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Ch.4 Neutrality and the UN Charter

From: Neutrality in Contemporary International Law

James Upcher

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 01 December 2020

Subject(s):
Aggression — Conduct of hostilities — UN Charter — Neutrality and non-alignment

(p. 126) Chapter 4  Neutrality and the UN Charter

In his seminal article on Grotius and international society, Hedley Bull observed that ‘[t]he doctrine of collective security really literally amounts to an elimination of the right of neutrality; everybody has a duty to participate in the collective system.’1 Following the devastation of World War II, it was envisaged that the law of war would take on a marginal cast, replaced by the UN Charter as the authoritative mechanism for the regulation of international security.2 According to Fenwick—whose sentiments were shared by other writers—it was to be hoped that the Charter would usher in an ‘advance from neutrality to collective responsibility’ so that the law of war and neutrality could be written solely ‘in the past tense.’3

According to the design of the Charter, aggression on the part of one State would be met with a community response by the Security Council.4 This approach faltered as the original scheme of the Charter was frustrated by the political deadlock of the Cold War. As the prospects for collective security waned, the view emerged that there was some scope for the co-existence of the UN Charter and the law of neutrality.

But unlike the application of the law of armed conflict to UN forces, which has received extensive academic consideration, there has been little attempt to examine the relationship between the law of neutrality and the Charter in detail.5 The purpose of this chapter is to move beyond summary analysis and to consider the ways in which the Charter, and the evolving practice of the Security Council, has affected the ability of States to exercise the rights and duties of neutrality.

(p. 127) 1.  UN Operations and the Law of Armed Conflict

a.  Arguments for the Non-Application of the Law of Armed Conflict to UN Operations

Since the early years of the UN, various arguments were advanced as to why UN military operations were not bound by the law of armed conflict.6 The most frequent arguments why UN military operations are not bound by the law of armed conflict have focused on two principal issues: (i) the equality of parties under the jus in bello; and (ii) the nature of UN enforcement action and its differences from traditional situations of international armed conflict.

i.  Legal character of UN enforcement action

One argument deployed in support of the view that the United Nations need not comply with the law of armed conflict is that the law of armed conflict was formulated to apply between States, and that the situation cannot be extended by analogy to military action undertaken under the auspices of the UN. According to George Scelle, the law of armed conflict did not need to be updated in the era of the UN Charter because ‘[w]ar and the use of an international police force were two essentially different and even diametrically opposed ideas.’7

In 1952, the Committee on the Study of Legal Problems of the United Nations, set up by the American Society of International Law, agreed with Scelle that the use of force by the UN was of a different character to the use of force by a State.8 The Committee concluded that UN forces were free to adhere to the law of armed conflict on a discretionary basis:

In the present circumstances, then, the proper answer would seem to be, for the time being, that the United Nations should not feel bound by all the laws of war, (p. 128) but should select such of the laws of war as may seem to fit its purposes … adding such others as may be needed and rejecting those which seem incompatible with its purposes.9

Others acknowledged that, although the UN Charter does not mention ‘war’ or ‘armed conflict’ in its substantive articles, the law of armed conflict was nevertheless applicable to UN military operations: the regulation of conflict could not depend on the terminology used to describe a particular type of military operation.10 The argument that UN enforcement action does not possess the character of war can no longer be regarded as decisive.11

ii.  The aggressor state and the law of armed conflict

Perhaps the most dominant argument advanced in support of the view that the law of armed conflict did not apply to the UN concerned the legal status of the enemy. Since the prohibition of the threat or use of force in Article 2(4), a State that went to war illegally was in the position of an ‘outlaw’ and could not benefit from the law of armed conflict.12 This argument was often framed in terms of the principle of ex injuria jus non oritur, according to which a State that has illegally initiated armed conflict cannot seek to obtain rights arising from the illegal situation.13

This view is defensible logically, but questionable on a number of grounds. First, the status of the maxim of ex injuria jus non oritur as a general principle of law is not established in international law.14 Secondly, the application of the principle to armed conflict was considered unrealistic given the practical difficulties of implementing the Charter provisions on the use of force.15 The discretionary concept of war therefore proved to be unworkable. Bowett noted as early as 1964 that ‘it would appear to be as yet unaccepted that United Nations Forces, absent other legal considerations, are released from the control of the law of war because of the legal status of its opponent.’16

(p. 129) b.  Basis for the Application of the Law of Armed Conflict to UN Operations

The arguments advanced for the non-application of the law of armed conflict to UN operations are unconvincing, and practice now confirms that the law of armed conflict applies to UN military operations.17

In cases where Member States undertake enforcement action authorized by the UN Security Council but under national command and control, the situation is clear: those forces are bound by the law of armed conflict, as States parties to the relevant treaties have an obligation to ensure that their nationals are in compliance with the obligations contained in those treaties.

The situation is more difficult when the UN itself has command and control over enforcement action. The UN is not a party to the Hague Conventions of 1907 or the Geneva Conventions of 1949.18 However, as the International Court of Justice stated in its Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations, the UN ‘is a subject of international law and capable of possessing international rights and duties.’19 Hence the customary international law of armed conflict will apply to forces under UN command and control. The UN has itself repeatedly acknowledged that UN forces are to comply with the ‘principles and spirit’ of the law of armed conflict.20 In 1999, the UN Secretary-General issued a bulletin which acknowledged that the fundamental ‘rules and principles’ of international humanitarian law are applicable to UN forces in situations of armed conflict.21

2.  The UN Charter and the Law of Neutrality

While it is accepted that the law of armed conflict applies to UN forces engaged in UN peace operations, there are certain areas in which the inequality or imbalance between the UN and a State against which it is taking Chapter VII action has legal effect. This inequality extends to international responsibility for the consequences (p. 130) of the unlawful use of force: following its 1990 invasion and occupation of Kuwait, Iraq was held liable for damage and loss arising from its unlawful use of force.22 Another area in which the inequality between an aggressor and the UN is apparent is with regard to the law of occupation: there exist numerous instances in which the law of occupation, although in theory applicable to UN forces in a particular factual situation, has not been applied by UN forces.23 It is arguably with regard to the law of neutrality, however, that there exists significant room for a differential application between the UN and an aggressor.24

The arguments advanced against the application of the law of armed conflict to the UN were similarly asserted with regard to the law of neutrality. It was generally perceived that the UN Charter had effected a profound modification of the rights and duties of neutral States, if it had not eliminated it entirely.25 Arguments for the non-application of the law of neutrality to UN operations focus principally on the radical incommensurability between elements of the law of neutrality and the UN Charter itself.26

a.  The Duty of Assistance to the UN

While the UN Charter does not contain any provision that prevents, in theory, compliance with the law of armed conflict, there are certain provisions of the Charter that appear to prevent a Member State adhering to the duties of neutrality by imposing certain obligations of co-operation.

The second limb of Article 2(5)—the duty not to assist a State against which the Security Council is taking enforcement action—would appear to be established in customary international law as a corollary of the prohibition of the use of force.27 The first part of Article 2(5) of the Charter is potentially more radical; it provides that:

(p. 131)

All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter…28

The insertion of a positive duty to assist the UN marked an advance upon the Covenant of the League of Nations. An obligation to give the UN ‘every assistance’ in ‘any action’, when interpreted strictly, indicates an intention to prevent States from having reference to the law of neutrality at all. For example, if ‘every assistance’ is to include the provision of military forces for participation in armed conflict, as well as logistical assistance on a massive scale, Article 2(5) would appear to impose an obligation of partiality towards the UN in every circumstance; a State would be prevented not only from discharging its duties of neutrality, but may lose the status of a neutral State altogether.29

There is some evidence that this intention was behind the drafting of Article 2(5). Originally, Article 2(5) was drafted as two principles in the Dumbarton Oaks proposals.30 The Norwegian delegate to the San Francisco Conference argued that the obligation of assistance contained in Article 2(5) required participation in collective action by the United Nations.31 The French delegation suggested an addition to what would become Article 2(5): ‘sans qu’un état puisse, pour s’y soustraire, invoquer un statut de neutralité.’32 In referring to ‘un statut de neutralité’ the French delegation was referring to a status of permanent neutrality.33 The amendment was eventually discarded because it was thought clear, from its terms, that permanent neutrality was incompatible with Article 2(5).34

The phrase ‘any action’, although on its face suggesting wide applicability, appears primarily to refer to enforcement action under Chapter VII.35 Case law suggests a more restricted approach, however. The International Court of Justice has taken the view that the use of the phrase ‘action’ in Article 11(2) of the UN Charter refers to coercive or enforcement action pursuant to Chapter VII.36 It is submitted that a similar meaning is to be given to the phrase ‘any action’ in Article 2(5), as a broader interpretation would blur the careful distinction between (p. 132) recommendations and binding obligations under Chapter VII and upset the structure of the Charter.37

It remains to be established what is meant by ‘assistance.’ Early interpretations of this phrase clearly contemplated military assistance. The US Law of Naval Warfare Manual issued in 1955 noted that, pursuant to Article 2(5), ‘the members of the United Nations may be obliged to give assistance with their armed forces to the United Nations in its enforcement actions, the fulfilment of which obligation is incompatible with the status of neutrality.’38 In 1955, it may still have been envisaged that the agreements under Article 43, placing national contingents at the disposal of the UN, would eventually come into existence. As is well known, however, no such agreements have been formulated, and there is no obligation to furnish military assistance to the UN in their absence.39 Hence the conclusion must be that Article 2(5) could not impose upon Member States an obligation to provide military assistance.40 Indeed, reference to the intentions of the drafters appears to indicate that States are under no obligation to give further assistance than is required from them on the basis of Articles 41 and 42.41

b.  The UN and the Duty of Non-Assistance to an Aggressor

Pursuant to the second limb of Article 2(5), the UN Charter also imposes a duty of non-assistance on Member States, by requiring Member States to prohibit assistance to States against which the United Nations is taking preventive or enforcement action. Here the duty explicitly refers to action under Chapter VII.42

