTS 410, signed at The Hague, 29 July 1899, entered into force 4 September 1900. Convention for the Pacific Settlement of International Disputes, 205 CTS 233, signed at The Hague, 18 October 1907, entered into force 27 November 1909. General Arbitration Treaty between the United States of America and the French Republic, (1911) 5 AJIL Supplement 249, signed at Washington and Paris, 3 August 1911, not in force. General Arbitration Treaty between Great Britain and the United States of America, (1911) 5 AJIL Supplement 253, signed at Washington, 3 August 1911, not in force. Treaty of Peace between Bulgaria, Greece, Montenegro, Serbia and Turkey, 218 CTS 159, signed at London, 30 May 1913. Treaty of Peace, 225 CTS 188, concluded at Versailles, opened for signature 28 June 1919, entered into force 10 January 1920. Covenant of the League of Nations Article 10

44

38

39

39

40

40

48

40, 42, 64 42–43

xxvi

Table of Treaties and Other Documents

Article 11

1920

1922

1931

1945

Article 12 Article 15(1) Article 15(4) Article 15(9) Article 16 Statute of the Permanent Court of International Justice, 6 LNTS 390, PCIJ Report (Series D) No. 1 (with the modifications effected therein up to 21 February 1931), adopted at Geneva, opened for signature 16 December 1920, entered into force 20 August 1921 Treaty between Colombia and Peru regarding the Frontiers and Free Inland Navigation, 74 LNTS 9, signed at Lima, 24 March 1922, entered into force 19 March 1928. General Convention to Improve the Means of Preventing War, League of Nations, Publications No. C.658(1).M.269(1).1931.IX, opened for signature 26 September 1931, not in force. Charter of the United Nations; and Statute of the International Court of Justice annexed thereto, USTS No. 993, adopted at San Francisco, opened for signature 26 June 1945, entered into force 24 October 1945; amended by GA Res 1991 (17 December 1963), 557 UNTS 143 (entered into force 31 August 1965); GA Res 2101 (20 December 1965), 638 UNTS 308 (12 June 1968); GA Res 2847 (20 December 1971), 892 UNTS 119 (24 September 1973). Charter of the United Nations Article 1(1) Article 2(1) Article 2(4) Article 2(6)

42–50, 53–57, 60, 63, 66–67, 69, 77, 86 40, 51 40–41, 53 45 64 42, 54, 57

58

61

57, 59, 68

11, 216 19, 24, 216 124, 133, 229–232, 240, 278 128

Table of Treaties and Other Documents

Article 2(7) Article 4(2) Article 10 Article 11(2) Article 12(1) Article 14 Article 24 Article 25

Article 29 Article 34 Article 36 Article 37 Article 39 Article 40

Article 41 Article 42 Article 48(1) Article 51 Article 78 Article 98 Article 99 Article 103 Statute of the International Court of Justice Article 38(1) Article 41(1) Article 65

xxvii

24, 82, 121–122, 135–139, 150, 160, 168–169, 216, 218, 246 158 210, 275 210, 213 210, 213–215 28, 210 100–101, 124, 208, 210, 215, 223–224, 229 19–20, 90, 107–111, 113–114, 119–124, 126–129, 132–134, 178, 191, 211, 218, 242, 277 269 54, 121, 264, 276 80–81, 84–85, 91, 96, 100, 107 100, 107 1, 30, 34, 73–74, 78, 103, 105–107, 115, 121, 155, 209, 220, 258, 2–3, 5, 9, 32–35, 54, 67–69, 71–74, 76–78, 80–81, 84–86, 88–89, 91–93, 95–97, 100, 104–108, 114, 124–125, 135–136, 138, 151, 155–156, 164, 168–169, 171, 173, 176, 189, 191–192, 205, 207, 210, 216–219, 222–223, 233–235, 242, 245, 258, 262, 277–278 102–104, 110 32, 172–173, 175, 179, 186–187, 205 123 180–181, 234–236 98 269 7, 266 132–133

112 58, 108 259

xxviii 1946

1948

1949

1969

Table of Treaties and Other Documents

Convention on the Privileges and Immunities of the United Nations, 1 UNTS 15, adopted by the UN General Assembly, opened for signature 13 February 1946, entered into force 17 September 1946. 199 Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277, adopted by the UN General Assembly, opened for signature 9 December 1948, entered into force 12 January 1951. 202 Egyptian-Israeli General Armistice Agreement, 42 UNTS 252, signed at Rhodes, 24 February 1949, entered into force 24 February 1949. 74 Israeli-Lebanese General Armistice Agreement, 42 UNTS 288, signed at Ras En Naqoura, 23 March 1949, entered into force 23 March 1949. 74 Hashemite Jordan Kingdom-Israel General Armistice Agreement, 42 UNTS 304, signed at Rhodes, 3 April 1949, entered into force 3 April 1949. 74 Israeli-Syrian General Armistice Agreement, 42 UNTS 328, signed at Hill 232 near Mahanayim, 20 July 1949, entered into force 20 July 1949. 74 Geneva Convention for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field, 75 UNTS 31, adopted at Geneva, opened for signature 12 August 1949, entered into force 21 October 1950. 141, 196 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 UNTS 85, adopted at Geneva, opened for signature 12 August 1949, entered into force 21 October 1950. 141, 196 Geneva Convention Relative to the Treatment of Prisoners of War, 75 UNTS 135, adopted at Geneva, opened for signature 12 August 1949, entered into force 21 October 1950. 141, 196 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287, adopted at Geneva, opened for signature 12 August 1949, entered into force 21 October 1950. 141, 196 Vienna Convention on the Law of Treaties, 1155 UNTS 331, concluded at Vienna, opened for signature 23 May 1969, entered into force 27 January 1980. 110, 122–123, 146, 215

Table of Treaties and Other Documents

1971

1977

1980

1994

1998

International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 970 UNTS 211, concluded at Brussels, opened for signature 29 November 1969, entered into force 6 May 1975. Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 974 UNTS 177, concluded at Montreal, opened for signature 23 September 1971, entered into force 26 January 1973. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relative to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, adopted at Geneva, opened for signature 12 December 1977, entered into force 7 December 1978. Article 1(4) Article 4 Articles 37–38 Articles 57–58 Article 60 Article 89 Article 96(3) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relative to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, adopted at Geneva, opened for signature 12 December 1977, entered into force 7 December 1978. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, 1342 UNTS 137, concluded at Geneva, opened for signature 10 October 1980, entered into force 2 December 1983. Convention on the Safety of United Nations and Associated Personnel, 2051 UNTS 363, adopted at New York, opened for signature 9 December 1994, entered into force 15 January 1999. Rome Statute of the International Criminal Court, 2187 UNTS 3, adopted at Rome, opened for signature 17 July 1998, entered into force 1 July 2002.

xxix

238

252

141–142 142 182 193–194 194–195 202 144, 147

143–149, 151, 159, 168

183

183

183

xxx

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Other International Documents 1920

1921

1922

1923 1925

1926

1927

Report on the Organisation of the International Force for Vilna, LNOJ, 2nd year, No. 1 (25 November 1920). Instructions for the Commission Entrusted with the Arrangements for the Taking of a Public Expression of Opinions in the Vilna District, LNOJ, 2nd year, No. 1 (1 December 1920). Appeal to the Council of the League of Nations by the Albanian Government, LNOJ, 2nd year, Nos 5–6 (29 April 1921). Telegram from the Albanian Prime Minister, LNOJ, 2nd year, Nos 5–6 (15 June 1921). Report of the Commission of Enquiry in Albania, LNOJ, 4th year, No. 1 Document No. C.5.M.3.1923.VII (18 December 1922). Final Report of the Commission of Enquiry, LNOJ, 4th year, No. 1 (May 1923). Telegram from the Bulgarian Minister for Foreign Affairs to the Secretary-General, LNOJ, 6th year, 36th (extra) sess (22 October 1925). Telegram from the Acting President of the Council to the Greek and Bulgarian Governments, LNOJ, 6th year, 36th (extra) sess (23 October 1925). Telegram dated October 24th, 1925, from the Greek Minister for Foreign Affairs to the Secretary-General, LNOJ, 6th year, 36th (extra) sess (24 October 1925). Report of the Commission of Enquiry into the Incidents of the Frontier Between Bulgaria and Greece, LNOJ, 7th year, 37th sess, Annex 815, Document No. C.727.M270.1925.VII (1926). Proposal by M Paul-Boncour: Question V(a)8 and V(b), League of Nations, Documents of the Preparatory Commission for the Disarmament Conference, Series II, Annex V (21–25 May 1926). Memorandum by M Paul-Boncour in Support of his Proposals Relating to Question V(a)8 and V(b) (Annex V), League of Nations, Documents of the Preparatory Commission for the Disarmament Conference, Series II, Annex VI (21–25 May 1926). Report by M De Brouckère on Point 1(b) of the Proposal Laid Before the Preparatory Commission for the Disarmament Conference by the French Delegation, League of Nations, Documents of the Preparatory Commission for the Disarmament Conference, Series III, Annex 3, Document No. C.740.M.279.1926.IX (1 March 1927).

47

47 49 49

49 49

50

51

50

52

53

54

54–55

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xxxi

1928 Introduction to the Three Memoranda on Arbitration, Security and the Articles of the Covenant, League of Nations, Documents of the Preparatory Commission for the Disarmament Conference, Series VI, Annex I (3 February 1928). 56 Memorandum on Articles 10, 11, and 16 of the Covenant, League of Nations, Documents of the Preparatory Commission for the Disarmament Conference, Series VI, Annex I (3 February 1928). 55–56 Observations of the French Delegation on the Conclusions of the Memorandum of Articles 10, 11, and 16 of the Covenant, League of Nations, Documents of the Preparatory Commission for the Disarmament Conference, Series VI, Annex 4bis (4 April 1928). 57 1933 Report of the Council, Provided for in Article 15, Paragraph 4, of the Covenant (Submitted by the Committee of the Council, in Accordance with the Decision Taken by the Council on March 8th, 1933), LNOJ, 14th year, No. 4, Part 1, Document No. C.194.M.91.1933.VII (1933). 61–63 Letter, dated February 25th, 1933, from the Government of the United Kingdom Regarding an Embargo on the Supply of Arms and War Materials to Bolivia and Paraguay, LNOJ, 14th year, No. 4, Part 2 (25 February 1933). 63 Letter, Dated March 6th, 1933, from the President of the Committee of the Council Requesting the Inclusion of the Dispute in the Council Agenda under Article 11 of the Covenant, LNOJ, 14th year, No. 4, Part 2 (6 March 1933). 63 Letter, dated June 26th, 1933, from the Commission for Administering the Territory of Leticia to the Secretary-General, Forwarding a Copy of the Record of the Evacuation by the Peruvian Troops of the Territory Referred to in the Agreement Signed at Geneva on May 25th, 1933, LNOJ, 14th year, No. 10, Part 1 (26 June 1933). 62 1945 Documents of the United Nations Conference on International Organization (New York: UN Publications, 1945). 67–68, 71, 97, 137, 245, 251–252

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1947 Report by the Consular Commission at Batavia to the Security Council, UN Doc S/586 (22 October 1947). 1948 The Problems of Voting in the Security Council, UN Doc A/578 (15 July 1948). Cablegrams from the United Nations Mediator dated 22 and 27 July 1948 to the Secretary-General Containing Instructions Given to Observers and Plans of Organization of Truce Supervision, UN Doc S/928 (28 July 1948). 1956 Second and Final Report of the Secretary-General on the Plan for an Emergency International United Nations Force Requested in the Resolution Adopted by the General Assembly on 4 November 1956 (A/3276), UN Doc A/3302 (6 November 1956). 1958 Letter Dated 22 May 1958 from the Representative of Lebanon to the President of the Security Council concerning “Complaint by Lebanon in Respect of a Situation Arising from the Intervention of the United Arab Republic in the Internal Affairs of Lebanon, the Continuance of Which is Likely to Endanger the Maintenance of International Peace and Security, UN Doc S/4007 (22 May 1958). First Report by the Secretary-General on the Implementation of the Resolution Adopted by the Security Council on 11 June 1958, UN Doc S/4029 (16 June 1958). Interim Report of the United Nations Observation Group in Lebanon, UN Doc S/4051 (15 July 1958). Third Report of the United Nations Observation Group in Lebanon, UN Doc S/4085 (12 August 1958). Summary Study of the Experience Derived from the Establishment and Operation of the Force, UN Doc A/3943 (9 October 1958).

76, 78 247

79

20, 24–26

81

82

82

153

17, 20–21, 24–26, 177, 185

Table of Treaties and Other Documents

1960 Cable dated 13 July from the President of the Republic of the Congo and the Prime Minister and Minister of National Defense addressed to the Secretary-General of the United Nations, UN Doc S/4382 (13 July 1960). First Report of the Secretary-General on the Implementation of Security Council Resolution S/4387 of 14 July 1960, UN Doc S/4389 (18 July 1960). Second Report of the Secretary-General on the Implementation of Security Council Resolutions S/4387 of 14 July 1960 and S/4405 of 22 July 1960, UN Doc S/4417 (6 August 1960). Memorandum on Implementation of the Security Council Resolution of 9 August 1960, Operative Paragraph 4, UN Doc S/4417/Add.6 (12 August 1960). Annual Report of the Secretary-General on the Work of the Organization, 16 June 1959–15 June 1960, UN Doc A/4390/Add.1 (31 August 1960). 1964 Note by Secretary-General concerning Certain Aspects of the Function and Operation of the UN Peacekeeping Force in Cyprus, and Aide-mémoire of 10 April 1964, UN Doc S/5653 (11 April 1964). Objectives and Interim Aims of a Comprehensive Programme of Action for the United Nations PeaceKeeping Force in Cyprus (UNFICYP), UN Doc S/5671/Annex I (29 April 1964). 1965 Letter dated 30 September 1965 from the Representative of India to the Secretary-General, UN Doc S/6735 (1 October 1965). Communications from the Secretary-General to the Representative of India, UN Doc S/6738 (2 October 1965). Letter dated 8 October 1965 from the Representative of India to the Secretary-General, UN Doc S/6762 (8 October 1965). 1973 Report of the Secretary-General on the Implementation of Security Council Resolution 340 (1973), UN Doc S/11052/Rev.1 (27 October 1973).

xxxiii

87, 152

178

178

152

7

177, 190, 197, 206

90

270

270

270

26, 92, 179

xxxiv

Table of Treaties and Other Documents

1978 Report of the Secretary-General Submitted Pursuant to Paragraph 2 of Security Council Resolution 431 (1978) Concerning the Situation in Namibia, UN Doc S/12827 (29 August 1978). 166, 179 1980 Robert Ago, Addendum to the Eighth Report on State Responsibility, (1980) 2(1) YbILC 13. 238–239 1987 Procedure for the Establishment of a Firm and Lasting Peace in Central America (Esquipulas II), UN Doc S/19085-A/42/521 (31 August 1987). 161 1988 Report of the Secretary-General on the Implementation of Operative Paragraph 2 of Security Council Resolution 598 (1987), UN Doc S/20093 (7 August 1988). 84 Letter dated 17 December 1988 from the Permanent Representative of Angola to the United Nations Addressed to the Secretary-General, UN Doc S/20336 (17 December 1988). 130 Letter dated 17 December 1988 from the Permanent Representative of Cuba to the United Nations Addressed to the Secretary-General, UN Doc S/20337 (17 December 1988). 130 1989 Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, UN Doc A/44/33 (5 May 1989). 266 Report of the Secretary-General, UN Doc S/20895 (11 October 1989). 161 1990 Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, UN Doc A/45/33 (8 March 1990). 267 Letter dated 20 April 1990 from the Secretary-General addressed to the President of the Security Council, UN Doc S/21259 (20 April 1990). 162 Statement of the Five Permanent Members of the Security Council of the United Nations on Cambodia, UN Doc S/21689/Annex (31 August 1990). 99 Report of the Secretary-General: Model Status-of-Forces Agreement for Peace-Keeping Operations, UN Doc A/45/594 (9 October 1990). 179 1991 Model Agreement between the United Nations and Member States Contributing Personnel and Equipment to United Nations Peace-Keeping Operations, UN Doc A/46/185/Annex (23 May 1991). 196 Final Act of the Paris Conference on Cambodia, UN Doc S/23177/Annex (30 October 1991). 98 Enhancing the Effectiveness of the Principle of Periodic and Genuine Elections: Report of the Secretary-General, UN Doc A/46/609 (19 November 1991). 165

Table of Treaties and Other Documents

xxxv

1992 An Agenda for Peace: Report of the SecretaryGeneral pursuant to the Statement Adopted by the Summit Meeting of the Security Council on 31 January 1992, UN Doc A/47/277-S/24111 (17 June 1992). 5, 8, 18, 172–173, 194 Letter dated 23 November 1992 from the Secretary-General Addressed to the President of the Security Council, UN Doc S/24851 (25 November 1992). 93 Report of the Secretary-General on the Former Yugoslav Republic of Macedonia, UN Doc S/24923 (9 December 1992). 93 1993 Further Report of the Secretary-General Submitted in Pursuance of Paragraph 18 and 19 of Resolution 794 (1992), UN Doc S/25354 (3 March 1993). 164 Letter dated 30 April 1993 from the Security Council Mission established pursuant to Council Resolution 819 (1993) to the President of the Security Council, UN Doc S/25700 (30 April 1993). 192, 272 Statute of the International Criminal Tribunal for the Former Yugoslavia, UN Doc S/Res/827/ Annex (25 May 1993). 120 Letter from the Permanent Representative of the United Republic of Tanzania to the United Nations addressed to the Secretary-General, transmitting the Peace Agreement signed at Arusha on 4 August 1993, the N’sele Cease-Fire Agreement and Related Protocols of Agreement, UN Doc A/48/824-S/26915 (23 December 1993). 14 1994 Report of the Secretary-General Pursuant to Resolution 871 (1993), UN Doc S/1994/300 (16 March 1994). 94 Report of the Security Council Mission to Somalia on 26 and 27 October 1994, UN Doc S/1994/1245 (3 November 1994). 272 Aide-Mémoire concerning the Working Methods of the Security Council, UN Doc S/1994/1279A/49/667 (11 November 1994). 117

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1995 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/50/60S/1995/1 (3 January 1995). 18, 173 Report of the Security Council Mission to Burundi on 10 and 11 February 1995, UN Doc S/1995/163/Annex (28 February 1995). 272 Report of the Security Council Mission to Western Sahara from 3 to 9 June 1995, UN Doc S/1995/498 (21 June 1995). 272 Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium, UN Doc A/50/757S/1995/951 (15 November 1995). 99 Report of the Secretary-General Pursuant to Security Council Resolution 1025 (1995), UN Doc S/1995/1028 (13 December 1995). 99 1996 Supplement to An Agenda for Peace: Aide-mémoire by France, UN Doc A/50/869-S/1996/71 (26 February 1996). 174 1999 James Crawford, Second Report on State Responsibility, UN Doc A/CN.4/498/Add.2 (30 April 1999). 240 Agreement on the Principles (Peace Plan) to Move towards a Resolution of the Kosovo Crisis Presented to the Leadership of the FRY by the President of Finland, Mr Ahtisaari, Representing the European Union, and Mr Chernomyrdin, Special Representative of the President of the Russian Federation, 3 June 1999, UN Doc S/1999/649/Annex (7 June 1999). 99 Secretary-General’s Bulletin: Observance by United Nations Forces of International Humanitarian Law, UN Doc ST/ SGB/1999/13 (6 August 1999). 196 Report of the Secretary-General pursuant to General Assembly Resolution 53/35: The Fall of Srebrenica, UN Doc A/54/549 (15 November 1999). 195 Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda, UN Doc S/1999/1257/Annex (16 December 1999). 14, 201, 267 2000 Terms of Reference for the Security Council Mission to the Democratic Republic of the Congo and the region, UN Doc S/2000/344 (24 April 2000). 273 Report of the Security Council Mission on the Implementation of Security Council Resolution 1244 (1999), UN Doc S/2000/363 (29 April 2000). 273

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xxxvii

Terms of Reference for Security Council Mission to Eritrea and Ethiopia, UN Doc S/2000/392/Annex (8 May 2000). 273 Security Council Special Mission Visit to Eritrea and Ethiopia, 9 and 10 May 2000, UN Doc S/2000/413 (11 May 2000). 273–274 Security Council Mission Visit to the Democratic Republic of the Congo, 4–8 May 2000, UN Doc S/2000/416 (11 May 2000). 273 Report of the Panel on United Nations Peace Operations, UN Doc A/55/305-S/2000/809 (21 August 2000). 5, 10, 18, 22, 25, 33, 101, 156–157, 176, 189, 202, 219, 221–222 Terms of Reference of the Security Council Mission to Sierra Leone, UN Doc S/2000/886 (21 September 2000). 273 Report of the Security Council Mission to Sierra Leone, UN Doc S/2000/992 (16 October 2000). 273 Report of the Security Council Mission to East Timor and Indonesia, UN Doc S/2000/1105 (21 November 2000). 273 2001 Prevention of Armed Conflict, UN Doc A/55/985-S/2001/574 (7 June 2001). 10, 18 Report of the Security Council Mission on the Implementation of Security Council Resolution 1244 (1999), UN Doc S/2001/600 (19 June 2001). 273 Report of the International Law Commission on the Work of its Fifty-Third Session Regarding the Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts, UN Doc A/56/10 (1 October 2001). 228, 239–240 2002 Guidelines for the Development of Rules of Engagement (ROE) for United Nations Peacekeeping Operations, UN Doc MD/ FGS/0220.0001 (15 May 2002). 188–189, 193, 198 Report of the Security Council Mission to Kosovo and Belgrade, Federal Republic of Yugoslavia, UN Doc S/2002/1376 (19 December 2002). 273

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2003 Twelfth Quarterly Report of the Executive Chairman of the United Nations Monitoring, Verification and Inspection Commission in accordance with Paragraph 12 of the Security Council Resolution 1284 (1999), UN Doc S/2003/232 (28 February 2003). 268 Thirteenth Quarterly Report of the Executive Chairman of the United Nations Monitoring, Verification and Inspection Commission in accordance with Paragraph 12 of the Security Council Resolution 1284 (1999), UN Doc S/2003/580 (30 May 2003). 268 Report of the Security Council Mission to West Africa, 26 June–5 July 2003, UN Doc S/2003/688 (7 July 2003). 274 Letter dated 15 August 2003 from the Chargé d’affaires a.i. of the Permanent Mission of the Libyan Arab Jamahiriya to the United Nations addressed to the President of the Security Council, UN Doc S/2003/818 (15 August 2003). 252 Report of the Security Council Mission to Afghanistan, 31 October to 7 November 2003, UN Doc S/2003/1074 (11 November 2003). 273 2004 Report of the Secretary-General: Implementation of the Recommendations of the Special Committee on Peacekeeping Operations, UN Doc A/58/694 (26 January 2004). 33 Giorgio Gaja, Second Report on Responsibility of International Organizations, UN Doc A/ CN.4/541 (2 April 2004). 199 General Comment No. 31 on Article 2 of the Covenant: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc CCPR/C/74/CRP.4/ Rev.6 (21 April 2004). 198 Report of the Security Council Mission to West Africa, 20–29 June 2004, UN Doc S/2004/525 (2 July 2004). 274 Report of the High-Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility (New York: United Nations, 2004). 2, 17, 97, 225, 249, 262

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2005 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General (25 January 2005). 15, 147 Report of the Security Council Mission to Haiti, 13 to 16 April 2005, UN Doc S/2005/302 (6 May 2005). 274 Report of the Secretary-General: Implementation of the Recommendations of the Special Committee on Peacekeeping Operations, UN Doc A/60/640 (29 December 2005). 12, 34 Report of the Special Committee on Peacekeeping Operations and Its Working Group, UN Doc A/59/19/ Rev.1 (2005). 34 In Larger Freedom: Towards Development, Security and Human Rights for All (New York: United Nations, 2005). 10, 220, 226 2006 Report of the Secretary-General: Progress Report on the Prevention of Armed Conflict, UN Doc A/60/891 (18 July 2006). 10 2007 Giorgio Gaja, Fifth Report on Responsibility of International Organizations, UN Doc A/CN.4/583 (2 May 2007). 229 Report of the Special Committee on Peacekeeping Operations and Its Working Group on the 2007 Substantive Session, UN Doc A/61/19 (Part II) (5 June 2007). 28

List of UN Resolutions Security Council Resolutions SC Res 16 (10 January 1947): The Free Territory of Trieste SC Res 27 (1 August 1947): The Indonesian Question SC Res 30 (25 August 1947): The Indonesian Question SC Res 38 (17 January 1948): The India-Pakistan Question SC Res 42 (5 March 1948): The Palestine Question SC Res 43 (1 April 1948): The Palestine Question SC Res 46 (17 April 1948): The Palestine Question SC Res 47 (21 April 1948): The India-Pakistan Question SC Res 48 (23 April 1948): The Palestine Question SC Res 49 (22 May 1948): The Palestine Question SC Res 50 (29 May 1948): The Palestine Question SC Res 54 (15 July 1948): The Palestine Question SC Res 73 (11 August 1949): The Palestine Question SC Res 128 (11 June 1958): Complaint by Lebanon SC Res 143 (14 July 1960): The Congo Question SC Res 144 (19 July 1960): Complaint by Cuba SC Res 145 (22 July 1960): The Congo Question SC Res 146 (9 August 1960): The Congo Question SC Res 161 (21 February 1961): The Congo Question

101 73 78 75 114 75, 114, 160 75, 114, 160 79 79 74, 160 74, 115 74–75, 114 80 82 75, 87, 119, 178 75 75, 87, 119 75, 87, 119, 128, 152, 178 88, 185

xlii

List of UN Resolutions

SC Res 164 (22 July 1961): Complaint by Tunisia SC Res 169 (24 November 1961): The Congo Question SC Res 178 (24 April 1963): Complaint by Senegal SC Res 179 (11 June 1963): The Situation in Yemen SC Res 180 (31 July 1963): Questions relating to Territories under Portuguese Administration SC Res 181 (7 August 1963): Question relating to the Policies of Apartheid of the Government of the Republic of South Africa SC Res 186 (4 March 1964): The Cyprus Question SC Res 187 (4 March 1964): The Cyprus Question SC Res 191 (18 June 1964): Question relating to the Policies of Apartheid of the Government of the Republic of South Africa SC Res 199 (30 December 1964): The Congo Question SC Res 202 (6 May 1965): The Situation in Southern Rhodesia SC Res 209 (4 September 1965): The India-Pakistan Question SC Res 210 (6 September 1965): The India-Pakistan Question SC Res 211 (20 September 1965): The India-Pakistan Question SC Res 216 (12 November 1965): The Situation in Southern Rhodesia SC Res 217 (20 November 1965): The Situation in Southern Rhodesia SC Res 218 (23 November 1965): Question relating to Territories under Portuguese Administration SC Res 232 (16 December 1966): The Situation in Southern Rhodesia SC Res 233 (6 June 1967): The Situation in the Middle East SC Res 234 (7 June 1967): The Situation in the Middle East SC Res 244 (22 December 1967): The Cyprus Question SC Res 269 (12 August 1969): The Situation in Namibia SC Res 276 (30 January 1970): The Situation in Namibia SC Res 279 (12 May 1970): The Situation in the Middle East SC Res 289 (23 November 1970): Complaint by Guinea SC Res 290 (8 December 1970): Complaint by Guinea SC Res 294 (15 July 1971): Complaint by Senegal SC Res 303 (6 December 1971): The Situation in the India/ Pakistan Subcontinent SC Res 307 (21 December 1971): The Situation in the India/ Pakistan Subcontinent SC Res 313 (28 February 1972): The Situation in the Middle East

75 88, 103, 185 75 75 75, 103

103 75, 90 75 103 114 75 75 76 75, 114, 270 75 75 103 114 75, 114 114 75 114 114 75 76 114 75 214 75 75

List of UN Resolutions

SC Res 322 (22 November 1972): The Situation in Territories under Portuguese Administration SC Res 338 (22 October 1973): Cease-Fire in the Middle East SC Res 339 (23 October 1973): Cease-Fire between Egypt and Israel SC Res 340 (25 October 1973): UN Emergency Force for the Middle East SC Res 350 (31 May 1974): Israel-Syrian Arab Republic Question SC Res 353 (20 July 1974): The Cyprus Question SC Res 357 (14 August 1974): The Cyprus Question SC Res 380 (6 November 1975): The Western Sahara Question SC Res 384 (22 December 1975): The East Timor Question SC Res 395 (25 August 1976): The Greece-Turkey Question SC Res 436 (6 October 1978): The Situation in Lebanon SC Res 450 (14 June 1979): The Israel-Lebanon Question SC Res 479 (28 September 1980): The Iraq-Islamic Republic of Iran Question SC Res 502 (3 April 1982): The Situation in Falkland Islands (Malvinas) SC Res 512 (19 June 1982): The Situation in Lebanon SC Res 514 (12 July 1982): The Iraq-Islamic Republic of Iran Question SC Res 521 (19 September 1982): The Situation in Lebanon SC Res 522 (4 October 1982): Iraq-Islamic Republic of Iran Question SC Res 552 (1 June 1984): Attacks by Islamic Republic of Iran on Commercial Ships SC Res 556 (23 October 1984): The Situation in South Africa SC Res 564 (31 May 1985): The Situation in Lebanon SC Res 598 (20 July 1987): The Iraq-Islamic Republic of Iran Question SC Res 619 (9 August 1988): The Iraq-Islamic Republic of Iran Question SC Res 622 (31 October 1988): The Afghanistan-Pakistan Question SC Res 626 (20 December 1988): The Situation in Angola SC Res 644 (7 November 1989): The Situation in Central America

xliii

75 75, 91, 113 91, 113 76, 91 96 75–76, 90, 214 90 76 214 114 75, 114 177 83 74, 76, 235 75 75, 83 114 83 75 75 75 84 84 83 130, 160 161

xliv

List of UN Resolutions

SC Res 650 (27 March 1990): The Situation in Central America 162 SC Res 660 (2 August 1990): The Iraq-Kuwait Question 75 SC Res 661 (6 August 1990): The Iraq-Kuwait Question 236 SC Res 687 (3 April 1991): The Iraq-Kuwait Question 268 SC Res 713 (25 September 1991): Socialist Federal Republic of Yugoslavia 9, 75, 103, 114, 214, 236, 247, 254 SC Res 733 (23 January 1992): The Situation in Somalia 9, 75, 103, 160, 183 SC Res 743 (21 February 1992): Socialist Federal Republic of Yugoslavia 114, 123, 191 SC Res 745 (28 February 1992): The Situation in Cambodia 98 SC Res 746 (17 March 1992): The Situation in Somalia 160, 183 SC Res 748 (31 March 1992): Libyan Arab Jamahiriya 117, 137, 252 SC Res 749 (7 April 1992): Socialist Federal Republic of Yugoslavia 75, 114 SC Res 751 (24 April 1992): The Situation in Somalia 160, 163, 183 SC Res 752 (15 May 1992): The Situation in Bosnia and Herzegovina 114 SC Res 757 (30 May 1992): The Situation in Bosnia and Herzegovina 103 SC Res 770 (13 August 1992): The Situation in Bosnia and Herzegovina 75, 191 SC Res 794 (3 December 1992): The Situation in Somalia 163, 183 SC Res 795 (11 December 1992): The Situation in Macedonia 93 SC Res 797 (16 December 1992): The Situation in Mozambique 96 SC Res 814 (26 March 1993): The Situation in Somalia 164, 183, 192 SC Res 816 (31 March 1993): The Situation in Bosnia and Herzegovina 191 SC Res 817 (7 April 1993): New member: FYROM 92 SC Res 836 (4 June 1993): The Situation in Bosnia and Herzegovina 177, 191 SC Res 837 (6 June 1993): The Situation in Somalia 183 SC Res 872 (5 October 1993): The Situation in Rwanda 14, 203 SC Res 883 (11 November 1993): Libyan Arab Jamahiriya 252 SC Res 908 (31 March 1994): Extension of the Mandate and Increase of the Personnel of the UN Protection Force 94

List of UN Resolutions

SC Res 915 (4 May 1994): Establishment of the UN Aouzou Strip Observer Group SC Res 929 (22 June 1994): Establishment of a Temporary Multinational Operation for Humanitarian Purposes in Rwanda SC Res 968 (16 December 1994): Establishment of a UN Mission of Observers in Tajikistan SC Res 994 (17 May 1995): Deployment of the UN Confidence Restoration Operation in Croatia SC Res 1011 (16 August 1995): Lifting of Arms Embargo against Rwanda SC Res 1037 (15 January 1996): Establishment of UN Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium SC Res 1074 (1 October 1996): Termination of All Sanctions against Federal Republic of Yugoslavia SC Res 1094 (20 January 1997): Deployment of Military Observers in Guatemala SC Res 1101 (28 March 1997): The Situation in Albania SC Res 1127 (28 August 1997): The Situation in Angola SC Res 1156 (16 March 1998): The Situation in Sierra Leone SC Res 1160 (31 March 1998): Imposition of Arms Embargo on Federal Republic of Yugoslavia SC Res 1171 (5 June 1998): Termination of Arms Embargo against Sierra Leone SC Res 1199 (23 September 1998): The Situation in Kosovo (FRY) SC Res 1244 (10 June 1999): Authorisation of Civil, Security Presence in Kosovo SC Res 1264 (15 September 1999): The Situation in East Timor SC Res 1270 (22 October 1999): Establishment of UN Mission in Sierra Leone SC Res 1272 (25 October 1999): Establishment of UN Transitional Administration in East Timor SC Res 1284 (17 December 1999): The Situation concerning Iraq SC Res 1327 (13 November 2000): Implementation of the Report of the Panel on United Nations Peace Operations (S/2000/809) SC Res 1366 (30 August 2001): Role of the Security Council in the Prevention of Armed Conflicts SC Res 1367 (10 September 2001): End of Arms Embargo against Yugoslavia SC Res 1373 (28 September 2001): Condemnation of International Terrorism SC Res 1509 (19 September 2003): Establishment of UN Mission in Liberia

xlv

84 155 84 75 236

99 103 84 155 131, 161 236 103, 274 236 104 99, 273 19 6, 96 99 268 33, 222 11 103 112, 115 6, 96

xlvi

List of UN Resolutions

SC Res 1528 (27 February 2004): Establishment of UN Operation in Côte d’Ivoire SC Res 1540 (28 April 2004): Non-Proliferation of Weapons of Mass Destruction SC Res 1545 (21 May 2004): Deployment of UN Operation in Burundi SC Res 1590 (24 March 2005): Report of the Secretary-General on Sudan SC Res 1625 (14 September 2005): Threats to International Peace and Security (Security Council Summit 2005) SC Res 1674 (24 April 2006): Protection of Civilians in Armed Conflict SC Res 1695 (15 July 2006): Launch of Ballistic Missiles by the Democratic People’s Republic of Korea SC Res 1696 (31 July 2006): Non-Proliferation of Nuclear Weapons in Iran SC Res 1706 (31 August 2006): Reports of the Secretary-General on Sudan

6, 96 112 6, 96 6, 96 11 227 34, 75 35, 75 227

General Assembly Resolutions GA Res 109(II) (21 October 1947): Threats to the Political Independence and Territorial Integrity of Greece GA Res 377(V) (3 November 1950): Uniting for Peace GA Res 508(VI) (7 December 1951): Threats to the Political Independence and Territorial Integrity of Greece GA Res 1000 (ES-I) (5 November 1956): The Situation in Suez GA Res 1237(ES-III) (21 August 1958): The Situation in Lebanon GA Res 2131 (XX) (21 December 1965): Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty GA Res 2625 (XXV) (24 October 1970): Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations GA Res 2793(XXVI) (7 December 1971): Question considered by the Security Council at Its 1606th, 1607th and 1608th Meetings on 4, 5 and 6 December 1971 GA Res 3212(XXIX) (1 November 1974): Question of Cyprus GA Res 3485(XXX) (12 December 1975): Question of Timor

212 215 212 20 83

137

137

214 214 214

List of UN Resolutions

GA Res 36/103 (9 December 1981): Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States GA Res 43/51 (5 December 1988): Declaration on the Prevention and Removal of Disputes and Situations Which May Threaten International Peace and Security and on the Role of the United Nations in this Field GA Res 45/150 (18 December 1990): Enhancing the Effectiveness of the Principle of Periodic and Genuine Elections GA Res 45/151 (18 December 1990): Respect for the Principles of National Sovereignty and Non-Interference in the Internal Affairs of States in Their Electoral Processes GA Res 46/59 (9 December 1991): Declaration on Fact-Finding by the United Nations in the Field of the Maintenance of International Peace and Security GA Res 46/130 (17 December 1991): Respect for the Principles of National Sovereignty and Non-Interference in the Internal Affairs of States in Their Electoral Processes GA Res 46/137 (17 December 1991): Enhancing the Effectiveness of the Principle of Periodic and Genuine Elections GA Res 47/121 (18 December 1992): The Situation in Bosnia and Herzegovina GA Res 48/88 (20 December 1993): The Situation in Bosnia and Herzegovina GA Res 49/10 (3 November 1994): The Situation in Bosnia and Herzegovina GA Res 50/6 (24 October 1995): Declaration on the Occasion of the 50th Anniversary of the United Nations GA Res 55/2 (8 September 2000): Millennium Declaration GA Res 57/337 (18 July 2003): Prevention of Armed Conflict GA Res 60/1 (24 October 2005): 2005 World Summit Outcome

xlvii

137

8 165

165

8, 266

165 165 214, 247 214, 247 214, 247 2 2 11 11, 226

Introduction Human history demonstrates an endemic cycle of war and peace: war causing disastrous damage to human lives and peace meaning no more than an absence of war. At the end of the Cold War the world appeared to enter into a new age with the ostensible prospect for lasting peace. However, the chance for celebration was short-lived. The changing political climate has posed new threats to international peace and security such as wide-spread intra-state conflicts, terrorist threats on an unprecedented scale, and the growing inclination towards unilateralism of US hegemony. The drastic development of scientific technology, including nuclear weapons and other weapons of mass destruction, has posed a greater risk that armed conflicts could cause catastrophe to the human environment as well as human lives on a large scale. The greatest security threats that we have ever faced necessarily alert us to the significance of measures to prevent or curtail armed conflicts. It is generally considered that the UN Security Council has only been galvanised since the end of the Cold War to perform its assigned tasks necessary to maintain the collective security system under the UN Charter.1 The number of resolutions adopted by the Security Council ostensibly indicates that it has become much more active since the 1990s than before. The upsurge in instances of invoking Chapter VII of the Charter is in fact generally seen as a sign of the invigoration of the authority of the Security Council. It is arguable, however, that the invigoration of the Security Council under Chapter VII is rather evidence of a failure on the part of the UN to prevent armed conflicts from escalating into a threat to international peace and security, inasmuch as Chapter VII powers must be based on the determination to that effect pursuant to Article 39 of the Charter.2 Apart from the failure of prevention, the upsurge of Chapter VII measures has even raised questions as to the legitimacy of the Security Council’s authority. The whole state of affairs appears to have changed in the 1990s; since then the Security Council has found more opportunities both to reach unanimous decisions among permanent members and to take advantage of Chapter VII powers.

1 2

1945 Charter of the United Nations, USTS No. 993 (hereinafter UN Charter). Article 39 of the Charter provides that: ‘The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security’.

2

Introduction

The post-Cold War political climate has presented a growing and sharp contrast between an overactive Security Council and a rather stagnant General Assembly,3 which renders the domination by the five Security Council permanent members unchecked and unbalanced by the universal deliberative body. The possibility of abusive and arbitrary use of enforcement powers has generated political mistrust towards the Security Council, resulting in a crisis of legitimacy and credibility of the Security Council’s authority.4 The current quest for Security Council reform has, at least on the face of it, attained unanimous support, notably in the UN Millennium Declaration, whereby all states resolved to intensify their efforts ‘to achieve a comprehensive reform of the Security Council in all its aspects’.5 Yet the reform appears to be doomed to failure, leaving the fundamental question of legitimacy unresolved. This book attempts to address those two-faceted issues surrounding the Security Council – doing too little on the one hand, and doing too much on the other – by casting renewed light on its peacekeeping measures with the focus on Article 40 of the UN Charter as the primary legal basis. As the former ICJ Judge P. H. Kooijmans noted, Article 40 is often mentioned only in passing and is seldom dealt with independently, despite the fact that many of the Security Council’s resolutions have been adopted by virtue of Article 40 even if there is no explicit mention of the provision.6 By placing Article 40 at the centre of the legal regime governing peacekeeping measures, a more flexible approach to conflict management will be facilitated, which will arguably enable the Security Council to direct peacekeeping measures at an earlier stage of conflict. The provisional nature of the peacekeeping power as well as stringent legal requirements under Article 40 will at the same time

3

4 5

6

The General Assembly’s waning authority is well described in the High-Level Panel Report as follows: Its norm-making capacity is often squandered on debates about minutiae or thematic topics outpaced by real-world events. Its inability to reach closure on issues undermines its relevance. An unwieldy and static agenda leads to repetitive debates. UN Secretary-General’s High-Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility (New York: United Nations Department of Public Information, 2004) at para. 241. See, id. at para. 246. GA Res 55/2 (8 September 2000) at para. 30; see also, Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, at para. 14, GA Res 50/6 (24 October 1995) (‘The Security Council should, inter alia, be expanded and its working methods continue to be reviewed in a way that will further strengthen its capacity and effectiveness, enhance its representative character and improve its working efficiency and transparency’). Peter Kooijmans, ‘Provisional Measures of the UN Security Council’ in Erik Denters & Nico Schrijver (eds), Reflections on International Law from the Low Countries: In Honour of Paul de Waart (The Hague: Kluwer Law International, 1998) 289 at 289.

Introduction

3

help restrain peacekeeping measures, whilst maintaining respect for the sovereignty of states in a balanced and nuanced manner. The Charter-based understanding of peacekeeping operations will also ensure the normative coherence and integrity of the entire institution less susceptible to state-centric pragmatic doctrines. Chapter 1 critically reviews peacekeeping practice and doctrines in the light of the policy initiative that the UN has developed for conflict prevention. First discussed are the fundamental problems that have confronted the UN in its efforts for conflict prevention and peacekeeping. The discussion leads to the examination of the tripartite doctrines of peacekeeping – consent, neutrality and the limited use of armed force. It will demonstrate the legal and theoretical difficulties associated with those doctrines whilst emphasising the Charter-based approach to peacekeeping, placing Article 40 at the centre of the legal basis. The proposition that Article 40 of the Charter provides the legal basis for peacekeeping measures will be examined in Chapters 2 and 3. Chapter 2 looks at the origins of peacekeeping measures that are found primarily in the experience of the League of Nations in its efforts for war prevention, which arguably led to the insertion of Article 40 of the Charter. This historical examination reinforces the preliminary observation that the legal basis for peacekeeping can be found in provisional measures under Article 40 of the Charter. Chapter 3 confirms this observation by examining several different types of provisional measures that have been undertaken by the Security Council. Chapters 4, 5 and 6 consider the requirements contained in Article 40 of the Charter to regulate the way in which peacekeeping measures are to be directed and undertaken. Each requirement constitutes an essential feature of peacekeeping, which both strengthen and restrain its operation. In examining each requirement, these chapters address issues regarding the legal force of peacekeeping measures, the relationship with the principle of non-intervention in the light of neutrality and impartiality, and the extent to which armed force can be used for the implementation. There have been extensive debates as to the legal status of UN peacekeeping operations, and more recently, the legal status of ‘peace enforcement’ operations. This study proposes that Article 40 of the Charter provides legal criteria against which legal issues embedded in those questions can be clarified and resolved. Chapters 7 and 8 develop the argument further by situating peacekeeping measures under Article 40 of the Charter within the regulatory framework. Building upon the previous chapters, Chapter 7 undertakes a full examination of the jurisdictional basis, legality, and legitimacy of peacekeeping measures under Article 40 that constitute the regulatory criteria by reference to which the Security Council’s peacekeeping powers are to be regulated. In this context, it will also be argued that the current move towards the ‘responsibility to protect’ should be reflected in peacekeeping, having regard to its regulatory effects upon the legal status of military action undertaken by the parties to a conflict. While Chapter 7 is concerned with

4

Introduction

the substantive aspect of the regulatory framework for peacekeeping measures, Chapter 8 addresses the procedural aspect of the regulation and considers mechanisms within which it can be ensured that peacekeeping measures are undertaken and implemented in accordance with those substantive criteria.

Chapter 1 Peacekeeping in Perspective 1. Conflict Prevention and Peacekeeping ‘An ounce of prevention is worth a pound of cure’. Another classical adage also goes, ‘better safe than sorry’. The adage has been incorporated into the political agenda. Illustrative is the policy of prevention that has formed one of the pillars to guide the United Nations (UN) in the post-Cold War era, as listed in the ground-breaking report An Agenda for Peace issued in 1992 at the behest of the UN Security Council in its first summit meeting.1 Yet conflict prevention has found little comfort in the actual international scene.2 The upsurge of incidents involving the invocation of Chapter VII of the UN Charter,3 whilst generally seen as the reinvigoration of Security Council actions, is in fact evidence of the failure to prevent armed conflicts from reaching the level of intensity deemed to be a threat to international peace and security. The policy of prevention and peacekeeping operations grew side by side in the Cold War era, aiming at keeping conflicts outside the sphere of bipolar world politics.4 While it underwent several phases of metamorphosis expanding not just in numbers but also in the nature and scope of its missions,5 the contemporary practice of peacekeeping is characterised more as post-conflict deployment upon

1

2

3 4

5

An Agenda for Peace: Report of the Secretary-General pursuant to the Statement Adopted by the Summit Meeting of the Security Council on 31 January 1992, UN Doc A/47/277-S/24111 (17 June 1992) (hereinafter An Agenda for Peace). It has been pointed out that UN peace operations addressed no more than one third of conflicts of 1990s: see, Report of the Panel on United Nations Peace Operations, at paras. 29–30, UN Doc A/55/305-S/2000/809 (21 August 2000) (hereinafter Brahimi Report). 1945 Charter of the United Nations, USTS No. 993 (hereinafter UN Charter). See, e.g., Ramesh Thakur, The United Nations, Peace and Security (Cambridge: Cambridge University Press, 2006) at 34. The definition of peacekeeping has been the subject of controversy and the expansion of its missions since the 1990s has further muddied the issue, as explained below in Section 4. This study will not attempt to provide a comprehensive definition of peacekeeping, but rather uses the term to describe the functions that the Security Council can perform in directing provisional measures under Article 40 of the UN Charter such as calls for a cease-fire, the dispatch of a peace observation mission, the deployment of a peacekeeping force, and arms embargoes, which could be wider

6

Chapter 1

the conclusion of a peace agreement.6 The majority of recent peacekeeping operations have also been undertaken under Chapter VII often with the authority to use force to carry out specific and detailed mandates.7 The recent practice thus indicates that the primacy focus of peacekeeping has been the maintenance of peace and security in the aftermath of an armed conflict rather than prevention at an earlier stage of the conflict. This chapter lays the foundation of this book by examining the tension between the desire for the robust operation of a collective security mechanism based on the UN Charter and the strong resistance of state sovereignty, which has underlain the development of doctrinal constraints without being subject to critical review upon peacekeeping in its preventive use.

2. Concept of Conflict Prevention A. The Development of UN Policies on Conflict Prevention Although the systematic analysis of conflict prevention began in response to the request made by the 1992 Summit Meeting of the Security Council, the idea had already been expressed by the term ‘preventive diplomacy’ in the early years of the UN’s history.8 The concept of preventive diplomacy has in fact been associated with the second UN Secretary-General, Dag Hammarskjöld, for his leading role in organising and directing the UN Emergency Force (UNEF), the UN Observation Group in Lebanon (UNOGIL), and the UN Operation in the Congo (ONUC).9 The idea that it carried was different from and was framed more negatively than conflict prevention as understood nowadays, given that preventive diplomacy was used to refer to efforts by the UN to prevent local disputes in the third world from

6

7

8

9

or narrower than the definition of peacekeeping that different commentators may envisage: see, Ch. 3. See, e.g., SC Res 1590 (24 March 2005) (Sudan); SC Res 1545 (21 May 2004) (Burundi); SC Res 1528 (27 February 2004) (Côte d’Ivoire); SC Res 1509 (19 September 2003) (Liberia); SC Res 1270 (22 October 1999) (Sierra Leone). See also, Jane Boulden, ‘Double Standards, Distance and Disengagement: Collective Legitimization in the Post-Cold War Security Council’ (2006) 37 Security Dialogue 409 at 417–419. See, Niels Blokker, ‘The Security Council and the Use of Force: On Recent Practice’ in Niels Blokker & Nico Schrijver (eds), The Security Council and the Use of Force: Theory and Reality – A Need for Change? (Leiden: Martinus Nijhoff Publishers, 2005) 1 at 17–21 (reviewing Security Council resolutions relating to the use of force adopted in 2004). For a comprehensive study on the idea and practice of preventive diplomacy, see, Bertrand G. Ramcharan, Preventive Diplomacy at the UN (Boomington: Indiana University Press, 2008). See, e.g., Brian Urquhart, Hammarskjold (New York: Alfred A. Knopf, 1972); James M. Boyd, United Nations Peace-Keeping Operations: A Military and Political Appraisal (New York: Praeger, 1971) at 162.

Peacekeeping in Perspective

7

sparking a confrontation between the two superpowers in the Cold War.10 Nonetheless, as will be examined in Chapter 3, the deployment of peacekeeping operations by the Security Council during the Cold War made a significant contribution to the containment of local conflicts at an early stage. In the 1980s, the Secretary-General, Javier Pérez de Cuéllar, urged that a systematic mechanism be created for the prevention of armed conflicts.11 Having criticised the general practice of the UN ‘to address a particular situation only after it has clearly taken a turn towards the use of force’,12 Pérez de Cuéllar established an Office for Research and the Collection of Information (ORCI) within the UN Secretariat whose function was to provide early-warning as a vital element in the Secretary-General’s preventive diplomacy by gathering information, conducting research, and assessing global trends.13 This development can be evaluated as a progressive development of the Secretary-General’s functions under Article 99 of the UN Charter.14 Yet the bureaucratic resistance from other Secretariat departments, together with insufficient managerial skills, eventually led the successive Secretary-General, Boutros Boutros-Ghali, to the abrogation of this initiative in favour of assigning this function to the Department of Political Affairs.15 Currently, information gathering is carried out by a wide variety of governmental or nongovernmental organisations, which notably include the International Crisis Group

10

11

12

13

14

15

Annual Report of the Secretary-General on the Work of the Organization, 16 June 1959–15 June 1960, at 4, UN Doc A/4390/Add.1 (31 August 1960); see also, Richard I. Miller, Dag Hammarskjold and Crisis Diplomacy (New York: Oceana Publications, 1961) at 326. Javier Pérez de Cuéllar, Anarchy or Order: Annual Reports 1982–1991 (New York: United Nations Publications, 1991) at 90. Id. at 228; see also, B. G. Ramcharan, Keeping Faith with the United Nations (Dordrecht: Martinus Nijhoff Publishers, 1987) at 92–93. For a thorough examination of the ORCI, see, B. G. Ramcharan, The International Law and Practice of Early-Warning and Preventive Diplomacy: The Emerging Global Watch (Dordrecht: Martinus Nijhoff Publishers, 1991) at 44–59; Thomas E. Boudreau, Sheathing the Sword: The U.N. Secretary-General and the Prevention of International Conflict (Westport: Greenwood Press, 1991) at 115–126. See, e.g., Boudreau, above n. 13 at 18; Nabil Elaraby, ‘The Office of the Secretary-General and the Maintenance of International Peace and Security’ in United Nations Institute for Training and Research, The United Nations and the Maintenance of International Peace and Security (Dordrecht: Martinus Nijhoff Publishers, 1987) 177 at 194. Article 99 of the Charter provides that: ‘The Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security’. The potentially wide application of Article 99 was already pointed out much earlier: see, e.g., Josef L. Kunz, ‘The Legal Position of the Secretary General of the United Nations’ (1946) 40 AJIL 786 at 790–792. James S. Sutterlin, The United Nations and the Maintenance of International Security: A Challenge to be Met (2nd ed., Westport: Praeger, 2003) at 18–19.

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Chapter 1

and the Carnegie Commission on Preventing Deadly Conflict.16 These groups offer updated analyses of and suggestions for the improvement of conflict situations in the world that are likely to endanger international peace and security. Pérez de Cuéllar also sought the possible utilisation of peacekeeping missions and factfinding missions to head off violence.17 The idea of utilising fact-finding missions and peacekeeping missions as preventive measures had thus already been emerging before the well-known An Agenda for Peace was issued. In response to the request made by the Security Council in 1992, the then Secretary-General Boutros Boutros-Ghali started a comprehensive study on the UN’s capacity for preventive diplomacy, peacemaking and peace-keeping, resulting in the publication of An Agenda for Peace.18 Boutros-Ghali proposed four pillars of action for peace preservation: preventive diplomacy; peacemaking; peace-keeping; and peace-building. In An Agenda for Peace, preventive diplomacy is defined as an ‘action to prevent disputes from arising between parties, to prevent existing disputes from escalating into conflicts and to limit the spread of the latter when they occur’.19 It also addresses five different types of measure to be employed: confidence-building; early warning; fact-finding; preventive deployment; and the creation of demilitarised zones.20 While confidence-building and early warning are aimed at early prevention by providing a dispute settlement service in the very early stage of disputes, preventive deployment and the establishment of demilitarised zones can take place as late prevention attempting to desist the parties to a conflict from escalating their hostile actions.21 On the other hand, fact-finding can be used at any stage of conflict development.22 Another innovative feature of the report is the new concept of

16

17

18 19 20 21

22

See, International Crisis Group, the website at ; Carnegie Commission on Preventing Deadly Conflict, the website at . Ramcharan, above n. 13 at 20. The idea was warmly welcomed in the General Assembly: see, Declaration on the Prevention and Removal of Disputes and Situations Which May Threaten International Peace and Security and on the Role of the United Nations in this Field, at para. 12, GA Res 43/51 (5 December 1988). An Agenda for Peace, above n. 1. Id. at para. 20. Id. at para. 24–33. For this distinction, see, Gareth Evans, Cooperating for Peace: The Global Agenda for the 1990s and Beyond (Sydney: Allen & Unwin, 1993) at 65. See, Declaration on Fact-Finding by the United Nations in the Field of the Maintenance of International Peace and Security, GA Res 46/59 (9 December 1991); see also, Alex Berg, ‘The 1991 Declaration on Fact-Finding by the United Nations’ (1993) 4 EJIL 107; M.-Christiane Bourloyannis, ‘FactFining by the Secretary-General of the United Nations’ (1990) 22 NYUJILP 641; William I. Shore, Fact-Finding in the Maintenance of International Peace (New York: Oceana Publications, 1970); Edward A. Plunkett, ‘UN Fact-Finding As a Means of Settling Disputes’ (1969) 9 VaJIL 154;

Peacekeeping in Perspective

9

peace enforcement to restore and maintain cease-fires as a provisional measure in accordance with Article 40 of the Charter.23 Peace enforcement was regarded as provisional conflict management to bring an end to armed hostilities. Noble ideas nonetheless, the failure of prevention ensued in practice and left the unresolved obstinate problem of unbalanced commitments by the Security Council. The belated deployment of peacekeeping forces in Bosnia (UNPROFOR) and Somalia (UNOSOM) in the early 1990s made little contribution to the improvement of the situations which had already become so serious as to require immediate and effective action. Both deployments were instead met by inappropriate mandates and insufficient military strength. The approach to the situation in Bosnia was described as if the UN had chosen ‘to respond to major unlawful violence, not by stopping that violence, but by trying to provide relief to the suffering’.24 In the case of Somalia, the UNOSOM Force Commander, General Mohamed Sahnoun, recalled the mission, making no secret of his belief that ‘if the international community had intervened earlier and more effectively in Somalia, much of the catastrophe that has unfolded could have been avoided’.25 Even though due regard should be had to the fact that the Security Council endeavoured to impose an arms embargo on the Former Yugoslavia and Somalia at a relatively early stage in each conflict,26 the Security Council’s failure to bring about tangible improvements in the deteriorating situations had a traumatic impact upon the subsequent courses of action that it took. In the age of the new millennium, renewed efforts for conflict prevention were made on the initiative of the former Secretary-General Kofi Annan. Urging that

23

24

25

26

J. H. Leurdijk, ‘Fact-Finding: Its Place in International Law and International Politics’ (1967) 14 NILR 141. This concept will be examined in Ch. 6 to see to what extent provisional measures under Article 40 of the Charter can resort to the use of armed force. Rosalyn Higgins, ‘The New United Nations and Former Yugoslavia’ (1993) 69 International Affairs 465 at 469. For a detailed study on the cause of failure to prevent the Bosnian situation from further deterioration, see, e.g., Raimo Väyrynen, ‘Preventive Action: Failure in Yugoslavia’ (1996) 3(4) International Peacekeeping 21; Åge Eknes, ‘The United Nations’ Predicament in the Former Yugoslavia’ in Thomas G. Weiss (ed.), The United Nations and Civil Wars (Boulder: Lynne Rienner Publishers, 1995) 109; Victor-Yves Ghebali, ‘UNPROFOR in the Former Yugoslavia: The Misuse of Peacekeeping and Associated Conflict Management Techniques’ in D. Warner (ed.), New Dimensions of Peacekeeping (The Hague: Kluwer Law International, 1995) 13. Mohamed Sahnoun, Somalia: The Missed Opportunities (Washington: US Institute of Peace, 1994) at xiii. See generally, The United Nations and the Situation in Somalia (New York: UN Department of Public Information, 1994); Jeffrey Clark, ‘Debacle in Somalia: Failure of the Collective Response’ in Lori Fisler Damrosch (ed.), Enforcing Restraint: Collective Intervention in Internal Conflicts (New York: Council on Foreign Relations Press, 1993) 205. SC Res 713 (25 September 1991); SC Res 733 (23 January 1992). The legal nature of the arms embargo is discussed in Christine Gray, ‘Bosnia and Herzegovina: Civil War or Inter-State Conflict? Characterization and Consequences’ (1996) 67 BYBIL 155 at 180. See also, Ch. 3, Section 6.

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it was necessary to ‘translate the promise of prevention into concrete action’, Kofi Annan issued a report entitled Prevention of Armed Conflict.27 Bearing in mind the distinction between ‘operational prevention’ and ‘structural prevention’,28 he stressed the need to pursue long-term structural prevention, making it interconnected with an investment in sustainable development.29 At a short-term operational level, the report recommended that the preventive deployment of peacekeeping forces be more actively used, and that disarmament, demobilisation and reintegration be incorporated into the mandates given to UN peacekeeping operations.30 In his subsequent report, systematic prevention was added as the third sphere of prevention to address global root causes of conflict that transcend states’ borders such as illicit trade in small arms and environmental degradation.31 Preventive diplomacy can thus be understood as consisting of a broad range of measures. The Secretaries-General’s suggestions about this concept are generally confined to operational improvements in conflict prevention, and mainly emphasise the role that the Secretary-General should play. In fact, the Brahimi Report in 2000 has suggested that the use of fact-finding missions on the initiative of the Secretary-General should lie at the heart of the issue of conflict prevention, with a view to protecting small states’ concerns about their sovereignty and bridging the gap between verbal postures and financial and political support for prevention.32 Subsequently, in his 2005 report In Larger Freedom,33 Kofi Annan identified mediation, sanctions, peacekeeping, peacebuilding and the regulation of small arms as the main pillars for reducing the risk and prevalence of war, urging member states to allocate additional resources and to ensure effective capacities for implementing those policies.34 Both the Security Council and General Assembly endorsed the Secretary-General’s report on the prevention of armed conflict, expressing their commitments to take

27 28

29 30 31

32 33

34

Prevention of Armed Conflict, UN Doc A/55/985-S/2001/574 (7 June 2001). The distinction echoes the study published by the influential Carnegie Commission on Preventing Deadly Conflict, the former encompassing traditional peacekeeping to achieve a short-term prevention and the latter addressing the root cause. See, Carnegie Commission on Preventing Deadly Conflict, Preventing Deadly Conflict: Final Report (New York: Carnegie Corporation, 1997), available at (last visited 12 March 2008). Prevention of Armed Conflict, above n. 27 at paras. 8–11. Id. at paras. 81–93. Report of the Secretary-General: Progress Report on the Prevention of Armed Conflict, at para. 8. UN Doc A/60/891 (18 July 2006). Brahimi Report, above n. 2 at paras. 32–33. Kofi A. Annan, In Larger Freedom: Towards Development, Security and Human Rights for All (New York: United Nations, 2005). Id. at 39–43, paras. 108–121.

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early and effective action to prevent armed conflict.35 The 2005 World Summit Outcome also reiterated their commitment to promote a culture of prevention of armed conflict and to strengthen the UN capacity to that end.36 Yet the adoption of such a broad and elastic concept encompassing structural and systematic prevention arguably diverts our attention away from more immediate concerns with responding effectively to erupting violence.37 The expanded approach to prevention arguably camouflaged the Security Council’s inaction by linking strategies for prevention with the whole range of UN activities. The restricted intervention by the Security Council, when it comes to prevention, was welcomed with a chorus of praise by a number of countries, as it meant opening up a dialogue on prevention with less prominent organs such as the Economic and Social Council (ECOSOC) and the UN Development Programme (UNDP).38 While such an expanded conception of prevention merits political attention, it should not detract attention from the primary role the Security Council can and should play at the operational level in taking the initiative in preventing the aggravation of armed conflict. In fact, little attention has been given to the legal parameters of the Security Council’s powers for the purpose of prevention at the operational level,39 despite the fact that it has the primary responsibility for the maintenance of international peace and security in order ‘to take effective collective measures for the prevention and removal of threats to the peace’.40 For example, what role can the Security Council play as part of the international efforts to prevent the escalation of an armed conflict? Under what circumstances is the Security Council authorised, or even required, to respond to the destructive spiral of violence? To what extent and in what manner can the Security Council exercise its power to create an environment conducive to a peaceful settlement?

35

36 37

38 39

40

See, SC Res 1366 (30 August 2001); SC Res 1625 (14 September 2005); GA Res 57/337 (18 July 2003). GA Res 60/1 (24 October 2005) at para. 74. See, e.g., Edward C. Luck, ‘Prevention in Theory and Practice’ in Fen Osler Hampson and David M. Malone (eds), From Reaction to Conflict Prevention: Opportunities for the UN System (Boulder: Lynne Rienner Publishers, 2002) 251 at 256–261. Id. at 252–255. Cf. Elizabeth M. Cousens, ‘Conflict Prevention’ in David M. Malone (ed.), The UN Security Council: From the Cold War to the 21st Century (Boulder: Lynne Rienner Publishers, 2004) 101 (examining the political parameters for the Security Council’s role in preventing conflict). Article 1(1) of the Charter sets forth one of the purposes of the UN as ‘[t]o maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace’.

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The insufficient attention given to the preventive role of the Security Council appears to have helped in shaping a common feature of the way in which it deals with an armed conflict: while leaving the political process towards a cease-fire in the realm of diplomatic negotiations, the Security Council deploys a peacekeeping operation upon the conclusion of a cease-fire agreement between the parties to a conflict, often invoking Chapter VII powers. The most striking example in this relation is the UN’s active involvement in post-conflict peace-building, especially in a large-scale transitional territorial administration under UN authority.41 While the significance of post-conflict operations should not be understated for its role to prevent the recurrence of conflict, too much reliance on post-conflict reaction instead of prevention at an early stage of armed conflict indicates an imbalance of emphasis in UN operations. As the Swedish representative remarked in the General Assembly’s discussion on the prevention of armed conflict, preventive action should be proportional to the intensity of conflict: first, measures such as fact-finding and the range of conflict resolution tools under Chapter VI of the Charter are to be utilised; and if they do not suffice, further steps such as deployment of peacekeeping missions must be considered.42 Yet in practice, the value and potential of peacekeeping operations in the context of conflict prevention does not seem to have been fully explored, despite the central role that they have played from the inception of the UN. Besides the issues of capacity and resources, the sustained ambiguity and uncertainty surrounding the basic precepts of peacekeeping have posed an enormous challenge to a comprehensive overhaul of its entire institution,43 restricting its potential use for an early deployment and even causing operational failure when peacekeeping forces were deployed. B. Obstacles to Conflict Prevention Notwithstanding the development and reiteration of the concept of prevention by successive Secretaries-General, the Security Council has failed to prevent the escalation of armed conflicts, contrary to the growing expectation that the Security Council would have been able to exert its fully-fledged powers after the end of the Cold War.

41

42 43

See generally, Ralph Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (Oxford: Oxford University Press, 2008); Simon Chesterman, You, The People: The United Nations, Transitional Administration, and State-Building (Oxford: Oxford University Press, 2004). UN Doc A/60/PV.98 (7 September 2006) at 2. See, Report of the Secretary-General: Implementation of the Recommendations of the Special Committee on Peacekeeping Operations, at para. 33, UN Doc A/60/640 (29 December 2005).

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So long as the policy of prevention remains on the political agenda, much would have to be subject to international politics and diplomacy in deciding whether and what type of preventive measures should be undertaken. In fact, it is political scientists who have been most enthusiastically engaging in extensive academic and policy debates on, for example, how to avoid failing to undertake preventive measures and how to improve the way in which such measures can forestall the outbreak or aggravation of conflicts.44 Yet some political scientists acknowledge that there is an inherent limitation in their studies, given the fact that, owing largely to the absence of political will, governments tend to ignore an incipient crisis until it has escalated into a deadly conflict or a major catastrophe.45 It was the absence of political will that prevented the Security Council from taking action to forestall the Iraqi invasion of Kuwait in 1990. Although the Kuwait-Iraq border conflict had ceased during the Iran-Iraq armed conflict in the 1980s, the relationship between Kuwait and Iraq had deteriorated by the end of June 1990, with Kuwait’s excessive oil production driving down the international market oil price. Given that Iraq was particularly dependent on a high oil price for its own economic reconstruction and for the payment of a total foreign debt of US$45 billion, Kuwait’s action prompted Iraq to take a forceful attitude.46 The Iraqi invasion of Kuwait was foreseeable, for Iraq had mobilised its troops, deploying 30,000 soldiers at the border of Kuwait by 27 July 1990. However, as Reisman points out, ‘none [of the Council members] were able or willing to assume leadership and to spur the Council into action’.47 The question must be posed, however, as to whether the absence of political will alone can always explain the failure of prevention.

44

45

46

47

See, e.g., literature contained in Fen Osler Hampson & David M. Malone (eds), From Reaction to Conflict Prevention: Opportunities for the UN System (London: Lynne Rienner Publishers, 2002); literature contained in Bruce W. Jentleson (ed.), Opportunities Missed, Opportunities Seized: Preventive Diplomacy in the Post-Cold War World (Lanham: Rowman & Littlefield, 2000); Hugh Miall, Oliver Ramsbotham, & Tom Woodhouse, Contemporary Conflict Resolution: The Prevention, Management and Transformation of Deadly Conflicts (Cambridge: Polity Press, 1999); Michael S. Lund, Preventing Violent Conflicts: A Strategy for Preventive Diplomacy (Washington: United States Institute of Peace Press, 1996); Connie Peck, The United Nations As a Dispute Settlement System: Improving Mechanisms for the Prevention and Resolution of Conflict (The Hague: Kluwer Law International, 1996). See, Alexander L. George & Jane E. Holl, ‘The Warning-Response Problem and Missed Opportunities in Preventive Diplomacy’ in Bruce W. Jentleson (ed.), Opportunities Missed, Opportunities Seized: Preventive Diplomacy in the Post-Cold War World (Lanham: Rowman & Littlefield Publishers, 2000) 21 at 29–30. See generally, Christiane E. Philipp & Rüdiger Wolfrum, ‘Conflicts, Iraq/Kuwait’ in Rüdiger Wolfrum & Christiane E. Philipp (eds), United Nations: Law, Policies and Practice (Dordrecht: Martinus Nijhoff Publishers, 1995) 261 at 266; The United Nations and the Iraq-Kuwait Conflict: 1990–1996 (New York: UN Department of Public Information, 1996) at 8–14. W. Michael Reisman, ‘Some Lessons from Iraq: International Law and Democratic Politics’ (1991) 16 Yale JIL 203 at 205. See also, Claude Rakisits, ‘The Gulf Crisis: Failure of Preventive Diplomacy’

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The political will was also absent in Rwanda where the force deployed by the Security Council remained minimal in strength. Decisive was the failure to prevent the genocide in Rwanda from being unleashed on 6 April 1994,48 despite the presence of the UN Assistance Mission for Rwanda (UNAMIR), deployed on the basis of the Arusha Accords concluded on 4 August 1993,49 to monitor observance of the cease-fire agreement and the security situation.50 The absence of political will appears to be an inevitable obstacle to prevention, given the asymmetry of interests in putting resources into uncertain situations with the prospect of an inexorable involvement in an unpleasant problem. Yet the political factor does not draw the entire picture. The absence of political will was in fact interlinked with and even fuelled by the inadequate communication and shortcomings in the early warning system.51 Moreover, the cause of failure was reportedly deep-rooted in the culture that existed within the UN Department of Peacekeeping Operations, whereby the strict adherence to the rules of consent and neutrality shaped their interpretation of mandates.52

48

49

50 51

52

in Kevin Clements & Robin Ward (eds), Building International Community: Cooperating for Peace, Case Studies (Sydney: Allen & Unwin, 1994) 58. For a fuller account of the event and the background leading up to it, see, Bruce D. Jones, Peacemaking in Rwanda: The Dynamics of Failure (London: Lynne Rienner Publishers, 2001) at 21–43; literature contained in John A. Berry & Carol Pott Berry (eds), Genocide in Rwanda: A Collective Memory (Washington: Howard University Press, 1999); The United Nations and Rwanda: 1993–1996 (New York: UN Department of Public Information, 1996) at 14–42. The causes of the failure have come under extensive scrutiny by independent commissions of inquiry and also in numerous academic studies: see, e.g., Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda, UN Doc S/1999/1257 (16 December 1999); Astri Suhrke & Bruce Jones, ‘Preventive Diplomacy in Rwanda: Failure to Act or Failure of Actions?’ in Bruce W. Jentleson (ed.), Opportunities Missed, Opportunities Seized: Preventive Diplomacy in the Post-Cold War World (Lanham: Rowman & Littlefield Publishers, 2000) 238; Howard Adelman, ‘Early Warning and Prevention: The United Nations and Rwanda’ in Frances Nicholson & Patrick Twomey (eds), Refugee Rights and Realities: Evolving International Concepts and Regimes (Cambridge: Cambridge University Press, 1999) 289. The Arusha Accords consist of several peace agreements concluded between the Tutsi-led Rwandese Patriotic Front (RPF) and the Hutu government of Rwanda to end the decades-long internal armed conflict, contained in Letter from the Permanent Representative of the United Republic of Tanzania to the United Nations addressed to the Secretary-General, transmitting the Peace Agreement signed at Arusha on 4 August 1993, the N’sele Cease-Fire Agreement and Related Protocols of Agreement, UN Doc A/48/824-S/26915 (23 December 1993). See, SC Res 872 (5 October 1993). See, Touko Piiparinen, ‘Beyond the Mystery of the Rwanda “Black Box”: Political Will and Early Warning’ (2006) 13 International Peacekeeping 334; Suhrke & Jones, above n. 48 at 247; Adelman, above n. 48 at 299. Michael Barnett & Martha Finnemore, Rules for the World: International Organizations in Global Politics (Ithaca: Cornell University Press, 2004) at 139–154.

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A more recent example is the Security Council’s failure to act decisively to stop mass killings of civilians in Darfur, Sudan. Since the current crisis in Darfur started in 2003 fuelled by the frustration of rebel groups against the Sudanese government,53 the Security Council has been staggeringly slow and reluctant to respond, leaving the responsibility for maintaining peace and security in the region primarily in the hands of the African Union.54 There was a clear lack of political will on the part of the Security Council largely influenced by the political exigencies that have arisen from the ‘war on terror’ and the invasion of Iraq.55 The Security Council member states instead expressed their concern about the potential violation of Sudanese sovereignty.56 Despite the simultaneous development of the notion of the ‘responsibility to protect’ in international arenas,57 the Security Council failed to prevent the aggravation of the armed conflict by shielding themselves behind the claim of state sovereignty. Such a decision ultimately resulted in humanitarian atrocities as described by the UN Commission of Inquiry on Darfur in 2005.58 Doubt should thus be cast on whether the absence of political will alone would sufficiently explain the failure of prevention on the whole. In many cases, the Security Council is responding to a conflict brought to its attention in one way or another, which indicates that political will is not completely absent. Political will is not a single, monolithic factor. It is rather made up from a number of different considerations such as the extent of commitment required, the prospect of success, and the doctrinal constraints that are perceived to be guiding the course of action the Security Council can take. Legal ambiguity and uncertainty may well form unnecessary barriers to making commitment for the purpose of preventing aggravation of armed conflict. At the fundamental level lies the traditional tension between the proper function of a collective security mechanism ultimately aimed at conflict prevention on the one hand and the strong notion of state sovereignty that sabotages collective

53

54

55

56

57 58

For details of the crisis, see, e.g., Julie Flint & Alex de Waal, Darfur: A Short History of a Long War (2nd ed., London: Zed Books, 2008); Gérard Prunier, Darfur: The Ambiguous Genocide (Ithaca: Cornell University Press, 2005); Scott Straus, ‘Darfur and the Genocide Debate’ (2005) 84 Foreign Affairs 123; Douglas H. Johnson, The Root Causes of Sudan’s Civil Wars (Bloomington: Indiana University Press, 2003). For an assessment of the role that African Union played, see, Paul D. Williams, ‘Military Responses to Mass Killings: The African Union Mission in Sudan’ (2006) 13 International Peacekeeping 168. See, Paul D. Williams & Alex J. Bellamy, ‘The Responsibility to Protect and the Crisis in Darfur’ (2005) 36 Security Dialogue 27 at 36–40. For details, see, Alex J. Bellamy & Paul D. Williams, ‘The UN Security Council and the Question of Humanitarian Intervention in Darfur’ (2006) 5 Journal of Military Ethics 144 at 149–153. See, Ch. 7, Section 5–A. Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General (25 January 2005).

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attempts at prevention without its consent on the other.59 Reisman draws a lesson from the Iraqi invasion of Kuwait in 1990–91, stating that: A collective security system is supposed to be prospective and deterrent rather than retrospective and corrective. In other words, a collective security system works best when the credible prospect that it will respond to acts of aggression leads a would-be aggressor to reconsider its plans in advance and to abort them.60

Notwithstanding the theoretical soundness, it appears that UN member states have increasingly come to regard the Security Council as a reactive organ, expecting instead the Secretary-General to provide services of preventive diplomacy in anticipation of a conflict in such a way as not to challenge state sovereignty.61 It has been observed that all measures that have a preventive aspect, involving anticipatory rather than reactive action to events, pose a particularly strong challenge to state sovereignty, and also face the difficulty of seeking to pacify ‘the dog that didn’t bark’.62 The tension was highlighted in the Security Council’s discussion in the aftermath of the 1999 Kosovo conflict. The issue was raised as to whether preventive measures could be taken in an internal conflict in the absence of the request or consent of the state and the parties concerned without infringing the domestic jurisdiction of the state.63 Commenting on this debate, Nolte contends that in view of the growing support of ‘a culture of prevention’, the Security Council’s powers to initiate and undertake preventive measures outside Chapter VII without violating state sovereignty have become broad.64 Yet questions remain. How can the Security Council overcome the legal obstacle of state sovereignty in undertaking preventive measures without invoking Chapter VII powers? What types of preventive measures can the Security Council take on its own initiative outside Chapter VII without violating

59

60 61

62

63

64

Feminist perspectives are acutely conscious of the inadequacy of military solution to collective security on the basis of the traditional understanding of state sovereignty and its role in maintaining peace and security: see, Hilary Charlesworth & Christine Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester: Manchester University Press, 2000) at 280–287; Hilary Charlesworth, ‘The Inadequacy of “Collectively Security”’ (2000) 9 Finnish Yearbook of International Law 39 at 41–45. Reisman, above n. 47 at 209. See, Sean D. Murphy, ‘The Security Council, Legitimacy, and the Concept of Collective Security After the Cold War’ (1994) 32 Col JTL 201 at 270. Lilly R. Sucharipa-Behrmann & Thomas M. Franck, ‘Preventive Measures’ (1998) 30 NYUJILP 485 at 493, 497. See, UN SCOR, 54th year, 4072nd mtg, UN Doc S/PV.4072 (29 November 1999) (compare especially the statements of the Chinese and Dutch representatives at 14 and 28 respectively). Georg Nolte, ‘Article 2(7)’ in Bruno Simma (ed.), The Charter of the United Nations: A Commentary (2nd ed., Oxford: Oxford University Press, 2002) 148 at 165–166.

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state sovereignty? Under what circumstances is it reasonably expected that the Security Council can and should adopt preventive measures? The Secretary-General’s High-Level Panel on Threats, Challenges and Change suggested that more attention be given to developing international regimes and norms to govern conflicts.65 Although the High-Level Panel Report focused on structural prevention, the need for developing a normative coherence and integrity is also relevant to operational prevention for which peacekeeping operations can play an active role. Has there been any development of Charter-based, cohesive norms integrated into the exercise of the Security Council powers in undertaking peacekeeping operations? The prevention of conflict by the deployment of peacekeepers will be more likely to fail as long as peacekeeping operations are dictated by the needs and self-interests of sovereign states based on pragmatic approaches. Peacekeeping operations have traditionally been guided by three doctrines – consent, neutrality, and the restriction on the use of force – that were articulated by Secretary-General Dag Hammerskjöld based on the experience of the UN Emergency Force (UNEF) in the Sinai.66 Those doctrines have been followed by subsequent peacekeeping operations without being subject to critical review in the light of the context in which each mission is deployed. Yet the functional adaptation of peacekeeping rules has created the cultural ingredients for pathological behaviour within the UN bodies, which are inclined to strictly adhere to the tripartite doctrines as ends in themselves. This pathological behaviour has arguably contributed, for example, to the failure of UNAMIL’s mission in Rwanda.67 Attention should therefore be drawn to the legal grounds of those doctrines in the light of the changing characteristics of armed conflict in order to examine the extent to which they may have contributed to, or have been guided by, the development of Charter-based normative coherence and integrity in undertaking peacekeeping operations for the purpose of conflict prevention.

3. Doctrinal Paradigm of Peacekeeping A. Consent Consent has been generally seen as a fundamental basis for UN peacekeeping operations. Since the end of the Cold War, the emergence of intra-state conflicts has posed new challenges to the UN which need to be met with a more vigorous

65

66

67

Report of the High-Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility (New York: United Nations, 2004) at 35–37, paras. 89–97. Summary Study of the Experience Derived from the Establishment and Operation of the Force, UN Doc A/3943 (9 October 1958) (hereinafter Summary Study). Barnett & Finnemore, above n. 52 at 121–155.

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approach to peacekeeping that is less dependent on the consent of states. The possibility was indicated in An Agenda for Peace in 1992 which defines peacekeeping as ‘the deployment of a United Nations presence in the field, hitherto with the consent of all the parties concerned’ (emphasis added).68 Yet this ambitious endeavour was tempered with the reality that confronted the UN in its operations in Bosnia, Somalia and Rwanda. Reviewing the implementation of the proposals made in An Agenda for Peace, Bourtros-Ghali observed in the Supplement to An Agenda for Peace that: Clearly the United Nations cannot impose its preventive and peacemaking services on Member States who do not want them. Legally and politically their request for, or at least acquiescence in, United Nations action is a sine qua non.69

The Brahimi Report in 2000 went as far as to state that not only the consent of sovereign states, but ‘consent of local parties . . . should remain the bedrock principle[] of peacekeeping’.70 The former Secretary-General Kofi Annan, in concluding his 2001 report on Prevention of Armed Conflict, also pointed out the importance of consent and support of the governments concerned, other key national actors, important neighbour countries and regional allies.71 The consensual approach has thus been expansively applied to UN peacekeeping operations and re-emphasised more strongly than ever. While recourse to Chapter VII authority has increasingly become a dominant feature of its actions, the Security Council has been reluctant to turn away from the consensual basis for peacekeeping operations.72 The continued centrality of consent, in conjunction with increased recourse to Chapter VII powers, has constituted obstacles to the preventative posture of the organ. In fact, the militia violence unleashed in East Timor in 1999 could have been prevented had the Security Council been prepared for the deterioration of the situation on the ground.73

68

69

70

71 72

73

An Agenda for Peace, above n. 1 at 4; see also, Jocelyn Coulon, Soldiers of Diplomacy: The United Nations, Peacekeeping, and the New World Order (Toronto: University of Toronto Press, 1998). Supplement to An Agenda for Peace: Position Paper of the Secretary-General on the Occasion of the Fiftieth Anniversary of the United Nations, at para. 28. UN Doc A/50/60-S/1995/1 (3 January 1995). Brahimi Report, above n. 2 at para. 48; see also, Manuel Fröhlich, ‘Keeping Track of UN PeaceKeeping – Suez, Srebrecica, Rwanda and the Brahimi Report’ (2001) 5 MPYUNL 185 at 212–216. Prevention of Armed Conflict, above n. 27 at para. 163. Fenton draws this conclusion from a detailed examination of the Security Council’s actions undertaken in 1991–95: see, Neil Fenton, Understanding the UN Security Council: Coercion or Consent? (Aldershot: Ashgate, 2004) especially at 205–206. When the popular consultation was carried out on 30 August 1999 based on the tripartite agreements concluded on 5 May 1999 between Portugal, Indonesia and the UN Secretary-General, the pro-Indonesian military intensified rampant violence during, and especially in the aftermath

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Instead, the Security Council waited for a few weeks until it resorted to Chapter VII powers in authorising the establishment of the Australian-led multinational force (INTERFET) to restore peace and security in East Timor,74 whilst also relying on the consent of Indonesian authorities and on their cooperation with the provision of police force.75 It must be considered from the legal point of view, and not just as a political agenda, whether consent of states or parties involved in a conflict constitutes an essential legal ground for the Security Council deciding to undertake a peacekeeping operation for the purpose of prevention. Some commentators may stress consent on the basis of sovereign equality as embodied in Article 2(1) of the Charter.76 Yet it is a fundamental point of controversy whether sovereign equality under international law is equivalent to or entails state consent as a necessary and sufficient condition for international norms and legal systems to be binding.77 Furthermore, given that UN members states have committed themselves to accepting and carrying out Security Council decisions,78 it must be questioned to what extent state sovereignty can provide a valid basis for the requirement of consent in relation to Security Council decisions.

74

75

76

77

78

of, the event whose result opted for independence. For a fuller account of the event, see, Tania Voon, ‘Closing the Gap Between Legitimacy and Legality of Humanitarian Intervention: Lessons from East Timor and Kosovo’ (2002) 7 UCLA Journal of International Law and Foreign Affairs 31 at 52–58; Ian Martin, Self-Determination in East Timor: The United Nations, the Ballot, and International Intervention (Boulder: Lynne Rienner Publishers, 2001); Sean D. Murphy, ‘Legal Regulation of Use of Force: Deployment of a Multinational Force to East Timor’ (2000) 94 AJIL 105 at 105–108; Roger S. Clark, ‘East Timor, Indonesia, and the International Community’ (2000) 14 Temp ICLJ 75 at 83–85. For the general background, see, Ivan Shearer, ‘A Pope, Two Presidents and A Prime Minister’ (2001) 7 ILSA Journal of International and Comparative Law 429 at 431–435; Christine Chinkin, ‘East Timor: A Failure of Decolonisation’ (2001) 20 Aust YBIL 35 at 39–42; Thomas D. Grant, ‘East Timor, the U.N. System, and Enforcing Non-Recognition in International Law’ (2000) 33 Vand JTL 273 at 297–299. See, SC Res 1264 (15 September 1999). See also, Mark Rothert, ‘U.N. Intervention in East Timor’ (2000) 39 Col JTL 257 at 270–272. The legal ground for relying on the consent of Indonesian authorities was at most dubious, given the prima facie illegality of its territorial claim over East Timor: see, e.g., Jennifer Toole, ‘A False Sense of Security: Lessons Learned from the United Nations Organization and Conduct Mission in East Timor’ (2000) 16 American University International Law Review 199 at 254–261. See, e.g., David Brown, ‘The Role of the United Nations in Peacekeeping and Truce-Monitoring: What Are the Applicable Norms?’ (1994) Revue belge de droit international 559 at 561–565. Article 2(1) of the Charter provides that: ‘The Organization is based on the principle of the sovereign equality of all of its Members’. Compare, e.g., Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2004) at 301–314; with D. W. Greig, ‘Reflections on the Role of Consent’ (1992) 12 Aust YBIL 125. Article 25 of the Charter provides that: ‘The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter’.

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The requirement of consent in organising UN peacekeeping operations originated from the establishment of UNEF in 1956. It must be recalled that consent in this instance was required for the operation of the UN force set up by the General Assembly.79 The requirement did not have to extend to Security Council measures which can be justified on a different constitutional ground under the Charter. This view was in fact expressed by the then Secretary-General Dag Hammarskjöld, who in 1956 observed: While the General Assembly is entitled to establish the Force with the consent of those parties which contribute units to the Force, it could not request the Force to be stationed or operate on the territory of a given country without the consent of the Government of that country. This does not exclude the possibility that the Security Council could use such a force within the wider margins provided under Chapter VII of the United Nations Charter.80

Although this statement disappeared in the Summary Study, Higgins still supports this initial observation as to the possibility of non-consensual action under Chapter VII.81 Bowett is also of the opinion that the requirement of state consent does not arise by necessary legal implication from the UN Charter, and casts doubt on the assumption held by Hammarskjöld that the requirement is of general application to any peacekeeping operation, especially with regard to UN involvement in internal armed conflicts.82 Agreeing on the binding character of Security Council decisions made under Chapter VII of the Charter, Sohn contends that ‘no consent would be necessary if the Security Council should order a Force established by the Council itself or by the General Assembly to enter the territory of a particular state in order to maintain or restore peace’.83 While these views are more or less associated with Security Council decisions made under Chapter VII of the Charter, the possibility could not be exclusive of its decisions outside Chapter VII, so long as the argument relies not on the enforceable nature, but rather on the legally binding nature of Security Council decisions made in pursuance of Article 25 of the Charter.84 Apart from the context in which the idea was formed, the requirement of consent has been offered three main theoretical justifications in the legal literature. The

79 80

81

82 83

84

GA Res 1000 (ES-I) (5 November 1956). Second and Final Report of the Secretary-General on the Plan for an Emergency International United Nations Force Requested in the Resolution Adopted by the General Assembly on 4 November 1956 (A/3276), at para. 9, UN Doc A/3302 (6 November 1956) (hereinafter UNEF Final Report). Rosalyn Higgins, ‘A General Assessment of United Nations Peace-Keeping’ in Antonio Cassese (ed.), United Nations Peace-Keeping: Legal Essays (Alphen aan den Rijn: Sijthoff & Noordhoff, 1978) 1 at 5. Derek W. Bowett, The Search for Peace (London: Routledge, 1972) at 93–95. Louis B. Sohn, ‘The Authority of the United Nations to Establish and Maintain A Permanent United Nations Force’ (1958) 52 AJIL 229 at 238. This argument will be fully followed in Ch. 4.

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first relies on the traditional concept of the territorial sovereignty of states on the basis of the Lotus assumption by which is meant that state sovereignty cannot be restricted without express rules.85 This argument appears to be deeply associated with the idea that UN peacekeeping operations do not have an explicit legal basis within the provisions of the UN Charter.86 That is to say, state sovereignty cannot be subordinated to Security Council decisions without an explicit provision under the Charter or consent of the state. There are practical flaws with this line of argument. The question is posed, for example, as to whose consent is needed when a peacekeeping force is deployed in an area belonging legally to one state, and yet temporarily occupied by another state, as has been the case in the Israeli occupation of the West Bank and the Gaza Strip,87 and also with the Indonesian occupation of East Timor.88 In the case of intra-state conflicts, moreover, it can hardly explain the legal ground for obtaining consent of non-state entities involved in a conflict. While this argument leaves no doubt about state consent as a legal requirement, it poses a question whether obtaining consent from all the parties including non-state actors forms a legal requirement or just a practical policy.89 The second argument concerns the effectiveness of UN peacekeeping operations. Effectiveness is regarded as having been the principal concern of Dag Hammarskjöld in setting up UNEF, who stated in his Summary Study that ‘it is normally difficult for the Untied Nations to engage in such an operation without guarantees against unilateral actions by the host Government which might put the United Nations in a questionable position’.90 While opposing this explanation of state consent as

85

86 87

88 89

90

The Judgement of the Permanent Court of International Justice in the Lotus case states that ‘[r]estrictions upon the independence of States cannot therefore be presumed’: Lotus (France v. Turkey) (Merits) [1927] PCIJ Reports (Series A) No. 10 at 18; see also, Ole Spiermann, ‘Lotus and the Double Structure of International Legal Argument’ in Laurence Boisson de Chazournes & Philippe Sands (eds), International Law, The International Court of Justice and Nuclear Weapons (Cambridge: Cambridge University Press, 1999) 131. See below Section 4. Ciobanu draws a conclusion that the consent of the occupying state is necessary in such a case: Dan Ciobanu, ‘The Power of the Security Council to Organize Peace-Keeping Operations’ in Antonio Cassese (ed.), United Nations Peace-Keeping: Legal Essays (Alphen aan den Rijn: Sijthoff & Noordhoff, 1978) 15 at 38–39. But, this conclusion is at odds in a legal sense (contrary to factual appearance) with the argument based on the concept of state sovereignty. See above n. 75 and accompanying text. Compare, e.g., Christine Gray, ‘Host-State Consent and United Nations Peacekeeping in Yugoslavia’ (1996) 7 Duke JCIL 241 at 242–245; with David Wippman, ‘Military Intervention, Regional Organization and Host-State Consent’ (1996) 7 Duke JCIL 209 at 224–234. Summary Study, above n. 66 at 63. The Good Faith Accord, which was concluded at the last minute of the negotiation between the UN and Egypt to approve the presence and operation of UNEF in Egypt, may well be appreciated as having provided an adequate solution to this problem, striking a balance between the significance to contain the crisis and the recognition of an ultimate

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only ‘a short extension of the traditional diplomatic functions of neutral third party assistance’,91 Gagnon proposes that consent be regarded as the keystone of neutrality of UN peacekeeping operations.92 From this point of view, the justification for requiring consent renders it possible to extend the requirement of consent to all non-state parties to a conflict, at least in the case of a conflict which has achieved a state of belligerency.93 While some people subscribe to this view,94 there are others who caution against the extended requirement of consent, at least in a legal sense.95 As will be seen in Chapter 4, the consent and cooperation of non-state entities are necessarily elusive, given that what is at stake is their own survival in the continuously changing political climate, and in no way do they form a legal basis for Security Council actions.96 Attention should be drawn in this context to the Brahimi Report which points out the problem caused by what is called ‘spoilers’ – those who renege on their commitments or otherwise seek to undermine a peace accord by violence.97 The third argument emphasises the Council’s consistent practice of obtaining the consent of states concerned, which has ostensibly rendered it possible to claim a customary legal status. Blase examines the role that consent has played in the organisational and operational phases of UN peacekeeping operations, drawing the conclusion that ‘on the whole compliance with the host State’s wishes has been considered an essential feature for most aspects of the Forces’ operations’ (italics omitted).98 Although it could well have become a common feature to secure consent

91

92 93

94

95 96 97

98

right of the host state to require withdrawal of the force. It should be recalled nonetheless that Hammarskjöld mentioned the limitation on Egypt’s sovereign right in the interest of political balance and stability within the region, which could have provided a legal basis for refusing the withdrawal of UNEF in 1967 at the request of Egypt. For details, see, Jack Israel Garvey, ‘United Nations Peacekeeping and Host State Consent’ (1970) 64 AJIL 241 at 241–269; Nabil Elaraby, ‘United Nations Peacekeeping by Consent: A Case Study of the Withdrawal of the United Nations Emergency Force’ (1968) 1 NYUJILP 149. Mona Harrington Gagnon, ‘Peace Forces and the Veto: The Relevance of Consent’ (1967) 21 International Organization 812 at 817–818. Id. at 819. Id. at 822–824; see also, Hilaire McCoubrey & Nigel D. White, The Blue Helmets: Legal Regulation of United Nations Military Operations (Aldershot: Dartmouth, 1996) at 69–75. See, e.g., Dianne M. Criswell, ‘Durable Consent and a Strong Transitional Peacekeeping Plan: The Success of UNTAET in Light of the Lessons Learned in Cambodia’ (2002) 11 Pacific Rim Law and Policy Journal 577 (especially in cases where the UN engages in a wide range of operations including civil administration). See, e.g., Gray, above n. 89 at 245; Eknes, above n. 24 at 119. See, Ch. 4, Section 3-B-iii. Brahimi Report, above n. 2 at paras. 21–22; see also, Stephen John Stedman, ‘Spoiler Problems in Peace Processes’ (1997) 22(2) International Security 5. Antonietta Di Blase, ‘The Role of the Host State’s Consent with Regard to Non-Coercive Actions by the United Nations’ in Antonio Cassese (ed.), United Nations Peace-Keeping: Legal Essays (Alphen

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of the government in power as a prerequisite for the deployment of UN forces, this has not necessarily been the case with regard to the consent of non-state entities. Furthermore, even though it constituted a common feature during the Cold War period, the fundamental change of circumstances with the sharp increase of intrastate conflicts in the post-Cold War period, together with a new security threat posed by non-state entities after the terrorist attacks on 11 September 2001, may have rendered the claim no longer valid. In view of these fundamental changes of circumstances, it is to be observed that the significance of consent has been downgraded at least as a requirement for Security Council decisions to deploy peacekeeping operations, though it may not be the case in day-to-day operations on the ground.99 It is therefore arguable that the customary basis for requiring consent is no longer relevant or sustained as a legal principle governing the Security Council’s measures in the contemporary political context. The legal ground of consent is thus not necessarily clear, and in the case of nonstate entities, barely proven. Although peacekeeping operations are often based on a cease-fire or peace agreement, the UN’s involvement without consideration of the nature of the agreement in question ultimately risks undermining its own legitimacy and credibility as well as endangering peacekeepers deployed on the ground.100 The institution of peacekeeping remains ambiguous, weak and even counterproductive, so long as it relies upon consent of belligerent parties. There is no doubt that efforts to seek cooperation by the parties involved will remain the key to the success of any physical engagements of peacekeepers. Yet peacekeeping measures can play an important role even without formal consent of the parties concerned in cases, for example, where the parties are willing to engage in negotiation or where adequate security forces are not present to deal with potential, wide-spread violence. Even in the case of armed hostilities, peacekeeping measures not involving physical engagements of peacekeepers can still be one of the options. The legal basis of peacekeeping in such cases must be found elsewhere. B. Neutrality Neutrality suggests the apolitical character of a peacekeeping operation, mandating peacekeepers to hold no prejudice towards participants in a conflict and not to

aan den Rijn: Sijthoff & Noordhoff, 1978) 55 at 84; see also, Robert C. R. Siekmann, National Contingents in the United Nations Peace-Keeping Forces (Dordrecht: Martinus Nijhoff Publishers, 1991) at 7–9. 99 See, e.g., John Gerard Ruggie, ‘The UN and the Collective Use of Force: Whither or Whether?’ (1996) 3(4) International Peacekeeping 1 at 11; Adam Roberts, ‘The Crisis in UN Peacekeeping’ (1994) 36(3) Survival 93 at 99–101; compare, Fenton, above n. 72 at 205–206. 100 Boulden, above n. 6 at 420.

