Between Unilateralism and Collective Security: Authorizations of the Use of Force by the UN Security Council

III. Conclusions

Having examined - in an admittedly rather tedious fashion - the 19 cases in which the Security Council has, one way or another, granted legal and/or political authority for military enforcement action, I come to the conclusion that a new instrument has been created out of the need to fill the gap between the invocation of an inapplicable or inopportune right to collective self-defence and the unwanted application of the system of collective security.

The extent of the use of this new instrument was at first - in the context of the Gulf conflict - limited to the traditional field of application of force, i.e. against an actual or potential aggressor. Later, it was extended, along with the expansion of `threats to the peace' as the basis for Security Council involvement,<sup>72</sup> to apply also in humanitarian emergencies (Bosnia and Herzegovina, Somalia), to enforce the implementation of sanctions aimed at reversing aggression (Former Yugoslavia), to restore a legitimate government (Haiti), to protect UN peacekeeping forces (UNPROFOR) or to `avenge' attacks on them (UNOSOM II).

Hand in hand with the rather unexpected increase in the number of such authorizations granted by the Security Council went a significant decline in their actual use. It is safe to say that after the overwhelming use made of this instrument in the Gulf, only the authority granted first to UNITAF and then to UNOSOM II in Somalia were ever applied in practice. The reasons for this will be discussed below.

Both the development of this new instrument of the Security Council and its actual (non-)application show, yet again, the impossibility of separating international law from politics, the `political contingency' of this law and the need for its dynamic understanding.⁷³

A. Legal Aspects

By way of introduction, it is interesting to note that academic discussion of the legal aspects of such authorizations is almost exclusively confined to the earlier texts dealing with the Gulf whereas the latter examples which are more numerous and in some respects even more interesting have, if at all, received only scant attention. One explanation for this may lie in simple `attention fatigue', which - like the more serious ailment `compassion fatigue' - stems from too much exposure to a problem. Another might be that such authorizations have almost become routine. However, in the wake of the recent crisis in UN operations related to these authorizations, they and their implications deserve attention.

1. Diversity Versus Clarity or: Do Words Still Matter?

A look at the 19 Resolutions under discussion here reveals complete inconsistency. The Security Council calls on States (Resolutions 665, 770, 787, 886), authorizes them (Resolutions 678, 816, 929, 940), authorizes States and the Secretary-General (Resolution 794), a PKO (836, 871), reaffirms the Secretary-General's authorization (Resolution 837), approves a mandate of a PKO comprising the use of force (Resolution 814) and renews it (Resolution 886), recognizes that the provisions of a previous authorizing resolution remain valid (Resolution 686), reaffirms the responsibility of some States (Resolution 787), decides that States may take all necessary measures (Resolution 908), decides itself to take all necessary measures (Resolution 687), underlines (Resolution 773) or underlines and reaffirms that decision (Resolution 833). Two of these resolutions were not even adopted under Chapter VII (Resolutions 665, 773); three do not contain any determination of a threat to or breach of the peace (Resolutions 665, 687, 908).

This careless if not haphazard practice leads me to conclude that recent Council action has rendered many distinctions (such as the one between decisions and recommendations of the Security Council under Chapter VII) academic. I do not recall a single discussion during the drafting of these texts about possible different legal meanings of the various terms employed. While one could argue that all delegates involved were completely ignorant of even the cruder points of traditional doctrine, the same could not plausibly be said of the Legal Advisers who, in the capitals of Council Members, were supposedly reviewing these drafts. Short of alleging indolence in addition to ignorance, the only sensible conclusion is that the opinio iuris now is that (at least such) words do not really matter.

2. Theories on the Legal Basis for Resolutions Authorizing the Use of Force

Many commentators have attempted to fit the earlier resolutions (particularly Resolution 678 but also Resolutions 665 and 687) into the Procrustean bed of the Charter. Most have, however, since given up. Space does not permit, and the purpose of this study does not demand, a detailed discussion of these attempts. A few remarks are nonetheless useful for understanding my reasoning set out further below.