Like the first limb of Article 2(5), the obligation not to assist a State that is the object of Chapter VII action may override certain duties a State would otherwise have under the law of neutrality. For example, under Article 9 of Hague Convention XIII, a neutral State must not discriminate between belligerents in regard to admission into its ports, roadsteads, or territorial waters.43 If admission into ports and territorial waters is regarded as ‘assistance’ however, then pursuant to Article 2(5) a neutral State would be required to discriminate between (p. 133) belligerents and to refuse admission to a State that is the object of preventive or enforcement action.44

c.  The Duty to Implement Security Council Measures

Upon the Security Council making a determination under Article 39 and proceeding to measures under Articles 41 and 42, members of the Security Council are compelled to carry out those measures: Article 25 provides that UN members ‘agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.’45 In contrast to a bilateral relationship between a violating and injured State, which creates only a right in the injured State to take action in response, there exists a direct relationship between Member States and the UN, and a duty to implement those measures if they are taken in accordance with Article 25.46

This necessarily means that the Charter will take priority over other international obligations. Article 103 provides that:

In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.47

Article 103 has been described as the ‘basic law’ for the international community.48 It operates to ensure that obligations under the Charter are given priority over other international obligations when a situation of conflict between legal norms emerges.49

There exists some uncertainty, however, as to whether Article 103 prevails over both treaty and custom.50 The drafting history indicates that this issue (p. 134) was not specifically considered.51 On its face, Article 103 speaks only of ‘obligations under any other international agreement’ and the strict position must be that Article 103 does not affect customary law obligations.52 It has nevertheless been suggested that the object and purpose of the Charter demands its prevalence by analogy over customary obligations as well as treaties.53 This now seems to be the dominant view, which is supported by the principle of lex posterior derogat lex priori.54 In R (Al-Jedda) v Secretary of State for Defence, it was emphasized by Lord Bingham that the term ‘obligations’ in Article 103 should not be given a ‘narrow, contract-based meaning.’55 This view is also supported by the practice of the Security Council, which has been premised on the understanding that its resolutions prevail over conflicting customary obligations.56 Thus if the law of neutrality and the obligations of the Charter may be said to conflict, the Charter obligations pursuant to Article 103 will prevail over the law of neutrality. To what extent two particular norms are in conflict is an issue that may be difficult to discern.57 Pauwelyn has noted that a relationship of conflict exists between two norms of international law if one norm constitutes, has led to, or may lead to, a breach of the other.58 Article 103 also has the effect of precluding wrongfulness in the law of responsibility.59

States have occasionally been drawn on the effects of the UN Charter on adherence to the Hague Conventions on neutrality. In 1955, in response to an enquiry by The Netherlands, the Soviet Union stated that the Charter took priority over the Hague Conventions:

(p. 135)

The Government of the USSR recognises the Hague conventions and declarations of 1899 and 1907 ratified by Russia, of course only in so far as these conventions and declarations do not run counter to the Charter of the UNO…60

The Security Council rarely invokes the specific articles imposing obligations of implementation. One example when it did so was in relation to the impositions of sanctions on Iraq in 1990. Security Council Resolution 661 imposed a comprehensive embargo on Iraq.61 Following lack of compliance with Resolution 661 by certain States which asserted their right to continue to trade with Iraq, Security Council Resolution 670 noted that the Council was ‘determined also to ensure respect for its decisions and the provisions of Articles 25 and 48 of the Charter of the United Nations,’ and ‘recall[ed] the provisions of Article 103 of the Charter.’62 Resolution 670 therefore emphasized that the obligations of the Charter prevailed over any obligations stemming from the law of neutrality.

Therefore conflicting obligations cannot be invoked in order to exempt a State from compliance with Security Council resolutions. Nor can other factors, such as economic necessity or force majeure, be relied upon as a basis for exemption.63 This is so even though the economic impact of sanctions on third States may be severe. It is only the Security Council itself that has the power to exempt States from binding measures, under Article 48(1) of the Charter.64 Pursuant to Article 50, a State may have recourse to the Security Council if confronted by special economic problems.65

The considerable scope of these obligations to implement the decisions of the Security Council, therefore, suggests a profound modification of the law of neutrality in circumstances when the Security Council takes action under Chapter VII. It is therefore necessary to examine in greater detail Chapter VII of the Charter and how it relates to the law of neutrality. In doing so it is necessary to distinguish between, on the one hand, the application of non-forcible measures by the UN Security Council and, on the other hand, UN military operations.

(p. 136) 3.  The Law of Neutrality and UN Non-Forcible Measures

Chapter VII of the UN Charter distinguishes between non-forcible measures decided by the UN Security Council under Articles 40 and 41, and forcible measures under Article 42.

a.  Determination Under Article 39 of the UN Charter

Under Chapter VII of the Charter, the Security Council is directed to determine the existence of any threat to the peace, breach of the peace, or act of aggression under Article 39 and to decide on any enforcement measures.66 There is deliberate room for flexibility in the interpretation of what constitutes a ‘threat to the peace’, a ‘breach of the peace’ or an ‘act of aggression.’67 These concepts are not defined anywhere in the Charter. Indeed, throughout the past two decades the scope of what is considered to constitute ‘threats to international peace and security’ has undoubtedly broadened.68 Although the Council’s discretion is broad, it is limited in certain respects.69 In practice, the Council has most commonly found a ‘threat’ to international peace and security under Article 39.

Upon a finding under Article 39, the Security Council is empowered to proceed to enforcement action. Before it proceeds to measures under Article 41 and Article 42, however, the Council may, under Article 40, ‘call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable.’70

The language of Article 39 suggests that a determination of a threat to the peace, breach of the peace, or act of aggression must be made before the Security Council can decide on further action under Chapter VII. However, in practice the Security Council does not always make a determination under Article 39 before proceeding to enforcement action under Articles 41 or 42. Sometimes this is because the Council has passed multiple resolutions on the same topic, and so rather than reaffirming that a situation amounts to a threat to international peace and security it merely refers to a previous resolution.71

The Security Council has occasionally initiated action under Chapter VII without reference to Article 39 at all. Security Council Resolution 1160 imposed (p. 137) sanctions against the Federal Republic of Yugoslavia, without explicitly noting the existence of a threat or breach of international peace and security, or an act of aggression. Instead, Resolution 1160 stated merely that it was acting under Chapter VII of the Charter.72 Certain States registered objections. The Russian Federation stated that the resolution indicated that the situation in the region did not amount to a threat to international peace and security.73 Egypt raised concerns about the constitutional basis of the resolution. It argued that the ‘constitutional requirements of the Charter should in general be scrupulously followed and respected.’74 The Federal Republic of Yugoslavia also argued that the resolution was constitutionally problematic.75 The position of the UK appeared to be that the action under Chapter VII constituted an implicit determination of a threat to international peace and security. It noted in the Security Council that ‘…by acting under Chapter VII of the Charter, the Council considers that the situation in Kosovo constitutes a threat to international peace and security in the Balkans region.’76 The US agreed that the situation implicitly constituted a threat to international peace and security.77 The Security Council determined in a later resolution that the situation in Kosovo constituted a threat to international peace and security in the region.78

Nor do Security Council resolutions always—or even often—refer explicitly to Articles 41 or 42 in deciding upon measures to be taken. More commonly, Security Council resolutions refer ‘globally’ to Chapter VII and specify measures to be implemented without grounding them in specific articles of the Charter.79

It becomes necessary to determine what effect this procedure has on the law of neutrality. It has been contended that the obligations contained in Articles 2(5), 25, and 103 arise as soon as a determination is made under Article 39.80 However, it is not clear that this is the case if the Security Council does not proceed further through Chapter VII. The Security Council may, in a particular instance, make a determination of a threat to international peace and security and then take no further action. At the outset of the hostilities between the United Kingdom and Argentina over the Falkland Islands, Security Council Resolution 502 determined—somewhat obliquely—that the situation constituted a breach of the peace.81 It went on to demand an immediate cessation of hostilities, as well as the (p. 138) withdrawal of all Argentine forces from the Islands.82 Although it was not indicated explicitly, the Council appeared to be acting under Article 40. The Council did not proceed to take action under Articles 41 or 42.

Since Resolution 502 did not decide on enforcement action, the duty to assist the UN contained in the first limb of Article 2(5) did not explicitly apply. To the extent that the Security Council called for the withdrawal of Argentine forces, it could be argued that the second limb of Article 2(5) was applicable, as that limb has been interpreted as applying to preventive as well as enforcement action.83 It may be suggested, therefore, that Resolution 502 modified the application of the law of neutrality, as States were prevented from giving ‘assistance’ to Argentina. The resolution prompted a number of States to depart from a position of neutrality and actively to assist the United Kingdom. The United States, for example, did not actively participate on the side of the United Kingdom, but nor did they comply with neutral duties. It provided significant levels of military aid to the UK, while suspending military aid and loan guarantees to Argentina.84 Australia banned all imports from Argentina.85 The European Community adopted sanctions against Argentina.86

Similarly, following Security Council 660, which explicitly invoked Article 40 after determining a breach of international peace and security in relation to Iraq’s invasion of Kuwait, and proceeded both to condemn Iraq’s invasion as well as demand its immediate withdrawal from Kuwait, States were prevented, under Article 2(5) of the Charter, from furnishing assistance to Iraq.87

As a matter of Charter law, a determination under Article 39 as well as identification of the State responsible for the breach or threat to the peace or act of aggression permits States to depart from the law of neutrality in favour of the United Nations.88 At a minimum, however, identification of the State responsible for the determination under Article 39, as occurred in the Falkland Island crisis and the Kuwait crisis, will be necessary to modify the application of neutrality in favour of the United Nations. Absent a determination under Article 39 that identifies the responsible State, or further Security Council action under Articles 40 or 41, there exists no obligation on a State to modify the application of neutrality.