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influence the course of events.101 In the Cold War era, it referred to the national origin of peacekeeping troops, precluding the five permanent members of the Security Council from contributing troops in order to disengage the mission from superpower intervention and also any other countries which for geographical or other reasons might have a special interest in the conflict.102 In the post-Cold War environment, it has become more difficult to define or maintain political neutrality especially in the case of civil war.103 The difficulty was well illustrated when peacekeepers attempted to bring political and diplomatic leverage to bear upon the stabilisation in Somalia, where rampant violence had long been exploiting the land to the advantage of thriving warlords.104 When it applies to inter-state relations, political neutrality can find theoretical justification in the sovereign equality of states as enshrined in Article 2(1) of the Charter. In dealing with intra-state conflicts, on the other hand, peacekeepers are required to weigh political neutrality against the principle of non-intervention as embodied in Article 2(7) of the Charter, which indicates the inevitable linkage with the consent of the government in power unless the Security Council adopts enforcement action under Chapter VII against the government.105 That being said, the unnecessarily strict limitation upon the authority and functions of UN peacekeeping missions deployed to deal with intra-state conflicts to the advantage of the government in power is unlikely to succeed in preventing the escalation of conflicts.106 The strict assertion of state sovereignty may thus very well run counter to the deployment of UN peacekeeping operations, even though they are based on consent, whether it be consent solely of the government in power or of all the parties including non-state entities. It is thus necessary to consider whether the principle 101 102 103

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Summary Study, above n. 66 at 8. See also, UNEF Final Report, above n. 80 at para. 8. Summary Study, above n. 66 at 10. See, Nicholas Tsagourias, ‘Consent, Neutrality/Impartiality and the Use of Force in Peacekeeping: Their Constitutional Dimension’ (2006) 11 Journal of Conflict and Security Law 465 at 478– 481. For an in-depth study on the political, operational, and conceptual problems that confronted the UN in conflict prevention in Somalia, see, Walter Clarke, ‘Failed Visions and Uncertain Mandates in Somalia’ in Walter Clarke & Jeffrey Herbst (eds), Learning from Somalia: The Lessons of Armed Humanitarian Intervention (Boulder: Westview Press, 1997) 3; John Drysdale, ‘Foreign Military Intervention in Somalia: The Root Cause of the Shift from UN Peacekeeping to Peacemaking and Its Consequences’ in Walter Clarke & Jeffrey Herbst (eds), Learning from Somalia: The Lessons of Armed Humanitarian Intervention (Boulder: Westview Press, 1997) 118 (an analysis from Aideed’s tactical point of view); Jarat Chopra, ‘Achilles’ Heel in Somalia: Learning from a Conceptual Failure’ (1996) 31 Tex ILJ 495. This issue is addressed at length in Ch. 5. Carl von Horn, Soldiering for Peace (London: Camelot Press, 1966) at 331–333, 345 (in the context of the UN Yemen Observation Mission (UNYOM), which was deployed on the initiative of the UN Secretary-General based on a disengagement agreement concluded among concerned states exclusive of the royalist authorities of the republican government in Yemen).

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of non-intervention will necessarily prevent the Security Council from undertaking measures on its own initiative without invoking Chapter VII powers. The flourishing force of human rights values and principles has also created theoretical discord with the doctrine of political neutrality. Political neutrality often degenerates into the abdication of the duty to uphold human rights and to take humanitarian action. This is particularly problematic, as the world has witnessed an increase in occasions where peacekeepers are mandated or expected to monitor and protect human rights on the ground.107 Illustrative was the infamous failure to prevent genocide in Rwanda despite the presence of a UN mission.108 The Brahimi Report openly discredited neutrality or equal treatment of all parties, suggesting that such an approach may amount to a policy of appeasement.109 Neutrality is in essence the product of a practical invention to assure that each party’s position will not be compromised by the presence of peacekeepers. Such assurance does not in itself meet the modern expectation based on human rights norms and humanitarian concerns. The terminological preference has recently given to impartiality over neutrality presumably to redeem the flaws of the neutrality doctrine. The terminological change signalled an active requirement for a fair and just treatment of the parties to a conflict, shifting the focus from formality to substance. Yet clarification is still required as to what constitutes impartiality and how it can overcome the issue of non-intervention into the domestic jurisdiction of a state in undertaking peacekeeping measures in a manner compatible with human rights norms and humanitarian concerns.110 C. Restriction on the Use of Force The restriction on the use of armed force has been the established practice of peacekeeping operations and has never ruled out the possibility of using armed force. The first ‘classical’ peacekeeping force, UNEF, was deployed on the premise that it should not have military functions ‘exceeding those necessary to secure peaceful conditions’.111 UN peacekeeping forces have always retained the right of self-defence, which tends to have been given a wider scope of interpretation. Secretary-General Hammarskjöld’s Summary Study defines it widely, meaning only as the

107

108

109 110 111

For details, see, Mari Katayanagi, Human Rights Functions of United Nations Peacekeeping Operations (Leiden: Martinus Nijhoff Publishers, 2002). See, Astri Suhrke, ‘Dilemmas of Protection: The Log of the Kigali Battalion’ (1998) 5(2) International Peacekeeping 1. Brahimi Report, above n. 2 at para. 50. Those issues will be explored in Ch. 5. UNEF Final Report, above n. 80 at para. 12; Summary Study, above n. 66 at 10.

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prohibition of taking an initiative in the use of armed force.112 Secretary-General Kurt Waldheim’s guidelines for the use of force in relation to UNEF II, which have formed the basis of subsequent peacekeeping operations, stated that ‘self-defence includes resistance to attempts by forceful means to prevent the [Peacekeeping] Force from discharging its duties under the mandate of the Security Council’.113 The practice thus indicates that peacekeeping forces are urged to restrain the use of armed force, but are not prohibited from taking such a course of action. The doctrine of restriction on the use of armed force, however, poses two questions: why and to what extent the use of armed force has to be restrained; and on what ground the limited use of armed force can be justified. First, one may argue that the non-use of force is a logical consequence of the doctrines of consent and neutrality. As long as it relies on the consent of a sovereign state, the peacekeeping force cannot resort to military action against the state. Any instances of using armed force will have an impact upon the military and political balance between the belligerent parties. In fact, the deployment of UNEF was based on the assumption that the parties to the conflict will take necessary steps to comply with the recommendations of the General Assembly.114 As discussed above, however, the theoretical grounds of consent and neutrality are unsustainable when peacekeeping operations are involved in intra-national armed conflicts. While realistic expectations discourage UN peacekeepers’ engagement in combat activity against a sovereign state, the same logic may not apply to dealing with rebel forces. This argument is also inadequate in explaining the limited use of armed force under the mandate which is not in practice confined to self-defence in the strict sense of the word. Second, the purpose of this doctrine could be explained as one which suppresses the military nature and appeals to the benign nature of peacekeeping forces as a diplomatic tool. Sending such a rhetorical message would have been significant when the peacekeeping operation was deployed for the first time, in order to eradicate any impressions that the peacekeeping force would act as a military occupation power or would in any other ways engage in combat activity. Although it might have been a prudent course of action in dealing with the politically sensitive situation in the Sinai in 1956, modern peacekeeping practice may not require the adoption of such a benign appearance, especially in cases where rebel forces intentionally attempt to sabotage the operation.115 This point is proven by a series of new doctrines that emerged in the 1990s in an attempt to create robust peacekeeping operations such

112 113

114 115

Summary Study, above n. 66 at 70 para. 179. Report of the Secretary-General on the Implementation of Security Council Resolution 340 (1973), UN Doc S/11052/Rev.1 (27 October 1973). UNEF Final Report, above n. 80 at para. 12; Summary Study, above n. 66 at 10. For the issue of ‘spoilers’, see the literature cited above n. 97.

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as peace enforcement and wider peacekeeping.116 Furthermore, this political rhetoric argument does not explain the legal basis on which, and the extent to which, peacekeeping forces can resort to the limited use of armed force. The third possible explanation is that the Security Council cannot authorise the use of armed force except in the case of adopting enforcement action under Chapter VII of the Charter. In fact, the operational difficulties that confronted peacekeepers deployed in Bosnia, Somalia and Rwanda formed the basis for changing the practice. Since the late 1990s these changes have seen the inclusion of provisions in the mandate that clearly authorise the use of force beyond self-defence.117 Yet it is dubious, or at best uncertain, whether Chapter VII powers can widen in scope so as to include the operational use of armed force incidental to the implementation of mandates, without changing the character of the operation into enforcement action against a belligerent party posing a threat to the peace.118 Furthermore, the more frequent recourse to Chapter VII powers in providing peacekeepers with a clear mandate and an authorisation of the use of armed force leaves legal uncertainty with respect to the restrained use of armed force outside Chapter VII mandates. Although the Security Council can theoretically avail itself of Chapter VII powers to prevent the escalation of an armed conflict by expanding the concept of a threat to the peace, the political hurdle to secure a decision under Chapter VII would be much higher than that necessary to agree on simple elements of peacekeeping, however restricted they might be.

4. Legal Basis of Peacekeeping within the UN Charter It is thus clear that the tripartite doctrines on peacekeeping have emerged from the pragmatic approach to conflict management without being subject to critical review in the light of legal and theoretical grounds. The fundamental rationale lies with the state-centric view on peacekeeping, envisaging the maintenance of peace and security in the context of inter-state armed conflicts and constraints of its operation by state sovereignty. Peacekeeping has developed as an improvised and practical response to the needs and problems that arise from different contexts of armed

116

117

118

The doctrinal debates on robust peacekeeping operations will be discussed at length in Ch. 6, Section 2-A. See, Ralph Zachlin, ‘The Use of Force in Peacekeeping Operations’ in Niels Blokker & Nico Schrijver (eds), The Security Council and the Use of Force: Theory and Reality – A Need for Change? (Leiden: Martinus Nijhoff Publishers, 2005) 91 at 96–100. For example, the reliance on Chapter VII powers in undertaking transitional territorial administration is flawed in theory as well as in practice. See, Kristen Daglish & Hitoshi Nasu, ‘Towards a True Incarnation of the Rule of Law in War-Torn Territories: Centring Peacebuilding in the Will of the People’ (2007) 54 NILR 81.

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conflict without cohesive, normative guidance. This tendency originates more or less from the lack of clear understanding about its legal basis within the Charter. The general view on the legal basis of peacekeeping is that it has no place or mention in the Charter, and therefore it has been a practical experiment invented out of necessity.119 Those who tried to work out perplexing doctrinal puzzles created the label of Chapter VI 1/2 action to describe the hybrid nature of peacekeeping embracing elements of both Chapters VI and VII of the Charter.120 These puzzles were left unresolved when the ICJ avoided stating the legal basis for the establishment of ONUC by the Security Council, despite the fact that it found the legal basis for the establishment of UNEF by the General Assembly in Article 14 of the Charter.121 It was against this background that the institution of peacekeeping required legitimacy deriving from the tripartite doctrines. The result has been the pragmatic evolution of a weak institution dictated to and trifled with by sovereign states. One may argue that the tripartite doctrines of peacekeeping have acquired constitutional status. Ciobanu observes that the power to organise peacekeeping forces has subsequently been assumed by the Security Council and accepted by UN members, which is enough to explain the constitutional basis for UN peacekeeping operations from a practical point of view. In the view of some commentators this position still continues to be supported, either as legal principles or as ontological myths, even if the peacekeeping context has radically changed.122 There is no doubt that the adherence to the tripartite doctrines has become and remains an embedded culture within the UN despite the doctrinal confusion as examined above. This is evident in the Report of the UN Special Committee on Peacekeeping Operations noting that respect for the tripartite doctrines of peacekeeping is ‘essential to its success’.123 On the other hand, the doctrinal confusion posing challenges to peacekeeping in the modern context of armed conflict as examined above has prompted others to call for the development of a new doctrine.124 They may find it attractive to explain the competence of the Security Council based on the doctrine of inher119

120 121 122 123

124

See generally, e.g., Edward C. Luck, UN Security Council: Practice and Promise (London/New York: Routledge, 2006) 36–37; The United Nations, The Blue Helmets: A Review of United Nations Peacekeeping (3rd ed., New York: United Nations, 1996) 1–15. Ciobanu, above n. 87 at 26–29. Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Reports 151 at 170–172. See, e.g., Tsagourias, above n. 103 at 481–482. Report of the Special Committee on Peacekeeping Operations and Its Working Group on the 2007 Substantive Session, at para. 33, UN Doc A/61/19 (Part II) (5 June 2007). See, e.g., Stephen John Stedman, ‘Consent, Neutrality, and Impartiality in the Tower of Babel and on the Frontlines: United Nations Peacekeeping in the 1990’s’ in United Nations Institute for Disarmament Research (ed.), Managing Arms in Peace Process: The Issues (New York: United Nations, 1996) 35.

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ent power.125 It will allow the Security Council to satisfy a functionalist agenda in fulfilling its aims and duties, as long as the action in question aims to achieve one of its purposes and it is not expressly prohibited by the Charter provisions.126 The result is that the Security Council could then be set free from the spell of the tripartite doctrinal paradigm in undertaking new approaches to peacekeeping or expanding its scope of activity. Deeply associated with the controversy over the legal basis of peacekeeping is the ambiguous and elastic definition of peacekeeping. Peacekeeping has no established definition,127 though various missions labelled as ‘peacekeeping’ share the common characteristics of a third party initiative to keep two or more hostile parties apart.128 The lack of clear definition has provided a measure of flexibility that serves political and operational purposes as appropriate in the given circumstances.129 The flexible understanding of peacekeeping has in practice produced a series of ‘generations’,130 or different ‘types’ of peace operations,131 primarily in response to the rapid rise of intra-national and transnational crises after the Cold War. The expanded scope and intensity of peacekeeping missions directed by the Security Council has recently come to be known as ‘peace support operations’, encompassing a range

125

126

127

128 129

130

131

The doctrine of inherent powers stems from the objective theory of personality of international organisations, asserting that organisations possess inherent powers to perform all the acts necessary to attain their aims. This doctrine is distinct from implied powers in that it does not require the search for a basis of implication as the source of the power. For details, see, Jan Klabbers, An Introduction to International Institutional Law (Cambridge: Cambridge University Press, 2002) at 75–78; Finn Seyersted, ‘International Personality of Intergovernmental Organizations: Do Their Capacities Really Depend upon Their Constitutions?’ (1964) 4 Ind JIL 1 at 19–25. See, McCoubrey & White, above n. 93 at 42–45; Nigel D. White, ‘The UN Charter and Peacekeeping Forces: Constitutional Issues’ (1996) 3(4) International Peacekeeping 43 at 46– 49. See, e.g., Dennis C. Jett, Why Peacekeeping Fails (New York: St Martin’s Press, 1999) at 13–19; Paul F. Diehl, International Peacekeeping (Baltimore: The Johns Hopkins University Press, 1993) at 4–5. International Peace Academy, Peacekeeper’s Handbook (New York: Pergamon Press, 1984) 21. Alan James, Peacekeeping in International Politics (Hampshire: Macmillan, 1990) at 8–10; Indar Jit Rikhye, The Theory and Practice of Peacekeeping (London: C. Hurst & Company, 1984) 1. See, e.g., Michael W. Doyle & Nicholas Sambanis, ‘Peacekeeping Operations’ in Thomas G. Weiss & Sam Daws (eds), The Oxford Handbook on the United Nations (Oxford: Oxford University Press, 2007) 323 at 324–334; Thakur, above n. 4 at 37–41; Stephen R. Ratner, The New UN Peacekeeping: Building Peace in Lands of Conflict After the Cold War (Hampshire: Macmillan Press, 1995). See, e.g., Alex J. Bellamy, Paul Williams & Stuart Griffin, Understanding Peacekeeping (Cambridge: Polity Press, 2004) 93–185; Paul F. Diehl, Daniel Druckman & James Wall, ‘International Peacekeeping and Conflict Resolution: A Taxonomic Analysis with Implications’ (1998) 42(1) Journal of Conflict Resolution 35 at 38–39; Marrack Goulding, ‘The Evolution of United Nations Peacekeeping’ (1993) 69 International Affairs 451 at 456–460.

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of multifunctional operations involving both military and civilian components.132 With increasingly difficult and complex mandates often involving the preservation of fragile peace in a weak and unstable situation within a state, peacekeepers have been prompted to undertake multi-dimensional and integrated approach to the operation.133 The legal uncertainty and the terminological ambiguity have contributed to the overemphasis of the role that the principle of consent should play, to the detriment of the effective initiative that the Security Council can take for conflict prevention.134 At the same time, the improved political climate in securing consensus among permanent members of the Security Council has facilitated more frequent recourse to Chapter VII powers in directing peacekeeping operations, often upon the conclusion of a peace agreement between the belligerent parties.135 Although it may provide a simple solution to the legal basis of peacekeeping, the nature and scope of Chapter VII powers would arguably bring negative impacts on the effective use of peacekeeping operations. First, the nature of Chapter VII powers potentially conflicts with the use of peacekeeping for the purpose of preventing the escalation of armed conflicts. The recourse to Chapter VII is conditioned upon the Security Council’s determination of the existence of a threat to the peace within the meaning of Article 39 of the Charter. The classic jurisprudence requires immediacy and urgency for the determination of actual or real threats to the peace to distinguish those situations from potential threats,136 in which phase peacekeeping may well play a useful role in preventing the escalation of an armed conflict. One may argue that the notion of a threat to the peace has been incrementally expanded over the last few decades,137 132

133

134 135 136

137

See, e.g., Marten Zwanenburg, Accountability of Peace Support Operations (Leiden: Martinus Nijhoff Publishers, 2005) at 30–34; UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford: Oxford University Press, 2004) at 375–379; Philip Wilkinson, ‘Sharpening the Weapons of Peace: Peace Support Operations and Complex Emergencies’ (2000) 7(1) International Peacekeeping 63; Christopher Dandeker & James Gow, ‘The Future of Peace Support Operations: Strategic Peacekeeping and Success’ (1997) 23 Armed Forces and Society 327. See, e.g., United Nations Peacekeeping Operations: Principles and Guidelines (New York: United Nations, 2008), available via (last visited 7 April 2008); Handbook on United Nations Multidimentional Peacekeeping Operations (New York: United Nations Department of Peacekeeping Operations, 2003), available via (last visited 7 April 2008). See, above Section 3–A. See, above nn. 6–7 and accompanying text. Nigel D. White, Keeping the Peace: The United Nations and the Maintenance of International Peace and Security (2nd ed., Manchester: Manchester University Press, 1997) at 36–42; Leland M. Goodrich & Anne Patricia Simons, The United Nations and the Maintenance of International Peace and Security (Washington: The Brookings Institutions, 1955) at 355. See generally, Karel Wellens, ‘The UN Security Council and New Threats to the Peace: Back to the Future’ (2003) 8 JCSL 15; Thomas M. Franck, Recourse to Force: State Action against Threats

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arguably resulting in the incorporation of an element of prevention. Yet it is dubious whether the notion of a threat to the peace has also been dissociated from an expected subsequent enforcement action as a last resort.138 Chapter VII measures remain essentially reactive rather than preventive in nature, not to be undertaken until and unless the situation has become such that political pressure mounts to push the Security Council into taking enforcement measures. Second, although Chapter VII powers ought to primarily mean the authorisation of enforcement measures, its significance in that sense seems to have faded thanks to the expedient practice of using it interchangeably with legally binding decisions,139 and to the use of the powers for a wide range of purposes.140 With the multi-faceted meanings and the obscure nature attached to Chapter VII powers, peacekeeping operations deployed under Chapter VII are necessarily left with even greater legal uncertainty as to their status and the character of their mission. The greater legal uncertainty may result, as reportedly did in the early stage of the UN operation in East Timor,141 in discrepancy between the mandate and the operational understanding of the mission. Third, the expansion of Chapter VII powers runs the risk of criticism that it allows the major powers in the Security Council to infringe upon the sovereignty of states and interfere with their domestic affairs at will. In fact, the UN operations in Kosovo and East Timor were given extremely broad powers, which arguably left doors open for the covert oppression of the right to self-determination and the illegitimate deprivation of the opportunity for the people to achieve their own

138 139

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141

and Armed Attacks (Cambridge: Cambridge University Press, 2002) at 40–44; Brian D. Lepard, Rethinking Humanitarian Intervention (Pennsylvania: Pennsylvania State University Press, 2002) at 151–159; Simon Chesterman, Just War or Just Peace?: Humanitarian Intervention and International Law (Oxford: Oxford University Press, 2001) at 127–162; Inger Österdahl, Threat to the Peace: The Interpretation by the Security Council of Article 39 of the UN Charter (Uppsala: Iustus Forlag, 1998) at 85–88; Robert Cryer, ‘The Security Council and Article 39: A Threat to Coherence?’ (1996) 1 JACL 161; Peter H. Kooijmans, ‘The Enlargement of the Concept “Threat to the Peace” ’ in René-Jean Dupuy (ed.), The Development of the Role of the Security Council (Dordrecht: Martinus Nijhoff Publishers, 1993) 111. Wellens, above n. 137 at 29, 68. See, e.g., Jochen Frowein & Nico Krisch, ‘Introduction to Chapter VII’ in Bruno Simma (ed.), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2002) 701 at 706 (‘enforcement action under Chapter VII is characterized less by its being taken against the will of the target State, but rather by its binding force regardless of the will of the States subject to it’ [Italics original]). See, e.g., Tarcisio Gazzini, The Changing Rules on the Use of Force in International Law (Manchester: Manchester University Press, 2005) at 43–51; David M. Malone, ‘The Security Council in the Post-Cold War Era: A Study in the Creative Interpretation of the U.N. Charter’ (2003) 35 NYUJILP 487. See, Michael G. Smith & Moreen Dee, Peacekeeping in East Timor: The Path to Independence (Boulder: Lynne Rienner Publishers, 2003) at 71.

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self-governance.142 Undoubtedly, Chapter VII powers must be exercised consistently with the UN Charter.143 The legality of the Council’s action is subject to the purposes and principles of the Charter including subsequently developed human rights norms.144 It is also arguable that the Council’s decisions under Chapter VII must be adopted within the jurisdictional limits, which forms the prerequisites to the valid exercise of Chapter VII powers.145 Nevertheless, the wide scope of discretion accorded to the Security Council in exercising Chapter VII powers may disrupt the balance required to effectively undertake peacekeeping operations, fostering an environment where belligerent parties can take steps towards a peaceful settlement of the dispute on the one hand, and maintaining the peace and security on the other. Given those problems with the legal basis of peacekeeping measures, it is submitted that a functional approach be alternatively taken to examine the legal basis for each task and function that the Security Council may undertake and assign to UN personnel, instead of attempting to identify peacekeeping as a coherent legal term. Attempts have been made to identify the legal basis within the Charter, especially in Article 40 based on the strong resemblance between neutral, noncoercive peacekeeping operations and the provisional measures.146 Article 40 of the Charter provides: In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice

142 143

144

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146

See, e.g., Daglish & Nasu, above n. 118. Cf. Gabriël H. Oosthuizen, ‘Playing the Devil’s Advocate: The United Nations Security Council is Unbound by Law’ (1999) 12 Leiden Journal of International Law 549–563. For details, see, Erika de Wet, The Chapter VII Powers of the United Nations Security Council (Portland: Hart Publishing, 2004) at 178–368; David Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter: Legal Limits and the Role of the International Court of Justice (The Hague: Kluwer Law International, 2001) 165–82; Nicolas Angelet, ‘International Law Limits to the Security Council’ in Vera Gowlland-Debbas (ed.), United Nations Sanctions and International Law (The Hague: Martinus Nijhoff Publishers, 2001) 71 at 74–77; Susan Lamb, ‘Legal Limits to United Nations Security Council Powers’ in G. S. Goodwin-Gill and S. Talmon (eds), The Reality of International Law: Essays in Honour of Ian Brownlie (Oxford: Clarendon Press, 1999) 361 at 366–84; T. D. Gill, ‘Legal and Some Political Limitations on the Power of the UN Security Council to Exercise Its Enforcement Powers under Chapter VII of the Charter’ (1995) 26 NYIL 33 at 72–90. Hitoshi Nasu, ‘Chapter VII Powers and the Rule of Law: The Jurisdictional Limits’ (2007) 26 Australian Year Book of International Law 87. See also, Ian Brownlie, The Rule of Law in International Affairs (The Hague: Martinus Nijhoff Publishers, 1998) at 219. See, e.g., White, above n. 136 at 227–229; Ciobanu, above n. 87 at 16–23. Cf. Benedetto Conforti, The Law and Practice of the United Nations (3rd and revised ed., Leiden: Martinus Nijhoff Publishers, 2005) at 202–203 (arguing Article 42 as the legal basis).

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to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.

Although the actual practice of peacekeeping has recently been shifted to the frequent use of Chapter VII powers, it is submitted that the legal basis of different peacekeeping functions should be revisited, focusing on Article 40 of the Charter. This provision can provide a workable legal framework within which the Security Council can and should adopt a variety of peacekeeping measures for the purpose of prevention on its own initiative without relying either on the consent of states and other parties involved in the conflict or Chapter VII. Clarifying the legal basis and parameters of peacekeeping by focusing on Article 40 of the Charter may well be seen as an attempt to re-emphasise the primary role that the Security Council plays in directing peacekeeping measures, shifting the focus away from the UN Secretariat’s role in managing and administering the operation. Ralph Bunche, a father of peacekeeping, reportedly chose not to invoke Article 40 of the Charter as the legal basis for peacekeeping operations despite his initial expression of interest in such possibility presumably in order to imprint Secretariat control over peacekeeping operations.147 Yet peacekeeping predominantly controlled by the UN Secretariat has arguably started creaking under the strain, finding it more and more difficult to meet and balance the increased demands and varied interests without definite political initiative or support.148 Howard argues that the flexible, orgnaisational learning on the ground from the local population, rather than from the UN Headquarters, is one of the key elements to the success of peacekeeping operations.149 To achieve and take advantage of such flexibility and political support requires a clear legal authority and guideline for the decision and implementation of peacekeeping measures. The Brahimi Report attempted to close such commitment gaps by urging the Security Council to give peacekeeping operations clear, credible and achievable mandates relying heavily on the Secretariat’s initiative.150 Yet peacekeeping reform 147

148

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James Cockayne & David M. Malone, ‘The Ralph Bunche Centennial: Peace Operations Then and Now’ (2005) 11 Global Governance 331 at 346, fn. 3. See, Report of the Secretary-General: Implementation of the Recommendations of the Special Committee on Peacekeeping Operations, at para. 3, UN Doc A/58/694 (26 January 2004). An example in point is the discrepancy between the ambitious mandates adopted at the initiative of the Secretariat and the lack of political will on the part of member states to contribute to the UN Organization Mission in the Democratic Republic of the Congo (MONUC): see, Katarina Månsson, ‘Use of Force and Civilian Protection: Peace Operations in the Congo’ (2005) 12 International Peacekeeping 503; Jeremy Ginifer, ‘Peacebuilding in the Congo: Mission Impossible?’ (2002) 9(3) International Peacekeeping 121. Lise Morjé Howard, UN Peacekeeping in Civil Wars (Cambridge: Cambridge University Press, 2008). Brahimi Report, above n. 2 at paras. 56–64. The recommendations were endorsed in SC Res 1327 (13 November 2000).

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along the same lines, as requested by the Special Committee on Peacekeeping Operations,151 has faced enormous challenges due to the persistent ambiguity and uncertainty surrounding the basic precepts of peacekeeping.152 Such ambiguity and uncertainty may well provide the Security Council with an excuse for inaction in many internal or intra-national armed conflicts.153 It is timely therefore to examine the authority and responsibility of the Security Council in directing peacekeeping measures under the UN Charter even if, as a result, peacekeeping operations become more tightly controlled by the Security Council, in order to facilitate its action at an earlier stage of armed conflict. By placing Article 40 at the centre of the legal regime governing peacekeeping measures, a more flexible approach to conflict management will be facilitated. It will arguably enable the Security Council to direct peacekeeping measures in situations likely to endanger the maintenance of international peace and security,154 even before it determines the existence of a threat to the peace within the meaning of Article 39.155 It may not necessarily be obvious at which stage the Security Council’s intervention is most warranted, inasmuch as the characterisation of a situation is subject to political considerations.156 The characterisation of a situation is in essence nothing more than ‘labels’ attached to Security Council resolutions indicating the political climate in the Security Council, and is often used as a legal tool to facilitate the undertaking of authorised measures at each stage.157 Similarly, questions as to how to intervene and what resources to commit are also political and context-dependent.158 Although peacekeeping measures under Article 40 will not be free from political fetters, the provisional and moderate nature of peacekeeping may well facilitate political compromise at an earlier stage of conflict, and thus encourage more proactive action by the Security Council. This was recently illustrated when the Security Council demanded that North Korea suspend all activities related to its ballistic missile programme under the Council’s ‘special responsibility for the maintenance of international peace and security’.159

151

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153

154 155

156

157 158 159

Report of the Special Committee on Peacekeeping Operations and Its Working Group, at para. 34, UN Doc A/59/19/Rev.1 (2005). See, Report of the Secretary-General: Implementation of the Recommendations of the Special Committee on Peacekeeping Operations, at paras. 32–33, UN Doc A/60/640 (29 December 2005). See, Christine Gray, ‘Peacekeeping After the Brahimi Report: Is There a Crisis of Credibility for the UN?’ (2001) 6 JCSL 267 at 274–278. See, Articles 33 and 34 of the UN Charter. The question as to whether the adoption of provisional measures is subject to the determination under Article 39 will be discussed in Ch. 3, Section 7. Ruth Gordon, ‘United Nations Intervention in Internal Conflicts: Iraq, Somalia, and Beyond’ (1994) 15 Mich JIL 519 at 562–575. White, above n. 136 at 37. Bellamy, Williams & Griffin, above n. 131 at 32. SC Res 1695 (15 July 2006).

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Likewise, the Security Council demanded that Iran suspend all nuclear enrichment-related and reprocessing activities under Article 40 of the Charter,160 despite the fact that the situation, as was the case with North Korea, fell arguably within the realm of Iran’s domestic jurisdiction. Based on the functional approach centring Article 40 of the Charter in the examination of the legal basis of peacekeeping, the term ‘peacekeeping’ will be used here to describe the functions that the Security Council performs to prevent the aggravation of armed conflict, rather than ‘peace support operation’ with a view to designating a wide range of provisional measures not confined to physical operations. The quest for the Charter-based normative coherence and integrity in the discourse of peacekeeping necessarily requires the examination of historical records in order to ascertain what types of peacekeeping measures have developed within the realm of provisional measures under Article 40 of the Charter. The next chapter starts the search in the period preceding and during the League of Nations.

160

SC Res 1696 (31 July 2006).

Chapter 2 Origins of Peacekeeping 1. Embryonic Rise of Peacekeeping The idea of distinguishing just and unjust war to be determined by relative and contextual rules under the given circumstances was commonly found in ancient jurisprudence including that of ancient India, ancient China, ancient Israel, ancient Greece, the Christian world and the Islamic world.1 Even before the establishment of the League of Nations, states were generally prompted to avoid a declaration of war and had to have a justifying cause for the use of force short of war.2 While the self-reliant justification for the use of armed force might well have contributed, more or less, to the prevention of war in a negative sense, little attention was drawn to positive action to prevent war until the League of Nations set out on unprecedented peacekeeping operations, which led to a full incarnation in the UN period.3 Before turning to the study on peacekeeping action under the League

1

2

3

See, e.g., Thomas M. Franck, Fairness in International Law and Institutions (Oxford: Clarendon Press, 1995) at 245–250; Asbjorn Eide, ‘Outlawing the Use of Force: The Efforts by the United Nations’ in United Nations Institute for Training and Research (ed.), The United Nations and the Maintenance of International Peace and Security (Dordrecht: Martinus Nijhoff Publishers, 1987) 99 at 100–104; Ian Brownlie, International Law and the Use of Force by States (Oxford: Clarendon Press, 1963) at 3–6; Arthur Nussbaum, A Concise History of the Law of Nations (New York: Macmillan Press, 1947) at 1–114; Joachim von Elbe, ‘The Evolution of the Concept of the Just War in International Law’ (1939) 33 AJIL 665 at 669–685 (focusing on Christian scholastic views). See, e.g., Albert E. Hindmarsh, Force in Peace: Force Short of War in International Relations (Cambridge: Harvard University Press, 1933) at 84–89; Ahmed M. Rifaat, International Aggression (Stockholm: Almqvist & Wiksell International, 1979) at 19–20; Brownlie, above n. 1 at 26–28. Miyauchi finds a positive effect of this practice in regulating the use of armed force: Yasuhiko Miyauchi, ‘Buryoku Hukkyu no Kisei ni taisuru “Kokusaiho no Kenketsu” no Kigen to Tenbo [The Origins of the “Defects in International Law” concerning the Regulation of Armed Reprisals and Their Prospects’ in Yukio Shimada, Yoshinobu Eizumi & Akio Shimizu (eds), Hendo suru Kokusai Shakai to Ho [Changing International Society and the Law] (Tokyo: Keibundo, 1996) 315. ‘The origin and development of peacekeeping operations largely parallel those of international organizations in general’: Paul F. Diehl, International Peacekeeping (Baltimore: Johns Hopkins University Press, 1994) at 14. Although peacekeeping operations are generally seen as a product of UN activities, the League of Nations had already studied and undertaken what can be seen as the prototype, as will be shown below.

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of Nations, however, it is worthwhile first to follow the preceding movement that underlay the subsequent development of an idea to undertake peacekeeping action under a collective authority. An embryonic rise of the idea of peacekeeping in the modern age can be seen in the response to the report that cruelties had been committed upon Armenians in Turkey in August 1894, contrary to Turkish obligations under a treaty concluded at Berlin in 1878.4 The British government, supported by France, Italy and Russia, suggested a mixed commission of inquiry be established and composed of their representatives and Turkish delegations. The Turkish government responded by appointing a commission of five members composed entirely of Turks, allowing the states concerned to send their Consuls as the representatives attached to the commission. The British Consular delegate to the commission presented a report to the British Parliament in September 1895, observing that hundreds of deaths had been caused by the atrocities in August and September 1894.5 Extensive discussions about possible steps to be taken subsequently followed in the British Parliament to prevent the recurrence of the atrocities.6 Yet there was a call for caution not to interfere in Turkey, given the Russian reluctance in responding to the Armenian massacres, unless other states concerned had given support or approval to the British action,7 which would have otherwise resulted in running the risk of igniting a European war. Another relevant incident is the ‘Boxer Rebellion’ that started in December 1899 in China whereby the Boxers avowed to drive out foreigners and Christians, resulting in a collision with the Chinese authorities.8 Great Britain, France, Germany, Italy and the United States urged the Chinese government to suppress the troubles without delay, but the disorders continued to increase. Having thought that the Chinese government was unable or unwilling to suppress the disorders, the United States decided to take action concurrently with other concerned states, addressing four purposes, one of which was ‘to prevent a spread of the disorders to the other provinces of the Empire and a recurrence of such disasters’.9 When

4

5

6 7 8

9

1878 Treaty between Austria-Hungary, France, Germany, Great Britain, Italy, Russia and Turkey for the Settlement of Affairs in the East, 153 CTS 171. For details of the fact, see, Nissim Bar-Yaacov, The Handling of International Disputes by Means of Inquiry (London: Oxford University Press, 1974) at 35–36. United Kingdom, Report of the Consular Delegates Attached to the Commission Appointed to Inquire into the Events at Sasun, Parliament Command Paper No. C.7894 No. 252 (15 August 1895) at 161–189. It was reported that the commission held 107 sittings and heard 190 witnesses. United Kingdom, House of Commons, Parliamentary Debates, 3 March 1896 at 38–126. Id. at 42 (Samuel Smith). For details of the fact, see, John Bassett Moore, A Digest of International Law (Washington: Government Printing Office, 1906) vol. 5 at 476–533. Id. at 482. Other purposes were related to rescuing and protecting American nationals’ life and property.

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the diplomatic missions in Beijing were besieged in July 1900, the United States together with other concerned states landed troops in China to rescue their nationals from grave danger and to protect their lives and property. Goodrich examined this military operation as an early example of international police operation consisting of 18,600 persons from five countries, though there was no unified command.10 It might well be that the main purpose of this foreign military operation would have lain in the rescue and the protection of their nationals rather than in the preservation of peace in the interest of the international community. Nevertheless, the significance as a precedent of peacekeeping to prevent the aggravation of conflict should not be downgraded. An important development took place in the Hague Peace Conferences held in 1899 and 1907, in which it was proposed that peaceful settlement of international disputes be pre-arranged as a way to prevent war. The Hague Peace Conferences were aimed practically at, ‘not the general disarmament of nations nor the abolition of war, but rather the examination and study of the conditions under which the great Powers of Europe and of the entire world live, so far as military force is concerned’.11 To that end, the Russian delegation proposed a draft agreement with regard to good offices, mediation, an international commission of inquiry, and arbitration, to which the signatory states should direct all of their efforts ‘for the purpose of preventing resort to force as far as possible in international affairs’.12 Special attention should be given, among others proposals, to inquiry as a mechanism of preventing international conflicts from escalating. In the conferences leading up to the adoption of the Conventions for the Pacific Settlement of International Disputes concluded in 1899 and 1907,13 all of the attempts to make inquiry mandatory in its institution failed.14 Yet inquiry as introduced in the 1899 Hague Convention, and prescribed in great detail in the 1907 Hague Convention, was expected not only to facilitate a solution to international disputes arising from a difference of opinion

10

11

12 13

14

Leland M. Goodrich, ‘Efforts to Establish International Police Force Down to 1950’ in William R. Frye (ed.), A United Nations Peace Force (London: Stevens & Sons, 1957) 172 at 172. F. De Martens, ‘International Arbitration and the Peace Conference at the Hague’ (1899) 169(516) North American Review 604 at 604. Id. at 608. 1899 Convention for the Pacific Settlement of International Disputes, 187 CTS 410 (1899 Hague Convention); 1907 Convention for the Pacific Settlement of International Disputes, 205 CTS 233 (1907 Hague Convention); for the English version of both conventions, see, James Brown Scott, The Hague Conventions and Declarations of 1899 and 1907 (2nd ed., New York: Oxford University Press, 1915) at 41–81. James Brown Scott, The Proceedings of the Hague Conference; Translation of the Official Texts: The Conference of 1899 (New York: Oxford University Press, 1920) at 727–731, 780–782; James Brown Scott, The Proceedings of the Hague Conference; Translation of the Official Texts: The Conference of 1907 (New York: Oxford University Press, 1921) at 218–221, 403–404.

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on points of fact, but also to work as a ‘safety-valve’ to prevent the aggravation of an international conflict.15 The idea of a ‘safety-valve’ was further developed by subsequent bilateral treaties concluded on the initiative of the United States. The Taft/Knox Treaties signed on 3 August 1911 embodied in their provisions the idea of a moratorium on war by conferring upon the commission of inquiry the power to give a binding decision on the arbitrability of a dispute and to make recommendations to disputants.16 It was in the treaties signed for the advancement of peace between the US and 30 other countries on the initiative of the then US Secretary of State, William Jennings Bryan, that the principle of a moratorium on war was for the first time explicitly incorporated.17 The principle of moratorium on war rests upon the assumption that a mandatory delay in hostilities would afford states involved in a conflict an opportunity to arrange a peaceful settlement,18 which ultimately provided the basic formula underlying Articles 12 and 15 of the Covenant of the League of Nations.19 Article 12(1) of the Covenant adopted the idea of a ‘cooling-off ’ period,20 prohibiting resort to war ‘until three months after the award by the arbitrators or the judicial decision or the report by the Council’. Article 15 of the Covenant took a further step by prescribing a conditional prohibition of resort to war. Article 15 (1) of the Covenant reads:

15

16

17

18

19

20

Martens explained the object of international commissions of inquiry ‘to prevent the development of a conflict between nations by an examination in loco of the circumstances which brought about the conflict. These Commissions of Inquiry may be considered as a sort of safety-valve, designed to set bounds to the discussions of the press, of the public and of representative bodies’: Martens, above n. 11 at 609. 1911 General Arbitration Treaty between the United States of America and the French Republic, (1911) 5 AJIL Supplement 249, Article 3; 1911 General Arbitration Treaty between Great Britain and the United States of America, (1911) 5 AJIL Supplement 253, Article 3. All the treaties are reproduced in James Brown Scott, Treaties for the Advancement of Peace between the United States and Other Powers Negotiated by the Honorable William J. Bryan, Secretary of State of the United States (New York: Oxford University Press, 1920). The treaties made all disputes between states parties of every nature, factual or legal, involving vital interests or not, subject to an inquiry in cases where a dispute is not settled by other treaties or diplomatic means. For details and comparison among the treaties, see G. A. Finch, ‘The Bryan Peace Treaties’ (1916) 10 AJIL 882 at 882–890; Norman L. Hill, ‘International Commissions of Inquiry and Conciliation’ (1932) 278 International Conciliation 89 at 95–96. See, Martin David Dubin, ‘Toward the Concept of Collective Security: The Bryce Group’s “Proposals for the Avoidance of War,” 1914–1917’ (1970) 24 International Organization 288 at 291–292. 1919 Covenant of the League of Nations (hereinafter Covenant), Part I of the 1919 Treaty of Peace, 225 CTS 188 (hereinafter Versailles Peace Treaty). It reads that: ‘The Members of the League agree that if there should arise between them any dispute likely to lead to a rupture they will submit the matter either to arbitration or judicial settlement or to enquiry by the Council, and they agree in no case to resort to war until three months after the award by the arbitrators or the judicial decision or the report of the Council’.

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If there should arise between Members of the League any dispute likely to lead to a rupture, which is not submitted to arbitration or judicial settlement in accordance with Article 13, the Members of the League agree that they will submit the matter to the Council. Any party to the dispute may effect such submission by giving notice of the existence of the dispute to the Secretary-General, who will make all necessary arrangements for a full investigation and consideration thereof.

As distinct from the idea of inquiry developed by international conventions up to this time, this provision set up ‘the procedure for the League Council to investigate and settle international disputes’21 at the request of any state parties involved in a dispute, if the dispute was likely to threaten international peace and security. In deciding the likelihood of a threat, the Commission of Jurists in the Corfu incident of 1923 held that, ‘[t]he Council . . . is not bound, either at the request of the other party, or on its own authority, and before enquiring into any point, to decide whether, in fact, such description is well founded’.22 It is conceivable that, under this provision, the League Council was given discretion in deciding the gravity of a dispute and even initiating an investigation before the decision. Yet the discretion was limited in cases where a dispute was submitted to other jurisdictions. The Corfu incident was in fact settled by the Conference of Ambassadors and referred for judicial questions to the Commission of Jurists, both outside the League of Nations. In view of this fact, Wright pointed out that ‘[t]he Council’s function is not to assert its authority, but to assist in any means of settlement agreeable to the parties’.23 Although Article 15 was intended to close the loopholes of escape from arbitration or judicial settlement set out in Articles 12 and 13 of the Covenant,24 the role that the League Council was expected to play under this provision was thus minimal.

21

22

23

24

Francis Anthony Boyle, Foundations of World Order: The Legalist Approach to International Relations (1898–1922) (Durham: Duke University Press, 1999) at 126. It went on to state that, ‘[t]he Council may at all times estimate the gravity of the dispute and determine the course of its action accordingly’: LNOJ, 5th year, 28th sess, 6th mtg, at 524 (13 March 1924). The Corfu incident occurred when Italian officials of the international boundary commission between Albania and Greece were assassinated at Janina within Greek territory. Italy demanded that the Greek government give apology, indemnity, and compensation. While the Greek government expressed reservations on some of the demands, the Italian troops attacked and occupied Corfu which was part of the Greek territory at that time. The dispute was brought before the Conference of Ambassadors, and legal questions surrounding the dispute were referred to the Commission of Jurists: for details, see, Green Haywood Hackworth, Digest of International Law (Washington: Government Printing Office, 1943) vol. 6 at 155–156; F. P. Walters, A History of the League of Nations (London: Oxford University Press, 1952) vol. 1 at 244–255. Quincy Wright, ‘Opinion of Commission of Jurists on Janina-Corfu Affair’ (1924) 18 AJIL 536 at 540. Frances Kellor, Security Against War (New York: Macmillan Press, 1924) vol. 1 at 13.

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2. Emergence of Peacekeeping under Article 11 of the Covenant of the League of Nations A. Concept and Reality of Collective Security under the Covenant The Covenant was drafted as part of the Versailles Peace Treaty ‘to promote international cooperation, to ensure the fulfilment of accepted international obligations and to provide safeguards against war’,25 on the basis of a British-American plan.26 There was no doubt a difference of emphasis between the American and British conceptual frameworks of the security system. The American framework laid emphasis on political ideas and policies, which can be described as an association for the protection of the members, by the members, for the members, leading to Article 10 of the Covenant.27 On the other hand, the British framework tended to be concerned with political mechanisms ensuring continuous cooperation between the Great Powers, which was ultimately embodied in Article 16 of the Covenant.28 It is thus evident that Articles 10 and 16 were seen as the central provisions envis25

26

27

28

A Resolution adopted in a Plenary Session of the Conference of Paris on 25 January 1919: see, David Hunter Miller, The Drafting of the Covenant (New York: G. P. Putnam’s Sons, 1928) vol. 1 at 76. It was what is called the Hurst-Miller draft that served as the basis for drafting the Covenant, which had been decided to be placed immediately before the first meeting of the drafting commission of the Covenant without French translation: id. at 130–132. Zimmern comments on this, stating that ‘the main lines of the League were almost automatically fixed; for changes could now only be made by way of amendment’: Alfred Zimmern, The League of Nations and the Rule of Law: 1918–1935 (London: Macmillan Press, 1936) at 237–238. For a brief overview of the drafting process, see Alan Sharp, The Versailles Settlement: Peacemaking in Paris, 1919 (London: Macmillan Press, 1991) at 42–64. William E. Rappard, ‘The Refutation of Articles 10 and 16’ in Joel Larus (ed.), From Collective Security to Preventive Diplomacy: Readings in International Organization and the Maintenance of Peace (New York: John Wiley & Sons, 1965) 33 at 33. Article 10 of the Covenant reads: The Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression, the Council shall advise upon the means by which this obligation shall be fulfilled. For a thorough description of the British attitude towards the Covenant immediately before and during the drafting meeting, see George W. Egerton, Great Britain and the Creation of the League of Nations: Strategy, Politics, and International Organization, 1914–1919 (London: Scolar Press, 1979) at 119–140. Article 16 (1) of the Covenant reads: Should any Member of the League resort to war in disregard of its covenants under Articles 12, 13 or 15, it shall, ipso facto, be deemed to have committed an act of war against all other members of the League, which hereby undertake immediately to subject it to the severance of all trade or financial relations, the prohibition of all intercourse between their nationals and the nationals of the Covenant-breaking State, and the prevention of all financial, commercial or personal intercourse between the nationals of the Covenant-breaking State and the nationals of any other State, whether a Member of the League or not.

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aged in the Covenant for a politically plausible international security mechanism aimed at achieving the equilibrium of interests among member states. The initial vision of the League security system was deprived of its teeth, due largely to the non-participation of the United States as well as to the strong pressure for the negative interpretation of Article 10, which intended to free member states from any legal obligation to make available their military forces for collective security action.29 Despite this serious setback, the League security system achieved some measure of success in the maintenance of international peace and security on the basis of Article 11, which formed one of the general provisions for the maintenance of international peace and security. Article 11 of the Covenant reads in full: 1. Any war or threat of war, whether immediately affecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations. In case any such emergency should arise, the Secretary-General shall, on the request of any Member of the League, forthwith summon a meeting of the Council. 2. It is also declared to be the friendly right of each Member of the League to bring to the attention of the Assembly or of the Council any circumstance whatever affecting international relations which threatens to disturb international peace or the good understanding between nations upon which peace depends.

The opening sentence of this provision originated from Article 5 of the draft Covenant prepared and presented by Colonel House on 16 July 1918,30 which was then expanded in Wilson’s drafts,31 and settled in almost the same formula in the Cecil-Miller draft.32 Recalling the fact that Article 9 of the Hurst-Miller draft was

29

30

31 32

For details, see, Rappard, above n. 27 at 34–40; Bruce Williams, State Security and The League of Nations (Baltimore: Johns Hopkins Press, 1927) at 88–119. Article 5 of the draft of Colonel House reads that ‘[a]ny war or threat of war is a matter of concern to the League of Nations, and to the Powers, members thereof ’: Miller, above n. 25, vol. 2 at 7. The intention of this provision can be found in the letter from Elihu Root addressed to Colonel House, in which Root formulated his conception about ‘durable concert of peaceable nations to prevent war’, which is presumed to be an origin of the idea of collective security as a common interest of the international community: for the text of the letter, see Zimmern, above n. 26 at 230–231. See, Miller, above n. 25, vol. 2 at 14, 82, 101–102. Article 8 of the Cecil-Miller draft of 27 January 1919 reads as follows: Any war or threat of war, whether immediately affecting any of the Contracting Powers or not, is hereby declared a matter of concern to the League of Nations and to all the Powers signatory hereto, and those Powers hereby reserve the right to take any action that may be deemed wise and effectual to safeguard the peace of nations. It is hereby also declared and agreed to be the friendly right of each of the nations signatory or adherent to this Covenant to draw the attention of the Body of Delegates or of the Executive Council to any circumstances anywhere which threaten to disturb international peace or the good understanding between nations upon which peace depends: id., vol. 2 at 138.

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passed without change as Article 11 of the Covenant, Miller observed that at the time of adoption ‘the significance of the Article was not appreciated’.33 Yet this generally worded provision gave the League greater liberty of action in the preservation of peace,34 opening the door to actions neither specifically mentioned in the Covenant nor even envisaged by its drafters. The following sections will show how the League Council acted under Article 11,35 and how the idea of peacekeeping emerged through its practice. B. Peacekeeping in Practice under Article 11 i. Aaland Islands Question (1920) Due to its strategic importance, the Aaland Islands had been a target of occupation among countries bordering on the Baltic Sea.36 Following its independence on 4 December 1917, Finland claimed sovereignty over the Islands by succession in title to Russia and passed a law granting autonomy to the Islands. However, this action increased tension and uncertainty as to their legal status, given the result of a referendum held on the Aaland Islands on 31 December 1917, in which an overwhelming majority voted for union with Sweden. The people living in the Islands refused to acknowledge the Finnish law and dispatched a delegation to the Swedish government appealing for help and unity with Sweden. In response, Finnish authorities arrested several liberation leaders on the ground of treason, as a result of which diplomatic relations between Sweden and Finland were strained to breaking point. Having investment interests in both Finland and the Aaland

33 34

35

36

Id., vol. 1 at 173. James T. Shotwell & Marina Salvin, Lessons on Security and Disarmament: From the History of the League of Nations (New York: King’s Crown Press, 1949) at 3. For the development of ideas about the wider application of Article 11 for conflict prevention, see, Joseph-L. Kunz, ‘L’article XI du Pacte de la Société des Nations’ (1932–I) 39 RdC 679 at 684–699; Paul Barandon, Le Système Juridique de la Société des Nations pour la Prévention de la Guerre (Paris: Pedone, 1933) at 92–103. Although Article 11 of the Covenant was widely invoked by states involved in a conflict, this study will focus on the cases which are deemed significant in the light of the development of peacekeeping. For a fuller examination of League’s practice under Article 11 of the Covenant, see, David W. Wainhouse, International Peace Observation: A History and Forecast (Baltimore: Johns Hopkins Press, 1966) at 7–85; T. P. Conwell-Evans, The League Council in Action: A Study of the Methods Employed by the Council of the League of Nations to Prevent War and to Settle International Disputes (London: Oxford University Press, 1929) at 35–121. The Aaland Islands are a group of islands, consisting of one main island and about 300 smaller ones, lying in the Baltic Sea at the mouth of the Gulf of Bothnia, and separated from Sweden only by the narrow Aaland Sea and linked to Finland by a chain of small islands and rocks. Although the Islands were inhabited by a Swedish population, they were occupied several times by Russia during the 18th and 19th centuries. Under Russian control, the fortification of the Islands was prohibited in an annex to the 1856 Paris Convention between France and Great Britain and Russia respecting the Aaland Islands, 114 CTS 405.

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Islands, the British government drew the attention of the League Council to the question of the Aaland Islands, exercising its friendly right under Article 11(2) of the Covenant.37 Although the Council decided to deal with the question under Article 4(4) of the Covenant as a matter affecting the peace of the world,38 the Finnish representative claimed that the question ‘arose out of a matter which by international law is solely within the domestic jurisdiction of Finland’.39 In response to this claim, the Council appointed a commission of three international jurists to give their opinion to the Council on the question of the Council’s competence raised by Finland.40 At the same time, it was appealed to both parties ‘to do all that lay in their power during the consideration of the case by the Council not to cause any aggravation of the existing position and to refrain from any acts by which the good understanding between nations could be jeopardised’.41 The commission of jurists rejected the Finland’s argument, reaching the conclusion that the Council was competent under Article 15(4) to make any recommendations which it deemed just and proper in regard thereto.42 Based on this finding, the Council appointed three rapporteurs to make an inquiry on the ground and ‘to frame a final or provisional settlement of the question and to establish conditions favourable to maintenance of peace’.43 After a thorough inquiry, the rapporteurs recognised Finnish sovereignty over the Aaland Islands and the necessity of guaranteeing the protection of the Aalanders’ rights, neutralisation, and non-fortification of the Islands. Although it was strongly opposed by the Swedish delegates, they finally accepted in the name of the Swedish government ‘to recognise that the decision of the Council has the force given to it by the Covenant’.44 Although the settlement by the League was criticised as disregarding or establishing practical limits on the idealistic concepts of self-determination in favour

37

38

39 40 41 42

43 44

For details, see, James Barros, The Aaland Islands Questions: Its Settlement by the League of Nations (New Haven: Yale University Press, 1968) at 216–333; Wainhouse, above n. 35 at 11–15; Norman J. Padelford & K. Gosta A. Andersson, ‘The Aaland Islands Question’ (1939) 33 AJIL 465 at 465–487. LNOJ, 1st year, 7th sess, at 248 (11 July 1920). Article 4(4) of the Covenant provides: ‘The Council may deal at its meetings with any matter within the sphere of action of the League or affecting the peace of the world’. Ibid. Id. at 249. Ibid. LNOJ, 1st year, 9th sess, at 394 (16–20 September 1920). Article 15(4) of the Covenant provides: ‘If the dispute is not thus settled, the Council either unanimously or by a majority vote shall make and publish a report containing a statement of the facts of the dispute and the recommendations which are deemed just and proper in regard thereto’. Id. at 396. LNOJ, 2nd year, 13th sess, 14th mtg, at 700 (24 June 1920).

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of a strictly legalistic interpretation of sovereignty and international law,45 the preliminary step taken by the League Council is worthy of mention. The League Council, for the first time as an international organisation, requested the parties in dispute not to cause any aggravation of the existing position and to refrain from any hostile acts, despite the fact that its competence was challenged and remained to be settled. The request was, it is reported, somewhat reluctantly accepted by both governments before the situation reached a stage that would have made settlement of the dispute more difficult.46 The Council in this instance took no action to reinforce the cessation of hostilities, but the request itself in fact succeeded in freezing the situation, which helped the settlement of the dispute. ii. Vilna Question (1920) Vilna was the old capital of Lithuania, which longed for independence under the occupation by Russia during the 19th century and by Germany during World War I. Although Lithuania declared independence on 16 February 1918, the city and district of Vilna was again occupied by Russia and then by Polish forces, which were allowed to keep Vilna by the Supreme Command of the Allied Powers. The Soviets returned again to the offensive and signed a treaty of peace with Lithuania on 12 July 1920, which recognised its independence and promised to leave Vilna and Grodno, which were both still occupied by Poland, to Lithuania. The treaty had a secretly annexed declaration which authorised the Soviet troops to use Lithuanian territory for military purposes in the war against Poland. The Lithuanian forces, with the help of the Soviet troops, occupied Vilna on 15 July 1920, and then the Soviets returned it to the Lithuanians at the end of August.47 Accusing the Lithuanians of acting in an unneutral fashion by allowing the Soviet troops to operate on their territory, Poland asked for intervention by the League under Article 11 of the Covenant on 5 September 1920. In the League Council’s discussions, the Belgian representative, Paul Hymans, proposed that both parties accept a provisional arrangement to cease-hostilities and the withdrawal of troops,48 and offered to them the appointment of a commission ‘entrusted with the duty of 45 46 47

48

Padelford & Andersson, above n. 37 at 477; Wainhouse, above n. 35 at 14. Wainhouse, above n. 35 at 14. The Soviet troops were subsequently forced back by the Polish counter-offensive and became no longer able to hold Vilna. For details of the fact, see, Kellor, above n. 24 at 246–263; Sarah Wambaugh, Plebiscites Since the World War: With a Collection of Official Documents (Washington: Carnegie Endowment for International Peace, 1933) at 298–330. The proposed resolution urged the two governments concerned ‘to take immediately all measures necessary to prevent any hostile acts between their troops’, requested the Lithuanian government to withdraw its troops from the territory to the west of the frontier fixed by the Supreme Council of the Allied Powers, which was known as the Curzon line, and also requested the Polish government to respect the neutrality of the territory occupied by Lithuania to the east of the frontier mentioned above: LNOJ, 1st year, 9th sess, at 398 (16–20 September 1920).

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ensuring the strict observation by the interested parties of the obligations’.49 This proposal was accepted by both the Lithuanian and the Polish governments. On 29 September 1920, the Council appointed a Military Commission of five military officers under the presidency of the French member, Colonel Chardigny, to supervise the strict fulfilment of the agreement by the two parties. The Military Commission, on 4 October, fixed a provisional frontier line in conformity with the Supreme Council’s decision and also established a neutral zone, extending for a distance of six kilometres on each side of the line. In the meanwhile, both governments reached an agreement on 7 October, which fixed the provisional line of demarcation, leaving Vilna on the Lithuanian side. The situation yet again deteriorated when the Polish army led by General Zeligowski occupied Vilna city and district.50 The League Council adopted a resolution on 28 October to urge that a plebiscite be held under the League’s auspices and supervision. The attempt was doomed to failure, however, given Poland’s toleration of the presence of General Zeligowski’s troops in Vilna, who were alleged to be acting beyond Poland’s control.51 Taking into account this difficult situation, it was decided to ask all members of the Council for their cooperation in the formation of an international force to ensure the taking of a popular consultation.52 The League Council divided the functions necessary to hold a plebiscite into two international bodies under the single authority. One was the international military force whose role was simply to perform police duties,53 and the other was the Commission which was charged with political and administrative duties.54 The Council also issued a contingent instruction, authorising the Commission to propose to the Council that the military force should be withdrawn in the case where it became 49 50

51

52 53

54

Ibid. The Polish government announced that the army led by General Zeligowski was no better than a rebel, but Polish public opinion regarded him as a national hero. It was impossible, therefore, for the Polish government to use force against him, or even to allow any outside power to drive him out of Vilna: see, Walters, above n. 22, vol. 1 at 107–108. It was later revealed that Poland had successfully obtained Lithuania’s neutrality by appealing to the League under Article 11 during its struggle with the Soviet, which made the League intervention no longer required when it beat the Soviet and took Vilna as well: see, Conwell-Evans, above n. 35 at 99. Wambaugh, above n. 47 at 309–312. See, Report on the Organisation of the International Force for Vilna, LNOJ, 2nd year, No. 1, at 5–6 (25 November 1920). A Commission, under the presidency of Colonel Chardigny, was to be appointed to ascertain whether an agreement is possible between Lithuania and Poland with regard to the procedure and the area for the plebiscite, to propose the area in which the plebiscite should be held if no direct agreement were reached between the two governments, and to organise measures to ensure the implementation of the plebiscite: see, Instructions for the Commission Entrusted with the Arrangements for the Taking of a Public Expression of Opinions in the Vilna District, LNOJ, 2nd year, No. 1, at 7 (1 December 1920).

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impossible to hold a plebiscite owing to an armed conflict.55 Notwithstanding this contingent instruction, the Commission made every possible effort to end hostilities between the two armies, establishing neutral zones of 12 miles width in the areas where intensive fighting occurred including the region of Vilna. However, since the Council relied on the full support of the two governments as a prerequisite for holding the plebiscite, their reluctance to accept the Council’s directions without reservation led eventually to the failure to hold a plebiscite. Noteworthy in this instance is the fact that the Council took the steps of not only proposing the cessation of hostilities but also of appointing a military observer team to supervise the agreement reached by the parties in dispute, and furthermore of preparing to hold a plebiscite under its authority and supervision. Despite this initiative, all the attempts were subjected to criticism. It was observed that the Military Commission was ‘without power to render any assistance other than to request Poland to respect the neutrality of Lithuania, provided Russia did the same’.56 It was also criticised on the grounds that ‘a full calendar month was wasted before the Commission got to work, and during that interval hostilities continued, even after September 20, in spite of the Council’s resolution’.57 Even though a plebiscite aimed at final settlement of the territorial dispute concerning Vilna failed, it would still have been important to preserve a provisional arrangement to secure peace in the region. Having examined this incident in the light of interim protection for the purpose of security, Dumbauld concluded that a provisional regime was needed ‘not only for the sake of preventing hostilities, but in order to afford civil administration of the territory in question’.58 With precarious peace having been preserved, Lithuania continued to see the situation as a state of war and brought a number of complaints with regard to Vilna before the League until the League of Nations ceased to exist. iii. Boundary Disputes between Albania and Yugoslavia (1921) Having been newly established as a result of the Balkan War of 1912, Albania had faced serious boundary disputes with neighbouring states during and even after the World War I.59 Having been admitted as a member of the League of Nations

55 56 57 58

59

Ibid. Kellor, above n. 24, vol. 1 at 249. Conwell-Evans, above n. 35 at 92–93. E. Dumbauld, Interim Measures of Protection in International Controversies (The Hague: Martinus Nijhoff, 1932) at 107. The Albanian boundaries were vaguely fixed by the London Treaty concluded in May 1913: 1913 Treaty of Peace between Bulgaria, Greece, Montenegro, Serbia and Turkey, 218 CTS 159. Italy, Greece and Serbia proclaimed and occupied portions of Albanian territory during World War I. At the end of World War I in 1919, the Supreme Council of Allied Powers entrusted the Conference of Ambassadors with the settlement of the Albanian boundary question, though the Albanians

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in December 1920, Albania appealed to the League Council in April and again in June 1920, based on Article 11 of the Covenant, to force Serbia to withdraw from Albanian territories.60 The League Council, however, refrained from taking up the question, for it was informed that the Conference of Ambassadors had taken it up. The Council went no further than to recommend that the parties ‘abstain from any act calculated to interfere with the procedure in course’, and that the Conference of Ambassadors ‘take a decision with the least possible delay’.61 Although the Council appointed a Commission of Enquiry on 6 October 1921 under increasing pressure from League members,62 it was not until the frontiers were fixed by the Conference of Ambassadors in November 1921 that the Commission of Enquiry started to take action. The Commission of Enquiry was charged with three mandates: first, to keep the Council informed of the withdrawal of the troops of both sides from the provisional zone of demarcation provided by the decision of the Conference of Ambassadors; second, to observe that no outside assistance was given which might disturb the internal peace of Albania; and third, to examine and submit to the Council measures to end the present disturbances and to prevent their recurrence.63 The area of its activities was strictly limited to Albanian territory at the request of the Serb government.64 The Commission’s mandates were thus confined to the elimination of foreign elements in Albania, but its recommendations extended far beyond the limitation. The Commission went so far as to propose that principles be established that would lead to the viability of Albania as an independent nation,65 presumably in pursuance of the third mandate. The reaction by the League Council to this incident was first and foremost criticised for its tardiness. The unfortunate result of this incident, as Conwell-Evans states, seems to have stemmed from the failure to make a distinction between the duties of restoring peace and of proposing a final settlement of a dispute.66 This

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61 62

63 64 65

66

themselves were never consulted. In the meantime Serb troops advanced beyond the boundary fixed by the London Treaty into Albania and occupied a line along the northern frontier of Albania: for details of the fact, see, Kellor, above n. 24 at 181–196; Wainhouse, above n. 35 at 29–32. Appeal to the Council of the League of Nations by the Albanian Government, LNOJ, 2nd year, Nos 5–6, at 474 (29 April 1921); Telegram from the Albanian Prime Minister, LNOJ, 2nd year, Nos 5–6, at 477 (15 June 1921). LNOJ, 2nd year, 13th sess, 16th mtg, at 725 (25 June 1921). The commission was composed of the representatives of Norway, Luxembourg, Finland and a secretary: see, Wainhouse, above n. 35 at 37. LNOJ, 2nd year, 15th sess, 3rd mtg, at 1193 (19 November 1921). Ibid. See, Report of the Commission of Enquiry in Albania, LNOJ, 4th year, No. 1, at 113–117, Document No. C.5.M.3.1923.VII (18 December 1922); Final Report of the Commission of Enquiry, LNOJ, 4th year, No. 1, at 504–510 (May 1923). Conwell-Evans, above n. 35 at 65–66.

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distinction was sustained in the preceding Vilna incident of 1920 and in the following Demir-Kapu incident of 1925. The deployment of the Commission of Enquiry was deliberately delayed, which contributed more or less to the failure to prevent the situation from further deterioration.67 On the other hand, the actual work of the Commission added a new dimension to the functions that the Commission could perform for the purpose of a long-term and structural prevention of conflicts. The wide range of activities that the Commission performed reflected the flexibility of Article 11 of the Covenant in its application. iv. Demir-Kapu Incident (1925) A large scale border conflict between Greece and Bulgaria began with a small incident on 19 October 1925 when shots were exchanged between Bulgarian and Greek frontier soldiers.68 In the immediate aftermath of the first exchange, firings and hostilities spread along the whole frontier line in the Demir-Kapu district. The Greek government, alleging that the Bulgarians occupied two of the Greek posts in the area, ordered military operations as deemed necessary for the immediate defence of the national territory,69 resulting in a military advance into Bulgarian territory. During the Greek military operations, according to the Bulgarian representative to the League Council, a Bulgarian commander gave orders to the Bulgarian forces to abstain from any action which might be interpreted as a provocation, whilst the Bulgarian government appealed to the League Council under Articles 10 and 11 of the Covenant.70 In response to the cessation of the Bulgarian attack, the Greek government gave orders against any forward movement.

67

68

69

70

Conwell-Evans observes that ‘if the Council had acted earlier in response to Albania’s appeal in June, or . . . at least in September, when they were sufficiently grave, the Council would in so doing have averted the invasion, and prevention is better than cure, particularly where the disease is invasion causing loss of life’: id. at 69. Bulgaria alleged that a Greek soldier crossed the frontier and fired on the Bulgarian sentry, who replied and killed the Greek soldier within Bulgarian territory. On the other hand, Greece contended that the firing which caused the death of the soldier was only opened on the Bulgarian side and the Bulgarians dragged the corpse into Bulgarian territory. For the Bulgarian version of facts, see, LNOJ, 6th year, 36th sess, 2nd mtg, at 1701–1703 (27 October 1925). For the Greek version of facts, see, id. at 1704–1706. For a detailed account of the development of the dispute, see, James Barros, ‘The Greek-Bulgarian Incident of 1925’ in Joel Larus (ed.), From Collective Security to Preventive Diplomacy: Readings in International Organization and the Maintenance of Peace (New York: John Wiley & Sons, 1965) 57 at 57–67. The Greek Minister for Foreign Affairs explained in the telegram to the Secretary-General of the League of Nations that, ‘all the measures which the military command has been compelled to take are nothing but measures of legitimate defence’: Telegram dated October 24th, 1925, from the Greek Minister for Foreign Affairs to the Secretary-General, LNOJ, 6th year, 36th (extra) sess, at 1697 (24 October 1925). Telegram from the Bulgarian Minister for Foreign Affairs to the Secretary-General, LNOJ, 6th year, 36th (extra) sess, at 1696 (22 October 1925).

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The League Council was convened from 26 to 30 October 1925.71 The then President of the League Council, Aristide Briand, took the unprecedented action of reminding the two parties of their obligations not to resort to war under Article 12 of the Covenant even before the Council was convened.72 When the Council was convened, the President required the delegates of the two parties only to answer a simple question of whether they were ready to accept the cessation of hostilities and to withdraw their troops behind their respective frontiers.73 Having not been satisfied with their continued military operations, the Council requested the governments of France, the United Kingdom and Italy to direct military attachés ‘to repair immediately to the region where the conflict has broken out and to report direct to the Council as soon as all hostilities have ceased’.74 The military attachés of three countries successfully observed the withdrawal of the Greek troops, and also decided that the Bulgarians should not re-occupy the territory until a certain time had elapsed ‘[i]n order to prevent the incidents which would inevitably occur if the Bulgarian troops began their advance too soon’.75 The fact that the military attachés achieved the cessation of hostilities in three days indicated the effectiveness of the mission. The mission can be evaluated retrospectively as comparable to a peace observation mission developed by the United Nations. Pending the replies and consequent actions of both governments, the Council also started to examine in the meantime the substance of the incident and decided that ‘[t]he Commission shall in particular establish the facts enabling the responsibility to be fixed, and supply the necessary material for the determination of any indemnities or reparation which may be considered appropriate’.76 The Commission of Enquiry was ‘to submit to the Council any suggestions as to measures which in

71

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74 75 76

At issue in the meeting were two distinct questions: ascertaining the facts and responsibilities; and more urgently the cessation of hostilities and the immediate withdrawal of the Bulgarian and Greek troops to their respective territories: see, the remarks made by the President, M. Aristide Briand (France), LNOJ, 6th year, 36th (extra) sess, 1st mtg, at 1698 (26 October 1925). Telegram from the Acting President of the Council to the Greek and Bulgarian Governments, LNOJ, 6th year, 36th (extra) sess, at 1696 (23 October 1925). When the Bulgarian representative started to state its view on the incident, the President of the Council interrupted, pointing out that a statement of the facts would come at a later stage, and what the Council was asking both parties to reply was whether they were ready to cease hostilities and withdraw their troops behind their respective frontiers: see, LNOJ, 6th year, 36th sess, 1st mtg, at 1698–1699 (26 October 1925). Id. at 1700. LNOJ, 6th year, 36th sess, 4th mtg, at 1711 (29 October 1925). LNOJ, 6th year, 36th sess, 4th mtg, at 1713 (29 October 1925). It was first suggested by the Bulgarian delegate that the League Council ‘institute a neutral enquiry under the auspices of the League of Nations to ascertain the facts on the spot and fix the responsibility both for the initial incident of October 19th and for the events which followed’: see, LNOJ, 6th year, 36th sess, 2nd mtg, at 1703 (27 October 1925).

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its opinion would eliminate or minimise the general causes of such incidents and prevent their recurrence’.77 Although the Commission found that ‘it is impossible to determine which of the two soldiers fired the first shot’,78 it did not prevent the Commission from determining responsibilities and indemnities arising therefrom on the basis of the assessment of subsequent actions taken by both sides.79 The Greek delegate expressed the view that the Council alone was competent to give legal opinions and therefore to deal with claims for reparations and indemnities,80 though it had already been in agreement on this function of the Commission in advance. The successful settlement of the dispute is due partially to the swift and decisive call for the cessation of all hostilities and the immediate withdrawal of the Bulgarian and Greek troops to their respective territories in a moderate political climate.81 Separation of the two aspects of the case – cessation of hostilities and settlement of the dispute – enabled the Council to take a preventive measure with a view to keeping the peace as a provisional settlement of the conflict.82 The Commission of Enquiry was utilised in this instance to reach a settlement of the dispute based

77

78 79 80

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Report of the Commission of Enquiry into the Incidents of the Frontier Between Bulgaria and Greece, LNOJ, 7th year, 37th sess, Annex 815, at 196, Document No. C.727.M270.1925.VII (1926). The Commission was authorised to conduct its investigation both on the spot and at the seats of the two governments concerned with all assistance necessary to enable it to accomplish its task: id. at 196. Id. at 198. See, id. at 203. LNOJ, 7th year, 37th sess, 1st mtg, at 116–117 (7 December 1926). It is to be recalled that the Commission of Enquiry established for the Dogger Bank incident showed that the function of giving legal opinions based on factual findings could fall within its competence so long as both parties to a dispute consented: See, J. G. Merrills, International Dispute Settlement (3rd ed., Cambridge: Cambridge University Press, 1998) at 47. The then President of the Council remarked on the importance of immediate cease-fire that, ‘[u]nder the pretext of legitimate defence, disputes might arise which, though limited in extent, were extremely unfortunate owing to the damage they entailed. These disputes, once they had broken out, might assume such proportions that the Government, which started then under a feeling of legitimate defence, would be no longer able to control them’: LNOJ, 6th year, 36th sess, 3rd mtg, at 1709 (28 October 1925). Alan James explains the background of this settlement, showing that major states were all in agreement as to the maintenance of European tranquillity and that neither party was in a position to defy the powers, since Greece was susceptible to political and economic pressures, being in dire economic circumstances and suffering from political unrest, and Bulgaria was diplomatically isolated: Alan James, The Politics of Peace-Keeping (London: Chatto & Windus, 1969) at 17. It is against this background that the report of the Commission of Enquiry led to the eventual settlement of the dispute. It was hoped that ‘Greece and Bulgaria have set an example which . . . will be followed in the future by other members of the League, and especially the more powerful ones, not only for the settlement of frontier disputes, but for others of a more dangerous character’: J. W. Garner, ‘Settlement of the Graeco-Bulgarian Dispute’ (1926) 20 AJIL 337 at 338.

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on the agreement of both sides involved. Had the mission been confined to the settlement of the dispute, it would not have gone beyond the traditional method of inquiry. Yet the actual mission of the Commission went further, assessing the Greek assertion of self-defence. It is to be noted that the charge of a violation of the Covenant could not be made without an investigation on the spot, notwithstanding the fact that it was generally known that the Greek troops were invading Bulgaria in large numbers.83 Although it is uncertain whether this action of the League Council was based on Article 11 or impliedly on Article 15(1), the role that the Commission played in ruling on the claim of legitimate self-defence added a new dimension to the potential function of the Council. C. Conceptual Development under Article 11 i. Brouckère Report After the landmark settlement of the Demir-Kapu incident by the League Council, extensive studies were made on Article 11 of the Covenant. Before going into details of these studies, two points are drawn from the League practice examined above. The first point is to make a distinction between cessation of hostilities and settlement of disputes. The second is the prompt action by the League Council for the cessation of hostilities immediately after an appeal is made by either of the parties to a dispute. These two points were proven to be essential for all incidents brought into the League Council to be effectively dealt with. The studies made on Article 11 of the Covenant indeed elaborated further upon the League Council’s practice hitherto taking the two points seriously into account. The initial motion was set on 24 May 1926 for the development of the League’s action under Article 11 of the Covenant by Paul-Boncour, the French delegate to the Preparatory Commission for the Disarmament Conference, when he proposed that the Council investigate methods or regulations which would ‘(a) [f ]acilitate the meeting of the Council in the shortest possible time in case of war or threat of war; (b) [e]nable the Council to take such decisions as may be necessary to enforce the obligations of the Covenant as expeditiously as possible’.84 In his memorandum to support this proposition, placing emphasis on information on the scene of disputes being made available to the League, Paul-Boncour, wrote that: Before drafting its recommendations, the Council of the League, in the majority of cases, will desire to collect on the spot all information of a nature to throw light on the events. It will therefore cause an enquiry to be made, and bodies will have to be

83 84

Conwell-Evans, above n. 35 at 51. Proposal by M. Paul-Boncour: Question V(a)8 and V(b), League of Nations, Documents of the Preparatory Commission for the Disarmament Conference, Series II, Annex V, at 110 (21–25 May 1926).

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It is conceivable that this statement contained in substance what came out in two provisions of the UN Charter:86 Article 34 on the power of investigation of the UN Security Council and Article 40 on provisional measures. The above proposal was submitted to the Council and discussed in a committee of the Council in September 1926. The committee decided to entrust Brouckère, the Belgian representative, with the presentation of the report on proposition (b) aforementioned.87 Since the question concerned the methods or regulations to enforce the obligations of the Covenant, the report submitted by Brouckère88 focused largely on the development of Article 16 of the Covenant.89 Under the topic addressing the conditions on which sanctions should be applied, however, Brouckère inserted a slightly different approach, stating that: Although Article 16 applies only when a Member of the League resorts to war . . ., we cannot conclude that the League must remain inactive until the crime has been committed. The whole spirit of the Covenant . . . protests against the very idea of such inaction . . . Article 11 states it so definitely as to leave no room for any misconception.90

Then he went on to state that: The Council may take preventive action, for example, by recommending the parties to take certain steps to prevent any open outbreak of hostilities, such as withdrawing their troops behind certain lines or abstaining from making any military preparations which might make it more difficult to reach a peaceful settlement.91

This statement has the central significance in the Brouckère report as an explicit endorsement of the preventive use of peacekeeping measures under Article 11 of the Covenant. While the report was reflecting the practice of the League Council

85

86 87

88

89 90 91

Memorandum by M. Paul-Boncour in Support of his Proposals Relating to Question V(a)8 and V(b) (Annex V), League of Nations, Documents of the Preparatory Commission for the Disarmament Conference, Series II, Annex VI, at 111 (21–25 May 1926). 1945 Charter of the United Nations, USTS No. 993 (hereinafter UN Charter). League of Nations, Documents of the Preparatory Commission for the Disarmament Conference, Series III, Part 2 (Committee of the Council), 4th sess, 1st mtg, at 43 (26 September 1926). Report by M. De Brouckère on Point 1(b) of the Proposal Laid Before the Preparatory Commission for the Disarmament Conference by the French Delegation, League of Nations, Documents of the Preparatory Commission for the Disarmament Conference, Series III, Annex 3, Document No. C.740.M.279.1926.IX, at 93–105 (1 March 1927) (hereinafter Brouckère Report). The text of Article 16(1) of the Covenant is cited above n. 28. Brouckère Report, above n. 88 at 100. Id. at 101.

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hitherto, the significance of his work lay in having revealed the potential utility of peacekeeping measures that could be taken on the initiative of the Council under Article 11 of the Covenant.92 Having confirmed that one of the important purposes of Council meeting under Article 11 is to prevent a breach of the Covenant, Brouckère pointed out that as a result, ‘the Council will have had first-hand knowledge of the conflict and will be in a position to judge of [sic] the attitude of the two parties – to gauge, so to speak, the measure of their good will and even of their good intention’.93 Stone saw the significance of Article 11 in relation to the definition of aggression, contending that what was envisaged under Article 11 was free of penal connotations of aggression and even of breach of the Covenant, and that the determination of aggression was to be left to post-mortem inquiries after attempts to forestall or restore peace failed.94 It may well be seen that the Brouckère report gave us an idea that it was possible to set practical standards for determining aggression with greater recourse to the preventive use of peacekeeping measures,95 even in the absence of any objective and enumerative criteria of aggression. ii. Rutgers Memorandum The idea of placing greater emphasis on the application of Article 11 of the Covenant was further developed in the memorandum prepared by the Dutch representative Rutgers who was appointed the Rapporteur for the question of Articles 10, 11, and 16 of the Covenant.96 The memorandum was submitted to the Committee on Arbitration and Security established by the League Assembly. In an introductory note, the Chairperson of the Committee confirmed the continuity of work on the application of Article 11 for preventive purposes, pointing to the fact ‘that

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93 94

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96

During the fifth session of the Committee of the Council, Brouckère explained the intention of his report, stating that, ‘[w]hat could the Council do on its initiative without requesting the direct collaboration of the Members of the League of Nations? It might take measures of preservation and give to the nations in dispute, or to the nation which had attacked another nation, counsels of moderation or wisdom, ask the aggressor to discontinue his attacks or his military preparations, or request the two parties in dispute to withdraw their troops’: League of Nations, Documents of the Preparatory Commission for the Disarmament Conference, Series III, Part 2 (Committee of the Council), 5th sess, 4th mtg, at 67 (3 December 1926). Brouckère Report, above n. 88 at 102. Julius Stone, Aggression and World Order: A Critique of United Nations Theories of Aggression (Sydney: Maitland Publications, 1958) at 32–33, 38–40. The League Council approved the report only ‘as a valuable guide which, without restricting the Council’s liberty to decide at any moment the best methods to be adopted in case of any threat to peace, summarises the results of experience’: LNOJ, vol. 9, at 125 (February 1928). Memorandum on Articles 10, 11, and 16 of the Covenant, League of Nations, Documents of the Preparatory Commission for the Disarmament Conference, Series VI, Annex I, at 142–158 (3 February 1928) (hereinafter Rutgers Memorandum).

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international disputes are becoming more and more engaged in a network of preventive measures, and that there is a constant evolution towards improvements in the methods employed by the Council within the ambit of the Covenant’.97 In the memorandum, Rutgers recognised that the League of Nations was vested under Article 11 with the most extensive competence, irrespective of the gravity of conflict situations.98 Rutgers rejected the idea that a matter solely within the domestic jurisdiction of a state would prevent consideration of a situation under Article 11 of the Covenant.99 Having borne in mind the political nature of Article 11,100 Rutgers enumerated the ways in which to apply the provision, though it was noted that it was not possible to enumerate all the measures that might be taken, as ‘[t]he infinite variety of events that may occur in international political life cannot be confined in advance in watertight compartments’.101 Nonetheless, the following points are indicative and worthwhile being summarised for the purpose of this study: – The Council may urge the parties to a dispute to refrain from any act which might increase the tension, such as movements of troops and mobilisation operations; – The Council may send a commission to the site of the dispute, with the consent of the party to whose territories it is to proceed, to enquire into the situation; – The Council may recommend the parties to conclude an armistice in order to terminate hostilities that have already been engaged; – The Council may appoint a committee of certain of its members in order to keep abreast of developments during the intervals between sessions; and – The Council may take conservatory measures if the parties are signatories of international agreements . . . which entrusted the Council with taking suitable provisional measures when a question covered by the agreements is laid before the Council.102

97

98 99 100

101 102

Introduction to the Three Memoranda on Arbitration, Security and the Articles of the Covenant, League of Nations, Documents of the Preparatory Commission for the Disarmament Conference, Series VI, Annex I, at 124 (3 February 1928). Rutgers Memorandum, above n. 96 at 146 para. 126. Id. at 149 para. 153. Rutgers described the nature of Article 11 as follows: ‘Article 11 is the essential expression of the principles of the League, and is designed to protect the interests of all. It does not impose upon Members of the League any obligations which can be rigidly specified; the Council’s action under this Article is political rather than judicial’: id. at 147 para. 128. Id. at 147 para. 130. Id. at 148–149 paras. 140–155.

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It was also preferred in the League Assembly to avoid an enumerative list of preventive measures to be taken by the League Council. The Rutgers memorandum was taken up on the agenda in the ninth ordinary session of the League Assembly, in which Politis, as a Rapporteur in the Assembly, reiterated that the efficacy of those measures relied on the lack of ‘any rigid code of procedure or measures to be adopted’.103 The French delegation to the Committee on Arbitration and Security, opposing certain points of the Rutgers memorandum, suggested two effective methods of compensating for the alleged drawbacks as follows: (a) The simultaneous taking of conservatory measures and setting up of supervisory bodies to verify their execution on the spot, the Council only ordering conservatory measures the execution of which it is in a position to verify. (b) The avoidance, in the Council’s decisions, of too exact an enumeration of the conservatory measures to be taken in all cases, seeing that in certain cases they might have an effect contrary to that desired.104

In the second session of the Committee on Arbitration and Security, this suggestion was understood by Rutgers as having meant that ‘the Council ought to establish a certain degree of control with the object of verifying the execution of the recommendations which it had made’.105 Although the French delegation’s ideas were far from clear as to the extent to which the supervisory body should execute conservatory measures, it would not be too speculative to argue that peace observation missions developed in the UN would have fallen within the scope of the French suggestion. iii. General Convention to Improve the Means of Preventing War The studies on the application of Article 11 resulted in attempts to codify rules based on the findings in the form of an international treaty. The report of the

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LNOJ, 9th sess, 14th plen mtg, Special Supplement No. 64, at 114 (20 September 1928). Politis also showed the special significance of peacekeeping measures to be taken under Article 11 by comparison with Article 16, stating that, ‘[f ]irst, as regards chronological order, since the Council, in dealing with an international crisis, must apply Article 11 before Article 16; secondly, Article 11 is important because it is undeniably far better to prevent war than to stop it; lastly . . . [b]y observing their respective attitudes, the Council, when it applies Article 11, can obtain the evidence necessary to enable it to decide, with a view to applying Article 16, which of the two parties is responsible for the outbreak of hostilities. In other words, it enables all the necessary information to be collected for determining, should the case arise, which party is the aggressor’: ibid. Observations of the French Delegation on the Conclusions of the Memorandum of Articles 10, 11, and 16 of the Covenant, League of Nations, Documents of the Preparatory Commission for the Disarmament Conference, Series VI, Annex 4bis, at 184bis (4 April 1928). League of Nations, Documents of the Preparatory Commission for the Disarmament Conference, Series VI, Part 1 (Committee on Arbitration and Security), 2nd sess, 10th mtg, at 93 (28 February 1928).

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Committee on Arbitration and Security, having received three memoranda, one of which was that of Rutgers, proposed three draft security treaties. One provision which was commonly included in all of the three draft treaties referred to provisional measures as follows: In all cases, and particularly if the question on which the parties differ arises out of acts already committed or on the point of being committed, the Permanent Court of International Justice, acting in accordance with Article 41 of its Statute . . . shall indicate, within the shortest possible time, the provisional measures to be adopted. It shall in like manner be for the Council of the League of Nations, if the question is brought before it, to ensure that suitable provisional measures are taken. The parties to the dispute shall be bound to accept such measures.106

This provision clearly shows that the concept of provisional measures, or mésures conservatoires (conservatory measures) in the French expression, was related to the concept of provisional measures provided in Article 41 of the Statute of the Permanent Court of International Justice.107 Moreover, the Model Treaty to Strengthen the Means of Preventing War was presented in the ninth ordinary session of the League Assembly in 1928, based on the suggestion made to the Committee on Arbitration and Security by the German delegate, Dr von Simson,108 to enable the League Council to intervene with a view to preventing or stopping war.109 This Model Treaty

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Article 29 of the Draft Collective Treaty of Mutual Assistance. Article 28 of the Draft Collective Treaty of Non-Aggression and the Draft Bilateral Treaty of Non-Aggression, which are all reproduced in the Report of the Committee on Arbitration and Security on the Work of its Second Session held at Geneva from February 20th to March 7th, 1928, League of Nations, Documents of the Preparatory Commission for the Disarmament Conference, Series VI, Annex VII, at 212, 217, 222 (1928) (hereinafter Report of the Committee of its Second Session). 1920 Statute of the Permanent Court of International Justice, 6 LNTS 390, PCIJ Report (Series D) No. 1 (with the modifications effected therein up to 21 February 1931) (hereinafter PCIJ Statute). Article 41 of the PCIJ Statute provided that, ‘[t]he Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to reserve the respective rights of either party’. This provision remains unchanged in Article 41(1) of 1945 Statute of the International Court of Justice, USTS No. 993 (hereinafter ICJ Statute). The German delegate proposed to examine, among other things, the following possibilities: ‘[i]n case of a dispute being submitted to the Council the States might undertake in advance to accept and execute provisional recommendations of the Council for the purpose of preventing any aggravation or extension of the dispute’; ‘[i]n case of threat of war the States might undertake in advance to accept and to execute the recommendations of the Council to the effect of maintaining or re-establishing the military status quo normally existing in time of peace’; and ‘[i]n the case of hostilities of any kind having broken out without, in the Council’s opinion, all possibilities of a pacific settlement having been exhausted, the States might undertake in advance to accept, on the Council’s proposal, an armistice’: ‘Suggestions of the German Delegation’ in Report of the Committee of its Second Session, above n. 106 at 225. ‘Resolution regarding the German Delegation’s Suggestions’ in Report of the Committee of its Second Session, above n. 106 at 225; see also, Shotwell & Salvin, above n. 34 at 40–43.

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resulted finally in the conclusion of the General Convention to Improve the Means of Preventing War,110 which was opened for signature on 26 September 1931. In the General Convention, the Council was vested with the power to recommend conservatory measures of a non-military nature in relation to the substance of the dispute (Article 1), to prescribe measures to ensure the evacuation of forces of either party (Article 2), and to fix lines which must not be passed by the forces of either party (Article 3). Significant in the light of provisional measures was Article 4 of the Convention, which provided that: The Council shall, if it thinks fit, or if one of the parties at issue so requests before the Council has reached any of the decisions referred to in Articles 2 and 3, appoint commissioners for the sole purpose of verifying on the spot the execution of the conservatory measures of a military character recommended by the Council under the conditions specified in Articles 2 and 3.

Although the preceding three provisions were largely based on the German proposal, it is conceivable that this provision came from the French suggestion made at the Committee on Arbitration and Security with regard to the Rutgers memorandum.111 There is no doubt that this provision envisaged the same sort of operation as UN peace observation missions. In addition, Article 7 of the Convention obliged the states parties to undertake the Council’s decisions and recommendations taken in accordance with the preceding provisions. In actual terms, it was provided that ‘the Council’s decisions and recommendations shall . . . be binding for the purposes of the present Convention, provided that they are concurred in by all the Members voting other than the parties to the dispute’. As Shotvell and Salvin observe, the General Convention ‘was prepared to be applicable to any foreseeable case and obligatory in any and every conflict that might arise’.112 Although the General Convention was aborted due to insufficient ratification by states,113 the binding nature of conservatory measures, including peace observation missions, could be seen as a precursor leading up to the mandatory powers given to the UN Security Council under the UN Charter.

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1931 General Convention to Improve the Means of Preventing War, League of Nations, Publications No. C.658(1).M.269(1).1931.IX (not in force) (hereinafter General Convention), reproduced in Manley O Hudson, International Legislation: A Collection of the Texts of Multipartite International Instruments of General Interest (Washington: Carnegie Endowment for International Peace, 1936) vol. 5 at 1090–1098. See, above n. 104 and corresponding text. Shotwell & Salvin, above n. 34 at 44. The Convention was ratified by Peru, Norway and the Netherlands, and acceded to by Nicaragua. In order for the Convention to enter into force, however, ratifications or accessions of ten states were needed in accordance with Article 13: see Hudson, above n. 110 vol. 5 at 1090.

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3. Emergence of Forceful Peacekeeping Measures A. Background After the General Convention was aborted, efforts to develop peacekeeping measures under Article 11 of the Covenant were given less and less attention. The turn of the tide came about when the League of Nations became involved in the Manchurian incident on 18 September 1931,114 when, nearly three months after the first appeal from the Chinese government, the League Council appointed a commission of enquiry, which submitted a report nearly one year after the incident, yet only to fail in resolving the conflict. It could be retrospectively speculated that a swift despatch of a commission of enquiry or the adoption of a forceful peacekeeping measure would have been more effective in preventing hostilities from escalating.115 Against this background, the League’s quest for peace, albeit somewhat appeasing to recalcitrant states, led to a new idea of using international forces to prevent further deterioration of situations or to keep public order of an area in dispute. The attempts to use international forces for the purpose of prevention during the 1930s may not be appreciated as a genuine success. Three cases where the deployment of international forces was proposed or actually carried out are nonetheless worthy of review as precedents for the development of UN peacekeeping forces.

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On 18 September 1931, an explosion occurred around the South Manchuria Railway near Mukden, which was followed by the Japanese military attacks on and occupation of Mukden allegedly as a legitimate self-defence. Although the Chinese government appealed to the League Council under Article 11 of the Covenant on 21 September, it was not until 10 December that the Council appointed a commission of enquiry ‘to study on the spot and to report to the Council on any circumstance which, affecting international relations, threatens to disturb peace between China and Japan, or the good understanding between them, upon which peace depends.’ The commission submitted a report on 4 September 1932, which dismissed the Japanese allegation and suggested a possible foundation of resolution. However, the situation further deteriorated while the enquiry was carried out, due to the attacks by Japanese forces on the Chinese city of Shanghai and to the proclamation in Manchuria of its own statehood under the name of ‘Manchukuo’. For details of the conflict, see, John W. Wheeler-Bennett, Documents on International Affairs (London: Oxford University Press, 1933) at 240–338; Quincy Wright, ‘The Manchurian Crisis’ in Joel Larus (ed), From Collective Security to Preventive Diplomacy: Readings in International Organization and the Maintenance of Peace (New York: John Wiley & Sons, 1965) 91 at 91–109. Wainhouse observed that ‘[h]ad the United States agreed, the League would have sent a Commission of Enquiry to the spot within a week after the outbreak of hostilities on September 18, 1932’: Wainhouse, above n. 35 at 63.

