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Selkirk, Michael --- "Judge, Jury and Executioner? Analysing the Nature of the Security Council's Authority under Article 39 of the United Nations Charter" [2003] AukULawRw 1; (2003) 9(4) Auckland U L Rev 1101


Judge, Jury and Executioner?

Analysing the Nature of the Security Council’s Authority under Artice 39 of the United Nations Charter

Michael Selkirk[∗]

Winner of the Minter Ellison Rudd Watts Law Review

Prize for 2003

The police are ransacking the temple, searching for criminals and those it calls terrorists. The mind of the police – the security police in this case – is a machine, programmed to believe that history ended and we won it ... Quod non fecerunt barbari, fecerunt Barberini. The peace of the police is not the calm of the temple but the silence of the tomb.[1]

I. Introduction

The susceptibility of the United Nations Security Council to a form of judicial oversight has been long debated on the basis of two primary assertions. First, many commentators assert that international judicial organs have a vital role in authoritatively interpreting treaty provisions and ensuring their proper observance by both State-Parties and those organs established pursuant to such treaties. In this respect, the International Court of Justice (“ICJ”) is perhaps the most appropriate institution for considering the legality of Security Council actions. However, it is not the purpose of this article to address the authority, if any, of the ICJ or other institutions to review the decisions of United Nations (“UN”) organs.[2] Rather, this article considers a second assertion: that the determinations of the Security Council are justiciable as questions of law.

It appears established, and is assumed for the purpose of this article, that international institutions have the capacity to act unlawfully. Brownlie asserts that “in principle international organizations may act ultra vires and thus create the necessity to decide on the legal effect of the illegal acts of organizations”.[3] At the same time, it is “generally accepted that UN organs have the authority to determine, at least prima facie, the limits of their own jurisdiction”.[4] In the Certain Expenses case the ICJ held:[5]

[W]hen the Organisation takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organisation.

There is, therefore, credence to the view that Security Council decisions enjoy prima facie validity. However, Bowett asserts that this is a rebuttable presumption that may be challenged “in the final analysis”.[6]

The legality of decisions made by an international institution may be challenged in two fundamental ways. An ‘error within jurisdiction’ may arise where an institution acts illegally in pursuit of its legitimate purpose; for example, incidents of procedural impropriety. These errors would also include the recent accusations that a Security Council arms embargo, although addressing a legitimate threat to international peace and security, breached the jus cogens right of Bosnian Muslims to self-defence.[7] A second avenue of illegality may arise in an ‘error going to jurisdiction’[8] where an institution acts outside its purpose or ultra vires. In such instances, a body has no jurisdiction, and therefore no authority, ab initio, to make the decision in question.

This article focuses on the second of these issues, specifically, in terms of the Security Council’s contentious interpretation of its own jurisdiction to restore and maintain international peace and security under Chapter VII of the UN Charter. While it is generally accepted that the Charter is a fundamental source of law, Chapter VII proves problematic because it is an interface between law and security policy. As a precondition to the invocation of Chapter VII, the Council must determine the existence of any ‘threat to the peace’, ‘breach of the peace’, or ‘act of aggression’. The question addressed by this article is whether the Council’s current interpretation and determination of these preconditions is an expression of international law, determinable by legal criteria, or the prerogative of a political institution.

To this end, Section I of this article briefly considers the motivations behind the empowerment of the Council, and the relevant provisions of the Charter. The Article 39 preconditions have been developed, or neglected, according to the necessity and desires of the Council, especially its permanent members. To better understand the current practices, and constraints, affecting the authority of the Council, Section II shows how ‘threats to the peace’ have become favoured, because they are conceptually flexible and thus help to preserve the Council’s discretion. In Section III, this article explains the redundancy of the remaining preconditions, due to the role of ‘threats to the peace’ as a ‘lowest common denominator’. Finally, Section IV considers the implications of these findings for the Council’s authority, and concludes that, despite the predominance of ‘threats to the peace’, only a determination of an ‘act of aggression’ could be amenable to review as a question of law.

II. Empowering the UN Security Council

The consensus-bound decision-making of the League of Nations proved inadequate to enforce international responsibilities or prevent resort to war. The League Covenant contained no prohibition on the use of force, nor were the League’s decisions binding on its member states.[9] Malanczuk summarizes the source of the League’s failure:[10]

[It was] the inherent contradiction in the concept itself of collective security in the form of a mere association of self-interested and sovereign states. The concept assumes that all states have an equally strong interest in preventing aggression ... . [In fact] the League could only function to the extent that the member states were able to agree.

Following the end of World War II, the victorious powers again considered the prospect of collective security at Dumbarton Oaks in the United States. The unsatisfactory performance of the League was a primary consideration in the drafting of the UN Charter. The eventual solution was the creation of a small, yet extremely powerful, international executive body: the UN Security Council.

1. Primary Responsibility for International Peace and Security

To prevent a reoccurrence of the League experience, the international community furnished “the [Security Council] with an exclusive competence to impose sanctions open to broad interpretation with regard to the prerequisites for such authority”.[11] Consistent with the Council’s “primary responsibility for the maintenance of international peace and security”,[12] these prerequisites were enacted in terms of the fundamental challenges to international peace: ‘threats to the peace’, ‘breaches of the peace’ and ‘acts of aggression’.

The Council’s power to interpret these preconditions – and, accordingly, its own jurisdiction – was the subject of intensive negotiations. Many (particularly smaller) states demanded rigorous regulation of the Council’s enforcement powers. Despite these states’ considerable efforts, the drafting committee “decided to adhere to the text drawn up at Dumbarton Oaks [in 1944]”.[13] As Frowein explains, “all proposals for changes which aimed at weakening the authority of the [Security Council] were rejected”.[14] The Charter reflected “political compromise among the major powers, with some genuflections in the direction of the smaller States”.[15] The result of negotiations at San Francisco in 1945 was Chapter VII of the Charter, the preconditions for the invocation of which were contained in Article 39:[16]

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.

The travaux préparatoires for Article 39 indicate an intention to provide the Council with the authority “to decide freely when a threat to the peace, a breach of the peace or an act of aggression existed”.[17] Indeed, the Charter does not define these preconditions,[18] and throughout the Cold War the Council “successfully warded off attempts to define [these situations] precisely”.[19]

The sole express concession of the major powers to a limitation on the Council’s powers appears in Article 24(2): “In discharging [its, inter alia, Chapter VII] duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations ....”[20] Consequently, the jurisdiction of the Council to determine the existence of prerequisite situations “has to remain, at the very least, within the limits of [these] purposes and principles”.[21] As will be seen, the principle of non-intervention, provided for in Article 2(7), continues to impact on the Council’s authority under Article 39.

Despite this limitation, Schweigman concludes that “the Council has a very wide margin of appreciation in making determinations under Article 39”.[22] The question at hand is: how wide has that margin of appreciation become? As early as 1946, the Sub-Committee on the ‘Spanish Question’ recognized:[23]

[T]he Security Council must be careful that this sharp instrument [Chapter VII] is not blunted nor used in any way which would strain the intentions of the Charter or which would not be applicable in all similar cases.

Although the lack of any authoritative definitions has allowed the Council unprecedented power, it has also led to inconsistency, and, at times, tragic inaction.

2. Invoking the Security Council’s Chapter VII Jurisdiction

The Security Council’s authority to use coercion to obtain compliance with its demands pursuant to Chapter VII is constrained by the requirement that there exist a threatened or actual breach of the peace, or an act of aggression.[24] Schweigman points out that “[i]n this sense Article 39 is to be regarded as a procedural limit on the Council’s authority under Chapter VII”.[25]

However, the Council’s practice has been that resolutions are not required to expressly refer to Article 39.[26] In 1947, regarding the ‘Indonesian Question’, the Council arguably implied that it was invoking Chapter VII.[27] Today, the Security Council often expressly recognizes that international peace and security is threatened, in what can be taken as implied references to Article 39. Indeed, the Council frequently confirms that it adopts certain measures “acting under Chapter VII of the Charter” as if Article 39 were satisfied.[28] Unfortunately, the Council’s powers are subject to political manoeuvring and pragmatism at the expense of consistency. Consequently, a “complete inconsistency” of terminology has made it difficult at times to identify whether determinations are being made under Article 39.[29]

Kirgis suggests that the Council’s practice provides “an authoritative interpretation of Chapter VII to the effect that an Article 39 determination must be made in advance of, or at the time of, enforcement action.”[30] Many commentators, and Governments, agree that the Council’s powers are procedurally and substantively limited, but that “the status of the eventual ultra vires acts of the Security Council ... is unresolved”.[31] In an oft-cited dissent in the ICJ’s Namibia Case Judge Fitzmaurice gave reasons for finding that limitations were particularly necessary:[32]

[Due to the] great ease with which any acutely controversial international situation can be represented as [satisfying Article 39 when] 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.

Accordingly, this article proceeds to evaluate the Council’s interpretation of the three preconditions under Article 39.

III. The Increasing Importance of Threats to the Peace

The determination of threats to international peace is perhaps the broadest and most political of the Article 39 preconditions, because the concept of ‘threat’ is particularly subjective. Similarly, determinations require a detailed understanding of ‘peace’; which could refer either to the mere absence of war, or to the harmonious co-existence of states.[33] As discussed above, the drafters of the Charter were reluctant to define what was intended by ‘threat to the peace’. In the end, the San Francisco Conference decided not to “accept any definition of a ‘threat to the peace’ which would bind the Security Council ... because it was thought unwise to bind the Security Council by general definitions”.[34]

Further complicating the concept was the removal of a strict distinction that had been present in the League Covenant:[35]

[The distinction] between a threat to the peace ... which resulted from the failure to arrive at a peaceful settlement ... and the presence of a general threat to the peace ... in order not to restrict too greatly the intended broad discretion of the Security Council.

As a result of the Charter’s ambiguity, few commentators dispute that “[n]owhere is the Security Council under fewer strictures than in its determination that a threat to the peace exists”.[36] Akehurst’s conclusion is often quoted (perhaps for its succinctness rather than its absolute accuracy): “A threat to the peace in the sense of Article 39, seems to be whatever the Security Council says is a threat to the peace.”[37]

Although the term ‘threat to the peace’ under Article 39 has provided the Security Council with a broad discretion, the vague definition of ‘threat’ has been the cause of division. In this respect, three debates are prominent in determining the scope of the Council’s authority. First, disagreement has arisen as to the necessary imminence of any threat before a determination under Article 39 may be justified. Secondly, Governments and commentators have debated the necessity of a ‘transboundary effect’ arising from any threat for the purposes of Article 39. Thirdly, the last fifty years has witnessed considerable changes in the international community’s understanding of ‘peace’. Accordingly, the reasoning behind a decision today that there is a threat to the ‘peace’ may be quite different from the thinking that prevailed at the time the Charter was drafted. This article now turns to discuss each of these issues.

1. Developing a Threshold of Threat

Many states and commentators have concluded that the determination of a threat to the peace “depends on the circumstances of the case, and it requires an examination and investigation of the facts”.[38] However, in determining the existence of a ‘threat to the peace’, the Council must consider whether the actions of a State (or, perhaps, a non-state actor)[39] can be said to cross an ill-defined boundary beyond which they can be said to endanger international peace. This fine line between threats and, for example, mere disputes, could be ascertained through legal criteria.[40] However, as Dinstein observes, a “threat to the peace is not necessarily a state of facts: it can be merely a state of mind; and the mind that counts is that of the Security Council”.[41] This being the case, differing appreciations of the facts will determine the opinion or mindset of those considering the existence of a threat.

Even in the early years of the Council’s existence, with the San Francisco negotiations fresh in mind, debate arose regarding the application of Article 39 to potential threats to the peace. As will be shown below, despite historical authorities, the recent practice of the Council suggests a determination of a ‘threat to the peace’ may be made without evidence that a threat actually exists.

(a) The Spanish Question

In 1946, the Council considered the threat posed by General Franco’s regime in Spain. The Security Council commissioned a fact-finding Sub-Committee to investigate the ‘Spanish Question’. In its report of June 1946, the Sub-Committee interpreted Article 39 as follows:[42]

[Article 39 requires that the Council] measure the situation as at the moment of the proposed action on its part ... the Security Council should only [invoke Chapter VII] provided it is affirmatively satisfied that a threat to the peace ... has actually come into existence.