(a) Article 39

Since the Security Council, after Resolution 660 where it acted under Article 39, only referred to Chapter VII as such and not to any specific article, it could be argued that the Council was making recommendations for the restoration of international peace and security.⁷⁴ However it has been argued that

if the Security Council could lawfully recommend under Article 39 that States take military action against an aggressor, this would defeat the Charter concept that the Council must either utilize or rule out economic and diplomatic sanctions first.⁷⁵

Besides, if Article 39 was chosen as the legal basis the resulting action would be enforcement action which is - at least - doubtful.

(b) Article 42 et seq.

Some argue that there are indications that the Security Council intended to rely on these articles but differ on whether control by the UN over the forces employed would be required.⁷⁶ The phrase, `under the authority of the Security Council' employed in Resolution 665 and some later texts does not, as the travaux préparatoires show, mean control by the Security Council but was rather intended as a political face-saving gesture for some NAM and China. Similarly, the reference to the Military Staff Committee in Resolution 665 and its absence in later texts is not difficult to understand⁷⁷ if one recalls the historical context. As we have seen, it was a price paid on paper to get the Soviet Union on board for Resolution 665. By the time Resolution 678 was discussed, this was no longer an issue.

In the absence of UN control (with the exception of the mandates conferred on UNPROFOR with Resolutions 836 and 871 and to UNOSOM in Resolutions 814 and 837), the lack of agreements under Article 43 and in the light of the clear intentions of the drafters, I am led to conclude that the actions undertaken cannot be subsumed under the enforcement provisions of Article 42 et seq.

The above-mentioned mandates of UNPROFOR and UNOSOM represent, however, a departure from the practice followed earlier in the Gulf (and later in Haiti). Unless one requires the fulfilment of all Chapter VII-provisions including the conclusion of Article 43 agreements and the activation of the Military Staff Committee before speaking of UN enforcement action,⁷⁸ these were the first authorizations of this kind. However, in light of the experience with UNOSOM II, they may also be the last for quite some time. Moreover, UN control of UNOSOM II existed largely only on paper.

(c) Article 48

The hypothesis that the decisions of the Security Council could be based on Article 48⁷⁹ has not received widespread support. One counter-argument was that measures were not `required' of States but only `authorized'. Furthermore, it is arguable that Article 48 cannot be regarded as free-standing but rather forms part and parcel of the enforcement provisions in Chapter VII.

(d) Article 51

Taking the right to collective self-defence as the basis⁸⁰ would solve the question of UN control over actions. There would, however, still be the issue of the proportionality of the response to the original unlawful act. The mandate in Resolution 678 `to restore peace and security in the area' can be - and has been - interpreted as transcending the proportionality-requirement of self-defence to include also `marching toward Baghdad', deposing Saddam Hussein or protecting the Kurds.⁸¹

Furthermore, the Article 51 theory can neither explain op. para. 3 of Resolution 678 (or similar provisions in other resolutions) which requested other States to assist the coalition⁸² since there is no duty of collective self-defence nor can it be stretched to include the measures undertaken in Somalia, Haiti and by UNPROFOR because either there was no aggression giving rise to request for assistance or the entity authorized was not a State but the Secretary-General or a peace-keeping operation (PKO).

3. Dissenting Opinions on the Legality of Authorizations

A small group of dissenters - the `Charter fundamentalists' - disputed the legality of Council action in the Gulf per se. They questioned the competence of the Security Council to farm out its tasks to a group of States `like a fast food-franchise'⁸³ and demanded a clear decision under Article 42 for the measures to become legal.⁸⁴

4. The Third Way: From Political Expediency to Customary Practice?

It can be argued that the Charter, `far from being a rigid set of rules to be adhered to blindly, gives the Security Council the freedom and discretion to apply Chapter VII in an manner deemed appropriate to a given situation'.⁸⁵ Like PKOs, such authorizations cannot be found in the letter of the Charter. But they responded to a need and, by substituting unilateral violence (often under the guise of self-proclaimed self-defence) with multilaterally authorized enforcement, can be regarded as being in conformity with the Charter's spirit.⁸⁶

