Collective security: Use of force authorized by the Security Council Current legal issues: The Use of Force in International Law Dr Myra Williamson Associate Professor of Law Kuwait International Law School Spring semester 2014

Introduction Earlier in the course we said that force is prohibited except in 2 situations: #1. When it is used in self-defence (Article 51) #2. When it is authorised by the UN Security Council We already looked at #1 Now we will look at #2 Any use of force which is authorised by the UN Security Council is called “collective security” because the actions are taken or authorised by the UNSC on behalf of the international community

“Collective security” When force is authorised by the SC its often called “Collective security” but that term is not used in the UN Charter The UN Charter states in Article 1 that “collective measures” can be used to prevent an remove threats to the peace It’s called “collective security” because the action is authorised by a competent organ of the UN and the measures are taken on behalf of the international community

“Unilateral action” If a state (or states) use force without permission from the Security Council, it’s called “unilateral action” It will be called “unilateral action” whether 1 or many states are involved – the point is that with unilateral action the force is not authorised by the UNSC So, “collective security” is the opposite of “unilateral action

Authority If the UNSC authorizes the use of force, it must be done as a last resort after all other measures have failed Chapter VII of the UN Charter contains a series of options These cover the steps from when a threat to international peace has been identified until the point when peace has been restored

Chapter VII of the UN Charter: overview To download Chapter VII (7), click here: You should read Chapter VII of the UN Charter Chapter VII contains Articles Chapter VII deals with threats to the peace, breaches of the peace and acts of aggression Chapter VII states that the Security Council will decide if there has been a threat to the peace, breach of the peace or act of aggression It is the Security Council that will decide on what measures must be taken to restore international peace and security Note: Article 51, which we have already discussed, comes at the end of Chapter VII

Article 39 Art 39: 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

What does Article 39 mean? “Article 39 states that whenever there is a problem anywhere in the world, such as the violation of Article 2(4) of the UN Charter by a State, the first thing the UNSC must do us to inform the international community formally that there is such a problem, and that the problem threatens, or has breached international peace…this is called a determination that there is a threat to the peace, breach of the peace or act of aggression” Abbas, International Law at 390

Why must the UNSC make a ‘determination’ under Art 39? It is a legal requirement – the UN can’t intervene in any country unless the UN is taking “enforcement measures” under Chapter VII Article 2(7) clearly states that the UN can’t intervene in matters that are within the domestic jurisdiction of any state (ie. Internal matters), but it CAN intervene if the UN is taking enforcement action So, to intervene, there must first be a legal determination under Art 39 The UNSC makes this determination by adopting a resolution A resolution is “a written motion adopted by a deliberative body – in this case, the UN Security Council” (Abbas, p390)

Example of a ‘determination’: Iraq, 1990 United Nations Security Council Resolution 660 (1990) on the invasion of Kuwait by Iraq: “Adopted by the SC at its 2932 nd meeting, on 2 August 1990 The SC, Alarmed by the invasion of Kuwait on 2 August 1990 by the military forces of Iraq, Determining that there exists a breach of international peace and security as regards the Iraqi invasion of Kuwait, Acting under Articles 39 and 40 of the Charter of the UN, 1.Condemns the Iraqi invasion of Kuwait…” So, here is the legal requirement – it’s a determination that there has been a breach of the peace – this gives it the legal right to intervene and to take measures to restore international peace and security

Iraq’s invasion of Kuwait When Iraq attacked Kuwait in 1990, it committed an unlawful attack Iraq was not acting in self-defence because it had not been attacked by Kuwait prior to launching its attack It was easy for the UNSC to make a determination that there had been a beach of international peace and security under Art 39

Another example: Korea, 1950 United Nations Security Council Resolution 84 on the invasion of South Korea by North Korea (1950) “The Security Council, Having determined that the armed attack on the Republic of Korea by forces from North Korea constitutes a breach of the peace…”

“Aggression” When the UNSC is making a determination under Art 39, it does not usually use the word “war” or “aggression” so as not to be judgmental In the case of Korea it called it an “armed attack” In the case of Iraq it called it an “invasion” of Kuwait and a “breach of international peace and security” This is deliberate: the reasons are that 1) there is no definition in the UN Charter of “aggression” and 2) it could make the conflict worse by using that terminology so it tries to use less judgmental wording See Abbas at pp