The Sub-committee’s report declared that “[i]n the opinion of the Sub-Committee the Security Council cannot, on the present evidence make the determination required by Article 39.... No threat to the peace has been established”.[43]

While determining that no actual ‘threat to the peace’ existed, the Sub-Committee recognized that the activities of the Franco regime “constitute[d] a situation which [was] a potential menace to international peace and security”.[44] This distinction proved unacceptable to a number of States who argued that “[a]ny threat is potential by nature”.[45]

The Polish representative was particularly critical of the Sub-Committee’s finding, which he concluded contained implicitly “a legal doctrine concerning the powers and duties of the Security Council under Article 39”.[46] Indeed, the Sub-Committee’s assertion was a fundamental step in the creation of legal criteria for determining the necessary threshold of an Article 39 threat. The representative of Poland objected to this limitation on the Council, under the authority of which, he contended, “[p]otential, as well as imminent, dangers can be construed as a threat to the peace.”[47] The Soviet representative concurred:[48]

[The Sub-Committee’s] conclusion is incorrect. It is due to a restrictive interpretation of Article 39 .... Such a conclusion may be the basis for an incorrect and dangerous doctrine, capable of diminishing the significance of the relevant Article of the Charter ....

Both representatives argued that the requirement of an actual, rather than potential, ‘threat to the peace’ unduly infringed upon the Council’s ability to pre-empt the occurrence of ‘breaches of the peace’ and ‘acts of aggression’.[49] The President of the Council agreed that ‘threats’ “imply necessarily a state of affairs which is no more than a virtual possibility”.[50] However, the President concluded that the Sub-committee had merely advised the Council that it could “rely on Article 39 or Article 34 according to whether the threat is more or less remote, or more or less imminent”.[51]

In light of these arguments, a Polish draft resolution declaring that the Franco regime “endangered international peace and security” gained some support.[52] The draft resolution failed to be adopted; thus, the sufficiency of potential threats was impliedly rejected. Still, whether the acceptance of the Sub-committee’s interpretation of Article 39 had established a legal doctrine was not authoritatively resolved.

(b) The Southern Rhodesia Question

The necessary imminence of threats to the peace was the subject of Council debate when considering the ‘Southern Rhodesia Question’. Following the 1963 dissolution of Nyasiland, the white minority in Southern Rhodesia (which constituted only six per cent of the population) sought independence from the United Kingdom as well as white “domination in every aspect of internal public order”.[53] Despite British offers of self-governance contingent on democratic majority rule, the white regime in Southern Rhodesia unilaterally proclaimed independence in November 1965.

The Security Council immediately declared the Southern Rhodesian government illegal[54] and determined that “its continuance in time constitute[d] a threat to international peace and security”.[55] The Council passed Resolution 217, the language of which was considered by the Council as a recognition of the potential threat posed by Southern Rhodesia. It was not intended as an Article 39 determination of a ‘threat to the peace’,[56] but as an expression of the Council’s concern.

The British Government imposed economic embargoes on Southern Rhodesia in order to force the regime’s collapse, and, to ensure their effectiveness, requested international cooperation. However, inadequate international compliance with the embargoes[57] prompted the United Kingdom to request mandatory sanctions under Article 41 of Chapter VII.[58] The British draft resolution did not stipulate the existence of an Article 39 prerequisite, but asserted, consistent with Resolution 217, that the continued existence of Southern Rhodesia had automatically satisfied any such requirements. Indeed, the United States’ and Pakistan’s representatives agreed that the legal prerequisites to Chapter VII were satisfied as the situation was “not only continuing but ... growing more acute”,[59] and, therefore, that the previously potential threat had become an actual threat to the peace.

None of the fifteen representatives strongly opposed a finding that Southern Rhodesia posed a threat to the peace, although the determination of a cognizable threat to international peace was not without substantial criticism outside the Council.[60] However, a number of Council members[61] rejected the British assertion that a potential threat could impliedly satisfy the requirement of an actual threat without an express Council determination.[62] The Argentine representative argued that: “To refrain from specifically determining the existence of a threat to the peace ... would be comparable to rendering a judgment which stated the penalty and not the crime.”[63] The representative of Jordan reinforced the precedent set in the ‘Spanish Question,’ when interpreting the requirements of Article 39: “The Council must, as a first step, declare unequivocally that there was a situation in fact posing a threat to international peace and security and that situation existed.”[64]

Ultimately, the United Kingdom and its supporters accepted the introduction of an unequivocal determination of a ‘threat to the peace’ in the draft resolution, which was subsequently adopted by the Council.[65]

(c) The South Africa Question

In the case of South Africa, the Council was divided over whether the apartheid system constituted a threat to the peace. From 1960 the Council repeatedly referred to South Africa’s disturbance of,[66] or potential ability to threaten,[67] international peace.[68] Consistent with the Council’s determinations in the Spanish and Southern Rhodesia Questions, this language did not amount to a finding of a threat to the peace for the purposes of Article 39.[69]

The Council’s opinion that the situation was merely a potential threat faced opposition in the UN General Assembly. The Assembly recommended in 1968 that the Council consider “the question of apartheid with a view to adopting, under Chapter VII of the Charter of the United Nations, effective measures to ensure the full implementation of comprehensive mandatory sanctions”.[70]

In making such a recommendation, it follows that the Assembly perceived the situation in South Africa as an actual ‘threat to the peace’. Nonetheless, the Council’s position was unchanged even after the Soweto killings, when it reaffirmed that “apartheid [was] a crime against the conscience and dignity of mankind and seriously disturb[ed] international peace and security”.[71] Again, no determination under Article 39 was forthcoming.

The Security Council’s policy on South Africa did not change until 1977, when it determined that South Africa’s policies and acts (perhaps, most importantly, those against its neighbour states)[72] “constitute[d] a threat to the maintenance of international peace and security”.[73]

2. The Sufficiency of Potential Threats as Threats to the Peace

Following the end of the Council’s Cold War paralysis, a number of events resulted in the Council reconsidering its previous practices regarding the requisite standard of threat for an Article 39 determination. This threshold has proven difficult to pinpoint, but it must exist in order to provide the Article 39 preconditions with meaning. Accordingly, Judge Fitzmaurice of the ICJ, in his dissenting opinion in the Namibia Case, suggested that a threat to the peace may not be “a mere figment or pretext”.[74] During the early 1990s, the Council’s renewed activism[75] saw the adoption of language similar to that used in the ‘Southern Rhodesia Question’, but with a considerably different meaning. It now appears that potential threats to the peace are sufficient for the invocation of Chapter VII. This has been evident in a number of recent Council decisions.

(a) The Somalia Question

In 1991, Somalia collapsed into a political vacuum. In the capital, Mogadishu, factions based around clan loyalties, particularly those clans loyal to Interim President Ali Mahdi Mohamed and General Mohamed Farah Aidid, engaged in heavy fighting.[76] The coincidence of famine and disease heightened the humanitarian crisis in Somalia, which claimed 200 lives every day.[77] Exact statistics were elusive but the scale of the crisis was unquestioned.

In 1992, at the request of the Somali representative, the Security Council considered the situation in Somalia, and unanimously adopted Resolution 733, that expressed concern “that the continuation of the situation constitutes, as stated in the report of the Secretary-General, a threat to international peace and security”.[78]

The Council must have considered that this finding satisfied Article 39, as it imposed a “general and complete embargo” under Chapter VII.[79] Schweigman concludes that “it is hard to see how this could be qualified other than as a determination under Article 39”.[80]

Tzartzouras proposes an alternative interpretation, whereby the legal basis for the embargo was Somalia’s request to the Security Council, rather than a threat to the peace, “as no [Article 39] determination was made”.[81] Certainly, the Council expressed only “concern”, rather than resolute ‘determination’, suggesting that its statement was merely an expression of a point of view.[82] More persuasive evidence, perhaps, is that the apparent Article 39 determination was contrary to the established practice of the Council demonstrated in the ‘Southern Rhodesian Question’, where similar language merely amounted to the expression of a ‘potential threat’.[83] The determination’s inconsistency with previous practice cannot be explained by the unique nature of the Somali situation,[84] as in many of the Council’s other determinations it has also departed from the precedents it set during the Cold War.

(b) The Rwanda Question

In 1993, the Council considered the humanitarian tragedy in Rwanda. In May 1994, the Council appeared to invoke Chapter VII: “Deeply disturbed by the magnitude of the human suffering caused by the conflict and concerned that the continuation of the situation in Rwanda constitutes a threat to peace and security in the region.”[85] This determination was considered sufficient for Article 39, as it was coupled with a Chapter VII authorization for the United Nations Assistance Mission in Rwanda (“UNAMIR”), and later France, to use force.[86] Again, the Security Council’s response further evidences the rejection of the ‘potential threat’ precedent.

(c) The Haiti Question

Responding to a coup d’etat in Haiti in 1993,[87] Security Council Resolution 841 concluded that “the continuation of the situation threaten[ed] international peace and security”.[88] The Council deemed this language sufficient to initiate the Council’s Chapter VII jurisdiction, but opinion is divided whether Article 39 was, in fact, satisfied. Malanczuk, supported by Damrosch, considers the ‘Haiti Question’ “a special case in which the Security Council [acted under Chapter VII] without, however, explicitly determining that there was a threat to international peace and security”.[89]

This interpretation is in line with Cold War precedents, but inconsistent with the finding in the ‘Somalia Question’. Schweigman recognizes the Council’s acceptance of potential threats as threats to the peace, and claims that the Council had “determined that the situation in Haiti posed a threat to international peace and security in [Resolution 841]”.[90] Indeed, a later resolution determined that “the situation in Haiti continues to constitute a threat to peace and security in the region”,[91] affirming that a determination of a ‘threat to the peace’ had been made in Resolution 841.

3. A Growing Acceptance of Hypothetical Threats?

Consequently, potential threats seem to constitute threats to the peace for the purposes of Article 39. But the broadening of the Council’s definition of ‘threat to the peace’ may not have stopped there. Recent Security Council determinations indicate the possibility that even abstract threats may constitute threats to the peace. It appears that not even a potential threat need be clearly evidenced before the Council. A ‘hypothetical’ threat – the construct of the ‘mindset’ of Council members that a particular occurrence threatens the peace – seems increasingly to satisfy Article 39.[92]

(a) The Lockerbie Question

One example of this is the Council’s decision in the ‘Lockerbie Question’. Following the bombing of Pan Am 103, Libya refused to surrender two Libyan nationals implicated in the bombings to France, Britain, or the United States.[93] The disputants eventually had the matter adjudicated by the Security Council. The Council issued its decision in Resolution 731, which urged Libya to “provide a full and effective response to [surrender] requests so as to contribute to the elimination of international terrorism”.[94] However, the participation of interested parties in the Council’s vote arguably invalidated the resolution,[95] and consequently the Libyan Government initiated ICJ proceedings.[96]

Before the ICJ could issue its verdict, the Council adopted Resolution 748, under Chapter VII, requiring Libya to surrender the suspects. The Council purported to satisfy Article 39:[97]

[T]he failure by the Libyan Government to demonstrate by concrete actions its renunciation of terrorism [and] continued failure to respond fully and effectively to the [surrender] requests ... constitutes a threat to international peace and security.

Within the Council, “none of the sponsors introduced any legal reasoning” to support the determination.[98] It appears that the Council considered that Libya’s alleged tolerance of terrorism sufficed as a threat to the peace. Resolution 748 introduced the notion that omissions could be threats to the peace; this development had never before been attempted, due to difficulties with the issue of causation.[99] Graefrath comments that “[i]t remains absolutely unclear why or how the failure to renunciate terrorism by concrete acts (whatever that may be) or the failure to surrender suspects ... could constitute a threat to the peace”.[100] The Council provided no evidence that Libya’s ‘failures’ caused the continuation of international terrorist acts. The threat to the peace can, therefore, be little more than hypothetical.

(b) The ICC Prosecutions Question

In June 2002, the United States vetoed efforts to renew the mandate of the peacekeeping United Nations Mission In Bosnia and Herzegovina, (“UNMIBH”).[101] The United States’ representative to the Council linked the continued participation of United States peacekeepers in UNMIBH with his concerns of “politicised prosecutions” by the International Criminal Court (ICC). A solution to this impasse, contained in Resolution 1422, was to grant immunity to peacekeepers from states not party to the Rome Statute. The resolution was purportedly enacted under Chapter VII,[102] but in doing so the Council claimed only a tenuous ‘threat to the peace’: “it is in the interests of international peace and security to facilitate Member States’ ability to contribute to operations established or authorized by the United Nations Security Council”.[103]

Thus, in an extension of the ‘Lockerbie Question’ precedent, Resolution 1422 provided that potential omission or inaction by States was sufficient for a determination under Article 39. Neither an ‘actual’, nor even a ‘potential’ threat was evident. Rather, in the ‘mind’ of the Council the hypothetical consequences of possible ICC prosecutions constituted a threat to international peace.[104]

Responding to this reasoning, MacPherson, supported by other commentators, argues that “increased reluctance by a few states to contribute to peacekeeping operations is hardly the type of threat to the peace contemplated by Article 39”.[105] A number of states[106] also criticized the Council’s determination as unsubstantiated and counter-productive to “international efforts to combat impunity, the system of international justice, and the collective ability to use these systems in the pursuit of international peace and security”.[107]

During drafting, the representative of Canada considered that the resolution “contained elements that exceeded the Council’s mandate.”[108] Indeed, the Jordanian representative stated that adopting the resolution would “edge [the Council] toward acting ultra vires”.[109] Nonetheless, the Council adopted the draft Resolution 1422 unanimously. Stahn appears to accept that this decision was within the Council’s jurisdiction, as it was “in substance a political decision which lies at the heart of the Council’s discretion”.[110]

The ‘ICC Prosecutions Question’, in conjunction with the ‘Lockerbie Question’, has greatly expanded the Council’s authority to determine threats to the peace. Should hypothetical threats continue to suffice, the Council’s discretion is unlimited by requirements of imminence and is virtually absolute. Still, one fetter may continue to constrain the Council’s authority: the requirement that a threat have a ‘transboundary effect’.

