Anthony Aust. Handbook of International Law

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Sequestration and impounding of assets

Resolution 778 (1992) broke new ground in requiring the taking possession (sequestration, not

confiscation) of Iraqi funds representing the proceeds of oil sales and transferring them to the United

Nations for the Compensation Commission (see below). The funds were returned to Iraq pursuant to

Resolution 1483 (2003). Resolution 820 (1993), paragraph 24, required the impounding of ships

controlled by FRY interests and their forfeiture if they were found to be violating sanctions.

Flight restrictions

Aviation sanctions were first used in Resolution 670 (1990) and required flights to Iraq to be

searched to ensure that embargoed goods were not being carried. The first comprehensive

prohibition on all flights to and from an embargoed state was in respect of Libya (Resolution 748

(1992)). The only exceptions were for significant humanitarian need, subject to the approval of the

sanctions committee. The resolution also required the closure of all offices of Libyan Arab Airlines.

Later, Resolutions 757 (1992) (FRY) and 1070 (1995) (Sudan) had comprehensive prohibitions on

flights.

Diplomatic and similar sanctions

Resolutions 748 (1992) and 883 (1993) (Libya), and Resolution 757 (1992) (FRY), required the

scaling-down of diplomatic relations. Resolution 757 (1992) also required participation by FRY

sportsmen in international events to be prevented, and the suspension of government-sponsored

scientific and cultural exchanges. Some sanctions regimes have required the refusal of visas to

certain high-level officials.

Weapons of mass destruction

Resolution 687 (1991) is unique in many ways, not least for its indefinite prohibition on the supply

to Iraq of weapons of mass destruction (chemical, biological and nuclear) and long-range missiles,

and the means to make them. A Special Commission (later replaced by UNMOVIC) and the IAEA

were given the immensely intrusive task of finding any such weapons, destroying them and ensuring

that Iraq did not acquire or manufacture them again.

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Compensation

Another innovation in Resolution 687 (1991) was the establishment of the UN Compensation

Commission with the task of compensating those foreign states, corporations and individuals who

had suffered loss or damage as a result of Iraq’s invasion of Kuwait. The funds to do this are

produced by a levy (initially 30 per cent, later reduced to 25 per cent, and now 5 per cent) on the

proceeds of the sale of oil by Iraq.

Border demarcation

Another first in Resolution 687 (1991) was the request to the UN Secretary-General to help Iraq and

Kuwait establish a commission of experts to demarcate their common border. This task was speedily

achieved.

International criminal tribunals

Having jurisdiction over war crimes and crimes against humanity, the International Criminal

Tribunal for the Former Yugoslavia (Resolution 827 (1993)) and the International Criminal Tribunal

for Rwanda (Resolution 955 (1994)) are not typical sanctions. The establishment of the tribunals

was a necessary consequential measure to help maintain international peace and security in the

region and elsewhere, as well as a warning that others who commit such crimes in the future will not

escape justice. UN Members are required to co-operate with the tribunals by handing over to them

persons suspected of such crimes, as well as evidence.

Sanctions committees

For each sanctions regime, the Council sets up a committee on which the fifteen members of the

Council each have a seat. However, the chairmanship of the committees does not rotate each month,

the post being held for a year. Also, all decisions are taken by consensus. A committee’s functions

are to monitor compliance with the relevant sanctions regime and to carry out such tasks as the

Council gives it. These will depend on the terms of each regime, but can include authorising,

expressly or tacitly, humanitarian supplies or flights. Although only the Council itself can interpret

the resolutions,

in practice the committees do so as well,

46. See UNSC Res. 833 (1993) and 1483 (2003), and p. 446 below for more details.

47. See p. 34 above for details.

48. See p. 274 below for details.

49. But see pp. 460 and 463 below regarding the role of the ICJ.

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although difficult cases may be referred to the Council when a committee cannot agree.

Termination of sanctions

Sanctions are usually terminated, wholly or partly, by another Chapter resolution. Those against

Libya were ‘suspended’ automatically on the UN Secretary-General reporting to the Council that the

two persons accused of the Lockerbie bombing had arrived in the Netherlands for trial before the

Scottish court.

There could be a similar provision for automatic termination. Since 2000, there has

been a tendency for the Council to provide that some measures will be in force for a fixed period

unless the Council decides later to extend it (see Resolution 1306 (2000) (Sierra Leone), paragraph

6, and Resolution 1330 (2000) (Iraq), paragraphs 1 and 4. However, such provisions rather defeat

the purpose of sanctions since they may encourage the sanctioned state to wait in the hope that the

members of the Council will not be able to agree to continue the measure.

Human rights

One has to be cautious of any argument to the effect that the Security Council cannot, when adopting

Chapter measures, suspend human rights expressly or by implication.

There is no reason in

principle why a measure should not suspend certain human rights, although in practice the members

of the Council would not agree to this unless they considered it to be absolutely necessary. The

members do not act unthinkingly, and within the Council there are checks and balances.