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B. Dispute between Colombia and Peru over Leticia (1932) It was agreed that Leticia was to be handed over to Columbia,116 when the frontier in the Upper Amazon Basin was fixed on 24 March 1922 between Colombia and Peru.117 Yet some of the Peruvian nationals resented the loss of Leticia and took possession of Leticia during the night of 31 August–1 September 1932, expelling the Colombian civil authorities and hoisting the Peruvian flag.118 Though apologetic at first, having taken into account the fact that the assailants had the support of the military authorities in the province of Loreto, and the domestic political risk that it might have to take by opposing their acts, the Peruvian government eventually endorsed their acts as a result of the movement towards national reintegration which the government could not resist. In the meanwhile, the Colombian government sent its naval forces on a long journey over 2,000 miles up to Leticia. When the matter was brought before the League Council on 2 January 1933 by Colombia,119 the risk of a clash between the Peruvian and Colombian armed forces was acute. Although the Acting-President of the League Council sent telegrams to the two parties on 14 January asking them to refrain from any action likely to aggravate the situation,120 the first fighting finally took place on 14 February. The Council instructed a committee which had already been set up to deal with the dispute between Bolivia and Paraguay to monitor this dispute. The committee, on 25 February, drew up a scheme which proposed that a commission appointed by the League take charge of Leticia, which would be evacuated by the Peruvians and placed by the Colombian forces at the disposal of the commission for the maintenance of order in the area, which were to become international forces for

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Leticia was nothing but a village of about 300 inhabitants, situated on the River Amazon but with potential significance. Although the territory was to a large extent unexploited, its potential significance was considerable in that it was rich in minerals, timber, and rubber, and also suitable for the cultivation of cotton and tobacco. 1922 Treaty between Colombia and Peru regarding the Frontiers and Free Inland Navigation, 74 LNTS 9. The treaty was not ratified until 1928. For details of the incident, see, Arnold J. Toynbee, Survey of International Affairs 1933 (London: Oxford University Press, 1934) at 438–442. For the background leading up to this stage including several attempts of conciliation and mediation, see, Report of the Council, Provided for in Article 15, Paragraph 4, of the Covenant (Submitted by the Committee of the Council, in Accordance with the Decision Taken by the Council on March 8th, 1933), LNOJ, 14th year, No. 4, Part 1, Document No. C.194.M.91.1933.VII, at 601–602 (1933) (hereinafter Council Report on Leticia). Although the League had experienced some difficulties in handling Latin-American disputes where the Monroe Doctrine applied, the fact that the US Secretary of State, Stimson, transmitted to the League of Nations the text of a note sent to Peru to appeal to accept the Brazilian proposal was taken as an indication that the US would welcome any assistance which the League might be able to give in bringing the dispute over Leticia to an end.

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the duration of the negotiations.121 Colombia accepted this proposal on 27 February, whereas the Peruvian government made a reservation to the suggestion for the internationalisation of Colombian forces and proposed instead that order should be maintained in the territory by the residents themselves.122 When the attempt of the League to find a solution to this dispute failed, the possibility of putting an arms embargo into force against Peru emerged.123 However, as soon as the Peruvian President was assassinated, it became clear that public opinion in Peru did not favour the drift toward war and direct negotiations for a settlement started between Colombia and Peru.124 The two parties agreed that the Peruvian forces were going to be withdrawn under the supervision of a commission consisting of the representatives of the United States, Brazil, and Spain, with a member of the League Secretariat as its secretary, which was to be in charge of the temporary administration of Leticia.125 The evacuation of the troops was completed in June 1933,126 following which the negotiations on the issue of Leticia opened. A few weeks before the administrative commission was due to leave, the negotiations led the two parties to the conclusion of an agreement, in which the validity of the treaty signed in 1922 was explicitly confirmed and thus Leticia was to form part of Colombian territory.127 Although the idea of the deployment of international forces in a conflict area as a provisional measure was noteworthy, the substance of the proposal lost sight of the reality that had confronted the two parties to the conflict. It is conceivable that the recognition of Colombian forces as international forces was supported by the general feeling that Peru’s action would have to be condemned as an act of aggression. However, as Peru had not been formally found to have committed aggression, impartiality of the measure should have been maintained. In view of

121 122 123

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Council Report on Leticia, above n. 119 at 605. Id. at 606–607. Since the resolution empowering the US President to declare an embargo was pending in the UN Congress, the decision of an arms embargo would have faced difficulty that the US could not take part in the embargo: see, Toynbee, above n. 118 at 451–452. Id. at 453–454. Paragraph 2 of the Committee’s recommendation to the governments of Columbia and Peru provides that, ‘[t]he Council shall appoint a Commission which is to be at Leticia within a period not exceeding thirty days. The Peruvian forces in that territory shall withdraw immediately upon the Commission’s arrival, and the Commission, in the name of the Government of Columbia, shall take charge of the administration of the territory evacuated by those forces’: LNOJ, 14th year, 73rd sess, 3rd mtg, at 945 (25 May 1933). See, Letter, dated June 26th, 1933, from the Commission for Administering the Territory of Leticia to the Secretary-General, Forwarding a Copy of the Record of the Evacuation by the Peruvian Troops of the Territory Referred to in the Agreement Signed at Geneva on May 25th, 1933, LNOJ, 14th year, No. 10, Part 1, at 1108 (26 June 1933). For details, see, Toynbee, above n. 118 at 455–457.

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this fact, it was understandable that the Peruvian representative feared reprisals against the Peruvian nationals who had revolted and expelled the Colombian authorities.128 It is to be noted that the withdrawal of the armed forces on both sides was finally completed under the supervision of the representatives of three states, which could be seen as a precedent for peace observation mission and transitional territorial administration. C. Dispute between Bolivia and Paraguay over El Gran Chaco (1932–34) El Gran Chaco was the area in which the boundary between Bolivia and Paraguay had never been settled since their independence from Spain, and was the cause of a military clash between the two countries in December 1928. While the fighting between them intensified in June 1932, all the attempts to settle the conflict made by neutral American states failed.129 The League Council refrained from actively getting involved in the mediation process led by neutral American states, rather choosing to confine itself to the appointment of a committee to follow the development of the conflict.130 With the committee having reported that armaments and munitions in both parties to the conflict had been supplied from abroad, the British and French governments proposed on 25 February 1933 that ‘the Council should study the measures which, in application of Article 11 of the Covenant, might be proposed with a view to preventing the supply of arms and war materials to Bolivia and Paraguay’.131 The El Gran Chaco dispute was accordingly submitted to the Council under Article 11 of the Covenant by the committee on 6 March 1933.132 The Council was nonetheless unable to impose an arms embargo, due to the fact that the United States, who was outside the Council despite being one of the main arms-producing countries, lacked the authority of Congress to proclaim an arms embargo. Thus being free to obtain war materials, the Paraguay government declared war on 10 May 1933. A fresh attempt to put an end to the conflict by imposing an arms embargo was made outside the League’s authority. Following a motion in the US Congress towards the adoption of a resolution which was to empower the US President to

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Council Report on Leticia, above n. 119 at 607. For the details of the fact, see, Toynbee, above n. 118 at 393–438; Walters, above n. 22, vol. 2 at 526–536. The Committee was composed of the representatives of the Irish Free State, Spain, and Guatemala. Letter, dated February 25th, 1933, from the Government of the United Kingdom Regarding an Embargo on the Supply of Arms and War Materials to Bolivia and Paraguay, LNOJ, 14th year, No. 4, Part 2, at 632 (25 February 1933). Letter, Dated March 6th, 1933, from the President of the Committee of the Council Requesting the Inclusion of the Dispute in the Council Agenda under Article 11 of the Covenant, LNOJ, 14th year, No. 4, Part 2, at 633 (6 March 1933).

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impose an embargo on the export of arms to Bolivia and Paraguay,133 26 other countries joined the arms embargo, some unconditionally and others conditionally upon the participation of certain specified countries.134 Whether or not the arms embargo was effective enough to persuade either party to the conflict, Bolivia ultimately invoked Article 15(9) of the Covenant to bring the matter before the League Assembly on 31 May 1934, and offered an unreserved acceptance of the recommendation prepared by a committee of the Assembly.135 In the meantime, the Peace Conference of Buenos Aires began to prepare a peace treaty to put an end to the conflict, despite this initiative attracting opposition from Paraguay. Yet their obstinate refusal of various proposals became harmless, as the arms embargo made both parties virtually unable to resume hostilities.136 Following a series of revolutions in both capitals, a peace treaty was eventually signed in July 1938. It can be seen that this episode proved that an arms embargo could be effectively employed to lessen the intensity of armed conflict. The arms embargo carried out in this instance must be distinguished from that commonly understood as a form of sanction against a wrongdoer. The significance of this distinction was illustrated when it was proposed that the arms embargo against Bolivia should be lifted, as Bolivia had accepted the Assembly’s recommendation. This proposal meant the shifting of peacekeeping measures to sanctions against Peru, freeing Bolivia from the onus of failure to fulfil its obligations under the Covenant before the arms embargo was carried out.137 The arms embargo employed against Bolivia and Paraguay was, at least in the first place, unambiguously intended to be a peacekeeping measure to prevent further deterioration of the situation, not to be a sanction. D. Saar Plebiscite (1935) The Saar Basin was placed under the protection of the League of Nations by Section IV of Part III of the Versailles Peace Treaty for a period of 15 years,138 at the end of which the inhabitants were to be called upon to indicate the sovereignty under which they desired to be placed.139 The Treaty contained an annex to the Section

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136 137 138 139

The change of mood in the US Congress was caused by sensational disclosures by certain organs of the Press with regard to the activities of agents of armament firms in fomenting the war between Bolivia and Paraguay. Toynbee, above n. 118 at 434–437. Margaret E. Burton, The Assembly of the League of Nations (New York: Howard Fertig, 1974) at 337–342. Walters, above n. 22, vol. 2 at 536. Burton, above n. 135 at 342–343. Versailles Peace Treaty, above n. 19. For the historical background of the Saar Territory, see, Steven R. Ratner, The New UN Peacekeeping: Building Peace in Lands of Conflict after the Cold War (London: Macmillan Press, 1995) at 91–94; Wambaugh, above n. 47 at 411–441.

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dealing with the ‘Saar Statute’, which provided for the conditions under which the plebiscite was to be held. As the annex left undetermined many points regarding the way in which to hold the plebiscite, various matters had to be decided by the League Council to hold the plebiscite ‘in such a way as to secure the freedom, secrecy and trustworthiness of the voting’.140 One of the main concerns, as was raised by the French delegate and the Governing Commission of Saar, was the maintenance of order in the Saar Territory during the plebiscite period.141 Indeed, despite the formal undertakings from Germany to abstain from any kind of pressure likely to affect the freedom and trustworthiness of the voting, and to take necessary steps to prevent or punish any action by their nationals contrary to the undertakings,142 Nazi Germans carried out rampant intimidation throughout the Saar Territory even after the Plebiscite Commission started its work.143 The maintenance of order in the Saar Territory was nevertheless left to the hands of corrupt local officials until an international force consisting of troops from the United Kingdom, Italy, the Netherlands and Sweden were deployed on 20 December 1934, in accordance with the determination that the League Council made on 11 December.144 The task of the international force was to intervene to maintain or restore order at the request of the chairperson of the Governing Commission, whilst the ordinary maintenance of law and order was to continue to be assigned to the Governing Commission. The international force was not intended to be a police force in the ordinary sense, but expected to exercise by its mere presence restraint on those who

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Paragraph 34 of the Annex to the ‘Saar Statute’ provides that, ‘[t]he other conditions, methods, and the date of the voting shall be fixed by the Council of the League of Nations in such a way as to secure the freedom, secrecy and trustworthiness of the voting’. Accordingly, the League Council had to decide on such matters as the exact date when the vote must be held, the definition of ‘resident’ for the purpose of electoral qualifications, and the question of the voting unit: for details, see, Sarah Wambaugh, The Saar Plebiscite: with a Collection of Official Documents (Westport: Greenwood Press, 1971) at 165–167. French delegate, Paul-Boncour, expressed his view that the freedom of the voting required that the safety of the population be guaranteed against pressure and threats of reprisals and that order be strictly maintained during the plebiscite period. The Governing Commission, which was set up for the execution of the League’s duties of governing the Saar Territory, was also of the opinion that the Saar police were insufficient, and local recruiting was open to grave objection: see, id. at 169, 177. Id. at 179–180. It was found that there was a connection between Saar local officials and a political organisation representing Nazi Germany: see, id. at 214–217. France desired from the beginning that order should be maintained during the whole plebiscite period by an international force stationed in the area. The motion was finally set when the United Kingdom agreed upon its participation in an international force, on condition that others would do the same and that Germany agree: see, Walters, above n. 22, vol. 2 at 592.

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might have otherwise been tempted to provoke disorder.145 It is in fact reported that ‘[o]n five different occasions mobile parties were sent out to points where disturbances threatened, but in each case this mere show of force had a sobering effect and no drastic action was necessary’.146 The deployment of the international force was of great significance in that this was the first truly international force ever assembled,147 especially for the purpose of precaution to possible disturbance before, during, and after the plebiscite. It is interesting to note that neither the ‘Saar Statute’ nor the Annex to it provided a legal basis for the deployment of the international force,148 which would have rather been based on the League Council’s general competence under Article 11 of the Covenant. Due to the presence of the international force and the German strategy to obtain a genuine victory in the plebiscite as a symbol of the legitimacy of the Hitler government, the plebiscite was held in due course on 13 January 1935, with a large majority favouring immediate return to Germany.149 While the voting took place without violation, more cautious consideration might have been required in the case of plebiscites to maintain order not only on its face but in substance to ensure free and trustworthy voting. Attention should be drawn in this context to the fact that the deployment of the international force started no more than a few weeks before the day of plebiscite, whereas the radio campaign and the intimidation had been used well before it.150 The Saar people had already been so intimidated that they could not see other choices as plausible in the voting, for nobody would have been confident of the degree of security provided by the international force in the case where the result was not in favour of a return to Germany. It is also noteworthy that, having been overwhelmed by expanding Nazi Germany’s influence, some of the voters preferred the extension of temporary governance under the League’s authority and to defer their final decision until the time had come when the free and genuine will of the Saar people could be expressed

145

146 147 148

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See, Larry L. Fabian, Soldiers without Enemies: Preparing the Untied Nations for Peacekeeping (Washington: The Brookings Institute, 1971) at 52; Wambaugh, above n. 140 at 282–284. Wambaugh, above n. 140 at 285. Wainhouse, above n. 35 at 29. It was generally felt that paragraph 34 of the ‘Saar Statute’ could not be invoked as a legal basis for the power to introduce an international force, and that if such a force was to be introduced the League Council must find justification elsewhere: Wambaugh, above n. 140 at 168. What rendered the League Council possible to decide on the deployment of the international force was the German acquiescence in the proposal: id. at 282. The number of votes cast was 528,105 among 539,541 registered votes. 477,119 persons voted for union with Germany, 46,613 for the status quo, 2,124 for union with France, and 2,197 were invalid or blank ballots: for details of the result, see, id. at 304. Espionage had been daily carried out by the Deutsche Front, which colluded with Saar officials, and newspapers and the German wireless broadcasting services were used for the purpose of defamation and to subject persons to public persecution: for details, see, id. at 210–217.

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without fear of persecution.151 It was not until 5 December 1934 that the League gave an answer to the question of status quo and the possibility of a second plebiscite, which was ultimately too ambiguous to meet the expectations that the Saar people had in mind.152 The League thus failed to secure the option that some of the Saar people wished to choose. The lessons drawn from this historic event are still relevant and important in the modern context of election monitoring.153

4. Transformation from Article 11 of the Covenant into Article 40 of the Charter With all the efforts to develop peacekeeping measures, the fact that the aggressive policy of recalcitrant states, notably Germany and Japan, caused the Second World War left many states necessarily aware of the importance and the necessity of having collective enforcement mechanisms. The UN has established collective security mechanisms based on the principled assumption that ‘the Security Council when united, can preserve peace’.154 On the basis of this assumption, the UN Security Council is given the power to have recourse to a wide range of measures for the maintenance of international peace and security. Nonetheless, the idea of recourse to peacekeeping measures was not left behind in the drafting of the UN Charter, and was incorporated as Article 40 in Chapter VII of the Charter. This provision was not included in the Dumbarton Oaks proposals as the basis for the drafting of the UN Charter. Insertion of this provision was proposed by the Chinese delegate on 24 May 1945, explaining that it was ‘designed to prevent

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It is pointed out that the stance of the Saar people fell into three groups: those who wished an immediate return to Germany regardless of the regime in power there; those who were against an immediate return to Germany, even permanently; and those who were against a return to Germany so long as it was under National Socialism, but were unwilling to vote for the status quo without the clear guarantee of a second plebiscite in the future. The last group was supposed to be the decisive factor for the result of the plebiscite: see, id. at 221. See, LNOJ, 15th year, 83rd (extra) sess, 1st mtg, at 1694–1705 (5 December 1934). The Baron Aloisi’s report submitted to the League Council, while mentioning the nationality and social insurance of the inhabitants in each result, did not make clear any political questions including the kind of regime to be established and the amount of self-government to be enjoyed under the League regime. Also, as regards the possibility of a second plebiscite, the report only noted that ‘it [the League of Nations] would have power to dispose of its sovereignty to such extent as might be compatible with the provisions of the Treaty and in conformity with the principles on the basis of which the sovereignty over the Territory had been conferred upon it and must be exercised’: id. at 1695. See, Ch. 5, Section 3-D-iii. UNCIO, vol. 11 at 131.

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a threat to the peace from developing into an actual breach of the peace’.155 Yet it is not clear whether a prior determination of a threat to the peace was required to undertake provisional measures. What is clear is that emphasis was placed on the flexibility and a wide margin of appreciation given to the Security Council in adopting provisional measures. It was noted that the word ‘may’ was used ‘to leave to the discretion of the Council whether to take provisional measures or whether to proceed immediately to final action’.156 It was also made clear that this provision was not intended to fix one kind of action for a threat and another for an open armed conflict, leaving the evaluation of the situation to the Council.157 Indeed, when the Norwegian delegate proposed an amendment providing for the temporary administration of territory by the Security Council, the proposal was withdrawn for fear that by inserting the amendment ‘the presumption might be created that the Council lacked certain other specific powers not mentioned’.158 The motion for the insertion of this provision was approved in Committee 3 of Commission III on 26 May 1945. The fact that the Charter confers upon the Security Council a wide margin of appreciation in undertaking provisional measures has posed the question of what action it can take as a provisional measure. By examining the drafting stage of this provision from a historical perspective, however, it is possible to clarify what the drafters envisaged in this provision. When this provision was initially presented in the report of Rapporteur Paul-Boncour on 5 June 1945, it was titled ‘Conservatory Measures Preliminary to Enforcement Measures’.159 The term ‘conservatory measures’, ‘mésures conservatoires’ in the French text, was the same as that which appeared in the French proposal made in response to the Rutgers memorandum and in Article 4 of the General Convention to Improve the Means of Preventing War.160 Although the term was changed to ‘provisional measure’ in the later English version,161 it remains the same in the French version of the text. Furthermore, it is to be noted that the Rapporteur in charge of drafting what has become Chapter VII of the Charter in the present form was Paul-Boncour, who was one of the advocates for the development of provisional measures in the League of Nations.162 Thus, from a historical perspective it appears tenable that provisional measures stipulated in Article 40 of the Charter would have been envisaged, being such peacekeeping measures as those contemplated during the League of Nations, including

155 156 157 158 159 160 161 162

UNCIO, vol. 12 at 353. Id. at 380. Ibid. Id. at 354–355. Id. at 448–450. See, above nn. 104, 111 and accompanying text. UNCIO vol. 12 at 505–508. See, text accompanying above nn. 84–85.

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a demand for cease-fire, fixing an armistice, and appointing a peace observation mission. It is not so clear, on the other hand, whether more forceful peacekeeping measures such as the deployment of international forces and arms embargoes were also envisaged in the drafting of Article 40 of the Charter, though three examples of forceful peacekeeping measures examined above were indicative of the possibility that provisional measures might develop in that direction. Two points are made clear thus far by reviewing the practice and studies of the League of Nations in developing peacekeeping measures under Article 11 of the Covenant. First, the idea of peacekeeping had already emerged through the development of provisional or conservatory measures designed to preserve the status quo for the purpose of the prevention of war. In other words, the development of provisional measures contemplated in relation to Article 11 of the Covenant took into account peacekeeping as a tool to maintain international peace and security. Second, the development of peacekeeping measures played a fundamental role in the insertion of Article 40 into the Charter. By giving the Security Council a wide margin of appreciation to decide whether and what type of provisional measure to undertake, Article 40 of the Charter allows a great deal of flexibility in directing peacekeeping measures, as was envisaged in the case of Article 11 of the Covenant. The historical background leading up to the insertion of Article 40 thus reinforces the view that provisional measures under this provision are designed to be flexible enough to allow for the development of peacekeeping measures in a variety of settings for the purpose of preventing the aggravation of armed conflicts.

Chapter 3 Peacekeeping as Provisional Measure In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. First sentence of Article 40 of the UN Charter

1. Types of Provisional Measures Little attention has been drawn to provisional measures under Article 40 of the UN Charter,1 much less to their relationship with UN peacekeeping. This trend may well coincide with the general tendency in the Security Council’s practice towards adopting formal action at a later stage of a conflict, often invoking Chapter VII of the Charter, whilst leaving informal consultation with the parties to a conflict at an earlier stage in the hands of the UN Secretariat. An increasing number of Security Council actions have been taken upon the conclusion of a peace or ceasefire agreement between the parties to a conflict. As shown in the previous chapter, however, the practice and studies during the League of Nations underpinned the significance of peacekeeping measures, which formed the basis for the insertion of Article 40 into the Charter.2 The UN practice with respect to Article 40 of the Charter thus needs to be examined in the light of the development of its peacekeeping institution. It is not evident on the face of the provision what measures may be justified under the aegis of Article 40 of the Charter. It was made clear on the other hand in the travaux préparatoires that the provision was not intended to fix some kinds of action that the Security Council could take,3 leaving the scope of provisional

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This trend is illustrated by the volume of information assigned to Article 40 in the Repertory of Practice of United Nations Organs and Repertoire of the Practice of the Security Council, which are both periodically published by the UN. See, Ch. 2, Section 4. UNCIO vol. 12 at 380.

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measures open for development in practice. UN practice has shown that the Security Council tends to take actions without making explicit reference to the legal basis under the UN Charter, not least because of political compromise and expediency.4 Nevertheless, provisional measures can be identified by reference to the purposes and nature of the measure – whether it is aimed at preventing the aggravation of an armed conflict. As has been seen in the previous chapter, the practice and studies leading up to the insertion of Article 40 assist in identifying, as a starting point, five different types of peacekeeping measures that can potentially be undertaken under Article 40 of the Charter: – – – – –

call for cease-fire; peace observation; deployment of peacekeeping forces; provisional territorial administration; and preventive arms embargo.

Although provisional measures are by no means restricted to those five categories, they are examined below as peacekeeping measures that the UN has developed over several decades. The term peacekeeping is widely framed here to encompass all the functions that the Security Council performs to prevent an aggravation of armed conflict before adopting enforcement action against one of the belligerent parties.

2. Call for Cease-fire Calls for cease-fire and cease-hostility are undisputed as a form of provisional measure under Article 40 of the Charter,5 and has most frequently been used from the beginning of UN activities in many conflicts. This is the most simple and basic step that the Security Council can take for the maintenance of international peace and security, inasmuch as it does not require the UN to commit itself to providing any material resources.

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Leland M. Goodrich, Edvard Hambro & Anne Patricia Simons, Charter of the United Nations: Commentary and Documents (3rd ed., New York: Columbia University Press, 1969) at 306. These factors inherent in UN resolutions also have impacts upon the way in which the resolutions are to be interpreted: see, Ch. 4, Section 2-B-i. See especially, Leland M. Goodrich & Anne Patricia Simons, The United Nations and the Maintenance of International Peace and Security (Washington: The Brookings Institutions, 1955) at 372–377; Eduardo Jiménez de Aréchaga, Voting and the Handling of Disputes in the Security Council (New York: Carnegie Endowment for International Peace, 1950) at 120–133.

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An example in point at the very beginning of the UN practice is the resolution, originally proposed by Australia under Article 40,6 calling for a cessation of hostilities in Java and Sumatra between the armed forces of the Netherlands and Indonesia.7 Yet the reference to Article 40 was deliberately omitted to avoid complex legal issues involving sovereignty and the competence of the Council. The original draft resolution proposed by Australia attracted two main criticisms: first, the application of Article 40 could not be justified without first having determined the existence of a threat to the peace within the meaning of Article 39; and second, the Council did not have competence to apply Article 40, as the matter was essentially within the domestic jurisdiction of the Netherlands.8 The US representative proposed an amendment to delete the reference to Article 40, explaining the thrust of provisional measures as follows: The invocation of Articles 40 and 39, however, raises very complex and serious questions of law. The question of sovereignty, and the question of the competence of the Council to deal with the case, have been brought up by the representative of the Netherlands and, in our opinion, also merit the respectful attention of the Council. These are very important questions. The fact that there is shooting and that men are being killed in that region of the world is also very important. Thus it is a legitimate concern of the Council, no matter what concept of sovereignty is involved or what may ultimately be decided to be the fact.9

The resolution was adopted without reference to Article 40 or finding of a threat to the peace, leaving the basic question of competence in abeyance.10 This episode stands in contrast to the failure of adopting a resolution calling for the commencement of direct negotiations to relieve the tension on the northern borders of Greece due largely to the explicit reference to Article 40 without determination under Article 39.11 On the other hand, when the Security Council demanded an immediate withdrawal of Argentine forces from the Falkland Islands

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9 10

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UN SCOR, 2nd sess, 171st mtg, at 1626, UN Doc S/PV.171 (31 July 1947). SC Res 27 (1 August 1947). The conflict was caused by Dutch military occupation of Java to resolve a financial crisis allegedly in contravention of the Linggadjati Agreement, which was concluded on 15 November 1946 as the basis for the formation of a United States of Indonesia as de facto authority over Java, Madura and Sumatra. For details, see, Anthony Reid, The Indonesian National Revolution 1945–1950 (Hawthorn: Longman Australia, 1974) at 110–112. The plea of domestic jurisdiction made by the Netherlands representative caused delay in adopting a cease-fire resolution: see, UN SCOR, 2nd year, 171st–173rd mtgs, UN Doc S/PV.171-173 (31 July–1 August 1947). UN SCOR, 2nd sess, 172nd mtg, at 1657–1658, UN Doc S/PV.172 (1 August 1947). The uncertainty subsequently allowed for competing views on the legal status of Resolution 27. See generally, Repertoire of the Practice of the Security Council (1946–1951) at 431–433. See id. at 428–429.

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in 1982,12 it was expressly stated that the demand was made under Article 40,13 presumably in order to make it clear that the United Kingdom was eligible to vote upon the resolution.14 There are different, albeit similar, technical terms used to call for a more formal agreement. In the Palestine conflict, the Security Council called for truce,15 which in the aftermath resulted in the armistice concluded between the provisional government of Israel on the one side, and the governments of Egypt, Lebanon, Jordan, and Syria on the other.16 Truce is different from mere cease-fire in that the former involves a number of conditions to be fulfilled for the suspension of military action, whereas cease-fire only means transition from fighting to the non-fighting stage as the first step towards an ultimate settlement of the dispute.17 Armistice, on the other hand, is ‘an agreement between belligerents which results in a complete cessation of all hostilities for a specified period of time, usually of some considerable duration, or for an indeterminate period’.18 The subsequent development has seen growing variations in this type of call, which are reportedly, albeit not explicitly, adopted under Article 40 without findings under Article 39.19 The Security Council has called upon parties involved in

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SC Res 502 (3 April 1982). The UK representative stated that ‘it was a mandatory resolution under Article 40 of the Charter of the United Nations’: UN SCOR, 37th year, 2360th mtg, at 10 para. 102, UN Doc S/PV.2360 (21 May 1982); see also, D. J. Harris, Cases and Materials on International Law (5th ed., London: Sweet & Maxwell, 1998) at 908. Article 27(3) would have prevented the United Kingdom from being eligible to vote had the resolution been adopted under Chapter VI of the Charter, which provides that ‘in decisions under Chapter VI . . . a party to a dispute shall abstain from voting’. Truce was called for twice in the middle of increasing tension between the parties after the UK mandate for Palestine came to an end on 15 May 1948. The first truce was called for in SC Res 49 (22 May 1948) and in SC Res 50 (29 May 1948). The second truce was ordered with explicit reference to Article 40 in SC Res 54 (15 July 1948). 1949 Egyptian-Israeli General Armistice Agreement, 42 UNTS 252; 1949 Israeli-Lebanese General Armistice Agreement, 42 UNTS 288; 1949 Hashemite Jordan Kingdom-Israel General Armistice Agreement, 42 UNTS 304; 1949 Israeli-Syrian General Armistice Agreement, 42 UNTS 328. Paul Mohn, ‘Problems of Truce Supervision’ (1952) 478 International Conciliation 51 at 53. Indeed, the first truce by SC Res 50 (29 May 1948), which called on the parties ‘to order a cessation of all acts of armed force for a period of four weeks’, set forth certain conditions to be fulfilled. Howard S. Levie, ‘The Nature and Scope of the Armistice Agreement’ (1956) 50 AJIL 880 at 881. The Repertory of Practice of United Nations Organs and the Repertoire of the Practice of the Security Council lists various types of measures taken by the Security Council without a reference to Article 40 which might be considered to be of the nature of provisional measures. See Repertory of Practice of United Nations Organs (1945–54) vol. II at 364–365; Supplement No. 1 (1954–55) vol. I at 331–336; Supplement No. 2 (1955–59) vol. II at 436–440; Supplement No. 3 (1959–66) vol. II at 221–222; Supplement No. 4 (1966–69) vol. I at 386–388; Supplement No. 5 (1970–78) vol. II at 151–152; Supplement No. 6 (1979–84) vol. III at paras. 6–13; Repertoire of the Practice

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a conflict, for example, to cease military activities,20 to cease acts of violence,21 to refrain from any action that might aggravate the situation,22 to withdraw troops to their original position,23 to prevent violation of sovereignty and territorial integrity of another state,24 to release political prisoners and detainees,25 to refrain from acts of violence against civilians,26 to take necessary action to ensure complete freedom of movement for UN peacekeepers,27 and to suspend activities perceived to be a potential threat to international peace and security.28 This type of provisional measure has also extended to the parties not directly involved in a conflict, calling upon them, for example, to prevent a unilateral declaration of independence by a minority government in a Non-Self-Governing Territory,29 to refrain from rendering a state any assistance,30 not to recognise an illegal regime,31 and to take all measures necessary to facilitate the delivery of humanitarian assistance.32 This practice indicates that the Security Council interprets the term ‘parties concerned’ widely to include other international entities instrumental in the achievement of the peacekeeping goal.33

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of the Security Council (1946–51) at 423–442; Supplement (1952–55) at 153–154; Supplement (1956–58) at 169–171; Supplement (1959–63) at 266–270; Supplement (1964–65) at 184–188; Supplement (1966–68) at 200–204; Supplement (1969–71) at 196–199; Supplement (1972–74) at 221; Supplement (1975–80) at 396–398; Supplement (1981–84) at 323–324; Supplement (1985–88) at 421–423; Supplement (1989–92) at ch. XI; Supplement (1993–95) at 14–23. See, e.g., SC Res 46 (17 April 1948); SC Res 54 (15 July 1948); SC Res 233 (6 June 1967); SC Res 322 (22 November 1972); SC Res 338 (22 October 1973); SC Res 514 (12 July 1982). See, e.g., SC Res 43 (1 April 1948); SC Res 294 (15 July 1971); SC Res 436 (6 October 1978); SC Res 512 (19 June 1982). See, e.g., SC Res 38 (17 January 1948); SC Res 144 (19 July 1960); SC Res 179 (11 June 1963); SC Res 186 and 187 (4 March 1964); SC Res 211 (20 September 1965); SC Res 244 (22 December 1967); SC Res 307 (21 December 1971); SC Res 353 (20 July 1974); SC Res 552 (1 June 1984); SC Res 713 (25 September 1991); SC Res 994 (17 May 1995). See, e.g., SC Res. 143 (14 July 1960); SC Res 145 (22 July 1960); SC Res 146 (9 August 1960); SC Res 164 (22 July 1961); SC Res 209 (4 September 1965); SC Res 279 (12 May 1970); SC Res 313 (28 February 1972); SC Res 660 (2 August 1990). See, e.g., SC Res 178 (24 April 1963); SC Res 145 (22 July 1960). See, e.g., SC Res 556 (23 October 1984). See, e.g., SC Res 512 (19 June 1982); SC Res 564 (31 May 1985). See, e.g., SC Res 733 (23 January 1992); SC Res 749 (7 April 1992); SC Res 994 (17 May 1995). See, e.g., SC Res 1695 (15 July 2006); SC Res 1696 (31 July 2006). See e.g., SC Res 202 (6 May 1965); SC Res 217 (20 November 1965). See, e.g., SC Res 180 (31 July 1963); SC Res 216 (12 November 1965). See, e.g. SC Res 202 (6 May 1965); SC Res 216 (12 November 1965). See, e.g., SC Res 733 (23 January 1992); SC Res 770 (13 August 1992). See, Peter Kooijmans, ‘Provisional Measures of the UN Security Council’ in Erik Denters & Nico Schrijver (eds), Reflections on International Law from the Low Countries: In Honour of Paul de Waart (The Hague: Martinus Nijhoff Publishers, 1998) 289 at 294–295.

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The provisional nature of calls for a cease-fire sometimes involves a delicate issue of whether the cease-fire is to preserve the status quo or to require the restoration of the status quo ante. Illustrative is that when the term ‘cease-hostilities’ was used in dealing with the Indonesian question, it was subjected to ambiguities and arbitrary interpretations, which allowed the Netherlands to conduct mopping-up operations within the limits of the lines laid down by itself. Furthermore, it also made the political talks that ensued desultory, leading to an eventual breakdown involving the second ‘police action’ by the Netherlands.34 It seems, however, that the subsequent practice has given preference to calls for withdrawal of armed forces to restore the status quo ante.35 It is suggested, in any event, that a precarious cease-fire be treated in an impartial fashion,36 and, if necessary, be secured with the presence of peacekeeping forces to disallow brinkmanship with a fait accompli.

3. Peace Observation A. Concept and Legal Basis Peace observation is the act by which military conditions in a target area are monitored and analysed in terms of their propensity for effective cease-fire.37 It is an essential way to monitor the development of conflicts especially in terms of compliance of the parties involved with recommendations or orders issued for the purpose of averting or ending hostilities and fighting. Although observation can be used in a variety of settings in the international security context,38 Article 40 of the Charter would only cover peace observation that monitors the compliance with a call for cease-fire or cease-hostilities issued by the Security Council to prevent an aggravation of armed conflicts. Although the text of Article 40 is silent on

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The Consular Commission observed that the patchy occupation created by the Netherlands’ rapid military advance by-passing a considerable number of Republican forces made it impossible for the order to be observed, as different interpretations of the cease-hostilities order had been applied by each side: Report by the Consular Commission at Batavia to the Security Council, at 23, UN Doc S/586 (22 October 1947). See, e.g., SC Res 210 (6 September 1965); SC Res 289 (23 November 1970); SC Res 340 (25 October 1973); SC Res 353 (20 July 1974); SC Res 380 (6 November 1975); SC Res 502 (3 April 1982). This issue will be dealt with at length in Ch. 5, Section 3-C. Grist defines observation and monitoring in general as ‘the process in which military, socio-economic, and political conditions in a target country are analysed in terms of their conflict propensity’: Ryan Grist, ‘More than Eunuchs at the Orgy: Observation and Monitoring Reconsidered’ (2001) 8(3) International Peacekeeping 59 at 61. See, Norbert J. Prill, ‘Observers’ in Encyclopedia of Public International Law (Amsterdam: Elsevier Science, 1997) vol. 3, 759 at 759–761.

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whether peace observation missions are envisaged as part of provisional measures, it is arguable in the historical context leading up to the drafting of Article 40 that the practice and studies on peace observation under Article 11 of the Covenant of the League of Nations were woven into the meaning of provisional measures under Article 40 of the Charter.39 Peace observation missions, as distinct from preliminary investigatory missions,40 play an important role in keeping abreast of the situation on site.41 It can also be argued from this point of view that peace observation is a way in which the Security Council can discharge the duty imposed by the last sentence of Article 40 to verify the execution of its resolutions.42 The significance of peace observation as a peacekeeping measure therefore lies in its ability to facilitate the parties’ compliance with the call for a cease-fire by the Security Council, aiming at an early settlement of the conflict with a minimal disturbance of international peace and security. Attention is drawn for this reason to the early period of the UN activities when peace observation missions were developed as an instrument to ensure compliance of the parties concerned with the call for a cease-fire by the Security Council. While such early deployment of peace observation missions retains the nature of provisional measure in the sense of Article 40 of the Charter, it is contrasted with the post-conflict deployment of peace observation missions based on a cease-fire agreement between the parties concerned, which since the end of the Cold War has become a standard practice of peacekeeping.43

39 40

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See, Ch. 2, Section 2. The distinction between investigation and observation was clearly maintained by the Australian representative in the Security Council discussions dealing with the Indonesian question in 1947. The Australian representative, Colonel Hodgson, stated that, in the light of the present situation in which hostilities were being carried on, investigation is not required to establish the crucial fact: UN SCOR, 2nd year, 171st mtg, at 1624, UN Doc S/PV.171 (31 July 1947). Colonel Hodgson instead proposed that the observation by the Consular Commission of the situation in Indonesia be continued: UN SCOR, 2nd year, 217th mtg, at 2701, UN Doc S/PV.271 (31 October 1947). The Brazilian representative stated in the Security Council in relation to the Indonesian question that: I hold it to be impracticable, if not harmful, to try to settle that question here, without any direct contact with the situation as it has developed in Indonesia. Any directive we may give to the parties concerned cannot have a full effect if it is not properly acted upon by some organ on the spot. UN SCOR, 2nd year, 217th mtg, at 2691, UN Doc S/PV.217 (31 October 1947). See, Aréchaga, above n. 5 at 140–144. Cf. Indar Jit Rikhye, The Theory and Practice of Peacekeeping (London: C. Hurst & Company, 1984) at 15–16; Alan James, The Politics of Peace-Keeping (London: Chatto & Windus, 1969) at 90–95.

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B. Early Deployment of Peace Observation Mission in Practice The first instance of the deployment of a peace observation mission emerged in 1947 when the cease-hostilities resolution adopted in relation to the Indonesian question was not heeded.44 The Security Council adopted the Australian proposal as amended by the Chinese representative on 25 August 1947, which requested the Council member states to instruct their consular representatives in Batavia to report on the observance of the call for a cessation of hostilities and the conditions prevailing in the areas under military occupation.45 The Consular Commission was assisted by military officers furnished by the representing states in the course of its mandated mission.46 The military assistants were assigned ‘to observe any possible violations of the cease-fire orders; to investigate, where possible, allegations of violations of the cease-fire orders; and to gather any other data that might be of value to the [Consular] Commission and to the Security Council’.47 No mention was made of the legal basis for the establishment of the Consular Commission with the military observers attached thereto. Yet the fact that the Security Council deployed the mission without recognising the situation as a threat to the peace under Article 39 of the Charter, or without the explicit consent of the Netherlands, seems to indicate that the peace observation mission was undertaken presumably under Article 40 of the Charter.48 Taylor observes that, ‘as a result of having left the basic question of competence in abeyance, the Council did not want at this juncture to embark upon a course of action which would (1) set in motion a chain of events directly bearing upon the political settlement of the dispute, and (2) precipitate a clear-cut challenge to its authority to influence the non-military aspects of that dispute’.49 These political and practical considerations enabled the Security Council to take a preventive measure in dealing with the situation under the aegis of Article 40 of the Charter. The establishment of the Consular Commission with military observers set a precedent for the Security Council’s endeavour in peace observation. In 1948, at

44 45

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For a brief account of the event, see above n. 7. SC Res 30 (25 August 1947) at para. 5. The original Australian proposal called for the establishment of a commission consisting of the members to be determined by the Security Council, but the Chinese representative proposed the use of the consular bodies, which was generally supported: see, ‘The Indonesian Question’ (1947–48) YbUN 362 at 366–367. The Consular Commission was constituted pursuant to this resolution by the Consuls-General of Australia, Belgium, China, France, the United Kingdom, and the United States. Report by the Consular Commission at Batavia to the Security Council, above n. 34 at 1. See, Rosalyn Higgins, United Nations Peacekeeping 1946–1967: Documents and Commentary II Asia (London: Oxford University Press, 1970) at 20–24. Alastair M. Taylor, Indonesian Independence and the United Nations (London: Stevens & Sons, 1960) at 341; compare, Higgins, above n. 47 at 29. Taylor, above n. 48 at 342.

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the beginning of the protracted Palestine conflict,50 the Security Council established the Truce Commission for Palestine,51 in order to assure the parties to the conflict that the cease-fire would be observed by both sides.52 The mandate for the Truce Commission, assisted by military observers, was later expanded to supervise the observance not only of the cease-fire order but also of the terms of the truce in an objective and neutral manner. The military observers were assigned, among other things, to report daily each incident relating to the application of the truce, to report immediately any failure to comply with the conditions of the truce, to investigate and report all complaints of alleged violations of the truce, and to maintain effective observation to secure the fullest possible information about any violations of truce conditions, including the crossing of those of military age and war materials.53 At the same time around, the mounting tension in Kashmir drove the Indian government to bring the issue before the Security Council in January 1948.54 The Security Council established the UN Commission for India and Pakistan (UNCIP) with the mandate to establish ‘such observers as it may require of any of the proceedings in pursuance of the measures indicated in the resolution’.55 UNCIP

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At the dawn of the British mandate in 1922, the long-standing conflict over the territory of Palestine between a newly proclaimed state, Israel, and Arab states had already begun to unfold. While the partition plan for Palestine of 1947 as a political settlement of the conflict had been sought on the initiative of the Special Commission on Palestine established by the General Assembly, the Security Council also called upon the parties to the conflict to cease acts of violence: for details, see, Rosalyn Higgins, United Nations Peacekeeping 1946–1967: Documents and Commentary I The Middle East (London: Oxford University Press, 1969) at 6–11; George Kirk, The Middle East 1945–1950 (London: Oxford University Press, 1954) at 239–270. The Truce Commission was ‘composed of representatives of those members of the Security Council which have career consular officers in Jerusalem’ and expected ‘to assist the Security Council in supervising the implementation by the parties of its resolution 46 (1948)’: SC Res 48 (23 April 1948). L. Larry Leonard, ‘The United Nations and Palestine’ (1949) 454 International Conciliation 607 at 684. Cablegrams from the United Nations Mediator dated 22 and 27 July 1948 to the Secretary-General Containing Instructions Given to Observers and Plans of Organization of Truce Supervision, Part 1 at para. 2, UN Doc S/928 (28 July 1948). When India became independent from Britain on 15 August 1947, and was partitioned into two states, three princely States had not decided whether to join with Pakistan or India: Hyderabad, which was eventually absorbed into India; Junagadh, which joined India as a result of a plebiscite; and Kashmir, which became a battlefield, when, following an upsurge of Muslim tribesmen, the ruler of Kashmir, Hindu Maharaja Sir Hari Singh, called on India for military help and signed an instrument of accession to India in October 1947: for details, see, Lord Birdwood, Two Nations and Kashmir (London: Robert Hale, 1956) at 19–105. SC Res 47 (21 April 1948) at para. 17. The Commission was composed of the representatives of Argentina (nominated by Pakistan), Czechoslovakia (nominated by India), Colombia, Belgium, and the United States (Chair). Although the Commission had been established at an earlier stage with an investigatory mandate, it was not despatched for over half a year while the armed conflict

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accordingly deployed 40 to 60 military observers on both sides of the cease-fire line, establishing UN Military Control Headquarters on each side and sending out groups of two members to strategically important posts on both sides of the line.56 They were deployed before a precise cease-fire line was agreed by the parties.57 The observers were assigned to investigate complaints about alleged cease-fire violations or border incidents, to record the identity and disposition of units of the armies as well as any general troop information which might be covered by the cease-fire agreement, and to control civilians who, purposely or inadvertently, crossed the cease-fire line or caused some disturbance which might provoke a violation of the cease-fire agreement.58 In both cases, the military observers were required to continue in existence even after the original mandate was ended. The Truce Commission for Palestine was transformed into the UN Truce Supervision Organisation (UNTSO) to supervise the Armistice Agreements concluded among the parties involved in the conflict,59 together with the Mixed Armistice Commissions set up by each agreement. Likewise, UNCIP was transformed into the UN Military Observer Group in India and Pakistan (UNMOGIP) under the direction of a Chief Military Observer, separately from the political role performed by the UN representative.60 While peace observation missions despatched on the initiative of the Security Council were conceivably based on Article 40 of the Charter, the Security Council’s approval of UNTSO and UNMOGIP was arguably made in pursuance of Article 36 of the Charter.61 In other words, as examined in the next section, the peace observation missions based on the agreements entered into by the parties concerned find their

56 57

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became more intense: see, Josef Korbel, Danger in Kashmir (Princeton: Princeton University Press, 1954) at 104, 121–122. See, Korbel, above n. 55 at 161. It was not until 27 July 1949, half a year since the arrival of the first observer group, that the ceasefire line was resolved between the parties. See, Agreement between the Military Representatives of India and Pakistan regarding the Establishment of a Ceasefire Line in the State of Jammu and Kashmir, reproduced in Higgins, above n. 47 at 334–337. See, Sylvain Lourié, ‘The United Nations Military Observer Group in India and Pakistan’ (1955) 9 International Organization 19 at 28–30. See, above n. 16. The Security Council approved the continuation of UNTSO’s presence by SC Res 73 (11 August 1949). Pauline Dawson, The Peacekeepers of Kashmir: The UN Military Observer Group in India and Pakistan (London: Hurst & Company, 1994) at 36–38. Article 36(1) of the Charter reads that, ‘[t]he Security Council may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature, recommend appropriate procedures or methods of adjustment’, and then paragraph 2 goes on to state that, ‘[t]he Security Council should take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties’.

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authority and objectives in the agreement themselves, rather than in the Security Council’s resolution. This difference in nature of the two operations is important. In acting under Article 40 of the Charter, the Security Council has the authority to act on its own initiative to maintain international peace and security without waiting for the consent of the parties to a conflict. In contrast, under Article 36 the Security Council simply endorses the agreement entered into by the parties concerned as an appropriate procedure or method of adjustment. The preventive deployment of military observers in Palestine and Kashmir was successful in that it preserved a provisional cease-fire environment.62 Some commentators nonetheless take a cautious view in assessing the success, given the fact that it has also contributed to the preservation of the situation without being settled over 50 years.63 However, the lack of progress on reaching the peaceful settlement is not to be ascribed to the Security Council, for its task was ended when it prevented the aggravation of the conflict with the presence of and monitoring by a peace observation mission. A peace observation mission was also deployed in a conflict involving matters essentially within the domestic jurisdiction of a state. When Arab nationalism was moulded in the Middle East in the 1950s, Lebanon succumbed to an internal armed conflict,64 allegedly involving massive infiltration of armed rebels and supplies from Syria, which jointly formed the United Arab Republic (UAR) with Egypt.65 Despite the concern about the principle of non-intervention as embodied in

62 63

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Lourié, above n. 58 at 30. For example, in relation to Kashmir, see, Felicity Volk, ‘Kashmir: The Problem of United Nations Peacekeeping Contributing to Political “Stasis” ’ in Kevin Clements & Robin Ward (eds), Building International Community: Cooperating for Peace, Case Studies (Sydney: Allen & Unwin, 1994) 288 at 290. The very incident that triggered the revolt was the murder of Nasib al-Matni, a Maronite Christian, who had been a severe critic of the pro-western President Chamoun and his administration in favour of strengthening relations with UAR in his work as a journalist, whilst a rumour spread that Chamoun was intending to amend the constitution so that he could stay in office for a second term. However, the causes of the revolt were deep-rooted in the internal frustration due to Muslim dissatisfaction with their treatment and the corrupt administration, as well as the external political uprising at the hight of Arab nationalism in the context of the Cold War. For details, see, Fahim I. Qubain, Crisis in Lebanon (Baltimore: The French-Bray Printing Company, 1961) at 28–70; Malcolm Kerr, ‘The Lebanese Civil War’ in Evan Luard (ed.), The International Regulation of Civil War (London: Thames and Hudson, 1972) 65 at 69–75. See, Letter Dated 22 May 1958 from the Representative of Lebanon to the President of the Security Council concerning “Complaint by Lebanon in Respect of a Situation Arising from the Intervention of the United Arab Republic in the Internal Affairs of Lebanon, the Continuance of Which is Likely to Endanger the Maintenance of International Peace and Security, UN Doc S/4007 (22 May 1958).

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Article 2(7) of the UN Charter,66 it prompted the Security Council ‘to dispatch urgently an observation group to proceed to Lebanon so as to ensure that there is no illegal infiltration of personnel or supply of arms or other matériel across the Lebanese borders’.67 The UN Secretary-General, who was authorised to take necessary steps to that end by the same resolution, arranged immediately for the deployment of the UN Observation Group in Lebanon (UNOGIL) and military officers in the capacity of observers assisting the Group.68 Although the task of observation was frustrated due to the fact that only a small part of the total frontier was controlled by government forces,69 UNOGIL made great efforts to obtain full freedom of access from opposition forces.70 As will be shown in Chapter 5,71 however, the activities of UNOGIL were significantly hampered by the unilateral deployment of US military troops, which was decided in response to the request made by the Lebanese government. After the Security Council failed to agree on the revision of UNOGIL’s mandate and functions in the changed circumstances, the matter was brought to the General Assembly,72 which then assigned UNOGIL an additional task to ‘facilitate’ an early withdrawal of

66

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68

69 70

71 72

Having noted that possible action by the Security Council could be greatly restricted in consequence of Article 2(7) of the Charter, the Swedish representative explained the intention of the draft resolution as follows: It is evident that foreign interference may contribute to the aggravation of internal antagonisms in Lebanon and make a settlement difficult. If such interference has occurred, it is deeply to be deplored, and every effort should be made to bring about a correction. In these circumstances there may be justification for considering some arrangement of investigation or observation by the Council itself with a view to clarifying the situation. UN SCOR, 13th year, 824th mtg, at para. 100, UN Doc S/PV.824 (10 June 1958). SC Res 128 (11 June 1958). The resolution was adopted by 10 votes to 0, with the Soviet abstention. The reason for the Soviet abstention was that neither Lebanon nor the UAR objected to it, whilst the Soviet Union regarded the situation in Lebanon as falling solely within the domestic jurisdiction of Lebanon: UN SCOR, 13th year, 825th mtg, at paras. 83–86, UN Doc S/PV.825 (11 June 1958). The first fifteen military observers were provided by UNTSO for temporary duty. The military observers began active reconnaissance in Beirut on 13 June 1958, mainly by conducting patrols. See, First Report by the Secretary-General on the Implementation of the Resolution Adopted by the Security Council on 11 June 1958, at paras. 2–6, UN Doc S/4029 (16 June 1958) (hereinafter UNOGIL First Report), reproduced in M. S. Agwani, The Lebanese Crisis, 1958: A Documentary Study (Bombay: Asia Publishing House, 1965) at 198–203. UNOGIL First Report, above n. 68 at para. 5. Ironically, the Observation Group completed the task of obtaining full freedom of access to all sections of the Lebanese frontier on the very day when the US marines landed in Beirut: see, Interim Report of the United Nations Observation Group in Lebanon, UN Doc S/4051 (15 July 1958). See, Ch. 5, Section 3-B. For details, see, Higgins, above n. 50 at 539–542; Louis B. Sohn, Cases on United Nations Law (2nd ed., Brooklyn: The Foundation Press, 1967) at 691–695.

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the foreign troops from Lebanon.73 Yet the additional task of a different nature significantly weakened UNOGIL’s position, not least because of the recommendatory nature of the request as opposed to the mandatory nature of its original mission.74 C. Post-Conflict Deployment of Peace Observation Mission The Security Council’s practice in relation to peace observation faced a sea change in the 1980s when two, decade-long armed conflicts involving the strong interests of major powers came to an end. The first instance concerned the situation in Afghanistan and Pakistan, following the Soviet military advance into Afghanistan, alleging that it was requested by the Afghan government for assistance against insurgent movements.75 No significant step for improvement was in sight until the Agreement on the Settlement of the Situation Relating to Afghanistan was signed at Geneva by the concerned states on 14 April 1988.76 The UN Good Offices Mission in Afghanistan and Pakistan (UNGOMAP) was thereafter established to lend its good offices to the parties and to investigate and report on any possible violations of the agreement.77 The other conflict that changed the nature of peace observation was an armed conflict between Iran and Iraq, which broke out in 1980 and had long been neglected without effective measures being taken by the Security Council.78 It was not until 1987 that the Security Council took an effective step for the de-escalation of the conflict by adopting Resolution 598 (1987), whereby the Security Council, acting under Articles 39 and 40 of the Charter upon the determination of the existence of a breach of the peace, demanded that both parties observe an immediate ceasefire, discontinue all military actions, and withdraw all forces to the internationally

73 74

75

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GA Res 1237(ES-III) (21 August 1958). The former was based on the ‘request’ made by the General Assembly, whilst the latter was mandated by the ‘decision’ of the Security Council. The legal force of the Security Council’s ‘decision’ will be examined in Ch. 4, Section 2. For details, see, Robert S. Litwak, ‘The Soviet Union in Afghanistan’ in Ariel E. Levite, Bruce W. Jentleson & Larry Berman (eds), Foreign Military Intervention: The Dynamics of Protracted Conflict (New York: Columbia University Press, 1992) 65 at 70–78. This step was heralded by the statement made by Mikhail Gorbachev in February 1988 that the withdrawal of Soviet troops would begin on 15 May 1988 if agreement was reached at Geneva by that time: ‘Afghanistan Situation’ (1994) YbUN 184 at 185. SC Res 622 (31 October 1988). The absence of effective measures by the Security Council was partly helped by the shock that had confronted the United States when US diplomats were taken hostage in 1980 upon the success of the revolution in Iran in 1979. Resolution 479 (1980) only called upon both parties an immediate cease-fire, which had little effect: SC Res 479 (28 September 1980). A small group of military observers was later despatched to monitor the situation: SC Res 514 (12 July 1982); SC Res 522 (4 October 1982).

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recognised boundaries without delay.79 While the armed conflict continued, the Secretary-General’s diplomatic initiative led both parties finally to the agreement on the cease-fire with effect from 20 August 1988, which was to be verified and supervised by the UN Iran-Iraq Military Observer Group (UNIIMOG) pursuant to Resolution 598.80 Although this measure was adopted on the basis of Article 40 of the Charter, its success benefited largely from a growing readiness by the five permanent members of the Security Council to work together to seek an end to the long-standing conflict.81 It is also to be noted that the overall initiative was taken by the Secretary-General, and it was not until the agreement for a cease-fire was signed by both parties that the UNIIMOG started operation.82 The Security Council’s delay in responding to the armed conflicts in Afghanistan and in the Iran-Iraq border could have been the inevitable consequence of Cold War politics. Yet the post-conflict type of peace observation, which is despatched at the request of the parties upon the conclusion of a cease-fire agreement, has continued to dominate UN practice. In more recent cases, peace observation missions deployed in the Aouzou Strip,83 Tajikistan,84 and Guatemala,85 were all based on the agreements between the parties in dispute at a stage where the conflicts were almost resolved. The post-conflict type of peace observation may rather be regarded as ‘procedures or methods of adjustment’ within the meaning of Article 36(1) of the Charter.86 Goodrich and Simons have rightly pointed out that the Security Council may exercise discretion in determining the nature of provisional measures ‘under its primary responsibility for maintaining international peace and security or under the special powers conferred on it under Chapter VI of the Charter inasmuch as 79 80

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83 84

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SC Res 598 (20 July 1987). For the terms of reference of UNIIMOG, see, Report of the Secretary-General on the Implementation of Operative Paragraph 2 of Security Council Resolution 598 (1987), UN Doc S/20093 (7 August 1988). The Blue Helmets: A Review of United Nations Peace-Keeping (3rd ed, New York: UN Department of Public Information, 1996) at 670. Both parties notified the Secretary-General of their acceptance of Resolution 598 (1987), at least in principle in July 1988, and the formal agreement between Iran and Iraq to a ceasefire with effect from 20 August was announced on 8 August 1988: id. at 671–672. On the following day, the Security Council approved the terms of reference of UNIIMOG for a period of six months in SC Res 619 (9 August 1988). SC Res 915 (4 May 1994), establishing the UN Aouzou Strip Observer Group (UNASOG). SC Res 968 (16 December 1994), establishing the UN Mission in Tajikistan to monitor the implementation of the Tehran Agreement concluded in September 1994. SC Res 1094 (20 January 1997), despatching a group of 155 military observers as part of the UN Mission for the Verification of Human Rights and of Compliance with the Commitments of the Comprehensive Agreement on Human Rights in Guatemala (MINUGUA) to monitor the implementation of the Agreement on the Definitive Ceasefire signed on 4 December 1996. The text of this provision is reproduced above n. 61.

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“procedures or methods of adjustment” can be interpreted to cover measures of a preliminary nature necessary to a peaceful adjustment’.87 Article 36(2) also requires the Security Council to ‘take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties’. It is thus submitted that the post-conflict type of peace observation finds its legal basis, pursuant to Article 36 rather than Article 40, in an agreement concluded between the parties as a step forward to the agreed peaceful settlement of the conflict.

4. Peacekeeping Forces A. Concept and Legal Basis As distinct from a peace observation mission which often consists of a small group of military observers, peacekeeping forces are deployed with large contingents of troops contributed by member states. The Security Council up to 2007 has deployed UN peacekeeping forces over 30 occasions.88 There has been a general trend as well as growing demands for the deployment of peacekeeping forces since the 1990s, with increasingly difficult and complex mandates often involving the preservation of fragile peace in a weak and unstable situation within a state, prompting them to undertake multi-dimensional and integrated approach to the operation.89 The prevention of the exacerbation of internal armed conflicts is of special significance, inasmuch as the weak and unstable internal situation makes a state, often a newly born state, vulnerable to foreign intervention and counter-intervention, and, as a result, allows the internal instability to escalate into a large-scale armed conflict that spills over in an international dimension.90

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Goodrich & Simons, above n. 5 at 372. UN forces were deployed in the Congo (ONUC), Cyprus (UNFICYP), Israel/Egypt (UNEF II), Israel/Syria (UNDOF), Lebanon (UNIFIL), Namibia (UNTAG), Cambodia (UNTAC), Iraq/ Kuwait (UNIKOM), Former Yugoslavia (UNPROFOR), Former Yugoslav Republic of Macedonia (UNPREDEP), Mozambique (ONUMOZ), Haiti (UNMIH, UNSMIH, MINUSTAH), Rwanda (UNAMIR), Somalia (UNOSOM II), Angola (UNAVEM III and MONUA), Croatia (UNCRO, UNTAES), Central African Republic (MINURCA); Democratic Republic of the Congo (MONUC), East Timor (UNTAET; UNMIT), Sierra Leone (UNAMSIL), Ethiopia/Eritrea (UNMEE), Liberia (UNMIL), Côte d’Ivoire (UNOCI), Burundi (ONUB); Sudan (UNMIS; UNAMID). See, United Nations Peacekeeping Operations: Principles and Guidelines (New York: United Nations, 2008), available via (last visited 7 April 2008); Handbook on United Nations Multidimentional Peacekeeping Operations (New York: United Nations Department of Peacekeeping Operations, 2003), available via (last visited 7 April 2008). Oscar Schachter, ‘Sovereignty and Threats to Peace’ in Thomas G. Weiss (ed.), Collective Security in a Changing World (Boulder: Lynne Rienner Publishers, 1993) 19 at 29.

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The legal basis for the deployment of peacekeeping forces has traditionally been left ambiguous and open for different arguments. It is worthwhile to cast a renewed light on this issue to see whether and to what extent Article 40 of the Charter can provide a legal basis for the deployment of peacekeeping forces as a type of provisional measure. The hypothesis is not groundless, as can be seen in the deployment of the international forces by the League of Nations in Leticia and Saar under its authority presumably pursuant to Article 11 of the Covenant.91 Yet the recent practice of the Security Council resorting to Chapter VII after a cease-fire or peace agreement is concluded between the parties concerned makes it difficult to untangle potentially competing legal bases to ascertain whether any of the peacekeeping operations can be based on Article 40 of the Charter. Given the purpose of Article 40 is to prevent an aggravation of armed conflicts, attention is drawn here to four cases where peacekeeping forces were deployed in the absence of, or before the conclusion of, some sort of cease-fire agreement: UN Operations in the Congo (ONUC: 1960–64); UN Peacekeeping Force in Cyprus (UNFICYP: 1964–); UN Emergency Force (UNEF II: 1973–79); and UN Preventive Deployment in the Former Yugoslav Republic of Macedonia (UNPREDEP: 1992–99). Those four cases are examined below to ascertain whether peacekeeping forces can be deployed on the basis of Article 40 of the Charter as a type of provisional measure. The more recent practice under Chapter VII can then be considered, juxtaposing it with the earlier practice to see to what extent Article 40 can extend as the legal basis for the deployment of peacekeeping forces. B. Early Deployment of Peacekeeping Forces in Practice i. UN Operations in the Congo (ONUC: 1960–64) The Republic of the Congo achieved independence from Belgium on 30 June 1960, applied for admission to the UN on 1 July, and upon the Security Council’s recommendation on 7 July had this application approved by the General Assembly on 20 September. Since the schedule for independence was accelerated due to the internal upheavals within the Congo, independence was achieved without proper preparation, such as training in governmental administration and economic management. The chaotic governance failed to prevent and regulate tribal violence and the mutiny of Congolese soldiers, which led to redeployment of Belgian troops.92 In the meantime, having been elected Provincial President, Moïse Tshombe proclaimed on 11 July 1960 the independence of Katanga without popular con-

91 92

See, Ch. 2, Section 3. For the background, see, Catherine Hoskyns, The Congo Since Independence: January 1960–December 1961 (London: Oxford University Press, 1965) at 1–104.

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sultation, and asked Belgium for technical, financial and military aid.93 Having been concerned with the redeployment of Belgian troops, as well as the declared secession of Katanga at the advent of its independence from Belgium, the central government of the Congo requested an ‘urgent despatch of military assistance’ against the Belgian intervention. The central government maintained that the purpose of the aid requested was ‘not to restore [the] internal situation in Congo but rather to protect the national territory against [an] act of aggression posed by Belgian metropolitan troops’.94 Yet, on the contrary, the UN Secretary-General urged the restoration of law and order within the Congo in the hope that the Belgian troops would see their way to withdrawal.95 The Security Council, by adopting Resolution 143 (1960): Decide[d] to authorize the Secretary-General to take the necessary steps, in consultation with the Government of the Republic of the Congo, to provide the Government with such military assistance, as may be necessary, until, through the efforts of the Congolese Government with the technical assistance of the United Nations, the national security forces may be able, in the opinion of the Government, to meet fully their tasks.96

It accordingly despatched the UN Operation in the Congo (ONUC) in order to facilitate the withdrawal of Belgian troops.97 The Security Council subsequently reinforced ONUC’s mandate, responding to the changing circumstances that followed – a constitutional crisis with danger of civil war,98 and then back to the issue of Katangan secession. Resolution 161 urged that all appropriate measures be immediately taken to prevent the country from being 93

94

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98

See generally, Conor Cruise O’Brien, To Katanga and Back: A UN Case History (London: Hutchinson, 1962) at 83–87. Katanga was rich in such resources as copper, cobalt, zinc, germanium, cadmium, precious metals and uranium-radium ore, which provided satisfactory revenues for Katanga with a population of two million to be an independent country with considerable Belgian aid. The majority of the population seemed to be either hostile or indifferent to the proposals for independence: Oscar Schachter, ‘Preventing the Internationalization of Internal Conflict: A Legal Analysis of the U.N. Congo Experience’ (1963) 57 Proc ASIL 216 at 223. Cable dated 13 July from the President of the Republic of the Congo and the Prime Minister and Minister of National Defense addressed to the Secretary-General of the United Nations, UN Doc S/4382 (13 July 1960), reprinted in A. G. Mezerik, Congo and the United Nations: The First Year (New York: International Review Service, 1960) Part 2 at 76. UN SCOR, 15th year, 873rd mtg, at para. 27, UN Doc S/PV.873 (13–14 July 1960). SC Res 143 (14 July 1960). The call for the withdrawal of Belgian troops was reiterated in the subsequent resolutions: see, SC Res 145 (22 July 1960); SC Res 146 (9 August 1960). The constitutional crisis was triggered by the dismissal of the Prime Minister Patrice Lumumba by the President Joseph Kasavubu on 5 September 1960: see generally, Georges Abi-Saab, The United Nations Operation in the Congo 1960–1964 (Oxford: Oxford University Press, 1978) at 43–47, 54–56; Brian Urquhart, Hammarskjold (London: The Bodley Head, 1972) at 435–436; Hoskyns above n. 92 at 178–196.

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plunged into civil war with the use of armed force, if necessary, as the last resort, and also that the Belgian personnel immediately withdraw and evacuate from the Congo.99 Resolution 169 was adopted for securing the immediate apprehension, detention and deportation of all foreign personnel with the use of armed force if necessary.100 However, the implementation of the mandates confronted ONUC with operational difficulties due to the ambiguities in the objectives and methods of the operation under the mandate, the lack of relevant legal precedents, and political pressure from various sides.101 Those difficulties involved issues of neutrality and the authorised scope of the use of armed force in self-defence.102 Ambiguities in the operational objectives and methods in the resolutions were deeply associated with the controversy over the legal basis for the ONUC operation. It is conceivable that the call for the withdrawal of Belgian troops from the Congo and the establishment of ONUC to facilitate it as a subsidiary organ of the Security Council in the first place were reasonably seen as being based primarily on Article 40 of the Charter.103 The then Secretary-General Hammarskjöld referred to Article 40 on several occasions as the potential legal basis for the action.104 The provisional nature of this operation is even inferred from the fact that in the course of drafting Resolution 143, the Soviet proposals to include condemnation of Belgium for the armed aggression and call for the ‘immediate’ withdrawal of the Belgian troops from Congolese territory were rejected by virtue of the speedy adoption of a resolution without further discussion.105

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SC Res 161 (21 February 1961). This resolution was too late to come for the former purpose, since the constitutional crisis had almost ended with the death of Lumumba. SC Res 169 (24 November 1961). Ernest W. Lefever, Uncertain Mandate: Politics of the U.N. Congo Operation (Baltimore: The Johns Hopkins Press, 1967) at 18–21, 210. These issues will be elaborated at length in Ch. 5 and Ch. 6 respectively. See, e.g., Rosalyn Higgins, United Nations Peacekeeping: 1946–1967 Documents and Commentary III Africa (Oxford: Oxford University Press, 1980) at 54–56; James M. Boyd, United Nations Peace-Keeping Operations: A Military and Political Appraisal (Westport: Praeger, 1971) at 61–62; R. Simmonds, Legal Problems Arising from the United Nations Military Operations in the Congo (The Hague: Martinus Nijhoff, 1968) at 63–65; D. W. Bowett, United Nations Forces: A Legal Study of United Nations Practice (London: Stevens & Sons, 1964) at 174–180; E. M. Miller, ‘Legal Aspects of the United Nations Action in the Congo’ (1961) 55 AJIL 1 at 4–7; Fouad Abdel Moneim Riad, ‘The United Nations Action in the Congo and Its Legal Basis’ (1961) 17 Revue Egyptienne de droit international 1 at 20–21; compare, John W. Halderman, ‘Legal Basis for United Nations Armed Force’ (1962) 56 AJIL 971 at 987–991. See, Repertory of Practice of United Nations Organs: Supplement No. 3 (1959–66) vol. II at 217–219. UN SCOR, 15th year, 873rd mtg, at 37–41 paras. 198–224, UN Doc S/PV.873 (13–14 July 1960).

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It was not so certain, on the other hand, as to the legal basis upon which, and the manner in which, ONUC was required to provide military assistance for the central government to maintain internal law and order. When the Congo was plunged into a constitutional crisis, the then Special Representative of the Secretary-General in the Congo, Andrew Cordier, took vigorous action, ordering the closure of the radio station and the airports. It was ambiguous from the text of the resolutions whether the requirement of consultation with the central government of the Congo meant no more than a procedure to be followed for the effective implementation, or constituted a substantive condition precedent to the implementation of the mandate.106 It seemed, however, that the collapse of the central government negated the requirement of consultation on this occasion,107 and thus enabled ONUC to embark on the operation for the maintenance of internal order without consultation as necessary military assistance pursuant to the mandate. There would have been no legal basis to be relied on for this action other than Article 40 of the Charter, on which the original operation was based. In other words, peacekeeping measures under Article 40 arguably extended its scope to any provisional operations as deemed necessary to ensure the effective implementation of the original mandate. ii. UN Peacekeeping Force in Cyprus (UNFICYP: 1964–) The Republic of Cyprus, having achieved independence on 16 August 1960, was destined to be split down the middle with inter-communal conflict between Greek Cypriots and Turkish Cypriots. The conflict ultimately began when the President of the Republic, Archbishop Makarios, set forth 13 constitutional amendments on 30 November 1963, which were aimed at eliminating the influence of the Turkish Cypriot community in decision-making.108 With all of the efforts to settle the

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This issue will be dealt with at length in Ch. 4, Section 2-C-iii. Hammarskjöld justified Cordier’s order, stating that since there were no such authorities the UN representatives could consult without taking sides, ‘they had to act on their own responsibility, within their general mandate, in order to meet the emergency which they were facing’. He also pointed out the fact that ‘the soldiers [of the Armée nationale congolaise] ha[d] broken away from their command, which ha[d] been unable to control their actions’: UN SCOR, 15th year, 896th mtg, at paras. 94, 102, UN Doc S/PV.896 (9–10 September 1960). For a detailed analysis of the justification of Cordier’s order, see, Abi-Saab, above n. 98 at 61–65. For details, see, e.g., Keith Kyle, Cyprus: In Search of Peace (London: Minority Rights Group, 1997) at 8–13; Thomas Ehrlich, Cyprus 1958–1967: International Crises and the Role of Law (London: Oxford University Press, 1974) at 36–60; Michael Harbottle, The Impartial Soldier (London: Oxford University Press, 1970) at 7–18; James A. Stegenga, The United Nations Force in Cyprus (Ohio State University Press, 1968) at 15–30.

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dispute outside the UN having failed,109 the Security Council took up the issue at the request of the United Kingdom and Cyprus representatives. The Security Council, noting in the preamble that the situation with regard to Cyprus was likely to threaten international peace and security, ‘[r]ecommend[ed] the creation, with the consent of the Government of Cyprus, of a United Nations Peace-keeping Force in Cyprus’ (UNFICYP).110 UNFICYP was given a mandate to prevent a recurrence of fighting, to maintain and restore law and order, and to contribute to a return to ‘normal conditions’,111 leaving the tasks open for different interpretations.112 The establishment of UNFICYP was beyond doubt preventive, having been determined that the situation was likely to threaten international peace and security. Yet the deployment was only recommendatory and based on the consent of the Cyprus government. UNFICYP had a fixed period of operation which was subject to an extension.113 The recommendatory nature of UNFICYP has remained unchanged, even after the Security Council issued the mandatory demand for an immediate end to foreign military intervention and for a cease-fire following the events on 20 July 1974 where Turkey undertook military action.114

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Having been concerned with the possible intervention by Turkey and Greece, two NATO allies, in a strategically sensitive area, the United Kingdom did not want the UN to be involved in the Cyprus question, since any action would otherwise have been subjected to the threat of the Soviet veto: see generally, Alan James, Keeping the Peace in the Cyprus Crisis of 1963–64 (New York: Palgrave, 2002) at 59–86; James Ker-Lindsay, ‘The Origins of the UN Presence in Cyprus’ in Oliver P. Richmond & James Ker-Lindsay (eds), The Work of the UN in Cyprus: Promoting Peace and Development (New York: Palgrave, 2001); Stegenga, above n. 108 at 34–52. SC Res 186 (4 March 1964) at para. 4. Objectives and Interim Aims of a Comprehensive Programme of Action for the United Nations PeaceKeeping Force in Cyprus (UNFICYP), UN Doc S/5671/Annex I (29 April 1964). See, David W. Wainhouse, International Peacekeeping at the Crossroads: National Support-Experience and Prospects (Baltimore: The Johns Hopkins University Press, 1973) at 350. For all of the resolutions to extend the period of the operation until 15 June 1979, see, Rosalyn Higgins, United Nations Peacekeeping: Documents and Commentary IV Europe 1946–1979 (Oxford: Oxford University Press, 1981) at 96–129. A coup d’état staged by the Cyprus National Guard under the direction of Greek officers installed Nicos Sampson in place of Makarios on 15 July 1974, asserting political union with Greece. The Turkish government launched a military operation on the north coast of Cyprus on 20 July, invoking the Treaty of Guarantee which provided ‘the right to take action with the sole aim at re-establishing the state of affairs’ created by the treaty (Article 4). The Security Council called upon all parties to cease firing and demanded an immediate end to foreign military intervention: SC Res 353 (20 July 1974); SC Res 357 (14 August 1974). These were mandatory resolutions within the meaning of Article 25 of the Charter: Higgins, above n. 113 at 111. For details of the event and the aftermath, see, Dan Lindley, ‘Assessing the Role of the UN Peacekeeping Force in Cyprus’ in Oliver P. Richmond & James Ker-Lindsay (eds), The Work of the UN in Cyprus: Promoting Peace and Development (New York: Palgrave, 2001) 77 at 81–82; Kyle, above n. 108 at 16–32.

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The recommendatory nature of the resolution may well be seen as indicating that its constitutional basis was to be found within the general terms of Chapter VI of the Charter,115 or more specifically, in Article 36(1) of the Charter.116 This view seems consistent with the terms of the resolution requiring the consent of the Cyprus government. Yet the recommendation of deploying a peacekeeping force based on the Security Council’s call to refrain from any action or threat of action likely to worsen the situation under Article 40 could also be seen as an extension of provisional measure in view of the provisional nature of the mandate.117 Clarification may be required to distinguish between the establishment of a peacekeeping force and its deployment. Nothing in the Charter prevents provisional measures being recommended, the legally binding force of the resolution is the matter to be considered separately from the authority of the Security Council to adopt a provisional measure.118 Nor does it prohibit the Security Council from requiring consent of the government involved for implementation once it decides to adopt a provisional measure. .

iii. UN Emergency Force (UNEF II: 1973–79) Another armed conflict in the Middle East erupted on 6 October 1973 when Egyptian forces in the Suez Canal, in a coordinated move with Syrian troops on the Golan Heights, attacked Israeli positions.119 Having called in vain for an immediate cessation of all military activities,120 the Security Council decided to set up immediately under its authority UN Emergency Force (UNEF II) and requested the Secretary-General, Kurt Waldheim, to report on the steps taken to that effect.121 The Secretary-General accordingly submitted a report setting essential conditions

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See, Andreas J. Jacovides, ‘A View from Within: The Role of the Small States and the Cyprus Experience’ in J. E. S. Fawcett & Rosalyn Higgins (eds), International Organization: Law in Movement (London: Oxford University Press, 1974) 79 at 90. See, Stefan Talmon, ‘Impediments to Peacekeeping: The Case of Cyprus’ (2002) 8 Yearbook of International Peace Operations 33 at 37–38. See, Higgins, above n. 113 at 144. See, Ch. 4. For details of the event, see, Rikhye, above n. 43 at 49–56; Henry Wiseman, ‘United Nations Peacekeeping: An Historical Overview’ in Henry Wiseman (ed.), Peacekeeping: Appraisals and Proposals (New York: Pergamon Press, 1983) 19 at 47–49; Yoel Arnon Tsur, ‘The United Nations Peace-Keeping Operations in the Middle East from 1965 to 1976’ in A. Cassese (ed.), United Nations Peace-Keeping: Legal Essays (Alphen aan den Rijn: Sijthoff & Noordhoff, 1978) 183 at 187–189. SC Res 338 (22 October 1973); SC Res 339 (23 October 1973). SC Res 340 (25 October 1973). This is contrasted with UNEF I which was authorised by the General Assembly and therefore was only of a recommendatory nature: see, Ch. 1, Section 3-A.

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in order for the deployment to be effective,122 one of which was the full cooperation of the parties concerned.123 While no special agreement was drawn up before UNEF II was deployed, it was agreed that as a practical arrangement the parties would be guided by the provisions of the status of force agreement concluded for UNEF I.124 Attention should be drawn to the fact that the full cooperation of the parties concerned was required, not as the legal basis for the deployment, but for the effective operation of the force. UNEF II was arguably established on the Security Council’s initiative as a provisional measure under Article 40 of the Charter.125 This legal characterisation is inferred from the proposal that the Secretary-General made in relation to the scope of self-defence, which included ‘resistance to attempts by forceful means to prevent it from discharging its duties under the mandate of the Security Council’.126 The expanded notion of self-defence marked a sea change in the UN doctrine on the use of force, signaling a closer connection between the use of force by peacekeepers and the Security Council’s mandates.127 iv. UN Preventive Deployment in the Former Yugoslav Republic of Macedonia (UNPREDEP: 1992–99) The concept of preventive deployment materialised with the establishment of the UN Preventive Deployment (UNPREDEP) in the Former Yugoslav Republic of Macedonia (FYROM).128 The Secretary-General, at the request of the President of the newly born state,129 first sent an exploratory mission to assess the situation and to ascertain the objectives and timing that the Macedonian authorities had

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Report of the Secretary-General on the Implementation of Security Council Resolution 340 (1973), UN Doc S/11052/Rev 1 (27 October 1973). Id. at para. 3. See, UN Department of Public Information, Middle East – UNEFII Background at (last visited 9 September 2004). Tsur, above n. 119 at 199–200. Report of the Secretary-General on the Implementation of Security Council Resolution 340 (1973), above n. 122 at para. 2(d). Trevor Findlay, The Use of Force in UN Peace Operations (Oxford: Oxford University Press, 2002) at 100–102. The issue concerning the scope of self-defence will be dealt with at length in Ch. 6, Section 3. Faced with Greek opposition to the name of Macedonia, the newly established state was allowed to join the UN on 7 April 1993 under the temporary designation ‘the Former Yugoslav Republic of Macedonia’: see, SC Res 817 (7 April 1993). For details of this issue, see, Igor Janev, ‘Legal Aspects of the Use of a Provisional Name for Macedonia in the United Nations System’ (1999) 93 AJIL 155; Ljubica Acevska, ‘The Republic of Macedonia: An Atypical Balkan Country’ (1997) 29 Ford ILJ 1521; Dean M. Poulakidas, ‘Macedonia: Far More Than a Name to Greece’ (1995) 18 Hast ICLR 397. A request was first made, however, for the deployment of UN military observers to assess how a larger deployment of UN military and police personnel might help to strengthen security and

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in mind for the deployment of a UN force.130 The proposal submitted by the exploratory mission was endorsed by the Secretary-General and was reported to the Security Council, which in turn authorised the establishment of UNPREDEP in Resolution 795.131 In line with the proposal, both military and civilian administrative personnel were immediately deployed to monitor the border areas and to deter threats to FYROM from any source, thus helping to strengthen security and confidence in the country.132 As FYROM was not a UN member state at the time when the Security Council authorised the deployment of UNPREDEP, the authorisation would have had to be based on the request of the FYROM government. There might, therefore, have been legal obstacles to the deployment of UN forces in FYROM without such a request, even if there had been a situation where an armed conflict erupted from within or outside the territory.133 Nevertheless, with the assistance of the Secretary-General, the Security Council took the lead in authorising the mandates for UNPREDEP based on its own assessment and decisions. The purpose of the deployment was to prevent the spread of violence across the border or even within the border, rather than to settle an international dispute. This purpose clearly indicates that the deployment was in the nature of a provisional measure in the sense of Article 40 of the Charter, giving rise to certain legal effects, even for non-UN member states.134 The autonomous decision-making to direct the provisional measure for the purpose of preventing an armed conflict was in fact reflected in the mandates themselves and their slight shift away from what the Macedonian authorities would

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confidence in FYROM: Letter dated 23 November 1992 from the Secretary-General Addressed to the President of the Security Council, UN Doc S/24851 (25 November 1992). For the background leading up to the deployment of UNPREDEP, see, Henryk J. Sokalski, An Ounce of Prevention: Macedonia and the UN Experience in Preventive Diplomacy (Washington: United States Institute of Peace Press, 2003) at 31–151; Abiodun Williams, Preventing War: The United Nations and Macedonia (Lanham: Rowman & Littlefield Publishers, 2000) at 17–66; Michael S. Lund, ‘Preventive Diplomacy for Macedonia, 1992–1999: From Containment to Nation Building’ in Bruce W. Jentleson (ed.), Opportunities Missed, Opportunities Seized: Preventive Diplomacy in the Post-Cold War World (Lanham: Rowman & Littlefield Publishers, 2000) 173 at 175–176; Alice Ackermann, Making Peace Prevail: Preventing Violent Conflict in Macedonia (New York: Syracuse University Press, 1999) at 53–55; Stephen T. Ostrowski, ‘Preventive Deployment of Troops as Preventive Measures: Macedonia and Beyond’ (1998) 30 NYUJILP 793. SC Res 795 (11 December 1992). Report of the Secretary-General on the Former Yugoslav Republic of Macedonia, UN Doc S/24923 (9 December 1992). It is interesting to note that there was no discussion at all as to whether Serbian consent to the mission was either legally necessary or practically desirable prior to the deployment: see, Ostrowski, above n. 130 at 804 fn. 40. For the legal effects of peacekeeping measures adopted by the Security Council for non-UN member states, see, Ch. 4, Section 3-B-ii.

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have intended the UN to fulfil. While the original request was made out of a grave concern with an external security threat from four neighbouring countries,135 the mandates given to UNPREDEP impliedly included internal security elements by making reference to the strengthening of security and confidence in the country. The UN in fact insisted on the presence of UN civilian police (UNCIVPOL), despite the opposition initially voiced by the FYROM government. Although the deployment of UNCIVPOL was conditioned upon the consent of the FYROM government, it ‘was a signal that there was a link between the country’s interethnic relations and its stability and that this matter was of legitimate concern to the world body’.136 The mandates were later expanded even more, as a result of Security Council Resolution 908, which gave the Special Representative of the SecretaryGeneral a broad mandate under the name of good offices for the maintenance of internal stability within FYROM.137 Despite the relative autonomy at the inception, it was soon realised that UNPREDEP functioned also as an instrument for the oppression of Albanian rebel uprisings within the territory. It is in fact against this background that, despite the effective good offices exercised by the Special Representative, Yasushi Akashi, and his delegate, Hugo Anson, Slavo-Albanian ethnic issues were left unresolved, escalating ultimately into the Albanian rebel uprisings from February 2001 and the following Macedonian military counterattacks.138 The failure might well have been ascribed to the legal and political requirement of consent of the central government in the course of, as well as at the inception of, UNPREDEP operation. A more impartial approach without relying solely on the consent of the central government might have improved the extent to which UNPREDEP could perform

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There was also an unwritten objective behind the request, which was that a UN presence may enhance the legitimacy and international diplomatic recognition of FYROM’s sovereignty and independence: Williams, above n. 130 at 44. Id. at 49. SC Res 908 (31 March 1994) at para. 12. The shift of emphasis from external security to internal security resulted from the Secretary-General’s observation that the peacekeeping force ‘has no mandate in relation to the internal situation in the former Yugoslav Republic of Macedonia, which could prove to be more detrimental to the stability of the country than external aggression’: Report of the Secretary-General Pursuant to Resolution 871 (1993), at para. 37, UN Doc S/1994/300 (16 March 1994). The internal armed conflict caused by the Albanian rebel uprisings was finally led to resolution through mediation by the EU and US special envoys outside the UN framework. Considering these events, Ludlow comments that ‘the UN and other international actors were less successful in securing Macedonian peace than previously believed’: David J. Ludlow, ‘Preventive Peacemaking in Macedonia: An Assessment of U.N. Good Offices Diplomacy’ (2003) Brigham Young University Law Review 761 at 783–790.

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to create more favourable conditions upon which political issues within FYROM could have been addressed.139 Peacekeeping forces despatched on the initiative of the Security Council in this type of situation are arguably destined to face difficulties with respect to their relationship with the armed opposition groups as well as the governments in power. When an armed conflict not of an international nature is yet to break out but is looming, as was the case in FYROM, it is legally and politically difficult for the Security Council to intervene without a request from the government in power. An incumbent government in a vulnerable or unstable situation may well improve its internal position by relying on the presence of peacekeeping forces to oppress armed opposition activities within the state, as well as to deter external security threats against the state. Yet the request is often politically motivated, which bears considerably on the subsequent course of action that the Security Council may take. It is highly likely that too much emphasis on the consent of an incumbent government helps preserve the status quo and militates against armed opposition groups that try to change the status quo, which may result in the exacerbation of the internal armed conflict. Although those operational difficulties would not preclude the validity and utility of the preventive deployment of peacekeeping forces on the initiative of the Security Council under Article 40 of the Charter, caution must be exercised in considering the way in which peacekeeping forces operate, inasmuch as their presence bears a significant impact upon the power balance among the parties to a conflict. C. Post-Conflict Deployment of Peacekeeping Forces The four examples examined above represent the case where peacekeeping forces were deployed in the absence of, or before the conclusion of, some kind of peace or cease-fire agreement between the parties concerned. Although state consent was relied upon for the deployment of UNFYCIP and UNPREDEP, it is still arguable that the establishment of a peacekeeping mission itself was at least a decision in the nature of provisional measure in the sense of Article 40 of the Charter. The establishment of a peacekeeping force is instrumental in ensuring the compliance with the call for a cease-fire,140 by virtue of the purpose of such a mission to prevent aggravation of an armed conflict through provisional preservation of the situation. In contrast, a more recent trend of peacekeeping has shifted towards post-conflict (peace-building) deployment which attends to the situation where the parties to a conflict have already come to an agreement to end the conflict. The Security Council

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The issue of impartiality in internal conflicts will be addressed in Ch. 5, Section 3. See, Kooijmans, above n. 33 at 298; Goodrich, Hambro & Simons, above n. 4 at 309.

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authorised the first post-conflict type of deployment in the Israel-Syria border area, establishing the UN Disengagement Observer Force (UNDOF) upon the conclusion of an Agreement on Disengagement on 31 May 1974.141 The incidence of this type of deployment has sharply increased and dominated the UN’s peacekeeping activities since the end of the Cold War.142 Also notable is that the post-conflict type of deployment has tended to be undertaken under Chapter VII, often with the authority to use force to carry out specific and detailed mandates.143 It is debatable whether such post-conflict type of peacekeeping operation can also be construed as a provisional measure in the sense of Article 40 of the Charter. The fact that peacekeepers are deployed on the basis of a cease-fire as agreed upon by the parties to a conflict could well indicate that it would rather be seen as ‘procedures or methods of adjustment’ within the meaning of Article 36 of the Charter,144 as a result of the Security Council taking into consideration the procedures for a settlement of the dispute adopted by the parties.145 Yet this explanation may run counter to the invocation of Chapter VII in recent deployments of peacekeeping forces. It is far from clear whether the recourse to Chapter VII indicates the Security Council’s intention to characterise the peacekeeping operation as a provisional measure under Article 40, or instead, to clearly authorise the use of force beyond self-defence by peacekeeping forces.146 It is interesting to note in this context that the UN Secretary-General’s HighLevel Panel Report in 2004 argued that the characterisation of Chapter VI operations and Chapter VII operations based on whether the mission involves the use

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See, SC Res 350 (31 May 1974). See, Jane Boulden, ‘Double Standards, Distance and Disengagement: Collective Legitimization in the Post-Cold War Security Council’ (2006) 37 Security Dialogue 409 at 417–419. The examples include: UN Operation in Mozambique (ONUMOZ: 1992–94), SC Res 797 (16 December 1992); UN Mission in Sierra Leone (UNAMSIL: 1999–), SC Res 1270 (22 October 1999); UN Mission in Liberia (UNMIL: 2003–), SC Res 1509 (19 September 2003); UN Operation in Côte d’Ivoire (UNOCI: 2004–), SC Res 1528 (27 February 2004); UN Operation in Burundi (ONUB: 2004–), SC Res 1545 (21 May 2004); UN Mission in the Sudan (UNMIS: 2005–), SC Res 1590 (24 March 2005). See, Niels Blokker, ‘The Security Council and the Use of Force: On Recent Practice’ in Niels Blokker & Nico Schrijver (eds), The Security Council and the Use of Force: Theory and Reality – A Need for Change? (Leiden: Martinus Nijhoff Publishers, 2005) 1 at 17–21. See, above nn. 61, 86–87 and accompanying text. See, UN Charter, Article 36(2). For the latter view, see, Susan C. Breau, ‘The Impact of the Responsibility to Protect on Peacekeeping’ (2006) 11 JCSL 429 at 444–452; Ralph Zachlin, ‘The Use of Force in Peacekeeping Operations’ in Niels Blokker & Nico Schrijver (eds), The Security Council and the Use of Force: Theory and Reality – A Need for Change? (Leiden: Martinus Nijhoff Publishers, 2005) 91.

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of deadly force for purposes other than self-defence was misleading.147 The Report rightly pointed out that both kinds of peacekeeping operation need authorisation of the Security Council, and yet refrained from examining further the legal basis of peacekeeping operations by simply noting that ‘it is now the usual practice for a Chapter VII mandate to be given’.148 It is arguable therefore that the recourse to Chapter VII means an ambiguous and even unintentional link to Article 40 of the Charter, characterising the post-conflict deployment as an extension of provisional measures that remain in force until peace and security are fully restored in compliance with the cease-fire agreement. Even so, the post-conflict deployment cannot be regarded as the genuine reflection of the intention behind Article 40 to prevent aggravation of an armed conflict at the early stage. The presence of peacekeeping forces loses its significance, if the deployment relies solely on a cease-fire or peace agreement between the parties concerned.

5. Provisional Territorial Administration The potential inclusion of provisional territorial administration by the UN under Article 40 of the Charter had already been indicated in the travaux préparatoires of the UN Charter. The Norwegian delegate proposed an amendment to Article 40 providing for the temporary administration of territory by the Security Council, though the proposal was withdrawn for the fear that, by inserting the amendment, ‘the presumption might be created that the Council lacked certain other specific powers not mentioned’.149 It therefore remains unclear to what extent, and under what circumstances, it was envisaged that provisional territorial administration as proposed by Norway would have taken over the governmental authority and functions of a sovereign state. There can be envisaged a number of different types of provisional territorial administration under UN authority. The Security Council may place under its authority only the ordinary police power by commanding UN forces,150 exert greater authority such as to help administer a state without final decision-making authority, or even undertake some of, or all of, the governmental authority and

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Report of the Secretary-General’s High-Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility (New York: United Nations, 2004) at 68 paras. 211–212. Id. at 68 para. 213. UNCIO vol. 12 at 354–355. See, Arthur Lee Burns & Nina Heathcote, Peace-Keeping by U.N. Forces (London: Pall Mall Press, 1963) at 166–167.

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functions of the state.151 Ideas have been proposed and examined about the application of a trusteeship-like system in cases of provisional administration under Security Council authority.152 The UN trusteeship-like system is unlikely to be restored without amending the UN Charter,153 as it might otherwise amount to the revival of colonialism in violation of the purposes and principles of the UN Charter, particularly of the principle of self-determination and sovereign equality.154 Nevertheless, some form of provisional territorial administration could be undertaken within the current Charter framework. With the growing awareness over the last decade of the problem of ‘failed states’ wherein a sovereign state is divided up into armed opposition groups, the Security Council has at times embarked on provisional territorial administration whereby a different degrees of governmental functions were delegated.155 In Cambodia, as a result of a comprehensive political settlement among the parties to the protracted conflict,156 the UN Transitional Authority in Cambodia (UNTAC) was established on 28 February 1992,157 for the purpose of undertaking some of the administrative functions necessary ‘to ensure a neutral political environment conducive to free

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See, Gerald B. Helman & Steven R. Ratner, ‘Saving Failed States’ (1992) 89 Foreign Policy 3. See, e.g., S. Mohamed, ‘From Keeping Peace to Building Peace: A Proposal for Revitalized United Nations Trusteeship Council’ (2005) 105 Col LR 809; Henry H. Perritt, Jr, ‘Structures and Standards for Political Trusteeship’ (2003) 8 UCLA Journal of International Law and Foreign Affairs 385; Andreas Zimmermann & Carsten Stahn, ‘Yugoslav Territory, United Nations Trusteeship or Sovereign State? Reflections on the Current and Future Legal Status of Kosovo’ (2002) 70 Nordic Journal of International Law 423 at 436–441; Carsten Stahn, ‘International Territorial Administration in the Former Yugoslavia: Origins, Developments and Challenges Ahead’ (2001) 61 ZaöRV 107 at 128–133; Peter Lyon, ‘The Rise and Fall and Possible Revival of International Trusteeship’ (1993) 31(1) Journal of Commonwealth & Comparative Politics 96. Article 78 of the Charter reads that, ‘[t]he trusteeship system shall not apply to territories which have become Members of the United Nations, relationship among which shall be based on respect for the principle of sovereign equality’. See, e.g., Ruth E. Gordon, ‘Saving Failed States: Sometimes A Neocolonialist Notion’ (1997) 12 American University Journal of International Law and Policy 903; Ruth E. Gordon, ‘Some Legal Problems with Trusteeship’ (1995) 28 Corn ILJ 303 at 326. See generally, Ralph Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (Oxford: Oxford University Press, 2008); Simon Chesterman, You, the People: The United Nations, Transitional Administration, and State-Building (Oxford: Oxford University Press, 2004). Agreement on a Comprehensive Political Settlement of the Cambodia Conflict, Agreement Concerning the Sovereignty, Independence, Territorial Integrity and Inviolability, Neutrality and National Unity of Cambodia, and Declaration on the Rehabilitation and Reconstruction of Cambodia, all contained in the Final Act of the Paris Conference on Cambodia, UN Doc S/23177/Annex (30 October 1991) (Paris Agreements). SC Res 745 (28 February 1992).