4. The Necessity of a Transboundary Effect

When considering the existence of a threat to peace, most commentators recognize that, in keeping with the Council’s responsibility for “international peace and security”,[111] a ‘threat’ must pose a danger to international peace.[112] Moreover, under Article 2(7) of the Charter, UN Member States and organs are prohibited from interfering with matters “essentially within the domestic jurisdiction of any state”.[113] Although Article 2(7) provides that the inviolability of the ‘domestic jurisdiction’ does not “prejudice the application of enforcement measures under Chapter VII”, this should not to be mistaken for an exception that applies to all Chapter VII powers. Rather, the exemption applies only to actions taken under Articles 41 or 42, while Article 39 remains subject to the non-intervention rule. Thus, a threat to the peace must possess a transboundary effect.[114] However, this interpretation has been challenged on a number of occasions.

The international community was reluctant to give a specific meaning to the term ‘threat to the peace’, but the concept was closely associated with the general prohibition of the ‘threat or use of force’ in Article 2(4).[115] Nonetheless, Frowein argues that hostilities endanger international peace only where “the threat is related to the possible extension of the conflict to other States”.[116] The internal threat of force does not of itself fall within the prohibition.

(a) The Indonesian Question

Frowein cites the Council’s handling of the ‘Indonesian Question’ as evidence that “a civil war can lead to a threat to international peace”.[117] However, Frowein’s assertion is not persuasive.[118] In August 1947, the Council recognized that the Indonesian situation was an international conflict “between the armed forces of the Netherlands and the Republic of Indonesia”.[119] For an internal conflict or crisis to constitute a threat to the peace further conditions, particularly an international effect, are required.

(b) The Congo Question

Tension between the Council’s wide authority, and the inviolability of states’ domestic jurisdictions was a “critical source of debate during the Congo crisis”.[120] Shortly after the Congo gained its independence from Belgium in June 1960, the mutiny of the Congolese military resulted in attacks on European residents. Belgium responded by deploying its forces in the country.[121] Despite political infighting, President Kasavubu and Prime Minister Lumumba jointly requested military assistance from the UN Secretary-General to stop a “Belgian ... act of aggression.”[122] Without determining Belgium’s degree of fault,[123] the Council authorized Secretary-General Hammarskjöld to “take the necessary steps ... to provide the [Congolese] Government with such military assistance”.[124] That assistance was in the form of a UN peacekeeping mission, the United Nations Operation in the Congo (“ONUC”).

Malanczuk affirms that the “legal basis for [ONUC] is obscure and controversial”.[125] The Council’s Resolution 143 did “not make any finding under Chapter VII but, instead ‘call[ed] upon the Government of Belgium to withdraw their troops’”.[126] Higgins suggests that, without the Congolese Government’s request, the Council “would almost certainly have been unwilling to act in [this] way ... even though [Chapter VII] was still available”.[127] The Congo crisis was international in nature and plausibly satisfied the Article 39 prerequisites. However, only in the Secretary-General’s report was there an “implied finding that the circumstances ... were such as to justify United Nations action”.[128]

Furthermore, Franck argues that the Council in fact disavowed exercising any right of intervention in the separatist Katanga province.[129] This was apparent in Resolution 146: “[ONUC] will not be a party to or in any way intervene in or be used to influence the outcome of any internal conflict”. [130] Higgins observes that Hammarskjöld was “at great pains to insist that various actions of ONUC [were] in conformity with [Article 2(7)]”.[131] There were tenuous arguments that Article 40 was invoked, but it is clear that the Council at no time satisfied the prerequisites of Article 39. Indeed, the ICJ concluded that ONUC did not constitute a Chapter VII enforcement measure.[132] Correspondingly, the ‘Congo Question’ cannot provide authority for the Council’s ability to override the Article 2(7) non-intervention rule.

(c) The Southern Rhodesia Question

It cannot be said that the ‘Southern Rhodesia Question’ is evidence that the Security Council has the authority to dispense with the need for a trans-boundary effect. In 1966, the Council determined that oil shipments from Portugal to Beira in Mozambique, which were then to be pumped to Southern Rhodesia,[133] constituted a threat to the peace.[134] Nonetheless, the Council stopped short of declaring that the situation in Southern Rhodesia itself was a threat to the peace.[135] Consistent with Resolution 216, Britain and France confirmed that Southern Rhodesia remained the ‘domestic jurisdiction’ of Britain, but that inadequate cooperation by some states with British sanctions posed a threat to international peace and only in that regard could Chapter VII apply.[136] The domestic situation in Southern Rhodesia was never considered to be a threat to international peace.

(d) The South Africa Question

Similarly, the determination that apartheid South Africa posed a threat to the peace was controversial for its apparent interference with the Republic’s domestic jurisdiction. The South African government “consistently maintained that its policies were a matter of domestic concern and that the United Nations was hence not competent to deal with them”.[137] Notwithstanding the Council’s call for a voluntary arms embargo in Resolution 181,[138] the British government maintained that no threat to the peace existed:[139]

To make such a determination it was necessary to look at the situation within South Africa itself, and ... it could not be said with any certainty that [the racial] policies endangered the maintenance of international peace and security.

Despite continued international condemnation of apartheid,[140] the Council remained unsatisfied that the ‘South Africa Question’ posed a threat to the peace until 1977. The Security Council’s inaction under Chapter VII ended with the unanimous adoption of Resolution 418, which determined that “having regard to the policies and acts of the South African Government the acquisition ... of arms and related matériel constitutes a threat to the maintenance of international peace and security”.[141]

The apartheid policy was only one of the ‘policies and acts’ that convinced the Council to impose mandatory embargoes under Article 41. Frowein concludes that the Council “considered apartheid in connection with the attacks on neighbouring States as a threat to peace”.[142] Arguably, the introduction of this transboundary element, rather than the worsening racial situation, galvanized the Council into action.[143] At that time, the recognition of domestic human rights abuses (even those with potential international impact) as threats to the peace[144] was politically unacceptable to many Council Members. Despite the fact that the decision in the ‘South Africa Question’ was influenced by many political considerations,[145] it can still be concluded, with Malanczuk, that the Council’s determination was “on the whole an important precedent”.[146]

5. A Developing Exception for Humanitarian Crises?

The Security Council’s decisions in the Southern Rhodesia and South Africa Questions have led a number of commentators to conclude that “it is now partially assumed in the literature that internal conditions within a state alone, such as massive violations of human rights, can be seen as a threat to the peace”.[147] However, as shown above, such a conclusion is not well-founded. Indeed, Frowein describes the ‘threat’ in the southern African situations as “including the danger of violent involvement with neighbouring states”.[148] Similarly, Sato believes that the term ‘threat to the peace’ can now be “interpreted as including essentially internal situations that might degenerate into an international conflict”.[149] The necessity for a transboundary effect (albeit, perhaps, minimal) appears to persist.

(a) The Kurdish Question

When considering the crisis in Kurdish northern Iraq, many Council members, including veto-holders, were reluctant to intervene for fear of “creat[ing] a precedent for the involvement of the Security Council in internal matters”.[150] However, in April 1991 the Council adopted Resolution 688, condemning “the repression of the Iraqi civilian population in many parts of Iraq, including most recently in Kurdish populated areas, the consequences of which threaten international peace and security in the region”.[151] Commentators[152] agree that these ‘consequences’ were the “massive flow of refugees towards and across international frontiers and ... cross-border incursions”.[153]

Accordingly, “the precedent value of this resolution with regard to a more active role of the Security Council under Chapter VII in cases of gross violation of human rights threatening international peace should not be overestimated”.[154] Malanczuk criticizes ‘literature’ in which it is claimed that Resolution 688 establishes:[155]

[That] the Council may adopt measures under Chapter VII with regard to the internal situation if a massive violation of human rights amounts to a threat to or breach of the peace .... A closer analysis ... does not support these contentions.

It appears that the Council found a threat to the peace only once the transboundary effect was evident.[156] Correspondingly, the Council continued to respect the inviolability of states’ domestic jurisdiction, as set out in Article 2(7). Nonetheless, Malanczuk predicted that the resolution would be an important precedent establishing that domestic human rights violations may have external effects.[157]

(b) The Somalia Question

In the ‘Somalia Question’, the Council’s finding of a threat to the peace in Resolution 733 was supported “only with a vague reference to the consequences of the Somalian civil war on ‘stability and peace in the region’”.[158] Kirgis further concludes:[159]

There was little evidence that the strife between clans in Somalia, devastating though it was for the people of that country, actually posed a serious threat to stability in neighbouring states, at least in the short term.

To the contrary, official UN estimates suggest that two million Somali refugees fled their homes,[160] and of those “an estimated 800,000 [became] refugees in neighbouring countries”.[161] Following the ‘Kurdish Question’ precedent, and certain 1992 announcements of the Council,[162] sufficiently large cross-border refugee flows may threaten international peace.[163] Nonetheless, the Council made no “public effort to define the threat to regional security.”[164]

Assertions that Somalia’s domestic situation could not constitute a threat to the peace were challenged when the Council authorized the Unified Task Force (“UNITAF”) to use “all necessary means” to create a secure environment for aid operations.[165] Malanczuk observed that, in Resolution 794, it is “[f]or the first time ... clearly stated in a Council resolution, without also invoking external ‘consequences’, that internal aspects of a humanitarian problem ... threaten international peace and security”. [166] Indeed, the Council determined that “the magnitude of the human tragedy caused by the conflict in Somalia, further exacerbated by the obstacles being created to the distribution of humanitarian assistance, constitutes a threat to international peace”.[167]

However, it is indisputable that the exodus of two million refugees substantially contributed to the ‘human tragedy’ that unfolded. Furthermore, the Council attempted to eliminate any precedent by announcing that Somalia’s unique situation “require[ed] an immediate and exceptional response.”[168]

(c) The Rwanda Question

In 1990, ethnic troubles in Rwanda between the Hutu majority and Tutsi minority emerged as a full-scale conflict. By August 1993, fighting between the Hutu-controlled Rwandan military and the Tutsi-led Rwandese Patriotic Front[169] ceased under the Arusha Agreement.[170] To oversee the implementation of the agreement, the Council created the UNAMIR peacekeeping force.[171] However, the assassination of the Rwandan President in April 1994 renewed ethnic violence. The severity and scale of the violence was “unprecedented in the history of the ... entire African continent”.[172]

As discussed above, in May 1994 the Council purported to determine the existence of a threat to international peace in the ‘Rwandan Question’.[173] Resolution 918 characterized the threat in terms of the disturbing “magnitude of the human suffering caused by the conflict” which included a “massive exodus of refugees to neighbouring countries”.[174] This recognition of a threat to international peace arising from 1.7 million (predominantly Hutu) refugees[175] moving into Zaire, Tanzania, Burundi and Uganda was consistent with the apparent need for transboundary effects evident in previous determinations, particularly the ‘Kurdish Question’. As such, Resolution 918 should not be concluded to be evidence of the Council strictly following the precedent of Resolution 794 regarding the ‘Somalia Question’. This is again apparent in the Haiti situation.

(d) The Haiti Question

The ‘Haiti Question’ is among the most controversial of the Security Council’s determinations of threats to the peace. Following the end of Duvalier’s rule in 1986, Reverend Aristide became the country’s first President in February 1991. After only seven months of democratic rule a coup d’etat deposed Aristide and vested control of the island in Lieutenant-General Cédras. Initially, the Council was cautious not to interfere with Haiti’s domestic jurisdiction, considering the coup an “internal domestic matter which did not constitute a threat to the peace”.[176] On 16 June 1993, however, the Council recognized that “elements of fear which could increase the number of Haitians seeking refugee in neighbouring Member States” constituted a threat to the peace.[177] Kirgis observes: [178]

While tying [the threat to the peace] to the prospective flight of hundreds of thousands of Haitians to other countries, the Venezuelan representative gave no particulars regarding the threat to international peace such an exodus would cause.