It may

well be necessary for the Council to suspend certain human rights in emergency situations. Most

human rights are not absolute and require a balancing of competing interests. Clearly, the Council

cannot validly adopt, even by the use of express words, a measure contrary to jus cogens,

such as

authorising the torture of suspected terrorists. But due process is not jus cogens and human rights

treaties permit derogations to most of their Articles.

50. See UNSC Res. 1192 (1998), para. 8. Libya having finally accepted responsibility for the crimes and

payment of compensation, sanctions were terminated by UNSC Res. 1506 (2003).

51. See, for example, E. de Wet, The Chapter Powers of the United Nations Security Council, Oxford,

2004.

52. See p. 211 above.

53. See p. 11 above.

54. Article 4 (derogation) of the International Covenant on Civil and Political Rights 1966 applies to

Article 14 (due process), and Article 15 (derogation) of the ECHR applies to Article 6 (due process), and

see p. 245 below.

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At first sight, Resolution 1373 (2001) may seem remarkable in being the first Security Council

measure under Chapter to address a global and unspecific threat to international peace and

security, all previous resolutions having been directed at a particular state, regime or group. The

need for a measure with the broad and general scope of Resolution 1373 was due to the particular

nature of international terrorism. Unlike a state that has an aggressive intent towards a neighbour

that can be detected by observing troop movements, terrorists work in small units and in great

secrecy. In most cases, there will be no warning of an attack. Because the attacks are so difficult to

detect, states have to take such preventive measures as they can. This means that, in addition to

physical security measures, the focus has to be on catching (if necessary even killing) terrorists

before they can commit attacks, or starving them of the means, physical and financial, to commit

them.

Those were the reasons behind Resolution 1373. There is no danger that the Council will be

encouraged to use its Chapter powers to pronounce on international law in the way done by

diplomatic conferences or by the General Assembly when it adopts a so-called law-making

convention.

If anything, the establishment of the ICTY and ICTR are closer to law-making in that

their Statutes confirm or assert what the Council, acting on behalf of the whole UN membership,

considers to be international crimes. But it is only for the purpose of restoring international peace

and security in a region, as well as sending a signal to those who might be tempted to commit such

crimes in the future. The adoption in 1998 of the Rome Statute of the International Criminal Court

shows that international law-making will continue to be done by the normal means.

Charter amendment

The UN Charter has been amended on only three occasions, the only significant amendment being to

Articles 23 and 27 to enlarge the Security Council from eleven to fifteen members, which came into

force in 1965. Under Article 108, an amendment comes into force for all UN Members when it has

been adopted by a vote of two-thirds of the members of the General Assembly and ratified by two-

thirds of the UN membership,

55. Paul Szasz, ‘The Security Council Starts Legislating’ (2002) AJIL 901–5, was not concerned at this

development, pointing out that earlier UNSC resolutions, such as 1265 (1999), 1291 (2000), 1296 (2000),

1314 (2000) and 1325 (2000) dealt in general terms with matters such as the protection of women and

children during armed conflicts, albeit only UNSC Res. 1291 (2000) was made under Chapter .

56. See also p. 277 below.

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including all the permanent members of the Security Council. Any talk of Security Council reform

must take this reality into account. In practice, there can be no further change to the size or

composition of the Council without a consensus that includes the five permanent members, who are

all unwilling to see any change to their status or powers. Informal discussions in an ad hoc group of

UN Members about enlargement of the Council have lasted over ten years. There appears to be

general agreement that the Council should not have more than twenty-five members. But agreement

on new permanent members (each of the states which believes that it should be a permanent member

has at least one rival within its regional group), whether any of the new permanent members should

have the veto, or whether there should be new ‘rotating members’, remains elusive.

Use of force

England is firmly resolved to employ, with all cunning and ruthlessness, the instrument of war which she

possesses in her Fleet, according to the principle ‘Might is Right’.

In recent years, the use of force by states has produced a lively, sometimes impassioned, debate in

the United Nations, parliaments, universities and the media. The law is expressed in relatively

simple terms, the problem being how it applies in particular circumstances; and humanitarian

intervention remains controversial. The debate is vigorous because much is at stake, not least the life

of possibly thousands of people, military and civilian. For any foreign ministry legal adviser, the

legality of any proposed use of force is the most important issue he or she ever has to face. The final

decision to use force rests with the executive or parliament. A state contemplating the use of force

needs to be satisfied that it would be lawful, not merely that a plausible or colourable case could be

made to justify it. International law has been developed to make it possible for states to live together

in peace and reasonable harmony. When a state decides to use force without either clear

authorisation from the Security Council or a firm basis in customary international law, and with

serious doubts being expressed by other states about its legality, it is possible that the policy itself

may be wrong.