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and fair elections’.158 As part of overall pacification within the Former Yugoslavia’s territory, the UN Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium (UNTAES) was established on 15 January 1996,159 with both military and civil administrative functions under Chapter VII of the Charter.160 More comprehensive delegation of the governmental authority and functions followed when the Security Council established the UN Interim Administration Mission in Kosovo (UNMIK) on 3 June 1999,161 and also the UN Transitional Administration in East Timor (UNTAET) on 25 October 1999.162 The Security Council practice of undertaking provisional territorial administration has shown two salient features: first, the provisional administration has been undertaken in a post-conflict dimension as part of peace-building efforts, often in conjunction with election monitoring under UN auspices;163 and second, it has been left unclear and debatable on what legal basis the provisional administration has

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Statement of the Five Permanent Members of the Security Council of the United Nations on Cambodia, at 9, UN Doc S/21689/Annex (31 August 1990). For details of the operation, see, Michael W. Doyle, UN Peacekeeping in Cambodia: UNTAC’s Civil Mandate (Boulder: Lynne Rienner Publishers, 1995); Trevor Findlay, Cambodia: The Legacy and Lessons of UNTAC (Oxford: Oxford University Press, 1995); Carlyle A. Thayer, ‘The UN Transitional Authority in Cambodia’ in Ramesh Thakur & Carlyle A. Thayer (eds), A Crisis of Expectations: UN Peacekeeping in the 1990s (Boulder: Westview Press, 1995) 121; Steven Ratner, ‘The United Nations in Cambodia and the New Peacekeeping’ in Daniel Warner (ed.), New Dimensions of Peacekeeping (Dordrecht: Martinus Nijhoff Publishers, 1995) 41; Janet E. Heininger, Peacekeeping in Transition: The United Nations in Cambodia (New York: The Twentieth Century Fund Press, 1994); Steven R. Ratner, ‘The Cambodian Settlement Agreements’ (1993) 87 AJIL 1. SC Res 1037 (15 January 1996). The establishment of UNTAES was requested in the Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium, UN Doc A/50/757– S/1995/951 (15 November 1995). For details, see, Report of the Secretary-General Pursuant to Security Council Resolution 1025 (1995), at para. 14, UN Doc S/1995/1028 (13 December 1995). SC Res 1244 (10 June 1999). The deployment was based on the Agreement on the Principles (Peace Plan) to Move towards a Resolution of the Kosovo Crisis Presented to the Leadership of the FRY by the President of Finland, Mr Ahtisaari, Representing the European Union, and Mr Chernomyrdin, Special Representative of the President of the Russian Federation, 3 June 1999, UN Doc S/1999/649/Annex (7 June 1999). See generally, Jacob S. Kreilkamp, ‘U.N. Postconflict Reconstruction’ (2003) 35 NYUJILP 619 at 646–652; William G. O’Neill, Kosovo: An Unfinished Peace (Boulder: Lynne Rienner Publishers, 2002); Alexandros Yannis, ‘Kosovo under International Administration’ (2001) 43(2) Survival 31. SC Res 1272 (25 October 1999). See generally, Kreilkamp, above n. 161 at 652–657; Simon Chesterman, ‘East Timor in Transition: Self-Determination, State-Building and the United Nations’ (2002) 9(1) International Peacekeeping 45 at 64–65; Joel C. Beauvais, ‘Benevolent Despotism: A Critique of U.N. State-Building in East Timor’ (2001) 33 NYUJILP 1101 at 1114–1160; Jarat Chopra, ‘The UN’s Kingdom of East Timor’ (2000) 42(3) Survival 27 at 30–36. The issue of election monitoring will be discussed at length in Ch. 5, Section 3-D-iii.

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been undertaken. Provisional territorial administration has to date conspicuously relied upon state consent and Chapter VII, and yet the formalistic construction of the legal basis raises a number of concerns particularly relating to the lack of conformity with the principle of self-determination in war-torn territories where no legitimate or effective government is formed.164 An alternative legal basis could well be found, however, in Article 40 of the Charter, given that the primary purpose of this endeavour lies with the prevention of reoccurrence of an armed conflict and the facilitation of a peaceful transition, rather than the enforcement or imposition of the peace. Recent examples of the provisional administration authorised by the Security Council show how far it has stretched its reach, going well beyond the mere peacekeeping function and covering various civil administrative functions.165 Given that such a wide range of governmental functions have in practice been delegated to the UN, it is inconceivable that Article 40 can alone provide a sufficient legal basis for all of the aspects of the provisional territorial administration. It is suggested, for instance, that election-monitoring aspects, designated to help the parties towards the agreed solution, are obviously derived from Articles 36(1) and 37(2) under Chapter VI of the Charter,166 whereas peacekeeping aspects of provisional administration, including the deployment of UN forces attached thereto, can be construed as being based on Article 40 of the Charter.167 While it is a plausible argument that at least the peacekeeping aspects of provisional administration can be based on Article 40, it would make no difference from traditional peacekeeping operations that have long been undertaken by the Security Council. In cases where it remains uncertain that the UN action can solely be based on Article 40, the legal basis can also rely on the general (or residual) power of the Security Council under Article 24 of the Charter.168 It was indeed suggested, when

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See, Kristen Daglish & Hitoshi Nasu, ‘Towards a True Incarnation of the Rule of Law in War-Torn Territories: Centring Peacebuilding in the Will of the People’ (2007) 54 NILR 81 at 87–97. See, Annika S. Hansen, From Congo to Kosovo: Civilian Police in Peace Operations (Oxford: Oxford University Press, 2002); Jarat Chopra (ed.), The Politics of Peace-Maintenance (Boulder: Lynne Rienner Publishers, 1998). For the text of Article 36(1), see, above n. 61. Article 37(2) reads that, ‘[i]f the Security Council deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security, it shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate’. Hilaire McCoubrey & Nigel D. White, International Organizations and Civil Wars (Aldershot: Dartmouth, 1995) at 206. Article 24(1) of the Charter reads that, ‘[i]n order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf ’. For the general power theory, see, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)

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the Security Council approved the creation and government of the Free Territory of Trieste on 10 January 1947,169 that the general power conferred upon it by Article 24 was wide enough to enable it to assume the responsibilities to ensure the integrity and independence of the Trieste Territory through direct control.170 Doubt remains nonetheless whether the general power of the Security Council to discharge its primary responsibility under Article 24 for the maintenance of international peace and security can accommodate such a wide range of civil administrative functions,171 which could be better characterised as building a state rather than building peace.172 The Australian representative to the Security Council in fact cast doubt on the validity of the claim in the discussion dealing with the issue of Trieste.173 With the specific purpose of maintaining international peace and security as enshrined in Article 24, the Security Council’s competence in undertaking provisional territorial administration would, at any rate, have to be confined to the extent necessary to that end. The Security Council is thus entitled to authorise provisional territorial administration only to the extent it deems necessary for the maintenance of international peace and security under Articles 24 and 40 of the Charter. Civil aspects of

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Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Reports 16 (hereinafter Namibia case) at 52 para. 110; Jost Delbrück, ‘Article 24’ in Bruno Simma (ed.), The Charter of the United Nations: A Commentary (2nd ed., Oxford: Oxford University Press, 2002) 442 at 448. SC Res 16 (10 January 1947). For details of the event, see, Méir Ydit, International Territories: From the “Free City of Cracow” to the “Free City of Berlin” (Leyden: A. W. Sythoff, 1961) at 231–272; Hans Kelsen, ‘The Free Territory of Trieste under the United Nations’ (1950) 4 Year Book of World Affairs 174. See, remarks made by the Assistant Secretary-General, UN SCOR, 2nd year, 91st mtg, at 44–45, UN Doc S/PV.91 (10 January 1947); see also, Oscar Schachter, ‘The Development of International Law Through the Legal Opinions of the United Nations Secretariat’ (1948) 25 BYBIL 91 at 96–101. For a similar concern in different contexts, see, Tarcisio Gazzini, The Changing Rules on the Use of Force in International Law (Manchester: Manchester University Press, 2005) at 12; G. ArangioRuiz, ‘On the Security Council’s “Law-Making”’ (2003) 3 Rivista di diritto internazionale 609. Brahimi indeed raised a question of ‘whether the United Nations should be in this business [provisional administration mission] at all, and if so whether it should be considered an element of peace operations or should be managed by some other structure’: Report of the Panel on United Nations Peace Operations, at 13 para. 78, UN Doc A/55/305-S/2000/809 (21 August 2000). See also, Namibia case, above n. 168 at 294 paras. 115–116 ( Judge Fitzmaurice dissenting opinion). The Australian representative voiced opposition on two legal grounds: the first is whether Article 24 confers on the Security Council wider powers than those specified in each provision of the UN Charter; and the second is whether the Security Council can assume the supreme administrative and legislative authority within the territory, even if Article 24 confers general powers: see, UN SCOR, 2nd year, 89th mtg, at 5–7, UN Doc S/PV.89 (7 January 1947); 91st mtg, at 56–57, UN Doc S/PV.91 (10 January 1947).

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provisional territorial administration, which can be better characterised as statebuilding rather than peace-building,174 have to be based on the consultation of, and close cooperation with, the local people, which would render peace-building operations more responsive to the local expectations and accountable to the local population.175 Given that the provisional delegation of administrative authority and functions to the UN is, to a limited extent, based on Articles 24 and 40, and hence not conditioned upon the adoption of an enforcement measure, the Security Council may well be able to authorise it in an earlier stage of the conflict. It is conceivable, however, that central government authorities might still remain strong enough to politically and militarily refuse the provisional delegation of governmental functions to the UN. It is dubious, from a legal point of view, whether the Security Council can demand the central government of a sovereign state to delegate its governmental authority and functions to the UN on any basis. The collapse of governmental authorities in the whole or part of a state seems to constitute a prerequisite for the Security Council to adopt this type of provisional measure.

6. Preventive Arms Embargo Arms embargo has traditionally been treated as a method of sanction and as such stipulated in Article 41 of the Charter.176 However, some examples of arms embargo have shown that it can be imposed on all the parties concerned for the purpose of preventing the aggravation of an armed conflict, as distinct from those imposed against one party for the purpose of enforcement.177 Arms embargo is an expeditious and effective way to de-escalate the intensity of armed conflict and thus to provisionally preserve the stable environment conducive to a peaceful settlement of the conflict at the earliest stage possible. The idea is not new, as the League of Nations contemplated and endorsed an arms embargo adopted by 27 states to prevent the aggravation of the armed conflict between Bolivia and Paraguay over 174

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The tensions between the ends of liberal democracy and the means of benevolent autocracy in statebuilding operations are well illustrated in: Chesterman, above n. 155 especially at 236–257. The significance of responsiveness and accountability is pointed out by Hilary Charlesworth & Christine Chinkin, ‘Regulatory Frameworks in International Law’ in Christine Parker et al. (eds), Regulating Law (Oxford: Oxford University Press, 2004) 246; Richard Caplan, A New Trusteeship? The International Administration of War-Torn Territories, Adelphi Paper 341 (Oxford: Oxford University Press, 2002) at 57–60. See generally, Jeremy Farrall, United Nations Sanctions and the Rule of Law (Cambridge: Cambridge University Press, 2007). See, Christine Gray, International Law and the Use of Force (2nd ed., Oxford: Oxford University Press, 2004) at 207; Sydney D Bailey, How Wars End: The United Nations and the Termination of Armed Conflict 1946–1964 (Oxford: Clarendon Press, 1973) vol. 1 at 195–201.

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El Gran Chaco.178 The provisional nature of this type of arms embargo is evident, inasmuch as it can be lifted as soon as either of the parties involved complies with the demand for a cease-fire or cessation of hostilities, even if the conflict itself is yet to be resolved. The Security Council has directed such a preventive, impartial arms embargo from time to time. It imposed such an arms embargo in the 1960s to prevent or suspend the sale and supply of arms and military equipment and materials in dealing with the situation in African territories under Portuguese administration,179 the apartheid policy of South Africa,180 and the situation in the Congo.181 More recently, having noted that ‘the continuation of this situation constitutes a threat to international peace and security’ (emphasis added), the Security Council decided under Chapter VII to impose ‘a general and complete embargo on all deliveries of weapons and military equipment to Yugoslavia’.182 Although reference was made to Chapter VII of the Charter, it was inconceivable that the arms embargo was adopted as an enforcement measure under Article 41.183 Likewise in Somalia, the Security Council imposed an arms embargo in the same phrase, having considered that the continuance of the situation constituted a threat to international peace and security.184 The possibility that preventive, impartial arms embargoes can be imposed, even without the Security Council’s determination of a threat to the peace within the meaning of Article 39 of the Charter, was clearly established when the Security Council re-imposed an arms embargo on the Federal Republic of Yugoslavia including Kosovo on 31 March 1998.185 Despite the reference to Chapter VII authority in the resolution, the legal status of the resolution was open to question, for it was

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See, above Ch. 2, Section 3-C. See, e.g., SC Res 180 (31 July 1963); SC Res 218 (23 November 1965). SC Res 181 (7 August 1963); SC Res 191 (18 June 1964). SC Res 169 (24 November 1961). SC Res 713 (25 September 1991). The nature of the action was shifted when the Security Council decided to impose a comprehensive economic sanction on the Federal Republic of Yugoslavia by adopting SC Res 757 (30 May 1992). All the measures were terminated on 1 October 1996 when the Security Council adopted SC Res 1074 (1 October 1996). See, Christine Gray, ‘Bosnia and Herzegovina: Civil War or Inter-State Conflict? Characterization and Consequences’ (1996) 67 BYBIL 155 at 180. SC Res 733 (23 January 1992). The arms embargo remains effective as of 7 July 2008. To update the information, see, United Nations at (last visited 7 July 2008); The Special Program on the Implementation of Targeted Sanctions at (last visited 7 July 2008). See, SC Res 1160 (31 March 1998). The arms embargo was terminated by SC Res 1367 (10 September 2001).

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adopted without a prior determination that there existed a threat to the peace.186 In the Security Council discussion leading up to the adoption of the resolution, some delegations expressed their view that the situation in Kosovo posed a threat to international peace and security.187 Nevertheless, this view was not spelled out in the resolution, presumably because of the commitment to the pacific settlement of the dispute out of respect for sovereignty and territorial integrity. Illustrative in this context was the French delegation’s statement which stressed that the arms embargo ‘should first and foremost be seen as a means to achieve a negotiated settlement of the current crisis’.188 The Russian representative also made clear that ‘the issue is not about punishing anyone, Belgrade in particular, but about specific measures designed to prevent an increase in tensions’.189 The emphasis on the peaceful settlement of the dispute and the preventive purpose of the action appears to prove the peacekeeping nature of the arms embargo, defying the suspicion of mere procedural irregularity. The preventive arms embargo is thus imposed against all the parties involved. It is not an enforcement measure against any particular state or entity under Article 41 of the Charter, nor is it a measure aimed directly at a peaceful settlement of conflict. The preventive and impartial nature alternatively suggests that such an arms embargo be another type of provisional measure or an ancillary measure to ensure the effective implementation of a provisional measure falling within the ambit of Article 40 of the Charter. In fact, the impartial arms embargo adopted in the 1960s is reported as a provisional measure under Article 40 of the Charter.190 So long as the purpose of the measure remains the prevention of an aggravation of the conflict in an impartial manner, there is no reason why Article 40 should not constitute the legal basis of the arms embargo imposed on the Former Yugoslavia, Somalia and Kosovo in spite of the mandatory nature and the reference to Chapter VII.191

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This is contrasted with the subsequent resolution, in particular SC Res 1199 (23 September 1998) wherein the situation was explicitly recognised as constituting a threat to peace and security in the region. See, UN SCOR, 53rd year, 3868th sess, at 3 (Japan), 12 (United Kingdom), UN Doc S/PV.3868 (31 March 1998). Id. at 4–5; see also, id. at 7 (Brazil), 27 (Greece). Id. at 11; see also, id. at 28–29 (Egypt). Repertory of Practice of United Nations Organs: Supplement No. 3 (1959–66) vol. II at 221. Cf. Kooijmans, above n. 33 at 296.

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7. Peacekeeping and Article 39 of the UN Charter It has been shown that Article 40 of the Charter, while not having been explicitly invoked in the Security Council resolutions, has significant potential to explain the legal basis for some of what has been generally called peacekeeping operations. Article 40 can accommodate not only calls for a cease-fire, but also the establishment of peace observation missions, peacekeeping forces, and even provisional territorial administration (to the extent necessary for the maintenance of international peace and security), as well as preventive arms embargoes, which are all instrumental in ensuring effective maintenance of international peace and security at an early stage of conflicts. Those peacekeeping measures fit well the description of provisional measures under Article 40 by the International Criminal Tribunal for the Former Yugoslavia (ICTY) as a ‘holding operation’ akin to emergency police action.192 Some have argued that provisional measures under Article 40 of the Charter must be based on an explicit or implicit determination of a threat to the peace within the meaning of Article 39 of the Charter.193 It may well be argued that the procedural requirement of a prior determination under Article 39 would help limit, as well as strengthen, the Security Council’s powers to adopt provisional measures.194 However, this understanding has not been given unanimous support,195 nor was there clear evidence in the drafting of those provisions or in the UN practice to indicate that provisional measures under Article 40 cannot be undertaken until a threat to the peace has been pronounced.196 It is clear from the examination above that on the contrary, the Security Council has in fact from time to time directed peacekeeping measures under Article 40 of the Charter without pronouncement of a threat to the peace.197 It is in line with the intention of the drafters to suggest

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Prosecutor v. Tadić (Jurisdiction) (Appeals Chamber) (1997) 105 ILR 453 at 468–469 para. 33. See, e.g., Bowett, above n. 103 at 280–281; Hans Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (London: Stevens & Sons, 1951) at 739 (deriving this proposition simply from the fact that Article 40 is placed between Article 39 and other Chapter VII provisions, whose validity as a legal argument is at most dubious). See, Jochen Frowein & Nico Krisch, ‘Article 40’ in Bruno Simma (ed.), The Charter of the United Nations: A Commentary (2nd ed., Oxford: Oxford University Press, 2002) 729 at 731–732. See, e.g., Renata Sonnenfeld, Resolutions of the United Nations Security Council (Dordrecht: Martinus Nijhoff Publishers, 1988) at 92; Rosalyn Higgins, The Development of International Law Through the Political Organs of the United Nations (London: Oxford University Press, 1963) at 235–236; Goodrich, Hambro & Simons, above n. 4 at 303–305; Jiménez de Aréchaga, above n. 5 at 155. See, Ch. 2, Section 4; R. Narayana Rao, ‘Is Article 39 Action Necessary for Taking Provisional Measures Contemplated under Article 40 of the UN Charter?’ (1997) 37 Ind JIL 62. Bowett suggests that the deployment of UN forces under Article 40 can be based on an implicit finding of a threat under Article 39: Bowett, above n. 103 at 280–281. Arguable as it may be,

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that flexibility should be left for the options available to the Security Council,198 given the gravity of the determinations under Article 39 of the Charter. The possibility has remained that the members of the Security Council reach agreement on undertaking a provisional measure, whilst failing to raise the political climate up to the level where determinations under Article 39 are warranted. When peacekeeping measures in the nature of provisional measure within the meaning of Article 40 of the Charter are adopted at an early stage of the conflict, they necessarily face legal, political, and practical difficulties from the time of their adoption through to the implementation phase. Too much reliance on the consent of concerned governments will significantly reduce the chance of undertaking preventive measures, the latitude in carrying out the measures, and the impartiality as well as the effectiveness of the measures. In order to ensure that peacekeeping measures under Article 40 of the Charter have fully-fledged effects, it is important for the Security Council to take the initiative by imposing a legal obligation upon the parties to a conflict to comply with the measures, by ensuring the impartiality in the course of their implementation, and by securing effective implementation. As will be shown in the following three chapters, the requirements contained in Article 40 of the Charter are designed to ensure that the Security Council can take such an initiative, while at the same time play an important role in regulating the way in which peacekeeping measures are to be undertaken.

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such an implicit finding cannot always be inferred, and more importantly such an important decision should not be made in implicit terms. See, Ch. 2, Section 4.

Chapter 4 Legal Force and Effects of Peacekeeping Measures [T]he Security Council may . . . call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. First sentence of Article 40 of the UN Charter

1. Ambiguity of ‘Calls’ for Provisional Measures The UN Charter recognises that the Security Council can adopt two types of resolutions: recommendations of a hortatory nature;1 and decisions of a mandatory nature.2 The resolutions of different legal forces give rise to different legal effects, entailing different legal consequences upon the pre-existing legal order. The legal force of peacekeeping measures is not pre-determined, in as much as the measures are adopted as part of provisional measures within the meaning of Article 40 of the Charter,3 which only authorises the Security Council to ‘call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable’ (emphasis added).4 The ambiguity in the legal force of peacekeeping measures will bear on the legal effects and the legal consequences of those measures, in particular, upon the parties involved in a conflict, as well as UN member states

1

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The Security Council is authorised under the UN Charter to recommend ‘appropriate procedures or methods of adjustment’ (Article 36) and ‘such terms of settlement as it may consider appropriate’ (Article 37). The Security Council can also make recommendations with a view to the pacific settlement of a dispute if all of the parties to the dispute so request (Article 38). It is arguable that it can also recommend enforcement measures as it deems necessary to maintain or restore international peace and security (Article 39). The power of the Security Council to make legally binding decisions upon the member states is prescribed in Article 25 in general terms and in Articles 39, 41 and 42 in specific terms. The definition of peacekeeping and its relationship with provisional measures under Article 40 of the Charter is explained in Ch. 1, Section 4, and Ch. 3. The use of the term ‘call upon’ in Article 40, as Goodrich and Simons point out, ‘leaves undefined the exact force of any action that the Council may take’ for a provisional purpose: Leland M. Goodrich & Anne Patricia Simons, The United Nations and the Maintenance of International Peace and Security (Washington: The Brookings Institutions, 1955) at 372.

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in general. The implications are not merely theoretical, but affect the extent to which peacekeeping measures are effectively implemented. Notwithstanding the indeterminate legal force of peacekeeping measures under Article 40 of the Charter, their legal effects must strictly be derived, by implication or interpretation, from the constitutional provisions on which those measures are based.5 An interesting comparison may be drawn in this respect to provisional measures under Article 41 of the ICJ Statute,6 whose wording of ‘the power to indicate’ has given rise to controversy over its binding nature.7 The controversy appears to have now been set at rest by the ICJ Judgment in the LaGrand case, where the Court upheld the binding nature of provisional measures by virtue of the object and purpose of the Statute as well as the context in which Article 41 is to be seen within the Statute.8 The legal effects of peacekeeping measures under the UN Charter depend on whether it is adopted as a decision of a mandatory nature within the meaning of Article 25 of the Charter. Oppenheim and Lauterpacht in fact presupposed that ‘[i]t is probable that affirmative action taken by the Security Council under that Article [Article 40] constitutes a decision which, by virtue of Article 25 of the Charter, is legally binding upon the Members of the United Nations’.9 Kelsen divides the legal force of the call for provisional measures under Article 40 into recommenda5

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C. F. Amerasinghe, Principles of Institutional Law of International Organizations (2nd ed., Cambridge: Cambridge University Press, 2005) at 161–162; Cruz Varas v. Sweden (1991) 14 EHRR 1 at 41 para. 98 (‘In the absence of a provision in the Convention for interim measures an indication . . . cannot be considered to give rise to a binding obligation to Contracting Parties’). 1945 Statute of the International Court of Justice, annexed to the UN Charter (hereinafter ICJ Statute), Article 41(1) provides that: ‘The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party’. See generally, Lawrence Collins, ‘Provisional and Protective Measures in International Litigation’ (1992-III) 234 RdC 9 at 216–220; Jerzy Sztucki, Interim Measures in the Hague Court: An Attempt at a Scrutiny (Deventer: Kluwer Law and Taxation Publishers, 1983) at 260–294; Peter J Goldworthy, ‘Interim Measures of Protection in the International Court of Justice’ (1974) 68 AJIL 258. LaGrand Case (Germany v. United States) ( Judgment) [2001] ICJ Reports 466 at 502 para. 102; see also, Shabtai Rosenne, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (Oxford: Oxford University Press, 2005) at 34–40; Alexander Orakhelashvili, ‘Questions of International Judicial Jurisdiction in the LaGrand Case’ (2002) 15 LJIL 105 at 116–124. L. Oppenheim (H. Lauterpacht ed.), International Law: A Treatise (7th ed., London: Longmans, 1955) vol. II at 166. Goodrich, Hambro and Simons also observe that, in the preponderant opinion, the Security Council ‘has the authority to obligate members to comply with provisional measures’: Leland M. Goodrich, Edvard Hambro & Anne Patricia Simons, Charter of the United Nations: Commentary and Documents (3rd and revised ed., New York: Columbia University Press, 1969) at 209. See also, Peter Kooijmans, ‘Provisional Measures of the Security Council’ in Erik Denters & Nico Schrijver (eds), Reflections on International Law from the Low Countries: In Honour of Paul de Waart (The Hague: Martinus Nijhoff Publishers, 1998) 289 at 298–300.

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tory nature and obligatory nature as a decision within the meaning of Article 25 of the Charter, depending on the intention of the Security Council and on the consequences which it attaches to a failure to comply with the call.10 Article 25, addressing the legal force and the legal effects of the Security Council’s decisions in general terms, reads that, ‘[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter’ (emphasis added). The legal force of peacekeeping measures, as well as the legal effects and consequences resulting therefrom, will thus be subject to the interpretation as to the scope of ‘decisions’ in the sense of Article 25. Based on this understanding, it is first to be asked how the scope of Article 25 can be ascertained, by interpretation, to determine the legal force of peacekeeping measures. It will be suggested that the legal force of peacekeeping measures would have to be ascertained by interpretation of each resolution, rather than that of the Charter’s provisions in general terms. It will be followed by an examination as to whether all of the decisions will give rise to legally binding effects upon all of the states and parties to a conflict, to show that certain conditions may be applied which will affect their binding force. The legal effects of a legally binding peacekeeping measure, as opposed to a hortatory peacekeeping measure, will then be examined.

2. The Determination of Legal Force A. Interpretation of UN Charter Provisions Clear as it may seem on its face, the scope of legally binding decisions within the meaning of Article 25 has been a subject of controversy.11 The choice of term ‘decide’ or ‘decision’ as used in Security Council resolutions does not appear, contrary to an intuitive impression, to be decisive in terms of the legal force and effect. There are, generally speaking, two schools of thought about the scope of legally binding decisions that the Security Council can adopt: one school considers that every duly adopted resolution which contains a request is binding, unless a specific provision limits the power to recommendations only; the other considers that legally binding decisions can only be adopted under a specific provision explicitly authorising the

10

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Hans Kelsen, The Law of the United Nations: A Critical Analysis of its Fundamental Problems (London: Stevens & Sons, 1951) at 740–742. See, e.g., Renata Sonnenfeld, ‘The Obligation of UN Member-States to Accept and Carry out the Decisions of the Security Council’ (1976) 8 Polish YIL 129; Rosalyn Higgins, ‘The Advisory Opinion on Namibia: Which UN Resolutions Are Binding under Article 25 of the Charter?’ (1972) 21 ICLQ 270.

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Security Council to adopt binding decisions.12 While the former school adopts a flexible approach to the scope of legally binding decisions, the latter takes a more restrictive view. It is the established rule of international law, as codified in the Vienna Convention on the Law of Treaties,13 that ‘[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.14 It seems that the textual analysis of the Charter provisions in the light of the ordinary meaning of ‘decisions’ supports, albeit not conclusively, a flexible view on their scope. Article 41 of the Charter itself presupposes the existence of ‘decisions’ prior to the adoption of the enforcement measures,15 though the term ‘decisions’ in the Charter lacks consistency and coherency, being used in some cases as equivalent to resolutions or determinations in a formal sense.16 It is also important to consider the context in which the meaning of legally binding decisions is given within the Charter. Given that Article 25 is placed in the section addressing the general powers and functions of the Security Council, it ostensibly indicates the applicability of Article 25 for any of the Security Council’s operations, and not just those taken pursuant to Articles 39, 41 and 42. It may well be argued that the constitutional stature of the UN Charter may render a textual interpretation in the strict sense unhelpful or unsuitable for a progressive interpretation of the Charter’s provisions.17 In one way, the scepticism

12

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17

The two schools of though are examined in Renata Sonnenfeld, Resolutions of the United Nations Security Council (Dordrecht: Martinus Nijhoff Publishers, 1988) at 124–126. 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331. Id., Article 31(1). Article 41 of the Charter reads, in part, that, ‘[t]he Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures’ (emphasis added). Although it may well be inadequate when applied to the authentic languages, the distinction in German between ‘Beschluss’ (formal act of taking a decision) and ‘Entscheidung’ (substantive decision) sheds light on the root of terminological confusion as to ‘decision’: see, Jost Delbrück, ‘Article 25’ in Bruno Simma (ed.), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2002) 452 at 456. In view of this distinction, the substantive decisions within the meaning of Article 25 of the Charter are referred to as ‘legally binding decisions’, whereas the decisions in a general sense are termed simply as ‘decisions’. See, e.g., Bardo Fassbender, ‘The United Nations Charter as Constitution of the International Community’ (1998) 36 Col JTL 529 at 595–598; Hugh Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989’ (1996) 67 BYBIL 1 at 20–28; Tetsuo Sato, ‘An Emerging Doctrine of the Interpretative Framework of Constituent Instruments as the Constitutions of International Organizations’ (1993) 21 Hitotsubashi Journal of Law and Politics 1; Shabtai Rosenne, Developments in the Law of Treaties 1945–1986 (Cambridge: Cambridge University Press, 1989) at 224–245; R. St J. Macdonald, ‘The United Nations Charter: Constitution or Contract?’ in R. St J. Macdonald & Douglas M. Johnston (eds), The Structure and Process of International Law: Essays

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turns into an advocacy of the teleological approach to the interpretation of the Charter, or of the subsequent practice as reflecting the developing political realities which were not envisaged at the time of adoption of the Charter. Yet those different approaches based on the peculiar nature of the Charter will have to be subject to certain constraints so as not to extend the powers of UN political organs as far as to become ultra vires.18 Irrespective of which approach is taken to the interpretation of the scope of Article 25, it is unlikely that the legitimate scope of legally binding decisions is going to be ascertained as having general applicability. It would rather have to be sought in the actual application of Article 25 in each resolution, by asking what constitutes, or is interpreted as, a legally binding decision in each case. The legal force of each peacekeeping measure will, in other words, depend on the interpretation of each resolution. B. Interpretation of UN Security Council Resolutions International law has long recognised three main schools of approach to treaty interpretation that are not exclusive of each other, but rather confer primacy on one particular aspect of interpretation: the textual approach, the intentions approach, and the teleological approach.19 The fact that Security Council resolutions are written instruments of a quasi-legal status may allow us to consider that similar rules and principles of interpretation can be applied to the resolutions, as are applied to international treaties.20 Differences must be acknowledged, however, between

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in Legal Philosophy, Doctrine, and Theory (The Hague: Martinus Nijhoff Publishers, 1983) 889 at 892–900; E. Lauterpacht, ‘The Development of the Law of International Organization by the Decisions of International Tribunals’ (1976-IV) 152 RdC 379 at 414–465; Dan Ciobanu, ‘Impact of the Characteristics of the Charter upon Its Interpretation’ in Antonio Cassese (ed.), Current Problems of International Law: Essays on U.N. Law and on the Law of Armed Conflict (Milano: Dott A. Giuffrè, 1975) 3; Ingrid Detter, Law Making by International Organizations (Stockholm: P. A. Norstedt & Söners Förlag, 1965) at 24–33; Pollux, ‘The Interpretation of the Charter’ (1946) 23 BYBIL 54 at 66–79. See, David Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter: Legal Limits and the Role of the International Court of Justice (The Hague: Kluwer Law International, 2001) at 20–21; see also, below Section 2-D and Ch. 7. It is to be noted, however, that those approaches can be categorised differently and also have some descendants, which may or may not overlap with each other: see generally, Ian Sinclair, The Vienna Convention on the Law of Treaties (2nd ed., Manchester: Manchester University Press, 1984) at 114–158; J. G. Merrills, ‘Two Approaches to Treaty Interpretation’ (1968–69) 2 Aust YBIL 55; Lord McNair, The Law of Treaties (Oxford: Oxford University Press, 1961) at 364–431; Julius Stone, ‘Fictional Elements in Treaty Interpretation – A Study in the International Judicial Process’ (1953–55) 1 Syd LR 344; G. G. Fitzmaurice, ‘The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain Other Treaty Points’ (1951) 28 BYBIL 1. See generally, Amerasinghe, above n. 5 at 61–65; Thirlway, above n. 17 at 29–31.

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international treaties and Security Council resolutions in terms of the legal status and the character resulting from different drafting processes. International treaty is a source of international law legally binding among the parties thereto,21 whereas Security Council resolutions are of a delegated nature and, in most cases,22 not intended to create legal rights or obligations as having general application.23 The resolutions are a unilateral and operational measure of the Security Council to assert the collective will of the organ, addressed mainly to the parties to a conflict.24 Those are aimed at giving particular legal effects to the existing legal order to the extent relative to a specific situation. The other difference lies in the fact that Security Council resolutions are drafted, in haste, with an urgent need of taking a measure in response to an on-going conflict, which is likely to threaten, or is threatening, the maintenance of international peace and security.25 Considerable political pressure prompts the Security Council to give priority to securing unanimity among the members, at the expense of clarity in wording of the resolutions, to show its political will to deal with the conflicts or situations brought before it.26 Despite the inevitable political process of drafting resolutions, as Sonnenfeld rightly points out, ‘the fact that the resolution represented a compromise does not mean necessarily that it was void of legal consequences’.27 It is also to be acknowledged that there have been jurisprudential developments in crafting mandates that build on the style and terminology used in the previous resolutions.28 The jurisprudential developments may well have helped, to some extent, in keeping the consistency of certain terminologies. In view of those factors, different approaches of interpretation may have to be sought to serve the need for ascertaining the legal force of Security Council resolutions. In the light of those significant differences, Wood draws a conclusion that

21 22

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25 26

27 28

See, ICJ Statute, above n. 6, Article 38(1)(a). The recent development of legislature-like endeavour in adopting SC Res 1373 (28 September 2001) and SC Res 1540 (28 April 2004) marks clear departure from this disposition. See, Michael C. Wood, ‘The Interpretation of Security Council Resolutions’ (1998) 2 MPYUNL 73 at 81. Thirlway, above n. 17 at 29; Ingrid Detter, ‘The Effect of Resolutions of International Organizations’ in Jerzy Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzysztof Skubiszewski (The Hague: Kluwer Law International, 1996) 381 at 382– 383. For details of the drafting process, see, Wood, above n. 23 at 80–82. See, Helmut Freudenschuß, ‘Article 39 of the UN Charter Revisited: Threats to the Peace and the Recent Practice of the UN Security Council’ (1993) 46 Austrian Journal of Public and International Law 1 at 34; Wood, above n. 23 at 82. Sonnenfeld, above n. 11 at 144. Roland Rich, ‘Crafting Security Council Mandates’ in Edward Newman & Roland Rich (eds), The UN Role in Promoting Democracy: Between Ideals and Reality (Tokyo: United Nations University Press, 2004) 62 at 73–76.

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‘[i]t becomes highly artificial, and indeed to some extent is simply not possible, to seek to apply all the Vienna Convention rules mutatis mutandis to SCRs [Security Council Resolutions]’.29 The ICJ has instead taken a holistic approach to the interpretation of UN resolutions, suggesting that the legal force be determined in each case, ‘having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution’.30 Three approaches to treaty interpretation must now be re-examined in the context of Security Council resolutions to ascertain how much weight should be given to each approach to clarify the legal force of each resolution by interpretation. C. Three Approaches to the Interpretation of Resolutions i. Textual Approach It is little wonder that the use of the term ‘decision’ or ‘decide’ in adopting peacekeeping measures would not give prima facie evidence that a resolution is legally binding within the meaning of Article 25 of the Charter. It is in fact reported that the term ‘decision’ has not always been used in a legal sense.31 It has often been used interchangeably with a ‘resolution’ or even in a much broader sense when it means nothing more than a procedural determination.32 When the Security Council at the beginning of the 1973 Middle East armed conflict called upon the parties to cease all firings and military activities immediately,33 it was regarded in the subsequently adopted resolution as a ‘decision on an immediate cessation of all kinds of firing’.34 However, for the reason above, it might not have necessarily been perceived, even if it was so intended, that the term ‘decision’ meant to attach legally binding force to the call of the previous resolution. A textual interpretation can also take into account the context in which the term is used in the resolution. In cases where a resolution refers to Article 25 of

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33 34

Wood, above n. 23 at 95; see also, Efthymois Papastavridis, ‘Interpretation of Security Council Resolutions under Chapter VII in the Aftermath of the Iraqi Crisis’ (2007) 56 ICLQ 83 at 89–100; Michael Byers, ‘The Shifting Foundations of International Law: A Decade of Forceful Measures against Iraq’ (2002) 13 EJIL 21 at 27. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion), [1971] ICJ Reports 4 (hereinafter Namibia case) at 53 para. 114. Jan Kolasa, ‘Some Remarks on the Concept of a Resolution and Decision of International Organizations’ in Jerzy Makarczyk (ed.), Essays in International Law in Honour of Judge Manfred Lacks (The Hague: Martinus Nijhoff Publishers, 1984) 493 at 493–499. Indeed, when the Security Council decides to invite a representative of a state concerned to participate, without vote, in the discussion, the determination has been recorded as ‘decision’. SC Res 338 (22 October 1973) at para. 1. SC Res 339 (23 October 1973) at para. 1.

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the Charter, it indicates that the resolution is meant to be legally binding. Indeed, the ICJ in the Namibia case relied on the explicit reference to Article 25 made in Security Council Resolution 269,35 which Security Council Resolution 276 at issue referred to,36 in reaching the conclusion that the resolution at issue was adopted as a legally binding decision.37 The legally binding nature can also be confirmed through a statement made by the President of the Security Council.38 It is well known, however, that the Security Council has rarely been willing to make explicit reference to the legal basis on which it adopts a resolution. Given that there exists very little chance to rely on the explicit reference to Article 25, the text will not offer much help in clarifying the legal force of the term ‘decision’. When it comes to the legal force of the calls for a cease-fire as a form of peacekeeping measure, the Security Council has tended to formulate the calls with such terms as ‘appeal’,39 ‘call for’,40 ‘urge’,41 ‘demand’,42 and ‘order’,43 without using the term ‘decide’. Although different tones must be recognised among those terms, it is not always so easy to ascertain the legal force attached to a peacekeeping measure from the choice of wording in its formulation. A typical example will be found in the protracted Palestine conflict,44 where a cease-fire was called upon the parties on a number of occasions with a variety of tones. On 15 July 1948, the Security Council’s approach to the conflict explicitly changed from being persuasive to mandatory in nature, when it ‘ordered’ the parties ‘pursuant to Article 40 of the Charter, to desist from further military action and to this end to issue cease-fire orders to their military and paramilitary forces’.45 The intention of the Security

35 36 37

38

39

40 41 42

43 44 45

SC Res 269 (12 August 1969). SC Res 276 (30 January 1970). Namibia case, above n. 30 at 53 para. 115. For other resolutions which made explicit reference to Article 25, see, e.g., SC Res 232 (16 December 1966); SC Res 290 (8 December 1970); SC Res 521 (19 September 1982); SC Res 743 (21 February 1992). Indeed, the President of the Security Council issued a statement prior to the adoption of SC Res 743 (21 February 1992), which contained reference to Article 25, but without the words ‘acting under Chapter VII’, to confirm that the reference to Article 25 in the preamble of the resolution meant that the decisions contained in the resolution were binding: see, UN SCOR, 47th year, 3055th mtg, at 3, UN Doc S/PV.3055 (21 February 1992). See, e.g., SC Res 42 (5 March 1948); SC Res 199 (30 December 1964); SC Res 749 (7 April 1992). See, e.g., SC Res 43 (1 April 1948); SC Res 233 (6 June 1967); SC Res 436 (6 October 1978). See, e.g., SC Res 395 (25 August 1976); SC Res 713 (25 September 1991). See, e.g., SC Res 211 (20 September 1965); SC Res 234 (7 June 1967); SC Res 752 (15 May 1992). See, SC Res 54 (15 July 1948). For a brief account of the conflict, see, Ch. 3, fn. 50. SC Res 54 (15 July 1948). In the previous resolutions, the Security Council repeatedly used less invocative words such as appeal and call: see, e.g., SC Res 42 (5 March 1948); SC Res 43 (1 April 1948); SC Res 46 (17 April 1948).

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Council to impose legal obligations upon parties, however, had already been indicated, by inference, in the previous resolution, in which it: [d]ecide[d] that if the present resolution is rejected by either party or by both, or if, having been accepted, it is subsequently repudiated or violated, the situation in Palestine will be reconsidered with a view to action under Chapter VII of the Charter of the United Nations.46

This was a compromised solution, reflecting the view of many states that a legal obligation should be imposed upon the parties to comply with the call.47 Although the tone of the call for a cease-fire remained weaker than ‘order’ in this resolution, the threat of further action under Chapter VII would have made sufficiently clear the obligatory nature of the call. The status of textual approach may have recently been improved, as states have become exercising greater caution in negotiating and crafting Security Council resolutions so as to leave little room for expansive and arbitrary interpretation.48 It is in fact arguable, albeit not conclusive, that systematic differentiation of terminology used in a resolution, such as ‘decide’ and ‘call upon’ in Resolution 1373,49 is indicative of differing legal status being accorded to each measure. Given that resolutions are often drafted under considerable political pressure, however, the wording used therein is at any rate only indicative, and may not necessarily be associated with particular legal effects.50 It remains to be seen whether the textual approach in interpreting Security Council resolutions is as reliable as in treaty interpretation. ii. Intentions Approach An alternative method of interpretation of resolutions is to ascertain the intention of the Security Council as to whether it aims at imposing a legally binding decision.51 This approach is of particular importance, since a resolution cannot have a greater effect than that intended by the Security Council promulgating it to have.52 The unilateral nature of peacekeeping measures reinforces the significance of this

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49 50 51 52

SC Res 50 (29 May 1948) at para. 11. While the invocation of Article 39 to determine that the situation in Palestine constituted a threat to the peace was strongly asserted by several states, the British government had reportedly opposed any measure of a coercive or mandatory nature: see, Jon Kimche & David Kimche, A Clash of Destinies: The Arab-Jewish War and the Founding of the State of Israel (New York: Frederick A Praeger, 1960) at 196–198. See, Michael Byers, War Law: International Law and Armed Conflict (London: Atlantic Books, 2005) at 48–49. SC Res 1373 (28 September 2001). Amerasinghe, above n. 5 at 169. See, Higgins, above n. 11 at 281–282. Amerasinghe, above n. 5 at 163.

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approach.53 It may appear to be merged with the textual approach, if one insists that the intentions of the parties to a treaty be found in the clause itself, rather than by questioning what they intended by the clause.54 The rationale in the textual approach lies ultimately in the fact that the text itself, in cases of international treaties, is the expression of the wills and intentions of the drafters. That being said, the chance of conspicuous and deliberate ambiguity in the formulation of the text necessarily leads us to the task of looking directly into the intentions of the drafters. In cases where certain terminologies are formulated on the basis of a political understanding under considerable time pressure, recourse must be had to an investigation into the understanding reached among the drafters. The term ‘all necessary means’, for instance, in indicating the authorisation of the use of armed force clearly shows that an investigation into the drafters’ intention helps in ascertaining the meaning of the terms adopted on the basis of a political understanding,55 and even assists in preserving the terminological consistency for the sake of the swift adoption of resolutions.56 It may also be argued that the voting of the permanent members is sometimes indicative of the intentions behind the adoption of a resolution.57 A peacekeeping measure adopted with the abstention of most, or all, of the permanent members is less likely to have legally binding force attached to it than that adopted by their concurring votes. It has to be acknowledged, however, that the intention of the drafters is not always coherent or ascertainable in the case of Security Council resolutions as compared with multilateral treaties. It has been reported that there was considerable confusion and different views about the legal force attached to Security Council Resolution 276 in relation to Namibia,58 which was a major reason for an advisory opinion subsequently being sought from the ICJ.59 Likewise, when the United States and the United Kingdom, through Security Council Resolutions 731 and 748 over the Lockerbie incident, demanded that Libya surrender two suspects and cease all

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In interpreting an Iranian unilateral declaration accepting the compulsory jurisdiction of the ICJ, it was held that ‘[i]t must seek the interpretation which is in harmony with a natural and reasonable way of reading the text, having due regard to the intention of the Government of Iran at the time when it accepted the compulsory jurisdiction of the Court’: Anglo-Iranian Oil Company Case (United Kingdom v. Iran) (Preliminary Objections) [1952] ICJ Reports 93 at 104. See, Gerald Fitzmaurice, ‘The Law and Procedure of the International Court of Justice 1951–4: Treaty Interpretation and Other Treaty Points’ (1957) 33 BYBIL 203 at 204–207. See, Christopher Greenwood, ‘New World Order or Old? The Invasion of Kuwait and the Rule of Law’ (1992) 55 Modern Law Review 153 at 166. See, Rich, above n. 28 at 66–68. See, Leo Gross, ‘Voting in the Security Council: Abstention in the Post-1965 Amendment Phase and Its Impact on Article 25 of the Charter’ (1968) 62 AJIL 315 at 330–334. Higgins, above n. 11 at 276–277. Namibia case, above n. 30.

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forms of terrorist action and assistance to terrorist groups,60 a significant degree of ambiguity was left about how the demands were to be fulfilled. It was unclear whether they purported to authorise either a trial by the courts in the United States or the United Kingdom, or a fair trial in a neutral state. Neither was it clear how Libya’s compliance with the resolutions was to be measured.61 Weller observes that the unease of a number of delegations with the adoption of Resolution 748 was reflected in the ambiguity of the terms of the Resolution.62 An argument goes, nonetheless, that it is for the Security Council as a collective body to decide when its resolutions have a mandatory nature.63 It will hold true, in view of the established principle, that ‘the right of giving an authoritative interpretation of a legal rule (le droit d’interpréter authentiquement) belongs solely to the person or body who has power to modify or suppress it’.64 The Security Council’s working methods would have impacts on the extent to which the collective intention can be ascertained. In the 1990s when the Security Council started to make important determinations behind closed doors rather than through open discussions,65 the intention of the drafters became less and less accessible to the public. More recently, however, the Security Council has responded affirmatively to demands for wider participation of various stakeholders such as troop contributors and informal groups of states in the deliberations.66 The collective intention of the 60 61

62

63

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66

See, SC Res 731 (21 January 1992); SC Res 748 (31 May 1992). The Libyan representative thus complained that, ‘[w]e do not know when the Security Council will decide that the Jamahiriya has abided by the provisions of operative paragraph 1 and 2 of the draft resolution [that became SC Res 748] so that the sanctions imposed under it may be lifted according to its terms’: UN SCOR, 47th sess, 3063rd mtg, at 21, UN Doc S/PV.3063 (31 March 1992). Marc Weller, ‘The Lockerbie Case: A Premature End to the “New World Order”?’ (1992) 4 AfJICL 302 at 314. See, e.g., remarks made by the Italian representative in the Security Council discussion concerning the situation of Namibia: UN SCOR 26th year, 1589th mtg, at 11 para. 116, UN Doc S/PV.1589 (6 October 1971). Question of Jaworzina (Polish-Czechoslovakian Frontier) (Advisory Opinion) [1923] PCIJ Reports (Series B) No. 8 at 37. See, e.g., Michael C. Wood, ‘Security Council Working Methods and Procedure: Recent Developments’ (1996) 45 ICLQ 150 at 154–159; Estanislao Angel Zawels, ‘Specificity in Peacekeeping Operation Mandates: The Evolution of Security Council Methods of Work’, in United Nations Institute for Disarmament Research (ed.), Managing Arms in Peace Processes: The Issues (New York: United Nations Publications, 1996) 1 at 10–12; W Michael Reisman, ‘The Constitutional Crisis in the United Nations’ (1993) 89 AJIL 83 at 85–86. The French delegation was critical of this trend: see, Aide-Mémoire concerning the Working Methods of the Security Council, UN Doc S/1994/1279-A/49/667 (11 November 1994), the text reproduced in Sydney D Bailey & Sam Daws, The Procedure of the UN Security Council (3rd ed., Oxford: Oxford University Press, 1998) at 556–562. See, e.g., Jochen Prantl, The UN Security Council and Informal Groups of States: Complementing or Competing for Governance? (Oxford: Oxford University Press, 2006) at 70–86; Ian Johnston,

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Security Council can be clarified by subsequent resolutions, statement of the drafters, and, as is becoming an increasing trend, by statements from the President of the Security Council.67 It may also be conveyed to the parties behind closed doors, though it makes difficult the objective assessment of the legal force of the resolution. The most important thing is, in any event, that the intention of imposing a legal obligation to comply with a peacekeeping measure must be clearly addressed to the parties to a conflict.68 It is submitted from this point of view that the ambiguity of the terms such as ‘call for’ and ‘demand’ in respect of the legal force may allow certain latitude for a recalcitrant government to decide how to comply with the resolution whilst saving face, and also for the Security Council to adjust its own position as circumstances change.69 Being so understood, constructive ambiguity may in fact enhance the effectiveness of peacekeeping measures. iii. Teleological Approach The ambiguity in the text of a resolution, as well as in the intentions behind it, is unlikely to be helpful for third parties, in particular for subsidiary organs, to implement the mandates given by the resolution. When the Security Council delegates to a subsidiary organ its functions necessary to implement a resolution whose legal effects remain ambiguous, the implementation would be subject to the interpretation to be made by the subsidiary organ, unless clarified by the subsequent resolutions, in the light of the goals that the Security Council aims to achieve by adopting the resolution. The significance of the teleological interpretation lies in the necessity of securing the effective implementation by the subsidiary organs (or by third party states) of the mandates without exceeding the competence given to them.70 The teleological interpretation sheds light on the objective criteria against which the interpretation made in the actual implementation of the mandates by

67 68

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‘Security Council Deliberations: The Power of the Better Argument’ (2003) 14 EJIL 437 at 462–464. See, Papastavridis, above n. 29 at 105–107; Wood, above n. 23 at 82–84. It must be acknowledged nonetheless that there are a number of other factors to induce compliance of the parties to Security Council decisions, varying with the circumstances where the addressees are placed: see, Rosalyn Higgins, ‘Compliance with United Nations Decisions on Peace and Security and Human Rights Questions’ in Stephen M. Schwebel (ed.), The Effectiveness of International Decisions (New York: Oceana Publications, 1971) 32. See, Reisman, above n. 65 at 88. It does not mean, however, that the teleological interpretation only serves the effective implementation of the mandates by subsidiary organs. For instance, the ICJ rejected the Portuguese claim that the Security Council resolutions concerning East Timor imposed an obligation on states not to recognise any authority other than the Portuguese over the territory, based on the teleological interpretation of the resolutions: East Timor (Portugal v. Australia) [1995] ICJ Reports 90 at 103–104 paras. 31–32.

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the subsidiary organs can be assessed and, if necessary, corrected through further deliberations in the Security Council. A classic example of the teleological interpretation in implementing peacekeeping measures can be found in the UN operation in the Congo (ONUC).71 Frustrated by the absence of a clear interpretation and instruction as to the ambiguous mandates issued by the Security Council to ONUC, the then UN Secretary-General Hammarskjöld made the following explanation about his position: the Security Council has asked me to implement the resolution. Implementation obviously means interpretation in the first instance. I gave an interpretation and that interpretation was challenged. I have referred the matter back to the Security Council. I have the right to expect guidance. That guidance can be given in any form. But it should be obvious that if the Security Council says nothing I have no other choice than to follow my conviction.72

The absence of clear instruction in fact forced the UN officials in the field to follow their conviction as to what would serve the purposes of the operation and what should be done in that light in an emergency situation. When the then Special Representative of the Secretary-General in the Congo, Andrew Cordier, took vigorous security measures in an increasingly chaotic situation, the ambiguity in the legal force of the enabling resolutions for ONUC posed a question as to whether ONUC was authorised to take action in the absence of consultation with the central government of the Congo.73 ONUC was required to take the necessary steps in consultation with the central government,74 whilst reference was made to Article 25 of the Charter in one of the resolutions to call upon the member states to accept and carry out the Security Council’s decisions.75 Irrespective of the reference to Article 25, in any event, the collapsed central government was not in a position to voice opposition to the action taken in the light of the purposes of the operation.76 It is nonetheless arguable that mere recommendation could not have enabled ONUC to take such an independent action in the same circumstances. The action was presumably based on the conviction that it would serve the purposes of restoring law and order within the Congo and that the central government would be obliged to accept the action under the given circumstances.

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74 75 76

For details of the Congo crisis, see, above Ch. 3, Section 4-B-i. UN SCOR, 15th years, 888th mtg, at para. 100, UN Doc S/PV.888 (21 August 1960). For details of the arguments about the legal status of consultation, see, Georges Abi-Saab, The United Nations Operation in the Congo 1960–1964 (Oxford: Oxford University Press, 1978) at 63–64. See, SC Res 143 (14 July 1960) at para. 2. See, SC Res 146 (9 August 1960) at para. 5. One of the purposes of ONUC operation can be drawn from the preamble of SC Res 145 (23 July 1960), which reads that ‘the complete restoration of law and order in the Republic of the Congo would effectively contribute to the maintenance of international peace and security’.

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One may raise a question as to where the purpose(s) of a resolution can be found. Although the preamble of a resolution may well be the most common place where the purpose(s) will be found, it does not exclude other possibilities. The purpose(s) of a resolution should in fact be ascertained, taking all of the obtainable information into account. A special note should be taken, in this context, of the position adopted by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in undertaking a teleological interpretation of its own Statute as adopted by the Security Council. Unsatisfied with the textual interpretation of the Statute,77 the ICTY in the Prosecutor v. Tadic examined the Security Council’s statements leading up to its establishment, reports of the UN Secretary-General, and the remarks of states’ representatives in the meetings of the Security Council, in order to ascertain the Security Council’s purpose in creating it.78 The ICTY then entered into a ‘logical and systematic interpretation’ of each provision in great detail.79 This position may well be confusing in that the ICTY tried to understand the Security Council’s intentions to ascertain its purpose. However, given that the ultimate aim of interpretation is to give effect to the intentions of the drafters,80 it can be understood that the collective will and intention of the Security Council is well expressed in, and reflected by, the purposes of the resolution as well as by each provision. Rephrasing Judge Fitzmaurice’s thesis, to elucidate its ‘purpose’ is, ex hypothesi, to give effect to the will and intention of the Security Council as a whole.81 What makes the approach to the interpretation of resolutions different from that of treaty interpretation is, as mentioned above, the quasi-legal status and the considerable political pressure leading up to the adoption of a resolution, which would make the textual interpretation of resolutions not as reliable as that of treaties. The legal force of each peacekeeping measure will, therefore, be best ascertained in the light of the purpose of the measure, with due regard to the collective will and intention of the Security Council which lies behind it. D. Mandatory Decisions and Chapter VII Powers The scope of legally binding decisions within the meaning of Article 25 of the Charter thus depends on the interpretation of each resolution in the given circumstances, in the light of the purpose of a measure with due regard to the intention behind it.

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Statute of the International Criminal Tribunal for the Former Yugoslavia, UN Doc S/Res/827/Annex (25 May 1993). Prosecutor v. Duško Tadić (ICTY) ( Jurisdiction) (Appeals Chamber) (1997) 105 ILR 453 at 490–495. Id. at 495–524. Fitzmaurice, above n. 54 at 204. The original phrase is ‘[t]o elucidate its meaning, therefore, is, ex hypothesi, to give effect to that will and intention’: id. at 207.

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Legally binding force is not necessarily confined to enforcement measures, so long as the resolution is interpreted as constituting a legally binding decision within the meaning of Article 25 of the Charter. This position was clearly upheld by the ICJ in its advisory opinion in the Namibia case. The Court held that ‘Article 25 is not confined to decisions in regard to enforcement action but applies to “the decisions of the Security Council” adopted in accordance with the Charter’.82 However, the opinion was not accepted without opposition. Judge Fitzmaurice in his dissenting opinion stated that the resolutions would be binding only when the Security Council was acting under Chapter VII powers.83 In a later meeting of the Security Council the British government also commented that ‘the Security Council can take decisions generally binding on Member States only when the Security Council has made a determination under Article 39 that a threat to the peace, breach of the peace or act of aggression exists’.84 The controversy was, it has been reported, reflective of the ambivalent views that have at times been expressed by states.85 The difference of views may well be explained as stemming from the interpretative methods to be chosen: a teleological and flexible interpretation leading to the wider view; and a textual and formalistic interpretation resulting in the restrictive view,86 or vice versa.87 With increasing opportunities to invoke Chapter VII of the Charter since the end of Cold War, the controversy seems to have swung in favour of the restrictive view, not least because of the desire to have ‘a rough and ready, convenient and simple guide to the drafting of resolutions’.88 A point which may have militated against the wider and flexible view concerns the principle of non-intervention into the domestic jurisdiction of a state under Article 2(7) of the Charter, given the increasing number of conflicts occurring within states over the last decade. It may

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Namibia case, above n. 30 at 53 para. 113. Id. at 293 para. 112 ( Judge Fitzmaurice dissenting opinion). UN SCOR, 26th year, 1589th mtg, at 5 para. 51, UN Doc S/PV.1589 (6 October 1971). For details, see, Bailey & Daws, above n. 65 at 269–271. One of the most intensive debates on this question focused on the legal force of investigation undertaken under Article 34 of the Charter: see, Hitoshi Nasu, ‘Investigation Proprio Motu for the Maintenance of International Peace and Security’ (2004) 23 Aust YBIL 105 at 125–128; Theodor Schweisfurth, ‘Article 34’ in Bruno Simma (ed.), The Charter of the United Nations: A Commentary (2nd ed., Oxford: Oxford University Press, 2002) 594 at 605–606. See, John Dugard, ‘The Opinion on South-West Africa (‘Namibia’): The Teleologists Triumph’ (1971) 88 South African Law Journal 460 at 470–477. Higgins regards the UK’s position as adopting a teleological posture recognising the importance of subsequent practice, and the ICJ’s advisory opinion as taking the contextual approach: Higgins, above n. 11 at 283–284. Nigel D. White, Keeping the Peace: The United Nations and the Maintenance of International Peace and Security (2nd ed., Manchester: Manchester University Press, 1997) at 62; see also, Higgins, above n. 11 at 283.

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seem that the peacekeeping measures taken as legally binding decisions within the meaning of Article 25 cannot easily overcome the non-intervention restriction, unless they are applied as enforcement measures under Chapter VII of the Charter. This view does not hold true, however, as mandatory peacekeeping measures, as discussed later,89 would not necessarily constitute intervention into the domestic jurisdiction in contravention of Article 2(7). Chapter VII should not be used as an easy way out of the Article 2(7) restriction. This twofold legal force under the UN Charter may have been simplified into a binary formula – non-binding recommendations under Chapter VI and legally binding decisions under Chapter VII. Although Chapter VII powers ought to be understood primarily to mean authorisation of enforcement measures, its significance in that sense seems to have faded thanks to the expedient practice of using it interchangeably with legally binding decisions.90 In the light of the recent trend, doubt may therefore be cast on the validity of the ICJ opinion formulated in 1971 in the modern context.91 In view of the exponential increase in the use of Chapter VII powers, the question as to the scope of Article 25 turns necessarily to whether the binary approach to the scope of Article 25 has abolished or modified the authoritative interpretation given by the ICJ in 1971. The Vienna Convention on the Law of Treaties allows the textual interpretation to take into account, together with the context, ‘any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’.92 This perspective is of particular significance to the progressive interpretation of such a constitutional instrument as the UN Charter.93 Judge Lauterpacht acknowledged its significance in his separate opinion in the Voting Procedure case,94 stating that ‘[a] proper interpretation of a constitutional instrument must take into account not only the formal letter of the original instrument, but also its operation in actual practice and in the light of the revealed tendencies in the life of the Organization’.95 Given that the resolutions invoking Chapter VII

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See, Ch. 5. See, e.g., Jochen Frowein & Nico Krisch, ‘Introduction to Chapter VII’ in Bruno Simma (ed.), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2002) 701 at 706 (‘enforcement action under Chapter VII is characterized less by its being taken against the will of the target State, but rather by its binding force regardless of the will of the States subject to it’ [Italics original]). The majority opinion in the Namibia case as explained above nn. 30, 82 and accompanying text. Vienna Convention on the Law of Treaties, above n. 13, Article 31(3)(b). See, above n. 17 and accompanying text. Voting Procedure on Questions Relating to Reports and Petitions concerning the Territory of South-West Africa (Advisory Opinion) [1955] ICJ Reports 67 (hereinafter Voting Procedure case). Id. at 106 ( Judge Lauterpacht separate opinion).

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powers are unanimously adopted on an increasing number of occasions,96 it may well be argued that the practice has established a general agreement among UN member states. Attention must nonetheless be directed to the purposes and integrity of the UN Charter as a whole. While the teleological method of interpretation has been asserted primarily to extend the competence of international organisations vis-à-vis sovereign member states, it can and should also be relied on to delimit that competence. In this light, although the Vienna Convention on the Law of Treaties gives the ‘object and purpose’ of treaties a role to play in interpretation,97 a more influential consideration should be extended to the teleological interpretation in order to ensure the legitimate and effective performance of the purposes and the function of the UN Charter in an integral manner.98 As clarified by Judge Read in his dissenting opinion in the Peace Treaties case,99 and also by Judge Spender in his separate opinion in the Certain Expenses case,100 two major principles can be derived from this consideration: the principle of effectiveness; and the principle of integration. The principle of effectiveness (ut res magis valeat quam pereat) in treaty interpretation requires the Charter’s provisions, in cases of ambiguity, to be ‘construed in a manner enabling the clauses themselves to have appropriate effects’.101 If it were the case that legally binding decisions within the meaning of Article 25 were restricted to those adopted under Chapter VII, any meaning of Article 25, especially in its relation to Article 48(1),102 would significantly be diminished. Given that Chapter

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It has to be noted that there have been a few exceptions. It is reported that, during the informal consultations on 20 February 1992 deliberating what came to be SC Res 743 (21 February 1992), India and Morocco objected to the establishment of a peacekeeping operation under Chapter VII, arguing that Article 25 of the Charter was sufficient to give a legally binding effect: see, Freudenschuß, above n. 26 at 14. Vienna Convention on the Law of Treaties, above n. 13, Article 31(1). See, Thirlway, above n. 17 at 27. Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Second Phase) (Advisory Opinion) [1950] ICJ Reports 221 (hereinafter Peace Treaties case) at 233–240. Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter) (Advisory Opinion) [1962] ICJ Reports 151 (hereinafter Certain Expenses case) at 186; for an analysis of Judge Spender’s opinion, see, C. F. Amerasinghe, Studies in International Law (Colombo: Lake House Investments, 1969) at 64–66. Case of the Free Zone of Upper Savoy and the District of Gex (Orders) [1929] PCIJ Reports (Series A) No. 22 at 13; see also, Corfu Channel Case (United Kingdom v. Albania) (Merits) [1949] ICJ Reports 4 at 24; see generally, Sir Hersch Lauterpacht, The Development of International Law by the International Court (London: Stevens & Sons, 1958) at 227–230. Article 48(1) of the Charter reads that, ‘[t]he action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine’.

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VII powers have in principle been intended to authorise enforcement measures,103 it would also amount to the denial of the strong conviction of international lawyers that has observed that the absence of enforceability is not equivalent to the absence of legal obligation.104 The principle of integration, on the other hand, as Judge de Visscher made it clear, requires that ‘treaty clauses must not only be considered as a whole, but must also be interpreted so as to avoid as much as possible depriving one of them of practical effect for the benefit of others’.105 While the restrictive interpretation may contribute to the clarification of the scope of Article 25 in its use, it could run counter to the principle of integration, imposing a serious legal constraint on the Security Council in discharging its responsibility for the maintenance of international peace and security under Article 24 of the Charter.106 It would, more specifically, prevent the Security Council from taking a mandatory decision to adopt peacekeeping measures under Article 40 of the Charter before the stage where the political climate has become such as to enable it to enforce its decision under Chapter VII of the Charter. It must be questioned what value mere recommendations for adopting peacekeeping measures would have in cases where the obligation of non-use of armed force under Article 2(4) of the Charter is already breached.107 There are often situations, as Jiménez de Aréchaga rightly points out, where: there is no threat to or breach of international peace, as in the case of the Congo, or it is not politically feasible to obtain agreement on such a finding and yet a consensus may be reached on a resolution calling for a mandatory cease-fire, the withdrawal of armed forces or even the establishment of United Nations forces to intervene between fighting opponents.108

The restrictive position would thus diminish the significance of legally binding decisions in the sense of Article 25, and would also undermine even more the role

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In recent years, Chapter VII powers have been used to perform a wider range of functions. See, e.g., Hitoshi Nasu, ‘Chapter VII Powers and the Rule of Law: The Jurisdictional Limits’ (2007) 26 Aust YBIL 87 at 90–94. The conviction owes much to the masterpiece of H. L. A. Hart, The Concept of Law (2nd ed., Oxford: Oxford University Press, 1994). Voting Procedure case, above n. 94 at 187 (de Visscher dissenting opinion); see also, Peace Treaties case, above n. 99 at 250 ( Judge Azevedo dissenting opinion); Competence of the International Labour Organization with respect to Agricultural Labour (Advisory Opinion) [1922] PCIJ Reports (Series B) Nos. 2 and 3 at 23. Article 24(1) of the Charter reads that, ‘[i]n order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf ’. See, below Section 4. Eduardo Jiménez de Aréchaga, ‘International Law in the Past Third of a Century’ (1978-I) 159 RdC 1 at 121.

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of peacekeeping before the conflict becomes out of control, contrary to the intention behind the insertion of Article 40 of the Charter. Having those interpretive principles in balance, one may consider that the question is no more than a matter of legal policy or interpretative preference. It is little wonder that, given the pressing political circumstances, the Security Council gives priority to unanimity over clarity in adopting resolutions to show its political will to deal with the conflicts or situations brought before it.109 A line has to be drawn, however, between the expedient application of the Charter by the Security Council to secure the unanimous adoption of a resolution on the one hand, and the objective and legitimate interpretation of the relevant provisions to ascertain the Security Council’s power and competence vested under the UN Charter on the other.110 Danger is inevitable if one regards the political application based on the policy of convenience and convergence as a proper method of interpretation. Such application ‘might far too readily lead to political compromises which would undermine the very foundation of the United Nations’.111 Judge Fitzmaurice also cautioned against the political interpretation, stating that: Without in any absolute sense denying that, through a sufficiently steady and longcontinued course of conduct, a new tacit agreement may arise having a modificatory effect, the presumption is against it, – especially in the case of an organization whose constituent instrument provides for its own amendment, and prescribes with some particularity what the means of effecting this are to be.112

The issue, therefore, should not simply be left to the discretion of the Security Council as a matter of political preference and expedience. The real possibility exists that the Security Council, through its expedient practice relying on Chapter VII, loses flexibility in the selection of its course of action or even conceals a possible violation of fundamental principles of the Charter in the course of its operation.113 The constructive ambiguity, as mentioned above,114 is in some cases useful and even necessary to induce the parties to a conflict to comply with a peacekeeping measure. The rigid dichotomy of the Security Council’s approach to conflict management – non-binding efforts to achieve peaceful settlement of disputes under Chapter VI, and legally binding enforcement of peace under Chapter VII – necessarily leaves the Security Council with less opportunity to flexibly direct a peacekeeping measure. It is therefore preferred to restore the flexible approach so 109 110

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See, Freudenschuß, above n. 26 at 34. For the distinction between application and interpretation, see, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) (Merits) [1986] ICJ Reports 14 at 117 para. 225. Pollux, above n. 17 at 69. Namibia case, above n. 30 at 282 ( Judge Fitzmaurice dissenting opinion). This point is raised in Ch. 1, Section 4. See, above n. 69 and accompanying text.

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that the Security Council can take provisional, yet mandatory, proactive action at an early stage of the conflict even in the absence of political consensus on taking Chapter VII action.

3. Giving Effects to the Legal Force A. Validity While legally binding decisions within the meaning of Article 25 of the Charter should have wide applicability in the formulation of Security Council resolutions, it has to be asked whether all of the decisions that are intended to be binding will, under any circumstances, give rise to a legally binding effect. This question stems from the condition attached to Article 25 that such decisions are to be accepted and carried out ‘in accordance with the present Charter’.115 While some people take a conditional approach, arguing that the legally binding effect is limited only to those which are adopted ‘in accordance with the present Charter’,116 others see this condition as being related only to the way in which member states are required to accept and carry out legally binding decisions.117 It is submitted, however, that the difference of approach may well be no more than a matter of doctrinal significance. The Security Council’s decisions in the sense of Article 25, even if they all purport to validly give rise to a legally binding effect, cannot be carried out by the UN member states, unless those decisions are in accord with the purposes and principles of the Charter. Security Council decisions designed to have legally binding force, in so far as they are adopted in contravention of the purposes and principles of the Charter, will not give rise to a legal obligation on the part of member states which must be accepted or carried out. An argument could be made against the conditional view on the validity of legally binding decisions that it ‘could mean giving members a right to examine the decisions and according them discretionary powers to determine whether the decisions to be complied with are in accordance with the Charter’.118 However, this argument is hardly persuasive, for the same can be said against the other view: it gives UN member states a right to decide whether it is in accordance with the Charter to carry out the Security Council’s decisions. No matter how the question is posed, it is dubious that the UN Charter grants the Security Council a blank cheque as the ultimate authority to modify the legal

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See generally, S. Azadon Tiewul, ‘Binding Decisions of the Security Council within the Meaning of Article 25 of the United Nations Charter’ (1975) 15 Ind JIL 195 at 196–197. See, e.g., Certain Expenses case, above n. 100 at 304 ( Judge Bustamante dissenting opinion). See, e.g., Delbrück, above n. 16 at 455, 458–460. Id. at 459.

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rights and obligations of member states. As the ICJ held in its advisory opinion on the Conditions of Admission of a State to Membership in the United Nations,119 ‘[t]he political character of an organ cannot release it from the observance of the treaty provisions established by the Charter when they constitute limitations on its powers or criteria for its judgment’.120 The ICJ also specifically held, in relation to the effect of Article 25, that the legally binding effect of the decisions in the sense of Article 25 is only presumed in order for it to enjoy prima facie validity.121 Any UN resolution is, therefore, open to challenge or review.122 That being so, UN member states, in any event, should be allowed to protest against the constitutionality of the Security Council’s legally binding decisions of undertaking peacekeeping measures, at least in the form of voicing objection, or arguably by refusing to comply in cases where the objection is ignored.123 In this phase, however, the burden of proof as to the validity and legality of a peacekeeping measure will be imposed on the protesting state. B. The Scope of Application i. UN Member States The peacekeeping measures that the Security Council adopts in response to a conflict will give rise to certain legal effects upon the states involved in the conflict.124 Although the peacekeeping measures are primarily targeted at the states involved in

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Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) (Advisory Opinion) [1948] ICJ Reports 57. Id. at 64. This issue will be examined at length in Ch. 7. See, e.g., Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) (Libyan Arab Jamahiriya v. United States) (Provisional Measures) [1992] ICJ Reports 3, 114 (hereinafter Lockerbie Provisional Measures) at 15 paras. 39–41, 126 paras. 39–40; Namibia case, above n. 30 at 22 para. 20; Certain Expenses case, above n. 100 at 168. See, Karl Doebring, ‘Unlawful Resolutions of the Security Council and their Legal Consequences’ (1997) 1 MPYUNL 91 at 92–99; Derek Bowett, ‘Impact of Security Council Decisions on Dispute Settlement Procedures’ (1994) 5 EJIL 89 at 94–101; see also, Certain Expenses case, above n. 100 at 304 ( Judge Bustamante in his dissenting opinion states, ‘when, in the opinion of one of the Member States, a mistake of interpretation has been made or there has even been an infringement of the Charter, there is a right to challenge the resolution in which the error has been noted for the purpose of determining whether or not it departed from the Charter’). See, Nicolas Angelet, ‘Protest Against Security Council Decisions’ in Karel Wellens (ed.), International Law: Theory and Practice, Essays in Honour of Eric Suy (The Hague: Martinus Nijhoff Publishers, 1998) 277 at 279–281; see also, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion) [1980] ICJ Reports 73 at 104 ( Judge Gros separate opinion). The different types of legal effects and their consequences will be dealt with below in Section C.

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the conflict (target states), the legal effects will also be extended to other states which are not directly involved in the conflict (audience states). The effects on the audience states are of particular importance in situations where foreign intervention is likely to exacerbate an internal conflict, as was the case in the Congo.125 Furthermore, in the modern peacekeeping context the mandatory cooperation of member states has been of increasing significance, since logistic support provided by member states is as essential as determining the effectiveness of peacekeeping measures and the subsequent course of action to be taken.126 All UN member states are, for instance, required to give effect to legally binding decisions by duly implementing a preventive arms embargo, by virtue of Article 25 if it is so determined. ii. Non-UN Member States When a legal obligation arising from a Security Council decision purports to extend to non-UN member states, the legal effect for those states may well be contentious. Article 2(6) of the Charter sets forth a general principle, stating that ‘[t]he Organization shall ensure that States which are not Members of the United Nations act in accordance with these Principles so far as is necessary for the maintenance of international peace and security’. As a principle to be applied within the UN, it obliges the UN political organs to ensure cooperation of non-member states, and yet it does not offer a clear answer to the question as to the legal effects on non-member states.127 For the legal effects on non-member states to be clarified, the distinction should be made between target non-member states and audience non-member states. In cases where a mandatory peacekeeping measure is targeted at a non-member state, it is unlikely that the legally binding effect of the measure will be extended to the non-member state, and thereby will oblige the state to comply with the measure.128 The non-member state, however, will be obliged to comply with a ceasefire, inasmuch as it would otherwise breach the rule of customary international law on the non-use of armed force. The adoption of a peacekeeping measure by the Security Council, either as a decision or a recommendation, will constitute an authentic (not legally binding) pronouncement on the illegality of the situation, which may entail a policy of non-recognition among UN member states against the illegal situation. Moreover, if the Security Council adopts a peacekeeping arms

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The Security Council in fact ‘[c]all[ed] upon all Member States, in accordance with Articles 25 and 49 of the Charter of the United Nations, to accept and carry out the decisions of the Security Council’: SC Res 146 at para. 5 (9 August 1960). John Mackinlay, ‘Military Response to Complex Emergencies’ in Thomas G. Weiss (ed.), The United Nations and Civil Wars (Boulder: Lynne Rienner Publishers, 1995) 51 at 60. See generally, Wolfgang Graf Vitzthum, ‘Article 2(6)’ in Bruno Simma (ed.), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2002) 140 at 146. Contrast, Kelsen, above n. 10 at 106–110.

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embargo as a legally binding decision, all UN member states will be placed under an obligation to cooperate with the arms embargo against the target non-member state. Although the target non-member state is not legally subjected to the decision, the arms embargo may well be effectively implemented. The legal effect may well be stronger in cases where non-member states are the audience states. There is no doubt that such non-member states are not bound to observe the obligations arising directly from Article 25 of the Charter.129 Yet the Namibia case raised questions in relation to the Security Council’s decisions to terminate the mandate given to South Africa over Namibia, and to declare illegal South Africa’s continued presence in Namibia. In this case, the ICJ held that the decisions were ‘opposable to all States in the sense of barring erga omnes the legality of a situation which is maintained in violation of international law’.130 With the ambiguous legal effects of a peacekeeping measure (as a unilateral measure) of the Security Council vis-à-vis non-UN member states, the concept of opposability will assert its explanatory value, rendering the measure ‘opposable’ to non-member states on the condition that it is legitimate and effective within the Charter framework.131 iii. Non-State Entities While it is clear that sovereign states are legally bound when the Security Council explicitly or impliedly so decided, it is not so certain whether armed opposition groups within a state could also be dealt with on the same footing with respect to the legal effects. When a peacekeeping measure is recommended, it will normally require the consent of the parties to the conflict, states or factional groups, but with different status and for different reasons. The consent of armed opposition groups involved in internal conflicts would only acquire a quasi-legal status, as distinct

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For instance, when the Security Council, in its resolution 661 against the Iraqi invasion of Kuwait, extended the call to act strictly in accordance with the resolution to non-member states, many states seemed to regard it simply as an encouragement for those states to comply, rather than the imposition of a legal obligation upon them: White, above n. 88 at 60. Namibia case, above n. 30 at 56 para. 126. The concept of opposability originates mainly from the French legal system. Its value in international law was first clarified by Starke as a useful technical tool for international tribunals to avoid wider application of the judgments beyond the dispute concerned: J. G. Starke, ‘The Concept of Opposability in International Law’ (1968–69) 2 Aust YBIL 1. The concept in international law has been further developed in Japan, especially by Souji Yamamoto and Shinya Murase, as an analytical tool to measure the legal status, beyond the dichotomy of legality and illegality, of a unilateral measure in cases where the applicable rule is yet to be determined. A unilateral measure, according to them, will be opposable if it is taken in good faith as well as perceived as legitimate and effective, on the condition that the undertaking is made public and within the framework of general international law: see, e.g., Shinya Murase, Kokusai Rippou [International Legislation] (Tokyo: Toshindo, 2002) at 472–479.

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from the consent of sovereign states, and be more vulnerable to a change in the political climate.132 The consent and cooperation of armed opposition groups in cases of internal armed conflict are necessarily elusive, and in no way form a legal basis for peacekeeping measures. However, a peacekeeping measure based solely on the consent of sovereign states without seeking the consent or cooperation of armed opposition groups may limit the practical effects upon the conflict that involves an internal root cause. The difficulties arising from consent-based UN operations without armed opposition groups being involved were highlighted when a UN peace observation mission was deployed in Angola. At the turn of the tide of the protracted internal armed conflict in Angola involving foreign intervention,133 the Security Council decided on 20 December 1988 to establish the UN Angola Verification Mission (UNAVEM),134 contingent upon the conclusion of the agreements between the Angolan central government, Cuba, and South Africa for ending hostilities in southern Angola, and for the withdrawal of both Cuban and South African forces from Angola.135 Although UNAVEM successfully verified the withdrawal of all Cuban and South African troops, the internal armed conflict in Angola continued. It was the exclusion of an armed opposition group (in this case UNITA) from the cease-fire agreements that exempted it from the cease-fire and left it unaccount-

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It is pointed out that the quality of consent has altered in dealing with intra-state conflict. From the viewpoint of faction leaders, their survival at the scene of conflict takes priority over the conditions of a peace agreement: Mackinlay, above n. 126 at 52–54. The conflict in Angola originates from its independence in November 1975 from Portuguese colonial rule without adequate processes for devolution, which resulted in the occupation of the central government posts without elections by the members of the Popular Movement for the Liberation of Angola (Movimento Popular de Libertacao de Angola: MPLA). The domination met resistance from the National Liberation Front for the Liberation of Angola (Frente Nacional de Libertacao de Angola: FNLA) and the National Union for the Total Independence of Angola (Uniao Nacional para a Independencia Total de Angola: UNITA). The situation further deteriorated with foreign intervention: South Africa’s support of UNITA and Soviet-Cuba’s support of MPLA. The battle of Cuito Cuanavale in 1988, in which South African forces were heavily defeated, marked the turn of the tide, leading to the agreements between the governments of Angola, Cuba, and South Africa. For details, see, Anthony W. Pereira, ‘The Neglected Tragedy: The Return to War in Angola, 1992–3’ (1994) 32(1) Journal of Modern African Studies 1; Donald Rothchild & Caroline Hartzell, ‘The Case of Angola: Four Power Intervention and Disengagement’, in Ariel E. Levite, Bruce W Jentleson & Larry Berman (eds), Foreign Military Intervention: The Dynamics of Protracted Conflict (New York: Columbia University Press, 1992) 163; Anthony G. Pazzanita, ‘The Conflict Resolution Process in Angola’ (1991) 29(1) Journal of Modern African Studies 83. SC Res 626 (20 December 1988). Letter dated 17 December 1988 from the Permanent Representative of Angola to the United Nations Addressed to the Secretary-General, UN Doc S/20336 (17 December 1988); Letter dated 17 December 1988 from the Permanent Representative of Cuba to the United Nations Addressed to the Secretary-General, UN Doc S/20337 (17 December 1988).

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able for the continuation of hostile acts with the support of the United States.136 The UN’s attitude of neglecting the armed opposition group at an early stage of UN involvement in the Angolan conflict shows a sharp contrast to its attitude at a later stage, where the Security Council not only put UNITA under international obligations, but went so far as to impose an arms embargo specifically against it.137 The Security Council might have been too reluctant to impose legal obligations directly on an armed opposition group, having been concerned with the impact upon the legal status of the non-state entity in international law. It has been suggested, taking account of this concern, that non-state entities can acquire international legal personality, as a de facto regime, by becoming parties to internationalised peace agreements.138 While such a proposition provides a clear, formal and binding standard for non-state entities to be qualified as having international legal personality, it would still fail to hold them accountable under international law for their activities before an internationalised peace agreement is concluded. When the Security Council decides to take a peacekeeping measure on its own initiative, the mandatory effect of the legally binding decision should arguably extend not only to the central government, but to all of the parties involved in the conflict including non-state entities. As will be argued in the next chapter,139 strict adherence to the principle of nonintervention into the domestic affairs of a state would prejudice the peacekeeping measure either in favour of, or against, armed opposition groups. It would result in a prejudicial measure should the legally binding force be applied only to the central government of the state at the stage before an internationalised peace agreement is concluded. For the legal effects to be extended to non-state entities, therefore, the principle of non-intervention needs to be re-examined in the light of impartiality in undertaking a peacekeeping measure, taking into account the human right of the people involved in the conflict to political participation in particular, as well as the right to self-determination in general.

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See, Inge Tvedten, ‘U.S. Policy Towards Angola Since 1975’ (1992) 30(1) Journal of Modern African Studies 31 at 41, 44–45. See especially, SC Res 1127 (28 August 1997). See, P. H. Kooijmans, ‘The Security Council and Non-State Entities As Parties to Conflicts’ in Karel Wellens (ed.), International Law: Theory and Practice, Essays in Honour of Eric Suy (The Hague: Martinus Nijhoff Publishers, 1998) 333 at 337–340. It still seems to be an exceptional proposition. See, Ch. 5, Section 3-C.

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4. Legal Effects A peacekeeping measure, adopted with the purpose or the intention of imposing an obligation upon the parties to a conflict (states or non-state entities) and other states (UN members or non-members), gives rise to specific legal obligations to comply with and implement the measure, entailing certain legal consequences for the pre-existing legal order. It may impose new obligations upon states that might be contrary to, or increase the burden of, pre-existing obligations. It may also authorise action by states that might otherwise be unlawful. In such cases where a mandatory peacekeeping measure conflicts with the pre-existing legal order, the obligation to comply with the peacekeeping measure will prevail and suspend the legal force of pre-existing rules of international law that conflicts with the new obligation.140 This consequence is derived from Article 103 of the Charter,141 which stipulates the superior nature of the obligations resulting from the Charter, including legally binding decisions in the sense of Article 25.142 In the Lockerbie case, the ICJ held that the obligations, imposed on Libya by Security Council Resolution 748 that had been adopted presumably under Article 25, prevailed over the obligations under any other international agreement.143 It is thus submitted that the applicability of Article 103 is extended to Security Council resolutions, whose binding nature is derived indirectly from member states’ obligations under Article 25 of the Charter. On the other hand, in cases where the adopted resolution does not possess legally binding force, the legal effects and consequences of the resolution remain uncertain. A recommendation, while only of a hortatory nature in and of itself, may also give rise to certain legal effects, including a duty to consider, a duty to cooperate,

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See, Elena Sciso, ‘On Article 103 of the Charter of the United Nations in the Light of the Vienna Convention on the Law of Treaties’ (1987) 38 Austrian Journal of Public and International Law 161 at 171–175. It is arguable that Article 103 may also be applied to customary international law: see, K. Zemanek, ‘The Legal Foundation of the International System’ (1997) 266 RdC 9 at 229–230; Pierre-Marie Dupuy, ‘The Constitutional Dimension of the Charter of the United Nations Revisited’ (1997) 1 MPYUNL 1 at 13–14; Thomas M. Franck, ‘The “Power of Appreciation”: Who Is the Ultimate Guardian of UN Legality?’ (1992) 86 AJIL 519 at 522. Article 103 of the Charter reads that, ‘[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail’. See, Rudolf Bernhardt, ‘Article 103’ in Bruno Simma (ed.), The Charter of the United Nations: A Commentary (2nd ed., Oxford: Oxford University Press, 2002) 1292 at 1295–1296; Richard H. Lauwaars, ‘The Interrelationship between United Nations Law and the Law of Other International Organizations’ (1984) 82 Michigan Law Review 1604 at 1606–1607. Lockerbie Provisional Measures, above n. 121 at paras. 39–40; compare, Bowett, above n. 122 at 92.

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and authorisation for action.144 Among those effects, the authorisation for action has attracted an argument that certain recommendations of the Security Council may suspend, as a legal effect, pre-existing legal obligations, including notably an obligation to refrain from the threat or use of armed force under Article 2(4) of the Charter,145 to which therefore Article 103 will apply by extension.146 Although the authorisation has been used primarily to delegate the Security Council’s power to undertake enforcement measures under Chapter VII, it is theoretically possible also to authorise some types of peacekeeping measures, such as the deployment of peace observation missions and international forces to a regional organisation or a group of states. Bearing in mind the distinction between target states and audience states, it is suggested that the authorisation for undertaking a peacekeeping measure to audience states should presuppose the existence of a mandatory decision upon a target state to accept the authorised peacekeeping measure. The authorised powers would have to correspond with the specific obligations imposed upon the target state to comply with the call for a cease-fire, to accept the deployment of peace observation missions or peacekeeping forces, and so forth. It is thus submitted that the collateral obligations will make authorisations different from mere recommendations in that the latter cannot dictate the existing legal order. The difference is significant, as examined in Chapter 7, in respect of the regulatory roles that peacekeeping measures can play in ascertaining the legal status of the conflict irrespective of the legal defence that the belligerent parties may advance.

5. Peacekeeping and Article 25 of the UN Charter The UN Charter has faced no greater challenges than its role to prescribe the legal force of peacekeeping measures which the Security Council undertakes for the

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Amerasinghe identifies several legal effects which recommendatory resolutions may give rise to: Amerasinghe, above n. 5 at 175–187; see also, Detter, above n. 24 at 386–392; Jochen Abr Frowein, ‘The Internal and External Effects of Resolutions by International Organizations’ (1989) 49 ZaöRV 778; D. H. N. Johnson, ‘The Effect of Resolutions of the General Assembly of the United Nations’ (1955–56) 32 BYBIL 97; F. Blaine Sloan, ‘The Binding Force of a “Recommendation” of the General Assembly of the United Nations’ (1948) 25 BYBIL 1. See, Jorge Castañeda, Legal Effects of United Nations Resolutions (New York: Columbia University Press, 1969) at 79, 109–111; John W. Halderman, The United Nations and the Rule of Law (New York: Oceana Publications, 1966) at 167–211. See, Robert Kolb, ‘Does Article 103 of the Charter of the United Nations Apply only to Decisions or also to Authorizations Adopted by the Security Council?’ (2004) 64 ZaöRV 21 at 30–35; Danesh Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of Its Chapter VII Powers (Oxford: Oxford University Press, 1999) at 150–151. See also, Al-Jedda v. Secretary of State for Defence [2008] 1 AC 332 at 351–353 (Lord Bingham).

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purpose of the maintenance of international peace and security. The oversimplified, binary formula – non-binding recommendations under Chapter VI, and legally binding decisions under Chapter VII – has discounted the significance of the flexible approach to legally binding decisions within the meaning of Article 25. The legal force of peacekeeping measures, while not constituting enforcement measures, has thus been given little attention. Given that peacekeeping measures may or may not be legally binding, depending on the nature of the resolution, any general proposition (such as that the measure becomes legally binding once Chapter VII is invoked) would contribute little to the clarification of the binding force of peacekeeping measures. In order to ascertain the legal force of peacekeeping measures, the general propositions would have to be replaced with more detailed examinations as to whether each peacekeeping measure is undertaken as a legally binding decision within the meaning of Article 25 of the Charter. The legal force of each peacekeeping measure has to be determined by interpretation of the relevant resolution, in the light of its explicit purpose or implicit intention behind it. It would also have to be subjected to an examination of whether it could duly give rise to the supposed legal effect for each addressee. The legal effects will logically flow from the legal force of a particular peacekeeping measure. It is conceivable that it is not always desirable to make the legal force and effects clear, inasmuch as an ambiguous statement may well allow flexible responses for the parties to a conflict as well as for the Security Council. Although the legal force could be left uncertain for the sake of flexibility, it must be weighed against the benefit that clearly binding peacekeeping measures will bring in ascertaining the legal status of the conflict.

Chapter 5 Impartiality of Peacekeeping Measures Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. Second sentence of Article 40 of the UN Charter

1. The Principle of Non-Intervention The Security Council must always take care not to intervene in the domestic jurisdiction of a state within the meaning of Article 2(7) of the UN Charter,1 especially

1

Article 2(7) of the Charter reads that, ‘[n]othing contained in the present Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII’. See generally, Georg Nolte, ‘Article 2(7)’ in Bruno Simma (ed.), The Charter of the United Nations: A Commentary (2nd ed., Oxford: Oxford University Press, 2002) 148; Georges AbiSaab, ‘Some Thoughts on the Principle of Non-Intervention’ in Karel Wellens (ed.), International Law: Theory and Practice, Essays in Honour of Eric Suy (The Hague: Martinus Nijhoff Publishers, 1998) 225; Benedetto Conforti, The Law and Practice of the United Nations (3rd and revised ed., Leiden: Martinus Nijhoff Publishers, 2005) at 130–148; Antonio F. Perez, ‘On the Way to the Forum: The Reconstruction of Article 2(7) and Rise of Federalism under the United Nations Charter’ (1996) 31 Tex ILJ 353 at 355–373; M. H. Ansari, ‘Some Reflections on the Concepts of Intervention, Domestic Jurisdiction and International Obligation’ (1995) 35 Ind JIL 197; Kristen Walker, ‘An Exploration of Article 2(7) of the United Nations Charter As an Embodiment of the Public/Private Distinction in International Law’ (1994) 26 NYUJILP 173; Goronwy J. Jones, The United Nations and the Domestic Jurisdiction of States (Cardiff: University of Wales Press, 1979) especially at 14–32; Leland M. Goodrich, Edvard Hambro & Anne Patricia Simons, Charter of the United Nations: Commentary and Documents (3rd and revised ed., New York: Columbia University Press, 1969) at 60–72; Felix Ermacora ‘Human Rights and Domestic Jurisdiction (Article 2, §7, of the Charter)’ (1968–II) 124 RdC 371 at 377–389; Leo Gross, ‘Domestic Jurisdiction, Enforcement Measures and the Congo’ (1965) 1 Aust YBIL 137 at 137–145; Tae-Jin Kahng, Law, Politics, and the Security Council: An Inquiry into the Handling of Legal Questions Involved in International Disputes and Situations (The Hague: Martinus Nijhoff Publishers, 1964) at 28–53; Rosalyn Higgins, The Development of International Law Through the Political Organs of the United Nations (London: Oxford University Press, 1963) at 58–130; M. S. Rajan, United Nations and Domestic Jurisdiction (Bombay: Orient Longmans, 1958); Hans Kelsen, The Law of the United Nations: A Critical Analysis of Its

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when the situation involves internal conflicts within a state. Peacekeeping measures adopted as provisional measures under Article 40 of the Charter are subject to the principle of non-intervention, since those measures by no means constitute enforcement measures as the stated exception to the principle.2 Novertheless, the Security Council has, from time to time, taken peacekeeping measures in the face of allegations that those measures would constitute an intervention into domestic jurisdiction of a state. This was the case for the UN peace observation missions despatched despite the pleas of domestic jurisdiction by the Netherlands for the Indonesian question in 1947,3 and likewise by the Soviet Union for the Lebanese question in 1958.4 Yet the way in which the Security Council despatched those missions was subtle, emphasising their conformity with Article 2(7) by reaffirming the imperative requirement of provisional measures not to intervene in or to be used to influence the outcome of conflicts in a way prejudicial to the rights, claims, or position of the parties concerned.5 It must be borne in mind that the principle of non-intervention between sovereign states is to be distinguished from non-intervention by the UN in the domestic jurisdiction of sovereign states.6 The principle of non-intervention embodied in Article 2(7) of the Charter addresses the latter, whereas the principle of non-intervention in the former sense can be derived from the principles of sovereign equality and non-use of force as embodied in Articles 2(1) and 2(4) of the Charter respectively.7 Although the principle has been reiterated in a number of UN resolutions including the landmark Declaration on Principles of International

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Fundamental Problems (London: Stevens & Sons, 1951) at 769–791; Lawrence Preuss, ‘Article 2, Paragraph 7 of the Charter of the United Nations and Matters of Domestic Jurisdiction’ (1949-I) 74 RdC 553 at 553–652; L. B. Schapiro, ‘Domestic Jurisdiction in the Covenant and the Charter’ (1948) 33 Grotius Society 195; H. Lauterpacht, ‘The International Protection of Human Rights’ (1947-I) 70 RdC 5 at 17–55. See, the last sentence of Article 2(7) of the Charter. See, UN SCOR, 2nd year, 171st–173rd mtgs, UN Doc S/PV.171-173 (31 July–1 August 1947). For a brief account of the event, see Ch. 3, fn. 7. A motion was tabled to request the ICJ to give an advisory opinion as to whether the Security Council was competent to deal with the question, though it was not adopted: UN SCOR, 2nd year, 194th mtg, UN Doc S/PV.194 (25 August 1947). See, UN SCOR, 13th year, 825th mtg, UN Doc S/PV.825 (11 June 1958). Although it regarded the situation in Lebanon as falling solely within the domestic jurisdiction of Lebanon, the Soviet Union abstained from the voting, explaining that neither Lebanon nor the UAR objected to it: id. at paras. 83–86. For a brief account of the event, see Ch. 3, fn. 64. See, Renata Sonnenfeld, Resolutions of the United Nations Security Council (Dordrecht: Martinus Nijhoff Publishers, 1988) at 110–111. See, Benedetto Conforti, ‘The Principle of Non-Intervention’ in Mohammed Bedjaoui (ed.), International Law: Achievements and Prospects (Dordrecht: Martinus Nijhoff Publishers, 1991) 467 at 476. See, Nolte, above n. 1 at 151.