Nevertheless, this prospective transboundary consequence was instrumental in the Council’s determination, and appears consistent with the apparent sufficiency of ‘potential’, or even ‘hypothetical’, threats to international peace. However, the President of the Council cautioned that the decision here was “warranted by the unique and exceptional situation in Haiti and should not be regarded as constituting a precedent”.[179]

(e) The Yugoslavia Question

The distinction between internal and international conflicts was a significant factor in the Council’s treatment of the Yugoslav war between 1991 and 1996. Following the June 1991 secession of Slovenia and Croatia from the Socialist Federal Republic of Yugoslavia (“SFRY”),[180] the federal Yugoslav National Army (“JNA”) entered both republics (though only briefly in the case of Slovenia). Despite the bloodshed, the Council remained inactive for three months before adopting Resolution 713. The resolution determined that “the continuation of this situation constitutes a threat to international peace and security”, and summarized the ‘threat’ as follows:[181]

[T]he fighting in Yugoslavia which is causing a heavy loss of human life and material damage, and ... the consequences for the countries of the region, in particular in the border areas of neighbouring countries in the region.

Clearly, the Security Council perceived a transboundary effect, presumably in the form of refugees, emanating from the hostilities.[182] Continued breaches of ceasefires prompted the Council to create the United Nations Protection Force (“UNPROFOR”) operation to enforce UN ‘protected areas’.[183]

When Bosnia and Herzegovina declared independence from the SFRY in April 1992, armed conflict broke out between the local ethnic Serb, Croat and Bosnian Muslim communities. The Council’s response was a call for the immediate cessation of hostilities, but it was reluctant to deploy UNPROFOR without the various parties’ consent.[184] Contrary to Zemanek’s assertion that the “Council’s approach to the problem did not change with the admission of Bosnia-Herzegovina” to the UN,[185] it was only after this that the Council determined that “the situation in Bosnia and Herzegovina constitute[d] a threat to international peace and security”.[186] At the same meeting the Council adopted Resolution 771, which referred to the “mass forcible expulsion and deportation of civilians”.[187] By August 1992, Malanczuk reports that more than 2.2 million refugees had fled or become the victims of ‘ethnic cleansing’.[188] Thus, in terms of the criteria required for transboundary impact in the Kurdish and Haiti Questions, the situation in Bosnia threatened international peace.

The conflict in the former Yugoslavia also prompted the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) emphatically to conclude in the Tadič Case:[189]

[E]ven if [the war] were considered merely as an ‘internal armed conflict’, it would still constitute a ‘threat to the peace’ according to the settled practice of the Security Council... . It can thus be said that there is a common understanding ... that the ‘threat to the peace’ of Article 39 may include, as one of its species, internal armed conflict.

The Chamber must be cautious not to infringe on the Council’s discretion. In an interdependent world, the minimal requisite transboundary effects are so frequently apparent that many, including the ICTY Appeals Chamber, assume that the presence of those effects is unnecessary. However, as shown above, most, if not all, of the Council’s determinations of ‘threats to the peace’ stemming from internal conflicts expressly or impliedly recognize the existence of some transboundary effect and, therefore, a menace to international peace.

6. Peace in the New World Order

The political constraints placed upon the Security Council by Cold War manoeuvring left it stagnant. Kirgis observes that, as the Cold War dichotomy in international relations strengthened, the Security Council was “effectively prevented...from acting under Chapter VII except to counteract apartheid and the vestiges of colonialism.”[190] The Security Council addressed the situations in Southern Rhodesia and South Africa through an extension of the Council’s Chapter VII authority. The Council’s understanding of threat, which goes beyond threats of aggression,[191] was a significant step in the development of the Council’s powers. With the benefit of hindsight, Kirgis criticizes these efforts:[192]

The Council did not help its cause when it failed adequately to assert that the large-scale human rights violations in those situations presented latent threats to the peace that could not confidently be predicted to remain within national boundaries. Such an argument could have cogently been made.

However, cogent or not, the Council’s respect for the ‘domestic jurisdiction’ was prevalent in both the Southern Rhodesia and South Africa incidents, and prevented conclusive determinations of threats to international peace resulting from domestic conflict.

During the Cold War, infrequent superpower consensus distorted understanding of the Council’s authority and practice. Indeed, Sato asserts that “despite its clear, direct allusion to an armed conflict, the concept of a threat to peace evolved in the practice of the Security Council to refer to something broader than that”.[193] Not surprisingly, then, the removal of political barriers opened the way for the further development of the Council’s understanding of ‘threats to the peace’. Since 1990, the revision of threats to the peace was primarily based on an expanded interpretation of the word ‘peace’. Koskenniemi observes:[194]

The sense of ‘peace’ has been widened from the (hard) absence of the use of armed force ... to the (soft) conditions within which – it is assumed – peace in its ‘hard’ sense depends; a change from a formal to a substantive meaning.

This interpretation was apparent during the meeting of the Council, held at the level of Heads of State and Government, on 31 January 1992. A Presidential declaration following the meeting announced:[195]

The absence of war and military conflicts amongst States does not in itself ensure international peace and security. The non-military sources of instability in the economic, social humanitarian and ecological fields have become threats to peace and security.

Although academic explanations for the President’s announcement vary,[196] most commentators agree that the declaration indicated a dramatic broadening of the Security Council’s Article 39 power to determine threats to the peace. Accordingly, Reisman concludes that the Council is free to “use Charter obligations and the symbolic authority of the organisation as they think appropriate to maintain or restore international peace as they define it”.[197]

The Council’s movement from the traditional ‘hard’ concept of ‘peace’ has increased its discretionary authority under Chapter VII. According to Dinstein:[198]

[‘Threat to the peace’ is now] elastic enough to stretch away from the contemplated use of force and beyond inter-State relations. The Security Council is competent to determine that civil wars or minor internal disturbances – or even mere violations of human rights not entailing force – amount to a threat to the peace.

Dinstein’s conclusion is in keeping with the Council’s ability to address situations that potentially threaten international peace. Still, the apparent need for transboundary effects is an increasingly minor fetter, especially if the Resolution 794 regarding the ‘Somalia Question’ is any indication.

Perhaps the greatest advance in the jurisdiction of the Council was in addressing humanitarian crises under Chapter VII. This advance was evident in both the sufficiency of ‘potential threats’, and the declining requirement of a discernable transboundary effect.[199] Indeed, Kühne emotively concludes that “[c]onflicts in which more than half a million people get killed and hundreds of thousands of people are forced to flee are a threat to international peace and security in a highly interdependent world”.[200]

As has been shown above, the Council’s recent practice concerning humanitarian crises indicates that Kühne’s proposed criteria are not yet determinative. It is, however, irrefutable that a significant change in the scope of the Council’s authority has occurred, and that the Council’s authority will continue to develop in the foreseeable future. For example, a right to democracy may be created.[201]

Another significant development in the understanding of international peace was a consequence of the growth of international terrorism, and, indeed, other forms of international crime. In 1992, the Security Council asserted:[202]

The worldwide persistence of acts of international terrorism in all its forms, in which states are involved directly or indirectly, which endanger or take innocent lives, have a deleterious effect on international relations and jeopardise the security of states.

De Brichambaut observes that the Council “has been careful, in all its resolutions concerning terrorism, to assert a link with the preservation of international peace and security”.[203] Frowein proposes that “[t]he most far reaching use of the notion of ‘threat to the peace’ was made ... concerning Libya.”[204] However, Graefrath concedes that the Council’s determination in Resolution 748 “reflects a new policy ... illustrated by the statement issued at the Security Council summit meeting of 31 January 1992”.[205]

The Council’s determination that Libya’s alleged involvement in international terrorism constituted a threat to the peace was controversial, and “[s]everal commentators have expressed doubts as to the validity of this decision”.[206] Kirgis conservatively concludes:[207]

If a government “supports” terrorism on isolated occasions [a ‘threat to the peace] is not so clearly at hand. Even if the government’s failure to act amounts to a violation of international law, it would not necessarily constitute a threat to international peace ....

Graefrath is more critical of Resolution 748, finding that non-compliance with Council decisions “would not be sufficient to justify action under Chapter VII”.[208] Also, Sato warns that “cautious consideration is required on the matter of whether the Security Council could reasonably determine [a threat to the peace] simply because Libya had not surrendered the suspects”.[209]

The concept of international peace today is not the same as that envisaged in 1945. The language of the Charter has not been amended, but Kirgis perceives this kind of change as inherent in the “development of the UN Charter as a living constitution”.[210] Writing in 1995, Kirgis opined that heightened humanitarianism, political globalization, and weapons proliferation amongst State and non-State actors has “lead unavoidably and quite properly to a much expanded definition of ‘threat to international peace’”.[211] The Council’s interpretation of its powers is ambiguous, but that there is a general trend towards assuming greater power is undeniable.

IV. The Redundancy of Breaches of the Peace and Aggression

The corollary of the increasing importance among the Article 39 preconditions of ‘threats to the peace’ is the disuse of ‘breaches of the peace’ and ‘acts of aggression’ as grounds for the invocation of the Council’s Chapter VII jurisdiction. Where the Security Council has actively utilized and developed its understanding of ‘threats to the peace’, these other preconditions have fallen into virtual redundancy. Furthermore, despite a number of attempts, there has been no convincing demarcation of an “unblurred line between the categories of a breach of the peace and aggression”.[212] Like ‘threats to the peace’, other prerequisites were clarified neither during the San Francisco Conference nor in the final draft of the Charter.

1. Breaches of the Peace in Practice

During the Cold War, the Council determined that breaches of the peace existed on three occasions: the Korea,[213] Falklands[214] and Iran-Iraq War Questions.[215] In determining breaches of the peace, the Council has provided no authoritative definition of the term. Frowein argues that breaches of the peace arise “when hostilities are engaged in between armed units of two states.”[216] However, this definition complicates matters: it is nearly indistinguishable from the common understanding of ‘aggression’.[217] Yet Frowein’s definition is seemingly consistent with the precedents in the area. Thus, it seems that the Council has been primarily responsible for the confusion, which began in the ‘Korea Question’.

Following the North Korean attack on southern Korea in June 1950, the Council immediately determined that this “armed attack” was a breach of the peace.[218] During the Council’s debates on the issue, the USSR questioned the Council’s ability to intervene in what it considered the Korean domestic jurisdiction. Frowein observes that the Soviet view was rejected because where “effectively ... separated and pacified regimes exist side by side, the protection of peace also applies for them. The outbreak of armed hostilities between them is a breach of the peace”.[219] Of course, this result was also the product of the USSR’s “badly timed boycott” of the decision-making.[220]

The Security Council perpetuated the uncertainty surrounding ‘breaches of the peace’ when it determined that Argentina’s 1982 invasion of the Falkland Islands constituted a breach of the peace.[221] The Argentine invasion was an unequivocal breach of Article 2(4), and a seemingly obvious ‘act of aggression’. Similarly, in 1987, after seven years of fighting, the Council determined the existence of “a breach of the peace as regards the conflict between Iran and Iraq”.[222] Again, in Resolution 660 the Council determined that Iraq’s invasion of Kuwait constituted a “breach of international peace and security.”[223]

In light of these precedents, Frowein argues that an attempt was made to “dilute the concept of a breach of the peace” during the Council’s deliberations on the ‘Namibia Question’ in 1987.[224] A proposal that the presence of South African troops in Namibia following the lapse of its League of Nations mandate[225] constituted a breach of the peace was vetoed by the United States and United Kingdom.[226] Frowein concludes that “[t]he situation involving the illegal occupation of territory through the continuation of an originally legal administration must be distinguished from a breach of the peace in the sense of Article 39”. [227]

The failure of this proposal, due to the United States’ and Britain’s vetoes, meant that it did not become a conclusive expression of the law. But the ‘Namibia Question’ may have been an example of the kind of situation that the international community originally intended to prevent when it employed the phrase ‘breaches of the peace’. Subsequently, the Council has confirmed that ‘peace’ is not merely the absence of war.[228] Arguably, then, a breach need not, as Frowein suggests, be in the form of “hostilities”.

