The Security Council

Most legal systems provide for the use of forceful sanctions or penalties against malefactors. Under the Charter of the United Nations, the Security Council may take 'enforcement action' against a state when it poses a threat to the peace, or has committed an act of aggression or breach of the peace (Art. 39 and Chapter VII UN Charter). Enforcement action is authorised by resolution of the Council and may comprise military action, as with the use of force by the UN in Korea in 1950, against Iraq in 1990/91 and as authorised (but barely used) against Indonesia over East Timor in 1999/2000; or economic sanctions, as with the trading restrictions and embargoes against South Africa in 1977 and Serbia/Montenegro in 1992; or other similar measures, be they diplomatic, political or social, such as the manda­tory severance of air links with Libya (as a result of the Lockerbie incident) in 1992 and April 1993 and the partial embargo imposed on North Korea by SC Res. 1718 (2006) following the latter's nuclear test. The Security Council may even act against non-state entities, as with SC Res. 1390 (2002) imposing financial and economic sanctions against the Al-Qaida organisation and the Taliban.

Of course, there are limitations to the exercise of this power, both political and legal. Until the end of the 'cold war' between the (then) USSR and the USA, enforce­ment action under the UN Charter was largely impossible, even if there was a ser­ious outbreak of violence as with the many Arab-Israeli wars since 1945. Obviously, the veto power still enjoyed by the five permanent members of the Security Council, whereby any one negative vote can defeat a draft resolution, was the major cause of this. Indeed, this is not all history, for the threat of a veto - and the cer­tainty of its use - has meant that the Security Council has been unable to pro­nounce on the invasions of Afghanistan, Iraq and Lebanon. However, despite these setbacks, it is apparent that the emergence of general co-operation among the five permanent members of the Security Council has led in recent times to the adoption of more 'enforcement resolutions' under Chapter VII of the Charter than at any other time in the Organisation's history and many of the sanctions regimes put in place by these Resolutions are ongoing. Moreover, Council action has encompassed many different and diverse conflicts: the straightforward Iraqi aggression against Kuwait, the breakup of the sovereign state of Yugoslavia, the civil wars in Somalia and Sudan, the alleged Libyan sponsorship of aircraft terrorism, the denial of East Timor's independence by Indonesia and conduct likely to cause the proliferation of nuclear weapons. Of course, it is to be remembered that the Security Council's powers are exercised in response to a breach of the peace, threat to the peace or act of aggression and they are not specifically intended to meet the non-fulfilment of general legal obligations. Constitutionally, the powers of the Council are designed primarily to preserve the peace rather than to enforce the law, although sometimes these can coincide, as with Iraq and Kuwait. In fact, in an armed conflict, the first

The nature of international law and the international system

task of the Security Council is to stop the fighting and not necessarily to apportion blame or act only against the guilty party. That said, it seems that the Security Council is more willing to act in support of international legal principles than ever before. However, we must not lose perspective. Ultimately, the issue turns on the political will of states and the degree of cooperation among the five permanent members. As the crisis in the former Yugoslavian territories demonstrates, the Council (i.e. its members) is not always prepared to enforce even the most funda­mental of international norms, even if the threat to international society is obvious and severe and even if the interests of the Big Five are not directly engaged. We also know that when those interests are engaged - for example, in Afghanistan, Iraq, the Falkland Isles, Tibet, Chechnya and Lebanon - the Security Council is paralysed politically and legally.

Date: 2014-12-21; view: 1162