In practice, it is often difficult to separate a determination under Article 39 from the specific measures taken under Articles 41 or 42. The principal distinction of relevance for analysing the Charter’s relationship with the law (p. 139) of neutrality, therefore, will be the nature of the measures decided under Chapter VII.

b.  The Law of Neutrality and Article 41 of the UN Charter

Article 41 of the Charter provides that:

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.89

It has been noted that the inclusive terms of Article 41 give the Security Council great flexibility in determining appropriate measures to be applied in response to a threat to international peace and security.90

Not all measures contemplated under Article 41 are necessarily inconsistent with the law of neutrality. For example, diplomatic relations could be severed between a neutral and a belligerent State without a violation of neutrality.91 If economic sanctions are imposed by the Security Council on a target State that is a party to an international armed conflict, however, the obligations of the Charter are in conflict with the duties that flow from the status of neutrality. Therefore, upon a decision by the Security Council to impose sanctions under Article 41, the legal obligations contained in Article 2(5), Article 25, and Article 103 apply to the exclusion of the duties of the law of neutrality.

This does not mean that the status of neutrality is extinguished for those States that wish to have recourse to it; the imposition of sanctions does not entail participation in an armed conflict. However, it does mean that neutral States are required to deviate from their duties to the extent required by the decision of the Security Council. Hence neutrality continues to subsist but may not be applied equally between the belligerents; the neutral State is required to discriminate between the two.

However, for the law of neutrality to be engaged, and for it to be displaced under Article 41, there must exist an international armed conflict. Two principal scenarios may be envisaged. The first is when the Security Council imposes sanctions on a State engaged in an international armed conflict. The second is when (p. 140) an international armed conflict does not exist when sanctions are imposed and those sanctions continue after an international armed conflict breaks out involving the State that is the target of measures under Article 41.

An example of the first kind is provided by the Kuwait crisis in 1990–1991. Security Council Resolution 661 was decided under Chapter VII and addressed to ‘all States.’92 Resolution 661 called on States to prevent, inter alia, ‘the sale or supply by their nationals or from their territories or using their flag vessels’ weapons or military equipment.93 Following this resolution there existed a direct conflict between the obligations of Member States under the Charter, on the one hand, and the duties of neutrality, on the other. The obligation to comply with Resolution 661 prevailed over the law of neutrality, by virtue of Articles 25 and 103 of the Charter. The target State could not seek to take countermeasures against neutral States for violating duties of neutrality.94

An example of the second type is provided by the international armed conflict between Afghanistan and coalition States in 2001. Security Council Resolution 1373, imposing various measures on States to prevent support for terrorism, apparently taken under Article 41, prevented States from applying the law of neutrality equally between the coalition and Afghanistan after the beginning of Operation Enduring Freedom.95

In practice, almost all the Security Council’s decisions under Article 41 have been addressed to ‘all States,’ not only Member States.96 Resolution 661, for example, was addressed to all States, ‘including States non-members of the United Nations.’97 The relationship between the Charter and non-members in the context of neutrality has been discussed elsewhere.98 Now that almost every State is a member of the UN, the issue is of only minor academic interest.99 Switzerland refused to comply with the Article 41 measures imposed on Southern Rhodesia in 1966.100 However, Resolution 232 was addressed only to Member States, not ‘all States.’101 During the Kuwait crisis, Switzerland, a permanently neutral State (p. 141) and not a member of the UN at the time, agreed voluntarily to participate in the sanctions. In 1993, Switzerland noted that:

By refusing to join in economic sanctions, Switzerland would end up providing moral and de facto support to the country that has broken the law, thwarting measures seeking to impose an economic blockade on that country, and deriving economic benefits from its position while every other country is burdened by participating in the boycott. Such non-participation would obviously be viewed by the international community as favouring the country against which the sanctions have been ordered, and would be very detrimental to Switzerland’s image throughout the world.102

4.  The Nature and Framework of UN Military Operations

The taxonomy of UN military operations is a complicated task. For purposes of examining how UN military operations interact with the law of neutrality, this taxonomy is of secondary importance to the question of when the UN itself becomes a party to an international armed conflict. As with determining when the law of armed conflict becomes applicable to UN military operations, the crucial question is not the authority under the Charter to engage in particular action, but the fact of participation by UN military operations in international armed conflict.103

It remains necessary, however, to consider the original design of Chapter VII with regard to military enforcement, before outlining how military enforcement has tended to operate in practice, through authorizations to individual States, groups of States, or regional organizations. This is not the only way in which a UN force may become a party to an international armed conflict. It is therefore necessary also to consider what is known variously as ‘robust’ or ‘extended’ peacekeeping operations.

a.  The Original Concept of Military Sanctions under the UN Charter

To what extent the UN Charter establishes a system of collective security is a matter of contention.104 What seems clear, however, is that there was no room for (p. 142) States to remain neutral when the Security Council decided on the use of force.105 Under the original plan of Chapter VII, Article 43 was of seminal importance. Article 43(1) states that:

All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.106

The special agreements were to be negotiated ‘as soon as possible’ upon the initiative of the Security Council.107 Under Article 45, in order to enable the United Nations to take urgent military measures, ‘Members shall hold immediately available national air-force contingents for combined international enforcement action.’108

Under the original scheme of Chapter VII Member States would not have been able to have recourse to the status of neutrality. As Judge Ammoun noted in the ICJ’s advisory opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa):

If the provisions of the Charter concerning collective security could have been implemented according to the letter and in the spirit of the San Francisco Conference, there would have been no place for neutrality, at least among States Members of the United Nations.109

This continues to be the analysis followed by military manuals, which state that the status of neutrality is lost if military action is ever taken pursuant to Article 43 and Article 42 as originally contemplated.110

As is well known, the agreements that were to be concluded under Article 43 have never materialized, despite hopes that the end of the Cold War could have led to the signing of such agreements.111 Article 43 itself has been described as a ‘dead letter.’112 In the absence of Article 43 agreements, there is no obligation on Member States to participate in UN military operations.113

(p. 143) b.  Authorizations to use military force

Although Chapter VII could not be implemented in the way originally envisaged, the system was sufficiently adaptable to permit the Security Council to take forcible measures in ways not originally contemplated. In its advisory opinion on Certain Expenses of the United Nations the ICJ indicated this flexibility:

[A]n argument which insists that all measures taken for the maintenance of international peace and security must be financed through agreements concluded under Article 43, would seem to exclude the possibility that the Security Council might act under some other Article of the Charter. The Court cannot accept so limited a view of the powers of the Security Council under the Charter. It cannot be said that the Charter has left the Security Council impotent in the face of an emergency situation when agreements under Article 43 have not been concluded.114

Subsequent practice confirms that the absence of agreements under Article 43 is not a barrier to enforcement action taken under Article 42.115 As Frowein has pointed out, action under Article 42 was frequently interpreted as limited to direct action with forces made available to the Security Council under Article 43, but this is not the only possible interpretation of Article 42.116 According to Article 42 actions may include demonstrations, blockades, and other operations by air, sea, or land forces ‘of members’ of the United Nations. There is no reference to Article 43.117 However, one aspect of the relationship between Articles 42 and 43 is that the Security Council cannot oblige Member States to place armed forces at its disposal without agreements according to Article 43.118

The Security Council may not, therefore, compel participation by Member States, which has important consequences for the application of the law of neutrality.

In response to the failure of Chapter VII to function as envisaged, the Security Council has adapted by authorizing military enforcement measures passed under (p. 144) Chapter VII. The classic form of such resolutions is Security Council Resolution 678, which ‘authorise[d] Member States co-operating 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.’119 Since this formula was first used against Iraq, the practice of authorizations has been widely used by the Security Council. This practice has been criticized for its putative concessions to unilateralism and national interest, and for providing States with broad, open-ended mandates subject to little oversight.120 Others have suggested that the delegation of enforcement to certain States tempers the more Panglossian elements of the Charter, and acknowledges that not every State will seek to be involved in every UN action.121

As Sarooshi has argued, although the Security Council has, since 1990, used the language of ‘authorizing’ certain measures, it may be more accurate to refer to the grant of power as a ‘delegation’: whereas an authorization denotes the conferral of limited authority to undertake a particular, circumscribed function, a delegation indicates a broader and more open-ended grant of power.122 In conformity with the Security Council’s own terminology, however, the term ‘authorization’ will be used here.