Unlike determinations of ‘aggression’, where one of the parties is recognized as an ‘aggressor’,[229] findings of ‘breaches of the peace’ do not apportion blame in the same stigmatic manner.[230] This may prove beneficial where an effort is being made to reach a peaceful resolution; this may account for some of the Council’s anomalous determinations. However, the determination that a threat to international peace existed would achieve similar results. The sufficiency of a threat to the peace allows Article 39 to “come into play long before a breach of the peace occurs”.[231] Moreover, because a breach of the peace endangers the maintenance of international peace and security, it is conceivable that inherent in such breaches are ‘threats to the peace’. In terms of Article 39, a ‘threat to the peace’ acts like a ‘lowest common denominator’ for the invocation of the Council’s Chapter VII jurisdiction.

2. Acts of Aggression at International Law

The final Article 39 precondition, the existence of an ‘act of aggression’, has also been used by the Council on relatively few occasions. During the Cold War the Council only accepted “short-term military actions by South Africa or Israel as ‘acts of aggression’”.[232] Due to its infrequent use, the notion of aggression has not benefited from case-by-case elaboration, which could have “afford[ed] guarantees of impartial and passionless determination of future decisions”.[233] According to Frowein, the fundamental understanding of “[a]ggression presumes the direct or indirect application of the use of force; thus, it is also always a breach of peace”.[234] As such, the value of the concept in Article 39 is questionable:[235]

Insofar as aggression can rarely (if ever) occur unaccompanied by either a threat to the peace or a breach of the peace, collective peace enforcement [under Chapter VII] would seem legally possible without the use of the notion of aggression.

Indeed, Stone rejects the need for the notion of aggression, regardless of how it is defined. Again, it can be seen that the ‘threat to the peace’ precondition acts as a lowest common denominator for the purposes of Article 39.

Unlike ‘breaches of the peace’, however, ‘aggression’ has been defined outside of the Council, particularly through the efforts of the International Law Commission (“ILC”) and the General Assembly. Moreover, the difficulties involved in evidencing acts of aggression “are graver than those involved in proof merely of a ‘threat to the peace’ or a ‘breach of the peace’”.[236] Thus, there are two legalistic constraints on the use of ‘aggression’: the development of legal criteria, and the resulting burden of evidence. Both of these constraints have played a significant role in the Council’s reluctance to utilize the ‘aggression’ prerequisite.

3. The Development of Legal Criteria

The notion of aggression has long been an (albeit ill-defined) aspect of customary international law de lege lata. In 1933, the League of Nations attempted to codify the law of aggression,[237] but the sum of its efforts probably did not have even “the non-binding persuasive force of a voeu of the League Assembly or Council”.[238] The drafting of the UN Charter following World War Two again saw the incorporation of a notion of ‘aggression’, particularly in Articles 2(4) and 39. Many smaller States, including New Zealand, attempted to include a binding definition of ‘aggression’ in the Charter.[239] The major powers strongly opposed any such definition, and rapporteur Paul-Boncour stressed the difficulties and dangers of negotiating an exhaustive list of aggressive acts.[240] Hence, no definition eventuated.

In respect of the general prohibition on the use of force[241] contained in Article 2(4), and the right of self-defence in response to an “armed attack”,[242] the codification of ‘aggression’ occupied the ILC from November 1950.[243] In 1956, irrespective of the concept’s potentially superfluous role in Article 39, Wright argued that:[244]

[A] satisfactory definition of aggression is an essential prerequisite for a collective security system [and] has to be framed on the assumption ... that ‘collective security’ does not depend on decisions of the Security Council, but on voluntary action by Members in response to recommendations of the General Assembly.

Accordingly, the General Assembly, in a supplement to the Uniting for Peace Resolution,[245] actively sought to define ‘aggression’.[246]

In December 1974, the General Assembly finally adopted a definition of ‘aggression’ in Resolution 3314.[247] The Definition of Aggression does not bind the Security Council, although the Council may rely upon the resolution’s clarifications.[248] Zemanek observed:[249]

[T]he Security Council [was] manifestly not interested in having this discretion restricted through abstract clarifications or definitions. [Consequently] when the General Assembly undertook to define aggression, it was “persuaded” to include a saving clause for the discretionary powers of the Security Council in the text.

However, this ‘saving clause’ is not absolute. The General Assembly confirmed that the “acts enumerated [in the resolution] are not exhaustive and the Security Council may determine that other acts constitute aggression under the provisions of the Charter”.[250] Arguably, this indicates an expectation that the Council recognize the specific acts included in Resolution 3314 as ‘acts of aggression’. The Definition of Aggression became more authoritative following the 1986 Nicaragua Case, in which the ICJ considered that ‘aggression’ as defined by Resolution 3314 reflected customary law.[251]

V. Article 39 Determinations as Questions of Law?

It is evident from the foregoing discussion that through its recent practice the Council has enlarged its powers of legal appreciation. The Council’s authority to determine the existence of Article 39 prerequisites has developed to meet the perceived needs of the international environment. Few disagree that the Council is a political body.[252] Nonetheless, the Council plays a central role in the international legal system through its interpretation and implementation of existing law, primarily the UN Charter.[253] De Brichambaut characterizes the Council as a “political organ that produces resolutions having legal consequences”.[254] But are the Council’s determinations capable of review as justiciable questions of law? This section of the article considers the Council’s decision-making, and the consequences of the prevailing interpretations of Article 39 for the legitimacy of Council determinations.

1. The Security Council’s Quasi-Judicial Role

Despite the fact that the Security Council is a political body, it frequently exercises quasi-judicial functions in terms of its Chapter VII powers.[255] Indeed, as early as 1947, the United States’ representative to the Council recognized that “the invocation of [Article] 39 ... raises very complex and serious questions of law”.[256] Nonetheless, Zemanek concludes that the political nature of the Security Council supersedes any judicial role it may play:[257]

[W]hile the existence of one of the situations mentioned in Article 39 could be determined according to legal criteria, the actual determination by the Security Council is a political decision in which legal considerations may, but do not necessarily, play a role, though it may be the decisive one.

Thus, under certain circumstances the Council may make determinations based solely on legal considerations. As Brownlie observes, “political organs frequently adopt a course of conduct based upon legal considerations and intended to have legal consequences”.[258] This is particularly apparent in the invocation of enforcement measures under Articles 41 or 42.

Many commentators recognize that the Council’s fundamental judicial decisions under Article 39 relate to considerations of illegality and, consequently, the liability of a given international actor. Bowett considers that in making an Article 39 determination, findings of illegality are unnecessary for the application of Chapter VII.[259] However, Schweigman also observes that the Council’s recent practice has tended it towards making legal judgments:[260]

[T]he Council increasingly seems to take measures under Chapter VII based on a prior finding of illegality and with the goal of remedying that illegality. Indeed, a trend can be discerned toward what has been called the enforcement of international obligations.

This “prior finding of illegality” alludes to determinations under Article 39. Unlike Bowett, Schweigman perceives the recognition of some illegality as underpinning Article 39 determinations. However, the standard of the Council’s quasi-judicial functioning does not appear to be consistent across the three Article 39 prerequisites.

(a) Discretionary Threats to the Peace

As discussed above, the scope of ‘threats to the peace’ has broadened, and the Council has increasingly used the ‘threat’ precondition to satisfy Article 39. The concept has evolved beyond actual threats into potential, and now hypothetical, notions of threat. Koskenniemi criticizes the development of the concept:[261]

Now the chase for a Somali clan leader ... among a host of other controversial Chapter VII decisions, [is] difficult to justify under a coherent theory of ‘threat to peace’... I would suggest that the Council simply has no business venturing into such theory-building.

Findings of threats to the peace are, more than ever before, subjective, emotional responses, defying theoretical constructions and judicial determination. As Dinstein explains, threats “can be merely a state of mind”.[262]

Apart from the necessary compliance with the Purposes and Principles of the Charter, ‘threat to the peace’ is a term devoid of legal criteria. This, according to Kirgis, makes the Council “the best (in fact, the only) judge of what amounts to a threat to international peace”.[263] Indeed, in the Kanyabashi Case the ICTR found that:[264]

[T]he Security Council has a wide margin of discretion in deciding when and where there exists a threat to international peace ... however, such discretionary assessments are not justiciable since they involve the consideration of a number of social, political and circumstantial factors which cannot be weighed and balanced objectively by this Trial Chamber.

Many reject the idea that the Council’s ‘mind’ is amenable to judicial review, because this would be “to substitute [a judicial institution’s] own political judgment for that of the Security Council”.[265]

The determination of a threat to the peace is not a question of law and, therefore, “a determination by the Council that a threat to the peace exists is conclusive”.[266] The only plausible exception is a breach of the general prohibition on ‘threats of force’, which may entail judicial consideration of the statements or conduct of a State, or perhaps another international actor. These circumstances are exceptional in the Council’s practice. Bowett finds that “[i]n the majority of cases the findings of the Council will be factual and political, not legal”.[267] Accordingly, Bowett concedes that some Council determinations are questions of law. This conclusion may be accounted for by developments in the other Article 39 preconditions.

(b) Of Breaches of the Peace?

The concept of ‘breach of the peace’ is underdeveloped and confused. If one adopts Frowein’s definition, which is consistent with the precedents, the determination of a breach of the peace will turn on the existence of “hostilities ... between armed units of two states”.[268] But any attempt to distinguish ‘hostilities’ from ‘aggression’ at customary international law would be artificial for all intents and purposes.[269] Consequently, the legal criteria associated with ‘acts of aggression’ would allow for the review of breaches of the peace as questions of law. However, this article has shown that Frowein’s proposed definition is unsatisfactory.

‘Breach of the peace’ is now subject to the ‘soft’ understanding of ‘peace’ that has prevailed since the Council’s January 1992 announcement.[270] Consequently, the discretion that the Council has to determine breaches of the peace has been considerably strengthened. Nonetheless, the Council has preferred to use the ‘threats to the peace’ precondition to initiate its Chapter VII jurisdiction. Unlike hypothetical or potential threats to international peace, whether a ‘breach of the peace’ exists is a question of fact. However, without authoritative criteria for the recognition of when a breach has occurred, judicial methods of decision-making will be ill-equipped to review such determinations.

(c) Justiciable Acts of Aggression

As this article has shown, international understandings of ‘aggression’ have been consolidated since the drafting of the UN Charter. The General Assembly’s Definition of Aggression provides a non-exhaustive list of criteria.[271] Thus, as Bowett argues, a determination of an act of aggression is “not simply a matter of political judgment. It is a finding based upon an assessment of the facts and the application of a norm of international law, based on that assessment of the facts”.[272] Findings of illegality are intrinsic in the determination of acts of aggression because ‘aggression’ necessitates the recognition of an ‘aggressor’. Accordingly, judicial methods are more suited for determining the existence of an act of aggression.

The general prohibition on ‘aggression’, or the ‘use of force’ as codified in Article 2(4), has arguably become a fundamental norm of international law. Shaw warns:[273]

[O]ne must question the competence of the Security Council to alter unilaterally the principles of international law ... it is able to go no further than reaffirm existing international law and suggest a particular application in a particular situation.

Schweigman views the “outlawing of aggression” as a jus cogens norm.”[274] He and numerous other commentators agree that when “exercising its quasi-judicial authority, [the Council] must abide by general international law, including customary international law”.[275]

The Definition of Aggression afforded the Council the power to “determine that other acts constitute aggression”.[276] The formulation of alternative definitions may form part of what many commentators perceive as a quasi-legislative function.[277] Although the Definition of Aggression as an expression of customary law is not exhaustive, it is comprehensive. The existing law captures most, if not all, forms of aggression, and therefore leaves the Council limited room for manoeuvre. Therefore, ‘acts of aggression’ will almost unfailingly be questions of law; the Council cannot simply change the law as it sees fit.

2. The Consequences for Security Council Legitimacy

The powers of the Security Council are formidable. In an uncharacteristically conservative approach, Judge Weeramantry asserted that a “determination under Article 39 ... is one entirely within the discretion of the Council”.[278] As has been shown, this is not entirely the case. The Council remains limited, even in determining ‘threats to the peace’. Bowett rightly affirms this point:[279]

There can be no basis for arguing that, as a political organ, the Council is not subject to the ultra vires doctrine. Member States have every right to insist that the Council keeps within the powers they have accorded to it under the Charter.