57. See generally Oppenheim, pp. 417–27; Shaw, pp. 1013–53; T. Franck, Recourse to Force, Cambridge,

2002; C. Gray, International Law and the Use of Force, 2nd edn, Oxford, 2004.

58. Captain Siegel reporting from the First Hague Peace Conference of 1899 to Berlin on the views of

Admiral Fisher, quoted in R. Mackay, Fisher of Kilverstone, Oxford, 1973, p. 221.

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It must be emphasised that whether a particular use of force is lawful or not, all those involved in the

conflict must still comply with the law of armed conflict (see Chapter 12 below).

Prohibition on the use of force

There is now no use for declarations of war,

and none have been made since the belated Soviet

declaration of war on Japan on 9 August 1945. Tentative attempts were made after the First World

War to make the use of force by states unlawful: Article 10 of the Covenant of the League of

Nations

and the General Treaty for the Renunciation of War as an Instrument of National Policy

1928 (‘Briand–Kellogg Pact’).

This culminated in Article 2(3) of the UN Charter which requires

all disputes to be settled by peaceful means, and Article 2(4), which requires all Members to

refrain in their international relations from the threat or use of force against the territorial integrity or

political independence of any state, or in any other manner inconsistent with the Purposes of the United

Nations.

Thus, the use of force within a state to maintain or restore peace and security is lawful, provided that

it is used in a manner consistent with international human rights obligations and the law of armed

conflict. Similarly, a state may send forces to another state at its request to help restore order. (As to

the responsibility of a leader of a state for an illegal use of force, see p. 429 below.)

Security Council authorisation for the use of force

When the Council authorises the use of force (although its resolutions do not use that f-word in this

context), it is permitting states to do what otherwise might be unlawful.

Article 42 empowers the

Council to authorise states to use force when it considers that other measures ‘would be inadequate

or have proved to be inadequate’ (emphasis added). Thus the Council does not have to impose

economic sanctions, or wait to see if sanctions have been ineffective, before it authorises the use of

force. Article 42 is never expressly mentioned in resolutions, and

59. See Oppenheim’s International Law, 7th edn, London, 1952, vol. , pp. 293–300. See p. 252 below

on the terms ‘war’ and ‘armed conflict’.

60. 225 CTS 188; UKTS (1919) 4; 112 BSP 113.

61. 94 LNTS 57; UKTS (1929) 29.

62. But see p. 229 below on the liberation of Kuwait.

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Articles 43–47, concerning the availability of forces to put at the disposal of the United Nations,

have always been seen as a dead letter. Although the Council can authorise Members to use force, it

does not require them to use it. The actions listed in Article 42 are merely illustrative, force having

been authorised for various purposes.

Intervention

In Resolution 678 (1990), the Council authorised a coalition of states (so-called coalition of the

willing) to use ‘all necessary means’ to liberate Kuwait and to restore international peace and

security in the area. The same authorisation was relied upon as the legal basis for the second

intervention in Iraq by coalition forces in 2003.

On several occasions between 1992 and 1998 it

was also the legal basis for air strikes by UK and US military aircraft on Iraqi military installations

in response to breaches by Iraq of the WMD inspection regime established by Resolution 687

(1991), the Council having authorised such use of force in advance.

In Resolution 940 (1994), the

Council authorised a coalition to use ‘all necessary means’ to ‘facilitate the departure’ from Haiti of

the military leadership and the restoration of President Aristide. Sometimes the intervention may

have to be longer than originally envisaged if a serious threat to human life remains; and in the case

of Kosovo the NATO forces (KFOR) were later joined by a UN administration (UNMIK).

Interdiction

This term is used in the sense of to stop and search shipping, and has effectively replaced blockade

(see Article 42). Resolution 665 (1990) authorised states to do this in the Persian Gulf and the Red

Sea to check whether merchant ships were carrying embargoed goods to or from Iraq. For this

purpose it authorised the use of minimal force, in the coy words of the

63. See ‘The Use of Force against Iraq’ (2003) ICLQ 811; Lowe, ‘The Iraqi Crisis: What Now?’ (2003)

ICLQ 859; and ‘Agora; Future Implications of the Iraqi Conflict’ (2003) AJIL 553–642; ICLQ (2005)

767–78 (UK Attorney General’s advice).

64. See, for example, UNSC Res. 1154 (1998), which warns that further obstruction by Iraq of weapons

inspectors would be a violation of UNSC Res. 687 (1991) and would have the ‘severest consequences’ for

Iraq. Similar warnings had been made in Presidential statements in earlier years (where the term ‘material

breach’ was used), the members of the Council being well aware that ‘serious consequences’ meant

UK/US air strikes. These statements are referred to in the first preambular paragraph to UNSC Res. 1441

(2002), the resolution repeating the key formulations of the statements that failure by Iraq to co-operate

fully would constitute a further ‘material breach’ and that it would face ‘serious consequences’, see (2003)

BYIL 792–6.