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Law,8 those resolutions merely proscribed intervention ‘among’ sovereign states. The issue of non-intervention ‘by’ the UN in the domestic jurisdiction of states has nonetheless been raised on some occasions of conflict. One such occasion took place when the Security Council adopted Resolution 731, conceivably under Chapter VI of the Charter,9 requesting Libya to surrender its own nationals suspected of the terrorist bombing over Lockerbie, a matter which could arguably fall within Libyan domestic jurisdiction.10 The relativity of the doctrine of domestic jurisdiction has long been recognised, particularly since the time when the PCIJ ruled in the Nationality Decrees Issued in Tunis and Morocco that ‘[t]he question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends upon the development of international relations’.11 It would not be unfair to observe that the flexible interpretation of Article 2(7) adopted by the Security Council in its subsequent practice has, in accordance with the famous ruling on the relativity of the doctrine of domestic jurisdiction, eroded the scope of domestic jurisdiction.12 Upon showing that the determination of the scope of domestic jurisdiction has largely been influenced by political factors in the actual practice of states and international organisations, Trinidade goes so far as to observe that the adoption of Article 2(7) ‘had above all a psychological effect of reassuring some States that their sovereignty would thereby be preserved’.13 It may appear on those bases that Article 2(7) is losing its legal significance in the modern context vis-à-vis UN political organs. Although on its face this view may seem sound, the question of non-intervention by the UN requires a more cautious approach. It has been suggested that the issue 8

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Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, GA Res 2625 (XXV) (24 October 1970) (‘No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the international or external affairs of any other State’ (emphasis added); see also, Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States, GA Res 36/103 (9 December 1981); Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, GA Res 2131 (XX) (21 December 1965). The legal nature of SC Res 731 (21 January 1992) is contrasted with SC Res 748 (31 March 1992), in which explicit reference was made to Chapter VII powers to override the concern with Article 2(7) restriction. See, e.g., Bernhard Graefrath, ‘Leave to the Court What Belongs to the Court: The Libyan Case’ (1993) 4 EJIL 184 at 192. Nationality Decrees Issued in Tunis and Morocco (Advisory Opinion) [1923] PCIJ Reports (Series B) No. 4 at 24 (hereinafter Nationality Decrees Case); see also, UNCIO vol. 5 at 507. Ian Brownlie, Principles of Public International Law (6th ed., Oxford: Oxford University Press, 2003) at 293. A. A. C. Trindade, ‘The Domestic Jurisdiction of States in the Practice of the United Nations and Regional Organisations’ (1976) 25 ICLQ 715 at 722–44, 761–762.

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of domestic jurisdiction has two aspects: a preliminary and jurisdictional aspect; and a substantive and operational aspect.14 The jurisdictional aspect concerns whether the UN is prohibited from considering or even discussing a particular matter at all. The substantive aspect, on the other hand, concerns whether the particular matter is, or should be, governed by any rule of international law in the course of UN operations.15 There may be a case where the UN can intervene in the domestic jurisdiction of a state in the former sense, but still is required not to intervene in it in the latter sense. Bearing in mind those distinct aspects, this chapter examines whether UN actions would constitute intervention in the domestic jurisdiction of a state in contravention of Article 2(7) of the Charter when the Security Council adopts peacekeeping measures to prevent the aggravation of an internal armed conflict. Attention will be drawn in this context to how the requirement under Article 40 not to take action prejudicial to the rights, claims, or position of the parties concerned may help ensure that peacekeeping measures will not amount to intervention in contravention of Article 2(7). This inquiry involves two steps: first, ascertaining the scope of domestic jurisdiction; and second, defining what amounts to an intervention. There is an additional issue concerning the authority to decide whether UN actions constitute an intervention contrary to Article 2(7). Yet this question is not simply confined to the applicability of Article 2(7), but encompasses wider implications for the legality of Security Council action in general. Therefore it will be dealt with in Chapter 8 where it is examined how the Security Council’s peacekeeping action can be better controlled.

2. Internal Armed Conflicts and the Scope of Domestic Jurisdiction of States A. Internal Armed Conflicts in Traditional International Law Peacekeeping measures would face the issue of intervention in domestic jurisdiction of states when they are undertaken in respect of armed conflicts within a state.

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See, Gerald Fitzmaurice, ‘The General Principles of International Law: Considered from the Standpoint of the Rule of Law’ (1957-II) 92 RdC 1 at 61–64; C. H. M. Waldock, ‘The Plea of Domestic Jurisdiction Before International Legal Tribunals’ (1954) 31 BYBIL 96 at 111–114; compare, Gaetano Arangio-Ruiz, ‘The Plea of Domestic Jurisdiction Before the International Court of Justice: Substance or Procedure?’ in Vaughan Lowe & Malgosia Fitzmaurice (eds), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge: Cambridge University Press, 1996) 440 at 452–458. There is an unresolved question of whether the scope of domestic jurisdiction should be delimited by established rules of international law or merely by the existence of international concerns: see generally: Higgins, above n. 1 at 77–81; Preuss, above n. 1 at 627–630, 636–642.

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The issue will not arise in cases of international armed conflicts between two or more sovereign states. In cases of internal armed conflict, the conservative and formalistic interpretation of Article 2(7) of the Charter, placing an emphasis on the jurisdictional aspect, may lead to the argument that the Security Council is prohibited from adopting peacekeeping measures, unless the central government of the state so requested or at least consented. This is the interpretation of Article 2(7) that the consensual approach to UN operations would follow.16 However, the adoption of peacekeeping measures in this fashion would have no effect but to help the existing government in preserving the status quo, more often than not against the will of its people or of monitory groups.17 By adopting a formalistic interpretation of Article 2(7), UN involvement based solely on the consent of the government in power has actually turned out to be intervention in substance, as it helps in oppressing armed opposition groups against their claimed right to self-determination and political participation.18 This was the case in Lebanon (1958), in the Congo (1960–64), and recently in the Former Yugoslav Republic of Macedonia (1992–99), to name a few.19 Faced with a conflict between the interests in the maintenance of international peace and security and the right to self-determination, it has been clearly shown that the UN has given preference to the former, which has often been regarded as a more serious threat to international peace and security. Sohn justified this preference at the time of his writing, stating that: If the United Nations could effectively maintain international peace and, in addition, prevent civil wars from becoming threats to the peace, it would have done enough to improve our present situation; we should not burden it with more until better means are devised to cope with the problem of peaceful change on the international and domestic level.20

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The proposition of the consensual approach and its impropriety is already explained at length in Ch. 1, Section 3-A. Kristen Daglish and Hitoshi Nasu, ‘Towards a True Incarnation of the Rule of Law in War-Torn Territories: Centring Peacebuilding in the Will of the People’ (2007) 54 NILR 81 at 88–92; Rosalyn Higgins, ‘International Law and Civil Conflict’ in Evan Luard (ed.), The International Regulation of Civil Wars (London: Thames and Hudson, 1972) 169 at 180. There are a number of terms used to refer to non-state entities engaged in internal armed conflicts, depending on size and perception, including terrorist organisations, rebels, guerrillas, and insurgents. The term ‘armed opposition groups’ is used here for the sake of objectivity, as defined by Zegveld: the word ‘group’ points to a collectivity, not just a sum of its members; and the word ‘opposition’ encompasses the situations not only where the groups fight against the generally recognised governments, but also where the groups fight among themselves within a state. See, Liesbeth Zegveld, The Accountability of Armed Opposition Groups in International Law (Cambridge: Cambridge University Press, 2002) at 3–4. For details of these events, see Ch. 3, Sections 3–4. Louis B. Sohn, ‘The Role of the United Nations in Civil Wars’ (1963) 57 Proc ASIL 208 at 215.

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In cases where an internal conflict occurs between a central government and an armed opposition group involving a threat or actual presence of foreign intervention, the armed opposition group has often been excluded from the arrangements for cease-fire under UN auspices, which, as happened in Angola and Nicaragua, caused a delay in the entire peace process.21 It is conceivable that the disregard of armed opposition groups in formal arrangements for a cease-fire is closely associated with the rules of traditional international law on belligerency and insurgency, based on a strict understanding among sovereign states of the principle of nonintervention. The state-centric view of traditional international law virtually left the determination of the legal status of armed opposition groups in the hands of each sovereign state, to the extent that it is consistent with the general criteria established by customary international law of belligerency and insurgency.22 Traditional international law also required states to desist from helping insurgent movements in another state, whilst it was free to help the central government of the state, until and unless states recognised the status of belligerency for armed opposition groups, which obliged those states to be legally neutral towards both of the parties.23 So long as states and generally recognised governments continue to retain the freedom to pursue their own recognition policies, determinations of the legal status of armed opposition groups, as well as the nature of the conflict, will remain highly politicised and subjective issues.24 It is dubious that these rules of traditional international law between states can be automatically applied to modern international law, especially in cases of UN involvement. Unless some form of legal status is recognised or given to non-state

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See, below nn. 124–131 and accompanying text. The status of belligerency is a relation giving rise to definite rights and obligations, whereas the status of insurgency is the sum total of rights and privileges which foreign states concede to the rebellious party during an internal armed conflict. While certain requirements have to be fulfilled to acquire the status of belligerency, it is practical necessity that the status of insurgency is recognised in the absence of one or more of the requirements of belligerency. See, e.g., P. K. Menon, ‘Some Aspects of the Law of Recognition Part IV: Recognition of Belligerency and Insurgency’ (1990) 68 Revue de droit international, de sciences diplomatiques et politiques 265; R. P. Dhokalia, ‘Civil Wars and International Law’ (1971) 11 Ind JIL 219 at 224–233; H. Lauterpacht, Recognition in International Law (Cambridge: Cambridge University Press, 1948) at 175–278; Ti-Chiang Chen, The International Law of Recognition: With Special Reference to Practice in Great Britain and the United States (London: Stevens & Sons, 1951) at 303–368. See, e.g., Elizabeth Chadwick, Traditional Neutrality Revisited: Law, Theory and Case Studies (The Hague: Kluwer Law International, 2002) at 187–197; Ivan A Shearer, Starke’s International Law (11th ed., Sydney: Butterworths, 1994) at 521–540; L. Oppenheim (H. Lauterpacht ed.), International Law: A Treatise (7th ed., London: Longmans, 1955) vol. II at 659–661. See, Christpher O. Quaye, Liberation Struggles in International Law (Philadelphia: Temple University Press, 1991) at 246–251; Richard R Baxter, ‘Ius in Bello Interno: The Present and Future Law’ in John Norton Moore (ed.), Law and Civil War in the Modern World (Baltimore: The Johns Hopkins University Press, 1974) 518 at 521–525.

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entities engaged in internal armed conflicts, any action of the Security Council would have to be based solely on the consent of a legally competent government, which may well prevent the legitimate exercise of the people’s right to self-determination and political participation. Having been concerned with this unfair treatment, Richardson advocates that: It is time for international law to move from its present policy which supports the status quo government regardless of its acts and to undergird a “preventive diplomacy” that gives authority to groups’ or peoples’ warranted claims of self-determination as they may arise against national governments.25

Yet, how can the UN accord some form of legal status to armed opposition groups in order to justify its involvement in internal armed conflicts in the face of a plea of domestic jurisdiction of states? B. Legal Status of Non-State Entities Engaged in Internal Armed Conflicts There are different types of entities with different degrees of international legal personality, ranging from traditional sovereign states to international organisations, belligerents, entities sui generis such as Taiwan, and multinational corporations.26 Among them, the international legal personality of non-state entities emerging from internal armed conflicts has been a fruitful subject relevant also to the question of non-intervention by the UN in internal armed conflicts. Before proceeding to the question of the legal status accorded to armed opposition groups through peacekeeping measures of the Security Council, it is worthwhile examining the development concerning the legal personality of armed opposition groups in international humanitarian law. The traditional dichotomy between international and non-international armed conflicts, which had been valid when the UN Charter and the four Geneva Conventions were drafted,27 met a challenge posed by national liberation movements. The increased influence of national liberation movements after the 1950s led ultimately to the insertion of Article 1(4) in Additional Protocol I to the Geneva

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Henry J. Richardson, III, ‘“Failed States,” Self-Determination, and Preventive Diplomacy: Colonialist Nostalgia and Democratic Expectations’ (1996) 10 Temple International and Comparative Law Journal 1 at 10–11. See also, Tom J. Farer, ‘Harnessing Rogue Elephants: A Short Discourse on Foreign Intervention in Civil Strife’ (1969) 82 Harvard Law Review 511 at 513–536. See, e.g., Brownlie, above n. 12 at 58–66. 1949 Geneva Conventions consist of (1) Geneva Convention for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field, 75 UNTS 31; (2) Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 UNTS 85; (3) Geneva Convention Relative to the Treatment of Prisoners of War, 75 UNTS 135; (4) Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287.

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Conventions in 1977,28 which expands the scope of international armed conflict to include ‘armed conflicts in which people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination’.29 Those armed opposition groups which fight against three, albeit restricted, classes of regime are thus entitled to claim equal application of the whole Geneva Conventions by means of a unilateral declaration.30 Additional Protocol I, in other words, recognises the legal personality, at least as far as international humanitarian law is concerned,31 of certain types of armed opposition groups to enter into international treaties. However, the real value of this provision should not be overestimated. It has been pointed out that three types of situations where some degree of international legal personality has been given to armed opposition groups are bound to disappear in the near future.32 Even if the scope of application is to be widened,33 restriction by types of armed conflicts (or causes of armed conflicts) would not be removed, so long as different sets of rules continue to be applied for international and noninternational armed conflicts. Internal armed conflicts would not be treated as international, unless those engaged show a high probability of becoming an independent state. Although it is submitted that Additional Protocol I entitles certain types of armed opposition groups to the specific legal capacities under the Geneva Conventions, the scope of application is so limited that a large number of armed opposition groups, which do not necessarily lead in the direction of the creation of a new independent state, are excluded. To a lesser extent, legal status within the realm of internal armed conflict is also accorded to armed opposition groups through Common Article 3 of the four 28

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1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relative to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3 (hereinafter Additional Protocol I ). Id., Article 1(4). Article 96(3) of the Additional Protocol I reads, in part, that, ‘[t]he authority representing a people engaged against a High Contracting Party in an armed conflict of the type referred to in Article 1, paragraph 4, may undertake to apply the Conventions and this Protocol in relation to that conflict by means of a unilateral declaration addressed to the depositary’. Article 4 of the Additional Protocol I reads, in part, that, ‘[t]he application of the Conventions and of this Protocol, as well as the conclusion of the agreements provided for therein, shall not affect the legal status of the Parties to the conflict’. Antonio Cassese, ‘Wars of National Liberation and Humanitarian Law’ in Christophe Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet (The Hague: Martinus Nijhoff Publishers, 1984) 313 at 319. Indeed, the Australian delegate noted that, ‘if the word “include” in paragraph 2 [Article 1(4) of the final draft] was taken literally, the list could be interpreted as not being exhaustive’: Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977) vol. 5, 22nd plen mtg, at para. 14, CDDH/SR.22 (29 March 1974). See also, Georges Abi-Saab, ‘Wars of National Liberation in the Geneva Conventions and Protocols’ (1979-IV) 165 RdC 353 at 397–398.

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Geneva Conventions,34 whose scope of protection was later expanded by Additional Protocol II with strict conditions to be fulfilled.35 Both Common Article 3 and Additional Protocol II agreed upon the basic humanitarian principles that should be given effect even during internal armed conflicts. They are not to give recognition of legal status to armed opposition groups,36 nor do they stipulate the combatants’ privilege and prisoner of war status. Much of a combatant’s status is, therefore, still governed largely on the basis of convenience and reciprocity,37 which has often resulted in tacit application of the Geneva Conventions in some aspects without the formal recognition of belligerency being accorded.38

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It reads as follows: In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict. 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relative to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609 (hereinafter Additional Protocol II ). The application is dependent upon the organizational character; the level of intensity of armed conflict; and the capacity of implementing the Protocol: see, id., Article 1. See, the last paragraph of Common Article 3 of the Geneva Conventions, as quoted above n. 34. See, e.g., G. I. A. D. Draper, ‘Humanitarian Law and Internal Armed Conflict’ (1983) 13 GaJICL 253 at 258–259; Waldermar A Solf, ‘Problems with the Application of Norms Governing Interstate Armed Conflict to Non-International Armed Conflict’ (1983) 13 GaJICL 291 at 292–293. See, e.g., Eldon van Cleef Greenberg, ‘Law and the Conduct of the Algerian Revolution’ (1970) 11 Harv ILJ 37 at 56–64.

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It is possible to conclude a special agreement between the parties to an internal armed conflict to bring into force all or part of the Geneva Conventions.39 In fact, the use of this mechanism, along with the unilateral declaration under Article 96(3) of the Additional Protocol I, has been widespread in African countries.40 It could be argued in view of this possibility that Common Article 3 recognises the legal capacity of armed opposition groups to conclude agreements with governments representing the sovereign states. It would not mean, however, that international legal personality is thus given to armed opposition groups.41 It is pointed out, moreover, that governments are more often than not reluctant to conclude a special agreement with the armed opposition groups, lest that such acts enhance their status.42 Governments are by no means in favour of any entitlement in international law being given to armed opposition groups. It may well be arguable that Common Article 3 and, where applicable, Additional Protocol II, are not applied until and unless the government or governments concerned acknowledge the applicability of those rules in a particular situation. There are no procedural criteria or competent authority for identifying the applicability of Common Article 3 and Additional Protocol II. An independent third body at times provides an objective assessment of the situation. The International Criminal Tribunals and international human rights monitoring bodies have played an increasingly important role in this respect, providing legal authority to make binding assessment of the applicability of Common Article 3 to a particular situation.43 Nevertheless, the question as to whether a situation meets the criteria for

39

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See, the second last paragraph of Common Article 3 of the Geneva Conventions, as quoted above n. 34. See, Churchill Ewumbue-Monono, ‘Respect for International Humanitarian Law by Armed Non-State Actors in Africa’ (2006) 88 (No. 864) International Review of the Red Cross 905 at 907–913. Suffice it to mention concession contracts concluded between a state and a foreign company, the latter of which is not given international legal personality: see, e.g., Anglo-Iranian Oil Company (United Kingdom v. Iran) (Preliminary Objection) [1952] ICJ Reports 92 at 112; compare, Texaco Overseas Petroleum Company and California Asiatic Oil Company v. The Government of the Libyan Arab Republic (Merits) (1977) 53 ILR 389 at 458 para. 47. Baxter, above n. 24 at 528. Baxter also points out that ‘legal machinery designed with a view to it being applied to international conflict will simply not work in internal conflict’ and shows some of the technical difficulties that would entail when the Geneva Conventions as a whole are applied in internal armed conflicts by special agreements: id. at 529–531; compare, Tom Farer, ‘Humanitarian Law and Armed Conflicts: Toward the Definition of “International Armed Conflict” ’ (1971) 71 Col LR 37 at 47–48. See, e.g., Prosecutor v. Tadić ( Jurisdiction) (Appeals Chamber) 105 ILR 453 (hereinafter Tadić Jurisdiction Appeals) at 488 para. 70; Prosecutor v. Jean-Paul Akayesu (ICTR) ( Judgement) Case No ICTR-96-4-T (2 September 1998) at para. 619–621; Juan Carlos Abella v. Argentina (InterAmerican Commission on Human Rights) Case No. 11.137 (18 November 1997) at paras. 155–156,

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the application of Common Article 3 is to be decided on a case-by-case basis.44 In the absence of an independent authority, it is left to the governments concerned to acknowledge the existence of an armed conflict. Understandably, the political sensitivity of the issue often prompts the governments concerned to refuse to formally acknowledge the applicability of Common Article 3 and Additional Protocol II.45 Although it is explicitly stated that the application of those rules does not imply recognition of legal status of armed opposition groups, governments have shown reluctance to acknowledge the existence of an armed conflict within their territory lest that it in any way enhances the status of armed opposition groups. Once the conditions for the application of those rules are fulfilled, nonetheless, Common Article 3 and Additional Protocol II are to impose legal obligations both on governments and on armed opposition groups without being subject to reciprocity.46 It would simply be untenable that the government in power remains bound by the rules of Common Article 3 and Additional Protocol II even where armed opposition groups desist from applying them. To assert otherwise could run contrary to the principle of effective interpretation,47 inasmuch as it would prevent the government from giving appropriate effects to those rules. Uncertainty lies, however, with the juridical basis for imposing legal obligations upon armed opposition groups under conventional and customary international humanitarian law, the issue which is associated with the legal status accorded to them. There are three arguments put forward to explain the binding nature of international

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available at < http://www.cidh.org/annualrep/97eng/argentina11137.htm#_ftn. 17> (last visited 11 February 2008). Prosecutor v. Rutaganda ( Judgment) (Trial Chamber) Case No. ICTR-96-3 (6 December 1999), (2000) 39 ILM 557 at para. 93. See, Peter H. Kooijmans, ‘In the Shadowland between Civil War and Civil Strife: Some Reflections on the Standard-Setting Process’ in Astrid J. M. Delissen & Gerald J. Tanja (eds), Humanitarian Law of Armed Conflict: Challenges Ahead, Essays in Honour of Frits Kalshoven (Dordrecht: Martinus Nijhoff Publishers, 1991) 225 at 227–234; Joële Nguyên Duy-Tân, ‘The Law Applicable to NonInternational Armed Conflicts’ in Mohammed Bedjaoui (ed.), International Law: Achievements and Prospects (Dordrecht: Martinus Nijhoff Publishers, 1991) 793 at 797–798; Frits Kalshoven, Constraints on the Waging of War (Dordrecht: Martinus Nijhoff Publishers, 1987) at 59–60, 138; Theodor Meron, Human Rights in Internal Strife: Their International Protection (Cambridge: Grotius Publications, 1987) at 47–49. See, Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law (Cambridge: Cambridge University Press, 2005) vol. I at 499; Sylvie-Stoyanka Junod, ‘Protocol II’ in Yves Sandoz, et al. (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: Martinus Nijhoff Publishers, 1987) 1307 at 1345; Rosalyn Higgins, ‘Internal War and International Law’ in Cyril E. Black & Richard A. Falk (eds), The Future of the International Legal Order (Princeton: Princeton University Press, 1971) vol. 3, 81 at 91–93. For details about the principle of effective interpretation, see the literature cited in Ch. 4, fn. 101.

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humanitarian law for armed opposition groups: the legislative jurisdiction; the subjective theory; and the objective theory. The first proposition explains the juridical basis from the municipal legal point of view, suggesting that everyone within the territory of a contracting party to the Geneva Conventions is under the obligations that are given effect by domestic legislation.48 This argument could be consistent with the approach taken with regard to the obligations on states to protect human rights.49 However, in addressing the issue of the legal status, it regards non-state entities as individuals under municipal law, rather than as a group in international law. It could also be argued that this proposition would not explain the legal effects on armed opposition groups in situations where the domestic legislation is declared null and void in a territory under their control.50 In any event, individual criminal responsibility will not be established unless it is proven that an individual acted in breach of those provisions under the military command of the belligerent parties, be they the government or an armed opposition group.51 This condition would not have had to be necessary had those humanitarian rules been applied directly to every individual through domestic legislation. The second proposition, the subjective theory, explains that the legal effects of Common Article 3 and Additional Protocol II extend to armed opposition groups, as the state parties so intend.52 It goes on to argue that armed opposition groups are bound by those provisions if they assent to the rights and obligations stipulated in those provisions pursuant to Articles 34–36 of the Vienna Convention on the Law of Treaties.53 It does not explain, however, why the applicability of those rules is not

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See, e.g., Sandesh Sivakumaran, ‘Binding Armed Opposition Groups’ (2006) 55 ICLQ 369 at 381–393; Geoffrey Best, War and Law Since 1945 (Oxford: Oxford University Press, 1994) at 178; Charles Lysaght, ‘The Scope of Protocol II and Its Relation to Common Article 3 of the Geneva Conventions of 1949 and Other Human Rights Instruments’ (1983) 33 American University Law Review 9 at 12; David A. Elder, ‘The Historical Background of Common Article 3 of the Geneva Convention of 1949’ (1979) 11 Case Western Reserve Journal of International Law 37 at 55; G. I. A. D. Draper, ‘The Geneva Conventions of 1949’ (1965-I) 114 RdC 59 at 96. Contrast, Meron, above n. 45 at 38–40. Antonio Cassese, ‘The Status of Rebels under the 1977 Geneva Protocol on Non-International Armed Conflicts’ (1981) 30 ICLQ 416 at 429–430. See, Akayesu, above n. 43 at para. 640 (in application of Article 4 of the Statute of International Criminal Tribunal for Rwanda dealing with violations of Common Article 3 of the Geneva Conventions and Additional Protocol II ); see also, Prosecutor v. Duško Tadić (ICTY) ( Judgment) (Trial Chamber) (1999) 112 ILR 1 (hereinafter Tadić Trial ) at 183 para. 573. See, Lindsay Moir, The Law of Internal Armed Conflict (Cambridge: Cambridge University Press, 2002) at 52–53, 96–99; Cassese, above n. 50 at 423–429. 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331: Article 34 reads that, ‘[a] treaty does not create either obligations or rights for a third State without its consent’; Article 35 states that, ‘[a]n obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly

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subject to a unilateral declaration to be made by an armed opposition group in the same way as required by Additional Protocol I.54 Nor does it explain the applicability of those rules in the absence of an express declaration by armed opposition groups that they consider themselves to be bound by those rules. Those problems can be overcome by resorting to the general principles of international law or rules of customary international law. In fact, international courts and tribunals have confirmed the customary international law status of Common Article 3,55 and even relied on it in explaining its applicability to armed opposition groups.56 Some scholars have expressed their support of this approach,57 and have even asserted the jus cogens status directly applicable to every individual.58 The same approach has been taken with regard to the applicability of Additional Protocol II to armed opposition groups.59 In practice, however, this proposition involves difficulties with establishing which provisions reflect a general principle or customary international law as well as explaining the applicability of treaty provisions unquestionably binding upon the parties at the time of the alleged offence.60 The theoretical issue is also left unresolved why armed opposition groups are bound as collective entities, rather than as individuals, by those rules of international humanitarian law without being recognised as an entity possessing legal capacities to participate in the formation of custom.61

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accepts that obligation in writing’; Article 36(1) states, in part, that, ‘[a] right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and the third State assents thereto’. See, Additional Protocol I, above n. 28, Article 96(3). To allow this for the applicability of Common Article 3 and Additional Protocol II would put armed opposition groups in an equal footing with sovereign states, which is without doubt unacceptable for states: Zegveld, above n. 18 at 18. See, e.g., Tadić Trial, above n. 51 at 201 para. 609; Tadić Jurisdiction Appeals, above n. 43 at 506 para. 98, 508 para. 102; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) (Merits) [1986] ICJ Reports 14 (hereinafter Nicaragua case) at 113–114 para. 218; compare, Theodor Meron, ‘The Geneva Conventions as Customary Law’ (1987) 81 AJIL 348 at 357. See, e.g., Report of the International Commission of Inquiry on Darfur to the United Nations SecretaryGeneral (25 January 2005), para. 172. See, e.g., René Provost, International Human Rights and Humanitarian Law (Cambridge: Cambridge University Press, 2002) at 97–98; Heike Spieker, ‘Twenty-Five Years After the Adoption of Additional Protocol II: Breakthrough or Failure of Humanitarian Legal Protection?’ (2001) 4 YbIHL 129 at 143–146. See, Moir, above n. 52 at 56–58. See, e.g., Report of the International Commission of Inquiry on Darfur, above n. 56 para. 158. Prosecutor v. Dario Kordić and Mario Čerkez ( Judgment) (Appeals Chamber) Case No IT-95-14/2-A (17 December 2004) at paras. 44–46; Tadić Jurisdiction Appeals, above n. 43 at para. 143. The legal significance of the practice of armed opposition groups for the purpose of the formation of custom is at best unclear. See, Henckaerts & Doswald-Beck, above n. 46 at xxxvi; compare, Tadić Jurisdiction Appeals, above n. 43 paras. 107–108.

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While the subjective theory relies on the will of the parties to a conflict to apply Common Article 3 and Additional Protocol II, the third argument, the objective theory, focuses on the actual ability of armed opposition groups to comply with those rules. It argues that armed opposition groups are bound as de facto authorities (and arguably de facto organised groups) in a particular territory,62 by reason of the fact that the conditions on which Common Article 3 or Additional Protocol II is applicable are met.63 It thus takes a liberal approach to the conferment of legal status upon armed opposition groups, giving them some of the legal capacities extracted from the central governments. It is pointed out that the objective theory cannot explain the rights and obligations of those groups who are bound by Common Article 3, despite lacking de facto authorities that make Additional Protocol II applicable.64 It must be noted, however, that the content of Common Article 3 also assumes a high degree of organisation, discipline, and control by the groups,65 which arguably enables them to assume the specific legal capacity of claiming the rights and duties under Common Article 3 that stems from their effective control.66 This argument is consistent with the rationale underlying Common Article 3 and Additional Protocol II that takes only factual and objective elements into account in applying those rules, whilst making it unnecessary for the authorities to be recognised by any states or organs. The first argument could allow governments to claim domestic jurisdiction, whereas the second and third arguments would render internal armed conflicts as occurring outside the domestic jurisdictions of the states. Non-international

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See, Prosecutor v. Duško Tadić (ICTY) ( Judgment) (Appeals Chamber) (1999) 38 ILM 1518 at 1537 para. 96; Jean S. Pictet, Commentary I: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva: International Committee of the Red Cross, 1952) at 51 (‘Each of the Parties will thus be required to apply Article 3 by the mere fact of that Party’s existence and of the existence of an armed conflict between it and the other Party’). Different levels of factual requirements are applied to give effect on Common Article 3 and Additional Protocol II. Additional Protocol II is to be applied to all armed conflicts ‘which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’ (Article 1). Common Article 3, on the other hand, is applicable even to less organised groups. Zegveld, above n. 18 at 15. See, Draper, above n. 37 at 269–270 (paragraph (d) of Common Article 3 especially ‘tends to increase the level and degree of organization of the insurgent movement almost to that of a recognized belligerent in a full scale civil war under the classical law of war’); Draper, above n. 48 at 90–91; Moir, above n. 52 at 36–38; James E. Bond, The Rules of Riot: Internal Conflict and the Law of War (Princeton: Princeton University Press, 1974) at 51–61; Alfred P. Rubin, ‘The Status of Rebels under the Geneva Conventions of 1949’ (1972) 21 ICLQ 472 at 484–486. Pictet’s commentary is indeed premised on a responsible authority exercising effective sovereignty over part of the country: see, Pictet, above n. 62 at 51.

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armed conflicts are thus to be seen neither as inter-state conflicts nor as matters falling essentially within the domestic jurisdiction of a state. The matters relative to internal armed conflicts in which armed opposition groups are exercising effective control over a portion of territory to the extent necessary to bring Common Article 3 and Additional Protocol II into application can thus arguably be excluded from the domestic jurisdiction of a state, unlike other substantive matters including overall political settlement of the conflict. Given that effectiveness is undoubtedly an influential principle in the sphere of personality in international law,67 the objective theory should prevail. While the direct application of international humanitarian law to individuals might well have been simple enough to convict them of war crimes, it is arguably important to hold armed opposition groups, not just as individuals, responsible and accountable for the observation and implementation of international humanitarian law. It may well be argued from this point of view that armed opposition groups exercising some degree of de facto authority should be given a quasi-legal status to the minimum extent necessary for humanitarian purposes. It can be understood in this context that the adoption of a peacekeeping measure by the Security Council addressed to armed opposition groups could be regarded as de facto recognition of an armed opposition group. Targeting a peacekeeping measure at an armed opposition group would not amount to an explicit or implicit recognition of the legal status. Political considerations may well otherwise prevent the Security Council from acting effectively in addressing the threat posed by armed opposition groups. Yet even if it does not amount to de jure recognition, the adoption of such a peacekeeping measure serves as authoritative evidence that the situation has reached such intensity that can no longer be considered to be a matter falling within the domestic jurisdiction of the state, thus satisfying the conditions for the application of Common Article 3 and even the Additional Protocol II. However, a question arises whether this de facto recognition would constitute an intervention that intrudes into the reserved domestic jurisdiction of the state by conferring more legal rights and imposing more legal obligations than those stipulated in Common Article 3 and Additional Protocol II. The same question can also be raised at every stage of the implementation of peacekeeping measures. The answer to those questions would ultimately depend on what constitutes intervention in the jurisdictional and operational phases of domestic jurisdiction.

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Brownlie, above n. 12 at 63; see also, Antonio Cassese, International Law in a Divided World (Oxford: Oxford University Press, 1986) at 26–28.

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3. Definition of Intervention and Neutrality/Impartiality A. Definition of Intervention ‘Intervention’ has been one of the most ambiguous, and even mysterious, concepts to which a wide range of definitions and meanings have been attached: from particular types of interaction that violate authoritative community expectations about permissible international conduct, to any form of transnational interaction and influence.68 The definition of intervention may need to be confined, for the sake of legal analysis, at least to unsolicited interference contrary to the rules of, and authoritative expectations arising from, international law. Even if the issue is confined to UN activities in relation to Article 2(7) of the Charter, there are still a wide range of views. One view considers it ‘dictatorial interference in the sense of action amounting to a denial of independence of the state’.69 Another adopts a wider definition extended to include recommendations, fact-finding missions, and even discussions.70 Yet another goes somewhere in the middle,71 arguing for instance that discussion or placement of a particular situation on the agenda, as well as recommendations addressed to all members on matters within the domestic jurisdiction of states, are not considered to be intervention, whereas recommendations addressed to a particular state to adopt the recommended policies will constitute intervention.72 It seems that the question as to whether a certain type of UN action constitutes intervention may also depend on the phase in which it is contemplated. In the jurisdictional phase, much of interference by the UN is unlikely to be defined as intervention, in so far as the matter concerns internal armed conflicts intensive enough to attract UN attention. In the operational phase, by contrast, UN actions will be regarded as intervention depending on the manner in which the UN handles the matter. Thus, for instance, discussions and decisions as to whether the UN

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The chaotic debates on intervention have been caused mainly by terminological confusion. See, John Norton Moore, ‘The Control of Foreign Intervention in Internal Conflict’ (1969) 9 VaJIL 205 at 212–217; James N. Rosenau, ‘The Concept of Intervention’ (1968) 22 Journal of International Affairs 165 at 165–176. Lauterpacht, above n. 1 at 19; see also, Quaye, above n. 24 at 297. See, e.g., D. R. Gilmour, ‘The Meaning of “Intervene” within Article 2(7) of the United Nations Charter – An Historical Perspective’ (1967) 16 ICLQ 330; Jones, above n. 1 at 18–31; Preuss, above n. 1 at 605–611. This view is mainly based on the intention that the state representatives had in their mind at the time when the Charter was drafted. See, e.g., Nolte, above n. 1 at 152–156; Conforti, above n. 1 at 146–148; Quincy Wright, ‘Is Discussion Intervention?’ (1956) 50 AJIL 102. See, Oscar Schachter, ‘The United Nations and Internal Conflict’ in John Norton Moore (ed.), Law and Civil War in the Modern World (Baltimore: Johns Hopkins University Press, 1974) 401 at 421–422.

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should deal with the issue and what types of measure it should undertake would not constitute intervention, whereas those as to which factional party should represent the state may well do. The scope of domestic jurisdiction is certainly restrained in time of internal armed conflict where Common Article 3 of the Geneva Conventions or Additional Protocol II thereto would be applicable. It is conceivable that the applicability of those rules, and the associated de facto legal status of an armed opposition group, can be disputed in point of fact in some situations. Even in those cases, however, peacekeeping measures can reasonably be taken in the jurisdictional phase by virtue of the provisional nature stemming from Article 40 of the Charter. In the Indonesian question, for example, the provisional nature of peacekeeping measures taken under Article 40 conceivably allowed the Security Council to leave the determination of the issue of domestic jurisdiction in abeyance, and thus to preclude the peacekeeping measures from constituting an intervention.73 When the scope of domestic jurisdiction is disputable, prima facie evidence of the existence of a dispute or a situation whose continuance is likely to endanger the maintenance of international peace and security would provide a sufficient basis for the Security Council adopting a peacekeeping measure,74 so long as it does not affect the actual legal rights and obligations of the parties under dispute. B. Neutrality as a Form of Intervention The provisional nature of peacekeeping measures would thus render unjustifiable the claim that those measures constitute intervention into the domestic jurisdiction of a state, at least in so far as they are confined to the jurisdictional phase. Once adopted, however, peacekeeping measures need to be carefully controlled so that they do not intrude into the sphere of domestic jurisdiction in the operational phase. Even the measures of a provisional nature may well have decisive and prejudicial effects on domestic politics, depending upon the manner in which they are implemented. The Security Council is, therefore, required to exercise due diligence not to affect the outcome of domestic politics, or at least not to intend to influence the internal political situations. It is prohibited from assisting either the central government or the armed opposition groups, for instance, by giving de jure recognition as a government. Peacekeeping measures, in other words, are required to observe ‘neutral non-intervention’ in their actual implementation,75

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See, Alastair M. Taylor, Indonesian Independence and the United Nations (London: Stevens & Sons, 1960) at 341–342. This is consistent with PCIJ’s ‘provisional view’ in deciding on its jurisdiction in the Nationality Decrees case, above n. 11: see, Waldock, above n. 14 at 107–114. See, John Norton Moore, ‘Legal Standards for Intervention in Internal Conflicts’ (1983) GaJICL 191 at 195.

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so as not to intrude into the realm of domestic jurisdiction of a sovereign state in substance. This requirement has been crystallised as the doctrine of neutrality to be observed by UN peacekeepers. The implementation of the doctrine in practice, however, has proven more difficult than it may seem on its face. When it comes to the maintenance of neutrality in the course of UN operations, the dilemma arising from UN involvement in internal conflicts based on the consent of the government in power has been more obvious. When the UN Operation in the Congo (ONUC) was sent to the newly independent Republic of the Congo in 1960 to provide the central government of the Congo with such military assistance as may be necessary,76 it was emphasised that ONUC would ‘not be a party to or in any way intervene in or be used to influence the outcome of any internal conflict’.77 On the other hand, the central government of the Congo, particularly Prime Minister Patrice Lumumba, reiterated that the purpose of the aid requested was not to restore the internal situation in the Congo, but rather to protect the national territory against acts of aggression posed by Belgian metropolitan troops and to forcefully advance into Katanga, standing on the side of the central government.78 Even worse, the neutrality of the ONUC operation in the Congo was hampered by the US interest in preserving the status quo in the middle of a constitutional crisis between President Kasavubu and Prime Minister Lumumba. US political pressure against Lumumba’s return to the political scene finally put the UN General Assembly on the side of Kasavubu by admitting Kasavubu’s delegation to sit in the UN as the representative of the Congo. The fear that the General Assembly’s decision would lead to a change in the ONUC’s attitude toward his protection forced Lumumba to attempt a return to his stronghold without UN protection. When the Ghanaian Brigade stationed in Kasai (where Lumumba was finally arrested) asked to confirm an assumption that Lumumba could be taken into protective custody, ONUC headquarters ordered it not to get involved in any way. This chain of events eventually led to his capture by the Armée nationale congolaise and his

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For details of the event, see Ch. 3, Section 4-B-i. SC Res 146 (9 August 1960) at para. 4. Hammarskjöld had previously explained that, ‘the United Nations Force cannot be used on behalf of the Central Government to subdue or to force the provincial government to a specific line of action’: Memorandum on Implementation of the Security Council Resolution of 9 August 1960, Operative Paragraph 4, at para. 8, UN Doc S/4417/Add.6 (12 August 1960). See, Cable dated 13 July from the President of the Republic of the Congo and the Prime Minister and Minister of National Defense addressed to the Secretary-General of the United Nations, UN Doc S/4382 (13 July 1960), reprinted in A. G. Mezerik, Congo and the United Nations: The First Year (New York: International Review Service, 1960) Part 2 at 76.

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tragic death.79 This episode illustrates well that the principle of neutrality is too fragile to be maintained due to political pressure by strong states. Neutrality is also affected by external factors. Effective observation by UNOGIL in Lebanon,80 for instance, was significantly hampered by US marines landing in Beirut on 15 July 1958 in response to the request made by President Chamoun.81 It was announced on 16 July 1958 that there was ‘no basis for establishing any contact or working relationship, formal or informal, between the United Nations Observation Group and any non-Lebanese forces in Lebanon’.82 It was nonetheless reported that, ‘the effect of the landing of United States armed forces on the inhabitants of opposition-held areas where observers were operating, occasioned difficulties and caused setting backs [sic] to the task of observation’.83 Fortunately, the election of General Chehab as the new President in Lebanon on 31 July 1958 noticeably reduced tension throughout the country, helping the military observers in winning back the ground for effective operation.84 Yet the unilateral military action taken by the US prompts a critical note. Even if the unilateral military action could be justified on some grounds,85 its negative impacts upon the neutral nature of the peacekeeping measure should not be overlooked.

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See, Georges Abi-Saab, The Untied Nations Operation in the Congo 1960–1964 (Oxford: Oxford University Press, 1978) at 81–91; Brian Urquhart, Hammarskjold (London: The Bodley Head, 1972) at 479–480. For details of the event, see Ch. 3, Section 3. President Chamoun feared the immediate overthrow of his government, having seen the successful coup d’état in Iraq on 14 July which ousted the pro-western regime. Third Report of the United Nations Observation Group in Lebanon, at para. 4, UN Doc S/4085 (12 August 1958) (hereinafter UNOGIL Third Report). The document is excerpted in M. S. Agwani, The Lebanese Crisis, 1958: A Documentary Study (Bombay: Asia Publishing House, 1965) at 267–269. UNOGIL Third Report, above n. 82 at para. 3. The report went on to state that, ‘[n]ot only was the Group prevented from carrying out its plans to establish immediately the permanent posts in opposition-held areas for which it had made arrangements on 15 July, but also its observers had to resume the difficult task of gaining the confidence of the inhabitants of those areas in the impartiality and independence of the observers’: ibid. Id. at paras. 39–42. The legal arguments upon which the US relied were threefold: the right to protect its nationals abroad; inherent right of collective self-defence; and the right to come to the aid of another government when so requested: see, President Eisenhower’s Message to the Congress (15 July 1958), cited in Fahim I. Qubain, Crisis in Lebanon (Baltimore: French-Bray Printing Company, 1961) at 228–231; see, also, Quincy Wright, ‘United States Intervention in the Lebanon’ (1959) 53 AJIL 112 at 116–125; Pitman B. Potter, ‘Legal Aspects of the Beirut Landing’ (1958) 52 AJIL 727 at 728–729; compare, Gerald L. Curtis, ‘The United Nations Observation Group in Lebanon’ (1964) 18 International Organization 738 at 754–756.

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Neutrality can be defined as ‘restraint from choice between competing values’.86 In a particular context of traditional international law, it has been defined as ‘the legal status of a State which does not participate in a war being waged by other States’.87 Practical and doctrinal difficulties with neutrality have been pointed out in traditional inter-state relations, notably including the legal status of non-belligerency as distinct from neutrality.88 As defined in the same vein, albeit in a different context, neutrality in UN operations may also have a peculiar theoretical flaw, reflecting the asymmetric structure inherent in international and intra-national relations. Neutrality, when used in international and intra-national relations, tends to preserve the status quo which inherently disadvantages the weak and the challengers, ignoring the pre-existing imbalance of power and resources as well as the historical events leading up to it.89 It was for this reason that the representative of the Bosnian government repeatedly complained about the ‘neutral’ arms embargo imposed on both sides to the Bosnian conflicts.90 ‘Neutral intervention’ can thus be an oxymoron. C. Impartiality Having been concerned with the fragility of neutral UN operations in its traditional sense, the Security Council has shifted the emphasis of its policy from neutrality to impartiality, whilst often invoking Chapter VII powers. Impartiality is an active requirement for a fair and just treatment of the parties to a conflict as an independent choice, whereas neutrality is a passive requirement for abstention from the conflict within restrictions imposed by belligerents.91

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Jeanne M. Woods, ‘The Fallacy of Neutrality: Diary of an Election Observer’ (1997) 18 Mich JIL 475 at 477. Rudolf L. Bindschedler, ‘Neutrality, Concept and General Rules’ in Rudolf Bernhardt (ed.), Encyclopedia of Public of International Law (Amsterdam: Elsevier, 1997) vol. 3, 549 at 549. See generally, Stephen C. Neff, The Rights and Duties of Neutrals: A General History (Manchester: Manchester University Press, 2000) at 44–60, 86–97, 188–190; Myres S. McDougal & Florentino P. Feliciano, The International Law of War: Transnational Coercion and World Public Order (Dordrecht: Martinus Nijhoff Publishers, 1994) at 395–400; Mark V. Tushnet, ‘Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles’ (1983) 96 Harvard Law Review 781 805–821; Philip C. Jessup, Neutrality: Its History, Economics and Law, Vol. IV: Today and Tomorrow (New York: Columbia University Press, 1936) at 3–16. Woods, above n. 86 at 493; Higgins, above n. 46 at 110. See, Christine Gray, ‘Bosnia and Herzegovina: Civil War or Inter-State Conflict? Characterization and Consequences’ (1996) 67 BYBIL 155 at 184–195. Although arguments for lifting the arms embargo were largely based on the right of Bosnia and Herzegovina to self-defence, the issue would have been better argued by emphasising impartiality in implementing the arms embargo. To draw an analogy, ‘an impartial entity can resist the wind, while a neutral entity can only point where it blows’: Dominick Donald, ‘Neutrality, Impartiality and UN Peacekeeping at the Beginning

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The shift was first demonstrated when, upon the infamous failure to prevent genocide in Rwanda despite the presence of a UN mission,92 the Security Council authorised a military operation led by France by Resolution 929.93 While invoking Chapter VII, the resolution stressed the impartial and neutral nature as well as the strictly humanitarian character of the operation.94 In another instance, on the initiative of Italy and Greece to prevent Albania from falling into an irreversible state of civil war,95 the Security Council authorised by Resolution 1101 an Italianled multinational military operation, which was to be conducted ‘in a neutral and impartial way’.96 Despite its peacekeeping nature,97 the resolution determined that the situation constituted a threat to peace and security in the region presumably in order to invoke Chapter VII powers.98 It is apparent, however, that the authorised military operations in those cases were not enforcement measures against a sovereign state or even a particular faction, which otherwise would be in contravention of the impartiality requirement. It is arguable in theory that Chapter VII powers do not consist solely of enforcement

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of the 21st Century’ (2002) 9(4) International Peacekeeping 12 at 22–23; see also, Jean S. Pictet, Red Cross Principles (Geneva: International Committee of the Red Cross, 1956) at 51–61. For the event, see Ch. 1, Section 2-B. SC Res 929 (22 June 1994). In the preamble, the resolution stressed ‘the strictly humanitarian character of this operation which shall be conducted in an impartial and neutral fashion, and shall not constitute an interposition force between the parties’ (emphasis added): SC Res 929 (22 June 1994). Albania had experienced a serious economic crisis in its transitional phase from communism to democracy. The major cause of the conflict stemmed from the gap between the actual economic crisis and the expectation that the democratisation would bring them prosperity, rather than from the ethnic rivalry with a Greek community in the south of Albania: for details, see, Paolo Tripodi, ‘Operation Alba: A Necessary and Successful Preventive Deployment’ (2002) 9(4) International Peacekeeping 89 at 91–96, 100–101. Paragraph 4 of SC Res 1101 reads that, ‘[the Security Council] [a]uthorizes the Member States participating in the multinational protection force to conduct the operation in a neutral and impartial way to achieve the objectives set out in paragraph 2 above [which was to facilitate the safe and prompt delivery of humanitarian assistance] and, acting under Chapter VII of the Charter of the United Nations, further authorizes these Member States to ensure the security and freedom of movement of the personnel of the said multinational protection force’ (emphasis added): SC Res 1101 (28 March 1997). It is argued that the emphasis on the humanitarian objectives made the operation at odd with the Chapter VII authorisation: see, Dino Kritsiotis, ‘Security Council Resolution 1101 (1997) and the Multinational Protection Force of Operation Alba in Albania’ (1999) 12 LJIL 511 at 530–542. This military operation can be cited as another example of preventive deployment besides the UN operation in FYROM: see, e.g., Tripodi, above n. 95 at 96–98. So long as the military operation was based on Article 40, the situation would not necessarily have had to be recognised as constituting a threat to the peace within the meaning of Article 39. See, Ch. 3, Section 7.

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measures but also of provisional measures under Article 40 of the Charter.99 The impartiality requirement in those operations would rather be in harmony with provisional measures under Article 40,100 since they are to be taken without prejudice to the rights, claims, or positions of the parties concerned. Although the terminology of neutrality and impartiality is often confusing,101 what is aimed at with the impartiality argument is to go beyond the traditional notion of neutrality to shift the focus from formality to substance. There are two arguments put forward to achieve this aim. The first argues that impartiality consists in the perception by the parties, the local population, and the international community.102 If the UN is acting in favour of one side, this argument goes, the perception of impartiality will be put at risk, despite its neutral motives or intentions. The second regards impartiality as a commitment to objectively observe and respect the mandates of UN political organs as well as the principles of the UN Charter.103 It follows that the UN personnel must take a stand on the side of the UN Charter and the mandates given to them, making personal judgments in each particular situation guided by their sense of integrity and conscience.104 It is in this light that the impartiality of UNOGIL’s operation in Lebanon in 1958 has recently been subject to critical analysis, which points out that UNOGIL only assessed the seriousness of the illegal infiltration of personnel or supply of arms across the Lebanese borders, whereas it was mandated to ensure that there was ‘no’ illegal infiltration.105 The first view of impartiality is deemed necessary, at least in the process leading up to the drafting of a resolution. However, its practical difficulty would have arisen in the course of the implementation of the mandates.

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The ambiguity of Chapter VII powers is explained in Ch. 1, Section 4. See, Jane Boulden, ‘Mandates Matter: An Exploration of Impartiality in United Nations Operations’ (2005) 11 Global Governance 147 at 148–150. See, Donald, above n. 91 at 25–31. See, e.g., Mats Berdal, ‘Lessons Not Learned: The Use of Force in “Peace Operations” in the 1990s’ in Adekeye Adebajo & Chandra Lekha Sriram (eds), Managing Armed Conflicts in the 21st Century (London: Frank Cass Publications, 2001) 55 at 56; Shyla Vohra, ‘Impartiality in United Nations Peace-Keeping’ (1996) 9 LJIL 63 at 68. See, e.g., Report of the Panel on United Nations Peace Operations, at para. 50, UN Doc A/55/305S/2000/809 (21 August 2000) (hereinafter Brahimi Report). Dag Hammarskjöld, ‘The International Civil Service in Law and in Fact’ in David A. Kay (ed.), The United Nations Political System (New York: John Wiley & Sons, 1967) 142 at 159–160. Although Hammarskjöld used the term ‘neutrality’, his viewpoint should rather be seen as ‘impartiality’. See, Theo C. van Boven, ‘Some Reflections on the Principle of Neutrality’ in Christophe Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet (The Hague: Martinus Nijhoff Publishers, 1984) 643 at 651–652. See, Ann Hughes, ‘ “Impartiality” and the UN Observation Group in Lebanon, 1958’ (2002) 9(4) International Peacekeeping 1; Istvan Pogany, ‘The Evaluation of United Nations Peace-Keeping Operations’ (1986) 57 BYBIL 357.

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In cases where ‘spoilers’ challenge the implementation of peacekeeping measures,106 it would especially be desirable to stick to the second, more objective view in so far as the adopted resolution can reasonably be perceived as impartial. The requirement of impartiality in implementing peacekeeping measures will be further clarified when the shifting of the burden of proof comes into play. By shifting the burden of proof impartiality would require the parties to a conflict to ensure that they are not in breach of peacekeeping measures. The failure to comply with the peacekeeping measures would be tantamount to constituting a threat to the peace, in which case the Security Council can readily invoke Articles 41 and 42 of the Charter to take enforcement action against the threatening party. The failure could also result in ‘automatic’ enforcement of the peacekeeping measures in order to maintain impartiality in cases where peacekeeping forces are already deployed in the field.107 This possibility shows a sharp contrast with traditional notion of neutrality which would have required peacekeeping forces either to keep strict neutrality or to abandon neutrality to change its stance to peace enforcer against a threat to the peace. Thus, the responsibility for the maintenance of international peace and security is imposed not only on the Security Council, but on the parties to a conflict themselves. The role of shifting the burden of proof that the adoption of a peacekeeping measure would entail is to strike the balance so as to ‘reduce, but not to eliminate entirely, the detrimental effects’ of armed conflict.108 In so doing, UN operations will be kept fair and efficient, on which the principle of impartiality rests.109 It would otherwise have resulted in giving disputants, especially ‘spoilers’, a privilege to continue subversive activities until the Security Council formally adopts an enforcement measure against them. That being said, actual implementation of peacekeeping measures has developed several methods to ensure impartiality as objectively as possible. Common to those approaches is the reliance on the human rights norms and humanitarian concerns

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‘Spoilers’ are defined as the ‘groups who renege on their commitments or otherwise seek to undermine a peace accord by violence’: Brahimi Report, above n. 103 at para. 21; see also, Ch. 1, fn. 97. It will be examined in Chapter 6 whether, and if affirmative to what extent, peacekeeping forces are allowed to resort to an armed force to ensure respect for peacekeeping measures without an explicit authorisation of undertaking enforcement action by the Security Council. It draws on the concept of the precautionary principle: Malgosia A. Fitzmaurice, ‘International Protection of the Environment’ (2001) 293 RdC 9 at 265–266; see also, André Nollkaemper, ‘ “What You Risk Reflects What You Value” and Other Dilemmas Encountered in the Legal Assault on Risk’ in David Freestone & Ellen Hey (eds), The Precautionary Principle and International Law: The Challenge of Implementation (Dordrecht: Kluwer Law International, 1996) 73 at 84–86. Hans J. Morgenthau, ‘The Impartiality of the International Police’ in Salo Engel (ed.), Law, State, and International Legal Order: Essays in Honor of Hans Kelsen (Knoxville: The University of Tennessee Press, 1964) 209 at 219.

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to ensure that self-interest of a certain group of states should not dictate the way in which the Security Council’s peacekeeping powers are exercised. It is undeniable that the reins of managing impartiality are by and large seized by political and tactical considerations. Yet those methods developed through practice can set a framework in which impartiality will be better secured. The examination of peacekeeping practice to date identifies three ideal methods of ensuring impartiality: collective recognition of armed opposition groups; humanitarian assistance; and election monitoring. These three methods are by no means conclusive or exhaustive. Each method, solely or by combination, may be chosen as the situation is deemed appropriate. D. Implementation of Impartial Peacekeeping Measures i. Collective Recognition Recognition is a form of unilateral act addressed to an entity or situation to bring about legal consequences on the international plane, as well as under the municipal law of states which have given recognition. Notwithstanding its legal consequences, unilateral acts of recognition have been largely influenced by, and sometimes confused with, political and arbitrary policies of individual states.110 As with recognition of sovereign states, there have been studies of removing the arbitrary nature of recognition by relying more on collective acts of recognition through the UN admission procedure under Article 4(2) of the Charter,111 to certify the legal existence of an entity as a state.112 Although the argument of collective recognition has been made mainly for the recognition of states, there ought to be no reason why collective recognition should not be given to non-state entities, neither as a state nor as a government, but as a de facto authority that purports to be outside the domestic jurisdiction of a state, challenging the authority of the government in power. There has been a long-standing doctrinal controversy as to the legal effects of recognition of states between declaratory and constitutive views.113 While

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See generally, e.g., Lauterpacht, above n. 22 at 3–6. Article 4(2) of the Charter reads that, ‘[t]he admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council’. For a summary of such studies, see, John Dugard, Recognition and the United Nations (Cambridge: Grotius Publications, 1987) at 41–51. See generally, e.g., Brownlie, above n. 12 at 86–88; Shearer, above n. 23 at 120–121; James Crawford, The Creation of States in International Law (Oxford: Clarendon Press, 1979) at 16–23; Lauterpacht, above n. 22 at 38–42.

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international practice favours the declaratory doctrine,114 it is dubious whether the same could be the case for recognition of de facto authorities. This doubt is deepened when one considers the point of the doctrine of non-recognition. The doctrine and declaration of non-recognition have been addressed to the creation, territorial acquisition, and other acts of states which have been made in a manner contrary to certain basic values commonly accepted by the international community, in order to invalidate the purported claim for the legal status or even a de facto situation.115 The principle of effectiveness would otherwise render it possible that certain states which do not support the declaration of non-recognition might consider such situations lawful and act accordingly.116 In contrast, non-recognition has never been declared with respect to any nonstate entities to deny their status as de facto authorities, even for those which have an undemocratic character and serious human rights violation records such as UNITA in the Angolan conflict.117 This fact necessarily implies that de facto authorities would not attain any legal status in international law except for the limited legal capacity within Common Article 3 of the Geneva Conventions and Additional Protocol II thereto, unless they are so recognised. Although the same argument can be made for recognition of belligerency,118 UN collective recognition based on the universal concern of international peace and security has wider application than recognition of belligerency based solely on the principle of reciprocity. It has been proposed that a centralised procedure be established for the determination of the legal status of armed opposition groups in internal conflicts, which needs to be examined in the context of contemporary international law respecting the right of self-determination and political participation.119 This procedure would

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See, e.g., Opinion No. 1 (Arbitration Commission, Conference on Yugoslavia) (1993) 92 ILR 162 at 164–165 para. 1(a). Nevertheless, another opinion issued later acknowledged that such recognition conferred on a political entity certain rights and obligations under international law: see, Opinion No. 8 (Arbitration Commission, Conference on Yugoslavia) (1993) 92 ILR 199 at 201 para. 2. See, Dugard, above n. 112 at 81–122. Cassese, above n. 67 at 228. For the assessment of the activities of UNITA, see, Anthony W. Pereira, ‘The Neglected Tragedy: The Return to War in Angola, 1992–3’ (1994) 32 Journal of Modern African Studies 1 at 13–14; Inge Tvedten, ‘U.S. Policy Towards Angola Since 1975’ (1992) 30 Journal of Modern African Studies 31 at 45–46. See, e.g., Robert W. Gomulkiewicz, ‘International Law Governing Aid to Opposition Groups in Civil War: Resurrecting the Standards of Belligerency’ (1988) 63 Washington Law Review 43. See, e.g., Richard A. Falk, ‘Janus Tormented: The International Law of Internal War’ in James N. Rosenau (ed.), International Aspects of Civil Strife (Princeton: Princeton University Press, 1964) 185 at 206–209, 216; John Norton Moore, ‘The Control of Foreign Intervention in Internal Conflict’ (1969) 9 VaJIL 205 at 295. Worthy of note is the idea ‘legislative intervention’ as a legitimate exercise of community power to get certain domestic problems solved by the UN before they provoke domestic violence, which could initiate an escalation cycle toward a large-scale armed

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amount to intervention in contravention of Article 2(7) of the Charter, if the UN gives recognition to one of the armed opposition groups as a de jure government whilst the original government remains in effective control or the state remains fragmented. A different conclusion may well be drawn, on the other hand, if the UN gives recognition to an armed opposition group as a de facto authority to a limited extent necessary to deal with the internal armed conflict. Although de facto recognition may be declaratory of the status of an existing armed opposition group, such a declaration is also constitutive, as between the UN and the group so recognised, of limited rights and duties associated with the peacekeeping measures.120 Indeed, the Security Council has from time to time addressed peacekeeping measures not only to sovereign states but also to non-state entities engaged in armed conflicts. Cease-fires have been called, for instance, upon Arab and Jewish armed groups in Palestine,121 and upon all parties to the conflict in Somalia.122 It may reasonably be observed from this practice that, in cases where the state lacks a government, the Security Council has taken the most liberal approach without posing any rigorous requirements as to the accountability of armed opposition groups.123 Exclusion of armed opposition groups from the targets of peacekeeping measures would necessarily send a signal that the Security Council’s approach is not impartial, which could nullify the effects of the measures. UN missions in Angola and Nicaragua demonstrated the failure of preserving impartiality in the course of implementing peacekeeping measures. In establishing the UN Angola Verification Mission (UNAVEM) in 1988 to ensure the implementation of intergovernmental cease-fire agreements,124 the Security Council failed to stand on an impartial position by excluding UNITA, the leading armed opposition group, from the cease-fire

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conflict: Richard A. Falk, Legal Order in a Violent World (Princeton: Princeton University Press, 1968) at 336–353. This is the position that Lauterpacht took in relation to the legal effects of recognition of states. Lauterpacht, above n. 22 at 6. SC Res 43 (1 April 1948) at para. 3; see also, SC Res 46 (17 April 1948) at para. 1 (‘all persons and organizations in Palestine’); SC Res 49 (22 May 1948) at para. 1 (‘all Governments and authorities’). The term ‘Governments and authorities’ has since then consistently been used in the subsequent resolutions concerning the Palestine question. See, e.g., SC Res 733 (23 January 1992) at para. 4; SC Res 746 (17 March 1992) at para. 3 (‘all the Somali factions’); SC Res 751 (24 April 1992) at para. 9 (‘all parties, movements and factions in Somalia’). The subsequent resolutions with regard to the situation in Somalia frequently referred to ‘all parties, movements and factions in Somalia’. See, Zegveld, above n. 18 at 138–139; compare, P. H. Kooijmans, ‘The Security Council and Non-State Entities as Parties to Conflicts’ in Karel Wellens (ed.), International Law: Theory and Practice, Essays in Honour of Eric Suy (The Hague: Martinus Nijhoff Publishers, 1998) 333 at 337–340. SC Res 626 (20 December 1988).

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agreements.125 Despite the successful implementation of the intergovernmental agreements under UNAVEM supervision, the UN operation without the consent or cooperation of UNITA rendered its presence partial with respect to the settlement of the internal armed conflict. Not only did it mean the absence of legal effect of the Security Council’s resolution upon UNITA,126 it also caused the prolongation and deterioration of the internal armed conflict. When an attempt was made to settle the decades-long armed conflicts in the region of Central America through an inter-governmental agreement,127 the UN Observer Group in Central America (ONUCA) was established,128 with the mandate to conduct on-site verification of cessation of all forms of military assistance to the insurgent group (Contras) in Nicaragua.129 Yet its activities were significantly hampered by the Contras’ resistance.130 The resistance was predictable, having regard to the nature of the agreement, which not only excluded the Contras from negotiations, but also attempted to delegitimise the Contras’ insurgent activities and the support for them by other states, including the United States, in their fight against the Sandanista government in Nicaragua. It was fortunate that the unexpected victory of the Union Nacional Opositora, a coalition of opposition parties, in the elections held in Nicaragua on 25 February 1990 under international supervision, facilitated negotiations to achieve the demobilisation, repatriation and resettlement of the Contras. The negotiations resulted in the Managua Agreements on 19 April 1991,131 in which members of the Contras also participated. The successful

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For details, see, Ch. 4, Section 3-B-iii. This attitude of the Security Council with regard to the legal effect of its resolutions upon nonstate entities is contrasted with subsequent resolutions dealing directly with UNITA: see, e.g., SC Res 1127 (28 August 1997); see also, Kooijmans, above n. 123 at 337–340. Decades-long armed conflicts in the region consisting of Costa Rica, Nicaragua, Honduras, El Salvador and Guatemala, which were characterised as oligarchy versus insurgency during the Cold War, finally reached the stage when the governments of five states stepped forward for the pacification of the region: Procedure for the Establishment of a Firm and Lasting Peace in Central America (Esquipulas II), UN Doc S/19085-A/42/521 (31 August 1987); see generally, Brian D. Smith & William J. Durch, ‘UN Observer Group in Central America’ in William J. Durch (ed.), The Evolution of UN Peacekeeping: Case Studies and Comparative Analysis (Hampshire: Macmillan Press, 1994) 436. It was established by SC Res 644 (7 November 1989). Report of the Secretary-General, at paras. 5–6, UN Doc S/20895 (11 October 1989). It is reported that 2,000 Contras members located in Nicaragua attacked to interrupt election registration: see, Smith & Durch, above n. 127 at 443. Despite ONUCA’s monitoring activities, military operations were still carried out and weapons were circulated freely throughout the region. Having observed this, Wrobel concluded that ‘ONUCA’s initial phase of operation was more a symbolic than effective success’: Paulo S. Wrobel, Managing Arms in Peace Processes: Nicaragua and El Salvador (New York: United Nations Publications, 1997) at 18. The Agreements called for, among others, a formal cease-fire to be monitored by ONUCA, withdrawal of government forces from security zones and demilitarised zones surrounding

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completion of ONUCA’s mandate of monitoring the Agreements would arguably justify speculating that the de facto recognition of the Contras to entitle them to participate in the negotiations and agreements from the beginning could have been the key to the success of the peace process at an earlier stage of the conflicts. As distinct from de jure recognition, which would not be accorded until the outcome of a conflict becomes certain, de facto recognition can be accorded at an earlier stage in the course of the conflict, since it would not affect the legal status of either party to the conflict.132 It is therefore consistent with the preventive approach that the Security Council should take. The peacekeeping and provisional nature would be strengthened when de facto recognition is accorded not as a government, but merely as an armed opposition group with more limited legal capacities. Being so recognised, the armed opposition group is obliged to observe cease-fires as well as entitled to negotiate on the same footing with the incumbent government or other groups for a peaceful settlement of the internal conflict. De facto recognition of armed opposition groups by the Security Council can thus preserve the impartiality of the mandates to the extent necessary to make peacekeeping measures effective. As the quasi-legal status given to armed opposition groups in this way is of no more than a provisional nature, determination as to the ultimate legal status is reserved to political settlements in a peaceful, and if applicable, democratic manner in due course. ii. Humanitarian Assistance Peacekeeping measures, particularly the deployment of peacekeeping forces, can sustain impartiality by serving humanitarian purposes. Peacekeeping forces have indeed been engaged in humanitarian activities, though often ‘humanitarian action represented a mere compensation for military inaction and moral, political and military resignation for governments’ (italics original).133 The UN involvement in the Former Yugoslavia was significantly confined to humanitarian assistance,134 reportedly due to the reluctant initiative of the UN Secretariat as well as to the unwillingness of

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them, and an agreed timetable for complete demobilisation: Letter dated 20 April 1990 from the Secretary-General addressed to the President of the Security Council, UN Doc S/21259 (20 April 1990). ONUCA’s mandate was accordingly enlarged: see, SC Res 650 (27 March 1990). See, e.g., Stefan Talmon, Recognition of Governments in International Law: With Particular Reference to Governments in Exile (Oxford: Oxford University Press, 1998) at 105–106. De facto recognition as an armed opposition group is, in other words, recognition to ascribe the status of de facto authority to an armed opposition group. See, Victor-Yves Ghebali, ‘UNPROFOR in the Former Yugoslavia: The Misuse of Peacekeeping and Associated Conflict Management Techniques’ in Daniel Warner (ed.), New Dimensions of Peacekeeping (Dordrecht: Martinus Nijhoff Publishers, 1995) 13 at 29. UNPROFOR was first established to monitor the demilitarisation of Serbian populated areas in Croatia, and then, with the spread of armed conflicts particularly in Bosnia-Herzegovina, was extended to the newly born country for the purpose of mitigating human suffering: see generally, e.g., William J. Durch & James A. Schear, ‘Faultlines: UN Operations in the Former Yugoslavia’

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the Security Council member states to provide necessary resources for a credible size of force.135 The implementation of the humanitarian tasks was, even worse, hampered by allegedly state-supported rebel activities, not least because insufficient resources had been provided with the mere repetitive passing of resolutions.136 The humanitarian assistance in the Former Yugoslavia was thus minimal. UN humanitarian assistance of a token nature ensued when the UN dealt with the situation in Somalia. Apart from the lateness, the reluctant deployment of unprepared UN forces under ambiguous resolutions aggravated the armed conflict.137 The US-led Unified Task Force (UNITAF) was subsequently deployed in response to the widespread humanitarian concern within the US.138 Yet the symbolic nature of the humanitarian action was highlighted when the US disputed what constituted ‘a secure environment for humanitarian relief operations’ as stipulated in Resolution 794.139 The US troops accordingly confined themselves to keeping basic security founded on a consensual approach, in disregard of the UN Secretariat’s wish that the irregular forces and gangs be disarmed and neutralised under international control.140 Failure in these instances by no means indicates that the humanitarian approach is either theoretically or practically flawed. Humanitarian assistance should not be used as a substitute for peacekeeping action to justify the failure of the Security

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in William J. Durch (ed.), UN Peacekeeping, American Politics, and the Uncivil Wars of the 1990s (Hampshire: Macmillan Press, 1997) 193 at 206–252. See, e.g., Åge Eknes, ‘The United Nations’ Predicament in the Former Yugoslavia’ in Thomas G. Weiss (ed.), The United Nations and Civil Wars (Boulder: Lynne Rienner Publishers, 1995) 109 at 114. See, e.g., Alain Destexhe, ‘The Shortcomings of the “New Humanitarianism”’ in Albert J. Paolini, Anthony P. Jarvis & Christian Reus-Smit (eds), Between Sovereignty and Global Governance: The United Nations, the State and Civil Society (Hampshire: Macmillan Press, 1998) 85 at 86–88; Mats Berdal, ‘United Nations Peacekeeping in the Former Yugoslavia’ in Donald C. F. Daniel & Bradd C. Hayes (eds), Beyond Traditional Peacekeeping (New York: St Martin’s Press, 1995) 228 at 232–234. For example, the initially authorised UN force of 500 personnel was not deployed until five months after the adoption of SC Res 751 (24 April 1992), and additionally authorised forces of 2,500–3,500, which were half of the requested number, never came. For details and other evidence, see, e.g., Walter Clarke, ‘Failed Visions and Uncertain Mandates in Somalia’ in Walter Clarke & Jeffrey Herbst (eds), Learning from Somalia: The Lessons of Armed Humanitarian Intervention (Boulder: Westview Press, 1997) 3 at 6–8; Jeffrey Clark, ‘Debacle in Somalia: Failure of the Collective Response’ in Lori Fisler Damrosch (ed.), Enforcing Restraint: Collective Intervention in Internal Conflicts (New York: Council on Foreign Relations Press, 1993) 205 at 221–223. Walter Clarke, above n. 137 at 8–9; Jeffrey Clark, above n. 137 at 225–228. SC Res 794 (3 December 1992). Robert G. Patman, ‘Disarming Somalia: The Contrasting Fortunes of United States and Australian Peacekeepers During United Nations Intervention, 1992–1993’ (1997) 96 African Affairs 509 at 511–518; Jonathan T. Howe, ‘Relations Between the United States and United Nations in Dealing with Somalia’ in Walter Clarke & Jeffrey Herbst (eds), Learning from Somalia: The Lessons of Armed Humanitarian Intervention (Boulder: Westview Press, 1997) 173 at 175–177.

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Council to make clear strategic decisions, but as a complement to it so as to maintain impartiality of the action taken. A lesson drawn from those failures demonstrates that humanitarian assistance has to be backed with sufficient strength of peacekeeping forces reliable enough to ensure impartiality, particularly in cases where one of the parties to a conflict deliberately obstructs the humanitarian relief operation. The forces must be ready to enforce impartial humanitarian assistance, which nonetheless needs to be confined to the extent necessary to sustain impartiality.141 The use of force going beyond the necessary extent would result in the disappearance of impartiality, dragging UN personnel into a part of the internal armed conflict and politics. This was the case when the UN Operation in Somalia II (UNOSOM II) was determined to marginalise General Aideed ‘who was viewed as a war criminal and as the primary obstacle to a meaningful peace process’,142 whilst the mandate was still formulated in an impartial fashion.143 Such a course of action would have been legitimate and likely to be successful only if the Security Council decisively authorised to enforce the peace process against one of the parties to the conflict, in which case there should have been no role to play for impartiality. iii. Election Monitoring The UN has increasingly been engaged in a wide range of electoral assistance for popular consultation,144 including plebiscites, referenda, and national elections.145

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The question as to what extent peacekeeping forces are authorised to resort to an armed force within the purview of Article 40 is the subject of Ch. 6. Gary Anderson, ‘UNOSOM II: Not Failure, Not Success’ in Donald C. F. Daniel & Bradd C. Hayes (eds), Beyond Traditional Peacekeeping (New York: St Martin’s Press, 1995) 267 at 269–270. The enabling resolution, SC Res 814 (26 March 1993), ‘[d]ecide[d] to expand the size of the UNOSOM force and its mandate in accordance with the recommendations contained in paragraphs 56–88 of the report of the Secretary-General of 3 March 1993’. UNOSOM II’s mandate was, among other things, ‘[t]o monitor that all factions continue to respect the cessation of hostilities’ and ‘[t]o prevent any resumption of violence and, if necessary, take appropriate action against any faction that violates or threatens to violate the cessation of hostilities’ (emphasis added): Further Report of the Secretary-General Submitted in Pursuance of Paragraph 18 and 19 of Resolution 794 (1992), at para. 57, UN Doc S/25354 (3 March 1993). See generally, Margaret Satterthwaite, ‘Human Rights Monitoring, Elections Monitoring, and Electoral Assistance as Preventive Measures’ (1998) 30 NYUJILP 709 at 717–728; Yves Beigbeder, International Monitoring of Plebiscites, Referenda and National Elections: Self-Determination and Transition to Democracy (Dordrecht: Martinus Nijhoff Publishers, 1994) at 119–221; David Stoelting, ‘The Challenge of UN-Monitored Elections in Independent Nations’ (1992) 28 Stan JIL 371 at 375–386; Jon M. Ebersole, ‘The United Nations’ Response to Requests for Assistance in Electoral Matters’ (1992) 33 VaJIL 91 at 92–104; Mélida N. Hodgson, ‘When to Accept, When to Abstain: A Framework for U.N. Election Monitoring’ (1992) 25 NYUJILP 137 at 139–172. Although they all are forms of popular consultation to ascertain its wishes by means of a ballot, each serve different purposes: whereas plebiscites and referenda concern a particular proposition

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Yet the principles and methods of popular consultation have still been considered presumptively to be matters within the domestic jurisdiction of states.146 Based on this presumption, it has been argued that no legal basis could be afforded for election monitoring and the deployment of peacekeeping forces attached thereto until and unless the maintenance of international peace and security is at stake.147 The debate, after all, amounts to the tension between two principles: affirmative support for UN-monitored elections to embody the right to political participation on the one hand; and respect for state sovereignty on the other.148 Election monitoring has nonetheless been admitted as an exceptional activity of the UN in so far as a clear international dimension is recognised.149 It seems, moreover, that a clear international dimension of elections in a strife-torn state has become more easily recognised, with increasing attention being given to the right to political participation and democratic governance.150 Election monitoring has thus evolved from an exceptional activity to an integral element of the UN role to preserve international peace and security. Election monitoring under UN auspices is aimed at ensuring ‘free and fair’ elections,151 without intervening in the domestic political balance and the outcomes in any prejudicial way. The concept of ‘free and fair’ elections, however, needs to

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(e.g., independence or integration into another country), national elections aim at electing candidates to public positions such as a president and members of parliament: Beigbeder, above n. 144 at 33. See, Nicaragua case, above n. 55 at 131 para. 259. See, e.g., remarks expressed in the General Assembly in considering Haiti’s request for election monitoring: UN GAOR, 45th sess, 69th mtg, at 16–27, UN Doc A/45/PV.69 (11 January 1991). The tension was illustrated by two simultaneously adopted General Assembly Resolutions: Enhancing the Effectiveness of the Principle of Periodic and Genuine Elections, GA Res 45/150 (18 December 1990) and GA Res 46/137 (17 December 1991); and Respect for the Principles of National Sovereignty and Non-Interference in the Internal Affairs of States in Their Electoral Processes, GA Res 45/151 (18 December 1990) and GA Res 46/130 (17 December 1991). See generally, Kofi Darko Asante, ‘Election Monitoring’s Impact on the Law: Can It Be Reconciled with Sovereignty and Nonintervention?’ (1994) 26 NYUJILP 235 at 250–282; Beigbeder, above n. 144 at 100–104; Ebersole, above n. 144 at 96–104. See, Enhancing the Effectiveness of the Principle of Periodic and Genuine Elections: Report of the Secretary-General, at 25 paras. 77–79, UN Doc A/46/609 (19 November 1991). See, e.g., James Crawford, ‘Democracy and International Law’ (1993) 64 BYBIL 113 at 123–130; Thomas M. Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86 AJIL 46; Gregory H. Fox, ‘The Right to Political Participation in International Law’ (1992) 17 Yale JIL 539 at 552–570. Election monitoring ‘is a particular form of fact-finding with the purpose to attest to the fairness and freeness of the election for the benefit of the indigenous population and to convince the international community of the genuineness of the expression of the popular will within a particular country’: Geert van Haegendoren, ‘International Election Monitoring’ (1987) 20 Revue belge de droit international 86 at 105–106.

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be cautiously construed. The ‘free and fair’ requirement embodies procedural fairness and equality, which can be well secured by obtaining full cooperation of all the parties concerned. Consent of the parties concerned would not be required as a legal basis for monitoring elections,152 but would be essential for effective and impartial implementation of election monitoring. The establishment of the UN Transition Assistance Group (UNTAG) for Namibia, for example, was conditioned, by virtue of its effectiveness and impartiality,153 upon the full cooperation of all the parties concerned, in addition to full and continuous support of the Security Council within a comprehensive UN operation. The ways in which the UN is involved in elections have been multiple, and include, in descending order of degree of commitment: – Supervision of all steps towards elections; – Organisation and conduct of elections as national electoral authorities; – Verification of an electoral process organised and administered by national authorities; – Coordination and support for the work of electoral observers supplied by other international organisations or by the country itself; – Provision of technical assistance in electoral matters; and – Observation and report of elections.154 The heavier the UN commitment is, the more impartial it is likely to be. The first three categories would require formal approval from the UN political organs, whereas the last three can be initiated only by request of the government in power.155 The degree of UN commitment seemingly corresponds to the degree of intensity of internal armed conflicts. When there is a potential risk of disturbance before, during, or after an election, the timely and robust deployment of peacekeeping forces is essential to gain confidence among voters.156 Elections in serious internal armed conflicts would thus require the UN political organs, especially the Security Council, to adopt one of the first three options of monitoring, as well as an 152

153

154 155 156

See, Haegendoren, above n. 151 at 106; Stoelting above n. 144 at 375–377 (citing the 1952 Korean elections as ‘the only instance in which the United Nations has observed an election without the host country’s official consent’). Report of the Secretary-General Submitted Pursuant to Paragraph 2 of Security Council Resolution 431 (1978) concerning the Situation in Namibia, at para. 12, UN Doc S/12827 (29 August 1978). Having been concerned with the delay in reaching agreement among the parties, the UN Secretary-General recommended that the transitional period begin upon the approval of the Security Council: id. at para. 17. This indicates that the condition of the full cooperation of all the parties concerned was not regarded as a legal basis for the operation. See, Satterthwaite, above n. 144 at 741–751; Hodgson, above n. 144 at 153–155. Satterthwaite, above n. 144 at 756–758. See Ch. 2, Section 3-D for the lessons drawn from the implementation of the Saar plebiscite.

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appropriate measure to preserve a peaceful environment conducive to effective election monitoring. Elections may well be the most advanced method of democratic governance, and election monitoring under UN auspices would be the best way to ensure the freedom and fairness of the elections in an impartial manner. However, free and fair elections and impartial election monitoring cannot be a panacea, and would need to acknowledge their own limitations on use. At first, it has to be borne in mind that the election itself might not always be a fair and legitimate way to settle the dispute, depending on the political, cultural and historical context.157 Different options, including collective recognition of armed opposition groups and humanitarian assistance, should instead be sought in cases where elections and monitoring thereof are conceivably not desirable. Secondly, even in cases where an internationally monitored election is desirable, it cannot be held without detailed procedures being settled by compromised agreements among the parties.158 Two different approaches to the Kashmir question on the part of India and Pakistan, which related to the different requirements for a plebiscite to be held, rendered impossible the settlement through a plebiscite.159 Thirdly, even in cases where a fair and legitimate solution is plausible through elections, attention should be drawn to the fact that a ‘free and fair’ declaration by the UN does not necessarily reflect fully the objective assessment of the elections. For example, it has been argued that the April 1994 national elections held in South Africa were rendered as a ‘free and fair’ election, despite pervasive flaws and systematic irregularities having been reported.160 Although election monitoring is highly useful to secure impartiality

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See, Tanja Hohe, ‘Totem Polls: Indigenous Concepts and “Free and Fair” Elections in East Timor’ (2002) 9(4) International Peacekeeping 69; Valeria M. Gonzalez Posse, ‘Postconflict Peacebuilding and Making Efforts Count: Reconstruction, Elections, and Beyond’ in Harvey J. Langholtz (ed.), The Psychology of Peacekeeping (Westport: Praeger, 1998) 195 at 200. Elections should not be held until more mature and responsible political parties emerge and agree on the detailed procedures for the elections to be held: Benjamin Reilly, ‘Post-Conflict Elections: Constraints and Dangers’ (2002) 9(2) International Peacekeeping 118 at 119–124. India’s acceptance of the plebiscite was conditional upon the invaders having been driven out and peace and order having been restored first. On the other hand, Pakistan’s acceptance was dependent upon the creation of the atmosphere suitable for a free plebiscite first, involving the previous withdrawal of all outsiders, including members of the Indian armed forces and the establishment of an impartial, independent administration in Kashmir. In the aftermath, a plebiscite administrator was appointed, but had not been announced until the truce agreement was signed pursuant to the Commission resolution of 13 August 1948, though the plebiscite administrator has never arrived on the subcontinent: see generally, Pauline Dawson, The Peacekeepers of Kashmir: The UN Military Observer Group in India and Pakistan (London: Hurst & Company, 1994) at 27–29; Alastair Lamb, Crisis in Kashmir 1947 to 1966 (London: Routledge & Kegan Paul, 1966) at 56–57. See, Woods, above n. 86 at 509–520.

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of UN presence, great care must be taken of the conditions upon which elections are to be held and the management in the course of election monitoring.

4. Peacekeeping and Article 2(7) of the UN Charter Unlike enforcement measures under Chapter VII of the UN Charter, peacekeeping measures are necessarily subject to the restriction of non-intervention into the domestic jurisdiction of states as imposed by Article 2(7) of the Charter. That being said, the principle of non-intervention does not always prevent the Security Council from adopting peacekeeping measures even in cases of internal armed conflict. To that end, it is necessary to set the legal criteria by reference to which the Security Council is legally entitled to adopt a peacekeeping measure in such a way as not to constitute intervention into the domestic jurisdiction of a state. The criteria will vary according to the degree to which armed opposition groups erode the scope of domestic jurisdiction, as well as to the types of peacekeeping measures to be undertaken. If the activities of an armed opposition group are limited to sporadic violence within discernible areas, the most that can be allowed may well be a mere call for a cease-fire or sending a peace observation mission. The deployment of peacekeeping forces and the undertaking of provisional territorial administration in such a situation would conceivably amount to intervention into the domestic jurisdiction of the state. Conversely, in cases where a state has been dissolved into several factional groups, even the deployment of peacekeeping forces and the undertaking of provisional territorial administration may not constitute intervention into the domestic jurisdiction of the state. One may wonder how it can be assured that the Security Council would refrain from adopting a peacekeeping measure at a premature stage where rebellious activities are not so intense or organised that Common Article 3 of the Geneva Conventions or Additional Protocol II thereto can be applicable. Since the criteria for the application of those rules are subject to controversy, much would have to be determined with prudence at the discretion of the Security Council in disputable cases. This issue concerns the question as to the ultimate authority to interpret the application or a breach of Article 2(7) of the Charter, part of the larger subject concerning the control of the Security Council in its direction of peacekeeping measures, which will be explored in Chapter 8. However, it is important to note here that a concern should be equally directed to the case, as in fact happened in the Former Yugoslavia,161 where a confusing debate about the meaning of Article 2(7) seriously delayed and weakened the UN’s preventive response to a crisis. Impartiality is the imperative requirement for peacekeeping measures under Article 40

161

Eknes, above n. 135 at 114.

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to ensure that the measures will not amount to an intervention in favour of one side or another. Even in cases where the conformity of a peacekeeping measure with Article 2(7) is disputable, the imperative requirement of impartiality under Article 40 together with the provisional nature and the limited scope and degree of peacekeeping supports bold action rather than cautious inaction.

Chapter 6 Enforcement of Peacekeeping Measures The Security Council shall duly take account of failure to comply with such provisional measures. The last sentence of Article 40 of the UN Charter

1. Enforceability of Peacekeeping Measures One of the significant implications of basing peacekeeping measures on Article 40 of the UN Charter is the provisional nature of peacekeeping whose purpose is confined only to the prevention of conflicts from further deterioration and to the creation of an atmosphere conducive to a peaceful settlement of the conflicts. Peacekeeping measures are not intended to impose a settlement upon the parties to a conflict, nor are they, at least in the first place, aimed at the enforcement of Security Council decisions. The Security Council is nonetheless required under Article 40 of the Charter to take account of the failure of the parties involved in a conflict to comply with the measures that it has taken. This sentence can be read not only as indicating the possibility that an enforcement action under Articles 41 and 42 of the Charter will be taken against a non-compliant party,1 but also as calling upon the Security Council to make necessary arrangements to verify and induce compliance in directing provisional measures.2 In view of the fact that the parties to a conflict have often failed to heed peacekeeping measures, the Security Council must take account of that possibility and incorporate contingency plans providing guiding rules and appropriate procedures in implementing peacekeeping measures.3 UN forces to be deployed for the purpose of peacekeeping, from

1

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3

See, Jochen Frowein & Nico Krisch, ‘Article 40’ in Bruno Simma (ed.), The Charter of the United Nations: A Commentary (2nd ed., Oxford: Oxford University Press, 2002) 729 at 733; Hans Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (London: Stevens & Sons, 1951) at 740. See, Leland M. Goodrich & Anne Patricia Simons, The United Nations and the Maintenance of International Peace and Security (Washington: The Brookings Institutions, 1955) at 387–391. See, John MacKinlay, ‘Military Responses to Complex Emergencies’ in Thomas G. Weiss (ed.), The United Nations and Civil Wars (Boulder: Lynne Rienner Publishers, 1995) 51 at 51–57; Oscar

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this point of view, must be prepared to protect themselves and the mandates given to them. In addressing this issue, the former UN Secretary-General, Boutros-Ghali, proposed that the Security Council consider ‘the utilization of peace-enforcement units’ to strengthen the effective implementation of cease-fire orders.4 While the concept of ‘peace enforcement’ was innovative, the degree to which the use of armed force is required has posed a question as to how it is distinguished from enforcement measures under Article 42 of the Charter. In other words, to what extent are UN military personnel allowed to use armed force to secure an effective implementation of a peacekeeping measure? Attempts have been made to clarify the distinction on the conceptual level, but, as will be shown in the next section, discussions or policy formulations on such an abstract level do not contribute much to the clarification. The question will therefore be addressed in the following sections by lowering the level of analysis to the strategic level in relation to the scope of the right of self-defence that has been recognised as one of the basic principles to be applied to UN peacekeeping operations. It will then be lowered further down to the tactical level in terms of the regulation of the use of an armed force in the field. A study at these lower levels will reveal that what is envisaged by peace enforcement is nothing new and has been part of peacekeeping operations. The strategic and tactical points of view will provide a sound basis for ascertaining the limit to which a peacekeeping measure may allow for the use of armed force without change in the nature of the operation. It should be noted, before proceeding with the examination, that this question might not be so serious in the case of consent-based peacekeeping operations. However, as shown in Chapter 4, the consent and cooperation of armed opposition groups in cases of internal armed conflict are necessarily elusive and in no way form a legal basis for peacekeeping measures.5 The question becomes serious when the Security Council decides on its own initiative to direct a peacekeeping measure without securing the consent of the parties to a conflict in a strict legal sense, even though it may seek cooperation of the parties for the sake of an effective implementation of the measure. The question is, in addition, primarily concerned with the operation of UN forces deployed on a large-scale.6 Although effective

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Schachter, ‘Authorized Uses of Force by the United Nations and Regional Organizations’ in Lori Fisler Damrosch & David J. Scheffer (eds), Law and Force in the New International Order (Boulder: Westview Press, 1991) 65 at 84. An Agenda for Peace: Report of the Secretary-General pursuant to the Statement Adopted by the Summit Meeting of the Security Council on 31 January 1992, at para. 44, UN Doc A/47/277-S/24111 (17 June 1992) (hereinafter An Agenda for Peace). See, Ch. 4, Section 3-B-iii. UN forces are defined here as multi-national contingents provided by troop-contributing states to serve in a particular mission mandated by a competent UN political organ to be operated under UN command and control.

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implementation of peacekeeping measures can be more or less secured merely by the presence of UN military personnel belonging either to a peace observation mission or to a larger UN force, the question here concerns whether and to what extent potential use of armed force can be envisaged to enhance the effectiveness of peacekeeping measures. When naval forces are despatched to secure effectiveness of an arms embargo, the same question will arise from the contingency actions involving the use of armed force.

2. Conceptual Level Analysis: Peace Enforcement A. Doctrinal Basis of Peace Enforcement The concept of peace enforcement, in so far as it is envisaged in An Agenda for Peace, is different from enforcement measures under Chapter VII (specifically under Article 42), in that the former still remains within the purview of provisional measures under Article 40 of the Charter.7 The concept was, at least in the beginning, regarded as innovative, construing more positively the role that UN forces can play by using armed force, whilst maintaining the principle of impartiality.8 The innovative attempt suffered a setback, however, for the concept was prematurely brought to reality by the force of events that unfolded in Bosnia and Somalia, in which the Security Council failed to prevent the conflicts from further deterioration.9 The failure of UN operations in both situations might well have been attributed not to conceptual flaws, but both to the lack of political will to provide sufficient strength of troops,10 as well as to enforcement missions carried out by individual states through regional organisations parallel to the peacekeeping operations under UN command and control.11 The failure was nonetheless significant enough to abort the concept of peace enforcement.12 It was Boutros-Ghali himself who stepped back to the traditional dichotomy between peacekeeping and enforcement, stating in his Supplement to An Agenda for Peace that, ‘[t]o blur the distinction between the two can undermine the viability of the peace-keeping operation and endanger its personnel’,13 conceivably reflecting on the operational failure in Bosnia and Somalia. 7

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10 11 12

13

Boutros-Ghali indeed considered such peace enforcement units ‘to be warranted as a provisional measure under Article 40 of the Charter’: An Agenda for Peace, above n. 4 at para. 44. The concept of impartiality is explained at length in Ch. 5, Section 3-C. James S Sutterlin, The United Nations and the Maintenance of International Security: A Challenge to be Met (2nd ed., Westport: Praeger, 2003) at 61–63. See, Ch. 1, Section 2-B. See, Rosalyn Higgins, ‘Second-Generation Peacekeeping’ (1995) 89 Proc ASIL 275 at 277–278. For details of the subsequent recession of the concept, see, Christine Gray, International Law and the Use of Force (2nd ed., Oxford: Oxford University Press, 2004) at 227. Supplement to An Agenda for Peace, at para. 35, UN Doc A/50/60-S/1995/1 (3 January 1995).