What happens next: Article 40 After the Art 39 determination, the UNSC must try to prevent an aggravation of the situation Article 40: the UNSC may call upon the parties to comply with provisional measures (ie temporary measures) These are designed to give the UNSC time to deliberate on its response to the crisis

Example of Art 40 provisional measures In 1990, regarding Iraq, the UNSC imposed provisional measures in the same resolution as it made its Art 39 determination In UNSC 660 (1990), the UNSC called on: – Iraq and Kuwait to take steps to resolve the situation and resolve their differences – Iraq to withdraw its troops from Kuwait

Article 41: measures not involving the use of force The UNSC “may decide on what measures not involving the use of armed force are to be employed to give effect to its decisions, and may call upon the Members of the UN to apply such measures. These may include complete or partial interruption of economic relations and or rail, sea, air, postal, telegraphic, radio and other means of communication, and the severance of diplomatic relation”

Example of Art 41 measures In 1990, Iraq did not carry out the provisional measures in resolution 660, so the UNSC went to the next stage… The UNSC imposed non-forcible measures (ie measures not involving the use of force under Art 41) The UNSC imposed economic sanctions on Iraq in SCR 661 (1990) It was another attempt to make Iraq comply with its resolutions The economic sanctions stated that all States should prevent the import into their territories or all goods originating in Kuwait or Iraq after the date of the resolution Economic sanctions = trade embargoes, aimed at preventing states from entering into or continuing economic activity with other states

Next step…Article 41 – forcible measures If the non-forcible measures under Article 41 don’t work, the next stage is forcible measures under Article 42 Article 41: “Should the SC consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea or land forces of Members of the UN”

Article 42: heavy stuff! Article 42 measures are the most serious measures that the UNSC can impose Art 42 is used only when states refuse to comply with other measures The UNSC should not rush into these types of measures Art 41 is only for situations when nothing else can be done, except the use of force, to restore international peace and security The UNSC must leave enough time for the Art 41 measures to take effect (note in 1990, Yemen and Cuba abstained from voting for resolution 661 because they argued that the UNSC had not left enough time to see of the economic sanctions against Iraq would work)

Collective security measures – the last resort Art 42 collective security measures could mean thousands of foreign troops entering the country of the offending state The UNSC can take any measures at all Even after it defeats the military capabilities of the country, it can still take follow-up measures so that it the state will not be able to do such a thing again These measures can be very humiliating and debilitating to a country They are very rarely used In the 65 year history of the UN, the SC has only once authorized measures under Art 42 – and that was against Iraq after its invasion of Kuwait

Iraq – what happened in the end? Iraq didn’t comply with resolution 660 or 661 The SC took the next step and it approved collective security measures in SCR 678 (1990) on 27 November 1990 It set a final deadline for Iraq of 15 Jan 1991 SCR 678 authorised member states, co-operating with Kuwait, to “use all necessary means” to implement its other resolutions including resolution 660 (ie to force Iraq to withdraw from Kuwait)

Military action against Iraq The military action against Iraq was therefore authorised by the UNSC In a later resolution (SCR ) the SC laid out several conditions that Iraq had to meet before the collective security measures would end The conditions included: 1.Iraq was not allowed to acquire or develop nuclear weapons (para 12) 2.Iraq had to allow the IAEA (International Atomic Energy Agency) to conduct on-site inspections in Iraq So, the “collective measures” can go beyond authorising force – they can state what type of weapons a country may have, what kind of checks will be required on that country Here, the international community decided that Iraq should never develop nuclear weapons

How did the 1991 authorisation of force lead to the 2003 war? In 2001, Iraqi leader Saddam Hussein expelled the IAEA weapons inspectors This was a breach of UNSC 687 (1991) This was called “material breach” However, the UNSC DID NOT authorise the use of force as it had done in 1990 The US and UK tried to get a new SC resolution authorising force It failed US and UK decided to use force unilaterally This was an extremely controversial decision – many say it was unlawful To read more, see Abbas

Conclusion In this slideshow we have learnt about the use of force when it is authorized by the UN Security Council There is a process which has to be followed The ultimate step is to authorise force but it is the last resort We looked at the example of Iraq invading Kuwait in August 1990 and the authorisation of “all necessary means” to make Iraq comply with the earlier resolutions

Ending our analysis of exceptions to the prohibition on the use of force States must not use force (Art 2(4) against the territorial integrity or political independence of other states States can use force: – 1. In self-defence – 2. When authorised by the UNSC If a state asks another state to help it or to use force inside its state, that is not a violation of Art 2(4)