Legal and some political limitations on the power of the UN Security Council to exercise its enforcement powers under Chapter VII of the Charter

Abstract

Since the outbreak of the Second Gulf Crisis the question of the role of the United Nations Security Council in the maintenance of peace and security within the context of the institutionalized collective security system provided for in the UN Charter, and the closely related question of the principal legal and political limitations on the exercise of its authority under Chapter VII of the Charter, have been at the forefront of attention.

On the ‘Inherent’ Character of the Right of States to Self-defence

“…But if the aggressor state rejects the ceasefire, or resumes the attack after initially complying with it, or does not withdraw its troops from territory occupied as a consequence of the armed attack, the victim state may clearly continue to defend itself, or resume to do so. 153 Similarly, according to the prevailing view, the adoption of sanctions under article 41 of the UN Charter does not automatically suspend the exercise of the right of self-defence of the attacked state. 154 In some cases, the Council's intention not to suspend the exercise of the right of self-defence in spite of its adopting measures has been clearly expressed, as in the case of Resolution 661 (1990): the Resolution reaffirmed 'the inherent right of individual and collective self-defence, in response to the armed attack by Iraq against Kuwait, in accordance with Article 51 of the Charter' , even though at the same time the UN Security Council adopted sanctions against Iraq.…”

“…155 In any case, as Iraq did not comply with that Resolution and other resolutions, the right of self-defence of Kuwait and of its allies would have not been affected even in the absence of the reaffirmation of such right in the preamble of Resolution 661 (1990). 156 When the UN Security Council imposes an arms embargo towards all belligerents in an international armed conflict, this may negatively affect the right of the attacked state to defend itself. Of course, not every arms embargo is necessarily inconsistent with article 51, otherwise the Security Council could never use this measure under article 41.…”

“…Neither can the Council prevent a State which lacks the capacity to defend itself, from receiving such assistance from third States as will enable it to defend itself or at least enhance its ability to do so. 173 An arms embargo adopted by the UN Security Council against all belligerents to prevent an aggravation of the crisis, then, will not be prima facie inconsistent with the inherent right of self-defence of the attacked state. But if the UN Security Council's measures have unequal effects and result in depriving a state of its right to defend itself without at the same time providing it with equivalent protection, such measures are superseded by the inherent right of self-defence, which is not 'impaired' by any UN Charter provision, including chapter VII or article 103.…”

Territorial Integrity in a Globalizing World

“…122 It is not a surprise that the UN Charter requires that the Security Council is also bound "to act in accordance with the purposes and principles of the United Nations." 131 See McWhinney (1992); Franck (1992, p. 86); Reisman (1993, p. 87); Macdonald (1931); Bedjaoui (1993Bedjaoui ( , 1994; Gowland-Debbas (1994, p. 88); Brownlie (1994); Gill (1995); Alvarez (1996, p. 90); Bowett (1996); Akande (1997, p. 46 132 See El Ouali (1984, pp. Indeed, it is very hard to see the relationship between the old atrocity (the bombing) and a current threat.…”

Countering Anti-Constitutional Argument: The Reasons for the European Court of Justice’s Decision inKadi and Al Barakaat

“…Even the UN Security Council's ability to act is thus limited by jus cogens. 110 Neither the CFI nor the ECJ addressed the relationship between the UN Charter or UNSC resolutions and a fundamental right that was protected under customary international law in Kadi. In sum, the two strands of the first judicial approach set out above are at work in the CFI's judgment. The ratio decidendi was not simply the perceived necessity to comply with UN law in an integrated international order.…”