Initially, only a handful of observers maintained that the Security Council had found a third way between sticking to the letter of the Charter and drifting into illegality:

The system has evolved a viable alternative, within the terms of the Charter, that permits the Council to authorize States to join in a police force ad hoc, instance by instance.⁸⁷

Thus, the `common law' approach, for which the most important guide is practice, has gained the upper hand over the Charter fundamentalists. Faced with the impossibility of fitting the authorizations during the Gulf conflict into a neatly numbered pigeon-hole in the Charter, it became the predominant view that the Security Council had created a new instrument and model for the future.⁸⁸

As subsequent events have shown, the Security Council has not limited such authorizations to cases of armed attacks but has granted them also in response to attacks on PKOs and to humanitarian emergencies. As their use - on paper - became more frequent and their field of application grew larger, their implementation - in practice - became both more controlled and less forceful. The reasons for this development will now be addressed.

B. Political Aspects

The early case-studies suggested the emergence of a system in which the Security Council authorizes military actions which are then placed under the effective control of a State or a group of States. The Security Council thus provided `international political cover'⁸⁹ or political authority which was desirable for reasons of both domestic and international politics. There are a number of reasons for and advantages - as well as objections - to such an arrangement.

1. The Issue of Command of and Control over the Forces Employed

As we have seen, the question of whether or not to authorize the use of force has, after Resolution 678, become less important and less controversial than the question of command and control over the forces employed. On paper, `international' control has increased since the almost unchecked authority granted in Resolution 678. In practice, however, the degree of control wrested from the US by the Secretary-General with regard to operations in the former Yugoslavia has only been `negative' in the sense that, with the help of States who had peace-keeping forces on the ground, the Secretary-General managed to make the actual use of force contingent upon his prior approval. In Somalia, the decision rested nominally with the commanders of the UN operation and the Secretary-General but was in fact largely taken by Americans. UNOSOM can thus hardly be seen as a case in which the US accepted to operate under UN command.⁹⁰

It seems only natural that States jealously guard their decision-making power out of concern for risking the lives of their troops in operations distant from home in possibly controversial interventions. Then there is the issue of the adequacy of the UN's existing machinery for controlling military operations that require considerable logistical back-up, intelligence-gathering capabilities and close coordination between fighting units who may be from different countries. These things are much more likely to be achieved through pre-existing national armed forces, alliances and military relationships than within the structures of a UN command.⁹¹ The muddle experienced in Somalia in this regard is a case in point but is only one aspect of the problems inherent in `third generation' PKOs.⁹²

Within the span of a few months, the US went from extolling the virtues of multilateralism to retreating to define its limits. After preparing a Presidential Directive for placing US troops under UN command in the summer of 1993, it is now predicted that this idea would be revived `as soon as it snows in Mogadishu'.⁹³

2. Legitimacy Versus Leadership

The `pseudo-multilateralism' of acting through the Security Council in the Gulf conflict was quickly recognized and indeed unmasked as giving unilateral decisions a multilateral sheen.⁹⁴ Decisions of the Security Council that reflected the interest of the West - or which at least seemed to at the time - were presented to the world as reflecting the desires of the international community:

The very phrase `world community' has become the euphemistic collective noun (replacing the `Free World') to give global legitimacy to actions reflecting the interests of the US and other Western powers.⁹⁵

However, the initial criticism of the way in which the Security Council was used by the US in the Gulf and later by the West in the Yugoslav conflict - the double-standard argument of Iraq yes, Israel no, Yugoslavia yes, Somalia no - became much more muted if not inaudible (apart from the expression of concern about neo-imperialism in humanitarian disguise) following the Council's involvement in Somalia.