The Council is answerable to, not above, the international community it represents.[280] Similarly, Koskenniemi also concludes that “[t]he right ‘of last resort’ of member States to decide, for themselves, on whether an act has been ultra vires is difficult to reject”[281]

Furthermore, the Council’s broad interpretation of its Article 39 authority may force it to make concessions in other areas. Currently, it is thought that, “[a]s a non-judicial body, the Council is not required to set out reasons for its decisions”.[282] The Security Council has pushed the bounds of its authority, and in contentious cases it has been “disinclined to explain what it saw as the threat to international peace”.[283] Indeed, Brownlie laments that recent Council determinations have “produced results which exhibit double standards in the application of the law on a scale which places the principle of equal subjection to law in jeopardy”.[284] However, Kirgis proposes that in consideration for the Council’s broad interpretation of its powers of appreciation, the international community will demand “principled Article 39 determinations, publicly explicated, that do not set unlimited or unintended precedents”.[285]

This article has shown that the vast majority of Article 39 determinations made by the Council are not amenable to review. Even if a judicial institution were empowered for that purpose, Council determinations are seldom justiciable as questions of law. However, when making decisions, the Council must also bear in mind the importance of maintaining a sense of legitimacy:[286]

[T]he legality or constitutionality of various activities by the Security Council is ambiguous or fragile at best ... . [T]he more the Security Council steps into legally grey areas [such as hypothetical ‘threats to the peace’], the more legitimacy is required for its activities to be effective and acceptable.

Kirgis proposes that, to preserve its legitimacy, “[the Council] needs to demonstrate that it is using the powers judiciously”.[287] If the Council is not accountable to a separate organ of the UN, then individual States will themselves be the final arbitrators of the legality of Council determinations. To date, the international community has allowed the Council considerable leeway, but signs of disquiet are emerging. The Lockerbie and ICC Prosecutions Questions are only recent examples.[288]

VI. Conclusion

The authority of the Security Council under Article 39 to determine the existence of ‘threats to the peace’, ‘breaches of the peace’ or ‘acts of aggression’ is not simply a political discretion. Nor can it be said that judicial review of the Council’s determinations will achieve any more the substitution of one political decision for another. Such a definitive conclusion is prevented by the complicated, pragmatic development of the three Article 39 concepts. Given the present broad scope of ‘threats to the peace’, there appears to be no motivation for the Council to further develop the other Article 39 prerequisites.

Has the Council gone too far by introducing nations of ‘hypothetical threat’ and ‘soft’ peace? Kirgis defends these developments as part of the ‘living’ Charter, in which Article 39 should not be tied “to the kinds of situations delegates had in mind in 1945”, and that the international community “need[s] to allow the Council a great deal of leeway to apply and interpret the powers it has long had on paper”.[289] This is certainly true, but what of the obligations that the Council has also long had “on paper”, such as its possible duty to recognize the existence of any Article 39 precondition? Furthermore, why can the ‘living’ Charter not demand greater accountability and transparency? In providing that leeway, the demands of the international community for accountability and fair process cannot be ignored. Irrespective of whether a particular determination is a discretionary ‘threat to the peace’ or a justiciable ‘act of aggression’, the Council must not take the legitimacy of its decisions for granted.

That said, the Council’s current precedents are irreconcilable with these demands. The determination of a ‘threat to the peace’ purely on the basis of an unsubstantiated emotional response will frequently preclude the furnishing of satisfactory evidence and reasoned argument. These issues have come to the fore through the recent focus of the Security Council on Iraq’s defiance of Security Council Resolution 1441.[290] The reluctance and, arguably, inability, of the United States and Britain to substantiate their allegation – that Saddam Hussein’s Iraq continued to retain and develop weapons of mass destruction – is a natural follow-on from the Council’s Lockerbie and ICC Prosecutions Questions precedents. Perhaps, only now, will the Security Council members come to realize that they have gone too far.


[∗] BA. The author would like to express his gratitude to Ms Treasa Dunworth, lecturer in international law with the Faculty of Law at the University of Auckland, for her invaluable guidance and assistance.

[1] Koskenniemi, “The Police in the Temple: Order, Justice and the UN” (1995) 6 Eur J Int’l L 325, 348.

[2] This assertion is discussed in detail in Roberts, “Second-guessing the Security Council” (1995) 7 Pace ILR 322.

[3] Brownlie, “International Law at the Fiftieth Anniversary of the United Nations” (1995) 255 RCADI 9, 214; see also Lauterpacht, Cambridge Essays in International Law (1965) 88-121.

[4] Koskenniemi, supra note 1, 341.

[5] Certain Expenses of the United Nations (1962) ICJ Reports 151, 168 [“Certain Expenses”]. Cited in Bowett, infra note 6.

[6] Bowett, “The Impact of Security Council Decisions on Dispute Settlement Procedures” (1994) 5 Eur J Int’l L 89, 93.

[7] Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro)) (1993) ICJ Reports 3.

[8] The international judicial system has not been as willing as the Commonwealth courts (including New Zealand) to collapse this ‘errors’ distinction. See e.g. Anisminic v Foreign Compensation Commission [1967] 2 All ER 986.

[9] Frowein, “On Article 39”, in Simma (ed), Charter of the United Nations (1994) 606.

[10] Malanczuk, Akehurst’s Modern Introduction to International Law (7 rev ed, 1997) 25 [“Akehurst’s”].

[11] Frowein, supra note 9, 607.

[12] United Nations Charter (1945), art 24(1).

[13] See generally Paul-Boncour, Report of Paul-Boncour; Rapporteur on Chapter VIII Section B, 12 UNCIO Doc 502-514.

[14] Frowein, supra note 9, 607.

[15] Kirgis, “The Security Council’s First Fifty Years” (1995) 89 Am J Int’l L 506, 507.

[16] United Nations Charter (1945), art 39.

[17] Frowein, supra note 9, 608.

[18] “[A]lthough it is fairly clear from the context that ‘threats to the peace’ and ‘breaches of the peace’ were intended to refer to international peace.” Malanczuk, Akehurst’s, supra note 10, 388.

[19] Zemanek, “The Legal foundations of the International System: General Course on Public International Law” (1997) 266 RCADI 9, 50-51. For example, during the ‘Greek Frontier Incidents Question’ a proposed predetermination of a ‘threat to the peace’ under certain circumstances was opposed as “equivalent to proposing a definition of the concept of ‘threat to the peace’”. The amendment containing the predetermination was subsequently rewritten as a non-binding “point of view”. Repertoire of the Practice of the Security Council 1946-51, Chapter XI, 427 [“Repertoire 1946-51”].

[20] United Nations Charter (1945), art 24(2).

[21] Appeals Chamber Decision on the Tadič Jurisdictional Motion, Prosecutor v Dusko Tadič, Case No. IT-19-1-AR72, 2 October 1995, [27]. Many commentators argue that Council decisions taken in violation of the Charter are “not binding upon UN Member States, because [the Members] have only agreed ‘to accept and carry out ... decisions of the Security Council in accordance with the ... Charter’”. Stahn, infra note 104, http://www.ejil.org/journal/Vol14/No1/art1-04.html; see also United Nations Charter (1945), art 25; Bowett, supra note 6, 95.

[22] Schweigman, The Authority of the Security Council under Chapter VII of the Charter: Legal Limits and the Role of the International Court of Justice (2001) 186.

[23] Repertoire 1946-51, supra note 19, 425.

[24] See for example Ibid 424.

[25] Schweigman, supra note 22, 185.

[26] Frowein, supra note 9, 613.

[27] Repertoire 1946-51, supra note 19, 423-442. The idea that the resolution was worded in a manner sufficient to invoke the Council’s Chapter VII powers was disputed.

[28] Schweigman, supra note 22, 157; see also 185. Schweigman argues that decisions contained in a resolution that does not include a prior determination under Article 39 cannot be considered binding decisions under Chapter VII of the Charter.

[29] Freudenschuß, “Between Unilateralism and Collective Security: Authorisations of the Use of Force by the UN Security Council” (1994) 5 Eur J Int’l L 523, cited in Schweigman, supra note 22, 157.

[30] Kirgis, supra note 15, 512.

[31] Zemanek, supra note 19, 296.

[32] Judge Fitzmaurice, dissenting opinion in the Namibia Case (1971) ICJ Reports 52, cited by Judge Bedjaoui in his dissenting opinion in the Lockerbie Case (Provisional Matters) (Libyan Arab Jamahiriya v United States of America) (1992) ICJ Reports 3, 43.

[33] The development of a new understanding of ‘peace’ is discussed in detail below in Part 6 of Section II.

[34] Repertoire 1946-51, supra note 19, 427.

[35] Paul-Boncour, supra note 13, 503-504, cited in Frowein, supra note 9, 607,

[36] Dinstein, War, Aggression and Self-defence (3rd Ed, 2001) 251.

[37] Akehurst, A Modern Introduction to International Law (1987) 219; see also Malanczuk, Akehurst’s, supra note 10, 426.

[38] See for example Repertoire 1946-51, supra note 19, 426.

[39] For example, in Resolution 1127 the Security Council determined that the Union for the Total Independence of Angola – a non-State actor – was a threat to international peace. SC Res 1127, UN SCOR, 3814th mtg, UN Doc S/Res/1127 (1997); see also Dinstein, supra note 36, 253.

[40] As appears to be the case with acts of aggression, which are discussed below in Part 2 of Section III.

[41] Dinstein, supra note 36, 251.

[42] Repertoire 1946-51, supra note 19, 425.

[43] Ibid. Emphasis added.

[44] Ibid.

[45] Ibid 426.

[46] Ibid 425.

[47] Ibid.

[48] Ibid 426.

[49] See Frowein, supra note 9, 608.

[50] Repertoire 1946-51, supra note 19, 425.

[51] Ibid 425.

[52] The resolution was ultimately rejected by seven votes to four. See Ibid; see also Franck, infra note 120, 97-198.

[53] McDougal and Reisman, “Rhodesia and the United Nations” (1968) 62 Am J Int’l L 1-19.

[54] SC Res 216, UN SCOR, 1258th mtg, UN Doc S/Res/216 (1965).

[55] SC Res 217, UN SCOR, 1265th mtg, UN Doc S/Res/217 (1965).

[56] See for example Repertoire of the Practice of the Security Council, Supplement 1966-68, Chapter XI, 202 [“Repertoire 1966-68”].

[57] The issue of the international ‘threat to the peace’ posed by the ‘Southern Rhodesia Question’ is discussed in detail below in Part 2 of Section II.

[58] Schweigman, supra note 22, 60.

[59] Repertoire 1966-68, supra note 56, 203.

[60] See for example Kirgis, supra note 15, 512; see also Fenwick, “When is there a Threat to the Peace? – Rhodesia” (1967) 61 Am J Int’l L 753.

[61] Especially Argentina, Japan and Uganda.

[62] See for example Repertoire 1966-68, supra note 56, 203.

[63] Ibid.

[64] Repertoire 1966-68, supra note 56, 204.

[65] SC Res 232, UN SCOR, 1339th mtg, UN Doc S/Res/232 (1966).

[66] See for example SC Res 181, UN SCOR, 1056th mtg, UN Doc S/Res/181 (1963); SC Res 311, UN SCOR, 1639th mtg, UN Doc S/Res/311 (1972); SC Res 392, UN SCOR, 1930th mtg, UN Doc S/Res/392 (1976).

[67] See for example SC Res 134, UN SCOR, 856th mtg, UN Doc S/Res/134 (1960); SC Res 393, UN SCOR, 1944th mtg, UN Doc S/Res/393 (1976).

[68]SC Res 134, UN SCOR, 856th mtg, UN Doc S/Res/134 (1960); see also Schweigman, supra note 22, 57; the Council’s action was made in response to the Sharpeville killings.

[69] The phrase ‘potential threat to the peace’, which had caused so much debate during the consideration of the 1946 ‘Spanish Question’, was not intended to become legal doctrine.

[70] GA Res 2396, UN GAOR, 23rd sess, 1731st plen mtg, UN Doc A/Res/2396 (1968).

[71] SC Res 392, supra note 66.

[72] The issue of the international ‘threat to the peace’ posed by the ‘South Africa Question’ is discussed in detail below in Part 2 of Section II.

[73] SC Res 418, UN SCOR, 2046th mtg, UN Doc S/Res/418 (1977).

[74] Judge Fitzmaurice, dissenting opinion in the Namibia Case (Advisory Opinion) (1971) ICJ Reports 16, 293.

[75] This activism within the Council resulted from a new ‘soft’ understanding of ‘peace’, which is discussed in detail below in Part 3 of Section II.

[76] Malanczuk, Akehurst’s, supra note 10, 403.

[77] Papp, Contemporary International Relations: Frameworks for Understanding (5 ed 1997) 467.

[78] SC Res 733, UN SCOR, 3039th mtg, UN Doc S/Res/733 (1992).

[79] Ibid [5].

[80] Schweigman, supra note 22, 124.

[81] Tzartzouras, “The Law of Humanitarian Intervention after Somalia” (1993) 46 Revue Hellénique de Droit International 197, 216.

[82] This argument was proposed in the 1947 ‘Greek Frontier Incidents Question’. See Repertoire 1946-51, supra note 19, 427.

[83] Referring to the “continuation” of a particular situation as a ‘threat to the peace’. See the ‘Southern Rhodesian Question’ discussed above in Part 1.