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There were also other doctrinal advocates who sought an alternative middle option. The British Army adopted a post-Cold War peacekeeping doctrine, which was basically the work of Lieutenant-Colonel Charles Dobbie. The new doctrine, known as ‘wider peacekeeping’, exhibited an innovative feature by distinguishing between two types of consent: consent for an operation at a strategic level; and consent within an operation at a tactical level.14 Based on this distinction, it was suggested that a use of force that breached the consent at a tactical level would still keep the impartiality of the force and the stability of the situation, in so far as the consent at a strategic level was preserved intact. Innovative as it may seem, the idea was in no way new to, nor different from, what UN peacekeepers had done in the Congo15 and Cyprus.16 The publication of the doctrine might have been no less than a political implication as a means to persuade, convince and impress other agencies that what the British Army was doing in Bosnia in the early 1990s was right.17 France, on the other hand, envisaged more active UN peace operations to be deployed for the purpose of restoring peace or moderating a conflict before the conflict had ended.18 The idea of ‘peace restoration’, as it was termed, is remarkable in that it departed from the principle of consent, relying instead on UN authority, though it did not in any way underestimate the important role that consent could play. Peace-restoration missions, however, cannot avoid the risk of escalation, ‘which, if not overcome, can change the nature of an operation, making it a coercive military action (peace enforcement)’.19 Although peace-restoration missions were distinguished from peace enforcement in the French proposal, it seems that the two ideas in fact shared common ground: the operation must be prepared to use force to impose a cease-fire. Much wider concepts such as peace support operations and peace operations have recently been more extensively used to embrace various types of operations that UN forces can undertake, including peacekeeping and peace enforcement.20

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15 16 17

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19 20

For details of the doctrine, see, James Gow & Christopher Dandeker, ‘The Legitimation of Strategic Peacekeeping: Military Culture, the Defining Moment’ in D. S. Gordon & F. H. Toase (eds), Aspects of Peacekeeping (London: Frank Cass Publishers, 2001) 181 at 182–186; Charles Dobbie, ‘A Concept for Post-Cold War Peacekeeping’ (1994) 36(3) Survival 121. See, Ch. 3, Section 4-B-i. See, Ch. 3, Section 4-B-ii. Rod Thornton, ‘The Role of Peace Support Operations Doctrine in the British Army’ (2000) 7(2) International Peacekeeping 41. Supplement to An Agenda for Peace: Aide-mémoire by France, at 2–3, UN Doc A/50/869-S/1996/71 (26 February 1996). Id. at 3. See, e.g., Marten Zwanenburg, Accountability of Peace Support Operations (Leiden: Martinus Nijhoff Publishers, 2005) at 30–34; UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford: Oxford University Press, 2004) at 375–379; Philip Wilkinson, ‘Sharpening the

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The wider concepts also envisage a more positive role and the utility of military force, in the course of UN operations undertaken on the initiative of the Security Council to achieve stable conditions conducive to a self-sustaining peace, whilst maintaining the principle of impartiality. Those wider concepts, while providing a new doctrinal basis for a more active use of armed force as distinct from enforcement measures, will necessarily be subjected to uncertain status with a possible shift of policy, unless a clear theoretical basis for it is established. B. Theoretical Basis for Peace Enforcement An upsurge of interest in the concept of peace enforcement entailed extensive academic studies purporting to provide a theoretical basis for the doctrine.21 The setback of doctrinal development following the traumatic events in Bosnia and Somalia may have helped restrict the opportunity to seek a theoretical basis. Apart from the lessons learned in the UN operations in Bosnia and Somalia, the ambiguity of the character of peace enforcement has militated against the search for a middleground option, leaving it to be assimilated into (or confused with) enforcement measure under Article 42.22 Opposition has also been voiced to a middle-ground option because of operational difficulties arising from the implementation. One of the major difficulties that has often been pointed out is the possibility of ‘mission creep’, in which an active use of military force may undermine perceptions of impartiality of UN military personnel, increasing the risk that UN personnel are placed in vulnerable positions and become one of the parties involved in the conflict.23

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22 23

Weapons of Peace: Peace Support Operations and Complex Emergencies’ (2000) 7(1) International Peacekeeping 63; Christopher Dandeker & James Gow, ‘The Future of Peace Support Operations: Strategic Peacekeeping and Success’ (1997) 23 Armed Forces and Society 327. See generally, Jane Boulden, Peace Enforcement: The United Nations Experience in Congo, Somalia, and Bosnia (Westport: Praeger, 2001); Mats Berdal, ‘Lessons Not Learned: The Use of Force in “Peace Operations” in the 1990s’ in Adekeye Adebajo & Chandra Lekha Sriram (eds), Managing Armed Conflicts in the 21st Century (London: Frank Cass Publishers, 2001) 55; Donald C. F. Daniel, ‘Is There a Middle Option in Peace Support Operations? Implications for Crisis Containment and Disarmament’ in United Nations Institute for Disarmament Research (ed.), Managing Arms in Peace Processes: The Issues (New York: United Nations Publications, 1996) 57; Shashi Tharoor, ‘The Changing Face of Peace-Keeping and Peace-Enforcement’ (1995) 19 Ford ILJ 408; Giorgio Gaja, ‘Use of Force Made or Authorised by the United Nations’ in Christian Tomuschat (ed.), The United Nations at Age Fifty: A Legal Perspective (The Hague: Kluwer Law International, 1995) 39 at 51–53; Gareth Evans, Cooperating for Peace: The Global Agenda for the 1990s and Beyond (Sydney: Allen & Unwin, 1993) at 143–165. See, e.g., Gaja, above n. 21 at 53. See, Adam Roberts, ‘The Crisis in UN Peacekeeping’ (1994) 36(3) Survival 93 at 102–103; Berdal, above n. 21 at 67–70.

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Notwithstanding the conceptual ambiguities and operational difficulties, there are still those who recognise the potential use of armed force to a limited extent with a view to enforcing a provisional measure within the ambit of Article 40 of the Charter.24 No one can deny that an active use of armed force may result in destruction of the whole peacekeeping mission, dragging the UN force into the armed conflict, causing it to exceed the mandates and expectations given to it. It must be acknowledged, however, that the use of armed force in the first place may well be a legitimate and necessary exercise of the authorised power. The first shot of fire may even be compelling for humanitarian reasons or for the purpose of keeping a cease-fire effective. Therefore the theoretical basis for peace enforcement will not be consolidated, unless strategic and tactical conditions and regulations for the use of armed force to sustain an impartial and effective operation in the field are fully appreciated in authorising and executing missions.25 The issue will thus come down to the operational level of peacekeeping operations, which is further divided into two sub-levels: a strategic level and a tactical level.

3. Strategic Level Analysis: The Right of Self-Defence A. Scope of Self-Defence The strategic level of peacekeeping operations consists of the mandates given to UN forces by Security Council resolutions and the operational directives often prepared by the Secretary-General for approval by the Security Council.26 The Brahimi Report recommends that the Security Council specify an operation’s authority to use armed force in its mandates in order to pose a credible deterrent threat against ‘would-be spoilers’.27 The authorisation of limited use of armed force

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26

27

See, e.g., Nigel D. White, ‘The UN Charter and Peacekeeping Forces: Constitutional Issues’ (1996) 3(4) International Peacekeeping at 52–53; Rosalyn Higgins, ‘International Law and the Avoidance, Containment and Resolution of Disputes’ (1991-V) 230 RdC 9 at 329; compare, Hilaire McCoubrey & Nigel D. White, The Blue Helmets: Legal Regulation of United Nations Military Operations (Aldershot: Dartmouth, 1996) at 51. See, Dandeker & Gow, above n. 20 at 334–335; John Gerard Ruggie, ‘The UN and the Collective Use of Force: Whither or Whether’ (1996) 3(4) International Peacekeeping 1 at 13–14. See, Holly MacDougall, ‘Legal Aspects of Command of United Nations Operations’ in Yves Le Bouthillier, Donald M. McRae & Donat Pharand (eds), Selected Papers in International Law: Contribution of the Canadian Council on International Law (The Hague: Kluwer Law International, 1999) 403 at 405; Indar Rikhye, ‘The Control of UN Peace-Keeping at UN Headquarters’ in Evan Luard (ed.), The International Regulation of Civil Wars (London: Thames & Hudson, 1972) 195 at 203; see also, Ruggie, above n. 25 at 14–16. Report of the Panel on United Nations Peace Operation, at para. 51, UN Doc A/55/305-S/2000/809 (21 August 2000) (hereinafter Brahimi Report).

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has rarely been made explicit in the enabling resolution,28 but is often implied in the mandates given to UN forces by reference to the right of self-defence. The right of self-defence, despite its inherently restrictive nature, might well have been insufficient to clarify the extent to which the use of armed force can be legitimate under, and consistent with, a given mandate. It has indeed, as is examined below, been expansively interpreted so as to enable UN forces, at least theoretically, to act to ensure an effective implementation of their mandate. Since the first operation of a UN force in Suez (UNEF), the restriction of the use of armed force and the recognition of the right of self-defence has been stipulated as one of the operational principles. The Summary Study of the Experience Derived from the Establishment and Operation of the Force defined the legitimate scope of the use of armed force as follows: [UN personnel] engaged in the operation may never taken [sic] the initiative in the use of armed force, but are entitled to respond with force to an attack with arms, including attempts to use force to make them withdraw from positions which they occupy under orders from the Commander, acting under the authority of the [UN General] Assembly and within the scope of its resolutions. The basic element involved is clearly the prohibition against any initiative in the use of armed force.29

The limitation upon the use of armed force was thus of a mandate-oriented character, clearly going well beyond the right of self-defence in a strict sense. Despite the different nature of operations, a similar formula for the use of armed force in self-defence was then followed by the UN Operation in the Congo (ONUC),30 and the UN Force in Cyprus (UNFICYP).31 The distinction between the cases is that UNEF was interposed between the states that agreed upon a cease-fire, whereas ONUC and UNFICYP were interposed between potential warring factions to prevent the aggravation of the conflicts. For this reason, while the right of self-defence given to UNEF personnel could have been restrictively interpreted and applied as an interposition force, to apply the same criteria to a completely different situation such as in the Congo and Cyprus appears unwarranted. The modus operandi as developed for the UNEF, therefore, would not have been applied

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There have been a few exceptions: see, e.g., SC Res 450 (14 June 1979) (UNIFIL); SC Res 836 (4 June 1993) (UNPROFOR). Summary Study of the Experience Derived from the Establishment and Operation of the Force, at para. 179, UN Doc A/3943 (9 October 1958) (hereinafter Summary Study). See, Memorandum on Implementation of the Security Council Resolution of 9 August 1961, Operative Paragraph 4, UN Doc S/4417/Add.6 (12 August 1960). See, Note by Secretary-General concerning Certain Aspects of the Function and Operation of the UN Peacekeeping Force in Cyprus, and Aide-mémoire of 10 April 1964, at para. 16, UN Doc S/5653 (11 April 1964) (hereinafter aide-mémoire for UNFICYP), reproduced in Rosalyn Higgins, United Nations Peacekeeping: Documents and Commentary, IV Europe 1946–1979 (Oxford: Oxford University Press, 1981) at 150–152.

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automatically to ONUC or UNFICYP operation.32 A different mandate calls for a different interpretation of the right of self-defence, as does a different situation. In the case of ONUC, for example, which was deployed to ‘provide such military assistance as may be necessary’,33 the right to freedom of movement throughout the entire territory of the Congo was an essential prerequisite for a successful implementation of the tasks entrusted with ONUC.34 The right to freedom of movement may have arguably been derived from a basic understanding of the principle of good faith,35 or from a legally binding decision of the Security Council within the meaning of Article 25 of the Charter.36 It was confirmed in the subsequent resolution that the freedom of movement, without exception to the province of Katanga, was necessary for the full implementation of the mandate.37 Faced with strong opposition by Moise Tshombé to the entry of ONUC into Katanga, however, the Secretary-General took the view that ‘the aims of the resolutions cannot be achieved by the use of the United Nations Force, as its mandate has been defined’.38 Bowett asserted that an error to deny the legal authority of ONUC to enter into Katanga with the risk of using armed force ‘arose from a failure to appreciate the essential link between the freedom of movement and the right of self-defence’.39 The linkage between the right to freedom of movement and the right of self-defence may necessarily widen the scope of the right of self-defence.40 Although the right

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37 38

39 40

See, R. Simmonds, Legal Problems Arising from the United Nations Military Operations in the Congo (The Hague: Martinus Nijhoff, 1968) at 128–129; Linda B. Miller, World Order and Local Disorder: The United Nations and Internal Conflicts (Princeton: Princeton University Press, 1967) at 74–75. SC Res 143 (14 July 1960). For the account of the subsequent change of circumstances and corresponding expansion of the mandates, see Ch. 3, Section 4–B-i. See, Simmonds, above n. 32 at 130–133; D. W. Bowett, United Nations Forces: A Legal Study of United Nations Practice (London: Stevens & Sons, 1964) at 434–446; G. I. A. D. Draper, ‘The Legal Limitations upon the Employment of Weapons by the United Nations Force in the Congo’ (1963) 12 ICLQ 387 at 400–404. See, First Report of the Secretary-General on the Implementation of Security Council Resolution S/4387 of 14 July 1960, at paras. 8–9, UN Doc S/4389 (18 July 1960). See, Simmonds, above n. 32 at 131. Although Simmonds makes this argument on the understanding that a decision of the Security Council is taken under Chapter VII of the Charter, the same argument will hold true with a decision under Article 25 of the Charter. For the author’s argument about the distinction between decisions within the meaning of Article 25 and Chapter VII powers under the Charter, see, Ch. 4, Section 2. See, SC Res 146 (9 August 1960). Second Report of the Secretary-General on the Implementation of Security Council Resolutions S/4387 of 14 July 1960 and S/4405 of 22 July 1960, at para. 10, UN Doc S/4417 (6 August 1960). It might well have been, however, due to Hammarkjöld’s diplomatic technique to obtain clearer operational directives and/or more resources to deal with Katanga’s opposition. Bowett, above n. 34 at 204. See, Schachter, above n. 3 at 85.

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to freedom of movement has been customarily included in status-of-forces agreements concluded between the UN and a host state,41 it may well be inherent in peacekeeping operations inasmuch as they are based on the principle of good faith or on a legally binding decision of the Security Council. Therefore, a wider scope of the right of self-defence will potentially be applied to peacekeeping operations to the extent that the right to freedom of movement is necessary for the discharge of the mandate. Subsequent peacekeeping operations have in fact followed the expanded definition and scope of the right of self-defence.42 The principle has generally been consolidated in the following formula: The Force shall not use force except in self-defence. Self-Defence includes resistance to attempts by forceful means to prevent the Force from discharging its duties under the mandate of the Security Council.43

It is evident that the principle envisaged in this formula allows for a wider use of armed force, being stretched far beyond a restrictive meaning of the right of selfdefence per se. The use of armed force to resist forcible attempts to prevent UN forces from discharging their duties under a mandate has been nonetheless termed as ‘self-defence’. From this expanded use of self-defence, crucial contradiction and confusion have often stemmed about the extent to which, and the way in which, UN military personnel are allowed to resort to armed force in carrying out their mandate. While it is one thing to defend themselves, it is another to react against attempts by forceful means to prevent them from discharging their duties. Although both have been bound up with the term ‘the right of self-defence’, a strict interpretation of the right may well have excluded the latter from its scope. The legal status of the use of armed force beyond the right of personal selfdefence thus remains far from clear. If the scope of the right of self-defence is strictly interpreted, a question arises whether the use of armed force exercised in accordance with a mandate, but beyond the right of personal self-defence in a strict sense, would amount to an enforcement measure within the meaning of Article 42 of the Charter, requiring the Security Council to renew and upgrade the mandate. Ambiguity as to the legal status will unnecessarily restrain military 41

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See, e.g., Report of the Secretary-General: Model Status-of-Forces Agreement for Peace-Keeping Operations, UN Doc A/45/594 (9 October 1990). See generally, Trevor Findlay, The Use of Force in UN Peace Operations (Oxford: Oxford University Press, 2002) at 87–123. See, e.g., Report of the Secretary-General on the Implementation of Security Council Resolution 340 (1973), UN Doc S/11052/Rev.1 (27 October 1973); Report of the Secretary-General on the Implementation of Security Council resolution 425 (1978), reproduced in Emmanuel A. Erskine, Mission with UNIFIL: An African Solder’s Reflections (New York: St Martin’s Press, 1989) at 198–201; Report of the Secretary-General Submitted Pursuant to Paragraph 2 of Security Council Resolution 431 (1978) Concerning the Situation in Namibia, at para. 20, UN Doc S/12827 (29 August 1978).

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options that UN forces may take and thus lessen the effectiveness of their presence and activities. The clarification of the legal status and the legitimate scope of the right of self-defence for UN military personnel will depend on which reasoning is relied upon for the authorisation of recourse to an armed force within the context of the peacekeeping missions of UN forces. B. Rationale behind the Right of Self-Defence of UN Personnel i. National Self-Defence and Unit Self-Defence The restrictive interpretation of the right of self-defence may easily find its basis in the application of the municipal law of each contingent. The right of self-defence in this sense qualifies as a ‘general principle of law recognised by civilised nations’.44 A much wider interpretation of the right of self-defence applicable particularly to UN military personnel should be based on different reasoning and considerations. One may deduce it from the right of national self-defence of each participating sovereign state. A distinction must be borne in mind, however, between the right of national self-defence as claimed by sovereign states and the right of unit selfdefence to be exercised by each military unit, which can be connected to, but exists independently of, the right of national self-defence. The right of unit self-defence, in so far as it is detached from national selfdefence, cannot simply be derived from sovereign prerogatives. While shots fired at a warship will not constitute an armed attack against the flag state within the meaning of Article 51 of the Charter, it may well justify a counter-attack in selfdefence by troops under attack or present nearby.45 The distinction has often failed to be recognised and has been kept behind the shadow of the predominant theory of national self-defence. It has been contended that, in the Nicaragua case,46 the ICJ failed to appreciate the tactical concept of personal self-defence as well as unit self-defence, as distinct from the right of national self-defence, to justify the use of armed force.47 The ICJ judgment has set a high watermark for the use of an armed force to be qualified as an ‘armed attack’ significant enough to justify the right of self-defence, individual or collective, within the meaning of Article

44 45

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1945 Statute of the International Court of Justice, annexed to the UN Charter, Article 38(1)(c). Dinstein justifies this type of action as ‘on-the-spot reaction’: Yoram Dinstein, War, Aggression and Self-Defence (3rd ed., Cambridge: Cambridge University Press, 2002) at 192–194. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits) [1986] ICJ Reports 14 (hereinafter Nicaragua case) especially at 101 para. 191. See, Dale Stephens, ‘Rules of Engagement and the Concept of Unit Self-Defence’ (1998) 45 Naval Law Review 126 at 138–140; Rob McLaughlin, Authority and Naval Peacekeeping: Peace Operations in the Territorial Sea (PhD Thesis, Cambridge University, 2005) at 270.

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51 of the Charter.48 The Court held that, ‘[w]hile an armed attack would give rise to an entitlement to collective self-defence, a use of force of a lesser degree of gravity cannot . . . produce any entitlement to take collective counter-measures involving the use of force’.49 Therefore, inasmuch as the use of armed force has been excluded from the permissible types of counter-measure,50 no use of armed force in whatever form and degree can be justified on the basis of the right of unit self-defence against the use of an armed force below the level of an armed attack on a significant scale. The ICJ maintained the same stance in its recent adjudication in the Oil Platforms case,51 observing that only the gravest forms of the use of force constitute an armed attack so as to justify the counter-use of armed force in the exercise of the right of national self-defence.52 It is noteworthy, in comparison, that Judge Simma suggested in his separate opinion: a distinction between (full-scale) self-defence within the meaning of Article 51 against an “armed attack” within the meaning of the same Charter provision on the one hand and, on the other, the case of hostile action, for instance against individual ships, below the level of Article 51, justifying proportionate defensive measures on the part of the victim, equally short of the quality and quantity of action in self-defence expressly reserved in the United Nations Charter.53

Although the armed attack by the United States against the Iranian oil platforms were not justified in any way for evidential reasons,54 Judge Simma’s opinion should throw light on future deliberations in a similar situation. It is crucial to sustain the distinction between the right of national self-defence and unit self-defence in cases of military deployment under UN authority, for the UN is not entitled to the right of self-defence under Article 51 of the Charter as a sovereign prerogative. The right of self-defence applicable to UN military

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Article 51 provides, in part, that: ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security’. Nicaragua case, above n. 46 at 127 para. 249. See, commentary to the International Law Commission’s Draft Articles on Responsibility of States for International Wrongful Acts, Article 50(1)(a), reprinted in James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge: Cambridge University Press, 2002) at 288. Oil Platforms (Islamic Republic of Iran v. United States of America) (Merits) [2003] ICJ Reports 161 (hereinafter Oil Platforms case). Id. at para. 51. Id., Judge Simma separate opinion at para. 12. The ICJ was not convinced of Iran’s responsibility for the alleged attacks against US-flagged ship the Sea Isle City and US-owned ship USS Samuel B. Roberts due to the inconclusiveness of evidence: see, id. at paras. 46–72.

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personnel is thus akin to the right of unit self-defence undertaken in the context of ‘on-the-spot reaction’.55 The use of armed force in unit self-defence is a legal right sui generis which possesses its own authority stemming from operational necessity.56 It is also arguable that the UN’s consistent practice of adopting a wide interpretation of the right of self-defence as legitimate for peacekeeping operations has crystallised the right of unit self-defence in respect of UN military personnel under customary international law. While the right has been legitimated by reason of operational necessity, however, it remains uncertain how far it can extend in justifying the use of armed force by UN military personnel without shifting the operational nature to an enforcement measure. The operational necessity in the course of peacekeeping operations will arise from a threat to the safety of UN personnel in the field and a breach by the parties of Security Council decisions. What must be cautiously examined is the extent to which operational necessity should justify the use of armed force within the framework of the right of self-defence. The unlimited extension of the right of self-defence for the sake of operational necessity will inevitably blur the distinction between a peacekeeping measure and an enforcement measure. ii. Safety of UN Personnel The right of self-defence exercisable by UN military personnel may also be derived from their protected status. The protected status of UN personnel has been, whilst contentious under Geneva Convention IV,57 implicitly recognised in the Additional Protocol I to the Geneva Conventions,58 and in the Convention on the Use of Certain

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Dinstein, above n. 45 at 267. See, Stephens, above n. 47 at 137. See, 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, 75 UNTS 287, Article 4 (hereinafter Geneva Convention IV ). Recalling the basic principle stated in the Commentary to the Geneva Convention IV that every person in the territory of a belligerent state must have some status under international law, Sharp argues that UN forces, as the armed forces not a party to the conflict operating in areas of armed conflict, are protected persons and therefore not to be lawful targets: Walter Gary Sharp, Sr, ‘Protecting the Avatars of International Peace and Security’ (1996) 7 Duke JCIL 93 at 122–123; see also, Jean S. Pictet, Commentary IV: Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: International Committee of the Rec Cross, 1958) at 51. It is contentious, however, insofar as the states of each contingent have normal diplomatic relations with the state involved in a conflict, in view of the exception to the protected status in cases where ‘the State of which they are nationals has normal diplomatic representation in the State in whose hands they are’ as stipulated in Article 4 of the Geneva Convention IV: see, Christopher Greenwood, ‘Protection of Peacekeepers: The Legal Regime’ (1996) 7 Duke JCIL 185 at 193 fn. 40. See, 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, Articles 37–38 (hereinafter Additional Protocol I ).

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Conventional Weapons.59 It is the Convention on the Safety of United Nations and Associated Personnel that for the first time clarified the legal status of UN personnel in great detail,60 explicitly stipulating that ‘United Nations and associated personnel, their equipment and premises shall not be made the object of attack or of any action that prevents them from discharging their mandate’.61 The Security Council has also demanded parties involved in a conflict (governments or armed opposition groups) take all measures to ensure the safety of UN personnel.62 Those developments of a legal regime for the protection of UN personnel may well justify the use of armed force by UN military personnel in cases where their safety is threatened, even if the threat is not imminent or direct enough to invoke the right of personal self-defence. It appears, however, that ever growing concerns about the safety of personnel who participate in peacekeeping operations have moved in the direction of blurring the distinction between the right of self-defence and enforcement measures under Chapter VII. Chapter VII powers have in fact recently been invoked to secure the safety of UN personnel, rather than to enforce mandates against the parties to a conflict.63 The view was expressed, for instance, in relation to the UN Protection Force deployed in the Former Yugoslavia (UNPROFOR),64 and to the UN Interim

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See, 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, 1342 UNTS 137, Article 9; see also, Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (1980 Protocol II), Article 8; Amended Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (1996 Amended Protocol II), Article 12, both reproduced in Adam Roberts & Richard Guelff, Documents on the Laws of War (3rd ed., Oxford: Oxford University Press, 2000) at 528, 536 respectively. 1994 Convention on the Safety of United Nations and Associated Personnel, 2051 UNTS 363 (hereinafter UN Safety Convention); see generally, Mahnoush Arsanjani, ‘Defending the Blue Helmets: Protection of United Nations Personnel’ in Luigi Condorelli, Anne-Marie La Rosa & Sylvie Scherrer (eds), The United Nations and International Humanitarian Law (Paris: Pedone, 1996) 115; Evan T. Bloom, ‘Protecting Peacekeepers: The Convention on the Safety of United Nations and Associated Personnel’ (1995) 89 AJIL 621; M-Christiane Bourloyannis-Vrailas, ‘The Convention on the Safety of United Nations and Associated Personnel’ (1995) 44 ICLQ 560. UN Safety Convention, above n. 60, Article 7(1); see also, 1998 Rome Statute of the International Criminal Court, 2187 UNTS 3, Article 8(2)(b)(iii), (e)(iii). See, e.g., Security Council resolutions in relation to the Somalia conflict: SC Res 733 (23 January 1992); SC Res 746 (17 March 1992); SC Res 751 (24 April 1992); SC Res 794 (3 December 1992); SC Res 814 (26 March 1993). Given a series of armed attacks against UN personnel in Somalia, the Security Council authorised the Secretary-General to ‘take all necessary measures against all those responsible for the armed attacks . . . [and] to secure the investigation of their actions and their arrest and detention for prosecution, trial and punishment’: SC Res 837 (6 June 1993). See, Christine Gray, ‘From Unity to Polarization: International Law and the Use of Force against Iraq’ (2002) 13 EJIL 1 at 3–5. See, remarks made by the French representative, UN SCOR, 48th year, 3174th mtg, UN Doc S/PV.3174; 49th year, 3344th mtg, UN Doc S/PV.3344; 50th year, 3527th mtg, UN Doc S/PV.3527.

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Administration Mission in Kosovo (UNMIK),65 that the reference to Chapter VII was intended not to change the nature of UN forces, but to ensure the safety and security of UN personnel in the field. This development has reinforced the ambiguity of Chapter VII powers and expanded the scope of its application, resulting in considerable overlap between the scope of the right of self-defence deriving from safety concerns and that of the expanded application of Chapter VII powers.66 It necessarily gives rise to uncertainty as to when and how to resort to armed force to secure the safety of UN personnel: can it be proactive under Chapter VII authority or should it remain reactive by virtue of its defensive nature? With all those points in mind, as Evans recommends,67 a better option is to standardise and incorporate guidelines for the protection of UN personnel at the tactical level rather than relying on Chapter VII powers at the strategic level. iii. Mandate Defence Given that the right of self-defence in respect of UN military personnel has been articulated in mandate-oriented terms, it can alternatively be argued that the expanded right of self-defence is based on the principle of functional necessity that the UN possesses as an organisation. The UN’s entitlement to the principle of functional necessity was acknowledged when the ICJ ruled, in its advisory opinion in the Reparation case,68 that ‘the Organization [UN] must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties’.69 The ICJ went on to state in the context of the peace observation mission in Palestine that ‘[b]oth to ensure the efficient and independent performance of these missions and to afford effective support to its agents, the Organization must provide them with adequate protection’.70 While the ruling focused on the protection of UN personnel, the principle can be extended to the resistance to attempts to prevent them by force from the effective performance of their duties. The right to freedom of movement, for instance, is an essential link to a wider right of self-defence against

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67 68

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See, remarks made by the Russian representative, UN SCOR, 54th year, 4011th mtg, at para. 7, UN Doc S/PV 4011 (10 June 1999). Indeed, the Chinese representative opposed the invocation of Chapter VII for the purpose of ensuring the safety of UNPROFOR personnel, arguing that ‘the question [the safety of UNPROFOR personnel] can be settled through the expanded concept of self-defence and rules of engagement and by taking other appropriate measures without invoking Chapter VII’: UN SCOR, 48th year, 3174th mtg, at 21, UN Doc S/PV.3174 (19 February 1993). Evans, above n. 21 at 150. Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Reports 174 (hereinafter Reparation case). Id. at 182. Id. at 183.

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the background of functional necessity.71 Although the UN, as an organisation, is not entitled to the right of self-defence, UN military personnel operating in the field as an embodiment of a peacekeeping effort of the international community should be able to assert the right of self-defence in a wider sense to the extent necessary to fulfil their mandates under UN authority. The use of armed force for mandate defence based on an expanded scope of self-defence may well easily cross the line when a single shot fired by UN personnel triggers a full-scale military operation, which goes beyond what is authorised by the Security Council both in scope and degree. This possibility was recognised as early as the time when the Summary Study of 1958 was written,72 and has been undeniable so long as an expanded right of self-defence is sustained. In cases where a UN force is deployed at an early stage of conflict to undertake internal police functions within a state on a provisional basis, even a limited use of armed force in self-defence in the defined circumstances cannot be clearly exempt from some features of enforcement action,73 becoming the middle point linking coercive and non-coercive measures.74 It is also conceivable, on the contrary, that the possibility of unlimited escalation may discourage decision-makers from resorting to armed force relying merely on the right of self-defence. Confusion will arise when it is not clear whether the right of self-defence is invoked from legal or political considerations. The use of armed force by ONUC in implementing the mandates to prevent the occurrence of civil war in the Congo and to carry out evacuation of foreign military and paramilitary personnel, pursuant to Security Council Resolutions 161 and 169 respectively,75 gives an insight into this point. The two Security Council resolutions gave rise to controversy as to whether the explicit authorisation of the use of armed force in those resolutions

71 72

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See, above nn. 33–41 and accompanying text. It observes that, ‘a wide interpretation of the right of self-defence might well blur the distinction between operations of the character discussed in this report and combat operations, which would require a decision under Chapter VII of the Charter’: Summary Study, above n. 29 at para. 179. See, Katherine E. Cox, ‘Beyond Self-Defense: United Nations Peacekeeping Operations and the Use of Force’ (1999) 27 Denver Journal of International Law and Policy 239 at 269. See, Alejandro J. Rodriguez Carrión, ‘The United Nations Force in Cyprus: An Uncertain Case of Peace-Keeping’ in Antonio Cassese (ed.), United Nations Peace-Keeping: Legal Essays (Sijthoff & Noordhoff, 1978) 155 at 169. The Security Council ‘urge[d] that the United Nations take immediately all appropriate measures to prevent the occurrence of civil war in the Congo, including arrangements for cease-fires, the halting of all military operations, the prevention of clashes, and the use of force, if necessary, in the last resort’: SC Res 161 (21 February 1961). It later ‘authorize[d] the Secretary-General to take vigorous action, including the use of the requisite measure of force, if necessary, for the immediate apprehension, detention pending legal action and/or deportation of all foreign military and paramilitary personnel and political advisors not under the United Nations Command, and mercenaries’: SC Res 169 (24 November 1961).

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changed the nature of the operation, together with its legal basis, to an enforcement measure under Article 42 of the Charter,76 or whether it remained unchanged, simply reinstating and redefining the right of self-defence.77 Leaving the theoretical issue unresolved, one course of action which escalated allegedly beyond the authorised scope of military action ultimately determined the parameters within which subsequent actions had to follow. The course of action at issue was code-named Operation Morthor, whereby ONUC attempted to carry out the task of apprehending and evacuating foreign military and paramilitary personnel and to put an end to Katanga’s secession by force under the mandate given by Resolution 161,78 which clearly excluded this strategic option. The operation met with strong Katangese resistance and resulted in a fierce eight-day battle between Katanga and the UN, which was criticised as having resorted to an excessive use of force contrary to the terms of the resolution.79 Presumably due to this incident, every use of armed force in the aftermath was explained as the exercise of the right of

76

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78

79

See, e.g., Georges Abi-Saab, The United Nations Operation in the Congo 1960–1964 (Oxford: Oxford University Press, 1978) at 103–106, 165–166; Finn Seyersted, United Nations Forces: In the Law of Peace and War (Leyden: A. W. Sijthoff, 1966) at 138–140. Contrast, Rosalyn Higgins, United Nations Peacekeeping: 1946–1967 Documents and Commentary III Africa (Oxford: Oxford University Press, 1980) at 57–58; Oscar Schachter, ‘Preventing the Internationalization of Internal Conflict: A Legal Analysis of the U.N. Congo Experience’ (1963) 57 Proc ASIL 216 at 220. White takes the view that this shift was the first example of a quasi-enforcement action: see, N. D. White, Keeping the Peace: The United Nations and the Maintenance of International Peace and Security (2nd ed., Manchester: Manchester University Press, 1997) at 243. See, e.g., Kjell Goldman, Peace-Keeping and Self-Defence (Paris: International Information Center on Peace-Keeping Operations, 1968) at 32–39; Ernest W. Lefever, Uncertain Mandate: Politics of the U.N. Congo Operation (Baltimore: The Johns Hopkins Press, 1967) at 22. When Hammarskjöld planned courses of action in relation to Katanga issue, it was proposed to take drastic measures including temporary takeover of the control of the provincial administrative apparatus, after it failed to persuade Tshombe to put an end to violent opposition to UN activities. The proposed action was thought to be legally invalid under the given mandate and politically only as a last resort. Nevertheless, Operation Morthor began on the initiative of the Chief of UN Civilian Operations in the Congo, Mahmoud Khiary, and the UN Representative in Katanga, Conor C. O’Brien, without an order from, or even prior consultation on the plan in detail with, Hammarskjöld. It was irresponsible and intolerable to consider that Resolution 161 left the decision to take an enforcement measure in the hands in the field. For the detailed account of the incident, see, e.g., Indar Jit Rikhye, Military Adviser to the Secretary-General: U.N. Peacekeeping and the Congo Crisis (London: Hurst & Company, 1993) at 263–286; Brian Urquhart, Hammarskjold (London: The Bodley Head, 1972) at 559–571; compare, Conor Cruise O’Brien, To Katanga and Back (London: Hutchinson, 1962) at 263–270. See, e.g., UN SCOR, 16th year, 974th mtg, at paras. 69–73 (France), UN Doc S/PV.974 (15 November 1961); 976th mtg, at paras. 164–166 (UK), UN Doc S/PV.976 (17 November 1961).

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self-defence,80 notwithstanding the authorisation of a more proactive use of armed force to execute the evacuation of foreign personnel by Resolution 169. It could be argued that the reason why the right of self-defence was invoked to justify the military operations that ONUC employed since December 1961 lay in the Secretary-General’s reluctance to expand the scope of military operation in order to avoid accusation of excessiveness and failure of the mission, even if the operations actually constituted an enforcement action in the sense of Article 42 of the Charter.81 However, it may also have been that ONUC had refrained from an expansive use of armed force from political or military considerations, even if it had from the beginning of the operation been justifiably within the purview of the right of self-defence in conjunction with the right to freedom of movement.82 It is indeed problematic to assume that the forcible implementation of a peacekeeping measure should be regarded as a spontaneous shift to an enforcement measure within the meaning of Article 42.83 In the first place, the adoption of an enforcement measure would require renegotiation to reach a new deal, especially among Security Council member states and also with troop contributing states.84 Furthermore, the UN Charter would not allow forces to be used in order to put down internal rebellion, even if the government in power invites such forces,85 without explicit authorisation by the Security Council to undertake an enforcement action against the rebellion. The term ‘right of self-defence’ can thus be used at the strategic level both in restrictive and expansive ways. While it ostensibly provides psychological restraints upon UN military personnel in deciding when and how to resort to an armed force, it can also be used to camouflage an unauthorised enforcement action with a restrictive term of self-defence. Doubt has been raised about the propriety of placing faith in the ability of field commanders to make sober assessments and exercise selfrestraint in determining what reasonably constitutes self-defence in a given situation

80 81

82 83

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For details, see, e.g., Abi-Saab, above n. 76 at 168–191. Hammarskjöld was reluctant to resort to the use of armed force, as it would mean the failure of preventive diplomacy in the Congo. In addition, the UK and France regarded the authorisation to use armed force as ultra vires and abstained from voting in adopting Resolution 169: see, UN SCOR, 16th year, 982nd mtg, at paras. 60 (France), 118 (UK), UN Doc S/PV.982 (24 November 1961); see also, Lefever, above n. 77 at 111–129. See, Bowett, above n. 34 at 203–204; see also, above nn. 33–41 and accompanying text. This stance appears to have been somewhat sustained. The French representative noted on several occasions in relation to UNPROFOR that the reference to Chapter VII did not imply any automatic authority to resort to an armed force other than in self-defence: see, e.g., UN SCOR, 49th year, 3344th mtg, at 14, UN Doc S/PV.3344 (4 March 1994). See, Fouad Abdel Moneim Riad, ‘The United Nations Action in the Congo and Its Legal Basis’ (1961) 17 Revue egyptienne de droit international 1 at 29–30. See, Schachter, above n. 3 at 86. It would also make peacekeeping measures incompatible with the principle of impartiality, intervening into the domestic affairs of the state.

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within an ambiguously worded legal framework.86 The ambiguous construction of self-defence at the strategic level can be clarified at the tactical level by examining what the soldiers in the field are authorised and required to perform.

4. Tactical Level Analysis: Rules of Engagement The rules on when and how to resort to armed force at the tactical level must conform to mandates provided or approved by the Security Council and the interpretation of the mandates in the form of directives at the strategic level. Given the political and general nature of mandates and directions thereof,87 much would have to be left in the implementation phase to the decisions of the commander or even down to those of each soldier in the field. The mandates given by the Security Council are, in principle, albeit different in each operation, changed into a form of directives by the UN Secretariat taking account of the political intentions behind the mandates and further into operational instructions. Operational instructions have increasingly taken the form of Rules of Engagement (ROE),88 which embody a tactical interpretation of the mandates. ROE are a hybrid of military operability and legal regulation, clarifying at the tactical level the extent to which, and the manner in which, armed force can be employed under a given mandate. Although each contingent participating in peacekeeping operations issues its own ROE in the light of the mandates and directives given to them, the UN Department of Peacekeeping Operations prepared ROE Guidelines,89 in order ‘to ensure consistency in the development and implementation of ROE’ for peacekeeping operations.90 The guidance for an authorised manner

86

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See, Dale Stephens, The Use of Force in Peacekeeping Operations – The East Timor Experience (Canberra: Asia-Pacific Centre for Military Law, 2005) at 54–56; Cox, above n. 73 at 255–256. See, Ch. 4, Section 2. Rules of Engagement (ROE) is a concept that has developed in the US army through a series of politicised military engagements in the context of the Cold War notably since the Korean conflict in the early 1950s in order to delineate the circumstances and limitations under which US soldiers may initiate or continue combat engagement with other forces encountered: see generally, Richard J. Grunawalt, ‘The JCS Standing Rules of Engagement: A Judge Advocate’s Primer’ (1997) 42 Air Force Law Review 245; Mark S. Martins, ‘Rules of Engagement for Land Forces: A Matter of Training, Not Lawyering’ (1994) 143 Military Law Review 1. In the naval context, see, D. P. O’Connell, The Influence of Law on Sea Power (Manchester: Manchester University Press, 1975) at 169–180. Guidelines for the Development of Rules of Engagement (ROE) for United Nations Peacekeeping Operations, UN Doc MD/FGS/0220.0001 (15 May 2002) (hereinafter ROE Guidelines); see generally, Findlay, above n. 42 at 347–350. ROE Guidelines, above n. 89, section 3.

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of using armed force at a tactical level is set forth in the ROE, which, as clarified in the ROE Guidelines,91 is aimed to ensure that the use of armed force by UN military personnel is undertaken in support of basic UN principles, pursuant to the pertinent Security Council resolutions, and in accordance with the relevant principles of international law, including the laws of armed conflict.92 ROE will be prepared for an actual peacekeeping operation to serve, in theory, two purposes: self-defence and mission accomplishment.93 The ROE Guidelines, in fact, whilst preserving the right of personal self-defence in any circumstances, allows for a flexible choice of rules to be made so as to enable UN military personnel to use armed force to fulfil specific requirements set out in a given mandate.94 The distinction is therefore clearly maintained at the tactical level between personal self-defence and mandate defence. It is essential, as proposed in the Brahimi Report, to ensure that the ROE is sufficiently robust so as not to prevent UN forces from taking the initiative in responding to attackers.95 The extent to which the use of armed force is permitted under the aegis of the right of self-defence, within the limits of Article 40 of the Charter, was first clarified in the ONUC operation during the constitutional crisis in the Congo triggered by the dismissal of Prime Minister Lumumba by President Kasavubu.96 An unofficial summary of the operational rules issued at UN Headquarters identified the following situations where UN personnel were permitted to have recourse to armed force for self-defence: a. if attempts were being made to force them to withdraw from a position already held; b. if attempts were being made to disarm them; c. if attempts were being made to prevent them from carrying out orders given to them by their commanding officers; and

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Id., section 1. This point will be elaborated below in Section 5-A. See, Grunawalt, above n. 88 at 246–247. The rules listed in the ROE Guidelines for the use of armed force are combinations of the scope of defensible objects and the degree of authorised use of force. The use of force up to, and including, deadly force is authorised: to defend oneself and other UN personnel; to defend other international personnel; to resist to abduct or detain oneself and other UN personnel; to resist to abduct or detain other international personnel; to protect UN’s or key installations, areas or goods, designated by the Head of the Mission; to defend any civilian person who is in need of protection against a hostile act or hostile intent; and against any person and/or group that limits or intends to limit freedom of movement. The use of force, excluding deadly force, can alternatively be authorised: to protect key installations, areas or goods, designated by the Head of Mission; and to prevent the escape of any detained person: see, ROE Guidelines, above n. 89, Attachment 1, Rule 1. Brahimi Report, above n. 27 at paras. 49–51. For details of the event, see, Ch. 3, Section 4-B-i.

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The same criteria were reiterated in the aide-mémoire issued by the Secretary-General for UNFICYP.98 The aide-mémoire, furthermore, made the use of armed force in self-defence subject to stricter conditions, such as the principle of minimum force and the exhaustion of all peaceful means of persuasion.99 Those operational rules in fact played a role equivalent to ROE, albeit not officially so referred to. Of particular importance was that the aide-mémoire in respect of UNFICYP recognised the legitimacy of the use of armed force, as distinct from the right of self-defence. The aide-mémoire listed three circumstances as exceptions to the principle that ‘no action is to be taken by the troops of UNFICYP which is likely to bring them into direct conflict with either community in Cyprus’: (a) Where members of the Force are compelled to act in self-defence; (b) Where the safety of the Force or of members of it is in jeopardy; (c) Where specific arrangements accepted by both communities have been, or in the opinion of the commander on the spot are about to be, violated, thus risking a recurrence of fighting or endangering law and order.100

Despite the expansion in scope of the legitimate use of armed force, the confusion stemming from the fact that this listing appeared under the heading of ‘Principles of self-defence’ planted the seeds of controversy in the course of the actual operation. A question was in fact raised whether an armed force could be legitimately used to prevent attack or firing across the ‘Green Line’,101 even if UN personnel were not actually attacked. Although the first field commander of UNFICYP, Lieutenant-General Prem Singh Gyani, affirmed that military action to prevent firing across the line was desirable and fully in accord with the mandate (albeit not qualified as self-defence), the commander’s view was opposed by senior members of the UN Secretariat for the reason that it would constitute a departure from a basic principle of peacekeeping.102 This episode demonstrates the gap between what is generally believed to be the right of self-defence and what is actually possible and even required under the mandate given. Besides the consensual nature

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Catherine Hoskins, The Congo Since Independence: January 1960–December 1961 (London: Oxford University Press, 1965) at 294–295. Aide-mémoire for UNFICYP, above n. 31 at para. 16. Id. at para. 18. Id. at para. 17. The ‘Green Line’ is the cease-fire line between the areas occupied by the two communities in Nicosia, drawn by the British-led joint truce force to create a neutral zone along the line. The line has been in place under the supervision of UNFICYP. See, Alan James, Keeping the Peace in the Cyprus Crisis of 1963–64 (Hampshire: Palgrave, 2002) at 130.

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of UNFICYP operations,103 the term ‘self-defence’ as a guide to the use of armed force might well have psychologically contributed to the restrictive interpretation of the modus operandi as well as of the mandate. At the other end of the spectrum, ROE also help distinguish the extent to which UN military personnel can avail themselves of the use of armed force in a peacekeeping deployment from that in the case of enforcement measures. The distinction is sustained even if a mandate is not clear enough about the nature of an operation at the strategic level. The ROE adopted for the UN Protection Force deployed in the Former Yugoslavia (UNPROFOR) allowed for the use of armed force, as distinct from the exercise of the right of personal self-defence, to resist attempts by forceful means to prevent a UN force from discharging its duties.104 When the mandate given to UNPROFOR was expanded to include new missions under Chapter VII authority,105 a question arose as to whether those missions were a mere extension of the existing peacekeeping operation or a shift to an enforcement measure under Chapter VII of the Charter. The confusion at the strategic level was best illustrated in Security Council Resolution 836,106 in which the Security Council, in order to deter attacks against the safe areas: Authorizes UNPROFOR . . . acting in self-defence, to take the necessary measures, including the use of force, in reply to bombardments against the safe areas by any of the parties or to armed incursion into them or in the event of any deliberate obstruction in or around those areas to the freedom of movement of UNPROFOR or of protected humanitarian convoys (emphasis added).107

Given the limited and provisional nature of the operation,108 this resolution can be classified at a conceptual level as peace enforcement under Article 40 of the

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The establishment of UNFICYP was only recommended with the consent of the Cyprus government, which might have necessarily made the UN Secretariat extremely cautious about the actions to be undertaken by UNFICYP: see, Ch. 3, Section 4-B-ii. See, e.g., paragraph 5 of the Rules of Engagement for the UNPROFOR, reproduced in Bruce D. Berkowitz, ‘Rules of Engagement for U.N. Peacekeeping Forces in Bosnia’ (1994) 38 Orbis 635 at 638. UNPROFOR was established on the basis of a legally binding decision within the meaning of Article 25 of the Charter, without invoking Chapter VII powers, as ‘an interim arrangement to create the conditions of peace and security required for the negotiation of an overall settlement of the Yugoslav crisis’: SC Res 743 (21 February 1992). The mandates were subsequently extended under Chapter VII authority, inter alia, to ensuring delivery of humanitarian assistance, ensuring compliance with a flight ban in the airspace of Bosnia and Herzegovina, and to deterring attacks against safe areas: see, SC Res 770 (13 August 1992); SC Res 816 (31 March 1993); SC Res 836 (4 June 1993). SC Res 836 (4 June 1993). Id. at para. 9. See, UN SCOR, 48th year, 3228th mtg, at 36 (Cape Verde), 42 (Brazil), 46 (Russia), 59 (Spain), UN Doc S/PV.3228 (4 June 1993).

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Charter. In fact, the ROE for UNPROFOR continued to be used intact even after the adoption of this resolution,109 despite the report submitted by a Security Council mission which urged that different (presumably more robust) rules of engagement, as well as a revised mandate and a larger UNPROFOR presence, be approved for the purpose of the protection of designated safe areas.110 It was an indication of the lack of political will on the part of member states, especially the permanent members of the Security Council, to alter the nature of the operation and to increase military commitments, despite the difficulties that had been confronting UNPROFOR.111 A tactical-level analysis thus clearly indicates that the new mandate was to be fulfilled by way of an expanded right of self-defence within the purview of Article 40 of the Charter, rendering the reference to Chapter VII merely as adding political weight and emphasis to the existing tasks. It is reported, in contrast, that the UN Operation in Somalia in the second phase (UNOSOM II), which followed the US-led United Task Force (UNITAF), continued to apply the same ROE as those established under UNITAF,112 despite the non-enforceable and cooperative peace-building nature of the mandate.113 As the subsequent situation in Mogadishu deteriorated, UNOSOM II even strengthened the ROE so as to allow for the use of armed force on a much broader basis.114 This

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See, Boulden, above n. 21 at 97; John A. MacInnis, ‘The Rules of Engagement for U.N. Peacekeeping Forces in Former Yugoslavia: A Response’ (1995) 39(1) Orbis 97. See, Letter dated 30 April 1993 from the Security Council Mission established pursuant to Council Resolution 819 (1993) to the President of the Security Council, at para. 47, UN Doc S/25700 (30 April 1993). For details, see, Boulden, above n. 21 at 99–100; Jane Boulden, ‘Rules of Engagement, Force Structure and Composition in United Nations Disarmament Operations’ in United Nations Institute for Disarmament Research (ed.), Managing Arms in Peace Process: The Issues (New York: United Nations Publications, 1996) 135 at 157–160. The ROE for UNITAF, which were established by the US Central Command on the basis of the US peacetime ROE, had a potentially powerful nature, authorising commanders to use all necessary forces in carrying out disarmament actions whether or not crew-served weapons and armed individuals demonstrated hostile intent: see, F. M. Lorenz, ‘Forging Rules of Engagement: Lessons Learned in Operation United Shield’ (1995) 75(6) Military Review 17. UNOSOM II was mandated, inter alia, to ‘assist the people of Somalia to promote and advance political reconciliation, through broad participation by all sectors of Somali society, and the reestablishment of national and regional institutions and civil administration in the entire country’: SC Res 814 (26 March 1993). Some people in fact point out that a combat campaign against one of the dominant Somali factions with a powerful military presence acting on robust ROE and a less intrusive ‘assistance’ mandate was imbalanced and mutually exclusive: see, e.g., Jarat Chopra, ‘Achilles’ Heel in Somalia: Learning from a Conceptual Failure’ (1996) 31 Tex ILJ 495 at 508–510; Gary Anderson, ‘UNOSOM II: Not Failure, Not Success’ in Donald C. F. Daniel & Bradd C. Hayes (eds), Beyond Traditional Peacekeeping (New York: St Martin’s Press, 1995) 267 at 276. See, Lorenz, above n. 112 at 17–22; Boulden, above n. 21 at 64–65; Boulden, above n. 111 at 136–139, 151–152; Kenneth Allard, Somalia Operations: Lessons Learned (Washington: National Defense University Press, 1995) at 37.

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fact also shows that ROE can afford a considerable contribution to clarifying the nature of the operation as well as the extent to which recourse can be had to armed force in self-defence, diminishing the illusory face of the operation. Although legal regulations and requirements play a significant role in the deployment of peacekeeping forces, the frequent usage of legalistic terms may well impede an efficient military operation and even create danger for lives.115 ROE, therefore, have to be simple, concise, and flexible so that they can facilitate the tactical implementation of mandates issued by the Security Council, whilst at the same time taking account of legal regulations and requirements arising from the mandates and related rules of international law.116 It is important to strike a balance between tactical adequacy and legal requirements. Along with this primary purpose, ROE can also play a secondary role, as shown above, in defining the scope of peacekeeping at both ends – that is, in relation to personal self-defence as well as in relation to enforcement measures. Unlike personal self-defence, recourse to armed force for mission accomplishment has, unless the mission constitutes an enforcement measure under Chapter VII authority, been subject to the test of a hostile act and/or intention,117 as well as to a detailed challenging (warning) procedure.118 Those conditions are important not only as a guide to discipline, but are also meant to impose a burden of proof upon the shoulders of UN personnel with regard to the legitimacy of their use of armed force. It is conceivable that unreasonably strict requirements of legality will make it difficult for the commanders as well as each soldier in the field to make a professional military judgment, given the unpredictability of armed engagements and the inherent cognitive limitations of human beings under stress. Bearing this in mind, attention should be drawn to precautionary measures as provided in Additional Protocol I which are to be taken in the choice of objectives and means in planning or deciding upon an attack by virtue of civilian

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See, Martins, above n. 88 at 55–76; Lorenz, above n. 112 at 19. See, Findlay, above n. 42 at 372–373. Generally speaking, a hostile act is a physical ‘attack or other use of force which is intended to cause death, bodily harm or destruction’, whereas a hostile intent, which is less discernible, is a ‘threat of imminent use of force, which is demonstrated through an action which appears to be preparatory to a hostile act’: ROE Guidelines, above n. 89, Attachment 2, Annex B, sections 6 and 7. A standard challenging (warning) procedure seems to be as follows: give warning verbally (in the working language of the operation and in the local language), visually by a sign or by illumination; employ minimum unarmed force where possible; charge weapons; fire warning shots at a safe point of aim (e.g., in the air); and if all the preceding steps are unsuccessful, open fire on order. It is permitted to open fire without attempting to follow a challenging (warning) procedure in cases where an attack by an aggressor comes so unexpectedly that even a moment’s delay could lead to the death of, or serious injury, to oneself, other UN personnel and those who are under their protection: ROE Guidelines, above n. 89, Attachment 2, Annex C, sections 4 and 5.

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protection.119 Precaution in this context constitutes merely a loose prescription,120 for it is qualified by the term ‘feasible’,121 given that there is no absolute certainty in the process of ascertaining reliable information especially in the heat and haste of combat situations.122 In applying this feasibility test to peacekeeping operations, the question arises as to what would be a feasible option that UN forces could avail themselves of for precaution. Feasible precaution can be taken by shifting the burden of proof to the parties to a conflict in relation to whom a peacekeeping measure is undertaken. The idea of demilitarised zones is noteworthy in this context, for it may help release UN military personnel in the field from the burden of proof. Recognising the usefulness of demilitarised zones as a form of preventive deployment, An Agenda for Peace proposes separating belligerents by way of demilitarised zones for the purpose of removing any pretext for attack.123 In comparison with Article 60 of Additional Protocol I,124 demilitarised zones established by the Security Council for the purpose of implementing its mandates share common features such as the cessation of hostile activities, demilitarisation, and demobilisation of troops within the zones for the purpose of the protection of civilians.125 Demilitarised zones established by

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Additional Protocol I, above n. 58, Articles 57 and 58. See, Prosecutor v. Kupreskić et al. (ICTY) ( Judgment) (Trial Chamber), Case No IT-95-16-T (14 January 2000) available via (last visited 29 June 2005) at para. 526. It is nonetheless pointed out that the prescriptions of Articles 57 and 58 ‘must be interpreted so as to construe as narrowly as possible the discretionary power to attack belligerents and, by the same token, so as to expand the protection accorded to civilians’: id. at para. 525. It seems that feasibility was understood in the drafting stage as that which is ‘practicable or practically possible, taking into account all circumstances at the time including those relevant to the success of military operations’: see generally, A. P. V. Rogers, Law on the Battlefield (2nd ed., Manchester: Manchester University Press, 2004) at 96–133. See, e.g., Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge: Cambridge University Press, 2004) at 126–127; Michael Bothe, ‘Legal Restraints on Targeting: Protection of Civilian Population and the Changing Faces of Modern Conflicts’ (2001) 31 Israel Yearbook on Human Rights 35 at 45; Geoffrey Best, War & Law Since 1945 (Oxford: Clarendon Press, 1994) at 326–330. An Agenda for Peace, above n. 4 at 18–9 para. 33. Demilitarised zones have different names such as security zones, protected areas and safe areas, to which different functions are attached in accordance with the mandates issued by the Security Council. ‘It is prohibited for the Parties to the conflict to extend their military operations to zones on which they have conferred by agreement the status of demilitarized zone, if such extension is contrary to the terms of this agreement’: Additional Protocol I, above n. 58, Article 60(1). Demilitarised zones are to fulfil the following conditions: (a) all combatants, as well as mobile weapons and mobile military equipment, must have been evacuated; (b) no hostile use shall be made of fixed military installations or establishments;

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the Security Council can also serve the purpose of discerning the hostile intent of warring parties against UN activities. An entry into, or an approach to, demilitarised zones of armed individuals and those with crew-served weapons constitutes prima facie evidence of hostile intent, with whom military personnel may be engaged with deadly force upon notice without additional showing of hostile intent if the ROE so permit.126 Detailed requirements for determining hostile intent and the manner of response would vary with the ROE in each operation. Demilitarised zones may entail operational difficulties if they are established in such a way as to result in disarmament of one side of the warring parties or without substantial military commitments to guarantee and protect that side’s status,127 which would rather do harm than good, as exemplified in the fall of Srebrenica.128 With all the operational difficulties involved to be overcome, demilitarised zones will certainly help shifting, more or less, the burden of proof in determining the hostile intent of the parties to a conflict.

5. Legal Constraints on the Use of Force in Peacekeeping A. Legal Constraints for Peacekeeping Forces There has been an issue of whether and to what extent UN forces are, or should be, subject to the application of international humanitarian law in the course of their peacekeeping operations.129 The UN cannot be a party to international

(c) no acts of hostility shall be committed by the authorities or by the population; and (d) any activity linked to the military effort must have ceased. Additional Protocol I, above n. 58, Article 60(3). 126 This type of security zone was proposed with aggressive ROE inside the zones in the course of withdrawing US troops from Somalia, though the final version made the ROE more benign requiring an additional demonstration of hostile act or intent before deadly force could be used: see, Lorenz, above n. 112 at 24. 127 See, Stuart Croft, ‘Lessons from the Disarmament of Factions in Civil Wars’ in Dimitris Bourantonis & Marios Evriviades (eds), A United Nations for the Twenty-First Century: Peace, Security and Development (The Hague: Kluwer Law International, 1996) 271 at 281; David Cox, ‘Peacekeeping and Disarmament: Peace Agreements, Security Council Mandates, and the Disarmament Experience’, United Nations Institute for Disarmament Research (ed.), Managing Arms in Peace Processes: The Issues (New York: United Nations Publications, 1996) 83 at 100–104; Allard, above n. 114 at 64. 128 For a detailed report on the cause of the fall of Srebrenica, see, Report of the Secretary-General pursuant to General Assembly Resolution 53/35: The Fall of Srebrenica, especially at 16–26, UN Doc A/54/549 (15 November 1999). 129 See generally, Christopher Greenwood, ‘International Humanitarian Law and United Nations Military Operations’ (1998) 1 YbIHL 3; Daphna Shraga, ‘The United Nations as an Actor Bound

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treaties in the nature of international humanitarian law notably including the Geneva Conventions,130 nor does it possess administrative and judicial powers required to discharge many of the obligations stipulated in those treaties.131 UN forces are nevertheless subject to customary rules of international humanitarian law, in view of the fact that the UN and troop-contributing states have customarily pledged that their forces undertake to observe and respect the ‘principles and spirit’ of the general international conventions applicable to the conduct of military personnel.132 In addition, where the Security Council authorises member states to undertake an enforcement measure under Chapter VII, the states involved in the authorised action are necessarily subjected to the application of international humanitarian law by virtue of the military nature of the operation.133 The question of applicability arises,

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by International Humanitarian Law’ in Luigi Condorelli, Anne-Marie La Rosa & Sylvie Scherrer (eds), The United Nations and International Humanitarian Law (Paris: Pedone, 1996) 317; Paolo Benvenuti, ‘The Implementation of International Humanitarian Law in the Framework of United Nations Peace-Keeping Operations’ in Law in Humanitarian Crises (Luxembourg: Office for Official Publications of the European Communities, 1995) vol. 1 at 83; Gert-Jan F. van Hegelsom, ‘The Law of Armed Conflict and UN Peace-Keeping and Peace-Enforcing Operations’ (1993) 6 Hague YbIL 45; Christiane Bourloyannis, ‘The Security Council of the United Nations and the Implementation of International Humanitarian Law’ (1992) 20 Denver Journal of International Law and Policy 335; Dietrich Schindler, ‘United Nations Forces and International Humanitarian Law’ in Christophe Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet (The Hague: Martinus Nijhoff Publishers, 1984) 521; Seyersted, above n. 76 at 178–220. 1949 Geneva Convention for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field, 75 UNTS 31; 1949 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 UNTS 85; 1949 Geneva Convention Relative to the Treatment of Prisoners of War, 75 UNTS 135; 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287. The four conventions are complemented by two additional protocols: Additional Protocol I, above n. 58; 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609. See, Roberts & Guelff, above n. 59 at 26. See, e.g., Secretary-General’s Bulletin: Observance by United Nations Forces of International Humanitarian Law, section 3, UN Doc ST/SGB/1999/13 (6 August 1999), reproduced in Roberts & Guelff, above n. 59 at 725–730; Model Agreement between the United Nations and Member States Contributing Personnel and Equipment to United Nations Peace-Keeping Operations, at para. 28, UN Doc A/46/185/Annex (23 May 1991). See, UN Safety Convention, above n. 60, Article 2(1) (‘This Convention shall not apply to a United Nations operation authorized by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies’). However, in relation to the applicability of the law of belligerent occupation to UNITAF, compare, Michael J. Kelly, Restoring and Maintaining Order in Complex Peace Operations: The Search for a Legal Framework (The Hague: Kluwer Law International, 1999) at 20–22: with Shraga, above n. 129 at 325–328.

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however, in cases where UN forces are deployed for a peacekeeping operation, in which UN military personnel may use armed force in self-defence or in resisting forcible attempts to prevent the effective implementation of a mandate. International humanitarian law will arguably be applied, at least to the extent recognised as customary rules, in cases where the use of armed force by UN military personnel in self-defence in a wider sense reaches such intensity as to be qualified as international armed conflict.134 The International Criminal Tribunal for the Former Yugoslavia (ICTY) defined the term ‘armed conflict’ in Tadić case in terms of the protracted nature of armed violence involving organized armed groups.135 Yet this definition is still framed in the abstract, which leaves the question to be decided on a case-by-case basis.136 It seems nevertheless that the threshold for the application of international humanitarian law tends to be somewhat higher in the case of UN military operations than in the case of inter-state conflicts, presumably due to their primarily peacekeeping and humanitarian character.137 It is more convincing with regard to situations below the threshold for the application of international humanitarian law that the use of armed force by UN military personnel would have to be subject to stricter conditions and regulations than the rules of international humanitarian law.138 While the use of armed force by sovereign states has traditionally been subject to the principle of proportionality,139 for instance, the extent to which UN military personnel are allowed to use armed force appears to be somewhat more restrictive, as the term ‘minimum use of force’ generally used in ROE indicates.140 Caution must nonetheless be taken so that the rule will not unnecessarily lessen operational efficiency. The balance should be maintained, having regard to the reasonableness of the decisions that the field commanders and each soldier will take in using armed force, so long as the reasonable action is consistent with, and within the scope of, the mandates given to them.

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See, e.g., UK Ministry of Defence, above n. 20 at 376–377; Peter Rowe, ‘Maintaining Discipline in United Nations Peace Support Operations: The Legal Quagmire for Military Contingents’ (2000) 5 Journal of Conflict and Security Law 45 at 51–58. 135 Prosecutor v. Tadić ( Jurisdiction) (Appeals Chamber) 105 ILR 453 at 488, para. 70. See also, Prosecutor v. Akayesu ( Judgment) (Trial Chamber), ICTR-96-4-T, Judgment of 2 September 1998 at paras. 619–621. 136 Prosecutor v. Rutaganda ( Judgment) (Trial Chamber), ICTR-96-3, Judgment of 6 December 1999, (2000) 39 ILM 557 at para. 93. 137 See, Greenwood, above n. 129 at 24. 138 In so far as UN military personnel are acting in self-defence outside the applicable scope of international humanitarian law, the parties to a conflict are required to comply with the UN Safety Convention. 139 The applicability of the principle of proportionality will be examined in Ch. 7, Section 3-D. 140 See, e.g., Aide-mémoire for UNFICYP, above n. 31 at para. 18; Berkowitz, above n. 104 at 642.

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It can be argued that ROE in fact set forth rules in order to ‘limit the intensity, duration, and magnitude of force to what reasonably is required to counter the attack or threat of attack’,141 which may seem to bring the rules in the vicinity of proportionality.142 Yet the considerations pulling out of absolute restriction in these two rules are clearly different. The principle of proportionality is guided by military necessity,143 whereas it is operational necessity that can alleviate the restriction imposed upon peacekeeping operations. In the course of peacekeeping operations, military attacks motivated by military necessity are ruled out even if they are proportionate in compliance with the rules of international humanitarian law. The development of international human rights law and its convergence with basic norms of international humanitarian law have also had bearing upon the legality of the use of armed force by UN peacekeeping forces. The International Human Rights Committee in its General Comment No 31 endorsed the extra-territorial application of international human rights instruments to those within the effective control of the forces ‘regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation’.144 However, the actual application to the conducts of UN peacekeepers poses jurisdictional problems under international human rights law. The first is the threshold problem arising from the application of ‘effective control’ test. The threshold criterion could be set high, placing foreign forces under an obligation to apply international human rights standards only in so far as they have the power to provide the full package of rights and freedoms guaranteed by international human rights instruments.145 A lower threshold was applied when the 141

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Martins, above n. 88 at 30. ROE Guidelines defines minimum force as ‘[t]he minimum degree of authorised force which is necessary and reasonable in the circumstances’: ROE Guidelines, above n. 89, Attachment 2, Annex B, section 5(d). McDougal and Feliciano indeed define proportionality as ‘a requirement that responding coercion be limited in intensity and magnitude to what is reasonably necessary promptly to secure the permissible objectives of self-defence’: Myres S. McDougal & Florentino P. Feliciano, The International Law of War: Transnational Coercion and World Public Order (Dordrecht: Martinus Nijhoff Publishers, 1994) at 242. See, e.g., Judith Gardam, Necessity, Proportionality and the Use of Force by States (Cambridge: Cambridge University Press, 2004) at 7–8. General Comment No. 31 on Article 2 of the Covenant: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, at para. 10, UN Doc CCPR/C/74/CRP.4/Rev.6 (21 April 2004). See, Bankovic v. Belgium (2001) 11 BHRC 435 at paras. 71–82; followed by R. (Al-Skeini and others) v. Secretary of State for Defence [2008] 1 AC 153 at 201–202 paras. 78–81 (Lord Rodger emphasising the regional nature of the European Convention for the Protection of Human Rights as the ground for adopting the restrictive approach), 206 para. 97 (Lord Carswell), 208–216 paras. 107–132 (Lord Brown). Contrast, e.g., Öcalan v. Turkey (2005) 41 EHRR 985; López v. Uruguay (1981) 68 ILR 29; Celiberti de Casariego v. Uruguay (1981) 68 ILR 41.

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ICJ affirmed the applicability of international human rights treaties to the Palestinian territory under Israeli occupation,146 and to the Ituri district in the Democratic Republic of the Congo (DRC) occupied by Ugandan forces.147 The underlying assumption of this lower threshold, however, appears to be that the applicability of the law of belligerent occupation is synonymous with the applicability of international human rights law without a clear explanation of the linkage.148 Even with the lower threshold, therefore, UN peacekeeping operations that do not amount to occupation of a territory would be precluded from applying international human rights standards to their conducts. A better view could be that irrespective of the extent to which UN forces exercise effective control over a territory, their entire operation is subject to the basic norms of international human rights law as well as international humanitarian law by virtue of the purposes and principles of the UN Charter.149 That brings us to the second jurisdictional problem concerning attribution of the conducts of UN peacekeepers. The responsibility for the conducts of military personnel during the operations under UN authority is arguably attributed to the UN, not to the contributing states, by virtue of the effective control that it exercises over the forces.150 This line of reasoning virtually left the alleged victims of the use of armed force by UN-authorised forces in violation of human rights, deprived of their opportunity to seek redress in domestic and regional courts.151 It should also be noted that UN personnel enjoy the privileges and immunities of the organisation in accordance with the Convention on the Privileges and Immunities of the United Nations,152 to the extent necessary to accomplish their missions

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Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Reports 3 at paras. 108–111. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) ( Judgment) [2005] ICJ at paras. 216–217. Siobhán Wills, ‘The “Responsibility to Protect” by Peace Support Forces under International Human Rights Law’ (2006) 13 International Peacekeeping 477 at 481–482. Those legality criteria will be examined in Ch. 7, Section 3. See generally, Zwanenburg, above n. 20 at 51–129; Giorgio Gaja, Second Report on Responsibility of International Organizations, at paras. 29–50, UN Doc A/CN.4/541 (2 April 2004); Karel Wellens, Remedies against International Organisations (Cambridge: Cambridge University Press, 2002) at 99–101; Danesh Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of Its Chapter VII Powers (Oxford: Clarendon Press, 1999) at 163–165; Moshe Hirsch, The Responsibility of International Organizations Toward Third Parties: Some Basic Principles (Dordrecht: Martinus Nijhoff Publishers, 1995) at 64–77. See, Behrami v. France (2007) 45 EHRR SE10 at paras. 132–142; N. K. v. Austria (Superior Provincial Court of Vienna), 77 ILR 470 at 474; cf. Al-Jedda v. Secretary of State for Defence [2008] 1 AC 332. 1946 Convention on the Privileges and Immunities of the United Nations, 1 UNTS 15.

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to be undertaken under UN authority.153 The existing human rights monitoring scheme does not leave much scope for international supervisory bodies such as the International Human Rights Committee to oversee the UN activities for accounts of human rights violations.154 Notwithstanding such technical barriers, however, there remains some room for domestic courts dealing with claims resulting from the use of armed force by UN peacekeeping forces if the relevant domestic law recognises a right to bring such action.155 In Attorney-General v. Nissan,156 the House of Lords held that the legal status of UK forces participating in UN peacekeeping operations remained with their own national armed forces.157 Although their national legal status in this case was to a large extent concerned with the civil and criminal procedures for acts or omissions of military personnel, the finding recognised the dual legal personality that UN military personnel possess during their services to UN peacekeeping operations. Bici v. Ministry of Defence opened the possibility of the recourse to domestic proceedings even for foreign victims, holding that British soldiers on duty as part of UNMIK deployed pursuant to Chapter VII of the Charter committed tortious acts despite their claim of acting in self-defence, based on the understanding that the British government retained control over disciplinary and criminal matters of its contingent within UNMIK.158 Each military contingent participating in UN peacekeeping operations is placed at the disposal of UN commanders, but they are also subjected to their own municipal legal regulations, which may restrict the way in which mandates are implemented. It is therefore arguable that recourse to armed force to defend

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See, Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) [1999] ICJ Reports 62 at 84–85 paras. 50–51; Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations (Advisory Opinion) [1989] ICJ Reports 177 at 194–196; Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Reports 174 at 177. See generally, Zwanenburg, above n. 20 at 241–285; Frederick Rawski, ‘To Waive or Not to Waive: Immunity and Accountability in U.N. Peacekeeping Operations’ (2002) 18 Connecticut Journal of International Law 103 at 125–132; Carla Bongiorno, ‘A Culture of Impunity: Applying International Human Rights Law to the United Nations in East Timor’ (2002) 33 Columbia Human Rights Law Review 623 at 632–653, 682–691; Marcus G Brand, ‘Institution-Building and Human Rights Protection in Kosovo in the Light of UNMIK Legislation’ (2001) 70 Nordic Journal of International Law 461 at 487. See, Markovic v. Italy (2007) 44 EHRR 52 at para. 53. Attorney-General v. Nissan [1969] 1 All ER 629. Id. at 646 (Lord Morris of Borth-y-Gest), 647–648 (Lord Pearce); contrast, Nissan v. AttorneyGeneral (Court of Appeal) [1967] 2 All ER 1238 at 1244 (Lord Denning), 1247 (Danckwerts LJ); Nissan v. Attorney-General (Queen’s Bench Division) [1967] 2 All ER 200 at 220–221. For an analysis of the case, see, J. W. Bridge, ‘The Legal Status of British Troops Forming Part of the United Nations Force in Cyprus’ (1971) 34 Modern Law Review 121. Bici and Another v. Ministry of Defence [2004] EWHC 786.

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property placed under UN protection could be refrained from, notwithstanding being justified in the UN-issued ROE,159 in the light of the definition of the right of self-defence in the municipal criminal code applicable to a national contingent.160 Japan has a notorious record, in particular, of an extremely restrictive approach, presumably by virtue of Article 9 of the Japanese Constitution (the famous warrenunciation clause),161 to the use of armed force by its national contingent in the course of peacekeeping operations.162 The municipal legal constraints may well render peacekeeping operations inefficient and uncoordinated, running counter to an effort to ensure an effective implementation of mandates or even adhere to the mandates. B. Legal Constraints on Intervention by Peacekeeping Forces Apart from the applicability of international humanitarian law to UN peacekeeping operations, there has arisen another issue whether UN military personnel can, or should, intervene to ensure respect for international humanitarian law by the parties to a conflict, even if they are not explicitly so authorised under a given mandate. The question is posed more sharply in cases where civilian lives are threatened or being violated, as highlighted in the Report of the Independent Inquiry on Rwanda.163 Examining the events leading up to the Rwanda genocide of

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See, Christopher K Penny, ‘“Dropt That or I’ll Shoot . . . Maybe” International Law and the Use of Deadly Force to Defend Property in UN Peace Operations’ (2007) 14 International Peacekeeping 353. See, Dale Stephens, ‘The Lawful Use of Force by Peacekeeping Forces: The Tactical Imperative’ (2005) 12 International Peacekeeping 157 at 164–166; Findlay, above n. 42 at 371; Rowe, above n. 134 at 59–62. Article 9 of the Japanese Constitution (1946) reads: ‘(1) Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes; (2) In order to accomplish the aim of the preceding paragraph, land, sea and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognised’. Under the Japanese law, the Japanese personnel engaged in UN peacekeeping operations are allowed to use small-sized weapons within the limits considered reasonably necessary under the circumstances concerned, if deemed that the unavoidable needs exist on a reasonable ground so as to protect life or person of their own or other personnel present with them on the same spot. The use of small-sized weapons is subject to a further condition that it shall not cause harm to persons, except for cases of personal self-defence: see, Law Concerning Cooperation for United Nations Peace-Keeping Operations and Other Operations, Article 24, Law No. 79 (1992) as amended by Law No. 157 (2001). See also, Hugh Smith, ‘Japan’s Role in International Peacekeeping: An Australian Perspective’ in Alex Morrison & James Kiras (eds), UN Peace Operations and the Role of Japan (Toronto: Canadian Peacekeeping Press, 1996) 67 at 70–71. Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda, at 51, UN Doc S/1999/1257/Annex (16 December 1999) (hereinafter Rwanda Report).

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April 1994,164 throughout which the UN Assistance Mission in Rwanda (UNAMIR) failed to protect Rwanda civilians, the report noted that: Whether or not an obligation to protect civilians is explicit in the mandate of a peacekeeping operation, the Rwandan genocide shows that the United Nations must be prepared to respond to the perception and the expectation created by its very presence.165

The Brahimi Report goes so far as to propose that peacekeepers ‘who witness violence against civilians should be presumed to be authorized to stop it, within their means’ (emphasis added).166 While it is far from clear on what basis this presumption is made, it seems that the report derives the basis from the conviction that armed force should be used in a manner consistent with the perception and the expectation of protection created by the very presence of UN forces. The Security Council may well assert its own authority to ensure respect by the parties to a conflict for the implementation of the Geneva Conventions by virtue of its general responsibility for the maintenance of international peace and security.167 This authority will be exercisable even in the case of armed conflict of a truly internal nature, wherein civilians taking no active part in the hostilities are protected from inhumane treatment such as violence to life and person, taking of hostages, outrages upon personal dignity, and the passing of sentences without due process of law.168 When the violation of civilian protection takes on the nature of genocide as defined in the Genocide Convention,169 the state parties to the Genocide Convention are also entitled to call upon the Security Council to take such action as they consider appropriate for the prevention and suppression of acts of genocide.170 The Security Council has at times confirmed the applicability of international humanitarian law and called upon the parties to a conflict, whether states or non-state entities, to desist from all breaches of international humanitarian

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For details of the event, see the literature cited in Ch. 1, fn. 48. Rwanda Report, above n. 163 at 51. Brahimi Report, above n. 27 at para. 62. For an analysis of this proposition, see, Ted van Baarda & Fred van Iersel, ‘The Uneasy Relationship between Conscience and Military Law: The Brahimi Report’s Unresolved Dilemma’ (2002) 9(3) International Peacekeeping 25 at 33–44. Article 89 of the Additional Protocol I, indeed, explicitly recognises the role of the UN, providing that ‘[i]n situations of serious violations of the Conventions or of this Protocol, the High Contracting Parties undertake to act, jointly or individually, in co-operation with the United Nations and in conformity with the United Nations Charter’. See also, Bourloyannis, above n. 129 at 340–343. Geneva Conventions, above n. 130, Common Article 3. See, 1948 Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277, Article 2 (hereinafter Genocide Convention). See, Genocide Convention, Article 8.

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law.171 The question remains, however, whether UN military personnel will legally be in a position to be able to intervene in an internal armed conflict to the extent necessary to protect civilians, even if they are not explicitly mandated to ensure respect for the implementation of the Geneva Conventions. UN military personnel are under no direct obligation to ensure compliance with the protection of civilians placed under UN authority unless they are so mandated. It can be argued from a different point of view that military personnel provided by states for service in peacekeeping operations are under an indirect obligation, given that most states are under an obligation pursuant to common Article 1 of the Geneva Conventions to ensure respect for the Geneva Conventions by others.172 As Kalshoven has shown in his study, however, the intention of the state parties to the conventions does not necessarily support this view.173 It seems therefore that the presumption made for the protection of civilians by UN military personnel would not go beyond a moral obligation, stemming from the fact that they are physically in a position to be able to intervene in an internal armed conflict to protect civilians. It remains to be seen how the recently developed notion of the ‘responsibility to protect’ will affect the way in which peacekeepers are required to operate on the ground.174 It should be noted, however, that ROE are, in general, less stringent in terms of civilian protection under a broad mandate than restrictions imposed by the absence of political will and resources necessary to act pursuant to ROE.175 UNAMIR was in fact acting on robust ROE which interpreted the mandate to include use of force to defend persons under UN protection against armed attack and to prevent any crime against humanity.176 The failure of UNAMIR to prevent genocide in 171

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See, Stephen M. Schwebel, ‘The Roles of the Security Council and the International Court of Justice in the Application of International Humanitarian Law’ (1996) 27 NYUJILP 731 at 751–759; Michael Bothe, ‘The United Nations Actions for the Respect of International Humanitarian Law and the Coordination of Related International Operations’ in Luigi Condorelli, Anne-Marie La Rosa & Sylvie Scherrer (eds), The United Nations and International Humanitarian Law (Paris: Pedone, 1996) 213 at 219–223. Common Article 1 of the Geneva Conventions reads that: ‘[t]he High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances’ (emphasis added). See, Frits Kalshoven, ‘The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit’ (1999) 2 YbIHL 3. The development of this notion will be examined at length in Ch. 7, Section 5-A. See, Siobhán Wills, ‘Military Interventions on Behalf of Vulnerable Populations: The Legal Responsibilities of States and International Organizations Engaged in Peace Support Operations’ (2004) 9 JCSL 387 at 405–409. Astri Suhrke, ‘Dilemmas of Protection: The Log of the Kigali Battalion’ (1998) 5(2) International Peacekeeping 1 at 11–12; Rwanda Report, above n. 163 at 35. UNAMIR was given broad mandates, inter alia, to ‘contribute to the security of the city of Kigali’: SC Res 872 (5 October 1993). However, there reportedly existed discord between the field force commander and the UN Headquarters

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Rwanda is reportedly ascribed, inter alia, to the lack of political will of UN member states, particularly the permanent members of the Security Council, to reinforce, resupply or otherwise strengthen UNAMIR.177 Reviewing a similar failure in the Former Yugoslavia,178 MacInnis also argues that a review of ROE will not help very much, as long as UN forces continue to suffer a lack of military capability and the doctrinal inflexibility arising from an incorrect understanding of the principle of impartiality.179 For UN forces to ensure respect for international humanitarian law at the very scene of the violence, each national contingent would have to be well prepared, and adequately equipped, to act impartially in implementing the mandate. The Security Council has recently moved to expressly spell out a mandate to protect civilians under immediate threat of physical violence.180 Such mandate purportedly reflects the moral obligation to protect the weak and vulnerable, yet does so only within peacekeepers’ capabilities and their areas of deployment. This restricted approach to the protection of civilian lives seems consistent with the positive obligation to protect the right to life in so far as ‘the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party’.181 Even under the explicit mandate, however, the fundamental issue will be posed as to whether such deontological mandate is reconcilable with the entire institution of peacekeeping aimed at the maintenance of peace and security in an impartial manner, rather than enforcing human rights obligations. The potential conflict between the two countervailing demands can arguably cause ethical confu-

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over the point of whether its mandate included the protection of civilians, resulting in the failure of saving significant numbers of life: Howard, Adelman, ‘Early Warning and Prevention: The United Nations and Rwanda’ in Frances Nicholson & Patrick Twomey (eds), Refugee Rights and Realities: Evolving International Concepts and Regimes (Cambridge: Cambridge University Press, 1999) 289 at 299–301. Rwanda Report, above n. 163 at 35–39, 43–44. The process leading up to the wretched event where the evacuation of UN personnel left thousands of Rwandan refugees indefensible, being attacked and killed, is described in detail in Suhrke, above n. 176 at 3–15. See, Robert Siekmann, ‘The Fall of Srebrenica and the Attitude of Dutchbat from an International Legal Perspective’ (1998) 1 YbIHL 301. John A. MacInnis, ‘Peacekeeping and International Humanitarian Law’ (1996) 3(3) International Peacekeeping 92 at 92–95. The issue remains even when peacekeepers are given an explicit mandate to protect civilians: see, Katarina Månsson, ‘Use of Force and Civilian Protection: Peace Operations in the Congo’ (2005) 12 International Peacekeeping 503. For the author’s understanding of the principle of impartiality, see Ch. 5, Section 3-C. See, Susan C. Breau, ‘The Impact of the Responsibility to Protect on Peacekeeping’ (2006) 11 JCSL 429 at 446–452. Osman v. United Kingdom (1998) 29 EHRR 245 at para. 116; Mahmut Kaya v. Turkey (ECHR) ( Judgment) Application No 22545/93 (28 March 2000) at para. 86.

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sion among peacekeepers.182 Prudence may require the moral autonomy of each peacekeeper in acting to protect civilian lives to be subordinate to, and guided by, the imperative needs for maintaining the integrity and impartiality of the mission.

6. Peacekeeping and Article 42 of the UN Charter There are two ways in which UN forces are assigned to employ armed force: armed force to be used on their own initiative to achieve military objectives and thus to draw a military solution to a political dispute; and armed force to be used to respond in accordance with detailed rules and procedures to achieve non-military objectives pending a solution to a political dispute. While the former is classified as an enforcement action under Article 42 of the Charter, the latter would rather fall within the purview of Article 40 of the Charter as instrumental to an effective implementation of provisional measures. The concept of peace enforcement has sparked extensive debate in the 1990s embarking on a new search for a middleground option between enforcement and peacekeeping. Yet much of the substance included in the concept has traditionally been part of UN peacekeeping operations as evident in the operational directives and ROE, even where peacekeeping forces were deployed at an early stage of armed conflict. In contrast to UN operational directives and ROE, which have allowed for a wider possibility of recourse to armed force, national contingents participating in UN operations in practice ‘have nevertheless been very conservative, tending toward a narrow interpretation of the right of self-defense and setting up strict rules about resort to force when exercising that right’.183 There are a number of reasons that can explain this restrictive approach: a lack of political will and readiness of troop-contributing governments; a lack of sufficient number of personnel and equipment to fulfil the given mandates; and constraints imposed by their own municipal law and governmental policies. A perceived inconsistency or lack of clarity in the mandates given to peacekeeping forces will also make it difficult to translate them into coherent mission objectives. For instance, UNITAF, which was expected to create ‘a secure environment’ in Somalia, was subjected to different interpretations between the UN and the force contributing states. The US government wanted its tasks to be limited and specific to humanitarian purposes, whereas the UN desired to see that the operation would disarm all of the Somali factions

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See, Daniel S. Blocq, ‘The Fog of UN Peacekeeping: Ethical Issues Regarding the Use of Force to Protect Civilians in UN Operations’ (2006) 5 Journal of Military Ethics 201; Paolo Tripodi, ‘Peacekeepers, Moral Autonomy and the Use of Force’ (2006) 5 Journal of Military Ethics 214. Daniel, above n. 21 at 65.

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and set up the foundation for stabilisation of Somalia.184 It is therefore important to clarify, and coordinate with each state’s domestic law and policy, the extent to which the use of armed force can be legitimate under, and consistent with, a given mandate, and also to provide peacekeeping forces with sufficient personnel and equipment to fulfil the mandate. Even if UN military personnel are absolutely free from those legal, political, and material constraints, operational difficulties will still arise and even become greater as a gap widens between what is required under a mandate, which political interests in the counsels of the UN may dictate, and what is practicable and required to fulfil the mandate on the ground.185 Mandates issued for deployment of peacekeeping forces necessarily entail tactical inferiority, which indeed imposes limitations on their capacity in acting to ensure compliance with the mandates. Taking the example of UNFICYP, when the firing across the line escalated into large-scale inter-communal fighting in Cyprus, what was required for UNFICYP personnel was at most to interpose themselves between inter-communal clashes,186 and to defend themselves and their tactically inferior positions by resisting and driving off the attackers with minimum force.187 It is dubious to what extent the interposition of peacekeeping forces between the belligerents can be effective to calm the fighting down, even if their mandate requires the cease-fire to be maintained as agreed upon at the high level by the commanders of each side. Peacekeeping measures will be kept effective to the extent possible under the mandate and within the capacity given to peacekeeping forces. However, should resistance against peacekeeping forces persist, it is the responsibility of the Security Council to adopt enforcement measures under Articles 41 and 42, taking account of failure by one or more of the parties to comply with the peacekeeping measures.

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For details, see, Robert G. Patman, ‘Disarming Somalia: The Contrasting Fortunes of United States and Australian Peacekeeping During United Nations Intervention, 1992–1993’ (1997) 96 African Affairs 509 at 510–512; Debarati G. Sapir & Hedwig Deconinck, ‘The Paradox of Humanitarian Assistance and Military Intervention in Somalia’ in Thomas G. Weiss (ed.), The United Nations and Civil Wars (Boulder: Lynne Rienner Publishers, 1995) 151 at 164. Dandeker & Gow, above n. 20 at 338; Hilaire McCounbrey, ‘International Law and National Contingents in UN Forces’ (1994) 12(3) International Relations 39 at 42. Aide-mémoire for UNFICYP, above n. 31 at para. 21. It is reported that the field commander Gyani was of the view that the interposition of force would be in any case unsuitable from a tactical perspective: see, James, above n. 102 at 131. The use of armed force was allowed only when all peaceful means of persuasion had failed, and the principle of minimum use of force was always to be applied: Aide-mémoire for UNFICYP, above n. 31 at para. 18.

Chapter 7 Regulatory Framework for Peacekeeping 1. Regulation of the Peacekeeping Power It has been shown that peacekeeping can find its legal basis in Article 40 of the UN Charter, whereby the Security Council is allowed to direct peacekeeping operations as part of provisional measures. Peacekeeping can be undertaken at an early stage of armed conflict, where enforcement measures are not warranted but more limited measures are appropriate. Given the expression in Article 40 that the Security Council ‘may’ adopt measures ‘as it deems necessary or desirable’, there is no legal obligation on the part of the Security Council to adopt a certain type of peacekeeping measure in a particular situation.1 One may understand this power as a virtually unfettered discretion in the same sense as Chapter VII powers,2 whereas others may see that the Security Council’s powers are restrained, but are rather exercised with a wide margin of appreciation.3 This supposedly discretionary nature of the Security Council’s peacekeeping power gives rise to two questions: first, whether and on what grounds the peacekeeping power is or should be restrained to prevent their abuse; and second, whether and on what grounds the Security Council is required to exercise its peacekeeping power. The first question reflects the concern that the Security Council is in some cases taking excessive action, whereas the second question addresses the inconsistency of peacekeeping practice. Although both questions relate to the entire activity of the Security Council, this chapter focuses on how the requirements in Article 40 might help regulate the way in which the Security Council exercises its peacekeeping power.

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3

Leland M. Goodrich, Edvard Hambro & Anne Patricia Simons, Charter of the United Nations: Commentary and Documents (3rd and revised ed., New York: Columbia University Press, 1969) at 266. See, Gabriël H. Oosthuizen, ‘Playing the Devil’s Advocate: The United Nations Security Council is Unbound by Law’ (1999) 12 LJIL 549. See, Michael Bothe, ‘Les limites des pouvoirs du Conseil de sécurité’ in René-Jean Dupuy (ed.), The Development of the Role of the Security Council (Dordrecht: Martinus Nijhoff Publishers, 1993) 67 at 69.

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This chapter shifts the perspective of peacekeeping operations by understanding them, not as a diplomatic tool, but rather as a way of exercising legal regulation in the field of international peace and security in accordance with certain regulatory criteria. To this end, Section 2 will first clarify the jurisdictional basis upon which the Security Council and, to a lesser degree, the General Assembly, can direct peacekeeping measures. Based on the understanding of the Security Council as the primary organ responsible for the maintenance of international peace and security, Section 3 will examine the legality of its peacekeeping measures, which, as will be argued, is subject to more stringent conditions than Chapter VII powers. The issue of legitimacy will then be addressed in Section 4, which in turn points to the direction that the Security Council should move towards the ‘responsibility to react and prevent’. Section 5 considers the legal meaning of the Security Council’s ‘responsibility’ from this perspective, examining the regulatory effects of the peacekeeping power upon the legal status of military action by the parties to a conflict in its application.

2. Jurisdictional Bases of Peacekeeping A. Primary Competence of the Security Council It is first and foremost the Security Council that has competence in regulating international affairs relating to the maintenance of peace and security. The Security Council’s powers are derived from, and restrained by, the general competence as provided in Article 24 of the Charter, which reads: (1) In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. (2) In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations.

Although its general competence is broadly framed, the Security Council is bound to act within the constitutional framework of the Charter.4 The Security Council is thus ‘subject to the test of legality in terms of its designated institutional com-

4

See, Prosecutor v. Dusko Tadić (ICTY) ( Jurisdiction) (Appeals Chamber) (1997) 105 ILR 453 at 465 para. 28; Conditions of Admission of a State to Membership in the United Nations (Advisory Opinion) [1948] ICJ Reports 54 at 64.

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petence’.5 Any action going beyond this limit will be ultra vires.6 The Security Council’s actions made outside its jurisdiction are rendered null and void ab initio, as opposed to voidable.7 The Security Council’s competence is first limited to cases where the maintenance of international peace and security is at stake. This limitation is expressly advocated by Judge Fitzmaurice in his dissenting opinion in the Namibia case,8 where it was observed that: limitations on the powers of the Security Council are necessary because of the all too great ease with which any acutely controversial international situation can be represented as involving a latent threat to peace and security, even where it is really too remote genuinely to constitute one. Without these limitations, the functions of the Security Council could be used for purposes never originally intended.9

As far as the peacekeeping power is concerned, the essential basis for the exercise of the power lies with the existence of conflict which is likely to endanger the maintenance of international peace and security, although the determination of the existence of a threat to the peace within the meaning of Article 39 of the Charter is not an essential prerequisite.10 The Security Council is not authorised under the Charter to adopt provisional measures in the absence of any ground whatsoever for concerns about a situation being likely to threaten the maintenance of international peace and security. States are not required to accept or carry out invalid decisions which are not directly related to the maintenance of international peace and security.

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Ian Brownlie, The Rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United Nations (The Hague: Martinus Nijhoff Publishers, 1998) at 219. See generally, C. F. Amerasinghe, Principles of the Institutional Law of International Organizations (2nd ed., Cambridge: Cambridge University Press, 2005) at 193–216; Rudolf Bernhardt, ‘Ultra Vires Activities of International Organizations’ in Jerzy Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzysztof Skubiszewski (The Hague: Kluwer Law International, 1996) 599; Ebere Osieke, ‘The Legal Validity of Ultra Vires Decisions of International Organizations’ (1983) 77 AJIL 239; Felice Morgenstern, ‘Legality in International Organizations’ (1976–77) 48 BYBIL 241; Ebere Osieke, ‘Ultra Vires Acts in International Organizations – The Experience of the International Labour Organization’ (1976–77) 48 BYBIL 259. For the distinction, see, R. Y. Jennings, ‘Nullity and Effectiveness in International Law’ in Cambridge Essays in International Law: Essays in Honour of Lord McNair (London: Stevens & Sons, 1965) 64 at 65–68. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Reports 4 (hereinafter Namibia case). Id. at 294 para. 116 ( Judge Fitzmaurice dissenting opinion); see also, id. at 340–341 paras. 34–35 ( Judge Gros dissenting opinion). See, Ch. 3, Section 7.

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Second, the Security Council’s competence to exercise the peacekeeping power is more restricted than its general competence under Article 24 of the Charter in that Article 40 is limited to provisional measures and cannot be resorted to in justifying other types of measures, particularly those provided elsewhere in the Charter. For instance, the Security Council is precluded from exercising its peacekeeping power to impose terms or means of dispute settlement, which can only be recommended under Articles 36 and 37 of the Charter.11 Likewise, the peacekeeping power cannot be used to authorise enforcement action against one of the belligerent parties to a conflict. Enforcement action can only be imposed under Articles 41 and 42 of the Charter or more generally under Chapter VII authority. B. General Competence of the General Assembly The General Assembly is given a general competence under Article 10 of the Charter, which provides: The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers or functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters

This general competence includes powers to address questions relating to the maintenance of international peace and security under Articles 11(2) and 14.12 It is thus conceivable that the General Assembly is also competent to direct peacekeeping measures.13 It would have in fact been the reason why it was the General Assembly

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13

Contrast, Corfu Channel Case (United Kingdom v. Albania) (Pleadings) [1949] 1 ICJ Pleadings 6 at 19–20. Article 11(2) of the Charter reads in part that: ‘The General Assembly may discuss any questions relating to the maintenance of international peace and security brought before it by any Member of the United Nations . . . and, except as provided in Article 12, may make recommendations with regard to any such questions to the state or states concerned or to the Security Council or to both’. Article 14 provides that: ‘Subject to the provisions of Article 12, the General Assembly may recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations, including situations resulting from a violation of the present Charter setting forth the Purposes and Principles of the United Nations’. See generally, Nigel D. White, Keeping the Peace: The United Nations and the Maintenance of International Peace and Security (2nd ed., Manchester: Manchester University Press, 1997) at 148–182; Eric Suy, ‘The Role of the United Nations General Assembly’ in Hazel Fox (ed.), The Changing Constitution of the United Nations (London: British Institute of International and Comparative Law, 1997) 55 at 62–67; Benedetto Conforti, The Law and Practice of the United Nations (3rd ed., Leiden: Martinus Nijhoff Publishers, 2005) at 221–225; D. W. Bowett, The Law of International Institutions (4th ed., London: Stevens & Sons, 1982) at 45–58; F. A. Vallat, ‘The Competence of the United Nations General Assembly’ (1959–II) RdC 203 at 244–248; Hans

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that gave birth to three types of provisional measures under UN authority: the peace observation mission dealing with the Greek border conflicts with Albania, Bulgaria and Yugoslavia in 1947–52;14 the deployment of UNEF for the Suez crisis from 1956 onward;15 and the territorial administration under UN authority assisting the transition of sovereignty over West New Guinea from the Netherlands to Indonesia in 1962–63.16 The almost unquestionable degree of legitimacy emanating from early General Assembly resolutions conceivably helped overcome or avoid difficulties that could have otherwise arisen in each step towards an expansive understanding of provisional measures. For the General Assembly to direct peacekeeping operations, its jurisdiction is subject to three conditions under the Charter: – that resolutions are only of a recommendatory nature; – that matters should be referred to the Security Council when action is necessary; and – that no recommendations should be made while the Security Council is exercising its functions assigned to it. First, General Assembly resolutions can only be of a recommendatory nature, for there is no provision comparable to Article 25 of the Charter authorising the General Assembly to adopt mandatory decisions. The difference in powers between the Security Council and the General Assembly was highlighted in the Greek border disputes in 1947–52, in which both were involved over a different stage of the disputes. When the United States submitted a draft resolution to the Security Council for the deployment of a peace observation mission, the resolution was written in mandatory language, stipulating that ‘[t]he commission shall be accredited, as an organ of the Security Council, to the Governments of Albania,

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Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (London: Stevens & Sons, 1951) at 193–218. For details, see, Amikam Nachmani, International Intervention in the Greek Civil War: The United Nations Special Committee on the Balkans, 1947–1952 (New York: Praeger, 1990); Rosalyn Higgins, United Nations Peacekeeping: Documents and Commentary, IV Europe 1946–1979 (Oxford: Oxford University Press, 1981) at 1–75. See, Rosalyn Higgins, United Nations Peacekeeping 1946–1967: Documents and Commentary I The Middle East (London: Oxford University Press, 1969) at 219–530; D. W. Bowett, United Nations Forces: A Legal Study of United Nations Practice (London: Stevens & Sons, 1964) at 90–151; Guenter Weissberg, The International Status of the United Nations (New York: Oceana Publications, 1961) at 106–140; William R. Frye, A United Nations Peace Force (London: Stevens & Sons, 1957). See, Rosalyn Higgins, United Nations Peacekeeping 1946–1967: Documents and Commentary II Asia (London: Oxford University Press, 1970) at 91–149; Bowett, above n. 15 at 255–261.

