Security Council Resolutions 1368 (2001) and 1373 (2001): What They Say and What They Do Not Say

Security Council Resolutions 1368 (2001) and 1373 (2001): What They Say and What They Do Not Say

3. Security Council Authorization

The issue of a Security Council-based authorization of states to take measures in self-defence has so far primarily been discussed in two cases, namely, the use of force against North Korea in 1950 and the military operation against Iraq. In the case of Korea, it was argued by some¹⁹ that the coalition led by the United States acted in the exercise of collective self-defence authorized by the Council, because the Council limited its authorization to a recommendation, leaving room for the application of Article 51 of the Charter when asking the members of the United Nations to `furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and restore international peace and security in the area'.²⁰ Others took the view that the Council delegated its powers under Chapter VII to the group of states acting under unified command, making the action an exercise of collective security rather than collective self-defence despite the recommendatory character of the findings of the Council in SC Resolutions 83 (1950) and 84 (1950).²¹ A similar debate surrounded the authorization of the use force by states against Iraq. The Council first made reference to `the inherent right of individual or collective self-defence, in response to the armed attack by Iraq on Kuwait' in its Resolution 661 (1990) and later in Resolution 678 (1990) authorized `Member States cooperating with the Government of Kuwait ... to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area', acting under Chapter VII.²² This construction, combining elements of self-defence and collective security, was again interpreted by some commentators as the exercise of collective self-defence under the authorization of the Security Council,²³ while others took the view that the military operation was enforcement action under Article 42 of the Charter.²⁴

The present case, however, seems to be slightly different from the examples of Korea and Iraq for a number of reasons. One may observe that the Council has been hesitant to make a final decision as to the applicability of Article 51 of the Charter. Moreover, it is particularly striking that the findings of the Council with respect to action by states, which could possibly be interpreted as an authorization of self-defence or the use of the force,²⁵ are not contained in the operative part of Resolution 1373 (2001), but only in its preamble, where the Council reaffirms `the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts'.²⁶ Furthermore, the Council has visibly refrained from employing the language previously used in the context of the authorization. The relevant passage of SC Resolution 84 (1950) with respect to Korea reads:

The Security Council ... 3. Recommends that all Members providing military forces and other assistance pursuant to the aforesaid Security Council Resolutions make such forces and other assistance available to a unified command under United States of America... 5. Authorizes the unified command at its discretion to use the United Nations flag in the course of operations against North Korean forces concurrently with the flags of the various nations participating.

Resolution 678 (1990) employs the terms `The Security Council ... Acting under Chapter VII of the Charter ... 2. Authorizes Member States ... to use all necessary means ...'.

SC Resolution 1373 (2001), on the contrary, contains neither an explicit recommendation, nor an authorization. The preamble to the resolution merely `reaffirms' the need to combat terrorism `by all means'.

Moreover, the passage contained in paragraph 3(c) of SC Resolution 1373 (2001), in which the Council `calls upon all States' to `cooperate, particularly through bilateral and multilateral arrangements and agreements, to prevent and suppress terrorist attacks and take action against such perpetrators of such acts',²⁷ can in the view of this author hardly be interpreted as a Council-based authorization of self-defence or the use of force.²⁸ This statement is situated in the context of measures not involving the use of force, namely, cooperation and coordination between states. This becomes even more evident if one takes a look at paragraphs 3 and 4 of SC Resolution 1269 (1999) which contain an almost identical passage, in which the Security Council `emphasizes the importance of enhanced coordination among states' and `calls upon all States to take, inter alia, in the context of such cooperation and coordination, appropriate steps to cooperate with each other, particularly through bilateral and multilateral arrangements, to prevent and suppress terrorist acts, protect their nationals and other persons against terrorist attacks and bring to justice the perpetrators of such acts'.²⁹ The corresponding passage in SC Resolution 1373 (2001) was visibly modelled on this statement. Finally, one must take into consideration that in the final paragraphs of Resolution 1373 (2001) the Council `expresses its determination to take all necessary steps in order to ensure the full implementation of this resolution, in accordance with the responsibilities under the Charter'.³⁰

Given the absence of an explicit authorization of the Security Council relating to military action in the operative part of Resolution 1373 (2001), it is also difficult to assume that the Council has delegated enforcement powers under Chapter VII to a coalition of states. Even the expression `combat by all means' used in the preamble to Resolution 1373 (2001) differs from the usual Chapter VII formula employed in the operative part of Council resolutions in this context,³¹ authorizing states³² or organs of the United Nations³³ to take `all necessary' means or measures for the implementation of Security Council resolutions.³⁴