[84] SC Res 794, UN SCOR, 3143rd mtg, UN Doc S/Res/794 (1992).

[85] SC Res 918, UN SCOR, 3377th mtg, UN Doc S/Res/918 (1994), Preamble. Emphasis in the original.

[86] Ibid; see also SC Res 929, UN SCOR, 3392nd mtg, UN Doc S/Res/929 (1994). France was authorized to use ‘all necessary means’ to protect the civilian population.

[87] The issue of the international ‘threat to the peace’ posed by the ‘Haiti Question’ is discussed in detail below in Part 2 of Section II; see also the discussion of the new understandings of ‘peace’ in Part 3 of Section II.

[88] SC Res 841, UN SCOR, 3238th mtg, UN Doc S/Res/841 (1993).

[89] Malanczuk, Akehurst’s, supra note 10, 407; see also Damrosch, “Agora: The 1994 U.S. Action in Haiti” (1995) 89 Am J Int’l L 58-87.

[90] Schweigman, supra note 22, 136.

[91] SC Res 940, UN SCOR, 3413th mtg, UN Doc S/Res/940 (1994); see also Ibid 138.

[92] For the purposes of this article, a ‘potential’ threat is one supported by evidence that the dangerousness of a situation may escalate, but that at the time does not meet the threshold of an ‘actual’ threat. ‘Hypothetical’ threats are those unsupported by any evidence, but merely based on the assumptions and expectations of Council Members.

[93] Graefrath, “Leave to the Court What Belongs to the Court: The Libyan Case” (1993) 4 Eur J Int’l L 184, 196. In fact, according to Graefrath, Libya was “under no obligation in international law to hand over the alleged perpetrators of a terrorist act”.

[94] SC Res 731, UN SCOR, 3033rd mtg, UN Doc S/Res/731 (1992), Preamble.

[95] United Nations Charter (1945), art 27(3) explicitly prescribes that in decisions under Chapter VI parties to a dispute (in this case France, Britain and the United States) shall abstain from voting.

[96] See for example Sato, ‘The Legitimacy of Security Council Activities under Chapter VII of the UN Charter since the End of the Cold War’ in Coicaud and Heiskanen (eds), The Legitimacy of International Organizations (2001) 316.

[97] SC Res 748, UN SCOR, 3063rd mtg, UN Doc S/Res/748 (1992), Preamble.

[98] Graefrath, supra note 93, 195.

[99] Ibid 196.

[100] Ibid. Emphasis in the original.

[101] The United States vetoed draft resolution SC Res 1420, UN SCOR, 4564th mtg, UN Doc S/Res/1420 (2002).

[102] SC Res 1422, UN SCOR, 4572nd mtg, UN Doc S/Res/1422 (2002), Preamble. The Security Council may request a deferral of ICC investigations or prosecutions under Article 16 of the Rome Statute, “in a resolution adopted under Chapter VII of the Charter of the United Nations”. Correspondingly, the Council is required to determine a “threat to the peace, breach of the peace or act of aggression” pursuant to Article 39.

[103] Ibid; see also MacPherson, infra note 105.

[104] Stahn, “The Ambiguities of Security Council Resolution 1422 (2002)” (2003) 14 Eur J Int’l L 85 http://www.ejil.org/journal/Vol14/No1/art1-02.html (at 21 September 2003). Stahn concludes that “[s]uch an assumption raises serious concerns, because it ultimately implies that the non-contribution of troops to United Nations peacekeeping operations is in itself a threat to the peace”.

[105] MacPherson, Authority of the Security Council to Exempt Peacekeepers from International Criminal Court Proceedings, ASIL Insights, July 2002, http://www.asil.org/insights/insigh89.htm (at 21 September 2003); Stahn also concludes that “the threat to the peace seems to be based ... on the potential inability of the United Nations to address future threats without US military personnel [and] [a]ny generalization of this principle would render Article 39 borderless”. Stahn, supra note 104.

[106] Particularly, Canada, Brazil, New Zealand, South Africa, and Jordan.

[107] Security Council Requests International Criminal Court not to bring Cases against Peacekeeping Personnel from States not Party to Statute, 4572nd mtg, UN Doc SC/7450 (2002).

[108] Bosnia Mission Mandate in Question as Security Council Debates Legal Exposure of UN Peacekeepers, 4568th mtg, UN Doc SC/7445/Rev1 (2002).

[109] Ibid.
[110] Stahn, supra note 104, http://www.ejil.org/journal/Vol14/No1/art1-04.html; see also Bowett, supra note 6, 94.

[111] United Nations Charter (1945), art 24.

[112] See for example Malanczuk, Akehurst’s, supra note 10, 426.

[113] United Nations Charter (1945), art 2(7).

[114] Malanczuk, Akehurst’s, supra note 10, 427; see also Franck, infra note 120, 202.

[115] See for exampleSato, supra note 96, 314; see also United Nations Charter (1945), art 2(4).

[116] Frowein, supra note 9, 609. Frowein refers to a failed resolution recognizing a ‘threat to the peace’ posed by hostilities between Pakistan and India. He concludes that the Council distinguishes “between the peace between two specific states and international peace”. Now that both Pakistan and India are ‘nuclear’ states, the Council would probably determine a ‘threat to international peace’ if hostilities arose between the two nations. See also Malanczuk, Akehurst’s, supra note 10, 426.

[117] Frowein, supra note 9, 609; see also SC Res 27, UN SCOR, 173rd mtg, UN Doc S/Res/27 (1947), Preamble.

[118] See Frowein, supra note 9, 609.

[119] SC Res 27, supra note 117. Although Indonesia was not a UN Member until 28 September 1950, it was arguably a state by 1947. Indeed, on 12 August 1947 the Security Council invited the representative of the Republic of Indonesia to participate in Council discussions on the ‘Indonesian Question’. Additionally, it is debateable whether the language of the relevant resolutions sufficed as a determination for the purposes of art 39.

[120] Franck, Fairness in the International Legal and Institutional System: General Course on Public International Law, (1993-III) 240 RCADI 9, 198.

[121] See Malanczuk, Akehurst’s, supra note 10, 418.

[122] See Franck, supra note 119, 198.

[123] Higgins, The Development of International Law through the Political Organs of the United Nations (1963) 225.

[124] SC Res 143, UN SCOR, 873rd mtg, UN Doc S/Res/143 (1960), [2].

[125] Malanczuk, Akehurst’s, supra note 10, 419.

[126] SC Res 143, supra note 124, [1], cited in Franck, supra note 119, 198.

[127] Higgins, supra note 123, 225.

[128] UN Doc S/4389 (1960); see also Franck, supra note 120, 199.

[129] Franck, supra note 120, 198.

[130] SC Res 146, UN SCOR, 886th mtg, UN Doc S/Res/146 (1960).

[131] Higgins, supra note 123, 225. A similar conclusion was proposed by in the ‘Somalia Question’ by Tzartzouras, discussed above in Section II Part 2. See Tzartzouras, supra note 81, 216.

[132] Certain Expenses, supra note 5, 177.

[133] Schweigman, supra note 22, 59.

[134] SC Res 221, UN SCOR, 1277th mtg, UN Doc S/Res/221 (1966).

[135] Repertoire 1966-68, supra note 56, 201. Rather, Resolution 217 was considered by the majority of the Council to be the expression of a potential threat, similar to that posed by Spain in 1946.

[136] Ibid 201-2.

[137] Schweigman, supra note 22, 52; see also Yearbook of the United Nations: Special Edition, Fiftieth Anniversary, 1945-1995 (1995) 52-58.

[138] SC Res 181, supra note 66.

[139] Repertoire of the Practice of the Security Council, Supplement 1964-65, Chapter XI, 185.

[140] Schweigman observes that “[a]s part of a controversial move, South Africa was additionally effectively excluded from participating in the Assembly and most of the specialized agencies, resulting from the Assembly’s declaration [in Resolution 3151 (XXVIII) of 14 December 1973] that “the South African regime has no right to represent the people of South Africa”. Schweigman, supra note 22, 53.

[141] SC Res 218, supra note 73; see also Repertoire of the Practice of the Security Council, Supplement 1975-80, Chapter XI, 394.

[142] Frowein, supra note 9, 609.

[143] Nonetheless, for Sato, “it seem[ed] clear that the Security Council was motivated by considerations concerning the apartheid policy, which were sufficiently aggravating at that time”. Sato, supra note 96, 313.

[144] The development of new understandings of ‘peace’ is discussed in detail below in Part 3, Section II.

[145] Fifoot, “Functions and Powers, and Interventions: UN Action in Respect of Human Rights and Humanitarian Intervention”, in Rodley (ed), To Loose the Bands of Wickedness – International Intervention in Defence of Human Rights (1992) 151-153.

[146] Malanczuk, Akehurst’s, supra note 10, 395.

[147] Frowein, supra note 9, 612; see also Malanczuk, Akehurst’s, supra note 10, 426.

[148] Frowein, supra note 9, 612.

[149] Sato, supra note 96, 315. Emphasis added.

[150] Malanczuk, “The Kurdish Crisis and Allied Intervention in the Aftermath of the Second Gulf War” (1991) 2 Eur J Int’l L 114, 119 [“Kurdish Crisis”].

[151] SC Res 688, UN SCOR, 2982nd mtg, UN Doc S/Res/688 (1991), [1].

[152] Schwiegman quotes the preamble of Resolution 688, the wording of which parallels Operative paragraph 1: “[T]he Council determined that ‘the repression of the Iraqi civilian population in many parts of Iraq, including most recently in Kurdish populated areas, which led to a massive flow of refugees towards and across international frontiers and to cross-border incursions which threaten international peace and security in the region’.” Schweigman, supra note 22, 81; see also Frowein, supra note 9, 612.

[153] SC Res 688, supra note 151, Preamble; see also Malanczuk, Akehurst’s, supra note 10, 399.

[154] Malanczuk, Kurdish Crisis, supra note 150, 129.

[155] Malanczuk, Akehurst’s, supra note 10, 399.

[156] However, it is important to note that Resolution 688 was adopted with only ten votes in favour, three against (Cuba, Yemen, Zimbabwe) and two abstentions (China, India). Schachter suggests that “the Security Council was not asked to authorize or endorse the protective measures in the safety zones [under Chapter VII], presumably because not all of the permanent members were prepared to support them”. See Schachter, “United Nations Law in the Gulf Conflict” (1991) 85 Am J Int’l L 452, 469.

[157] Malanczuk, Akehurst’s, supra note 10, 400.

[158] Kirgis, supra note 15, 513.

[159] Ibid.

[160] UN Department of Peacekeeping website, United Nations Operation in Somalia I, http://www.un.org/Depts/dpko/dpko/co_mission/unosomi.htm (at 21 September 2003).

[161] United States Committee for Refugees website, Somalia, http://www.refugees.org/world/countryrpt/africa/somalia.htm (at 21 September 2003).

[162] UN Doc S/23500 (1992). The announcement of the President of the Council following the 3046th meeting of the Council, on 31 January 1992, held at the level of Heads of State and Government, confirmed that non-military crises also threaten international peace and security.

[163] Although, unlike the ‘Kurdish Question’, no “cross-border incursions” were apparent, this does not seem to be determinative following the 1992 Heads of State and Government declaration. See SC Res 688, supra note 151, Preamble; see also UN Doc S/23500 (1992). The development of new understandings of ‘peace’ is discussed in detail below in Section II, Part 3.

[164] UN Doc S/PV.3039 (1992); see also Kirgis, supra note 15, 512.

[165] SC Res 794, supra note 84, 10.

[166] Malanczuk, Akehurst’s, supra note 10, 403-4; Gordon makes a similar observation: that the Somali humanitarian crisis, which had no cross-border effects, or at least no military ones, triggered the most extreme measures available to the Council. Gordon, “United Nations Intervention in Internal Conflicts: Iraq, Somalia, and Beyond” (1994) 15 Mich J Int’l L 519, 554.

[167] SC Res 794, supra note 84, Preamble.

[168] Ibid.

[169] Malanczuk, Akehurst’s, supra note 10, 405.

[170] United States Committee for Refugees website, Rwanda, http://www.refugees.org/world/countryrpt/africa/rwanda.htm (at 21 September 2003).

[171] SC Res 872, UN SCOR, 3288th mtg, UN Doc S/Res/872 (1993).

[172] Rwanda, supra note 170.

[173] SC Res 918, supra note 85.

[174] Ibid, Preamble.

[175] USCR website, supra note 170.

[176] Malanczuk, Akehurst’s, supra note 10, 407.

[177] SC Res 841, supra note 88, Preamble. Emphasis added. See also Frowein, supra note 9, 612.