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Bulgaria, Greece and Yugoslavia and shall have the right of direct access to them’.17 In contrast, the General Assembly resolution adopted in the aftermath to establish the UN Special Committee on the Balkans (UNSCOB) took a hortatory formula, merely ‘[r]ecommend[ing] that the four Governments concerned co-operate with the Special Committee in enabling it to carry out these functions’.18 Differences in the legal nature of resolutions did not affect the establishment of UNSCOB in any way, which was clearly within the terms of Articles 10 and 11(2) of the Charter, but did impact upon its effective operation.19 Although the observation by UNSCOB helped in restricting the numbers of armed personnel and the volume of arms supplies that might otherwise have passed across the border,20 the mere recommendatory nature of the resolution allowed the three northern border states to freely reject cooperation, and thus reduced the effects of its operation to a minimum degree.21 The lack of their cooperation, in addition to the United States’ unwillingness to provide armed guards for UNSCOB observers, necessarily restricted the methods of observation to that mainly relying on testimony from witnesses.22 What could be expected of UNSCOB in these circumstances was to collect information and evidence, as well as ‘to “scream” in the hope that the exposure of wrongdoing might check undesirable behavior and have “a sobering effect” on the disputants’.23 In the light of their potential power and the effects 17

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The text of the aborted draft resolution is reproduced in Higgins, above n. 14 at 15–17. Although the Security Council was successful in despatching the Commission of Investigation in the wake of the Greek frontier incident, the US’s hostile policy against the Soviet block made it difficult to reach any further decision on the issue in the Security Council, whereby the issue was eventually brought to the General Assembly on 15 September 1947: for details, see, Nachmani, above n. 14 at 33–36; Higgins, above n. 14 at 5–18; John Campbell, ‘The Greek Civil War’ in Evan Luard (ed.), The International Regulation of Civil War (London: Thames and Hudson, 1972) 37 at 54–55. GA Res 109(II) (21 October 1947) at para. 7, reproduced in Higgins, above n. 14 at 19. Higgins clarified this point, arguing that the opposition by Albania, Bulgaria and Yugoslavia to the establishment of UNSCOB as constitutionally illegal against the will of the parties stems from confusion about the legal consequences flowing from the establishment of UNSCOB with those from the operation of UNSCOB, the former of which was clearly within the terms of Articles 10, 11(2) and 14, whilst the latter required the states’ consent: Higgins, above n. 14 at 31–32. See, Campbell, above n. 17 at 57. Entry of the miliary observers into Albania, Bulgaria and Yugoslavia was in fact categorically rejected: see, Nachmani, above n. 14 at 81–82. Nachmani, above n. 14 at 53–55. The move towards the provision of armed guards for the military observers on the Mexican initiative did not receive support from the United States, as the United States was wary about its political and military implications not only for the Greek crisis but also for peace observation missions in other instances: see, ‘Memorandum of Conversation, by the Secretary of State, 31 August 1948’ in Foreign Relations of the United States 1948 (Washington: United States Government Printing Office) vol. IV, 259 at 260–261. Nachmani, above n. 14 at 153. UNSCOB nonetheless continued its observation mission until it was replaced by the Balkan Sub-Commission of the Peace Observation Commission, which continued observation on request by the parties: GA Res 508(VI) (7 December 1951).

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in preserving situations intact, this experience that UNSCOB gained through its operation stands in contrast to the peace observation missions established by the Security Council.24 The second limitation stems from Article 11(2) of the Charter which, while authorising the General Assembly to discuss any questions relating to the maintenance of international peace and security, provides that ‘[a]ny such question on which action is necessary shall be referred to the Security Council by the General Assembly either before or after discussion’. This limitation, as well as the last limitation to be next dealt with, represents one aspect of the division of responsibility between the Security Council and the General Assembly. A question is posed as to what constitutes ‘action’ for the purpose of this provision. Addressing this question in the Certain Expenses case,25 the ICJ excluded the deployment of UN forces to serve with peacekeeping operations from the reserved domain, restrictively interpreting the ‘action’ merely as coercive or enforcement measures.26 The General Assembly is thus not barred from recommending peacekeeping measures.27 Even UN forces can be deployed upon recommendation by the General Assembly, though it is hardly expected that a UN force thus established would effectively exert its delegated authority to ensure that parties to a conflict comply with the peacekeeping measure. This restriction, however, would instead result from the recommendatory nature of the measure, rather than from the limitation of Article 11(2), given that parties to the conflict are by no means obliged to comply with it. Article 12(1) of the Charter sets forth the last limitation upon the competence of the General Assembly, prohibiting it from making any recommendation while the Security Council is exercising the functions assigned to it in respect of the dispute or situation at issue.28 Whether this limitation has any substantive effect is dependent upon what is meant by the functions assigned to the Security Council and by the General Assembly’s recommendation. A formalistic view may take a position that the Security Council is exercising the assigned functions while the issue is on its agenda, even if it is not deliberating on it. This view also suggests that

24 25

26 27

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See, Ch. 3, Section 3-B. Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter) (Advisory Opinion) [1962] ICJ Reports 151 (hereinafter Certain Expenses case). Id. at 164–165. On the other hand, the ICJ opinion left unresolved the issue of whether or not the General Assembly is barred from recommending enforcement action under Article 11(2): see generally, White, above n. 13 at 152, 174–175; John F. Murphy, The United Nations and the Control of International Violence: A Legal and Political Analysis (Manchester: Manchester University Press, 1983) at 81–82. Article 12(1) of the Charter provides that: ‘While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests’.

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the General Assembly is making recommendations when it adopts a resolution. It is easily found, however, that the actual practice of the General Assembly has deviated from the formalistic view:29 adopting resolutions parallel,30 complementary,31 or in challenge,32 to Security Council resolutions, in a pre-emptive,33 or reactive manner.34 Such deviation can be criticised in that the General Assembly has been acting ultra vires.35 Yet a more liberal approach can alternatively be taken by adopting an interpretation that the General Assembly can decide for itself whether the Security Council is functioning within the meaning of Article 12(1), and also that it can make a general declaration or observation which does not amount to a specific recommendation in respect of the particular dispute or situation.36 The liberal interpretation is justifiable, in view of the ‘necessity for the Assembly to promote the aims of the Charter when the Security Council cannot or will not do

29

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For an authoritative interpretation in this respect, see, ‘Practice of the United Nations As Regards the Consideration of the Same Questions by the Security Council and the General Assembly’ [1964] UNJY 228 at 229–237; ‘Power of the General Assembly to Make Recommendations to the Members of the United Nations on Any Questions or Matters within the Scope of the Charter – Interpretation of Article 12 of the Charter’ [1968] UNJY 185; see also, White, above n. 13 at 161–178. See, e.g., GA Res 3212(XXIX) (1 November 1974) concerning the 1974 Cyprus crisis, in substance repeating SC Res 353 (20 July 1974). See, e.g., GA Res 3485(XXX) (12 December 1975) concerning the Indonesian invasion of East Timor, requesting the Security Council to consider the situation in accordance with Article 11(3) of the Charter, to which the Security Council responded by adopting SC Res 384 (22 December 1975). See, e.g., GA Res 47/121 (18 December 1992); GA Res 48/88 (20 December 1993); GA Res 49/10 (3 November 1994), in which the General Assembly urged the Security Council to exempt the Republic of Bosnia and Herzegovina from the arms embargo as imposed on the Former Yugoslavia under SC Res 713 (25 September 1991): see, Christine Gray, ‘Bosnia and Herzegovina: Civil War or Inter-State Conflict? Characterization and Consequences’ (1996) 67 BYBIL 155 at 182–184. Pre-emptive motion in the General Assembly necessarily involves a risk in that it may result in a constitutional crisis should the Security Council’s reaction be confrontational. An example of such a precarious situation occurred when the General Assembly approved financing for the continuation of the Mission for the Referendum in the Western Sahara (MINURSO) and prepared a draft resolution demanding to strengthen the existing peace plan for Western Sahara, preceding the Security Council’s decision about a renewal of the mandate and in the face of its growing suspicion of the on-going peace process: see, Jarat Chopra, Peace-Maintenance: The Evolution of International Political Authority (London: Routledge, 1999) at 181–182. See, e.g., GA Res 2793(XXVI) (7 December 1971) dealing with the hostilities between India and Pakistan with regard to the secession of Bangladesh from Pakistan, in response to the request made by the Security Council wherein no action was agreed upon: SC Res 303 (6 December 1971). See, Dan Ciobanu, Preliminary Objections: Related to the Jurisdiction of the United Nations Political Organs (The Hague: Martinus Nijhoff Publishers, 1975) at 111–121. See, Kay Hailbronner & Eckart Klein, ‘Article 12’ in Bruno Simma (ed.), The Charter of the United Nations: A Commentary (2nd ed., Oxford: Oxford University Press, 2002) 287 at 292–293; Goodrich, Hambro & Simons, above n. 1 at 130.

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so’.37 It is more so, given the consistent practice of the General Assembly over the decades adopting resolutions,38 which from a formalistic point of view might well have been subjected to Article 12(1) limitation. When the General Assembly takes an issue into its own hands in place of the Security Council, whether prohibited or not under Article 12(1), it will conceivably have less chance of success and more chance of being criticised for abuse for political motives. It was UNSCOB that established a precedent that ‘the General Assembly was used as a vehicle to circumvent the stalemate in the Security Council’,39 to deal with more serious threats to the peace which could not be solved in the Security Council due to the clash of the great powers’ interests. In this case, the US interests were at stake in keeping attention away from the Greek civil war per se.40 Although the adoption of the ‘Uniting for Peace’ resolution was aimed at strengthening the General Assembly’s powers for the maintenance of international peace and security,41 political stalemate among Security Council permanent members will inevitably impede the exercise of those powers to the possible detriment of a chance of success.

3. Legality of Peacekeeping A. General Legal Framework As explicitly stated in Article 24(2) of the Charter, any action of the Security Council including peacekeeping operations must be taken in accordance with the purposes and principles of the Charter.42 The general legal limits thus include the respect for

37 38 39 40

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Bowett, above n. 13 at 48–49. See, 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331, Article 31(3)(b). Nachmani, above n. 14 at 152. The activity of UNSCOB in the Northern Greek frontier was necessary to keep the definition of the Greek crisis as an international conflict, not as an internal civil strife: see, Nachmani, above n. 14 at 95. On the other hand, Coufoudakis obverses that the choice of the UNSCOB as the primary political instrument of US policy in the Greek crisis necessarily had a restraining effect on US policy makers, making it difficult to compromise outside the UN framework: Van Coufoudakis, ‘The United States, the United Nations, and the Greek Question, 1946–1952’ in John O. Iatrides (ed.), Greece in the 1940s: A Nation in Crisis (Hanover: University Press of New England, 1981) 275 at 289–292. GA Res 377(V) (3 November 1950). For a through study of the resolution, see, e.g., Harry Reicher, ‘The Uniting for Peace Resolution on the Thirtieth Anniversary of Its Passage’ (1981) 20 Col JTL 1; Vallat, above n. 13 at 261–267; L. H. Woolsey, ‘The “Uniting for Peace” Resolution of the United Nations’ (1951) 45 AJIL 129. See generally, Kenneth Manusama, The United Nations Security Council in the Post-Cold War Era: Applying the Principle of Legality (Leiden: Martinus Nijhoff Publishers, 2006); David Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter: Legal Limits and the

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the self-determination of peoples (Article 1(2)), the promotion of human rights (Article 1(3)), the sovereign equality of member states (Article 2(1)), the obligation to act in good faith (Article 2(2)), and non-intervention in the domestic jurisdiction of a state (Article 2(7)). Although the purposes and principles are broadly stated, the studies on Chapter VII powers have suggested that an in-depth reading in the light of the subsequent development of international law poses substantive limits to the exercise of Security Council’s powers. These limits arguably include nonderogable international human rights standards and basic norms of international humanitarian law.43 Given that some of the fundamental norms also set inviolable limits as jus cogens,44 states are also prohibited from giving effect to any obligations imposed by the Security Council in a manner contrary to jus cogens, for example, by assisting to commit or failing to prevent genocide,45 or by depriving people of the opportunity to achieve self-determination. While such substantive limits construct an overall legal framework governing the Security Council action in general, more specific legal limits must be ascertained to maintain the legality of peacekeeping operations. The attempt is doomed to failure if peacekeeping is vaguely and expansively understood. Yet, by focusing on Article 40 of the Charter as a focal point of the legal basis, certain parameters can be ascertained, within which the exercise of the peacekeeping power is regulated. Some of the legal limits to the Security Council’s peacekeeping power thus require special attention. B. Justice and International Law Article 1(1) of the Charter mandates a peaceful adjustment or settlement of international disputes or situations to be brought about ‘in conformity with the principles

43

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Role of the International Court of Justice (The Hague: Kluwer Law International, 2001) at 25–33; Susan Lamb, ‘Legal Limits to United Nations Security Council Powers’ in Guy S. Goodwin-Gill & Stefan Talmon (eds), The Reality of International Law: Essays in Honour of Ian Brownlie (Oxford: Clarendon Press, 1999) 361 at 366–374; Benedetto Conforti, ‘Le pouvoir discrétionnaire du Conseil de sécurité en matiére de constatation d’une menace contre la paix, d’une rupture de la paix ou d’un acte d’agression’ in René-Jean Dupuy (ed.), The Development of the Role of the Security Council (Dordrecht: Martinus Nijhoff Publishers, 1993) 51 at 54–57; Bowett, above n. 13 at 33. See generally, Erika de Wet, The Chapter VII Powers of the United Nations Security Council (Portland Oregon: Hart Publishing, 2004) at 133–368; Schweigman, above n. 42 at 163–203; T. D. Gill, ‘Legal and Some Political Limitations on the Power of the UN Security Council to Exercise Its Enforcement Powers under Chapter VII of the Charter’ (1995) 26 NYIL 33. See, e.g., Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia (Serbia and Montenegro)) (Further Requests for the Indication of Provisional Measures) [1993] ICJ Reports 325 at 441 paras. 102–103 ( Judge ad hoc Lauterpacht). See, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) ( Judgment) [2007] ICJ at paras. 428–438.

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of justice and international law’.46 Given that there is no such reference made in relation to collective security measures, it has led to a view that in acting under Chapter VII, the Security Council is not bound by the principles of justice and international law.47 By expansively invoking Chapter VII, therefore, the Security Council may well circumvent the principles of justice and international law, which would otherwise have a bearing upon the way in which it should operate. This risk will be substantially mitigated by placing Article 40 of the Charter at the centre of peacekeeping operations. It is arguable that provisional measures under Article 40 are also exempted from the requirement. Yet the purpose of inserting this phrase was to protect small- and medium-sized states from Great Powers trying to impose a settlement or to sacrifice their rights.48 Any attempts to impose a settlement, or to sacrifice the rights of any member states, would run counter to the whole purpose of provisional measures, which is to freeze the situation without imposing any settlement or any prejudice to the rights or interests of belligerent parties. A question has also been posed whether the Security Council can trump the existing legal order, even under Chapter VII, by adopting measures that are incompatible with customary or conventional rules of international law.49 Some commentators critically reviewed Security Council Resolution 748 adopted under Chapter VII in response to the 1988 Lockerbie incident, arguing that Libya’s responsibility for the terrorist attack could not be predetermined without offending the principles of justice and international law.50 A more recent example is the controversy over the adoption of ‘quasi-legislative’ resolutions imposing general and abstract obligations upon states.51 Although a decision to direct a peacekeeping 46

47

48 49

50

51

The term encompasses all sources of international law including treaties, customary international law and general principles of law, and arguably indicates even a connection to natural law: see, Rüdiger Wolfrum, ‘Article 1’ in Bruno Simma (ed.), The Charter of the United Nations: A Commentary (2nd ed., Oxford: Oxford University Press, 2002) 39 at 43. See, e.g., Bernd Martenczuk, ‘The Security Council, the International Court and Judicial Review: What Lessens from Lockerbie?’ (1999) 10 EJIL 517 at 544–545; Goodrich, Hambro and Simons, above n. 1 at 27–28. But see, Dapo Akande, ‘The International Court of Justice and the Security Council: Is There Room for Judicial Control of Decisions of the Political Organs of the United Nations?’ (1997) 46 ICLQ 309 at 318–320. See, Gill, above n. 43 at 67. See, e.g., Rosalyn Higgins, ‘The New United Nations: Appearance and Reality’ in David Freestone, Surya Subedi & Scott Davidson (eds), Contemporary Issues in International Law (The Hague: Kluwer Law International, 2002) 143 at 152–154; Keith Harper, ‘Does the United Nations Security Council Have the Competence to Act As Court and Legislature?’ (1994) 27 NYUJILP 103. See, Gerald P. McGinley, ‘The I.C.J.’s Decision in the Lockerbie Cases’ (1992) 22 GaJICL 577 at 599. Compare, e.g., Axel Marschik, ‘Legislative Powers of the Security Council’ in Ronald St John Macdonald & Douglas M. Johnston (eds), Towards World Constitutionalism (Leiden: Martinus Nijhoff Publishers, 2005) 457; Paul C. Szasz, ‘The Security Council Starts Legislating’ (2002) 96

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measure can have the same binding force under Article 25 of the Charter,52 the provisional nature of the operation indicates that the existing legal order will not be superseded under Article 40, but rather the operation of the existing rules will be temporarily suspended.53 C. Impartiality The principle of impartiality is, as shown in Chapter 5, incorporated into Article 40 of the Charter as one of the requirements for the proper undertaking of provisional measures,54 which is, when applied to non-international conflicts, inextricably interwoven with the principle of non-intervention as embodied in Article 2(7) of the Charter. By placing Article 40 at the centre of peacekeeping, the Security Council is required to maintain a delicate balance in maintaining peace and security, whilst respecting the sovereignty of the state concerned not to intervene into matters falling within its domestic jurisdiction. In practice, this legality requirement should equally apply to any UN mission even if endorsed under Chapter VII, except for enforcement action truly targeting a particular state or non-state entity posing a threat to the peace, inasmuch as the Chapter VII exception to the principle of non-intervention is so restricted under Article 2(7) of the Charter. The UN has experimentally developed different approaches to ensure impartiality without violating the principle of non-intervention in dealing with internal armed conflicts, especially where armed opposition groups are exercising some degree of de facto authority over a portion of the territory. This study previously identified three methods that have emerged from the examination of peacekeeping experience: – collective recognition of armed opposition groups as de facto authorities; – humanitarian assistance; and – election-monitoring under UN auspices to ensure free and fair elections.55 This is by no means an exhaustive list, leaving the possibility that other approaches may be developed through practice. Yet common to those approaches is the reliance

52 53

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AJIL 901; with Munir Akram & Syed Haider Shah, ‘The Legislative Powers of the United Nations Security Council’ in Ronald St John Macdonald & Douglas M. Johnston (eds), Towards World Constitutionalism (Leiden: Martinus Nijhoff Publishers, 2005) 431; Matthew Happold, ‘Security Council Resolution 1373 and the Constitution of the United Nations’ (2003) 16 Leiden JIL 593. See, Ch. 4. See, D. W. Greig, Invalidity and the Law of Treaties (London: British Institute of International and Comparative Law, 2006) at 191–192. The second sentence of Article 40 reads that: ‘Such provisional measures shall be without prejudice to the rights, claims, or positions of the parties concerned’. See, Ch. 5, Section 3-D.

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on the higher norm, such as the right of self-determination and political participation, to ensure that self-interest of a certain group of states should not dictate the way in which the Security Council’s peacekeeping power is exercised. A question is posed, however, whether such methods to ensure impartiality constitute a legality test in the sense that the failure to meet the test would result in the illegality of peacekeeping operations. For example, does the failure to recognise an armed opposition group as de facto authority constitute illegality of the Security Council’s decision-making? Does the operational failure to deliver humanitarian assistance or to ensure a free and fair election render the whole peacekeeping operation illegal? To answer those questions, it must be noted that the three approaches represent a departure from the original role of peacekeeping to supervise and verify disengagement, encompassing much wider roles guided by humanitarian and democratic values. The failure to implement such values during the operation should not be seen as the grounds for rendering the entire operation illegal unless it results in prejudicing the rights, claims or interests of one of the parties. The significance of peacekeeping under Article 40 lies with the value-laden nature confined to certain aspects of conflict. Any imposition of values requires the adoption of an enforcement measure, which should not be substituted by widening the role of peacekeeping.56 D. Proportionality and Operational Necessity The expression ‘as it deems necessary or desirable’ in Article 40 of the Charter, whilst indicating a margin of appreciation in deciding what measures should be taken as well as whether to adopt provisional measures, may imply a restriction in that no measure should be taken beyond the extent necessary or desirable. The degree of restriction can be further clarified when the requirement of proportionality is read into it, which can arguably be derived from the purposes of the UN.57 Proportionality serves as a general principle to limit the exercise of the powers of regulatory authorities,58 and as such may also be applicable to provisional measures. The general principle of proportionality in international law on the use of armed

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The possible emplacement of peacekeeping forces in an unsuitable environment is one of the criticisms levelled at the Brahimi Report. See, Nigel D. White, ‘Commentary on the Report of the Panel on United Nations Peace Operations (The Brahimi Report)’ (2001) 6 JCSL 127 at 128–129. See, Judith Gardam, Necessity, Proportionality and the Use of Force by States (Cambridge: Cambridge University Press, 2004) at 206–212; Judith Gardam, ‘Legal Restraints on Security Council Military Enforcement Action’ (1996) 17 Mich JIL 285 at 307–309. See, D. W. Greig, ‘Reciprocity, Proportionality and the Law of Treaties’ (1994) 34 VaJIL 295 at 296–97, 322–27.

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force operates in two different legal regimes: jus ad bellum and jus in bello.59 While the former proportionality encompasses the minimisation of the disruption of international peace and security by regulating the circumstances where the use of armed force can be justified, the latter concerns the way in which military attacks are conducted and requires it to strike a balance between military necessity and humanitarian considerations. A similar consideration should draw a line between proportionality in deciding what measures the Security Council should take in a given situation on the one hand and the proportional implementation of the measures on the other. At the decision-making level, proportionality requires a rational link between the legitimate objective and the methods chosen to achieve the objective.60 The application of proportionality may make unjustified, even if not ultra vires, the adoption of a provisional measure that is disproportionate to what is needed to achieve the determined goal. Yet there does not seem to be a consensus as to whether the Security Council’s decisions are bound by the general principle of proportionality. Some commentators indeed find the principle of proportionality applicable to the Security Council’s action by regarding the words ‘to restore international peace and security’ in Article 39 of the Charter as the yardstick for determination.61 Others argue that proportionality is irreconcilable with the flexibility that the Security Council needs, and is entitled to, in order to engage in prompt and effective action.62 What is proportional is, in any event, a matter of judgment in each specific situation that requires functional reference to all the various factors relevant to the particular situation.63 UN political organs are required to consider the type, 59

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See, Gardam (2004), above n. 57 at 11–16; see also, Judith Gail Gardam, ‘Proportionality as a Restraint on the Use of Force’ (2000) 20 Aust YBIL 161; Judith Gail Gardam, ‘Proportionality and Force in International Law’ (1993) 87 AJIL 391. See, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Reports 226 (hereinafter Legality of Nuclear Weapons case) at 583–584 ( Judge Higgins dissenting opinion); R (Daly) v. Secretary of State for the Home Department [2001] 2 AC 532 at 547–58. For suggestions of a wider equation to measure the proportionality, see, e.g., Yoram Dinstein, War, Aggression and Self-Defence (3rd ed., Cambridge: Cambridge University Press, 2001) at 208–211. See, Gardam (2004), above n. 57 at 199–212; Nicolas Angelet, ‘International Law Limits to the Security Council’ in Vera Gowlland-Debbas (ed.), United Nations Sanctions and International Law (The Hague: Kluwer Law International, 2001) 71 at 72–74. See also, In Larger Freedom: Towards Development, Security and Human Rights for All, at para. 126, UN Doc A/59/2005 (21 March 2005). See, Christine Gray, ‘A Crisis of Legitimacy for the UN Collective Security System?’ (2007) 56 ICLQ 157 at 165–66; de Wet, above n. 43 at 185. See, Myres M. McDougal & Florentino P. Feliciano, The International Law of War: Transnational Coercion and World Public Order (Dordrecht: Martinus Nijhoff Publishers, 1994) at 243; D. P. O’Connell, The Influence of Law on Sea Power (Manchester: Manchester University Press, 1975) at 64.

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scale, and duration of a peacekeeping measure in the light of the extent necessary to achieve a goal set by a political or diplomatic decision. When there is a potential conflict with the principle of non-intervention into the domestic jurisdiction of a state, peacekeeping measures are necessarily required to be proportional to the scope and degree of violence.64 Yet criticism is often levelled at under-resourced deployment of peacekeepers, not at excessive application of force.65 The disproportionately insufficient commitment to peacekeeping may well give rises to issues of legitimacy if, as will be examined in the next part, it is found inconsistent with the general expectation, but would hardly render the entire operation illegal. In the implementation phase, proportionality does not play a significant role in restricting the use of armed force by peacekeeping forces for the purpose of ensuring compliance of the parties involved with provisional measures, inasmuch as they operate under stricter conditions and regulations. UN military personnel, as shown in Chapter 6,66 have consistently been mandated to limit their use of armed force to what is reasonably required to counter an attack or a threat of attack in the given circumstances. The restriction on the use of armed force by peacekeeping forces appears to be based on a different rationale from that underpinning proportionality in that UN military personnel are guided by operational necessity and efficacy rather than military necessity.

4. Legitimacy of Peacekeeping The new perspective appears premised upon the proposition that the Security Council should perform assigned tasks to bring about outcomes that UN member states expect ‘in accordance with generally accepted principles of right process’.67 Apart from the validity and legality of measures that the Security Council takes, this proposition has generated constitutional challenges to the legitimacy of its decisions, in an attempt to address two concerns: the process of decision-making in the Security Council; and the principled justification for collective measures.68 While the first concern is common to all Security Council determinations and

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See, Ch. 5, Section 4. The difficulty of assembling a sufficient number of well equipped military personnel is pointed out in the Report of the Panel on United Nations Peace Operations, at 17–18 paras. 102–108, UN Doc A/55/305-S/2000/809 (21 August 2000) (hereinafter Brahimi Report). See, Ch. 6, Section 5-A. See, Thomas M Franck, The Power of Legitimacy Among Nations (New York: Oxford University Press, 1990) at 24; see also, David D. Caron, ‘The Legitimacy of the Collective Authority of the Security Council’ (1993) 87 AJIL 552 at 559–561. See, Caron, above n. 67 at 555.

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has been extensively addressed in the legal literature,69 the principled justification depends on the type of action to be justified. As far as peacekeeping measures are concerned, the perceived legal ambiguity of peacekeeping indicates the want of legitimacy, which has been redeemed by seeking the consent of sovereign states or by invoking Chapter VII powers.70 Using Franck’s terminology, the adoption of measures without seeking the consent of sovereign states or invoking Chapter VII powers has to suffer the absence of a ‘symbolic validation’ of the peacekeeping power to serve as a cue to elicit compliance with the measures.71 Yet it is arguable that the Security Council itself has gained the institutional legitimacy to decide on the proper use of the term ‘peacekeeping’, attaching a symbolic value to peacekeeping operations deployed under its auspices.72 The alternative justification based on Article 40 with sound understanding of its relationship with other Charter provisions may further enhance the legitimacy of peacekeeping measures. Franck has developed the discourse of legitimacy in international law, setting forth four properties necessary to exert a strong pull on states to comply with rules: determinacy; symbolic validation; coherence; and adherence.73 This influential study has subsequently been relied upon in an attempt to impose restrictions upon Security Council authorisation of military operations under Chapter VII authority, applying the suggested criteria for legitimacy.74 Yet the application of those criteria to peacekeeping is not straightforward. In fact, given the highly political nature of decision-making processes in UN political organs such as the Security Council, it may also be true to say that ‘[i]ndeterminacies and inconsistencies have played a useful role in attaining important objectives’.75 Based on the recommendations of the Brahimi Report,76 the Security Council adopted Resolution 1327, pledging to ‘give peacekeeping operations clear, credible and achievable mandates’.77 Yet in practice it is difficult to reconcile such a requirement with the need for flexible and robust operations,

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70 71 72

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75 76 77

See, e.g., Sean D. Murphy, ‘The Security Council, Legitimacy, and the Concept of Collective Security After the Cold War’ (1994) 32 Col JTL 201 at 246–269; Caron, above n. 67 at 562–588. See, Ch. 1, Sections 3–4. See, Franck, above n. 67 at 92. See, Ian Hurd, After Anarchy: Legitimacy and Power in the United Nations Security Council (Princeton: Princeton University Press, 2007) at 124–128. Franck, above n. 67; See also, Thomas M. Franck, ‘Legitimacy in the International System’ (1988) 82 AJIL 705. See, e.g., Burns H. Weston, ‘Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy’ (1991) 85 AJIL 516. Oscar Schachter, ‘United Nations Law’ (1994) 88 AJIL 1 at 9. Brahimi Report, above n. 65 at paras. 56–64. SC Res 1327 (13 November 2000).

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potentially inhibiting an early deployment of peacekeeping missions.78 The international concerns with maintaining peace and security in a conflict zone are often weighed against countervailing political, economic or military demands, in setting appropriate standards for legitimate Security Council action. Caution must be exercised so that the strict requirement of determinacy will not restrain the Security Council and make it more reluctant in action. In comparison with enforcement measures, peacekeeping measures are less extensive and, as has been previously shown, are subject to more restrictive requirements so that such measures can meet the legitimate expectation of belligerent parties. After all, peacekeeping measures are designed to help belligerent parties in finding a way out of the deteriorating situation without compromising their respective positions. Parties involved in an armed conflict would therefore be more receptive to Security Council actions for prevention under Article 40 of the Charter than those in pursuance of its enforcement powers. Nevertheless, legitimacy issues have confronted the Security Council from time to time when it does not make sufficient commitment to peacekeeping in the face of a deteriorating situation. While its role of preventing the escalation of armed conflicts underscores the significance of peacekeeping measures at an early stage, it is debatable whether the Security Council is required to adopt peacekeeping measures in the face of the uncertainty of risk involved in a given situation. The question concerns the progression of the Security Council’s peacekeeping power to a normative level providing parameters within which issues concerning international peace and security should be addressed. The starting point to search for an answer goes back to the primary responsibility conferred upon the Security Council for the maintenance of international peace and security under Article 24(1) of the Charter. The conferment of primary responsibility upon the Security Council arguably has been associated with the view that the Security Council would be failing to discharge its responsibility if it did not act or take a particular action when it was supposed to or expected to do so.79 This view has gained momentum as the Security Council has allegedly acted on a selective and privatised basis in the choice of not only targets, but also in relation to its type of reaction. The inconsistency of the Security Council’s practice indicates that its actions have not reflected the collective interests of UN member states, but only the self-interests of Security

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See, Christine Gray, ‘Peacekeeping After the Brahimi Report: Is There a Crisis of Credibility for the UN?’ (2001) 6 JCSL 267 at 275–278. Goodrich, Hambro & Simons, above n. 1 at 203.

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Council permanent members.80 Notwithstanding the original intention,81 too great a discrepancy between what member states expect and what the Security Council delivers in reality may well help diminish the legitimacy of its determinations and even its existence.82 It can be argued that the legitimate expectations, which have been subsequently fostered among UN member states,83 have made more viable the interpretation of Article 24(1) as requiring the Security Council to act in the interests of the global community. The issue is inextricably related to reasonable application of the Security Council’s powers by reference to the standard of what has generally been done, or what is widely expected to be done, in comparable situations. Yet the notion of reasonableness in international legal discourse indicates nothing more than the persistent problem with the legitimacy of an international legal order and the possibility of diversified and even contradictory interpretations,84 which may cause more harm than good without being subject to judicial reasoning. The question thus requires an examination as to whether and to what extent the Security Council’s ‘responsibility’ within the UN system has acquired legal significance capable of setting the standard as to when it is required to adopt peacekeeping measures, pushing aside all the other considerations to the margin. The next part examines this question by tracing the legal development of the notion of ‘responsibility to protect’ in the light of the impact that its application to peacekeeping measures might have upon international law on the use of force in general.

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See, e.g., Martti Koskenniemi, ‘The Place of Law in Collective Security’ (1996) 17 Mich JIL 455 at 460–462; John Quigley, ‘The “Privatization” of the Security Council Enforcement Action: A Threat to Multilateralism’ (1996) 17 Mich JIL 249 at 270–273. The original intention was reportedly the creation of a powerful executive committee capable of enforcing the peace in a mandatory manner when major powers had an interest and were willing to cooperate in exercising the power: see, e.g., Robert C. Hilderbrand, Dumbarton Oaks: The Origins of the United Nations and the Search for Postwar Security (Chapel Hill: The University of North Carolina Press, 1990) at 15–16; Leland M. Goodrich, The United Nations in a Changing World (New York: Columbia University Press, 1974) at 21. See, John Quigley, ‘The United Nations Security Council: Promethean Protector or Helpless Hostage?’ (2000) 35 Tax ILJ 129 at 167–170; Caron, above n. 67 at 559–561. Byers argues that legitimate expectations, which can be defined as legally justifiable expectations concerning the legal relevance and effect of a certain type of behaviour, should also be relevant to international regimes and institutions: Michael Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law (Cambridge: Cambridge University Press, 1999) at 106–109. Although he uses the concept to explain the persistence of international regimes and institutions, it may also be relevant to the institutional development through progressive interpretations of the constituent provisions. See, O. Corten, ‘The Notion of “Reasonable” in International Law: Legal Discourse, Reason and Contradictions’ (1999) 48 ICLQ 613 at 618–620.

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5. Peacekeeping towards the Responsibility to React and to Prevent A. The Notion of Responsibility The quest for a certain degree of consistency and coherency in the Security Council’s actions underpinned the idea of shifting the focus from ‘right’ to ‘responsibility’. The idea was first spelled out in the report submitted by the International Commission on Intervention and State Sovereignty (ICISS) in 2001 in relation to humanitarian intervention.85 By re-characterising state sovereignty from ‘right’ to ‘responsibility’, the report purported to make a change in perspective from the traditional and right-oriented notion of humanitarian intervention to the ‘responsibility to protect’.86 Although it stopped short of declaring that there is a legal obligation to protect, it certainly went beyond the traditional question of whether humanitarian intervention was permissible or not.87 The Commission stressed the paramount importance of the Security Council in dealing with military intervention issues for human protection purposes.88 Yet it did not categorically exclude the possibility that the responsibility to protect might ultimately be assumed by other organs or individual states without UN authorisation, setting forth ‘just cause’ as the threshold condition, as well as four precautionary criteria of legitimacy for intervention: right intention; last resort; proportionality of means against ends; and reasonable prospects of success.89 The idea of focusing on ‘responsibility’ to intervene was subsequently given greater attention in the report of the UN Secretary-General’s High-Level Panel on Threats, Challenges and Change published in December 2004.90 After reiterating the growing recognition of the ‘responsibility to protect’ of states, the report endorsed: the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort,

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International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect (Ottawa: International Development Research Centre, 2001) (hereinafter ICISS Report). The idea was reportedly influenced in particular by the work of Francis M. Deng, et al., Sovereignty As Responsibility: Conflict Management in Africa (Washington: Brookings Institution, 1996). ICISS Report, above n. 85 at 11–18. Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2004) at 430. ICISS Report, above n. 85 at para. 6.28 Id. at 29–37. For a critical review of those ‘ethical checklists’, see, David Chandler, ‘The Responsibility to Protect? Imposing the “Liberal Peace”’ (2004) 11 International Peacekeeping 59 at 68–76. UN Secretary-General’s High Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility (New York: United Nations Department of Public Information, 2004) (hereinafter Panel Report).

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In contrast to the ICISS Report, the Panel Report recognised a certain responsibility on the part of the Security Council to take action to combat humanitarian crises by linking its vision of shared responsibility directly to the UN.92 In this context, it addressed five basic criteria of legitimacy in considering when the Security Council should authorise military intervention: seriousness of threat; proper purpose (equivalent presumably to right intention); last resort; proportionality of means against ends; and balance of consequences (equivalent to reasonable prospects of success).93 Yet the way in which the Security Council is required to discharge the responsibility is confined to a last resort under Chapter VII of the Charter only if it is prepared to declare that the situation constitutes a threat to international peace and security.94 The UN Secretary-General’s follow-up report, In Larger Freedom, echoed the endorsement of the ‘responsibility to protect’, placing emphasis on the use of peaceful means rather than on military intervention. It also emphasised the centrality of the Security Council in carrying out action involving the use of armed force.95 Notwithstanding concerns expressed by several states about the legal underpinnings and potential abuse of the idea,96 the General Assembly affirmed in the 2005 World Summit Outcome the notion of ‘responsibility to protect’ in a wider sense encompassing not only military intervention but also peaceful means to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.97 Yet the divided views among states resulted in a setback in clarifying and enhancing the legal meaning of the notion. The final text omitted any language on the set of criteria addressing the legitimacy of military intervention, having reportedly and understandably met with hostility from some states, notably the US which did not want any guidelines adopted that could limit the Security Council’s complete freedom to make judgments on a case-by-case basis.98 It also set different 91 92

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Id. at 66 para. 203. See, Carsten Stahn, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’ (2007) 101 AJIL 99 at 105–106. Panel Report, above n. 90 at 67 para. 207. Id. at 66 para. 202. In Larger Freedom: Towards Development, Security and Human Rights for All, at para. 135, UN Doc A/59/2005 (March 2005). See, UN Doc A/59/PV.86 (6 April 2005) at 5 (Pakistan), 9 (Algeria), 13 (Egypt); UN Doc A/59/ PV.87 (7 April 2005) at 6 (Russia), 18 (Iran); UN Doc A/59/PV.89 (8 April 2005) at 15 (Cuba), 22 (Viet Nam), 24 (Venezuela). See also, Gray, above n. 62 at 166–168. GA Res 60/1 (24 October 2005) at paras. 138–139. Gareth Evans, ‘From Humanitarian Intervention to the Responsibility to Protect’ (2007) 24 Wisconsin International Law Journal 703 at 716–717.

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tones for expressing the legal status of the notion depending on the context in which it is used. The responsibility was plainly and unconditionally affirmed in relation to the reaction phase through appropriate diplomatic, humanitarian, and other peaceful means. On the other hand, the responsibility to prevent and to protect was expressed as a general appeal to facilitate voluntary engagement by states.99 Its scope was further confined by the Security Council itself, which embraced the notion only in relation to the protection of civilians in armed conflict.100 It is somewhat ambiguous, as far as peacekeeping is concerned, to what extent the development and setback of the notion of the ‘responsibility to protect’ can be read into the Security Council’s responsibility to direct peacekeeping measures.101 One may find the 2005 World Summit Outcome as an affirmation of certain legal responsibility to react by undertaking peacekeeping measures as a type of peaceful means. Others may assert that given the recent practice relying on Chapter VII in deploying peacekeeping forces, the Security Council still retains a discretion to make judgments on a case-by-case basis. Neither explanation is satisfactory, inasmuch as such a characterisation of peacekeeping is misleading and too simplistic to understand the legal nature of each peacekeeping operation.102 Another point of uncertainty in relation to the Security Council’s responsibility on peacekeeping lies with its transcending nature between the responsibility to prevent and the responsibility to react. As discussed in Chapter 1, the primary focus of peacekeeping needs to be shifted back to prevention of the aggravation of armed conflicts without waiting until a society disintegrates. Yet the responsibility to prevent has notably been framed separately from the responsibility to react and also too broadly to have any distinguishing meaning as a juridical principle.103 The ambiguity of the concept laid the foundation upon which Slaughter and Feinstein emulated the doctrine as ‘a duty to prevent’ in the context of terrorism and weapons of mass destruction, paying attention to the profile of states.104 The new edifice,

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See, Stahn, above n. 92 at 108–109. For the political context that impeded the consensus-building, see, Thomas G. Weiss, ‘R2P After 9/11 and the World Summit’ (2007) 24 Wisconsin International Law Journal 741 at 748–753; Alex J. Bellamy, ‘Whither the Responsibility to Protect? Humanitarian Intervention and the 2005 World Summit’ (2006) 20 Ethics & International Affairs 143. See, SC Res 1674 (24 April 2006); SC Res 1706 (31 August 2006). At the operational level, the doctrine of responsibility to protect has been incorporated into peacekeeping mandates and military manuals. See, Susan C. Breau, ‘The Impact of the Responsibility to Protect on Peacekeeping’ (2006) 11 JCSL 429 at 445–453; Siobhán Wills, ‘Military Interventions on Behalf of Vulnerable Populations: The Legal Responsibilities of States and International Organizations Engaged in Peace Support Operations’ (2004) 9 JCSL 387 at 394–398. See also, Ch. 6, Section 5-B. See, Panel Report, above n. 90 at 68, paras. 211–212. Gelijn Molier, ‘Humanitarian Intervention and the Responsibility to Protect After 9/11’ (2006) 53 NILR 37 at 48. L. Feinstein & A. M. Slaughter, ‘A Duty to Prevent’ (2004) 83(1) Foreign Affairs 136.

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in Evans’ words, contains much to be admired ‘for better preventive strategies for inhibiting nuclear proliferation but much to be alarmed about in their argument that ultimately military force could be used preventively’.105 Clarification is called for to find the organic linkage between the ‘responsibility to prevent’ and the ‘responsibility to react’ in such a way as to mandate the Security Council to react at an early stage to prevent the escalation of armed conflicts. When it comes to its specific functions relating to peacekeeping, ambiguity thus remains as to what extent the responsibility has been given legal meanings. The particular focus of this debate on humanitarian catastrophes might have sidelined the Security Council’s primary responsibility to maintain peace and security especially in cases where the severity of conflict does not amount to the commitment of serious international crimes. Yet the overall trend is clear that the international community has thus moved towards the idea of ‘responsibility’, expecting the Security Council to act in a timely, decisive and consistent manner. This was well illustrated by a chorus of calls expressed by a number of states for peacekeeping action when Israeli military force continued military operations in Southern Lebanon in July 2006.106 The development of the doctrinal debates nevertheless leaves unresolved the legal implications arising from inaction in defiance of the responsibility.107 Attention should be drawn to the comparison to the law of state responsibility. The International Law Commission’s Articles on State Responsibility endorse the idea that serious breaches of a peremptory norm of general international law trigger obligations upon states (1) ‘to cooperate to bring to an end through lawful means’ and (2) not to recognise as lawful a situation created by the serious breach and not to render aid or assistance in maintaining the situation.108 While a breach of the latter type of obligation may entail some form of legal sanction, it is far from clear whether and under what circumstances non-compliance with the former type of obligation could be established or remedied. The uncertainty of legal consequences with certain types of obligation is further embroiled by the inconclusive legal

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Evans, above n. 98 at 718. For details, see, Hitoshi Nasu, ‘The Responsibility to React?: Lessons from the Security Council’s Response to the Southern Lebanon Crisis of 2006’ (2007) 14 International Peacekeeping 339 at 343–344. See, Stahn, above n. 92 at 117–118. See, Report of the International Law Commission on the Work of its Fifty-Third Session Regarding the Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts, UN GAOR, 56th sess, supplement No. 10, UN Doc A/56/10 (1 October 2001) (hereinafter 2001 Draft Articles on State Responsibility), Articles 40–41, reproduced with commentaries in James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge: Cambridge University Press, 2002) at 245–253.

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implications of an international organisation violating its legal responsibility.109 The question as to whether the responsibility under Article 24 of the Charter imposes a mandatory obligation upon the Security Council to take action under certain circumstances is thus inextricably related to the legal consequences of inaction in defiance of such responsibility. B. Legal Consequences of Failure to Adopt Peacekeeping Measures The Security Council’s responsibility for the maintenance of international peace and security is not of a kind, whereby a breach of the obligation gives rise to a certain right to remedy, but rather forms the legal foundation that underlies its authority and the whole collective security system upon which it is based. This legal foundation operates in tandem with, and as an exception to, the principle of non-use of armed force, as embodied in Article 2(4) of the Charter.110 The principle has been accorded customary international law status,111 and arguably even the status of a peremptory norm.112 So long as the principle of non-use of force as a valid conventional (and customary) legal status is respected, peacekeeping measures constitute nothing more than reinforcement of the principle tailored to the needs of each particular situation, aiming at preventing an unacceptable degree of deviation from it. In practice, however, the application of this principle has faced challenges in terms of normative validity and the scope of application. First, the normative power of Article 2(4) of the Charter has been seriously challenged,113 especially by those who see its normativity premised upon the effective

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See, Giorgio Gaja, Fifth Report on Responsibility of International Organizations, UN Doc A/ CN.4/583 (2 May 2007). Article 2(4) of the Charter provides that: ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) (Merits) [1986] ICJ Reports 14 (hereinafter Nicaragua case) at 99–101 paras. 188–190. However, the methodology to reach this conclusion was the subject for debate. See, e.g., Hilary Charlesworth, ‘Customary International Law and the Nicaragua Case’ (1991) 11 Aust YBIL 1 at 16–31; M. H. Mendelson, ‘The Nicaragua Case and Customary International Law’ in W. E. Butler (ed.), The Non-Use of Force in International Law (Dordrecht: Martinus Nijhoff Publishers, 1989) 85; Anthony D’Amato, ‘Trashing Customary International Law’ (1987) 81 AJIL 101; T. M. Franck, ‘Some Observations on the ICJ’s Procedural and Substantive Innovations’ (1987) 81 AJIL 116 at 118–119. See, e.g., Maurizio Ragazzi, The Concept of International Obligations Erga Omnes (Oxford: Clarendon Press, 1997) at 77–78; Natalino Ronzitti, ‘Use of Force, Jus Cogens and State Consent’ in A. Cassese (ed.), The Current Legal Regulation of the Use of Force (Dordrecht: Martinus Nijhoff Publishers, 1986) 147 at 150, 159. For a summary of discussions among American scholars, see, John D. Becker, ‘The Continuing Relevance of Article 2(4): A Consideration of the Status of the U.N. Charter’s Limitations on the Use of Force’ (2004) 32 Denver Journal of International Law and Policy 583.

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functioning of the Security Council.114 Such a pragmatic proposition leads easily to the view that the Security Council’s failure to fulfil its assigned responsibility has undermined the normative foundation of Article 2(4).115 The extent to which the principle has lost its normative force is subject to questions as to what constitutes an effective functioning of the Security Council and how the effectiveness should be measured.116 Some commentators, on the other hand, still recognise the normative status of the principle.117 The normative proposition goes that ‘[t]he purpose of Article 2(4) was to establish a norm of national behavior and to help deter violation of it’.118 The claim for the existence of the norm is ostensibly based on the fact that ‘no state has invaded or used force against another state without providing a legal justification’.119 From the normative perspective, effectiveness can be understood in two different senses: one in an internal sense focusing on the intrinsic values and objectives of a norm; and the other in an external sense placing the emphasis on the social reality.120 Even supposing that the principle appears to have failed in its

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See, e.g., Anthony Clark Arend & Robert J. Beck, International Law and the Use of Force: Beyond the UN Charter Paradigm (London: Routledge, 1993) at 179–185; Michael Reisman, ‘The Emperor Has No Clothes: Article 2(4) and the Use of Force in Contemporary International Law’ in J. N. Saxena, Gurdip Singh & A. K. Koul (eds), United Nations for a Better World (New Delhi: Lancers Books, 1986) 3 at 6–10; Thomas Franck, ‘Who Killed Art. 2(4)? Or Changing Norms Governing the Use of Force by States’ (1970) 64 AJIL 809; Richard A. Falk, ‘The Beirut Raid and the International Law of Retaliation’ (1969) 63 AJIL 415 at 427–437; Julius Stone, Aggression and World Order: A Critique of United Nations Theories of Aggression (Sydney: Maitland Publications, 1958) at 96, 98–101. See, Michael J. Glennon, ‘Why the Security Council Failed’ (2003) 82(3) Foreign Affairs 16 at 22–24. A similar issue in relation to what measure is enough to suspend military action in self-defence will be elaborated below in Section 5-D-i. Compare, Belatchew Asrat, Prohibition of Force under the UN Charter: A Study of Art. 2(4) (Uppsala: Iustus Förlag, 1991) at 44–59 (while subscribing to the conditional validity of the provision, Asrat still recognises the normative status of the provision). Louis Henkin, ‘The Report of the Death of Article 2(4) Are Greatly Exaggerated’ (1971) 65 AJIL 544 at 544; see also, Oscar Schachter, International Law in Theory and Practice (Dordrecht: Martinus Nijhoff Publishers, 1991) at 129–131; Louis Henkin, ‘International Law: Politics, Values and Functions’ (1989-IV) 216 RdC 9 at 145–146; Ian Brownlie, ‘The Principle of NonUse of Force in Contemporary International Law’ in W. E. Butler (ed.), The Non-Use of Force in International Law (The Hague: Martinus Nijhoff Publishers, 1989) 17 at 21–22. Oscar Schachter, ‘The Nature and Process of Legal Development in the International Society’ in R. St J. Macdonald & Douglas M Johnston (eds), The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory (Dordrecht: Martinus Nijhoff Publishers, 1986) 745 at 756; see also, John F. Murphy, ‘Force and Arms’ in Christopher C. Joyner (ed.), The United Nations and International Law (Cambridge: Cambridge University Press, 1997) 97 at 102. See, Pieter van Dijk, ‘Normative Force and Effectiveness of International Norms’ (1987) 30 GYIL 9 at 22–26.

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application because of the Security Council’s failure to discharge its responsibility, it may still retain a normative force at least as a rule of customary international law, so long as there are legitimate expectations with regard to its legal relevance and the effect of certain types of behaviour.121 Thus, the principle may well retain its legal clout as an underlying norm to support the UN collective security system. In theory, the two perspectives result in completely different legal situations: from the pragmatic perspective, an aggrieved state will be released from its obligation under Article 2(4) for the reason that the Security Council is not performing its assigned functions; and from the normative perspective, the aggrieved state will still be bound by its obligation, at least under customary international law, not to resort to armed force except in exercising the right of self-defence notwithstanding the Security Council’s failure to take necessary action. The indeterminacy is inevitable, given the general and abstract nature of the principle of non-use of armed force. Second, neither the normative understanding of Article 2(4) nor the customary law principle of non-use of armed force can be exempted from different interpretations in respect of the valid scope of application.122 While some argue that Article 2(4) covers any type of use of armed force,123 others give a more restrictive interpretation, for instance, rendering exempt from the prohibition such a use of armed force as not directed against the territorial integrity or political independence of a state, or in any other manner inconsistent with the purposes of the UN Charter.124 Moreover, the changing circumstances and new demands thereof have spurned different types of miliary operations, such as humanitarian intervention, through state practice whose legal status in relation to the principle of non-use of armed force has from time to time sparked controversy.125 The restrictive interpretation

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See generally, Byers, above n. 83 at 106–107, 147–151. Some argue that the customary principle of non-use of armed force is equivalent to Article 2(4) in content: see, e.g., Brownlie, above n. 118 at 19. Others understand that the customary principle has a much smaller scope than that laid down in Article 2(4): see, e.g., Albrecht Randelzhofer, ‘Article 2(4)’ in Bruno Simma (ed.), The Charter of the United Nations: A Commentary (2nd ed., Oxford: Oxford University Press, 2002) 112 at 134–135. See, e.g., Josef Mrazek, ‘Prohibition of the Use and Threat of Force: Self-Defence and Self-Help in International Law’ (1989) 27 Can YIL 81 at 86–87; Subhas C. Khare, Use of Force under U.N. Charter (New Delhi: Metropolitan Book, 1985) at 30–44; Ian Brownlie, International Law and the Use of Force by States (Oxford: Oxford University Press, 1963) at 264–280; C. H. M. Waldock, ‘The Regulation of the Use of Force by Individual States in International Law’ (1952–II) 81 RdC 451 at 493. See, e.g., D. W. Bowett, Self-Defence in International Law (Manchester: Manchester University Press, 1958) at 184–186; Stone, above n. 114 at 95. For a review of state practice in this regard, see, Edward Gordon, ‘Article 2(4) in Historical Context’ (1985) 10 Yale JIL 271. The interpretation of Article 2(4) with regard to its scope of application is susceptible to change through subsequent state practice: see, e.g., Stuart Ford, ‘Legal Processes of Change: Article 2(4) and the Vienna Convention on the Law of Treaties’ (1999) 4 Journal of Armed Conflict Law 75;

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may well leave the legal status of the military action with uncertainty, especially when both parties claim legitimacy for their own military action. In fact, the issues of the applicability of the principle to particular situations, or disputes over the facts, have caused disagreement amongst states in the overwhelmingly majority of cases of inter-state conflicts.126 Even if Article 2(4) is widely interpreted to prohibit states from resorting to any use of armed force, it is concerned only about ‘their international relations’, excluding a large part of internal armed conflicts from its scope of application. Non-state entities engaged in an internal armed conflict or intra-national armed conflict are thus not covered or protected by the application of Article 2(4) of the Charter or the customary principle of non-use of armed force. This means, it is argued, that ‘the provision does not prevent insurgents from starting a civil war, nor the government concerned from using armed force against them’.127 Inapplicability of Article 2(4) will continue, in so far as traditional international law is concerned, until non-state entities are somehow placed under an obligation to refrain from using armed force. When the peacekeeping measure is based on a mandatory decision, the parties to a conflict, whether sovereign states or de facto authorities, will be placed under an obligation to comply with the measure, irrespective of the legality attached to the justifications that have been claimed for their military actions. Given the indeterminacy of the legal validity of the principle of non-use of armed force in general as well as its applicability in particular situations, the normative foundation of the entire collective security system cannot but rely much on specific instructions issued by the Security Council by way of peacekeeping measures. The legitimacy of an indeterminate principle can be retained, as Franck observes, ‘if it is open to a process of clarification by an authority recognized as legitimate by those to whom the rule is addressed’.128 The prescription of peacekeeping measures by the Security Council, from this point of view, will contribute to the clarification of the principle in given circumstances. It is acknowledged that the Security Council has strived for securing unanimity among the members, or at least a majority of them with concurring votes of the permanent members, often at the expense of clarity in wording of the resolutions.129 Notwithstanding the lack of textual clarity, however, the resolutions can still be

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W. Michael Reisman, ‘Coercion and Self-Determination: Construing Charter Article 2(4)’ (1984) 78 AJIL 642. See, Christine Gray, International Law and the Use of Force (2nd ed., Oxford: Oxford University Press, 2004) at 10; Oscar Schachter, ‘Self-Defence and the Rule of Law’ (1989) 83 AJIL 259 at 272. Randelzhofer, above n. 122 at 121; see also, Bowett, above n. 124 at 149–150. Franck, above n. 67 at 61; see also, Dencho Georgiev, ‘Politics or Rule of Law: Deconstruction and Legitimacy in International Law’ (1993) 4 EJIL 1 at 9–11. See, Ch. 4, Section 2-C-i.

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determinate enough to secure legitimacy,130 if the intentions are communicated to the parties involved to the extent that it is clear to them what they are required to comply with.131 Yet it is conditioned upon the extent to which legitimacy is attached to the Security Council as an authority to interpret and clarify the principle of non-use of armed force. The principle of non-use of armed force therefore requires more specific and consistent instructions with a view to maintaining its legitimacy. It underlines the significance of the overall role that the Security Council’s peacekeeping measures can play in maintaining and enhancing their regulatory effects. It is in this regulatory sense that the Security Council’s responsibility is given a legal meaning, requiring it to regulate the behaviour of states and other entities concerning the maintenance of international peace and security. Peacekeeping measures under Article 40 provide a useful regulatory tool to that end. C. Regulatory Roles of Peacekeeping When the Security Council directs peacekeeping measures, the presumption is that the decision is given prima facie validity, placing a burden of proof upon the parties arguing against the presumption on account of excessive use of its powers in contravention of Charter provisions.132 If the burden is imposed upon the UN to justify itself for each single operation, it will significantly undermine an effective operation. The reversal of the burden of proof plays an important role in this respect to strike the balance between the need to keep peacekeeping measures operating within the authorised ambit and the risk of undermining the whole operation. It is hardly possible to prove that any military action in contravention of a given peacekeeping measure is innocuous in terms of human casualties and political stability in the land of conflict. It may well be possible, however, to claim and prove that a peacekeeping measure causes more harm than good. Once the Security Council passes a mandatory decision, any action or inaction contrary to the decision by the addressed parties will constitute an internationally wrongful act. Peacekeeping measures adopted by the Security Council are expected to rectify the wrongful situation, especially when the measures involve the deployment of a UN force with a limited use of armed force. The adoption of enforcement action depends on the seriousness of the security situation in terms of the maintenance of international

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Textual clarity is merely one element that can convey determinacy of rules. Even elastic text may gain determinacy through case-by-case application, though it may also result in illegitimate application inasmuch as it invites exculpatory self-justifications by suspected violators. For more details about determinacy, see, Franck, above n. 67 at 50–83. The proposition is explained as ‘constructive ambiguity’ in Ch. 4, Section 2-C-ii. For details, see, Ch. 4, Section 3-A.

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peace and security, as opposed to the legal context of preserving the legal order.133 When a peacekeeping measure cannot effectively rectify the wrongful situation with no enforcement action forthcoming, a question arises whether the parties suffering from this wrongful situation to the detriment of their own essential interests would still be legally required to comply with the peacekeeping measure. Such parties may avail themselves of two types of legal defence to circumvent mandatory peacekeeping measures: self-defence and necessity. D. Applicability of Legal Defence against Peacekeeping Measures i. Self-Defence Irrespective of the legal status attached to the principle of non-use of armed force, the UN Charter has a countervailing provision recognising the inherent right of individual or collective self-defence of sovereign states.134 States are allowed to invoke the reserved right, however, only ‘until the Security Council has taken measures necessary to maintain international peace and security’.135 In the context where a peacekeeping measure has been taken to prevent the aggravation of a situation, the question is posed as to whether it meets the criteria to terminate the right of the parties involved to take action in self-defence. The criteria of measures ‘necessary to maintain international peace and security’ have in fact been subject to two different interpretations: one that any measure taken as the Security Council deems necessary qualifies (hereinafter ‘legality criteria’); and the other that the measure has to be objectively effective enough to bring about the desired outcomes (hereinafter ‘effectiveness criteria’). The contextual interpretation of Article 51 of the Charter may find the legality criteria more appropriate.136 In view of the margin of appreciation given to the Security Council in deciding whether and what measures should be taken under Article 40 in particular, and for the maintenance of international peace and security in general, it appears evident that the Security Council is also given the right to

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See, e.g., Goodrich, above n. 81 at 110; Kelsen, above n. 13 at 294–295. Article 51 of the Charter, which reads in full: Nothing in the present Charter shall impair the inherent right of individual or collective selfdefence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such as it deems necessary in order to maintain or restore international peace and security. The first sentence of Article 51 of the Charter. See, e.g., Abram Chayes, ‘The Use of Force in the Persian Gulf ’ in Lori Fisler Damrosch & David J. Scheffer (eds), Law and Force in the New International Order (Boulder: Westview Press, 1991) 3 at 5–6.

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decide what measures are necessary in the given circumstances to terminate the right of the parties involved to self-defence.137 It is nonetheless to be noted that Security Council resolutions have to be of a mandatory nature for them to give effect to the termination, whereby parties to a conflict are placed under legal obligation to discontinue the alleged self-defence actions.138 Irrespective of the types of peacekeeping measure, therefore, parties involved in a conflict cannot claim the right of self-defence to justify military action in defiance of peacekeeping measures adopted as a legally binding decision. Relevant UN practice, albeit with very few examples,139 may appear to have taken a more realistic approach in favour of the second interpretation – the effectiveness criteria.140 Illustrative is the British military action in 1982 to regain territorial control over the Falkland (Malvinas) Islands,141 having been frustrated by the fact that Argentina did not heed the calls for an immediate cessation of hostilities and withdrawal of its troops from the Islands that were made by the Security Council under Article 40 of the Charter.142 The argument was also made in the early 1990s in line with this interpretation that the self-defensive military actions by Kuwait and its allies were permitted despite the Security Council’s adoption of economic

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See, Gray, above n. 126 at 104; Stanimir A Alexandrov, Self-Defense Against the Use of Force in International Law (The Hague: Kluwer Law International, 1996) at 104–105, 146; compare, Bowett, above n. 124 at 195–197. See, Dinstein, above n. 60 at 187–189; Alexandrov, above n. 137 at 146; D .W. Greig, ‘Self-Defence and the Security Council: What Does Article 51 Require?’ (1991) 40 ICLQ 366 at 390–392; Kelsen, above n. 13 at 802–805. The situations where the right of self-defence was invoked notwithstanding Security Council resolutions include the Egyptian restriction imposed upon the passage of ships through the Suez Canal proceeding to Israel in 1951–56, British military action to repel Argentine forces that landed on the Falkland (Malvinas) Islands in 1982, and Iran-Iraq armed conflict in the 1980s. See, e.g., Khare, above n. 123 at 79–80; see also, Malvina Halberstam, ‘The Right to Self-Defense Once the Security Council Takes Action’ (1996) 17 Mich JIL 229 (drawing this conclusion from the legislative history of Article 51). For a full account of the incident and the legal arguments surrounding the British military action, see, Alberto R. Coll, ‘Philosophical and Legal Dimensions of the Use of Force in the Falklands War’ in Alberto R. Coll & Anthony C. Arend (eds), The Falklands War: Lessons for Strategy, Diplomacy, and International Law (Boston: George Allen & Unwin, 1985) 34 at 44–46; James Francis Gravelle, ‘The Falkland (Malvinas) Islands: An International Law Analysis of the Dispute between Argentina and Great Britain’ (1985) 107 Military Law Review 5 at 52–67. See, SC Res 502 (3 April 1982). The British representative contended in the Security Council debate that the argument that the exercise of self-defence was not available because the Security Council adopted a resolution would lead to an absurd result: see, UN SCOR, 37th year, 2362nd mtg, at 23 para. 266, UN Doc S/PV.2362 (22 May 1982); contrast, remarks made by the Argentine representative, UN SCOR, 37th year, 2360th mtg, at 6 para. 55, UN Doc S/PV.2360 (21 May 1982).

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sanctions, for it failed to maintain international peace and security in the region.143 The resolution that authorised economic sanctions in fact affirmed in its preamble the individual or collective self-defence in response to the armed attack by Iraq against Kuwait.144 Attention should be drawn, however, to the fact that Security Council resolutions in those cases were hardly intended to impose an obligation upon the victim states to refrain from exercising the right of self-defence.145 The criteria of effectiveness may not be as persuasive as it appears on the face of these cases to disqualify the application of peacekeeping measures from the ‘measures necessary to maintain international peace and security’. While the legality criteria seem to be compelling in legal theory, some practical considerations may militate against it, requiring that the criteria of effectiveness come into play. A strong case emanated from an arms embargo imposed upon the whole territory of the Former Yugoslavia in 1991,146 which allegedly deprived the Bosnian government of the means to exercise their right of self-defence against a well-equipped Bosnian-Serb army.147 The Security Council has subsequently responded to external security concerns expressed by the Rwandan and Sierra Leone governments,148 modifying the arms embargoes so as to allow arms to be flown only to the governments in power.149 Yet the pleading for lifting of an arms embargo to save the right of self-defence from an ineffectual measure may turn out to be deceptive propaganda to take advantage of military supremacy in the battle with armed opposition groups. The fallacy of neutrality in implementing

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See, Christopher Greenwood, ‘New World Order or Old? The Invasion of Kuwait and the Rule of Law’ (1992) 55 Modern Law Review 153 at 164–165; Eugene V Rostow, ‘Until What? Enforcement Action or Collective Self-Defense?’ (1991) 85 AJIL 506 at 510–513; compare, Thomas K. Plofchan Jr, ‘Article 51: Limits on Self-Defense?’ (1992) 13 Mich JIL 336. However, the precise legal basis for the military operations against Iraq has been subject to controversy: see, e.g., Oscar Schachter, ‘United Nations Law in the Gulf Conflict’ (1991) 85 AJIL 452 at 457–463. See, SC Res 661 (6 August 1990). See, Marc Weller, ‘The Kuwait Crisis: A Survey of Some Legal Issues’ (1991) 3 AfJICL 1 at 21–22. See, SC Res 713 (25 September 1991). See, Gray, above n. 32 at 184–195; see also, Report of the Secretary-General pursuant to General Assembly Resolution 53/35: The Fall of Srebrenica, at 26–27 paras. 99–102, UN Doc A/54/549 (15 November 1999). The Bosnian government instituted proceedings before the ICJ, only to fail: see, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia Herzegovina v. Yugoslavia (Serbia and Montenegro)) (Request for the Indication of Provisional Measures) [1993] ICJ Reports 3 and (Further Requests for the Indication of Provisional Measures) [1993] ICJ Reports 325; see also, Craig Scott et al., ‘A Memorial for Bosnia: Framework of Legal Arguments Concerning the Lawfulness of the Maintenance of the United Nations Security Council’s Arms Embargo on Bosnia and Herzegovina’ (1994) 16 Mich JIL 1. See, SC Res 1011 (16 August 1995); SC Res 1156 (16 March 1998), 1171 (5 June 1998) respectively. See, Gray, above n. 126 at 107.

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peacekeeping measures will call for caution on the side of the Security Council in waiving the measures on account of self-defence.150 When a peacekeeping measure is aimed at the establishment of a stable situation within a sovereign state, caution must be exercised not to oppress the right to self-determination of armed opposition groups in a prejudiced fashion. Even though the parties involved in a conflict are placed under legal obligation to comply with a peacekeeping measure, and thus to deprive them of legal grounds for invoking the right of self-defence to continue military operations, they may well be compelled to disobey the measure for the sake of their own survival. Although they cannot claim the ‘right’ of self-defence in justification, the wrongfulness of their continued military operations could be precluded,151 or somehow justifiable on extra-legem grounds, if they are left with no other choice because of an ineffectual peacekeeping measure. The burden of proof is, however, shifted to the party by demonstrating that the prescribed peacekeeping measure is ineffectual. As soon as the prescribed peacekeeping measure is found to be ineffectual, the Security Council should reinforce the measure or, if the situation reaches the intensity of threatening the peace, adopt enforcement measures against those who refused to comply with the peacekeeping measure. ii. State of Necessity Where the right of self-defence cannot afford a justification for military operations at variance with a given peacekeeping measure, some parties may instead invoke the state of necessity as a circumstance precluding wrongfulness resulting from the breach of its obligation to comply with the peacekeeping measure. It should first be noted that the doctrine of necessity has traditionally been used in three different levels and meanings: necessity extra legem (doctrine of self-preservation); necessity infra legem (rationale underlying existing rules); and necessity ex lege (a circumstance precluding wrongfulness). Necessity extra legem is a doctrine derived from the absolutist ‘right’ of selfpreservation. While this absolutist doctrine of necessity might well have had some role to play in international relations when the international legal system was still immature, it has been severely criticised for its absolute nature that negates and overrides any kind of legal regulation or control.152 It cannot be denied, however,

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See, Ch. 5, Section 3-B. Cf. James Crawford, above n. 108 at 166–167. See, e.g., Brownlie, above n. 123 at 42–49; Bowett, above n. 124 at 10; Georg Schwarzenberger, ‘The Fundamental Principles of International Law’ (1955-I) 87 RdC 191 at 343–346; Waldock, above n. 123 at 461–462. The idea appears to have resurged when the ICJ put the notion of state survival at the core of the issue raised in the Legality of the Threat or Use of Nuclear Weapons, stating in paragraph (2)E of the dispositif that ‘the Court cannot conclude definitely whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence,

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that necessity motivates the creation and operation of rules of law, which leaves room where necessity exists infra legem. Necessity in this sense does not exist independently, but forms part of constituent elements justifying the existence and application of a rule of law such as the right of self-defence and humanitarian intervention.153 The plea of necessity may alternatively provide an ex post facto ‘excuse’,154 as a circumstance precluding wrongfulness of an action or omission which would have resulted otherwise in a serious and irreversible damage of an essential interest comparable with the survival of a state.155 This type of necessity cannot exist as a self-standing right or a source of authority,156 nor should it be invoked unless there is a rule containing an express sanction for its use.157 The ‘need’ to invoke the state of necessity in this sense will be reduced as the legal system evolves by incorporating it into rules of law,158 whereby necessity takes on the second type of meaning.

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in which the very survival of a state would be at stake’: Legality of Nuclear Weapons case, above n. 60 at 266. For an analysis of the notion of state survival leading to a critical conclusion, see, Marcelo G. Kohen, ‘The Notion of “State Survival” in International Law’ in Laurence Boisson de Chazournes & Philippe Sands, International Law, The International Court of Justice and Nuclear Weapons (Cambridge: Cambridge University Press, 1999) 293; see also, John-Alex Romano, ‘Combating Terrorism and Weapons of Mass Destruction: Reviving the Doctrine of a State of Necessity’ (1999) 87 Georgetown Law Journal 1023. See, e.g., Gardam (2004), above n. 57 at 4–8; Julio Barboza, ‘Necessity (Revisited) in International Law’ in Jerzy Makarczyk (ed.), Essays in International Law in Honour of Judge Manfred Lachs (The Hague: Martinus Nijhoff Publishers, 1984) 27. The necessity as an excuse has long been recognised as distinct from the necessity for justification that exists infra legem: see, Joachim Hruschka, ‘On the History of Justification and Excuse in Cases of Necessity’ in Werner Krawietz, Neil MacCormick & Georg Henrik von Wright (eds), Prescriptive Formality and Normative Rationality in Modern Legal Systems: Festschrift for Robert S. Summers (Berlin: Duncker & Humblot, 1994) 337. See, e.g., Gabčíkovo-Nagymaros Project (Hungary v. Slovakia) ( Judgment) [1997] ICJ Reports 7 at 40 para. 51 (hereinafter Gabčíkovo-Nagymaros case); Robert Ago, Addendum to the Eighth Report on State Responsibility, (1980) 2(1) YbILC 13 at 17–18 paras. 8–10; see also, S. P. Jagota, ‘State Responsibility: Circumstances Precluding Wrongfulness’ (1985) 16 NYIL 249 at 266–271. Ago, above n. 155 at 18 para. 10; Andreas Laursen, ‘The Use of Force and (the State of ) Necessity’ (2004) 37 Vand JTL 485 at 512–514; compare, Ellery C. Stowell, Intervention in International Law (Washington: John Byrne, 1921) at 392–405. See, e.g., Burleigh Cushing Rodick, The Doctrine of Necessity in International Law (New York: Columbia University Press, 1928) at 119. The British decision to bomb the Liberian oil tanker Torrey Canyon, which went aground and spilled large amounts of oil off the British coastline, might well have been justified by reason of the state of necessity at the time it happened. A chance of invoking the state of necessity in a similar case was subsequently diminished, however, as a convention was concluded to cover such cases: 1969 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 970 UNTS 211.

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For the doctrine of necessity to be used as a legal technique to preclude wrongfulness from a prima facie illegal action or omission, it has to be subject to strictly defined conditions:159 there has to be an essential interest to be safeguarded; a grave and imminent peril; and no other measure that would have been sufficient to remove the peril. Those strict conditions notwithstanding, the vagueness of the criteria for those conditions to be satisfied may call its practical effects into question.160 As the International Law Commission (ILC) observed, it would be pointless to try to spell out any more clearly those conditions, whose application depends on the totality of the conditions in which the state finds itself in the particular situation.161 It is still noteworthy, however, that the defence of necessity, especially in the case where it is invoked to excuse the use of armed force, is subject to relative and absolute limitations. First, the necessity defence faces a relativist limitation in that the interest a state seeks to protect must outweigh the interest of another in the light of a reasonable assessment of the competing interests.162 Second, the state of necessity cannot override peremptory norms of general international law.163 The necessity defence thus does not preclude the illegality of the use of armed force to

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The ILC’s latest Draft Articles on State Responsibility formulate the state of necessity in Article 25 in negative language, which provides that: 1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act: (a) is the only means for the State to safeguard an essential interest against a grave and imminent peril; and (b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole. 2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if: (a) the international obligation in question excludes the possibility of invoking necessity; or (b) the State has contributed to the situation of necessity. See, 2001 Draft Articles on State Responsibility, reproduced with commentaries in Crawford, above n. 108 at 178–186; see also, Laursen, above n. 156 at 500–507. It seems, however, that the third condition provides more objective criteria than the rest: see, e.g., The M/V “Saiga” (No. 2) Case (St Vincent and the Grenadines v. Guinea) (1999) 38 ILM 1323 at 1352 para. 135; Gabčíkovo-Nagymaros case, above n. 155 at 43 para. 55; Libyan Arab Foreign Investment Company (LAFICO) v. Republic of Burundi (1994) 96 ILR 279 at 319 para. 56. See, Ago, above n. 155 at 19 para. 12. See, Article 25(1)(b) of 2001 Draft Articles on State Responsibility, as cited above n. 159; Crawford, above n. 108 at 184 para. 17; Ago, above n. 155 at 20 para. 15. The competing interests may not only be those of sovereign states but also those of the international community as a whole: see generally, James Crawford, ‘Responsibility to the International Community as a Whole’ (2001) 8 Indiana Journal of Global Legal Studies 303; Roman Boed, ‘State of Necessity as a Justification for International Wrongful Conduct’ (2000) 3 Yale Human Rights and Development Law Journal 1 at 29–32. 2001 Draft Articles on State Responsibility, above n. 108, Article 26.

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the extent that it is contrary to the peremptory norm of non-use of armed force as embodied in Article 2(4) of the Charter,164 whose scope, however, has been generally considered to be somewhat limited.165 Even if a situation occurs where the state of necessity can justifiably be invoked, those two limitations would make it extremely difficult to confidently and solely rely on the state of necessity in resorting to armed force to rectify the desperate situation that a state may face. The state of necessity has therefore often been invoked in conjunction with other justifications, especially in cases where states attempt to justify their military actions on the ground that the absence of effective governmental control within another state over the territory has threatened peace and security over their territories or nationals.166 For instance, in 1960 Belgium justified its continuing military presence within the Congo after independence on the basis of ‘the total inability of the Congolese national authorities to ensure respect for fundamental rules which must be observed in any civilized community’.167 A comparable situation in southern Lebanon led Israel to three large-scale military incursions into the territory in 1978, 1982 and 2006 respectively,168 justified on the basis of its ‘legitimate national right of self-defence’,169 and ‘necessary countermeasures’.170 In a more recent case, the US-led military operation in and against Afghanistan in 2001 could have been ascribed, albeit arguably, to the inability of the Taliban

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See, James Crawford, Second Report on State Responsibility, UN GAOR, 51st sess, at 30 paras. 286–287, UN Doc A/CN.4/498/Add.2 (30 April 1999). See, above nn. 122–126 and accompanying text. It is in fact stated in the commentaries to the 2001 Draft Articles on State Responsibility that ‘the plea of necessity has been invoked to excuse military action abroad, in particular in the context of claims to humanitarian intervention [to protect nationals]’, citing the Belgian intervention in the Congo as an example: Crawford, above n. 108 at 185; see also, Jean Raby, ‘The State of Necessity and the Use of Force to Protect Nationals’ (1988) 26 Can YIL 253. UN SCOR, 16th year, 873rd mtg, at 35, UN Doc S/PV.873 (14 July 1960). This military operation has, however, often been cited as an example of forcible protection of nationals abroad: see, e.g., Richard B. Lillich (Thomas C. Wingfield & James E. Meyen eds), Lillich on the Forcible Protection of Nationals Abroad: In Memory of Professor Richard B. Lillich (New Port: Naval War College, 2002) at 98–99; Natalino Ronzitti, Rescuing Nationals Abroad Through Military Coercion and Intervention on Grounds of Humanity (Dordrecht: Martinus Nijhoff Publishers, 1985) at 30–32. The Israeli representative explained its action in the Security Council, stating that ‘[t]he PLO’s complete freedom of action is a function of its total disregard for Lebanese sovereignty and of the inability of the Government of Lebanon to control part of its own territory’: UN SCOR, 33rd year, 2071st mtg, at 6 para. 47, UN Doc S/PV.2071 (17 March 1978); see also, W. Michael Reisman, ‘International Legal Responses to Terrorism’ (1999) 22 Houston Journal of International Law 3 at 51–54. UN SCOR, 33rd year, 2071st mtg, at 6 para. 52, UN Doc S/PV.2071 (17 March 1978). UN SCOR, 37th year, 2374th mtg, at 7 para. 78, UN Doc S/PV.2374 (5 June 1982).

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regime to effectively control the portion of its territory where Osama bin Laden could freely direct terrorist activities.171 The unwillingness or inability of a state to control its own territory has thus prompted victim states to resort to military action. Their action could be justified on the basis of the state of necessity to the extent that the scale of terrorist attacks does not warrant the invocation of the right of self-defence.172 Yet such a claim leads to the expansive, and even confusing, invocation of the necessity defence extending even to forcible protection of nationals abroad,173 forcible humanitarian intervention,174 and pre-emptive self-defence.175 The requirement of a grave and imminent peril for the necessity defence should also be restrictively interpreted,176 inasmuch as it denotes certainty of risk.177 Therefore, once a peacekeeping measure is taken under UN authority, very little room will be left for the plea of necessity to circumvent its application. Indeed, in the case of the Belgian intervention in the Congo, the Security Council repeatedly called for withdrawal of Belgian military troops, whilst deploying a UN force to facilitate their departure by assisting the Congolese government in establishing national security.178 It would be extremely difficult in such circumstances to

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Christopher Greenwood, ‘International Law and the Pre-Emptive Use of Force: Afghanistan, Al-Qaida, and Iraq’ (2003) 4 San Diego International Law Journal 7 at 17, 23–25; compare, J. L. Paust, ‘Use of Armed Force against Terrorists in Afghanistan, Iraq and Beyond’ (2002) 35 Corn ILJ 533 at 539; Michael Byers, ‘Terrorism, the Use of Force and International Law after 11 September’ (2002) 51 ICLQ 401 at 403–404. The invocation of the right of self-defence is conditioned upon ‘an armed attack’, which must occur on a significant scale: see, Nicaragua case, above n. 111 at 104 para. 195; but see, id. at 543 ( Judge Jennings dissenting opinion). It seems that in the British official contemplation before proceeding to military action against Egypt in 1956, the issue was partly the scope of necessity that can legitimately be invoked: for a detailed analysis, see, Geoffrey Marston, ‘Armed Intervention in the 1956 Suez Canal Crisis: The Legal Advice Tendered to the British Government’ (1988) 37 ICLQ 773 at 783–803; see also, Raby, above n. 166. See, e.g., Ole Spiermann, ‘Humanitarian Intervention as a Necessity and the Threat or Use of Jus Cogens’ (2002) 71 Nordic Journal of International Law 523; compare, Antonio Cassese, ‘Ex iniuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeausres in the World Community?’ (1999) 10 EJIL 23; Antonio Cassese, ‘A Follow-Up: Forcible Humanitarian Countermeasures and Opinio Necessitatis’ (1999) 10 EJIL 791. See, e.g., Abraham D. Sofaer, ‘On the Necessity of Pre-Emption’ (2003) 14 EJIL 209. In cases of terrorist acts, for instance, ‘there is no necessity for immediate action, since any action taken would be after the fact and after the harm has been done, and the victim State can resort to the Security Council before taking any unilateral forceful measures’: Alexandrov, above n. 137 at 184. See, Gabčíkovo-Nagymaros case, above n. 155 at 42 para. 54 (‘a state of necessity could not exist without a “peril” [which certainly evokes the idea of “risk”] duly established at the relevant point in time’). For details, see, Ch. 3, Section 4-B-i.

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justifiably sustain resistance to the peacekeeping measure on the basis of necessity, unless it is unequivocally proven that an essential interest of the entity is in a grave and imminent peril in spite of, or due to, the peacekeeping measure. Dubious legitimacy or ineffectuality of the peacekeeping measure will not be sufficient to justify the invocation of the necessity defence, inasmuch as there are other options by calling for changes to the existing peacekeeping measure.

6. Regulatory Criteria for Peacekeeping The Security Council’s peacekeeping power under Article 40 of the UN Charter has profound regulatory effects, upholding the principle of non-use of armed force in its application and placing belligerent parties, whether sovereign states or non-state entities, under specific legal obligation to comply with the peacekeeping measure irrespective of the legality of their claim for justifying military action. Although the General Assembly can, to a limited extent, exercise the peacekeeping power, the primacy is given to the Security Council as the organ primarily responsible for the maintenance of international peace and security with the authority to make a binding decision pursuant to Article 25 of the Charter. The Security Council is entitled to discretion or a margin of appreciation under Article 40 of the Charter in deciding what peacekeeping measures are to be taken. Yet the peacekeeping measures adopted on the initiative of the Security Council may also be exposed to a constitutional challenge to the legality and legitimacy of its decisions. To avoid such a challenge, the Security Council is required to act within the authorised jurisdictional and legal limits in accordance with the purposes and principles of the UN Charter including international norms of human rights and humanitarian law, as well as principles of justice and international law, in an impartial and proportional manner so that it does not amount to an intervention into the domestic jurisdiction of states. More challenging is the maintenance and enhancement of the legitimacy of peacekeeping measures. Despite the profound regulatory effects, the constrained characters of the peacekeeping power, such as the requirement of impartiality and the limited use of armed force guided by operational necessity, help live up to the legitimate expectations of the belligerent parties. Yet the inconsistency of the peacekeeping practice evidenced by the insufficient or delayed commitment in certain situations, such as Darfur and Southern Lebanon, indicates the persistent issue of legitimacy. In order to address this issue, the notion of the ‘responsibility to react and prevent’ should guide the Security Council in directing peacekeeping measures in a manner responsive to the legitimate expectations of the international community. The jurisdictional limits, the legality requirements, and the legitimacy criteria (particularly consistency and responsiveness) thus constitute the regulatory criteria

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by reference to which the Security Council’s peacekeeping power is to be regulated. Security Council member states, especially the permanent members, are in a position to be guided by the common interest in the maintenance of international peace and security rather than by their own self-interest. Political and economic obstacles notwithstanding, satisfying those regulatory criteria will provide objective evidence that the Security Council is acting in the collective interest of the global community.

Chapter 8 Regulatory Control of Peacekeeping 1. Political Control As discussed in the previous chapter, valid peacekeeping measures must be made within the jurisdiction of the Security Council, or to a lesser extent, of the General Assembly, in conformity with the purposes and principles of the UN Charter including basic norms of international human rights law and international humanitarian law as well as other principles of justice and international law. Peacekeeping measures, in contrast with enforcement measures under Chapter VII, are also subject to the specific requirement of impartiality and, in a loose sense, proportionality as derived from Article 40 of the Charter, which, together with the growing expectation for the Security Council to discharge its responsibility by making consistent and sufficient commitments, enhances the legitimacy of the entire peacekeeping institution. In directing peacekeeping measures, therefore, UN political organs, including the Security Council, are by no means free from those restraints, nor are they given absolute supremacy with undoubted legitimacy. From this understanding flows a question as to how it can be ensured that peacekeeping measures are directed and implemented in compliance with those prerequisites and requirements. UN political organs are supposedly given an inherent power to make an initial determination as to the sphere of their own competence, which is presumed to have prima facie validity.1 It is reported in the travaux préparatoires of the Charter that ‘[i]n the course of the operation from day to day of the various organs of the Organization, it is inevitable that each organ will interpret each parts of the Charter as are applicable to its particular functions’.2 This was confirmed in the ICJ advisory opinion concerning the Certain Expenses case, in which the Court stated that, ‘each organ must, in the first place at least, determine its own jurisdiction’.3

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For details, see, Ch. 4, Section 3-A. ‘Report of Special Subcommittee of Committee IV/2: The Interpretation of the Charter’ in UNCIO vol. 13 at 831–832. Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Reports 151 (hereinafter Certain Expenses case) at 168. See also, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Reports 16 (hereinafter Namibia case) at 22 para. 20.

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The presumption of validity, however, poses the question how the validity of the determination can authoritatively be reviewed. While some may argue for the principle that a determinative body has the inherent power to determine its own competence (‘la compétence de la compétence’),4 nothing in the Charter makes clear where the ultimate authority resides.5 Those who emphasise the independence of each UN organ may argue that, if the Security Council is to act, it should be responsible for the whole operation until its conclusion, choosing reasonable mandates compatible with the political will and available resources, and upholding the principles that it has to rely on for a legitimate and effective implementation of the mandates. Others may oppose the idea of absolute independence for fear that, especially in the case of the Security Council, peacekeeping measures might be abused at the risk of violating the sovereign right of a state or the principles and purposes of the UN Charter. According to this point of view, the ultimate authority is reserved for sovereign states unless states themselves begin to believe that they must comply with the Security Council’s decisions.6 The fate of this question may have already been determined in the drafting stage of the Charter where no consensus was reached about it.7 The subcommittee responsible for a report on the interpretation of the Charter intentionally avoided clarifying the ultimate authority to give an authoritative interpretation, and instead left the question open. It provided an obscure and general statement that ‘if an interpretation made by any organ of the Organization . . . is not generally acceptable it will be without binding force’.8 It is far from clear to what extent an interpretation must be unacceptable and how wide-spread the opposition to the interpretation

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See, e.g., Certain Expenses case, above n. 3 at 223–224 (Judge Morelli separate opinion). See also, M. S. Rajan, United Nations and Domestic Jurisdiction (Bombay: Orient Longmans, 1958) at 499 (in specific relation to the interpretation of Article 2(7) of the Charter). See, e.g., Dan Ciobanu, ‘Impact of the Characteristics of the Charter upon Its Interpretation’ in Antonio Cassese (ed.), Current Problems of International Law: Essays on U.N. Law and on the Law of Armed Conflict (Milano: Dott A. Giuffrè Editore, 1975) 3 at 61–67; contrast, Louis B. Sohn, ‘The UN System As Authoritative Interpreter of Its Law’ in Oscar Schachter & Christopher C. Joyner (eds), United Nations Legal Order (Cambridge: Cambridge University Press, 1995) vol. 1, 169. See, e.g., Bernd Martenczuk, ‘The Security Council, the International Court and Judicial Review: What Lessens from Lockerbie?’ (1999) 10 EJIL 517 at 536; J. S. Watson, ‘Autointerpretation, Competence, and the Continuing Validity of Article 2(7) of the UN Charter’ (1977) 71 AJIL 60. See, Leland M. Goodrich, Edvard Hambro & Anne Patricia Simons, Charter of the United Nations: Commentary and Documents (3rd and revised ed., New York: Columbia University Press, 1969) at 63–64. ‘Report of Special Subcommittee of Committee IV/2: The Interpretation of the Charter’, above n. 2 at 832.

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must be in order to be deemed ‘not generally acceptable’.9 Would the adoption of a resolution by the General Assembly contrary to a Security Council decision be qualified as general enough to invalidate the legal effect of the Council’s decision?10 What about if an increasing number of states have chosen not to comply with the decision? All the uncertainties thus involved may justifiably lead to a conclusion that the ultimate authority has been given, after all, neither to sovereign states nor to UN organs, but rather to the interactive processes in the international community as a whole. The verification of the validity and legitimacy of UN resolutions may need to undergo more complex and interactive processes of dialogue. As far as the Security Council is concerned, the founders of the UN Charter do not appear to have been concerned so much about preventing the Security Council’s decisions from going beyond the Charter framework as about preventing the UN from being used as a ‘privatised’ tool of one superpower to wage war against another. Although there had been some difference of view about the extent to which the power of veto should or should not be used,11 the end result shows that the founding members, at least the Great Powers, were satisfied with the idea that the veto system would suffice to enable the Security Council to play an important role as a peacekeeper based on the principle of unanimity among the Great Powers. While the system has allowed the Security Council to perform peacekeeping functions when in accord even during the Cold War period,12 it has also been proven that it is not sufficient to ensure that Security Council decisions are not made outside its own competence or in violation of the Charter provisions. Although ten non-permanent members can exercise a collective veto, the individual veto power that the five permanent members possess, in conjunction with their mighty political and military powers, provides them with decisive leverage.13 Moreover,

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Compare, e.g., Grigory I. Tunkin, ‘The Legal Nature of the United Nations’ (1966-III) 119 RdC 3 at 35–36; with J. Castañeda, Legal Effects of United Nations Resolution (New York: Columbia University Press, 1969) at 123. For instance, the General Assembly repeatedly urged the Security Council to exempt the Republic of Bosnia and Herzegovina from the arms embargo as imposed on the former Yugoslavia under SC Res 713 (25 September 1991): see, e.g., GA Res 47/121 (18 December 1992); GA Res 48/88 (20 December 1993); GA Res 49/10 (3 November 1994). For a summary of the discussion, see, Robert C. Hilderbrand, Dumbarton Oaks: The Origins of the United Nations and the Search for Postwar Security (Chapel Hill: The University of North Carolina Press, 1990) at 183–191. The attempts to classify the decisions according to which the veto power should or should not be used ensued even after the UN came into existence: see, The Problems of Voting in the Security Council, UN Doc A/578 (15 July 1948). See, Mariano-Florentino Cuéllar, ‘Reflections on Sovereignty and Collective Security’ (2004) 40 Stanford Journal of International Law 211 at 224. See, e.g., Subbas C. Khare, Use of Force under U.N. Charter (New Delhi: Metropolitan Book, 1985) at 152–154. It may be argued that five permanent members can decide to take military actions in the face of opposition from the rest of the Council members as a transitional joint action under

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once the Security Council adopts a resolution, it follows its own path independent from the collective will of Council members,14 whereby ambiguity of the terms wittingly or unwittingly leads to the ‘de-legalising’ of the situation at hand.15 The power to resort to military operations as part of the collective security mechanism is thus given to, and centred on, this strong and semi-monopolised body without any formal device for checks and balances of the power. The change of the political climate in the post-Cold War era has generated a legitimate and plausible concern that the Security Council may remain unfettered in the application of Chapter VII powers if it remains beyond any sort of check and balance mechanism. This concern casts doubt on the role that the veto can play as the primary safeguard against abuse of the powers under the existing Charter system.16 The political coalition among the P-5, moreover, does not necessarily promise required actions being taken, but rather allows for the exercise of discretion as to the better course of action or inaction in a given situation. The discretionary element involved in decision-making is a characteristic of governance, which is nothing dissimilar to national governments.17 Nevertheless, it has laid the ground for the Security Council being accused of adopting a double-standard or a selective approach in responding to a threat to the peace,18 depending on the interests that the Great Powers may or may not share. There is, therefore, no credible mechanism currently in place within the UN system to hold the Security Council accountable for its decision, except for the exercise of collective veto by non-permanent members. UN member states arguably reserve the right as ‘last resort’ to raise opposition if the Security Council’s decision is not adopted in accordance with the UN Charter.19 The protest and non-compliance by states, recalcitrant targeted states or third states, may set the parameters

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Article 106 of the Charter, given that special agreements referred to Article 43 of the Charter have not been concluded. The veto can obstruct the modification to or termination of sanction (reverse veto). The recent practice has shifted to imposing time limits for sanction. See generally, Lutz Oette, ‘A Decade of Sanctions against Iraq: Never Again! The End of Unlimited Sanctions in the Recent Practice of the UN Security Council’ (2002) 13 EJIL 93. See, Michael Byers, ‘Agreeing to Disagree: Security Council Resolution 1441 and Intentional Ambiguity’ (2004) 10 Global Governance 165 at 166. Compare, e.g., Matthias J. Herdegen, ‘The “Constitutionalization” of the UN Security System’ (1994) 27 Vand JTL 135 at 150–154; with Hans Köchler, Democracy and the International Rule of Law: Propositions for an Alternative World Order (Vienna: Springer-Verlag, 1995) at 90–116. See, Ian Brownlie, ‘The United Nations As a Form of Government’ in J. E. S. Fawcett and Rosalyn Higgins, (eds), International Organization: Law in Movement (Oxford: Oxford University Press, 1974) 26 at 31–33. See, e.g., Thomas M. Franck, ‘Of Gnats and Camels: Is There a Double Standard at the United Nations?’ (1984) 78 AJIL 811. See, Ch. 4, Section 3-A.