Of course, ‘authorizations’ under the Charter encompass a wide spectrum of activity and do not always sanction the use of military force. When military force is contemplated, the Security Council typically has recourse to euphemisms such as ‘all necessary means’123 or ‘all necessary measures’124

The basis for such authorizations to use force has been disputed. During the debate on Security Council Resolution 678, for example, Yemen protested that the resolution did not identify any specific article in Chapter VII.125 Cuba protested that the resolution was ‘in total disregard of the procedures established by the Charter.’126 A number of writers also disputed the legality of the resolution and argued that the use of force was based in collective self-defence under Article 51.127 However, there now exists little doubt that Resolution 678 authorized enforcement action under Chapter VII. Coalition troops pointed to Resolution 678 as their authority for undertaking the action; and the Resolution itself, in (p. 145) referring to the restoration of international peace and security, would sit uncomfortably in a Resolution based upon the right of self-defence.128

The lack of UN oversight and limits imposed on the States authorized under Resolution 678 has caused disquiet; but the power of the Security Council to engage in such authorization of force is widely recognized. There is some dispute over where in the UN Charter such a power is to be found. One suggestion is that such competence stems from the UN’s inherent power to authorize the use of force as well as a flexible approach to the UN Charter.129 The most persuasive argument, however, locates the Security Council’s ability to authorize enforcement action in principles of international institutional law, as well as based in the subsequent practice of UN organs.130

The ability of the Security Council to authorize the use of force under Chapter VII is now broadly accepted. In the ‘Supplement to An Agenda for Peace’, UN Secretary-General Boutros Boutros-Ghali acknowledged that neither the Security Council nor the Secretary-General had the capacity to ‘deploy, direct, command and control’ enforcement actions.131 The ‘Brahimi Report’ on United Nations Peace Operations of 2000 went further, noting that ‘The panel recognises that the UN does not wage war. Where enforcement action is required it has consistently been entrusted to coalitions of willing States, with the authorisation of the Security Council, acting under Chapter VII of the Charter.’132

c.  Extended’ Peacekeeping

During the Cold War, peacekeeping emerged out of the failure of the Security Council’s Chapter VII enforcement powers. The concept of peacekeeping was a legal innovation, and the constitutional basis for it in the Charter remains a point of academic contention, if largely without practical significance.133

Although governed by consent with the host State, the nature of peacekeeping has always been accompanied by the risk that a peacekeeping force could become involved in hostilities. This was evident as early as the 1960s, when the (p. 146) peacekeeping mission in the Congo, ONUC, became increasingly embroiled in the aftermath of independence.134 Security Council Resolution 161 authorized ONUC to take ‘all appropriate measures to prevent the occurrence of civil war in the Congo … including the use of force, if necessary, in the last resort.’135 The nature of peacekeeping took on an increasingly robust cast during the 1990s, and the controversies that arose over the extension of ONUC’s mandate were to be raised anew with regard to peacekeeping operations in Somalia and Yugoslavia during the 1990s.136

The difference between peacekeeping and peace enforcement is emphasized in peacekeeping doctrine. The difference is commonly explained as a difference between minimal uses of force at a tactical level in self-defence (for peacekeeping), and the use of force at a strategic and international level, authorized under Charter VII of the Charter (in peace enforcement).137

Reality does not always adhere to these distinctions. Numerous peacekeeping operations since 1990 appear to operate in a ‘grey zone’ that renders indistinct the concepts of impartiality and partiality.138 Thus the UN’s peacekeeping operation in Yugoslavia, UNPROFOR, was set up as a traditional peacekeeping force to manage the cease-fire, even though the cease-fire was at the time tenuous and unstable.139 UNPROFOR’s mandate, however, gradually expanded, and from February 1993, the Security Council began to refer to Chapter VII operations in its resolutions on UNPROFOR.140 The practice of the Security Council throughout the 1990s of enlarging the mandate of what initially began as peacekeeping operations means that a clear line between peacekeeping and enforcement cannot always be drawn.

It should also be emphasized that the law of armed conflict does not track the structure of the Charter. The law of armed conflict is not applicable solely in circumstances where the Security Council has authorized the use of force under Chapter VII. It is entirely conceivable that a peacekeeping force established with the consent of the host State could become involved in armed conflict through the use of force in self-defence.

(p. 147) It has been suggested, for example, that clashes between UNPROFOR and Bosnian Serb forces became increasingly intense throughout 1993 and 1994, and that an international armed conflict in the sense of common Article 2 of the Geneva Conventions existed by the summer of 1994.141 In theory, the UN acknowledges that its forces will observe the ‘principles and spirit’ of international humanitarian law in enforcement action and in peacekeeping when force used in self-defence rises to the level of armed conflict.142 However, the application of the law of armed conflict to UN peace operations has frequently been denied.143

Practice demonstrates that a high threshold must be reached before UN forces will be regarded as involved in an international armed conflict. The 1994 Convention on the Safety of United Nations and Associated Personnel provides that personnel on UN operations may not be the object of attack, but excludes from protection those forces engaged in enforcement action under Chapter VII.144 If attacks against peacekeepers, even against those engaged in using force in self-defence, are prohibited under the Convention, it would seem that a high threshold must be crossed before the law of armed conflict is viewed as applicable.145 There has been an extreme reluctance, by both States and the UN itself, to acknowledge that UN forces involved in extended or robust peacekeeping are to be regarded as parties to an armed conflict.146 Given this reality, it would appear unlikely that participation in peacekeeping will raise substantive issues concerning the law of neutrality. In practical terms, it is most probable that issues of neutrality will arise in military enforcement action.

5.  UN Military Operations and the Law of Neutrality

a.  Military Participation in UN Enforcement Actions

The application of the law of neutrality to enforcement action authorized under Chapter VII on a significant scale and directed against a State, like the actions against Korea in 1950 and Iraq in 1990, raises a number of issues.

(p. 148) Attempts have been made to deny the application of neutrality to such enforcement action. These arguments rely primarily on the contention that such enforcement action is not equivalent to interstate ‘war’ and therefore does not trigger the law of neutrality.147 It is true that the Security Council action in Korea generated considerable debate as to whether that conflict could be considered to be ‘war.’148 Certain States explicitly denied the existence of a state of war.149 The Kuwait crisis in 1990 again led to denials by some States that a state of war existed.150 In some cases, however, denial of the characterization of the conflict as a ‘war’ appeared to be for domestic consumption, and was not a considered statement on the matter for purposes of international law.151 The relevant question was whether an international armed conflict existed between the UN-authorized force and the target State: the label attached to the UN-authorized forces was irrelevant.152 As Bowett noted, the analogy between UN action and police action is unrealistic from the point of view of the application of the law of armed conflict:

This competence possessed by a United Nations Force to engage, to the extent determined by its mandate, in international armed conflict may be considered equivalent to ‘belligerency’…Thus ‘enforcement action’ as conceived in Chapter VII necessarily comprehends the assumption of belligerent status by the Forces of the United Nations charged with the responsibility of restoring or maintaining international peace.153

There is no reason of principle why a different approach should be taken with regard to the law of neutrality.

In these types of enforcement action, it seems clear that the status of neutrality is not extinguished for States that wish to have recourse to it.154 In the absence of Article 43 agreements, there is no obligation to take part in military action authorized by the Security Council. As Oscar Schachter has noted, there is an important distinction between obligations and authorizations in the UN system.155 In ordinary speech, to ‘authorize’ means ‘to permit or allow or licence, not to require or oblige.’156 In contrast to decisions issued under the Charter—for (p. 149) example, measures taken under Article 41 – authorizations do not compel States to adopt a certain course of action but merely give them the power to do so.157 In this respect, the practice of the Security Council in authorizing States to use force bears some similarities to the era of the League of Nations, and the League Council’s recommendatory functions.158

i.  Enforcement action in Korea (1950)

The early practice of the Security Council concerning the UN action in Korea confirms this.159 Upon the invasion by North Korea of South Korea on 24 June 1950, the Security Council first determined that North Korea’s actions constituted a ‘breach of the peace,’ and ‘called upon’ all Members to ‘render every assistance to the United Nations in the execution of this resolution and to refrain from giving assistance to the North Korean authorities.’160 Security Council Resolution 83 of 27 June 1950 noted that North Korea had refused to cease hostilities and withdraw to the thirty-eighth parallel. It recommended that the UN Members ‘furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security.’161 The reference to ‘armed attack’ seems to frame the response in terms of collective self-defence. But this changed on 7 July 1950, when the Security Council passed Resolution 84. This Resolution recommended that ‘all Members providing military forces and other assistance pursuant to the aforesaid Security Council resolutions’ make that assistance available to a ‘unified commander under the United States’ and authorized the unified command to use the UN flag ‘in the course of operations against North Korean forces.’162

The nature of the UN action in Korea remains a subject of some dispute.163 While some have claimed that the action should be seen as collective self-defence,164 it is better classified as enforcement action.165 The root of much of the confusion is Security Council Resolution 83, which is drafted in capacious terms and seemingly refers both to the Council’s enforcement powers and to self-defence. Security Council Resolution 84, however, makes it clear that the basis of the action is the Security Council’s enforcement power. As Bowett notes of Resolution 84, ‘the recommendation operated as an authorisation to Members to take action which, without such authorisation, might have been illegal.’166

(p. 150) Because the authorization granted a power to States to act, there was no obligation to dispatch troops or take other military measures. While many States did in fact send military forces, others, such as Sweden, took advantage of the recommendatory character of the resolution and did not participate militarily.167 States that wished to do so were permitted to adhere to the status of neutrality. A number of States did, in fact, explicitly claim neutrality during the hostilities, notably China and the Soviet Union.