[178] Kirgis, supra note 15, at 514; see UN Doc S/PV.3238 (1993) 11-12.

[179] UN Doc S/PV.3238 (1993) 9.

[180] From 27 April 1992, the SFRY ceased to exist, and was replaced by the Federal Republic of Yugoslavia (Serbia and Montenegro) – although its status as a Member of the UN was questioned until its official admission in November 2000.

[181] SC Res 713, UN SCOR, 3009th mtg, UN Doc S/Res/713 (1991).

[182] The JNA overran the Slovenian resistance in only 10 days. On 7 July 1990, the Brioni Agreement was reached between the Federal, Croatian and Slovenian authorities, which provided for the JNA’s withdrawal in October 1991. Consequently, hostilities in Slovenia were all but resolved by the time of the Council’s adoption of Resolution 713 on 25 September 1991. See Schweigman, supra note 22, 94.

[183] SC Res 743, UN SCOR, 3055th mtg, UN Doc S/Res/743 (1992).

[184] SC Res 752, UN SCOR, 3075th mtg, UN Doc S/Res/752 (1992).; see also Malanczuk, Akehurst’s, supra note 10, 410.

[185] Zemanek, supra note 19, 52.

[186] SC Res 770, UN SCOR, 3106th mtg, UN Doc S/Res/770 (1992), Preamble. Alternatively, the ‘threat to the peace’ could perhaps have been implied by the Council’s constant references to its earlier Resolution 713.

[187] SC Res 771, UN SCOR, 3106th mtg, UN Doc S/Res/771 (1992), Preamble.

[188] Malanczuk, Akehurst’s, supra note 10, 410.

[189] Appeals Chamber Decision on the Tadič Jurisdictional Motion, Prosecutor v Dusko Tadič, Case No. IT-94-1-AR72, 2 October 1995 (1996) 35 ILM 32, 43. The Chamber’s description of the Security Council’s “settled practice” is exaggerated. As this article has shown, a requirement for transboundary effects is necessary in light of the Council’s primary responsibility for international peace and security; furthermore, such effects continue to be apparent in the Council’s determinations of threats to the peace.

[190] Kirgis, supra note 15, 512.

[191] Although, as has been pointed out above in Part 2, cross-border ‘aggression’ was a substantial factor in the ‘South Africa Question’.

[192] Kirgis, supra note 15, 512; Franck, supra note 119, 202-204.

[193] Sato, supra note 96, 314.

[194] Koskenniemi, supra note 1, 341 n 69. “This is one of the key themes in the Secretary-General’s Agenda for Peace; to extend the organization's coercive powers from reactive (peace-keeping, peace-making) to preventive action (peace-building)”.

[195] UN Doc S/23500 (1992).

[196] For example, Frowein finds that “[b]y stressing that the United Nations membership as a whole, working through the appropriate bodies, needs to solve the economic, social and other problems the [Security Council] apparently recognises that Chapter VII is reserved for the military conflict”. See Frowein, supra note 9, 608. However, the recent practice of the Security Council repudiates this claim.

[197] Reisman, Peacemaking (1993) 18 Yale J Int’l L 418.

[198] Dinstein, supra note 36, 252. Kirgis also concludes that heightened humanitarianism, political globalization, and weapons proliferation amongst State and non-State actors has “lead unavoidably and quite properly to a much expanded definition of ‘threat to international peace’ than could have been intended fifty years ago”. Kirgis, supra note 15, 517.

[199] The requirement of a transboundary effect in humanitarian crises is discussed in detail above in Part 2.

[200] Kühne, “The United Nations, Fragmenting States, and the Need for Enlarged Peacekeeping”, in Tomuschat, (ed), The United Nations at Age Fifty: A Legal Perspective (1995) 91, 99.

[201] Franck, “The Emerging Right to Democratic Governance” (1992) 86 Am J Int’l L 46-91; see also Malone, Decision-Making in the UN Security Council (1998) 110. In a more recent example, consider the reinstatement of the democratically elected government of Sierra Leone through an unauthorized use of force. Nolte, ‘Limits on the Security Council’s Powers and its Functions in the International Legal System” in Byers, (ed), The Role of Law in International Politics (2000) 325.

[202] SC Res 731, supra note 94, Preamble. Emphasis added.

[203] De Brichambaut, “The Role of the United Nations Security Council in the International Legal System” in Byers, (ed), The Role of Law in International Politics: Essays in International Relations and International Law (2000) 271.

[204] Frowein, supra note 9, 611, referring to SC Res 748, supra note 97.

[205] Graefrath, supra note 93, 186.

[206] Schweigman, supra note 22, 185.

[207] Kirgis, supra note 15, 515.

[208] Graefrath, supra note 93, 195.

[209] Sato, supra note 96, 316.

[210] Kirgis, supra note 15, 515.

[211] Ibid 517.

[212] Dinstein, supra note 36, 253. Acts of aggression are discussed in detail below in Part 2.

[213] SC Res 82, UN SCOR, 473rd mtg, UN Doc S/Res/82 (1950).

[214] SC Res 502, UN SCOR, 2350th mtg, UN Doc S/Res/502 (1982).

[215] Malanczuk and Frowein appear to neglect the Council’s determination, in Resolution 598, of a ‘breach of the peace’ during the war between Iran and Iraq from 1980-1987. SC Res 598, UN SCOR, 2750th mtg, UN Doc S/Res/598 (1987); Malanczuk, Akehurst’s, supra note 10, 391; Frowein, supra note 9, 609.

[216] Frowein, supra note 9, at 609.

[217] Acts of aggression are discussed in detail below in Part 2.

[218] SC Res 82, supra note 213, Preamble.

[219] Frowein, supra note 9, 609.

[220] Dinstein, supra note 36, 257.

[221] SC Res 502, supra note 214, Preamble.

[222] SC Res 598, supra note 215; see also Dinstein, supra note 36, 257.

[223] SC Res 660, UN SCOR, 2932nd mtg, UN Doc S/Res/660 (1990), Preamble.

[224] Frowein, supra note 9, 609.

[225] Malanczuk, Akehurst’s, supra note 10, 328.

[226] See UN Doc S/18785 (1987).

[227] Frowein, supra note 9, at 610.

[228] UN Doc S/23500 (1992). The development of new understandings of ‘peace’ is discussed in detail above in Section II, Part 3.

[229] Stone, Aggression and World Order: A Critique of United Nations Theories of Aggression (1958) 21.

[230] Dinstein notes that “[i]n ... the Falkland Islands War, the Council did not specify who had committed the armed attack: the resolution only determined that ‘there exists a breach of the peace in the region of the Falkland Islands (Islas Malvinas)’”. Dinstein, supra note 36, 257. Similar arguments may be made for the Council’s findings in the ‘Iraq-Kuwait Question’ in response to the Iraqi invasion.

[231] Frowein, supra note 9, 608.

[232] Ibid 610; see also Malanczuk, Akehurst’s, supra note 10, 391.

[233] Stone, supra note 229, 22.

[234] Frowein, supra note 9, 610.

[235] Stone, supra note 229, 22.

[236] Stone, supra note 229, 23.

[237] See the Secretary-General’s Report in UN GAOR VII, Ann, Agenda Item 54, 35.

[238] Stone, supra note 229, 36.

[239] Frowein, supra note 9, 607. For discussion on the early development of a definition of aggression, see generally Stone, supra note 229, 23; see also the evaluation of ‘acts of aggression’ below at Section IV Part 1.

[240] Stone, supra note 229, 41.

[241] United Nations Charter (1945), art 2(4).

[242] United Nations Charter (1945), art 51.

[243] GA Res 378B, UN GAOR, 5th sess, 308th plen mtg, UN Doc A/Res/378 (1950).

[244] Wright, “The Prevention of Aggression” (1956) 50 Am J Int’l L 514, 518.

[245] Uniting for Peace Resolution, GA Res 377, UN GAOR, 5th sess, 302nd plen mtg, UN Doc A/Res/377 (1950).

[246] Stone suggests there are “two alleged reasons for the urgency of defining aggression, namely the guidance of the Security Council and the General Assembly in determining an aggressor, and the judicial trial of certain war criminals [concerning the latter of which] the issues are separate and different (individual rather than State responsibility)”. Stone, supra note 229, 23.

[247] Definition of Aggression, GA Res 3314, UN GAOR, 29th sess, 2319th plen mtg, UN Doc A/Res/3314 (1974).

[248] Frowein, supra note 9, 610.

[249] Zemanek, supra note 19, 50-51.

[250] Definition of Aggression, supra note 247, art 4. Emphasis added.

[251] Nicaragua Case (Merits) [1986] ICJ Reports 14, [195].

[252] Repertoire 1946-51, supra note 19, 427; see also Sato, supra note 96, 316; Dinstein, supra note 36, 251.

[253] De Brichambaut, supra note 203, 275.

[254] Ibid 269.

[255] Schweigman, supra note 22, 155.

[256] Repertoire 1946-51, supra note 19, 430.

[257] Zemanek, supra note 19, 296.

[258] Brownlie, supra note 3, 211.

[259] Bowett, supra note 6.

[260] Schweigman, supra note 22, 156; see also Gowlland-Debbas, “Security Council Enforcement Action and Issues of State Responsibility” (1994) 43 Int’l & Comp LQ 55, 77.

[261] Koskenniemi, supra note 1, 342.

[262] Dinstein, supra note 36.

[263] Kirgis, supra note 15, 516.

[264] Decision of the Defence Motion on Jurisdiction, Prosecutor v Joseph Kanyabashi, Case No. ICTR-96-15-T, 18 June 1997, [20], cited in Schweigman, supra note 22, 266.

[265] Bowett, supra note 6.

[266] Dinstein, supra note 36.

[267] Bowett, supra note 6.

[268] Frowein, supra note 9, 609. ‘Breaches of the peace’ are discussed in detail above in Section III, Part 1.

[269] The fundamental distinction will be the Council’s avoidance of strictly determining an ‘aggressor’.

[270] UN Doc. S/23500 (1992).

[271] Definition of Aggression, supra note 247.

[272] Bowett, supra note 6, 94.

[273] Shaw, “The Security Council and the International Court of Justice: Judicial Drift and Judicial Function” in Muller, Raič and Thuránszky (eds), The International Court of Justice: Its Future Role after Fifty Years (1997) 234-5, cited in Schweigman, supra note 22, 201.

[274] Schweigman, supra note 22, 199.

[275] Ibid 200-201; see e.g. Kirgis, supra note 15, 531; see also Shaw, supra note 273, 234-5.

[276] Definition of Aggression, supra note 247, art 4.

[277] See for example Sato, supra note 96, 335-336; see also Kirgis, supra note 15, 520-527.

[278] Judge Weeramantry, Questions of the Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Prov Measures) (Libya v US) Diss Op, (1992) ICJ Reports, 66.

[279] Bowett, supra note 6; see also Conditions of Admission to the United Nations (Advisory Opinion) (1948) ICJ Reports 64.

[280] See for example the concise and persuasive assertions of the representative of Zimbabwe, UN Doc S/PV.3063 (1992) 54-55, cited in Kirgis, supra note 15, 517-518.

[281] Koskenniemi, supra note 1, 342. Koskenniemi asserts this point “despite the evident problems it causes to the credibility of the collective system”. For example, Doehring suggests that “[t]he position that the whole peacekeeping system of the United Nations would collapse if states would be free to judge themselves about the legality of resolutions ... may be conclusive but not coherent and, in the end not convincing. This position would result in an obligation to do wrong”. Doehring, “Unlawful Resolutions of the Security Council and their Legal Consequences” (1997) 1 Max Planck Yearbook of United Nations Law 98. However, Malanczuk asserts that UN “member States cannot substitute their own opinion for that of the Security Council”. Malanczuk, Akehurst’s, supra note 10, 394.

[282] Dinstein, supra note 36.

[283] Ibid 513.

[284] Brownlie, supra note 3, 214.

[285] Kirgis, supra note 15, 517.

[286] Sato, supra note 96, 340.

[287] Kirgis, supra note 15, 516.

[288] For example, regarding the ‘Lockerbie Question’, see UN Doc S/PV.3063 (1992) 54-55. Regarding the ‘ICC Prosecutions Question’, see Bosnia Mission Mandate in Question as Security Council Debates Legal Exposure of UN Peacekeepers, 4568th mtg, UN Doc SC/7445/Rev.1 (2002).

[289] Kirgis, supra note 15, 516; see also Schachter, “The UN Legal Order: An Overview”, in Schachter and Joyner (eds), United Nations Legal Order (1995) 1, 13-14.

[290] SC Res 1441, UN SCOR, 4644th mtg, UN Doc S/Res/1441 (2002).


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