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within which the legitimacy of Security Council decisions should be gauged. The absence of protest may well be considered to be due to the fact that states have condoned by acquiescence the extension of the Security Council’s powers under the principle of qui tacet consentire videtur.20 When states attempt to take the law into their own hands, it might not so much pose a threat to the legal and legitimate foundations of Security Council decisions as to the effectiveness in implementation of the decisions. In any event, however, the extent to which individual states can challenge the authority of the Security Council’s decisions is necessarily limited, and the rejection to implement a resolution remains controversial in the absence of objective assessment by a third party on the legality and validity of the Security Council’s decision.21 States may instead seek a collective and authoritative opinion to be formed in the General Assembly to challenge the authority of the Security Council’s decisions, attempting to exercise political control through its budgetary powers or by requesting for the submission of explanatory memorandum.22 As far as the adoption of peacekeeping measures is concerned, the role that the General Assembly can play is limited, owing partly to the limitations imposed upon it under the Charter in its relationship with the Security Council.23 This may not be the case when it comes to the point where the General Assembly assesses and reviews Security Council decisions.24 Yet such channel for protest still remains ad hoc, sporadic and ineffective, with the role of this political forum having hence become rather stagnant.25 When states find ineffective those conventional ways of exercising political control over Security Council decisions, recourse may be alternatively and ultimately had to setting a motion towards a reform of the Security Council. It should be recalled that ‘it is an established principle that the right of giving an authoritative interpretation of a legal rule belongs solely to the person or body who has power to modify or suppress it’.26 It is in fact the General Assembly that is given the right

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See, Peter Malanczuk, ‘Reconsidering the Relationship between the ICJ and the Security Council’ in Wypo P. Heere (ed.), International Law and The Hague’s 750th Anniversary (The Hague: T. M. C. Asser Instituut, 1999) 87 at 97. See, Jost Delbrück, ‘Article 25’ in Bruno Simma (ed.), The Charter of the United Nations: A Commentary (2nd ed., Oxford: Oxford University Press, 2002) 452 at 459. See, e.g., Mohammed Bedjaoui, The New World Order and the Security Council: Testing the Legality of Its Acts (Dordrecht: Martinus Nijhoff Publishers, 1994) at 119–126. This point is already made clear in Ch. 7, Section 2-B. The prohibition from making recommendation while the Council is exercising its power over a matter under Art. 12(1) of the Charter would not pose an obstacle to assessing and reviewing the legality or the validity of the Council’s decisions. The General Assembly’s waning authority is well described in the UN Secretary-General’s HighLevel Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility (New York: United Nations, 2004) para. 241. Jaworzina (Polish-Czechoslovakian Frontier) [1923] PCIJ Reports (ser B) No. 8 at 37.

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to initiate the process of amendment by a vote of a two-thirds majority. However, the motion will not be accomplished until the amendment is ‘ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council’.27 The ultimate authority of interpretation, modification and revision of the UN Charter is thus divided up between UN member states and the ‘big five’ Security Council permanent members. Viewed against the trajectory of the quest for Security Council reform in the historical context,28 however, the primary concern has predominantly been the issue of representation and democratisation of the Security Council presumably in an attempt to strengthen the political accountability,29 and not so much about unauthorised or unlawful Security Council decisions. As Bailey and Daws pointed out, ‘perceptions of whether the Council is acting in a representative manner are based more on the perceived legitimacy of the content of Council actions than on the size and composition of its membership’ (italics original).30 The term ‘democratisation’ in the context of Security Council reform is in fact deceptive, for institutional decision-making itself has been arguably undermining substantive democracy at both inter-state and intra-state levels.31 It is therefore at best dubious whether the Security Council can be held more accountable for its abusive and arbitrary use of the peacekeeping power, irrespective of how its composition changes.

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Article 108 of the Charter. The amendment procedure is the same as in the case of a general conference for the purpose of reviewing the present Charter: see, Article 109(2) of the Charter. For a historical account of UN reform, see, e.g., Edward C. Luck, ‘Reforming the United Nations: Lessons from a History in Progress’ in Jean E. Krasno (ed.), The United Nations: Confronting the Challenges of a Global Society (Boulder: Lynne Rienner Publishers, 2004) 359; Bardo Fassbender, ‘All Illusions Shattered?: Looking back on a Decade of Failed Attempts to Reform the UN Security Council’ (2003) 7 MPYUNL 183; Ingo Winkelmann, ‘Bringing the Security Council into a New Era: Recent Developments in the Discussion on the Reform of the Security Council’ (1997) 1 MPYUNL 35. See generally, Bardo Fassbender, UN Security Council Reform and the Right of Veto: A Constitutional Perspective (The Hague: Kluwer Law International, 1998) at 221–230; Robert C. Johansen, ‘Reforming the United Nations to Eliminate War’ (1994) 4 Transnational Law and Contemporary Problems 455 at 483–487. Sydney D. Bailey & Sam Daws, The Procedure of the UN Security Council (3rd ed., Oxford: Oxford University Press, 1998) at 388; see also, Pierre-Marie Dupuy, ‘The Constitutional Dimension of the Charter of the United Nations Revisited’ (1997) 1 MPYUNL 1 at 28–29. See generally, B. S. Chimni, ‘International Institutions Today: An Imperial Global State in the Making’ (2004) 15 EJIL 1; Eric Stein, ‘International Integration and Democracy: No Love at First Sight’ (2001) 95 AJIL 489–534.

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2. Judicial Control A. Jurisdiction The conventional view is that the supremacy of the rule of law over the exercise of discretionary power is best maintained through judicial control. The concern that the Security Council may act ultra vires has in fact produced a great deal of literature on the possibility of extending judicial control by the ICJ over the Security Council’s decisions.32 Yet, to say that the Security Council’s power to direct peacekeeping measures is subject to legal restraints does not necessarily mean that its power needs to be placed under judicial control. There have in fact been numerous arguments both in favour of, and militating against, judicial review of Security Council decisions.33 In addressing this question, this section examines whether the ICJ is vested with the jurisdiction to examine the validity and legality of Security Council decisions and, if affirmative, in what instances the Court may or may not exercise the judicial powers for that purpose. The first question to be addressed is whether the ICJ has the jurisdiction to review the validity and legality of decisions of UN political organs. The UN Charter undoubtedly lacks an express provision to confer upon the ICJ the power of judicial review. The travaux préparatoires of the Charter shows that the Belgian representative proposed an amendment to allow states to request an advisory opinion from the ICJ in the case where a Security Council recommendation was deemed to infringe the essential interests of a state party to a dispute.34

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Recent significant works in this field include: Erika de Wet, The Chapter VII Powers of the United Nations Security Council (Portland Oregon: Hart Publishing, 2004) at 69–129; Mohamed Sameh M. Amr, The Role of the International Court of Justice as the Principal Judicial Organ of the United Nations (The Hague: Kluwer Law International, 2003) at 279–340; David Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter: Legal Limits and the Role of the International Court of Justice (The Hague: Kluwer Law International, 2001) at 267–285; Bedjaoui, above n. 22 at 55–93; Geoffrey R. Watson, ‘Constitutionalism, Judicial Review, and the World Court’ (1993) 34 Harv ILJ 1; compare, Jose E. Alvarez, ‘Judging the Security Council’ (1996) 90 AJIL 1. For a good summary of both arguments, see, Amr, above n. 32 at 301–306; Lucius Caflisch, ‘Is the International Court Entitled to Review Security Council Resolutions Adopted under Chapter VII of the United Nations Charter?’ in Najeeb Al-Nauimi & Richard Meese (eds), International Legal Issues Arising under the United Nations Decade of International Law (The Hague: Martinus Nijhoff Publishers, 1995) 633 at 653–657. UNCIO vol. 3 at 332–33; UNCIO vol. 12 at 48–49.

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Although the proposal was withdrawn, having met strong opposition from major states,35 the aspiration for judicial review has continued to arise.36 The aspiration gained momentum when the contentious Lockerbie cases were brought to the Court.37 The cases, resulting from the Security Council’s involvement in the dispute regarding the extradition of two Libyan nationals who were indicted for several offences over the Lockerbie incident,38 raised, inter alia, the question as to the validity of two Security Council resolutions,39 which purported to override the existing legal order under the Montreal Convention.40 The Court’s decision on the question was deferred,41 and finally rendered moot upon the subsequently agreed trial of the suspects in the Netherlands.42 The issue, in parallel

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For details, see, UNCIO vol. 12 at 49–50, 65–66; see also, Amr, above n. 32 at 300–301; Watson, above n. 32 at 8–14. A few attempts made during the early years of the UN are noteworthy. When the Netherlands raised opposition to the Security Council dealing with the Indonesian question as being a matter within the domestic jurisdiction of the country, the Belgian representative proposed that the Council request the ICJ to give an advisory opinion on whether it was competent to deal with the question: see, UN SCOR, 2nd year, 194th mtg, at 2193–2196, UN Doc S/PV.194 (25 August 1947). It is also reported that the Australian delegation submitted in the same year a draft resolution that the ICJ be changed into an institution that would control the activities of UN political organs: see, Ján Azud, The Peaceful Settlement of Disputes and the United Nations (Bratislava: Slovak Academy of Sciences, 1970) at 140; Bedjaoui, above n. 22 at 164–182 (reproducing part of the discussion on the submission in the General Assembly). Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom; Libyan Arab Jamahiriya v. United States) (Provisional Measures) [1992] ICJ Reports 3, 114 (hereinafter Lockerbie Provisional Measures). On the evening of 21 December 1988, Pan Am Flight 103 en route from London to New York exploded over Lockerbie in Southern Scotland and crashed at Lockerbie, resulting in all 259 passengers and crew including 189 US nationals on the airplane being killed: for a thorough description of the incident, see, e.g., Fiona Beveridge, ‘The Lockerbie Affair’ (1992) 41 ICLQ 907 at 907–909. SC Res 731 (21 January 1992); SC Res 748 (31 March 1992). 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 974 UNTS 177 (hereinafter Montreal Convention). The Court thereafter confirmed its jurisdiction to hear the cases and rejected the objection to admissibility derived from Security Council Resolutions 748 (31 March 1992) and 883 (11 November 1993), simply because the two legally binding resolutions were adopted after Libya filed its application, though it left the issue of whether the cases had been rendered moot by those resolutions to the merits phase as being not of an exclusively preliminary character: see, Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom; Libyan Arab Jamahiriya v. United States) (Preliminary Objections) [1998] ICJ Reports 9, 115 (hereinafter Lockerbie Preliminary Objections); for an analysis of the judgment, see, e.g., Fiona Beveridge, ‘The Lockerbie Cases’ (1999) 48 ICLQ 658. See, Letter dated 15 August 2003 from the Chargé d’affaires a.i. of the Permanent Mission of the Libyan Arab Jamahiriya to the United Nations addressed to the President of the Security Council, UN Doc S/2003/818 (15 August 2003); ICJ Press Release 2003/29 (10 September 2003) available via

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with the court proceedings, has nonetheless provoked considerable academic debate about the possibility and desirability of some form of judicial review by the ICJ of the decisions made by UN political organs,43 given the possible abuse of power by the Security Council where two of the permanent members were also the parties to the dispute. The answer to this question seems to depend on how one sees the sources of the power of judicial review. One view is that such a power must be expressly authorised in a constitutional instrument.44 Another derives a residual or implied power from the lack of an express prohibition from engaging in judicial review.45 Yet another view finds the source of power in the very nature of the judicial function,46 or in a general principle of law to that effect which has arguably emerged among nations.47 The ICJ’s stance on this issue appears to have been consolidated through its own jurisprudence that it has developed by exercising its judicial powers on an incidental, as opposed to a primary, basis. The Court in fact confirmed, notably in the Namibia case, that although it is by no means vested with the power of judicial review, it can attend to the validity or conformity with the Charter of

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(last visited 17 August 2005); for a follow-up leading up to the settlement of the dispute, see, de Wet, above n. 32 at 11–12; Michael Plachta, ‘The Lockerbie Case: The Role of the Security Council in Enforcing the Principle Aut Dedere Aut Judicare’ (2001) 12 EJIL 125 at 131–136. See, e.g., Nigel White, ‘To Review or Not to Review? The Lockerbie Cases Before the World Court’ (1999) 12 LJIL 401; Bernd Martenczuk, ‘The Security Council, the International Court and Judicial Review: What Lessons from Lockerbie?’ (1999) 10 EJIL 517; Dapo Akande, ‘The International Court of Justice and the Security Council: Is There Room for Judicial Control of Decisions of the Political Organs of the United Nations?’ (1997) 46 ICLQ 309; Vera GowllandDebbas, ‘The Relationship between the International Court of Justice and the Security Council in the Light of the Lockerbie Case’ (1994) 88 AJIL 643; Bernhard Graefrath, ‘Leave to the Court What Belongs to the Court: The Libyan Case’ (1993) 4 EJIL 184; Watson, above n. 32; Robert F. Kennedy, ‘Libya v. United States: The International Court of Justice and the Power of Judicial Review’ (1993) 33 VaJIL 899. See, e.g., Krzysztof Skubiszewski, ‘The International Court of Justice and the Security Council’ in Vaughan Lowe and Malgosia Fitzmaurice (eds), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge: Cambridge University Press, 1996) 606 at 623–627. See, e.g., Akande, above n. 43 at 326–327; Graefrath, above n. 43 at 203–204; contrast, Thomas M. Franck, ‘The “Powers of Appreciation”: Who is the Ultimate Guardian of UN Legality?’ (1992) 86 AJIL 519 (drawing comparison with the famous US court decision in Marbury v. Madison (1803) 5 US (1 Cranch) 137). See, e.g., Amr, above n. 32 at 320–335; Malcolm N. Shaw, ‘The Security Council and the International Court of Justice: Judicial Drift and Judicial Function’ in A. S. Muller et al. (eds), The International Court of Justice: Its Future Role After Fifty Years (The Hague: Martinus Nijhoff Publishers, 1997) 219 at 255–257. See, de Wet, above n. 32 at 79–129; Erika de Wet, ‘Judicial Review As an Emerging General Principle of Law and Its Implications for the International Court of Justice’ (2000) 47 NILR 181.

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UN resolutions in the exercise of its judicial function.48 This judgment is significant in that it clearly rejected the idea that the validity and legality of the Security Council’s decisions constitutes the exceptions to the Court’s jurisdiction simply because the Security Council has primary responsibility for the maintenance of international peace and security. The proposals for the expanded role of the ICJ in ruling on the validity and legality of UN resolutions have focused largely on the advisory jurisdiction,49 addressing how the advisory jurisdiction can be extended so as to strengthen the Court’s role in relation to UN political organs.50 However, the possibility of judicial review is not limited to advisory proceedings, as the Court may also be able to exercise a limited power of verification in contentious proceedings in so far as a UN resolution constitutes one of the applicable laws that the Court is called upon to apply.51 Security Council resolutions were in fact called into question in the Court’s contentious proceedings in the Lockerbie and Bosnian Genocide cases.52 A ruling denying the validity of a UN resolution in contentious proceedings will make the decision ‘unopposable’ in the sense that an action or omission taken in violation of the decision cannot be challenged, in so far as the parties involved in the proceedings are concerned. Yet the challenged decisions may retain presumptive validity.53 Although incidental judicial rulings are distinguished from the 48

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Namibia case, above n. 3 at 45 and also at 143–144 (Judge Onyeama separate opinion); see also, Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization (Advisory Opinion) [1960] ICJ Reports 150 at 171 (finding the inconformity of the way in which certain members of the Maritime Safety Committee with the convention for the establishment of the organisation). Article 96(1) of the Charter provides that: ‘The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question’. See, e.g., D. W. Bowett, ‘The Court’s Role in Relation to International Organizations’ in Vaughan Lowe & Malgosia Fitzmaurice (eds), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge: Cambridge University Press, 1996) 181 at 187–192; C. Weeramantry, ‘Expanding the Potential of the World Court’ in Nandasiri Jasentuliyana (ed.), Perspectives on International Law (The Hague: Kluwer Law International, 1995) 309 at 334–338; Bedjaoui, above n. 22 at 77–93. See, Schweigman, above n. 32 at 270–271; Akande, above n. 43 at 331–333. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (BosniaHerzegovina v. Yugoslavia (Serbia and Montenegro)) (Requests for the Indication of Provisional Measures) [1993] ICJ Reports 3 (hereinafter Bosnian Genocide Provisional Measures Phase 1) and (Further Requests for the Indication of Provisional Measures) [1993] ICJ Reports 325 (hereinafter Bosnian Genocide Provisional Measures Phase 2). At issue in this case was SC Res 713 (25 September 1991) which imposed an arms embargo upon the whole territory of the Former Yugoslavia. See, Akande, above n. 43 at 335. Judge ad hoc Lauterpacht may have been a bit more cautious when he said in the Bosnian Genocide Provisional Measures Phase 2 that ‘as between the Applicant and the Respondent the continuing validity of the embargo in its bearing on the Applicant has become a matter of doubt requiring further consideration by the Security Council’: Bosnian Genocide Provisional Measures Phase 2, above n. 52 at 442 (Judge Lauterpacht separate opinion).

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power of judicial review, the legal consequences of such rulings may come close to a concrete judicial review. Incidental judicial rulings on the validity or legality of UN resolutions in advisory proceedings, in contrast, would not give rise to legal effects comparable to those of an abstract judicial review,54 inasmuch as advisory opinions are not of a legally binding nature.55 Advisory opinions holding that a decision of a UN political organ is ultra vires ‘are opposable to all States in the sense of barring erga omnes the legality of a situation which is maintained in violation of international law’,56 and yet may not nullify the legal effect of the decision.57 In some cases, it may result in the exacerbation (rather than a resolution) of the disputed legal situation, whereby states will be placed in an uncertain legal position.58 Furthermore, the Court’s rulings that a UN decision is illegal or adopted as ultra vires will in any event undermine the legitimacy of the decision and give courage to unwilling states not to comply with the decision.59 These considerations justifiably lead the Court to a consideration of whether it may or should render the case brought before it inadmissible, notwithstanding the confirmation of its jurisdiction over the case. B. Admissibility Apart from the jurisdictional question over the validity and legality of UN resolutions in the exercise of the ICJ’s judicial function, the question of admissibility also comes to the fore.60 The potential grounds for inadmissibility include the principle of litispendence and the doctrine of non-justiciability. First, the admissibility of the proceedings over this issue may well be challenged on the grounds that the principle of litispendence, as applied to the relationship between the ICJ and UN political organs, precludes the former from proceeding to the merits. The principle of litispendence, a concept developed in municipal 54

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While an abstract judicial review entails an erga omnes effect of declaring null and void the acts that are found illegal, a concrete judicial review gives rise only to an exculpatory effect in relation to the parties inter se: for details, see, Caflisch, above n. 33 at 635–636. This proposition has at times been challenged: see generally, Amr, above n. 32 at 109–119; Robert Ago, ‘“Binding” Advisory Opinions of the International Court of Justice’ (1991) 85 AJIL 439. Namibia case, above n. 3 at 126. Elihu Lauterpacht observes that ‘until an [advisory] opinion has been obtained and accepted, the allegedly unlawful act is effective’ (emphasis added): Elihu Lauterpacht, ‘The Legal Effect of Illegal Acts of International Organisations’ in Cambridge Essays in International Law: Essays in Honour of Lord McNair (London: Stevens & Sons, 1965) 88 at 105. See, Ciobanu, above n. 5 at 55–57. See, Akande, above n. 43 at 335–336. The distinction between jurisdiction to entertain a case and the admissibility of a claim is acknowledged in Oil Platforms (Iran v. United States) (Mertis) [2003] ICJ Reports 161 at 177 para. 29; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) (Merits) [1986] ICJ Reports 14 (hereinafter Nicaragua case) at 26–27 paras. 32–34.

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legal systems to circumvent conflicting judgments and a proliferation of pending cases on the same issue, generally refers to a situation where an identical matter is pending between the same parties before organs possessing similar or identical jurisdiction.61 Given the diversity and multiplicity of international legal institutions, the requirement of similar or identical jurisdiction may need to be more loosely interpreted than in the municipal context.62 It is interesting to note in this respect that, in the Aegean Sea Continental Shelf Case,63 the ICJ refrained from indicating provisional measures for the purpose of preventing aggravation of the dispute, having due regard to the provisional measure that the Security Council had already addressed to the parties.64 Nevertheless, the principle of litispendence can hardly be applied so long as the two organs exercise different functions in character.65 It is thus submitted that the principle of litispendence may well preclude the Court from adopting a provisional measure to the same effect as the one issued by a UN political organ,66 but not from reviewing the validity or legality of provisional measures that the organ has adopted. Second, the Court may find itself obliged or prompted to declare the case as nonjusticiable under certain circumstances. The Court can exercise judicial discretion in deciding whether to give judgment by virtue of the ‘inherent limitations on the exercise of the judicial function which the Court, as a court of justice, can never

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For details, see, e.g., Douglas D. Reichert, ‘Problems with Parallel and Duplicate Proceedings: The Litispendence Principle and International Arbitration’ (1992) 8 Arbitration International 237; Theodoor J. H. Elsen, Litispendence between the International Court of Justice and the Security Council (The Hague: T. M. C. Asser Instituut, 1986); Dan Ciobanu, ‘Litispendence between the International Court of Justice and the Political Organs of the United Nations’ in Leo Gross (ed.), The Future of the International Court of Justice (New York: Oceana Publications, 1976) 209. See, Elsen, above n. 61 at 25; contrast, Certain German Interests in Polish Upper Silesia (Germany v. Polish Republic) (Preliminary Objections) [1925] PCIJ Reports (Series A) No. 6 at 20. Aegean Sea Continental Shelf Case (Greece v. Turkey) (Interim Measures of Protection) [1976] ICJ Reports 3. Id. at 13 paras. 41–42. This judgment could be read in a way that the Court impliedly recognised the principle of litispendence in its relationship with the Security Council in so far as the functions that the two organs are exercising are similar or identical in nature: compare, Schweigman, above n. 32 at 232–234. See, e.g., Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) (Jurisdiction of the Court and the Admissibility of the Application) [1984] ICJ Reports 392 (hereinafter Nicaragua Jurisdiction) at 434–435 para. 95; United States Diplomatic and Consular Staff in Tehran (United States v. Iran) (Merits) [1980] ICJ Reports 3 at 21–22 para. 40. For further details about the functional parallelism, see, e.g., Schweigman, above n. 32 at 231–267; Gowlland-Debbas, above n. 43 at 655–658. But see, Lockerbie Provisional Measures, above n. 37 at 48–49, 158–159 (Judge Bedjaoui dissenting opinion), 70–71, 180–181 (Judge Weeramantry dissenting opinion), 88–90, 193–195 (Judge Ajibola dissenting opinion) (all suggesting that the Court could have asserted the power to indicate provisional measures proprio motu).

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ignore’.67 The judicial discretion must be carefully circumscribed lest it expose the Court to criticism of arbitrariness.68 In practice, however, the attitude towards judicial restraint is deep-rooted and commonly observed in the judgments of the ICJ and other international as well as national courts.69 It can thus be argued that the Security Council’s discretionary decisions are by their very nature non-justiciable by virtue of a number of political, social and circumstantial factors involved, which cannot objectively be weighed or balanced by judicial scrutiny. The stance has been by and large influenced by the political question doctrine,70 originating from US case law,71 which precludes courts from pronouncing on certain aspects of a case for the reason that the question belongs to the political sphere and is therefore non-justiciable. The applicability of this doctrine to the dispute settlement between states has been widely rejected on the basis of the invalidity of the claim in contemporary international law,72 as well as the artificiality of the distinction between political and non-political questions.73 Although this doctrine may no longer be validly claimed in settling disputes between states, this may not be the case with respect to decisions of UN political organs.74

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Northern Cameroons (Cameroon v. United Kingdom) (Preliminary Objections) [1963] ICJ Reports 15 at 29. See also, Michael J. Matheson, ‘ICJ Review of Security Council Decisions’ (2004) 36 George Washington International Law Review 615 at 621–622. Shabtai Rosenne, The Law and Practice of the International Court 1920–2005 (4th ed., Leiden: Martinus Nijhoff Publishers, 2006) vol. 2, 538. See from a critical point of view, EH. Judge Peter Kooijmans, ‘The ICJ in the 21st Century: Judicial Restraint, Judicial Activism, or Proactive Judicial Policy’ (2007) 56 ICLQ 741. See, e.g., Ioana Petculescu, ‘The Review of the United Nations Security Council Decisions by the International Court of Justice’ (2005) 52 NILR 167 at 174–177; Schweigman, above n. 32, 265–267. See, Baker v. Carr, 369 US 186 (1961); Powell v. McCormack, 395 US 486 (1968). See, Prosecutor v. Dusko Tadić (ICTY) (Jurisdiction) (Appeals Chamber) (1997) 105 ILR 453 (hereinafter Tadić Jurisdiction Appeals) at 463 para. 24; Dapo Akande, ‘The Role of the International Court of Justice in the Maintenance of International Peace’ (1996) 8 AfJICL 592 at 597. See, Aegean Sea Continental Shelf (Greece v. Turkey) (Jurisdiction) [1978] ICJ Reports 3 at 13 para. 31. In fact, political aspects and implications involved in a case has never debarred the Court from exercising its judicial function merely on that basis: see, e.g., Border and Transborder Armed Actions (Nicaragua v. Honduras) (Jurisdiction of the Court and the Admissibility of the Application) [1988] ICJ Reports 69 at 91 para. 52; Nicaragua Jurisdiction, above n. 65 at 435 para. 96. See also, Takane Sugihara, ‘The Judicial Function of the International Court of Justice with Respect to Disputes Involving Highly Political Issues’ in A. S. Muller et al. (eds), The International Court of Justice: Its Future Role After Fifty Years (The Hague: Kluwer Law International, 1997) 117 at 127–128; Akande, above n. 43 at 597–599; Rosalyn Higgins, ‘Policy Considerations and the International Judicial Process’ (1968) 17 ICLQ 58 at 74. See especially, Marcella David, ‘Passport to Justice: Internationalizing the Political Question Doctrine for Application in the World Court’ (1999) 40 Harv ILJ 81 at 124–148; Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) (Advisory Opinion) [1948] ICJ Reports 57 at 109 (Judge Krylov dissenting opinion).

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A similar argument to the political question doctrine has in fact been made in relation to Security Council decisions under Article 39 of the Charter as to whether a given situation constitutes a threat to the peace, a breach of the peace or an act of aggression.75 The argument was given an opportunity to be tested in the debate about the judicial review of Security Council decisions with regard to the Lockerbie incident, which determined the existence of a threat to the peace without an independent or objective investigation into the incident. Having recognised the prima facie validity of Security Council decisions, the ICJ deferred the adjudication on the issue to be made at a later stage.76 Judge Weeramantry nevertheless expressed in his dissenting opinion the view supporting the discretionary and non-justiciable nature of Security Council decisions on this issue.77 The same line of argument was followed by Judge Lauterpacht in the Bosnian Genocide case,78 and also by the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY),79 as well as by the International Criminal Tribunal for Rwanda (ICTR).80 The same doctrine could well apply to the Security Council’s decision on what types of peacekeeping measures are warranted in the situation at hand, in so far as it is authorised under Article 40 of the Charter to call upon the parties concerned to comply with ‘such provisional measures as it deems necessary or desirable’. The supposedly discretionary nature of the Security Council’s decision in this respect does not necessarily mean that none of the aspects of peacekeeping measures are justiciable. While it is one thing to allow the Security Council to exercise discretion in deciding which measure is warranted in the situation at hand, it is quite another to conclude that the Security Council is unrestrained in exercising its peacekeeping power.81 As has been shown in Chapter 7, the adoption and

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See, e.g., Schweigman, above n. 32 at 265–267; Peter Malanczuk, ‘Reconsidering the Relationship between the ICJ and the Security Council’ in Wypo P. Heere (ed.), International Law and The Hague’s 750th Anniversary (The Hague: T. M. C. Asser Instituut, 1999) 87 at 98; Peter H. Kooijmans, ‘The International Court of Justice: Where Does It Stand?’ in A. S. Muller et al. (eds), The International Court of Justice: Its Future Role After Fifty Years (The Hague: Kluwer Law International, 1997) 407 at 416; Akande, above n. 43 at 338; T. D. Gill, ‘Legal and Some Political Limitations on the Power of the UN Security Council to Exercise Its Enforcement Powers under Chapter VII of the Charter’ (1995) 26 NYIL 33 at 117; contrast, Martenczuk, above n. 43 at 539–544. See, Lockerbie Provisional Measures, above n. 37 at 15 para. 40, 126–127 para. 43. See, id. at 66, 176. Bosnian Genocide Provisional Measures Phase 2, above n. 52 at 439 paras. 98–99 (Judge Lauterpacht separate opinion). Prosecutor v. Dusko Tadić (ICTY) (Jurisdiction) (Trial Chamber) (1997) 105 ILR 427 (hereinafter Tadić Jurisdiction Trial) at 435 paras. 23–24. Prosecutor v. Joseph Kanyabashi (ICTR) (Jurisdiction) Case No. ICTR-96–15–T (18 June 1997), at para. 20. See, Judith Gardam, Necessity, Proportionality and the Use of Force by States (Cambridge: Cambridge University Press, 2004) at 211; Malanczuk, above n. 75 at 98.

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implementation of peacekeeping measures are necessarily subject to the Charter provisions, and therefore may well be found invalid due to jurisdictional error,82 or unlawful in the case of a violation of the purposes and principles of the Charter. It is nevertheless hard to deny that there are inherent limitations upon the exercise of judicial functions that the ICJ cannot ignore. In the Northern Cameroons case, where this precept was established,83 a significant consideration was that ‘[t]he Court’s judgment must have some practical consequence in the sense that it can affect existing legal rights or obligations of the parties, thus removing uncertainty from their legal relations’.84 The absence of practical consequences of a judgment may thus provide a very good reason for the Court to choose, though not necessarily be obliged, to refrain from exercising its judicial powers.85 It has also been suggested that the ICJ should refrain from exercising its judicial powers in cases where it may put the international legal system into greater jeopardy than if the question of the lawfulness remained unresolved.86 The permissive wording of Article 65 of the ICJ Statute provides larger scope for the ICJ to decline rendering advisory opinions.87 Despite the Court’s established self-commitment to non-refusal to give a requested advisory opinion unless compelling reasons allow it to choose otherwise,88 it is submitted that the ICJ may still

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‘Jurisdictional error’ is a common law concept signifying that a jurisdictionally flawed decision is not a valid decision. For details, see, Hitoshi Nasu, ‘Chapter VII Powers and the Rule of Law: The Jurisdictional Limits’ (2007) 26 Aust YBIL 87 at 99–114 (in relation to the jurisdictional scope of Chapter VII powers). Northern Cameroons case, above n. 67 at 29. Id. at 34; see also, Nuclear Tests Case (Australia v. France) (Judgment) [1974] ICJ Reports 253 at 270–272 paras. 55–59; Nuclear Tests Case (New Zealand v. France) (Judgment) [1974] ICJ Reports 457 at 476–477 paras. 58–62. See, Nicaragua case, above n. 60 at 237 para. 53 (Judge Oda dissenting opinion) (‘the fact that the Court can entertain a case once it is properly seised is a different matter from the suggestion that the Court must exercise jurisdiction’). Judge Oda in fact argued for the judicial impropriety of the case in great details: id. at 219–246 paras. 15–72. See, Georg Nolte, ‘The Limits of the Security Council’s Powers and Its Functions in the International Legal System: Some Reflections’ in Michael Byers (ed.), The Role of Law in International Politics (Oxford: Oxford University Press, 2000) 315 at 318. See also, Amr, above n. 32 at 108–109. Article 65 of the ICJ Statute provides that: ‘The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request’ (emphasis added). Yet it is contentious if the Court is given absolute discretion in deciding whether to give an advisory opinion as requested: compare e.g., Shabtai Rosenne, The World Court: What It Is and How It Works (5th ed., Dordrecht: Martinus Nijhoff Publishers, 1995) at 108; with D. W. Greig, ‘The Advisory Jurisdiction of the International Court and the Settlement of Disputes between States’ (1966) 15 ICLQ 325 at 337–338. See, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996(1)] ICJ Reports 226 at 235 para. 14; Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations (Advisory Opinion) [1989] ICJ Reports 177 at 191 para. 37; Western Sahara (Advisory Opinion) [1975] ICJ Reports 12 at 21 para. 23; Namibia case, above n. 3 at 27

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find it improper to rule on the validity or legality of a Security Council resolution in cases where it can foresee that its decision will cause more harm than good for the settlement of the matter concerned, or for its judicial authority.89 The peculiar nature of peacekeeping measures reinforces this view, for the scope and magnitude of the physical measures tend to be limited. In the case of the ICJ declaring the invalidity of a Security Council resolution, it may well ‘serve to undermine the legitimacy of the acts in question, and should lead to a serious reconsideration of its decision by the organ concerned’.90 It is dubious, on the other hand, that the ruling will indeed serve to remove legal uncertainty, for the resolution at issue will remain valid until the relevant organ accepts the Court’s ruling and makes changes to it.91 It has to be acknowledged that the power monopolisation as a fruit of the wartime coalition ‘cannot be spirited away simply by reference to a present-day need for judicial review procedures’.92 The possibility cannot be denied, therefore, that even in cases where it can exercise jurisdiction over the validity or legality of a Security Council resolution, the ICJ may find it inappropriate, having regard to the legal or political consequences of its decision. The alternative possibility of judicial review is to have recourse to domestic courts. Given that each state, at least in theory, retains the right as the last resort to raise opposition questioning the validity or legality of Security Council decisions,93 it would carry more weight when it is so decided by an independent domestic court rather than by a political organ.94 The push towards a more active judicial role may well be echoed in different jurisdictions, which could encourage judicial engagement in an iterative process of interaction, interpretation and reinterpretation creating a pathway to transnational judicial dialogue.95

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para. 41; Certain Expenses case, above n. 3 at 155; Judgments of the Administrative Tribunal of the International Labour Organisation upon Complaints Made against the United Nations Educational, Scientific and Cultural Organization (Advisory Opinion) [1956] ICJ Reports 77 at 86; Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Advisory Opinion) [1950] ICJ Reports 65 at 72. See, Amr, above n. 32 at 108–109. Gowlland-Debbas, above n. 43 at 673; see also, Christopher Greenwood, ‘The Impact of Decisions and Resolutions of the Security Council on the International Court of Justice’ in Wybo P. Heere (ed.), International Law and the Hague’s 750th Anniversary (The Hague: T. M. C. Asser Press, 1999) 81 at 85–86. See, above nn. 53–59 and accompanying text. Caflisch, above n. 33 at 656. See, Ch. 4, Section 3-A. See generally, Erika de Wet & André Nollkaemper, ‘Review of Security Council Decisions by National Courts’ (2002) 45 GYIL 166 at 184–200. Such practice has emerged especially in human rights fields. See, e.g., Harold Hongju Koh, ‘Bringing International Law Home’ (1998) 35 Houston Law Review 623 at 649–651.

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However, the recourse to domestic courts is also subject to the issue of justiciability. The idea of judicial restraint lies with the distinction, familiar to common law countries, between public policy and legal principle, the former being formed on the basis of technical expertise and political judgment.96 This traditional common law approach, albeit diverse in each jurisdiction,97 tends to defer to the public authority’s decision about what is required.98 Judicial restraint is also commonly observed in other jurisdictions, indicating the possibility of domestic courts rendering acts of international organisations non-justiciable.99 As examined in Chapter 6, the attribution of the conduct of UN personnel during the peacekeeping operations to the UN virtually left the alleged victims deprived of their opportunity to seek redress in domestic and regional courts.100 It is rightly pointed out that there are no independent international legal barriers or guidance to a review of decisions of international organisations by domestic courts.101 Yet the conservative attitude is common, to a varying degree, to domestic courts, which are inclined to defer to and to restrain from evaluating executive decisions. The sentiment that domestic judicial review of Security Council decisions will undermine the whole collective security arrangements under the UN Charter also seems strong.102 All those legal and technical barriers inevitably make it difficult to rely on the judicial review by domestic courts as a viable option for the effective control over the Security Council’s decision and implementation of peacekeeping measures. The impropriety of judicial justice, however, does not necessarily mean that the Security Council’s decisions are left beyond the reach of law. In the context of administrative justice in the international rule of law, Lauterpacht stated that: Administrative justice and legal justice are not opposed one to another. It is only judicial justice which is opposed to administrative justice. But judicial justice is not the only manifestation of the rule of law.103

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T. R. S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2001) at 188–191. See, e.g., David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge: Cambridge University Press, 2006) at 102–120. Id. at 18–19. See generally, August Reinisch, International Organizations Before National Courts (Cambridge: Cambridge University Press, 2000) at 84–99. See, Ch. 6, Section 5-A. De Wet & Nollkaemper, above n. 94 at 195. See, e.g., Anthony Aust, ‘The Role of Human Rights in Limiting the Enforcement Powers of the Security Council: A Practitioner’s View’ in Erika de Wet & André Nollkaemper (eds), Review of the Security Council by Member States (Antwerp: Intersentia, 2003) 31 at 36–38. H. Lauterpacht, The Function of Law in the International Community (Oxford: Clarendon Press, 1933) at 386.

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The requirement that discretionary powers be legally authorised or regulated does not necessarily entail the requirement that all discretionary powers be judicially reviewable.104 Judge Schwebel in fact pointed out in his dissenting opinion in the preliminary objections phase of the Lockerbie cases that many legal systems rely ‘not upon judicial review but on self-censorship by the organ concerned or by its members or on review by another political organ’.105 The issue is therefore what alternative mechanisms are available, or can be set in place, to ensure that the Security Council exercises its peacekeeping power within the authorised jurisdiction and, moreover, without losing the legitimacy of its decisions.

3. Self-Regulation A. Enhancing Legal Accountability There is potential to enhance accountability of the Security Council by streamlining ways in which the validity and legality of its decisions can be addressed. The Report of the UN Secretary-General’s High Level Panel on Threats, Challenges and Change recommended that ‘processes to improve transparency and accountability be incorporated and formalized in the Council’s rules of procedure’.106 The Final Report and Recommendations from the Austrian Initiative also called for more structured forms of accountability, requiring the Security Council to identify reasons for decisions as the first step.107 Although it remains to be seen what kinds of process and engagement can be envisaged, the intention is evident to promote greater legal accountability of the Security Council. In considering ways in which more structured forms of legal accountability can be developed specifically in relation to peacekeeping measures under Article 40, the peculiar nature of peacekeeping must be duly accounted for. The scope and magnitude of peacekeeping measures are necessarily restricted, due to the provisional nature and also to the stricter requirements, compared to a fully-fledged exercise of Chapter VII powers. Under Chapter VII, the Security Council is acting as the ‘guardian’ to enforce peace and security, which gives rise to the fundamental ques-

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See, Timothy Endicott, ‘The Reason of the Law’ (2003) 48 American Journal of Jurisprudence 83 at 87–95. Lockerbie Preliminary Objections, above n. 41 at 76, 167 (Judge Schwebel dissenting opinion); see also, Ciobanu, above n. 5 at 57–60. A More Secure World, above n. 25, para. 258. Simon Chesterman, The UN Security Council and the Rule of Law: Final Report and Recommendations from the Austrian Initiative, 2004–2008, para. 30 (February 2008), available via (last visited 15 April 2008).

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tion as to ‘who guards the guardian’.108 On the other hand, the Security Council’s peacekeeping measures are rather in the nature of an ‘umpire’, whose job is to observe the conflict and to make sure that none of the parties involved breach the rules.109 There is less scope for the ‘umpire’ committing a serious violation of the purposes and principles of the Charter or the basic norms of international human rights and humanitarian law, especially in cases where peacekeeping measures are limited to the calls for a cease-fire or to the despatch of a peace observation mission. It does not discount the fact, though, that peacekeepers and other UN personnel engaged in a peacekeeping operation or provisional territorial administration have at times engaged in serious misconducts and human rights violations, which has summoned greater accountability to any group or individual who is affected by the UN operations on the field.110 Given the limited scope and magnitude of peacekeeping measures, the Security Council can ensure that its decisions and the implementation will be subject to sufficient scrutiny by utilising two existing mechanisms for self-regulation: the power of investigation as the basis for decision-makings; and auditory missions to review peacekeeping measures. It will be examined below how and to what extent those two requirements may provide an alternative safeguard mechanism whereby it can better be ensured that Security Council decisions are made and implemented in accordance with what the Security Council is required under the Charter, and expected by UN member states in general, to follow. B. Investigation as the Basis for Peacekeeping Measures The UN Charter by no means obliges the Security Council either to comply with, or to base its action upon, objective assessment of a conflict. However, when a situation reaches the stage where it is likely to threaten the maintenance of international peace and security, a decision to adopt a peacekeeping measure may well become controversial. The competency and legitimacy of the decision can be challenged, which will give rise to dissonance among Security Council members, opposition by the parties involved, and even criticism from other quarters. The current working methods would add more weight against the legitimacy of Security Council decisions, inasmuch as important determinations are made behind closed

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The question also arises outside of Chapter VII in the wider context of the accountability of international actors. See, e.g., Richard Caplan, ‘Who Guards the Guardians: International Accountability in Bosnia’ (2005) 12 International Peacekeeping 463. See, Tadić Jurisdiction Appeals, above n. 72 at 468–469 para. 33. For a detailed study on this issue, see, e.g., Ray Murphy, UN Peacekeeping in Lebanon, Somalia and Kosovo: Operational and Legal Issues in Practice (Cambridge: Cambridge University Press, 2007) at 230–238; Marten Zwanenburg, Accountability of Peace Support Operations (Leiden: Martinus Nijhoff Publishers, 2005) especially at 287–314.

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doors.111 It is arguable, therefore, that objective assessment by an independent investigatory mission will contribute to the enhancement of legitimacy of the decision that the Security Council has taken in the first place in dealing with an uncertain situation. When Security Council members cannot agree on the likelihood and the potential magnitude of a conflict threatening the maintenance of international peace and security, the Security Council can instead avail itself of the power of investigation on its own initiative to ascertain whether the situation is likely to threaten the maintenance of international peace and security. Article 34 of the Charter provides that: The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.

The power of investigation,112 although rather underused, serves several important functions for helping the Security Council in discharging its responsibility for the maintenance of international peace and security.113 One of these functions is to provide a factual or legal basis for further action that the Security Council should and can take, which in turn furnishes an authoritative and objective basis on which the subsequent action can be publicly assessed.114 Not only will it help ‘us’ in assessing whether an issue falls within the Security Council’s competence under the Charter, the greater transparency as a result of the mission will also reinforce the legitimacy of the relevant Security Council resolutions. For this power of investigation to have fully-fledged effects, transparency is an essential prerequisite to ensure impartiality and objectivity. All the processes involved in investigatory missions, from the organisation of a mission through to the result of an investigation, and how it is 111 112

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See, the literature cited in Ch. 4, Section 2-C-ii. Investigation is distinguished from peace observation as examined in Chapter 3, though both are concerned with fact-finding in terms of their functions. Investigation is a method of ascertaining facts of past and present events and of evaluating their possible future developments before a situation deteriorates, whereas observation is a method of supervising future events in terms of their conflict propensity without undertaking an inquiry about the causes of past incidents: see, Theodor Schweisfurth, ‘Article 34’ in Bruno Simma (ed.), The Charter of the United Nations: A Commentary (2nd ed., Oxford: Oxford University Press, 2002) 594 at 598–599. See also, Ernest L. Kerley, ‘The Powers of Investigation of the United Nations Security Council’ (1961) 55 AJIL 892. The significance of this provision is well described. It ‘established the right of the executive body to be a sort of world watchdog and emphasized its pre-eminent position within the new international structure’: Hilderbrand, above n. 11 at 133. The author’s argument on this point is fully developed in Hitoshi Nasu, ‘Investigation Proprio Motu for the Maintenance of International Peace and Security’ (2004) 23 Aust YBIL 105 at 115–121.

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used for the Security Council’s decision-making, should be made transparent and open to the public. The underutilisation of investigation, in conjunction with the lack of transparency in the Security Council’s deliberations, does in fact help in giving more grounds for challenges against the competency and legitimacy of Security Council resolutions. When the Lockerbie incident occurred, an investigation into the incident was carried out both in the US and the UK without the cooperation of an impartial international investigatory body, which led three years after the incident to the charging of two Libyan nationals with the adoption of Security Council Resolutions 731 and 748.115 The evidence in support of their charge ‘was never made public and, indeed, the claimants [the US and the UK] had refused to submit evidence to an impartial investigatory body’.116 It is also noteworthy that Libya was taking such a flexible attitude as to invite the UN Secretary-General to investigate in situ the allegations of Libyan involvement in the incident and terrorist activities.117 These facts could have made everyone, or at least Libyan nationals, believe that the Security Council resolutions were based on prejudiced information collected with subjective motives. The absence of an independent investigation in adopting resolutions might well have contributed, more or less, to the degradation of the legitimacy attached to the resolutions,118 magnifying the perception that the major states were taking advantage of their positions and abusing their powers. Instead of making use of the power of investigation on its own initiative, the Security Council has become increasingly reliant on reports and recommendations submitted by the UN Secretary-General. The Secretary-General has been significantly involved in fact-finding missions since the 1980s,119 and also, as was shown in Chapter 1, in the establishment of systematic fact-gathering capabilities for the purpose of conflict prevention.120 The active involvement of the SecretaryGeneral in fact-finding missions was officially endorsed when the Declaration on Fact-Finding by the United Nations in the Field of the Maintenance of International

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See, above nn. 37–42 and accompanying text. Marc Weller, ‘The Lockerbie Case: A Premature End to the “New World Order”?’ (1992) 4 AfJICL 302 at 313. The absence of procedural fairness in the UN decision-making to undertake unilateral military action is also pointed out by Professor Brownlie: Ian Brownlie, The Rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United Nations (The Hague: Martinus Nijhoff Publishers, 1998) at 226–228; see also, Frederic L. Kirgis Jr, ‘The Security Council’s First Fifty Years’ (1995) 89 AJIL 506 at 516. Weller, above n. 116 at 314–317. In fact, an increasing number of states have refused to comply with the economic sanctions imposed upon Libya: for details, see, Plachta, above n. 42 at 135–136. For details, see, M-Christiane Bourloyannis, ‘Fact-Finding by the Secretary-General of the United Nations’ (1990) 22 NYUJILP 641 at 649–650. See, Ch. 1, Section 2-A.

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Peace and Security was adopted by the General Assembly in 1991.121 The motivation for giving preference to the Secretary-General’s initiative resided in the expediency to avoid difficulties in reaching an agreement on the composition, procedure and decision-making rules for fact-finding missions.122 Despite the policy preference, the legal basis for the Secretary-General’s undertaking of fact-finding missions has been called into question. It may well be assumed that the Secretary-General has inherent powers to take the lead in undertaking factfinding missions by virtue of Article 99 of the Charter.123 The question nonetheless would remain controversial as to what extent the Secretary-General could take the lead in the absence of a specific mandate from the Security Council or the General Assembly.124 Some critics in fact take a cautious view about the expansion of the Secretary-General’s power in this direction.125 The uncertain legal authority of the

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GA Res 46/59 (9 December 1991) (hereinafter Declaration on Fact-Finding). The declaration was drafted by the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, which considered the matter from 1989 to 1991 based on two proposals submitted to it: Fact-Finding by the United Nations to Assist in the Maintenance of International Peace and Security, UN Doc A/AC.182/L.60; Fact-Finding Activities by the United Nations in the Context of the Maintenance of International Peace and Security, UN Doc A/AC.182/ L.62, both reprinted in Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, at paras. 20, 51 respectively, UN Doc A/44/33 (5 May 1989) (hereinafter 1989 Report of the Special Committee). See, 1989 Report of the Special Committee, above n. 121 at paras. 20, 36. Article 99 of the Charter provides that: ‘The Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security’. For discussion about the Secretary-General’s powers under this provision, see, e.g., Stephen M. Schwebel, ‘The Origins and Development of Article 99 of the Charter: The Powers of the Secretary-General of the United Nations’ in Justice in International Law: Selected Writings of Stephen M. Schwebel Judge of the International Court of Justice (Cambridge: Cambridge University Press, 1994) 233 at 243–244; Paul C. Szasz, ‘The Role of the U.N. SecretaryGeneral: Some Legal Aspects’ (1991) 24 NYUJILP 161 at 187; Charles Henry Alexandrowicz, ‘The Secretary-General of the United Nations’ (1962) 11 ICLQ 1109 at 1115. Higgins, for example, expresses her view that ‘the right to enter into negotiations prior to the Security Council being seized of a matter cannot objectively be read into Article 99’. However, she goes on to state that it should be explained as ‘a practice which has developed partly due to political necessity and partly due to the personality of the various Secretaries-General’ in a broad interpretation of the UN Charter ‘which permits as valid every action within the purposes and principles of the Charter, and not expressly prohibited thereunder’: Rosalyn Higgins, United Nations Peacekeeping 1946–1967: Documents and Commentary I, The Middle East (London: Oxford University Press, 1969) at 627; see also, Scott Pasternack, ‘The Role of the Secretary-General in Helping to Prevent Civil War’ (1994) 26 NYUJILP 701 at 713–718. See, e.g., Thomas E. Boudreau, Sheathing the Sword: The U.N. Secretary-General and the Prevention of International Conflict (Westport: Greenwood Press, 1991) at 107–108; Nabil Elaraby, ‘The Office of the Secretary-General and the Maintenance of International Peace and Security’ in United Nations Institute for Training and Research, The United Nations and the Maintenance of International Peace and Security (Dordrecht: Martinus Nijhoff Publishers, 1987) 177 at 194–195.

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Secretary-General in this respect could be redressed by subjecting the resort to factfinding missions to the prior consent of the states concerned. Yet this requirement would only result in the delay of fact-finding activities, giving states a chance to take advantage of it and continue military operations. It could alternatively be suggested that fact-finding missions be initiated with Chapter VII powers, though this does not make any sense because Chapter VII action would not be taken without first obtaining knowledge of the facts.126 Sohn instead suggests that the Security Council ‘use more small committees or working groups to investigate in depth dangerous situations rather than refer everything to the Secretary-General’.127 Besides the uncertain legal authority under the Charter, the Secretary-General’s initiative in undertaking fact-finding missions brings about the question whether, and what happens if, the Secretary-General and the subordinates can keep the information collected to themselves, without reporting it to the Security Council. It was argued in the drafting stage of the Declaration on Fact-Finding that the Secretary-General ‘had a margin of discretion, both with respect to undertaking fact-finding missions and to the use of the information collected in the light of his judgement’.128 Yet the question remains to what extent the Secretary-General and more importantly the subordinates may exercise a margin of appreciation in selecting information to be reported to the Security Council for consideration. This issue was well illustrated when the UNAMIR’s first Force Commander, Romeo A. Dallaire, sent to UN Headquarters on 11 January 1994 a telegram containing information indicating the existence of a plan to exterminate Tutsi. Senior UN officials did not reportedly brief the Secretary-General about this telegram, nor was the Security Council informed of it until 31 May 1994 after the massacre had already been carried out as planned.129 It may well be argued that this type of miscommunication can be prevented by restructuring the chain of command, but more fundamental problems underlie this episode, arising from the gulf between decision-making at the UN Headquarters and reconnaissance on the ground. Efficient as it may be, the current practice relies too much on the UN Secretariat and needs to be re-assessed to bridge the gulf so that the findings on the ground can be better and more quickly reflected in Security Council deliberations. It is suggested in this context that the Security Council’s investigatory missions in the

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See, Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, UN Doc A/45/33 (8 March 1990) (hereinafter 1990 Report of the Special Committee) at para. 39. Louis B. Sohn, ‘Important Improvements in the Functioning of the Principal Organs of the United Nations That Can be Made without Charter Revision’ (1997) 91 AJIL 652 at 655–656. 1989 Report of the Special Committee, above n. 121 at para. 36. For details, see, Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda, UN Doc S/1999/1257 (16 December 1999) (hereinafter Rwanda Report) at 10–12, 33.

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early years of the UN be revaluated in terms not of the enhancement of efficiency, but of the improvement of communication. The institutional and procedural requirements in the course of reaching a peacekeeping decision also serve the purpose of minimising the possibility of an arbitrary application of peacekeeping measures by making assessment and decision-making processes available to the public. Illustrative is the role played by the UN Monitoring, Verification and Inspection Commission (UNMOVIC) in Iraq.130 The investigatory mission in an impartial and objective manner provided the Security Council, as well as the international community, with transparency in assessing what measures the Security Council should or should not undertake.131 As a result of the inspection, UNMOVIC reported that they did not find evidence of the continuation or resumption of programmes of weapons of mass destruction, though unresolved disarmament issues still remained.132 Through these findings, not only did the report convince the majority of the Security Council members that forcible measures should not be authorised at that time, it also helped reinforce their position with a reasonable factual basis. Although it is desirable to undertake an investigation before adopting a peacekeeping measure, it is also foreseeable in some situations that urgency obliges the Security Council to take action, postponing lengthy fact-finding and deliberations for a later stage. Detailed investigation, while strengthening the legitimacy of the peacekeeping measures taken in reliance on it, inevitably weakens their preventive nature if it is considered to be a prerequisite for any peacekeeping measures. The situation at hand may deteriorate and develop into an actual threat to the peace whilst an investigation is underway. It should also be borne in mind that the failure to follow the proposed (and even established) procedure will not necessarily result in the invalidation of Security Council decisions. When it is obvious that the situation is deteriorating, therefore, the institutional procedure should not prevent the Security Council from directing proactive peacekeeping measures.

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UNMOVIC was established by SC Res 1284 (17 December 1999) pursuant to paragraph 9 (b) of SC Res 687 (1991) under Chapter VII of the Charter to verify compliance by Iraq with its obligations under Resolution 687. It is in fact reported that Iraqi authorities provided prompt access even in cases where inspections were performed without notice: see, Twelfth Quarterly Report of the Executive Chairman of the United Nations Monitoring, Verification and Inspection Commission in accordance with Paragraph 12 of the Security Council Resolution 1284 (1999), at para. 12, UN Doc S/2003/232 (28 February 2003). Thirteenth Quarterly Report of the Executive Chairman of the United Nations Monitoring, Verification and Inspection Commission in accordance with Paragraph 12 of the Security Council Resolution 1284 (1999), at paras. 7–16, UN Doc S/2003/580 (30 May 2003).

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C. Continuing Assessment of Peacekeeping Measures When it decides or recommends the adoption of certain peacekeeping measures, the Security Council may establish a subsidiary organ to carry out the peacekeeping measures in pursuance of Article 29 of the Charter,133 and under the Rules of Procedure of the Security Council.134 Military observer groups, UN forces under the command of the Secretary-General, and committees to ensure effective implementation of an arms embargo are examples that will be categorised as subsidiary organs of the Security Council. The Security Council can also authorise an individual state or a group of states to carry out a peacekeeping measure on the condition that the authorised state(s) will report the details of its implementation, though impartiality in the course of its implementation may not easily be maintained.135 The most preferable option has been that the UN Secretary-General be charged with implementing peacekeeping measures within the ambit of the mandates given by the Security Council. The Security Council has increasingly turned to the Secretary-General for assistance in implementing Security Council resolutions, in addition to collecting information necessary for decision-making. This practice raises another issue in relation to the competency and legitimacy of Security Council action in an implementation phase. The Secretary-General is entitled under Article 98 of the Charter to perform such functions as are entrusted by UN political organs. In theory, the Secretary-General is only required to implement decisions or recommendations of the Security Council as they so request. Yet, in reality, the Secretary-General is often required to do more, given the ambiguity often involved in Security Council resolutions which are drafted in haste with an urgent need to take a measure in response to an on-going conflict.136 The actual implementation of the mandates involves a significant degree of interpretation, which has in fact made it necessary for the Secretary-General to exercise an inherent power of decision-making and interpretation.

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Article 29 of the UN Charter reads that: ‘The Security Council may establish such subsidiary organs as it deems necessary for the performance of its functions’. Rule 28 of the Rules of Procedure provides that: ‘The Security Council may appoint a commission or committee or rapporteur for a specified question’. This rule is a partial application of Article 29 of the Charter: see, Bailey & Daws, above n. 30 at 405. See, Mats Berdal, ‘Lessons Not Learned: The Use of Force in “Peace Operations” in the 1990s’ in Adekeye Adebajo & Chandra Lekha Sriram (eds), Managing Armed Conflicts in the 21st Century (London: Frank Cass Publishers, 2001) 55 at 62–63, 67–70. See, Ch. 4, Section 2-C-i.

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This practice has given rise to a legal question as to whether the Security Council’s power of decision-making, and not only its functions, can be delegated to the Secretary-General.137 The question arises especially when the Secretary-General takes the lead on his/her own authority under a broad mandate given by UN political organs. The UN India-Pakistan Observation Mission (UNIPOM), for example, was set up by the Secretary-General who acted under the broad mandate ‘to provide necessary assistance to ensure supervision of the cease-fire and the withdrawal of all armed personnel’.138 The deployment of UNIPOM, apart from UNMOGIP which had already been in operation in Kashmir, could not escape criticism, as the Secretary-General was given no formal authorisation specifically referring to the establishment of a new observation mission.139 The Secretary-General explained that, since the terms of reference and function of UNMOGIP had been limited to the cease-fire line in Kashmir, and the Secretary-General assumed no authority to extend the scope of its functions beyond the cease-fire line, ‘it was necessary to set up a new operation in order to carry out fully the directive of the Security Council in paragraph 2 of its resolution 211 (1965)’.140 The Secretary-General’s decision was thus based on operational necessity and, in any event, was tacitly approved by the Security Council. When the Soviet Union raised a question about the scope of the Secretary-General’s discretion,141 it was generally held that the decisions taken by the Secretary-General were entirely reasonable in view of the seriousness of the problem and were necessary for prompt action.142 It was also stressed that

137

138 139

140

141

142

The delegation of functions as referring to a mere power of implementation is distinguished from the delegation of discretionary powers of decision-making, depending on the degree to which effective decision-making power has been transferred: see generally, Danesh Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of Its Chapter VII Powers (New York: Clarendon Press, 1999) at 10–11. SC Res 211 (20 September 1965) at para. 2. The Indian government repeatedly urged that the supervision of the cease-fire be treated as one whole together with the Kashmir sector, and therefore to place a group of observers under one command to carry out a single operation: see, e.g., Letter dated 30 September 1965 from the Representative of India to the Secretary-General, UN Doc S/6735 (1 October 1965); Letter dated 8 October 1965 from the Representative of India to the Secretary-General, UN Doc S/6762 (8 October 1965). ‘Aide-Mémoire dated 25 Deptember 1965 from the Secretary-General to the Representative of India’ in Communications from the Secretary-General to the Representative of India, at para. 9, UN Doc S/6738 (2 October 1965). The Soviet Union expressed its view about the principle of authority, arguing that ‘[i]t is the [Security] Council that must decide such questions as the functions of military observers, their numbers, their command, their terms of reference, the financing of their activities, and so on’: UN SCOR, 20th year, 1251st mtg, at para. 84, UN Doc S/PV.1251 (5 November 1965). The US representative stated that, ‘[the Secretary-General’s] actions were entirely reasonable, and well within the limits that could be envisaged in view of the seriousness of the problem. If forty-three observers were appropriate, as has been long recognized by this Council, to observe

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the Security Council could have raised an objection at any time, as the Security Council had been constantly informed of every step that the Secretary-General had taken.143 It is thus conceivable that the majority of Security Council members seem to have acted on the understanding that the power of decision-making as well as the functions of implementation can be delegated to the Secretary-General, despite the cautious, sometimes even hostile, attitude of the Soviet Union (Russia) towards the active roles that the Secretary-General played. The Secretary-General has thus been enabled to exercise a delegated power of decision-making in implementing the mandates given by UN political organs. It appears, however, that the exercise of the power is subject to two conditions: that it is necessary and reasonable in the light of the mandate and circumstances; and that the steps taken are regularly reported to and consulted on, formally or informally, with Security Council members so that they can review the Secretary-General’s decisions at any stage of the implementation. Although the sea change in the political climate at the end of the Cold War has reduced the margin of appreciation given to the Secretary-General for organising a UN peacekeeping mission,144 it has continued to play a pivotal role in ensuring that Security Council decisions are implemented in a consistent and coherent manner. As was the case in UN peacekeeping operations in Somalia,145 and Rwanda,146 the diversion of command and control in peacekeeping operations may significantly undermine the consistent and coherent application of a given mandate, causing devastating effects upon accomplishment of the mission goals. There are potential pitfalls of relying too much on the Secretary-General for the implementation of Security Council decisions. Manipulation and miscommunication of information may occur in the process where the Secretary-General reports

143

144

145 146

a cease-fire under peaceful conditions and in a cease-fire line of less than 500 miles, then 200 observers are obviously reasonable for supervising a cease-fire line that now extends 1,500 miles under the grave and troubled conditions that now exist between India and Pakistan’: UN SCOR, 20th year, 1247th mtg, at para. 260, UN Doc S/PV.1247 (25 October 1965). See, e.g., UN SCOR, 20th year, 1247th mtg, at paras. 257–258 (US), UN Doc S/PV.1247 (25 October 1965); 1248th mtg, at paras. 56–57 (Ivory Coast), UN Doc S/PV.1248 (27 October 1965); 1249th mtg, at para. 29 (Malaysia), UN Doc S/PV.1249 (28 October 1965); 1251st mtg, at para. 25 (Netherlands), UN Doc S/PV.1251 (5 November 1965). As the Security Council has recently become able to secure unanimous decisions, it has begun to authorise peacekeeping missions with resolutions that contain specific mandates and specify the number of personnel to be deployed. See, Ch. 6, fn. 184 and accompanying text. Operation Turquoise led by France under Chapter VII authority has reportedly caused an imbalance with the mandates of UNAMIR which had been acting as a Chapter VI operation: see, Rwanda Report, above n. 129 at 49.

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to the Security Council on how its decisions are implemented on the ground.147 In addition to the reporting problems, a real possibility exists that a peacekeeping measure could well be implemented in a way that goes beyond what the mandate has authorised. Furthermore, given that it is sometimes hard to ascertain what is authorised in a concrete situation under a given mandate,148 UN personnel may well be left with uncertainty as to whether a particular action can be taken in compliance with the mandate. Yet such possibility has on occasion helped downplay the delegated functions that UN peacekeeping operations can perform, as UN Headquarters tend to give a strict and narrow interpretation in implementing a mandate.149 Although the UN Secretariat has been publishing its legal opinions on an annual basis in the UN Juridical Yearbook, their legitimating impact cannot be attested unless recourse is had to judicial review by the ICJ as the primary judicial organ of the UN. An interesting development in this context is that the Security Council since the early 1990s has made use of a new type of fact-finding mission for the purpose of ascertaining whether Security Council measures are being effectively implemented. Significant are the composition and status of the mission, consisting of the representatives of several Security Council members who act independently and separately from the UN personnel who have already been deployed on the ground. In its embryonic form, the objectives and functions of Security Council missions were varied and broad, though they were conceivably expected to play a communicative role in conveying the Security Council’s intention to the parties to a conflict.150 Yet they were broad enough to enable the missions to evaluate the progress made in implementing Security Council measures in the light of circumstances that had developed since the adoption of the measures. For example, a Security Council mission was despatched to Bosnia in 1993, and was provided with no terms of reference, which were instead to be worked out among the members of the mission.151

147

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151

The miscommunication which happened in Rwanda provides a good example, see, above n. 129 and accompanying text. The issue of interpretation of Security Council decisions is dealt with at length in Ch. 4, Section 2. An example is that UNFICYP was given a strict interpretation about whether it is authorised to take military action to prevent firing across the cease-fire line: see, Ch. 6, Section 4. See, e.g., Report of the Security Council Mission to Somalia on 26 and 27 October 1994, at para. 1, UN Doc S/1994/1245 (3 November 1994); Report of the Security Council Mission to Burundi on 10 and 11 February 1995, at para. 3, UN Doc S/1995/163/Annex (28 February 1995); Report of the Security Council Mission to Western Sahara from 3 to 9 June 1995, at para. 3, UN Doc S/1995/498 (21 June 1995). See, Letter dated 30 April 1993 from the Security Council Mission Established Pursuant to Council Resolution 819 (1993) to the President of the Security Council, at paras. 2–3, UN Doc S/25700 (30 April 1993).

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The Bosnian mission nonetheless undertook to evaluate the UNPROFOR’s performance and made several suggestions for its improvement.152 The fully-fledged activation in this direction of Security Council missions took place in 2000, when the Security Council despatched five missions to Kosovo,153 the Democratic Republic of the Congo,154 Eritrea and Ethiopia,155 Sierra Leone,156 and East Timor.157 In the absence of a formal resolution, the missions were despatched on the basis of statements of the President of the Security Council following informal consultations among Security Council members. Those Security Council missions were nevertheless given an explicit authorisation to audit the implementation of Security Council decisions on the ground. The terms of reference of the Kosovo mission, for example, expressed concern about the obstacles to the implementation of Security Council Resolution 1244 and authorised it, inter alia, ‘[t]o observe the operations of the United Nations Interim Administration Mission in Kosovo (UNMIK) and its activities, and to gain a greater understanding of the situation on the ground in order to comprehend better difficult challenges faced by UNMIK’.158 Security Council missions of the same kind were also sent to Afghanistan in 2003 to review the progress achieved by the Afghan transitional administration,159 and to Haiti in 2005 to review the progress achieved by the UN Stabilization Mission

152 153

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159

Id. at paras. 44–48. See, Report of the Security Council Mission on the Implementation of Security Council Resolution 1244 (1999), UN Doc S/2000/363 (29 April 2000) (hereinafter Kosovo Mission Report). See, Security Council Mission Visit to the Democratic Republic of the Congo, 4–8 May 2000, UN Doc S/2000/416 (11 May 2000); see also, Terms of Reference for the Security Council Mission to the Democratic Republic of the Congo and the region, UN Doc S/2000/344 (24 April 2000). See, Security Council Special Mission Visit to Eritrea and Ethiopia, 9 and 10 May 2000, UN Doc S/2000/413 (11 May 2000) (hereinafter Eritrea/Ethiopia Mission Report); see also, Terms of Reference for Security Council Mission to Eritrea and Ethiopia, UN Doc S/2000/392/Annex (8 May 2000). See, Report of the Security Council Mission to Sierra Leone, UN Doc S/2000/992 (16 October 2000); see also, Terms of Reference of the Security Council Mission to Sierra Leone, UN Doc S/2000/886 (21 September 2000). See, Report of the Security Council Mission to East Timor and Indonesia, UN Doc S/2000/1105 (21 November 2000). Kosovo Mission Report, above n. 153 at para. 2(b). The Kosovo mission for similar purposes was sent again in the subsequent years: see, e.g., Report of the Security Council Mission on the Implementation of Security Council Resolution 1244 (1999), UN Doc S/2001/600 (19 June 2001); Report of the Security Council Mission to Kosovo and Belgrade, Federal Republic of Yugoslavia, UN Doc S/2002/1376 (19 December 2002). See, ‘Terms of Reference and Composition of the Security Council Mission to Afghanistan’ annexed to the Report of the Security Council Mission to Afghanistan, 31 October to 7 November 2003, UN Doc S/2003/1074 (11 November 2003).

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in Haiti (MINUSTAH).160 It is interesting to note, in addition, that the auditory activities of Security Council missions are not confined to Security Council measures, but extend also to the measures undertaken by regional organisations such as the African Union (AU),161 and the Economic Community of West African States (ECOWAS),162 in a cooperative and constructive way. Meanwhile, it has become a standard procedure for the Security Council to establish a sanctions committee as a subsidiary organ for each set of sanctions that it imposes, in order to provide support for the effective and successful implementation of sanctions.163 The similarity of the functions of Security Council missions to those of its sanctions committees is striking. The Kosovo mission was in fact also charged with the review of the ongoing implementation of the arms embargo imposed by Security Council Resolution 1160,164 which had already been monitored by the sanctions committee established by that resolution.165 Those new initiatives taken by the Security Council have arguably had the positive effect of reducing the chance that Security Council decisions may suffer abusive and unauthorised implementation. One may further argue that subsidiary bodies, created by the Security Council with a sufficiently broad mandate, can also verify the legality and legitimacy of the decisions and implementation of a peacekeeping measure, even though they are not so intended.166 It can play important roles in deterring the Secretary-General and UN personnel deployed on the ground from the abusive exercise of delegated powers and functions. Although it has to be acknowledged that the auditory initiatives are not designed to buttress the legality or legitimacy of the Security Council’s decisions, it may not preclude them from raising the issue as a result of their mission. Yet one may see that it is practically

160

161 162

163

164 165 166

See, ‘Terms of Reference for the Security Council Mission to Haiti, 13–16 April 2005’ annexed to the Report of the Security Council Mission to Haiti, 13 to 16 April 2005, UN Doc S/2005/302 (6 May 2005). See, Eritrea/Ethiopia Mission Report, above n. 155. See, Report of the Security Council Mission to West Africa, 20–29 June 2004, UN Doc S/2004/525 (2 July 2004); Report of the Security Council Mission to West Africa, 26 June-5 July 2003, UN Doc S/2003/688 (7 July 2003). For details about the work of the sanctions committees and the issues involved, see, e.g., Jeremy Farrall, United Nations Sanctions and the Rule of Law (Cambridge: Cambridge University Press, 2007) at 146–181; David Cortright & George A. Lopez, ‘Reforming Sanctions’ in David M. Malone (ed.), The UN Security Council: From the Cold War to the 21st Century (Boulder: Lynne Rienner Publishers, 2004) 167 at 172–178; Bailey & Daws, above n. 30 at 365–374. See, Kosovo Mission Report, above n. 153 at para. 2(d). See, SC Res 1160 (31 March 1998). The notable example (or exception) is that the ICTY Appeals Chamber exercised its inherent incidental power to determine its own jurisdiction to review the legality of the Security Council’s decision in establishing the Tribunal: see, Tadić Jurisdiction Appeals, above n. 72 at 460–463 paras. 18–22; see also, Alvarez, above n. 32 at 10–11.

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unlikely to happen or, should it happen, self-contradictory, so long as auditory missions consist of self-appointed and non-judicial bodies. The auditory mission of subsidiary bodies by way of self-regulation has inherent limitations upon the extent to which it can provide an objective opinion on the legality and legitimacy of peacekeeping measures. The limitations emanating from self-regulation may well be alleviated if other international organs establish subsidiary bodies for an auditory purpose. From this point of view, the way in which the General Assembly can exercise political control over the Security Council can be improved upon by setting up subsidiary organs, such as ombudsman,167 for the particular purpose of monitoring Security Council peacekeeping measures. Article 10 of the Charter in fact authorises the General Assembly to ‘discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter’ (emphasis added), in so far as it does not make recommendations with regard to the dispute or situation per se that the Security Council is dealing with.168 The monitoring reports may not be sufficiently forceful as a mechanism to ensure that Security Council decisions to undertake a peacekeeping measure have satisfied the necessary grounds and conditions for making it valid and lawful. Nevertheless, it is little wonder that it could provide an authoritative second opinion on the legal and factual bases and conditions for (in)validating and (de)legitimating peacekeeping measures directed by the Security Council.

4. Towards Better Control of Peacekeeping Every peacekeeping measure must be adopted and implemented within the jurisdiction of the authorising organ in conformity with the general and specific requirements under the UN Charter. Some form of mechanism to ensure that peacekeeping measures are directed and implemented in accordance with those requirements needs to be developed. Yet the extent to which political control extends to the regulation of the Security Council’s action is weak and has become even weaker since the end of the Cold War. The judicial review by the ICJ as the principal judicial organ of the UN remains unlikely, though the Court may potentially provide an authoritative and objective assessment of the validity and legality of decisions to direct peacekeeping measures.

167

168

For such proposals, see, Zwanenburg, above n. 110 at 292–312; Florian Hoffmann & Frédéric Mégret, ‘Fostering Human Rights Accountability: An Ombudsperson for the United Nations?’ (2005) 11 Global Governance 43 at 56–57. See, Ch. 7, Section 2-B.

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This chapter has shown that given the limited scope and magnitude of peacekeeping measures, recourse can instead be had to self-regulation, drawing on two existing procedural mechanisms: investigation and auditory missions. Each procedure helps enhance transparency both in the process towards the decisions to be made and also during the implementation of peacekeeping measures. Although the Security Council’s power of investigation under Article 34 of the Charter has been underused, relying instead on the Secretary-General’s information gathering activities, the increasingly active posture of the Security Council in recent years in fact-finding missions for a variety of purposes is encouraging. No doubt the validity and legality of peacekeeping measures will be better ensured by combining their operation with those fact-finding missions despatched by the Security Council itself, or more desirably, in relation to the auditory mission by the General Assembly. It must nonetheless be pointed out that greater transparency only serves the purpose of providing a factual basis for the international community. The ultimate authority to decide the validity and legality of peacekeeping measures based on their findings, after all, reside neither with each UN political organ nor with each UN member state. Rather it rests with the interactive processes in the international community as a whole.

Conclusion Much of the legal debate over the maintenance of international peace and security has generally been dominated by concerns about collective enforcement measures and unilateral military actions by individual states. Important as they may be, the efforts to strengthen the last resort approach may have contributed much less to the prevention of armed conflicts than might have been expected. The proliferation of Chapter VII measures does not necessarily represent the true invigoration of the Security Council’s authority and functions assigned thereto. The Security Council’s preventive posture needs to be reinforced with an affirmative and innovative approach. In this context, the significance of Article 40 of the Charter as the central basis of the legal regime governing peacekeeping measures must be revaluated. It allows for a more flexible approach to conflict management, facilitating the Security Council to direct peacekeeping measures such as calls for a cease-fire, the deployment of a peace observation mission and a peacekeeping force, provisional territorial administration, and preventive arms embargo, at an early stage of conflict. These peacekeeping measures can be taken with or without consent of the parties concerned as a mandatory decision. Emphasis must be placed on the role that the Security Council can play, which has primary responsibility for the maintenance of international peace and security, and as such is authorised to make a legally binding decision pursuant to Article 25 of the Charter. The fact that intra-state conflicts have been a dominant concern for the maintenance of international peace and security adds weight to this view, inasmuch as consent of a central government lacking in legitimacy carries little weight, and consent of non-state entities is neither legally required nor practically reliable. Although cooperation of local parties surely strengthens the effective implementation of peacekeeping measures, it should not be seen as a legal obstacle to the Security Council’s decisions in the first place to impose a legal obligation upon the parties to comply with the measures. The traditional principle of non-intervention and the restrictions imposed upon the use of armed force by peacekeeping forces may prevent effective implementation of peacekeeping measures. However, the historical account of peacekeeping measures that the Security Council has undertaken shows that it has been more actively involved in conflict situations, especially those of an intra-state nature. In cases where the central government has lost its effective authority in the entirety or part of its territory, the Security Council is authorised to direct peacekeeping measures to prevent aggravation of the internal armed conflict, though it has to maintain impartiality to avoid a prejudiced intervention into domestic politics.

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When peacekeeping forces are given a mandate to secure the compliance of the parties with a peacekeeping measure, UN military personnel are allowed to use armed force beyond self-defence of their own to the extent necessary to ensure the implementation of the mandate, albeit subject to various legal constraints. The Security Council can exercise discretion or a margin of appreciation under Article 40 of the Charter in deciding whether to adopt peacekeeping measures as well as what measures are to be taken. Yet its decision to direct peacekeeping measures and the implementation of the measures must be made within the jurisdiction of the Security Council, or to a lesser extent, of the General Assembly, in conformity with the purposes and principles of the UN Charter, the requirement of impartiality, and, in a loose sense, proportionality as derived from Article 40 of the Charter. Moreover, given the general shift of emphasis from ‘right’ towards ‘responsibility’, the Security Council may contentiously be required to adopt peacekeeping measures in discharging its responsibility to regulate the use of armed force by states in conformity with Article 2(4) of the Charter. On the other hand, in view of the current upsurge of Chapter VII powers, it is legitimate to be concerned about an abusive and arbitrary use of peacekeeping measures. Yet the provisional nature of the peacekeeping power as well as stringent legal requirements under Article 40 will help restrain peacekeeping measures, whilst maintaining the respect for the sovereignty of states in a balanced and nuanced manner. Although neither judicial nor political processes may provide much help to review the validity and legality of peacekeeping measures, the essentially benign nature of peacekeeping arguably justifies self-regulation of its activity through the existing mechanisms such as investigation and auditory missions, which will enhance transparency in the process both towards decision-makings and the implementation of peacekeeping measures. The current quest for Security Council reform is likely to lead nowhere, adding little to the enhancement of its authority. Despite (or due to) the ambitious expectations, the approach towards Security Council reform has barely been uniform among UN member states. While the fundamental problems that have confronted the UN are issues of the legitimacy and effectiveness of its action, the reform plans commonly urge that the Security Council be more representative of the broader membership so as to increase the democratic and accountable nature of the body. Yet an increase of membership may well have an adverse impact on the effectiveness of Security Council action, especially at an early stage of conflicts. A more representative body does not necessarily promise that the Security Council will act in a more representative and legitimate manner. No matter how the Security Council’s membership changes, the legitimacy and credibility of the body would not be restored or enhanced unless its substantive decisions are perceived as representative and accountable to UN members. It should be noted, nonetheless, that not all the failed attempts at Security Council reform result in fruitless academic exercises. It is worth recalling that the end of the abortive attempt to reform the

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Security Council in the 1970s marked the turn of the tide towards more substantive, rather than institutional, change to the Security Council, as proposed by the then Secretary-General, Javier Pérez de Cuéllar. Such changes included preventive diplomacy and systematic information gathering. This experience indicates that facilitating the Charter-based understanding of peacekeeping measures that will ensure the normative coherence and integrity of the entire institution, less susceptible to a state-centric, pragmatic paradigm, would better serve the enhancement and restoration of the Security Council’s legitimacy and credibility.

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Index Afghanistan 83–84, 240, 273 UNGOMAP 83 African Union (AU) 15, 274 Albania boundary dispute 48–50, 211–212 civil war 155 rebel uprisings 94 An Agenda for Peace 5, 8, 18, 172–173, 194 Angola 85, 130–131, 140, 159–160 UNAVEM 85, 130, 160–161 armed opposition group 95, 98, 129–131, 139–149, 151, 158–160, 162, 167–168, 172, 183, 218–219, 236–237 accountability 160 legal status 129, 141 recognition 158 Armenian massacres 38 armistice 56, 69, 74, 80 arms embargo 5, 9, 62–64, 69, 72, 102–105, 128–129, 131, 154, 173, 214, 236, 247, 254, 269, 274, 277 auditory mission 263, 275–276, 278 Austrian Initiative 262 belligerency 22, 140, 143, 159 belligerent occupation 196, 199 Bosnia 9, 18, 27, 154, 162, 173–175, 191, 214, 236, 247, 272–273 ICTY 105, 120, 197, 258 UNPROFOR 9, 85, 162, 177, 183–184, 187, 191–192, 273 Boxer Rebellion 38 Brahimi Report 5, 10, 18, 22, 25, 33, 101, 156–157, 176, 189, 202, 219, 221–222 Bryan, William Jennings 40 burden of proof 127, 157, 193–195, 233, 237 Carnegie Commission on Preventing Deadly Conflict 8, 10 cease-fire 5, 9, 12, 14, 23, 52, 69, 71–81, 83–84, 86, 90, 95–97, 103, 105, 113–115,

128, 130, 133, 140, 160–162, 168, 172, 174, 176–177, 206, 263, 270–271, 277 collective security 1, 6, 15–16, 42–43, 67, 217, 229, 231–232, 248, 261 Commission of Enquiry 49–52, 60 commission of inquiry 39–40 Darfur 15, 147 Armenian massacres 38 Congo, the 86–89, 124, 128, 139, 152, 174, 177–178, 185, 273 arms embargo 103 Belgian intervention 87, 240–241 constitutional crisis 87, 89, 152, 189 MONUC 33, 85 ONUC 6, 28, 85–89, 119, 152, 177–178, 185–187, 189 Occupation by Ugandan forces 199 Operation Morthor 186 consent 3, 14, 16–24, 26, 30, 33, 56, 78, 81, 90–91, 94–95, 100, 106, 129–130, 139, 141, 152, 161, 166, 172, 174, 222, 267, 277 constructive ambiguity 118, 125, 233 Corfu incident 41 Cyprus 89–91, 174, 177, 190, 206, 214 UNFICYP 85–86, 89–90, 177–178, 190–191, 206, 272 Darfur (see also, commission of inquiry) 15, 242 demilitarised zone 8, 161, 194–195 democratic governance 165, 167 domestic jurisdiction of a state 16, 25, 35, 56, 73, 81–82, 121–122, 135–138, 141, 148–152, 158, 165, 168, 216, 218, 221, 242, 252 Dumbarton Oaks proposals 67 East Timor 18–19, 21, 31, 118, 214, 273 INTERFET 19 UNTAET 85, 99

318

Index

Economic Community of West African States (ECOWAS) 274 election monitoring 67, 99–100, 158, 164–168, 218 enforcement action/measure 24, 27, 31, 72, 102–104, 110, 121–122, 124, 133–134, 136, 149, 155, 157, 171–173, 175, 179, 182–187, 191, 193, 196, 205–206, 210, 213, 218–219, 233–234, 237 Eritrea and Ethiopia 273 fact-finding 8, 10, 12, 150, 265–268, 272, 276 failed state 98 Falkland (Malvinas) Islands 73, 235 Fitzmaurice, Judge Gerald G 101, 120–121, 125, 209 Former Yugoslavia (see, Bosnian conflict) Free Territory of Trieste 101 freedom of movement (the right to) 75, 178–179, 184, 187, 189, 191 genocide 14, 25, 155, 201–203, 216, 226 good faith 110, 129, 178–179, 216 Good Faith Accord 21 Greek border disputes 211 UNSCOB 212–213, 215 Hague Peace Conferences 39 High-Level Panel on Threats, Challenges and Change 2, 17, 96, 225 human rights 25, 32, 144, 146, 157, 204, 216, 242, 245, 263 extraterritorial application 198–200 violation 159, 263 humanitarian assistance 75, 158, 162–164, 167, 191, 218–219 humanitarian concerns 25, 157 humanitarian intervention 225, 231, 238, 241 ICTY (see, Bosnia) ICTR (see, Rwanda) immunity (see, UN privileges and immunities) impartiality 3, 25, 62, 106, 131, 154–158, 160, 162, 164, 166–169, 173–175, 187, 204–205, 218–219, 242, 245, 264, 269, 277–278 In Larger Freedom 10, 226

Indonesian question 73, 76–78, 136, 151–252 inherent power, doctrine 28–29, 245–246, 266, 269 insurgency 140 International Commission on Intervention and State Sovereignty (ICISS) 225 ICJ 28, 108, 113–114, 116, 121–122, 127, 129, 132, 180–181, 184, 213, 251–260, 272, 275 admissibility 255 incidental judicial ruling 254–255 judicial review 251–255, 258, 272, 275 justiciability 255, 261 provisional measure 58, 108 International Crisis Group 7–8 international humanitarian law 141–142, 145, 147, 149, 195–199, 201–204, 216, 245 precaution 193–194 interpretation 14, 25, 43, 46, 76, 90, 108–127, 134, 137, 139, 178–182, 188, 191, 205, 214, 224, 231, 234–235, 246, 249–250, 260, 269, 272 authority to interpret 168, 233 principle of effectiveness 123, 145 principle of integration 123–124 intervention (see also, non-intervention, humanitarian intervention) 11, 24, 34, 46, 85, 90, 128, 130, 138–140, 149–151, 154, 160, 168–169, 201, 225–226, 242 investigation 41, 52–54, 77, 82, 116, 121, 183, 212, 258, 263–265, 268, 276, 278 Iran conflict with Iraq 13, 83–84, 235 nuclear enrichment 35 oil platforms 181 unilateral declaration 116 Iraq conflict with Iran (see, Iran) invasion of Kuwait 13, 15–16, 129, 236 UNIIMOG 84 UN Monitoring, Verification and Inspection Commission (UNMOVIC) 268 judicial restraint 257, 261 judicial review domestic court 260–262 ICJ (see, ICJ)

Index jurisdictional error 259 justiciability (see, ICJ) Kashmir 79, 81, 167, 270 UNCIP 79 UNMOGIP 80, 270 Kooijmans, Judge Peter H. 2 Kosovo 16, 31, 103–104, 273–274 UNMIK 99, 184, 200, 273 Kuwait (see, Iraq) law of belligerent occupation (see, belligerent occupation) League of Nations Brouckère Report 53–55 competence 45–46, 56, 66 Rutgers Memorandum 55–59, 68 Lebanon 74, 81–83, 136, 139, 153, 156 Israeli military incursion in Southern Lebanon 228, 240, 242 UNIFIL 85, 177 UNOGIL 6, 82–83, 153, 156 legitimacy criteria 222, 225–226 General Assembly (see, UN General Assembly) government 66, 277 peacekeeping (see, peacekeeping) principles 232–233 Security Council (see, UN Security Council) Security Council resolutions (see, UN Security Council resolutions) use of armed force (see, use of armed force) legitimate expectation 223–224, 231, 242 litispendence 255–256 Lockerbie incident 116, 137, 217, 252, 258, 265 Manchurian incident 60 margin of appreciation 68–69, 207, 219, 234, 242, 267, 271, 278 military observer 48, 78–85, 92, 153, 212, 269–270 ‘mission creep’ 175 moratorium on war 40 Namibia 116–117, 129 UNTAG 85, 166 national liberation movement 141

319

necessity 28, 45, 67, 118, 140, 214, 237–238 functional necessity 184–185 military necessity 198, 220–221 operational necessity 182, 198, 219, 221, 242, 270 state of necessity 234, 237–242 neutrality 3, 14, 17, 22–26, 46–48, 88, 151–154, 156–157, 236 Nicaragua 59, 140, 160–161 ONUCA 161–162 non-intervention, the principle of 3, 24–25, 81, 121–122, 131, 135–137, 140–141, 168, 216, 218, 221, 277 non-state entity 21–24, 129, 131–132, 139, 141, 146, 158, 160, 202, 218, 232, 242, 277 non-use of armed force, the principle of 124, 128, 229, 231–234, 240, 242 North Korea 34–35 ombudsman 275 opposability 129 ORCI 7 Palestine 74, 79–81, 114–115, 160, 184 Truce Commission 79–80 UNTSO 80, 82 peace-building 8, 12, 95, 99, 102, 192 peace enforcement 3, 9, 27, 172–176, 191, 198, 205 peace observation 5, 51, 57, 59, 63, 69, 72, 76–85, 105, 130, 133, 136, 168, 173, 184, 211–213, 263–264, 277 peace restoration 174 peace support operation 29, 35, 174 peacekeeping definition 5–6, 29 effective implementation 89, 104, 106, 118, 172, 177, 197, 201, 205, 246, 269, 277 jurisdictional basis 3, 208, legal basis 2–3, 21–23, 27–35, 66, 72, 76, 78, 85–86, 88–89, 92, 97, 99–100, 104–105, 114, 130, 165, 172, 186, 207, 216 legality 127, 208, 215–219, 221, 275–276, 278 legitimacy 3, 28, 221–224, 242, 245, 268, 274–275

320

Index

regulatory criteria 3, 208, 242–243 regulatory effect 208, 233, 242 tripartite doctrines 3, 17, 27–28 wider peacekeeping 27, 174 peacekeeping force 5, 9–10, 12, 21, 25–28, 60, 72, 76, 85–86, 89, 91, 95–97, 105, 133, 157, 162, 164–166, 168, 193, 195, 198, 200–201, 205–206, 221, 227, 277–278 plebiscite 47–48, 64–67, 79, 164, 167 political participation, the right to 131, 139, 141, 159, 165, 219 political question, the doctrine of 257–258 prevention 1, 3, 5–19, 30–31, 33, 37, 50, 60, 69, 85, 100, 104, 171, 202, 223, 227, 265, 277 preventive deployment 8, 10, 81, 92, 95, 194 preventive diplomacy 6–8, 10, 16, 141, 187, 279 principles of justice and international law 11, 217, 242, 245 privileges (see, UN privileges and immunities) proportionality 197–198, 219–221, 225–226, 245, 278 provisional (transitional) territorial administration 12, 27, 63, 72, 97–102, 105, 168, 263, 277 reasonableness 197, 224 recognition 94, 140, 143, 145, 149, 151, 158–162, 167, 218 non-recognition 128, 159 responsibility to protect 3, 15, 203, 224–227 responsibility to react and prevent 208, 242 Rules of Engagement (ROE) 188–195, 197–198, 201, 203–205 Rwanda 14, 17–18, 25, 27, 155, 202–204, 236, 271 Arusha Accords 14 ICTR 258 UN Assistance Mission (UNAMIR) 14, 17, 85, 202–204, 267, 271 self-censorship 262 self-defence, the right of 25–27, 53, 60, 88, 92, 96–97, 153–154, 172, 176–193, 197, 200–201, 231, 234–241, 278

mandate defence 185, 189 personal self-defence 179–180, 183, 189, 191, 193, 201 pre-emptive self-defence 241 unit self-defence 180–182 self-determination 31, 45, 98, 100, 131, 139, 141–142, 159, 216, 219, 237 self-regulation 262–263, 275–276, 278 Sierra Leone 6, 236, 273 UNAMSIL 85, 96 Somalia 9, 18, 24, 27, 103–104, 160, 163–164, 173, 175, 183, 205–206, 271 UNITAF 163, 192, 196, 205 UNOSOM 9 UNOSOM II 85, 164, 192 South Africa 103, 129–130 1994 national elections 167 spoilers 22, 157, 176 state responsibility, the law of 228 state sovereignty 6, 15–17, 19, 21, 24, 27, 165, 225 equality 19, 24, 98, 136, 216 status-of-forces agreement 179 Suez Canal crisis 91, 211, 235, 241 UNEF 6, 17, 20–22, 25–26, 28, 91–92, 177, 211 UNEF II 26, 85–86, 91–92 threat to the peace 1, 27, 30–31, 34, 68, 73, 78, 103–105, 115, 121, 155, 157, 209, 218, 248, 258, 268 transitional territorial administration (see, provisional territorial administration) truce 74, 79, 167, 190 UN Charter Chapter VI 1/2 28 Chapter VII 1, 5–6, 12, 16, 18–20, 24–25, 27, 30–33, 67–68, 71, 86, 96–97, 99–100, 103–104, 114–115, 120–126, 133–134, 154–156, 168, 173, 178, 183–185, 187, 191–193, 196, 200, 207–208, 210, 216–218, 222, 226–227, 245, 248, 262, 267, 277–278 purposes and principles 32, 98, 126, 199, 208, 215–216, 242, 245, 259, 263, 266, 278 UN civilian police (UNCIVPOL) 94

Index UN Department of Peacekeeping Operations 14, 188 UN forces (see also, peacekeeping force) 20, 23, 85, 93, 97, 100, 163, 171–180, 184–185, 189, 191, 194–197, 199, 202, 204–205, 213, 233, 241, 269 UN General Assembly 2, 10, 12, 20, 26, 28, 79, 82–83, 91, 152, 177, 226, 247, 249, 266, 275–276, 278 admission 86, 158 budgetary power 249 competence 208, 210–215, 242, 245 legitimacy 211 ‘Uniting for Peace’ resolution 215 UN military personnel attribution of the conduct 199, 261 dual legal personality 200 misconduct 263 protection of civilians 201, 203 use of armed force 172–173, 175, 179–180, 182–185, 187, 189, 191, 194, 197, 221, 278 UN Monitoring, Verification and Inspection Commission (UNMOVIC) (see, Iraq) UN Operation in the Congo (ONUC) (see, Congo) UN privileges and immunities 199 UN Secretariat 7, 33, 71, 162–163, 188, 190–191, 267, 272 UN Secretary-General Annan, Kofi 9–10, 18 Boutros-Ghali, Boutros 7–8, 18, 172–173 Hammarskjöld, Dag 6, 20–22, 25, 88–89, 119, 152, 156, 186–187 Pérez de Cuéllar, Javier 7–8, 279 Waldheim, Kurt 26, 91 UN Security Council accountability 250, 262–263 competence 28, 73, 78, 101, 123, 125, 208–210, 247, 264 democratization 250 legitimacy 1–2, 23, 224, 233, 278–279 ‘privatisation’ 223, 247 provisional measure 3, 9, 32–35, 54, 56, 58–59, 62, 68–69, 71–77, 84, 86, 91–93, 95–97, 102, 104–108, 136, 156, 171, 173, 176, 205, 207, 209–211, 217–221, 256, 258 reform 2, 249–250, 278

321

responsibility 11, 15, 34, 84, 100–101, 124, 157, 202, 206, 208, 213, 223–224, 226–231, 233, 245, 254, 264, 277–278 subsidiary organ 88, 118–119, 269, 274–275 veto 247–248 working methods 117, 263 UN Security Council resolutions interpretation (see, interpretation) judicial review (see, ICJ) legal effect 93, 107–109, 112, 115, 118, 127–129, 131–134, 161, 247, 255 legality 32, 138, 219, 221, 242, 249, 251, 254–255, 260, 262, 274–276 legally binding force 91, 113, 116, 121, 126, 131–132 legitimacy 221, 224, 232–233, 242, 247, 249–250, 255, 260, 262–265, 269, 274, 278 ‘quasi-legislative’ resolution 217 validity 126–127, 221, 233, 245–247, 249, 251–258, 260, 262, 275–276, 278 UN Special Committee on Peacekeeping Operations 28 UN Stabilization Mission in Haiti (MINUSTAH) 85, 274 UN Transitional Authority in Cambodia (UNTAC) 85, 98 UNAVEM (see, Angola) UNCIP (see, Kashmir) UNDOF 85, 96 UNEF/UNEF II (see, Suez Canal crisis) UNFICYP (see, Cyprus) UNGOMAP (see, Afghanistan) UNIIMOG (see, Iraq) UNMIK (see, Kosovo) UNMOGIP (see, Kashmir) UNOGIL (see, Lebanon) UNOSOM (see, Somalia) UNPREDEP 85–86, 92–95 UNPROFOR (see, Bosnia) UNSCOB (see, Greek border disputes) UNTAES 85, 99 UNTAET (see, East Timor) UNTSO (see, Palestine) use of armed force (see also, non-use of armed force, UN military personnel) 88, 172–173, 175–176, 179, 181–182,

322

Index

185–187, 189–192, 197, 199–201, 206, 220, 226, 239 authorisation 116, 176, 185, 187 justification 37, 180, 182–183 legality 198

legitimacy 177, 190, 193, 206, 232 restriction on 3, 25–27, 177, 221, 233, 242, 277–278 World Summit Outcome 11, 226–227