What remained on the table were proposals to increase the acceptability of Council decisions by enhancing its `representativity' and other measures. Without re-entering this debate,<sup>96</sup> now of much less urgency, it should be noted that the General Assembly recently decided in Resolution 48/27, `bearing in mind the need to continue to enhance the efficiency of the Security Council', to set up a working group to consider, inter alia, the question of an increase in Security Council membership. The working group is not expected to reach an agreement in the near future.⁹⁷

Experience shows that the mobilization of political will and public support only works when one power takes - and maintains - the lead. A comparison between the international responses to the Gulf and the Yugoslav conflicts is quite illustrative.⁹⁸ So too is the case of Somalia where the US was unable or unwilling to stay the course.

The Secretary-General, on the other hand, neither can nor should provide such leadership. His - possibly existing - aspirations notwithstanding, he is not the head of a World Government. If leadership today is to be exercised under democratic constraints, the absence of constitutional checks and balances - comparable to, let us say, the influence of Congress on US foreign policy - on a headstrong Secretary-General once authorized to carry out military operations could prove quite detrimental. There are no provisions for impeachment nor could a mandate given by the Security Council be revoked if a Permanent Member allied with the Secretary-General on a particular issue used its veto power.

The anticipated absence of strong leadership by the US or others⁹⁹ - because of past lessons, a more narrowly defined national interest in issues before the Security Council, domestic constraints etc. - will probably lead to a more measured approach to granting authorizations through the Security Council. Authorizations without implementation soon become meaningless and devalue, over time, an instrument originally designed to inspire fear in trespassers and to provide political cover for actions: if no actions are taken, no cover is necessary.

3. Authorizations as Placebos

However, while authorizations without any meaningful follow-up may inspire only boredom and a sense of déjà-vu in some, they may in other instances still serve a useful purpose for others: multilateral gridlock avoids unwanted involvement.¹⁰⁰

The lengthy search for obliquely worded international authorizations by the Security Council can also be used as an excuse or even a pretext for national inaction - which, for whatever reason, may be the desired outcome and can consequently be explained as a necessary sacrifice on the altar of international cooperation and consensus-building.

4. Authorizations as Political Cover

As we have seen with respect to Resolutions 665 and 678, involvement of the Security Council was useful, if not instrumental, in getting the Soviet Union on board. The Council thus served as an instrument for the management and coordination of national policies. It has been suggested that the international imprimatur given to American intentions provided additional glue to a rather disparate coalition as well as an important stimulus for Congressional approval.

Later on, the changing nature of conflicts and crises - ethnic strife and violent nationalism, humanitarian emergencies and challenges to constitutional government - made the involvement of the Security Council instrumental in securing the acquiescence, if not the assent, of China and those NAM who continue to espouse (or pay at least lip-service to) the principle of non-interference in internal affairs.

For a while, it seemed that turning to the Security Council for an authorization to use force had become a foreign policy reflex, an almost Pavlovian reaction. The ease with which most of those authorizations were attained certainly also helped.

Yet, what may have been the zenith of the use of such authorizations might well also prove to be its nadir: Somalia may well have shown the limits, if not the inappropriateness, of the use of this new instrument in cases where there is no clear and compelling national interest involved or where other, non-violent forms of international engagement are available and advisable. Thus the Security Council, after long having been vegetarian, had become carnivorous, but may again go on a diet.

5. The Myth of Collective Security

While the objective criteria - universality and a legal framework - for a system of collective security have existed for quite some time now, its subjective elements such as consistent international solidarity, consensus on what is wrong, preparedness to cede executive authority to the UN, readiness `to bear any burden and pay any price' for the consequences of collective decisions - have always been lacking and are likely to continue to be so. As long as the much quoted `international community' remains an elusive phenomenon, true collective security will remain an elusive chimera as well.¹⁰¹ In addition it can be argued that collective security as a state-centric concept is not really applicable to most of the new challenges in any case since they are either not amenable to primarily military solutions¹⁰² or are issues of `justice' rather than of `stability'.¹⁰³