China’s right to claim neutrality was widely accepted; while States protested against various violations by China of its neutral duties, they did not protest against its neutral status. For example, a number of States protested that Chinese soldiers were being recruited into the North Korean military forces. China responded that such individuals were ‘volunteers’ and therefore not a violation of its duties as a neutral.168

The Soviet Union also adhered to a position of neutrality during the conflict. In the Security Council, the Soviet Union stated that the Hague Conventions were ‘in full force to-day, and the armed forces of the United States are obliged to observe them.’169 The Soviet Union addressed numerous claims concerning violation of neutral duties to the United States.170 The US refused to entertain Soviet claims for reparations for violations of neutrality, not because it saw the law of neutrality as inapplicable, but because it argued that the action had been taken by United Nations forces and so the claims should have been directed to the UN.171

ii.  Enforcement action in Iraq (1990)

Whereas the action in Korea was couched in the more traditional language of recommendation, the Security Council’s practice in response to Iraq’s aggression against Kuwait demonstrated a striking transformation in the use of authorizations.172

Resolution 665 provided the first authorization to Member States to use force, and called on Member States ‘co-operating with the Government of Kuwait’ to use:

such measures commensurate to the specific circumstances as may be necessary under the authority of the Security Council to halt all inward and outward maritime shipping, in order to inspect and verify their cargoes and destinations and to ensure strict implementation of the provisions related to such shipping laid down in resolution 661 (1990).173

(p. 151) The phrasing of the Security Council’s authorization is significant: Resolution 665 ‘was addressing the United States and all other nations which had chosen to respond to Kuwait’s request. There was no requirement for any state to send ships or other assistance.’174

The crucial resolution enshrining the ‘authorisation model’ to use military force was, however, Security Council Resolution 678. Resolution 678, passed under Chapter VII of the Charter, authorized ‘Member States co-operating with the Government of Kuwait’ to ‘use all necessary means’ to restore international peace and security in the area.175 As with the UN action in Korea, considerable debate has turned on whether this resolution actually authorized enforcement action or recognized the right of collective self-defence. As noted above, there is now little doubt that the resolution authorized enforcement action.

At the beginning of the conflict the question of whether the law of armed conflict applied was never seriously debated and seems to have been assumed from the outset.176 Security Council Resolution 670 acknowledged, for example, the applicability of the Fourth Geneva Convention.177

Practice indicates that the law of neutrality was also seen as applicable and acknowledged by the parties to the conflict. The phrasing of the resolution limits the authorization to those States ‘co-operating with the Government of Kuwait.’ Participation in the use of force was therefore discretionary. The resolution is an implicit acknowledgement that there remains scope for neutrality in UN-authorized measures.178 A number of States explicitly indicated their neutrality during the hostilities. Most notably, Iran and Jordan both emphasized their neutrality during the conflict.179 India also adopted a position of neutrality.180 The ability to claim the status of neutrality was a position recognized by other States.181

(p. 152) b.  Non-Military Support for UN Enforcement Action

The voluntary character of participation in military measures authorized by the Security Council seems clearly established. A more complicated question concerns the obligations to assist States acting pursuant to an authorization. If authorizations are not obligations under the Charter, and since Article 25 prima facie does not apply, it is not clear whether States that wish to claim the status of neutrals are obliged to discriminate in their adherence to neutral duties.

A textual interpretation of the Charter suggests that a neutral State would not be required to modify its duties of neutrality during enforcement action authorized by the Security Council because Article 103 prevails over general international law only when the Security Council imposes ‘obligations.’ Since an authorization does not compel Member States to take action, but simply confers on them a discretionary power to do so, there is no relevant ‘obligation’ under the Charter to which Article 103 grants priority.182 The concept of an ‘obligation’ under the Charter has, according to this view, a clear meaning that cannot be extended to encompass authorizations.

As a matter of principle, this view is compelling. The Charter should not lightly be presumed to have prevailed over general international law. As Bernhardt explains, Article 103:

represents a partial suspension of the basic international law maxim pacta sunt servanda. Such a suspension is only acceptable in the case of a conflict between obligations, the superior or stronger of which should prevail. If a certain measure or form of behaviour is merely recommended without being legally obligatory, existing treaty obligations must be respected and the recommendation cannot be followed.183

Against this view, a functional approach suggests that to interpret Article 103 in a narrow way would fatally impair the efficacy of the Charter. It would, in effect, negate the innovations of the Security Council to function in the area of international peace and security absent agreements under Article 43. Given that authorizations attempt to delegate the powers of the UN itself, States that are acting pursuant to such delegations are acting on behalf of the United Nations itself.184 Accordingly, authorizations should be seen as more than mere recommendations to act because of their ‘legal nature and density.’185

(p. 153) This view provides a compelling argument in terms of the States acting in conformity with the authorizations, but it is not clear that it is equally persuasive with regard to States that have chosen not to act upon an authorization. Nevertheless, this approach to the interpretation of Article 103 has been favoured in recent case law. In R (Al-Jedda) v Secretary of State for Defence, Lord Bingham noted that a purposive approach to Article 103 as applicable to authorizations ‘reflect[s] the practice of the UN and member states as it has developed over the past 60 years.’186 The meaning of the phrase ‘obligations’ in Article 103 should not, he argued, be given a ‘narrow, contract-based meaning.’187 As Lord Bingham made clear, however, this view was directed to those States that were acting in accordance with the authorization:

As is well known, a large majority of States chose not to contribute to the multinational force, but those which did (including the UK) became bound by articles 2 and 25 to carry out the decisions of the Security Council in accordance with the Charter so as to achieve its lawful objectives.188

The effect of authorizations on States that were not contributing to the multinational force was not canvassed.

It seems to be established that Member States that are not directly participating in the measures authorized have a power to discriminate in favour of the UN-authorized force. It has been suggested that a determination under Article 39 that identifies the responsible State would permit a State to depart from the law of neutrality. Equally, an authorization to Member States to use all ‘necessary means’ permits a State to depart from the law of neutrality. Thus a number of States during the Kuwait crisis adopted measures in favour of the coalition action without participating directly in hostilities. Spain provided logistical, humanitarian and political support for Allied forces in the Gulf while eschewing direct military involvement.189 The Torrejón air base was used by a substantial number of US forces en route to the Gulf.190 Portugal provided similar logistical support but did not send troops.191 Turkey authorized the US Air Force to station 96 warplanes at a base in Incirlik. These aircraft later joined the air offensive against Iraq.192

In departing from the law of neutrality, the State would not incur international responsibility: an authorization under Chapter VII would act as a circumstance precluding wrongfulness. In this regard, the International Law Commission has noted that ‘sanctions applied in conformity with the provisions of the Charter would certainly not be wrongful in the legal system of the United Nations, even though they might conflict with other treaty obligations incumbent upon the (p. 154) State applying them.’193 The ILC proceeded to note that ‘[t]his view would, moreover, seem to be valid not only in cases where the duly adopted decision of the Organisation authorising the application of a sanction is mandatory for the Member States but also where the taking of such measures is merely recommended.’194

Whether there is an obligation for Member States not actively participating to act in accordance with an authorization is more difficult to evaluate and will depend on whether the Security Council intended to displace general international law. The Security Council’s power to override general international law is not, however, without controversy. This question has arisen most recently with regard to the law of occupation.195 Much will turn on the precise terms of the relevant Security Council resolution, and the particular character of the rule that the Security Council is attempting to modify or displace.196 Sir Michael Wood has noted that:

The extent to which SCRs [Security Council Resolutions] should be interpreted taking into account applicable rules of international law, whether general international law or particular treaties, depends on the analysis of the intentions of the Security Council (as evidenced by the text of the resolution and the surrounding circumstances). If it appears that the Council was intending to lay down a rule irrespective of the prior obligations of States, in general or in particular, then that intention would prevail; if, conversely, it appears that the Council was intending to base itself on existing legal rules or an existing legal situation, then its decisions ought certainly to be interpreted taking those rules into account.197

In the Kuwait crisis, it was clear States that wished to remain neutral were required to discriminate in their application of neutral duties pursuant to Resolution 661, which had imposed an economic embargo on Iraq. Thus the declarations of neutrality issued by Jordan and Iran were subordinate to their obligation to comply with Resolution 661. The US outlined its position in a Department of Defence Report:

It was the US position during the Persian Gulf crisis that, regardless of assertions of neutrality, all nations were obligated to avoid hindrance of Coalition (p. 155) operations undertaken pursuant to, or in conjunction with, UNSC decisions, and to provide whatever assistance possible.198

Resolution 665 ‘call[ed] upon’ Member States co-operating with Kuwait that were deploying maritime forces to the Gulf to ‘use such measures commensurate to the specific circumstances as may be necessary under the authority of the Security Council’ to halt all inward and outward maritime shipping to verify cargo.199 This has correctly been interpreted as an authorization to States, issued after some uncertainty concerning the ability of States to interdict shipping to verify compliance with Resolution 661.200

Paragraph 3 ‘request[ed] all States to provide, in accordance with the Charter of the United Nations, such assistance as may be required’ to the States co-operating with Kuwait.201 This suggests that there is no obligation on non-belligerent or neutral States to provide assistance; the request is purely recommendatory. Paragraph 3 of Resolution 678 was in similar terms; it requested all States to provide ‘appropriate support’ for the actions of the States engaging in hostilities with Iraq.202 As the International Court of Justice has emphasized, the language of a resolution must be analysed carefully for its binding effect.203 A recommendation by a UN organ cannot be converted into an obligation without further agreement by the States concerned.204 There is no indication, from the terms of these resolutions, that it is mandatory to provide support to States acting in accordance with UN authorizations.