The fact that the Security Council did not explicitly recognize the right to self-defence of the United States or authorize a group of states to use force does, of course, in no way preclude the lawfulness of US-led military action, because the exercise of self-defence is independent of a formal approval by the Council. Self-defence can be exercised under the auspices of a Security Council Resolution, but it does not necessarily require such a measure. The second sentence of Article 51 of the Charter establishes only a reporting requirement to the Security Council, which has been observed by the United States and the United Kingdom through letters sent to the President of the Security Council stating that military action against terrorists in Afghanistan was taken in accordance with the inherent right of individual and collective self-defence.³⁵ Furthermore, armed action undertaken in self-defence may be carried out, at least³⁶ as long as it is not superseded by Security Council action meant to bring an end to self-defence measures.³⁷ The Security Council has so far not adopted any measure, which would indicate its will to replace military action by other sanctions.³⁸ It is hardly possible to argue that the legal framework embodied in SC Resolution 1373 (2001) itself is designed to pre-empt measures of self-defence. The general reference to the possibility of the exercise of self-defence, contained in paragraph 4 of the Resolution, makes it entirely clear that the suspension of the right to self-defence is not the intention of the Council. On the contrary, the most plausible meaning of this reference is that it was in fact employed by the Council, in order to oppose any (mis)interpretation of Resolution 1373 (2001), regarding the determinations of the Council as incompatible with the subsequent exercise of measures of self-defence. Moreover, the fact that the Council expresses `its determination to take all necessary steps in order to ensure the full implementation' of Resolution 1373 (2001)³⁹ cannot be interpreted as contradicting this position,⁴⁰ because this passage refers only to the measures taken by the Council, which have all been non-military in nature. Paragraph 8 of Resolution 1373 (2001) cannot therefore be understood as barring the exercise of military force under Article 51 of the Charter.

Finally, similar to the situation with respect to Iraq in 1990,⁴¹ it is unlikely that a resolution suspending the exercise of the right of self-defence will be adopted in the future, because such a resolution would require the approval of the United States and the United Kingdom in their capacity as permanent members of the Security Council.

When analyzing both the content of and omissions in Resolution 1373 (2001), one might almost gain the impression that its findings are first and foremost designed to keep Article 51 of the Charter intact as a basis for military action. This was the position of the United States in the Kuwait conflict. One might assume that this attitude has also prevailed with regard to the response to the 11 September terrorist attacks, because action carried out in individual or collective self-defence allows in particular more operational independence than collective security measures.

19 See Y. Dinstein, War, Aggression and Self-Defence (1994) 274-275; and S.A. Alexandrov, Self-Defence Against the Use of Force in International Law (1996) 262.

20 See para. 6 of SC Resolution 83 (1950) of 27 June 1950; and para. 2 of the preamble to SC Resolution 84 (1950) of 7 July 1950.

21 See D. Saaroshi, The United Nations and the Development of Collective Security (1999) 171.

22 See para. 2 of SC Resolution 678 (1990).

23 See, inter alia, Dinstein, supra note 19.

24 See Frowein, `On Article 42', in B. Simma (ed.), Charter of the United Nations (1994) 634-635.

25 See in this sense Paust, `Comment: Security Council Authorization to Combat Terrorism in Afghanistan', ASIL Insight, 23 October 2001, http://www.asil.org/insights.htm.

26 See para. 5 of SC Resolution 1373 (2001) of 28 September 2001.

27 Emphasis added.

28 But see the view taken by Paust, supra note 25.

29 Emphasis added.

30 See para. 8 of the Resolution (emphasis added).

31 See also Kirgis, supra note 15.

32 See, for example, para. 2 of SC Resolution 678 (1990); and para. 4 of SC Resolution 816 (1993) of 31 March 1993.

33 See, for example, para. 5 of SC Resolution 837 (1993) of 6 June 1993, authorizing the Secretary-General to `take all necessary measures against all those responsible for the armed attacks'.

34 See also Kirgis, supra note 15.

35 See Press Statement on Terrorist Threats by Security Council President of 8 October 2001, at: http://www.un.org/News/Press/docs/2001/afg152.doc.htm.

36 It is controversial, whether the Security Council may in fact suspend the right of self-defence under Article 51 of the Charter. See Rostow, `Until What? Enforcement Action of Collective Self-Defence', 85 AJIL (1991) 507, at 510. See, in favour of such a power of the Council, for example, Randelzhofer, `On Article 51', in B. Simma (ed.), Charter of the United Nations (1994) 677, invoking the wording and the purpose of Article 51 of the Charter. See, against a suspension of the right to self-defence by a Chapter VII resolution of the Council, D.W. Bowett, Self-Defence in International Law (1958) 195-197.

37 See, in this sense, Randelzhofer, supra note 36, at 677; and Schachter, `United Nations Law in the Gulf Conflict', 85 AJIL (1991) 452, at 458.

38 In the Gulf War, there had been some discussion about pre-emption of self-defence through the adoption of economic sanctions adopted by the Council. See Schachter, supra note 37, at 459.

39 See para. 8 of Resolution 1373 (2001).

40 But see the view taken by Pellet, supra note 1.

41 See, on this issue, Schachter, supra note 37, at 459.

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