A dispassionate analysis of the actions of the Security Council to date reveals, therefore, apparent successes and inherent shortcomings. Barring a drastic deterioration in the international political climate, the chances are that the Council will remain a coordinating mechanism for - more narrowly defined - national interests and policies and, once a common denominator on an issue has been found, the provider of international political cover,

handing down blessings and curses on particular parties and courses of action which, like those of ancient Delphi and the medieval papacy, have power: they affect morale, for good or ill.¹⁰⁴

Put differently, the question `Who lost collective security?' is not appropriate. There was no real `window of opportunity' to realize a general system of true collective security through the Security Council as there seemed to be in the (wishful) thinking of some after the Gulf conflict:

International politics will continue as always with its mixture of peace and war, stability and instability, prosperity and poverty. Of course we live in a new world, but it is still a world of nation-states¹⁰⁵

- with their self-perceived and self-defined interests.

72 See Freudenschuß, supra note 24, passim; id., Beschlüsse des Sicherheitsrates der VN nach Kapitel VII: Anspruch und Wirklichkeit (1995, in print), passim.

73 See Simma, `Editorial', 3 EJIL (1992) No. 2, 215, 217.

74 Greenwood, supra note 11, at 168.

75 Quigley, `The US and the UN in the Persian Gulf War: New Order or Disorder?', 25 Cornell International Law Journal 1 (1992) 1, 35.

76 Greenwood, supra note 11, at 168; Klein, `Völkerrechtliche Aspekte des Golfkonflikts 1990/91', 29 Archiv des Völkerrechts (1991) 421, 428-429; Fink, `Der Konflikt zwischen dem Irak und Kuwait und die internationale Friedensordnung', 29 Archiv des Völkerrechts (1991) 452, 473.

77 As Boustany, `La guerre du Golfe et le système d'intervention armée de l'ONU', XXVIII Annuaire canadien de droit international (1990) 379, 396 would have it.

78 Weston, supra note 19, at 519.

79 Lister, `Thoughts on the Use of Military Force in the Gulf Crisis', Bunche Institute of the UN Occasional Paper No. VII (June 1991) 7; Delbrück, `Wirksameres Völkerrecht oder neues `Weltinnenrecht'? Perspektiven der Völkerrechtsentwicklung in einem sich wandelnden internationalen System', in W. Kühne, supra note 1, at 101.

80 E. Rostow, `Until What? Enforcement Action or Collective Self-defence', 85 AJIL (1991) 506; Klein, supra note 68, at 431; Schachter, `UN Law in the Gulf Conflict', 85 AJIL (1991) 452; Weckel, `Le Chapitre VII de la Charte et son application par le Conseil de Sécurité', XXXVII AFDI (1991) 165, 189; O. Schachter, International Law in Theory and Practice (1991) 403 however considers the authorization by Resolution 678 compatible with both collective self-defence under Art. 51 and `action' under Art. 42.

81 Klein, supra note 75, at 431; Raic, `The Gulf Crisis and the UN', 4 Leiden Journal of International Law (1991) 119, 132. More generally Greig, `Self-defence and the Security Council: What Does Art. 51 Require?', 40 ICLQ (1991) 366.

82 See Heinz, Philipp, Wolfrum, `Zweiter Golfkrieg: Anwendungsfall von Kapitel VII der UN-Charta', 4 Vereinte Nationen (1991) 121, 126.

83 Rotter, `Waffenruhe bewahrte die Wiener Regierung vor einer Peinlichkeit', Salzburger Nachrichten, 4 March 1991; Djena Wembou, `Réflexion sur la validité et la portée de la résolution 678 du Conseil de Sécurité', 46/4 Revue juridique et politique (1992) 438, 449.

84 Quigley, supra note 67, at 23; Rotter, `Gewalt nur zur Durchsetzung des UN-Embargos zulässig', Salzburger Nachrichten, 27 August 1990. Cf. also M. Bothe, Demokratie und Recht (1991) 2, 7, 9-10.

85 Sabec, `The Security Council Comes of Age: An Analysis of the International Legal Response to the Iraqi Invasion of Kuwait', 21/1 Georgia Journal of International and Comparative Law (1991) 63, 100.