However, a persuasive case can be made that Article 2(5) should apply to UN-authorized action and would modify the rights and duties of neutrality in favour of UN forces. Textually, there is no reference to Article 2(5) as applying only when ‘obligations’ are involved or when ‘decisions’ have been taken; rather, the principle of Article 2(5) applies both in ‘any action’ and in ‘preventive or enforcement action’: terms which, admittedly, have been interpreted as referring to the same sort of action: enforcement action under Chapter VII.205

The first limb of Article 2(5)—the duty of positive assistance—does, however, seem to have a textual restriction: the obligations contained within it apply to action the Security Council takes ‘in accordance with the present Charter.’ While it was not contemplated by the founders of the UN that the Security Council could authorize States to take a certain course of action, this interpretation of the Charter is now confirmed by subsequent practice and there is no serious objection that they are unlawful or inconsistent with the Charter.

(p. 156) State practice confirms the view that Article 2(5) is applicable to authorizations. Italian Prime Minister, Giulio Andreotti, stated on 16 January 1991 that:

The Second paragraph of decision 678 gives countries which, like Italy, cooperate in the Arab peninsula, the power to adopt all the necessary measures for supporting and implementing the pertinent decisions of the Security Council, starting with decision 660. These measures include, as outlined in Article 2 of the Charter, the obligation of members to give the United Nations – and I quote – ‘every assistance in any action which it undertakes in accordance with the provisions of this Charter.’206

Members, by and large, were willing to offer support. Jordan announced that, despite its stance of neutrality, it would comply with UN Resolutions.207 It is suggested that, on the basis of Article 2(5) and Article 49 of the Charter, there is a duty on States to modify the rights and duties of neutrality in favour of UN-authorized action.

c.  Modalities of Support for UN Enforcement Action

State practice indicates various forms of support for UN-authorized action, from logistical assistance to the provision of military bases and the stationing of troops. The duty to co-operate under the first limb of Article 2(5) is, as the US Department of Defence Report suggested, essentially subjective and according to capacity.208 At minimum, however, States must avoid hindering UN-authorized forces.209 For States that wish to remain neutral, this will entail adjustment of neutral rights and duties in a number of areas.

i.  Internment

According to Article 11 of Hague Convention V, a neutral State that receives on its territory troops belonging to belligerent armies is required to intern them.210 During the hostilities that followed Security Council Resolution 678, reports arose of Iraqi aircraft landing in Iran. On 29 January 1991, the coalition claimed that nearly 100 aircraft were in Iran. Iran stated that it would hold the aircraft until the end of hostilities.211

Iran stated that it would apply this rule equally to both belligerents; it was noted that all aircraft would be ‘confiscated’ and their pilots kept in custody, and it was emphasized that ‘this policy would be applied to all parties which violate (p. 157) Iranian air, land or sea spaces.’212 The US disagreed with this view. It advised Iran ‘that, in light of UNSC Resolution 678, Iran would be obligated to return downed Coalition aircraft and aircrew, rather than intern them.’213 It was the US position during the Gulf conflict, that ‘entry into Iranian (or Jordanian) airspace to rescue downed aviators would be consistent with its international obligations as a belligerent, particularly in light of Resolution 678.’214 This view demonstrated, the US report argued, the ‘modified nature of neutrality in these circumstances.’215

ii.  Transit rights over neutral airspace

On land, the territory of neutral States is regarded as inviolable.216 Early UN practice indicated no change in this rule. Neutral States had the absolute right to prohibit UN use of neutral territory. In the UN action in Korea, for example, China protested on numerous occasions at UN incursions into its airspace.217 The US ‘admitted the possibility that its planes had inadvertently violated neutral territory and expressed its regret and its willingness to assume responsibility.’218 The US issued instructions to soldiers under UN command not to intrude onto Chinese territory despite its view that China was assisting North Korean forces.219

The action in the Gulf in 1990 seems to suggest a development of State practice towards the view that, if States are acting pursuant to a UN authorization, ‘the world community would expect the “neutral” to preclude the aggressor from operating in or entering its territory, but to allow UN-authorised forces to operate there.’220 Ireland assented to the provision of landing and transit rights to US aircraft during the hostilities.221 During August and September 1990, more than 1,500 military aircraft flew over Irish airspace.222

Austria also permitted the use of its airspace. Austria ‘decided that overflights by US military transport aircraft would not be inconsistent with its neutral obligations.’223 Austria permitted in February 1991 103 US tanks to cross Austrian territory by rail from Germany to Italy.224 Switzerland did not permit transit of its airspace by combat aircraft or aircraft carrying troops and ammunition.225 It (p. 158) indicated that it was prepared to re-examine Swiss practice in the area.226 However, since the Kuwait crisis, Switzerland has concluded that support for coercive military measures decided or authorized under the UN Charter is compatible with neutrality. Since 1993, Switzerland has allowed foreign troops to use Swiss territory for overflight as long as the operation is backed by a Security Council mandate or authorization.227

iii.  Use of the territorial sea and neutral ports

Hague Convention XIII provides that belligerent rights may not be asserted in neutral territory.228 Article 9, however, provides that a neutral State must impose any restrictions on access to its ports or territorial waters on the basis of impartiality.229 Numerous other provisions of Hague Convention XIII proceed on the basis that access to neutral ports and territorial waters is to be granted on the basis of impartiality.230

When a determination under Article 39 is made that identifies the responsible State, or enforcement action is authorized, the neutral State must accordingly adjust its application of these rules. Since refuelling and resupply in neutral ports may constitute ‘assistance’ under Article 2(5), the neutral State is under an obligation to prevent the State which is the object of the enforcement action from using its ports or territorial waters. This is the minimum that is required under the second limb of Article 2(5). Failure to comply with it would constitute ‘aid or assistance’ under Article 41(2) of the ILC’s Articles on State Responsibility.231

Whether a neutral State is under an obligation to permit access to its ports by a UN-authorized force is a more difficult question. Quincy Wright argued in 1953 that the UN could ‘authorise measures to assure isolation of the aggressor and to prevent third-state assistance to the aggressor even though those measures go beyond the normal powers of a belligerent to interfere with commerce at sea.’232 Those measures would now include interception of vessels in neutral territorial waters.233

(p. 159) UN Resolution 665, authorizing maritime interdiction in the Gulf, built on Resolution 661, which imposed an economic embargo on Iraq. Following the passage of Resolution 665, Coalition States conducted maritime interception operations in the Persian Gulf, the Gulf of Oman, and the Red Sea, and managed to divert almost all goods headed into or out of Iraq.234

The powers granted under Resolution 665 were (probably deliberately) imprecisely phrased: the degree of force that could be used to verify cargoes, and in what circumstances, was left up to the co-operating States themselves.235 The measures contemplated by Resolution 665 are analogous to blockade action.236 The difference, however, is that under the terms of the Resolution interception measures could be extended to the territorial seas of neutral and non-belligerent States.237 While there was apparently support for the view that neutral States would have to allow the UN-authorized force to use their territorial seas, this did not come to pass.238 The territorial seas and international straits of certain States were used by the coalition force for interception purposes, but only with the permission of the littoral State.239

However, it is increasingly accepted that the territorial seas of neutral and non-belligerent States must be made available for UN-authorized maritime operations.240 Subsequent Security Council resolutions authorizing maritime interdiction measures have presumed a wide spectrum of permissible action. At the outbreak of hostilities in the Federal Republic of Yugoslavia (FRY), for example, the Security Council imposed an embargo on all deliveries of weapons and military equipment.241 This embargo was maintained after Yugoslavia’s (p. 160) dissolution and thus applied to all the successor States of the FRY.242 In Security Council Resolution 787 the Security Council authorized Member States to enforce the embargo. Paragraph 11 called upon all States to take ‘all necessary steps’ to ensure that none of their exports were diverted to the Former Republic of Yugoslavia.243 Acting under Chapter VII, as well as Chapter VIII of the Charter, paragraph 12 calls on all States:

…acting nationally or through regional agencies or arrangements, to use such measures commensurate with the specific circumstances as may be necessary under the authority of the Security Council to halt all inward or outward maritime shipping in order to inspect and verify their cargoes and destinations and to ensure strict implementation of the provisions of resolutions 713 (1991) and 757 (1992).244

These measures included, according to Security Council Resolution 820, the prohibition of maritime traffic from entering the territorial sea of the FRY, except where authorized or when in force majeure.245 This demonstrates the considerable discretion of the Security Council to authorize measures going beyond the traditional law. This would extend to taking action in the territorial sea of a neutral State.246

6.  Conclusion

According to the original design of the UN Charter, States would not have been able to have recourse to the law of neutrality. As Fenwick forcefully argued:

What is said of the old laws of war is equally if not more true of the old law of neutrality, which has passed away with the new law of collective responsibility. Even in the case of recognised States which have not been admitted into the United Nations, it is not to be believed that they will be able to claim, if they should be so unwise as to attempt to do so, the former rights of neutrals and perhaps block the action of the United Nations against the aggressor…247

Subsequent practice has demonstrated that there exists greater room under the Charter for neutrality than perceived by those writing at the time of its creation. (p. 161) In part, the acceptance of a position of neutrality under the Charter was a matter of political expediency and a concession to realpolitik during the Cold War. As a group of Swedish military experts concluded, in an analysis conducted before Sweden joined the UN:

…the member States will not be obliged to participate in enforcement measures…[and] are free in such a war to observe neutrality in the traditional sense. This does not mean that a smaller State does not run any risk to be drawn into a great power war. But if this happens, it will not be as a consequence of its membership in the United Nations.248

This chapter has sought to trace in some detail the way in which the Security Council may override the law of neutrality. The procedure of Chapter VII suggests that States are released from their obligations of neutrality upon the Security Council identifying the State responsible for a threat or breach of the peace, or an act of aggression, under Article 39 of the Charter, or proceeding further through the suite of options of Chapter VII. The imposition of sanctions under Article 41 during a situation in which neutrality is applicable, or becomes applicable, obligates States to adhere to the obligations of the Charter rather than the law of neutrality.