86 See Scheffer, `Use of Force After the Cold War: Panama, Iraq and the New World Order', in L. Henkin et al. (eds), Right v. Might. International Law and the Use of Force (1991) 129.

87 Franck, Patel, `UN Police Action in Lieu of War: "The Old Order Changeth"', 85 AJIL (1991) 63, 74; Weston, supra note 19, at 522; Freudenschuß, `The Impact of the Gulf Conflict on the UN and the Security Council: Developments and Perspectives', in W. Danspeckgruber, Ch. Tripp (eds), The Kuwait Crisis, Second Liechtenstein Colloquium on European and International Affairs, 17 May 1991 (1994, in print).

88 Simma, `Does the UN Charter Provide an Adequate Legal Basis for Individual or Collective Responses to Violations of Obligations Erga Omnes?', in J. Delbrück (ed.), The Future of International Law Enforcement. New Scenarios-New Law? (1993) 125, 138-139; Greenwood, supra note 11, at 178; Brunner, `Militärische Maßnahmen nach Kapitel VII UN-Charta', 1 Neue Zeitschrift für Wehrrecht (1992) 1, 10, 14.

89 Freedman, `The Gulf War and the New World Order', 33 Survival (1991) 195, 197.

90 See Meisler, `Activist UN Leader on the Firing Line', Los Angeles Times, 9 November 1993; Berdal, `Whither UN Peacekeeping?', 281 Adelphi Paper (October 1993) 74.

91 Roberts, `The UN and International Security', 35 Survival (1993) 3, 15-19.

92 These issues are discussed in Freudenschuß, `Drei Generationen von Friedensoperationen der VN; Stand und Ausblick', Österreichisches Jahrbuch für Internationale Politik 1993 (Wien 1994) 44.

93 Atkinson, `Guns Ready, US Forces Prepare to quit Somalia', International Herald Tribune, 9 December 1993.

94 Krauthammer, `The Unipolar Moment', 70 Foreign Affairs (1990/91) 25.

95 Huntington, `The Clash of Civilizations?', 72 Foreign Affairs (1993) 22, 39. Also Arnold, `Wie reformfähig ist die UNO?', 4-5 International (1993) 37, 39.

96 For a recent summary see Freudenschuß, supra note 24, at 35-37.

97 Sucharipa-Behrmann, `The Enlargement of the UN Security Council', 47 AJPIL (1994) 1.

98 See also Bertram, Cavazza, `Needed Soon: New American Leadership Plus a New Europe', International Herald Tribune, 21 October 1992.

99 As shown above, apart from the US only France has successfully initiated Security Council authorizations for the use of force.

100 See Adelman, `Multilateral Gridlock', The Washington Times, 29 September 1993.

101 Cf. already Schaefer, `Die Rolle der VN im Rahmen der Friedenssicherung', in G. Doeker, H. Volger (eds), Die Wiederentdeckung der VN (1990) 155, 157; Statz, `Nachkriegszeit: Vereinte Nationen zwischen ziviler und militärischer Weltordnung', 4 Vereinte Nationen (1991) 129, 130-131; see also Roberts, supra note 90, at 27 and Neuhold, `Die Grundregeln der zwischenstaatlichen Beziehungen', 2 Österreichisches Handbuch des Völkerrechts (1991) Rz 1601-1603.

102 Nye, `What New World Order?', 71 Foreign Affairs (1992) 83, 90.

103 On Somalia, see Preston, `US, UN Differ on Long-term Goal in Somalia', Washington Post, 30 September 1993; generally Arend, `The UN and the New World Order', 81 Georgetown Law Journal (1993) 491, 520-524.

104 O'Brien, `Winning Votes in Sarajevo', The Times, 11 August 1992.

105 Zakaria, `Cure by Cavalry Charge is Rarely a Wise Prescription', International Herald Tribune, 27 September 1993. See also Kissinger, `Foreign Policy is About the National Interest', International Herald Tribune, 25 October 1993. For a more optimistic, evolutionary view cf. Delbrück, supra note 78, passim.

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