With regard to the use of military force authorized by the Security Council, somewhat paradoxically, the increasing flexibility of the Security Council’s decision-making practices has led to a greater tolerance for positions of abstention from UN Security Council action. The failure to conclude agreements under Article 43 of the Charter has obviously played a significant part in this; the inability of the Security Council to compel Member States to contribute military forces has led to the de facto acceptance of non-participation on the part of many States and an increasing reliance on coalitions to undertake military tasks.

Just because the Security Council cannot compel military participation in UN-authorized action does not mean, however, that neutral duties are completely unaffected by Security Council military enforcement action. The practice of States and case law suggests that the Security Council does not need explicitly to displace the law of neutrality; instead, the increasing acceptance that Article 103 and Article 2(5) are applicable to Security Council authorizations appears to indicate that UN obligations will prevail over the duties of neutrality, and the developing State practice reviewed demonstrates certain de minimus forms of discrimination in favour of UN military operations.

Footnotes:

7  YBILC (1949) 51.

8  Committee on Study of Legal Problems of the United Nations ‘Should the Laws of War Apply to United Nations Enforcement Action?’ (1952) 46 PAS 216, 220.

9  Ibid.

11  Greenwood (n 6) 14.

13  Q Wright ‘The Outlawry of War and the Law of the War’ (1953) 47 AJIL 365, 370–1.

17  See, for example, UN Secretariat ‘UN Secretary-General’s Bulletin: Observance by United Nations Forces of International Humanitarian Law’ (6 August 1999) UN Doc ST/SGB/1999/13; Institut de Droit International ‘Conditions of Application of Humanitarian Rules of Armed Conflict to Hostilities in which United Nations Forces may be Engaged’ (Session of Zagreb, 1971).

18  Shraga (n 6) 67.

19  Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 179.

20  UNGA ‘Annex: Draft Model Agreement Between the United Nations and Member States Contributing Personnel and Equipment to the United Nations Peace-Keeping Operations’ (23 May 1991) UN Doc A/46/185 [28]. The UN has also referred to the ‘principles and spirit’ of the law of armed conflict in Status of Forces Agreements (SOFAs) that it has concluded with host States. See Shraga (n 6) 68. For criticism see Greenwood (n 6) 22–3.

21  ‘UN Secretary-General’s Bulletin’ (n 17) [1.1].

22  See UNSC Res 687 (3 April 1991) UN Doc S/RES/687 [16].

25  See, for example, UK The Law of War on Land [653](2). Cf US Land Warfare Manual [513].

27  Seyersted (n 10) 286.

28  UN Charter art 2(5).

31  III UNCIO 355.

32  VI UNCIO 722.

33  Ibid.

35  In contrast, Article 25 of the Charter is not confined to decisions regarding enforcement action but applies to decisions of the Security Council taken in accordance with the Charter. See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16, 52–3.

36  Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter) (Advisory Opinion) ICJ Rep [1962] 151, 164–5. See also C F Amerasinghe ‘The Charter Travaux Préparatoires and United Nations Powers to Use Armed Force’ (1966) 4 CYIL 81, 92.

38  US Law of Naval Warfare Manual 366.

41  Frowein and Krisch (n 34) 138.

42  Ibid 137. Frowein and Krisch note that the concept of ‘preventive’ action contemplates action under Article 40 of the Charter.

43  HC XIII art 9.

45  UN Charter art 25.

47  UN Charter art 103.

49  On this point see UNGA ‘Fragmentation of International Law: Report of the Study Group of the International Law Commission’ (13 April 2006) UN Doc A/CN.4/L.682 [333]-[334]. It has erroneously been claimed that Article 103 serves to invalidate the conflicting treaty: B Fassbender ‘The United Nations Charter as Constitution of the International Community’ (1998) 36 CJTL 529, 590.

55  R (Al-Jedda) v Secretary of State for Defence [2008] 1 AC 332 [34] per Lord Bingham of Cornhill.

56  ‘Fragmentation of International Law’ (n 49) [345].

58  Bernhardt (n 53) 1296.

59  Gowlland-Debbas ‘Security Council Enforcement Action’ (n 46) 88.

61  UNSC Res 661 (6 August 1990) SCOR Resolutions and Decisions 19.

62  UNSC Res 670 (25 September 1990) SCOR Resolutions and Decisions 24 preambular para 7 and preambular para 12.

63  Gowlland-Debbas ‘Security Council Enforcement Action’ (n 46) 84.

64  UN Charter art 48(1).

65  On Article 50 see J Carver and J Hulsmann ‘The Role of Article 50 of the UN Charter in the Search for International Peace and Security’ (2000) 49 ICLQ 528. On the effect of sanctions on third States see UNGA ‘Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organisation: Implementation of the Provisions of the Charter of the United Nations related to Assistance to Third States affected by the Application of Sanctions under Chapter VII of the Charter’ (22 August 1995) UN Doc A/50/361.

66  UN Charter art 39.

69  Gowlland-Debbas ‘Security Council Enforcement Action’ (n 46) 93–4.

70  UN Charter art 40.

71  See Chesterman (n 68) 126.

72  UNSC Res 1160 (31 March 1998) UN Doc S/RES/1160 preambular para 8.

73  UNSC Verbatim Record (31 March 1998) UN Doc S/PV.3868 10 (Russian Federation). Despite stating that there existed no threat to international peace and security, the Russian Federation nevertheless voted in favour of Resolution 1160 imposing sanctions.

74  Ibid 29 (Egypt).

75  Ibid 16–17 (Federal Republic of Yugoslavia).

76  Ibid 12 (United Kingdom).

77  Ibid 13 (United States).

78  UNSC Res 1199 (23 September 1998) UN Doc S/RES/1199.

79  Gowlland-Debbas ‘Security Council Enforcement Action’ (n 46) 56.

81  UNSC Res 502 (3 April 1982) SCOR Resolutions and Decisions 15.

82  Ibid.

83  Frowein and Krisch (n 34) 137.

85  (1987) 10 AYIL 571–7.

87  UNSC Res 660 (2 August 1990) SCOR Resolutions and Decisions 19 [1]-[2].

88  For a similar formulation see San Remo Manual § 7–8.

89  UN Charter art 41.

92  UNSC Res 661 (n 61) [3]. The constitutional basis of the Charter was not mentioned; instead, the Council noted that it was acting under Chapter VII of the Charter.

93  Ibid [3](c).

94  Gioia (n 91) 71; Lalive (n 5) 80.

95  See also A Roberts ‘Counterterrorism and the Laws of War: A Critique of the US Approach’ (Address at The Brookings Institution, 11 March 2002) <http://www.brookings.edu/events/2002/0311terrorism.aspx> accessed 21 January 2007: ‘The sanctions imposed by [the] UN Security Council even before September [2001] on the Taliban and Afghanistan themselves had ruled out pure neutrality on the traditional model.’

96  Farrall (n 90) 67.

97  UNSC Res 661 (n 61) [5].

99  See Farrall (n 90) 66–8.

101  UNSC Res 232 (n 100) [2], [7].

102  Switzerland Federal Department of Foreign Affairs ‘White Paper on Neutrality: Annex to the Report on Swiss Foreign Policy for the Nineties’ (29 November 1993) 19 <http://www.eda.admin.ch/etc/medialib/downloads/edazen/topics/intla/cintla.Par.0027.File.tmp/White_Paper_on_Neutrality.en.pdf> accessed 20 August 2007.

103  Greenwood (n 6) 11.

105  Meyrowitz (n 29) 346.

106  UN Charter art 43(1).

107  UN Charter art 43(3).

108  UN Charter art 45.

109  Separate Opinion of Vice-President Ammoun Legal Consequences for States of the Continued Presence of South Africa in Namibia (n 35) 92.

110  See for example US Operational Law Handbook XIV (B)(2).

111  See UNGA Report of the Secretary-General ‘An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-Keeping’ (17 June 1992) UN Doc A/47/277 [43].

112  Al-Jedda (n 55) [29] per Lord Bingham of Cornhill.

113  Gioia (n 91) 73.

114  Certain Expenses of the United Nations (n 36) 167.

117  Ibid.

119  UNSC Res 678 (29 November 1990) SCOR Resolutions and Decisions 27.

120  On this see Chesterman (n 68) 179–95.

122  Sarooshi (n 115) 13. Cf Berman (n 115).

123  For example, UNSC Res 678 (n 119) [2]; UNSC Res 940 (31 July 1994) UN Doc S/RES/940 [4]; UNSC Res 1528 (27 February 2004) UN Doc S/RES/1528 [8], [16].

124  For example, UNSC Res 1264 (15 September 1999) UN Doc S/RES/1264 [3]; UNSC Res 1484 (30 May 2003) UN Doc S/RES/1484 [4]; UNSC Res 1529 (29 February 2004) UN Doc S/RES/1529 [6].

125  UNSC Verbatim Record (29 November 1990) UN Doc S/PV.2963 33 (Yemen).

126  Ibid 58 (Cuba).

127  See, for example, E V Rostow ‘Until What? Enforcement Action or Collective Self-Defence?’ (1991) 85 AJIL 506.

130  Sarooshi (n 115) 142–66.

131  UNGA ‘Supplement to An Agenda for Peace: Position Paper of the Secretary-General on the Occasion of the Fiftieth Anniversary of the United Nations’ (25 January 1995) UN Doc A/50/60-S/1995/1 [77].

132  UNGA ‘Report of the Panel on United Nations Peace Operations’ (21 August 2000) UN Doc A/55/305-S/2000/809 [55].

135  UNSC Res 161 (21 February 1961) UN Doc S/4741 [1].

137  See, for example, UNDPKO United Nations Peacekeeping Operations: Principles and Guidelines (2008) <http://pbpu.unlb.org/pbps/Library/Capstone_Doctrine_ENG.pdf> access 21 January 2009 [2.2].

141  Greenwood (n 6) 23–4.

142  See ‘Secretary-General’s Bulletin’ (n 17) [1.1].

143  Greenwood (n 6) 24. NATO appears to follow a similar approach. See NATO Peace Support Operations (AJP – 3.4.1, 2001) [4B6]: ‘The PSF [Peace Support Force] will not generally be a party to the conflict, yet certain LOAC [Law of Armed Conflict] principles may be applied.’

144  UN Convention on the Safety of United Nations and Associated Personnel (adopted 9 December 1994, entered into force 15 January 1999) 2051 UNTS 363 art 7(1). For the Convention’s application see art 2(2).

145  Greenwood (n 6) 24–5; Wills (n 6) 402–3.

146  For example, an Italian Commission of Enquiry on the activities of UNOSOM in Somalia did not express a view as to whether UN forces were engaged in an armed conflict or a police operation. See N Lupi ‘Report of the Enquiry Commission on the Behaviour of Italian Peace-keeping Troops in Somalia’ (1998) 1 YIHL 375. In the Brocklebank case, the Canadian Court Martial Appeal Court found no evidence of an armed conflict in Somalia during peacekeeping operations. The Queen v Brocklebank [1996] 134 DLR (4th) 377. See also K Boustany ‘Brocklebank: a Questionable Decision of the Court Martial Appeal Court of Canada’ (1998) 1 YIHL 371.

147  This suggestion is made by S Chesterman ‘Neutrality and its Discontents’ (Swiss Security Policy Hearings 2009) <http://www.sipol09.ethz.ch/Transkriptionen/Ausland/Prof.-Simon-Chesterman> accessed 12 December 2009.

149  See (1983) 54 BYBIL 534.

150  (1991) 66 BYBIL 704.

151  Italy referred to the conflict as an ‘international policing operation’, but the denial of the existence of war or armed conflict was for constitutional reasons. Keesing’s (1991) 37941. See also the statement of Italian Prime Minister Andreotti in (1988–1992) 8 IYIL 264.

153  Bowett (n 16) 499–500.

155  Schachter (n 115) 395.

156  Al-Jedda (n 55) [31] per Lord Bingham of Cornhill.

157  Berman (n 115) 157.

158  Chesterman (n 68) 169.

160  UNSC Res 82 (25 June 1950) UN Doc S/1501.

161  UNSC Res 83 (27 June 1950) UN Doc S/1511.

162  UNSC Res 84 (7 July 1950) UN Doc S/1588.

163  Gray (n 136) 258–9.

165  Sarooshi (n 115) 169–70; Seyersted (n 10) 33.

166  Bowett (n 16) 32.

169  UNSC Verbatim Record (7 September 1950) SCOR Resolutions and Decisions 9.

170  Seyersted (n 10) 110–11.

171  Ibid 187.

172  Berman (n 115) 167.

173  UNSC Res 665 (25 August 1990) SCOR Resolutions and Decisions 21 [1].

175  UNSC Res 678 (29 November 1990) SCOR Resolutions and Decisions 27.

177  UNSC Res 670 (25 September 1990) SCOR Resolutions and Decisions 24 [13].

179  Keesing’s (1990) 37696; Keesing’s (1991) 37942.

180  ‘War in the Gulf; India Says It Will Withdraw US Planes’ Refueling Right’ New York Times (New York, 18 February 1991); ‘War in the Gulf; Refueling of Jets in India to Stop’ New York Times (New York, 20 February 1991).

181  ‘United States: Department of Defence Report to Congress on the Conduct of the Persian Gulf War – Appendix on The Role of the Law of War’ (1992) 31 ILM 612, 637.

182  Frowein and Krisch (n 164) 729.

183  Bernhardt (n 53) 1296.

185  Ibid.

186  Al-Jedda (n 55) [33] per Lord Bingham of Cornhill.

187  Ibid [34].

188  Ibid (emphasis added).

189  Keesing’s (1991) 37942.

190  Ibid.

191  Ibid.

192  Ibid 37936.

193  (1979) II(ii) YBILC 119.

194  Ibid.

195  UNSC Res 1483 (22 May 2003) UN Doc S/RES/1483. See Scheffer (n 23) 580; A Roberts ‘Transformative Military Occupation: Applying the Laws of War and Human Rights’ (2006) 100 AJIL 580.

198  ‘United States: Department of Defence Report to Congress’ (n 181) 638.

199  UNSC Res 665 (n 173) [1].

200  This point is addressed in greater detail in Chapter 5.

201  UNSC Res 665 (n 173) [3].

202  UNSC Res 678 (n 119) [3].

203  Legal Consequences for States of the Continued Presence of South Africa in Namibia (Advisory Opinion) (n 35) 41.

204  Schachter (n 115) 395.

205  Frowein and Krisch (n 34) 138; Lalive (n 5) 78.

206  (1988–1992) 8 IYIL 264.

207  Dalton (n 174) 54.

208  ‘United States: Department of Defence Report’ (n 181) 638.

209  Ibid.

210  HC V art 11.

211  Keesing’s (1991) 37936.

212  Ibid 37942. ‘Rafsanjani News Conference Iran’s Neutrality; Iraqi planes; Relations with USA’ SWB (London, 5 February 1991).

213  ‘United States: Department of Defence Report’ (n 181) 639.

214  Ibid.

215  Ibid.

216  HC V art 1.

217  Higgins (n 168) 226–9.

218  Seyersted (n 10) 111–12.

222  Keesing’s (1991) 37942.

223  ‘United States: Department of Defence Report’ (n 181) 640.

224  Keesing’s (1991) 37989.

225  (1992) 2 SZIER 596; Swiss Federal Ministry of Foreign Affairs ‘White Paper on Neutrality’ (n 102) 18. Cf ‘United States: Department of Defence Report’ (n 181) 640.

226  (1992) 2 SZIER 596.

227  Switzerland Federal Department of Foreign Affairs ‘Swiss Neutrality in Practice Current Aspects: Report of the Interdepartmental Working Group of 30 August 2000’ (30 August 2000) <http://www.eda.admin.ch/eda/en/home/topics/intla/cintla/ref_neutr.html> accessed 21 December 2006 4–5.

228  HC XIII art 1.

229  Ibid art 9.

230  Ibid art 10–25.

231  ILC ‘Report of the International Law Commission on the Work of its 53rd Session’ (23 April – 10 August 2001) UN Doc A/56/10 art 41(2).

232  Q Wright ‘The Outlawry of War and the Law of War’ (1953) 47 AJIL 365, 375. Wright notes, however, that this discretion is ‘not unlimited.’

233  It should be noted parenthetically that the characterization of the conflict as either UN enforcement action or collective self-defence may have real consequences for the scope of measures exercisable in maritime interdiction operations: if the action is viewed as collective self-defence interdiction measures could not go beyond those available under the law of neutrality, whereas if the action is viewed as a Chapter VII enforcement action, the law of naval warfare may be adapted to encompass broader rights. On this point see Wright (n 232) 375; C Greenwood ‘Self-Defence and the Conduct of International Armed Conflict’ in Y Dinstein (ed) International Law in a Time of Perplexity: Essays in Honour of Shabtai Rosenne (Martinus Nijhoff, Dordrecht 1989) 273, 285.

234  On the visit and search of Iraqi and neutral vessels see Keesing’s (1990) 37695. For data on the number of vessels searched, see W H von Heinegg ‘The Current State of International Prize Law’ in H H G Post (ed) International Economic Law and Armed Conflict (Martinus Nijhoff, Dordrecht 1994) 5, 6–7.

235  Dalton (n 174) 45.

238  Dalton (n 174) 53. Iran protested at certain actions of US warships. See UNSC ‘Letter Dated 23 October 1990 From the Permanent Representative of the Islamic Republic of Iran to the United Nations Addressed to the Secretary-General’ (24 October 1990) UN Doc S/21902; UNSC ‘Letter Dated 23 October 1990 From the Permanent Representative of the Islamic Republic of Iran to the United Nations Addressed to the Secretary-General’ (24 October 1990) UN Doc S/21903. On one occasion, Iran protested that US warships were present in Iranian territorial waters. See UNSC ‘Letter Dated 23 October 1990 From the Permanent Representative of the Islamic Republic of Iran to the United Nations Addressed to the Secretary-General’ (24 October 1990) UN Doc S/21904.

239  Fielding (n 237) 1223.

240  McLaughlin (n 237) 273–4.

241  UNSC Res 713 (25 September 1991) UN Doc S/RES/713 [6].

242  UNSC Res 727 (8 January 1992) UN Doc S/RES/727 [6]; see also UNSC ‘Further Report of the Secretary-General Pursuant to Security Council Resolution 721’ (5 January 1992) UN Doc S/23363 [33].

243  UNSC Res 787 (16 November 1992) UN Doc S/RES/787 [11].

244  Ibid [12].

245  UNSC Res 820 (17 April 1993) UN Doc S/RES/820 [28].

246  McLaughlin (n 237) 274.

247  Fenwick (n 3) 86–7.

248  Kommentar till Förenta Nationernas stadga (Stockholm 1945) cited in Blix (n 39) 47.