1 D Puchala, ‘World Hegemony and the United Nations’ (2005) 7 International Studies Review 571, 577.
2 Articles 41 and 42 UN Charter.
3 Article 27 UN Charter.
4 Article 39 UN Charter. Whilst Article 39 distinguishes between situations that constitute a threat to international peace and security, a breach of international peace and security and an act of aggression, in practice the Security Council has not made such a systematic distinction. Instead it has opted to declare the minimum that is necessary in order to engage Chapter VII: ‘a threat to international peace and security’: T Franck, ‘The Security Council and “Threats to the Peace”: Some Remarks on Remarkable Recent Developments’ in R-J Depuy (ed), Peace-Keeping and Peace-Building: The Development of the Role of the Security Council (Boston, Martinus Nijhoff, 1993) 83, 86.
5 Fidler considers it axiomatic that in order ‘for collective security to work through the Security Council, the great powers would have to share identical interests in preserving the peace and pursue such shared interests collectively’: D Fidler, ‘Caught between Traditions: The Security Council in Philosophical Conundrum’ (1995–96) 17 Michigan Journal of International Law 411, 427.
6 See L Henkin, ‘Kosovo and the Law of “Humanitarian Intervention”’ (1999) 93 American Journal of International Law 824.
7 P Sadeniemi, Principles of Legitimacy and International Relations (Helsingfors, Helsingfors Universitet, 1995) 227–28.
8 Editorial, Jerusalem Post (4 October 2002) 6A, quoted in I Clark, Legitimacy in International Society (Oxford, Oxford University Press, 2005) 187.
9 ‘Friction at the UN as Russia and China Veto Another Resolution on Syria Sanctions’, The New York Times (19 July 2012), available at: www.nytimes.com/2012/07/20/world/middleeast/russia-and-china-veto-un-sanctions-against-syria.html?_r=0.
11 Article 24(2) UN Charter. This has been reaffirmed in the Tadić case where the Appeals Chamber explained that the Security Council does not have ‘a totally unfettered discretion, as it has to remain, at the very least, within the Purposes and Principles of the Charter’: Prosecutor v Dusko Tadić, Case No IT-94-1-AR72 (2 October 1995) para 27. Cf Kelsen who explains that ‘it is completely within the discretion of the Security Council to decide what constitutes a “threat to the peace” ’: H Kelsen, The Law of the United Nations (New York: Frederick A Praeger 1964).
12 See Article 1(3) and Articles 55–56 UN Charter. See also the Preamble of the Charter which states that ‘the United Nations [is] determined . . . to reaffirm faith in fundamental human rights, in the dignity and worth of the human person’.
13 J Alvarez, ‘Constitutional Interpretation in International Organisations’ in J-M Coicaud and V Heiskinman (eds), The Legitimacy of International Organizations (Tokyo, United Nations University Press, 2001) 107. ‘[W]hile the Charter’s human rights provisions are aspirational and future orientated, Article 2(4) is emphatic and unconditional’: ME O’Connell, ‘Regulating the Use of Force in the 21st Century: The Continuing Importance of State Autonomy’ (1998) 36 Columbia Journal of Transnational Law 473.
14 Kirgis, ‘The Security Council’s first 50 Years’ (1995) American Journal of International Law 506 at 506.
15 R Jennings, ‘Broader Perspectives in International Law’ in A Anghie and G Sturgess (eds), Legal Visions of the 21st Century: Essays in Honour of Judge Christopher Weeramantry (The Hague, Kluwer Law International, 1998) 501.
16 The concept of ‘negative peace’ is borrowed from J Galtung, ‘Peace: Negative and Positive’ (1964) 1 Journal of Peace Research 1.
17 P Kennedy, The Parliament of Man: The United Nations and the Quest for World Government (London, Allen Lane, 2006) 78.
18 T Franck, Fairness in International Law and Institutions (Oxford, Clarendon Press, 1998) 219.
19 M Glennon, ‘Sovereignty and Community after Haiti: Rethinking the Collective Use of Force’ (1995) 89 American Journal of International Law 70, 72.
20 Also consider the Security Council’s failure to engage Chapter VII in relation to Pol Pot’s murderous regime in Cambodia, for example, or Idi Admin’s commission of massive human rights abuses in Uganda.
21 UN Doc S/75 (1946) 12, quoted in L Goodrich, E Hambro and AP Simons, Charter of the United Nations: Commentary and Documents, 3rd edn (New York, Columbia University Press, 1969) 266. Although note that the General Assembly did adopt a resolution recommending that Spain be banned from the UN and its specialised agencies: GA Res 39 (12 December 1946).
22 SC Res 54 (15 July 1948) UN Doc S/902.
23 SC Res 83 (27 June 1950) UN Doc S/1511.
24 SC Res 84 (7 July 1950) UN Doc S/1588. Although note that in the resolutions dealing with the invasion of South Korea the USSR was absent from the Security Council and therefore did not vote.
25 SC Res 514 (12 July 1982).
26 The Security Council went on to reiterate this demand in SC Res 598 (20 July 1987). For further examples of the Security Council engaging Chapter VII during the Cold War in order to respond to the infringement of a state’s sovereignty see South Africa’s attack on Zambia (SC Res 393 (30 July 1976)), the Falkland’s conflict (SC Res 502 (3 April 1982)) and Israel’s attack on Tunisia (SC Res 573 (4 October 1985) and SC Res 611 (25 April 1988)).
27 SC Res 134 (1 April 1960).
28 SC Res 181 (7 August 1963). The General Assembly had also condemned South Africa’s racist policies and had asked the Security Council to impose mandatory sanctions: GA Res 1598 (15 April 1961).
29 SC Res 217 (20 November 1965).
30 ‘[T]he sanctions imposed by the Security Council under Chapter VII were formally justified and justifiable as means for dealing with a threat to the peace and were plainly responsive to the country’s explosion of a nuclear device and to the proliferating cross-border military operations executed by the South African defence forces’: T Farer, ‘Promoting Democracy: International Law and Norms’ in E Newman and R Rich (eds), The UN Role in Promoting Democracy: Between Ideals and Reality (New York, United Nations University Press, 2004) 35.
31 H Yamashita, ‘Reading “Threats to International Peace and Security” 1946–2005’ (2007) 18 Diplomacy and Statecraft 551, 554.
32 T Franck, ‘Who Killed Article 2(4)?’ (1970) 64 American Journal of International Law 809.
33 ‘The Cold War bipolarity meant that most uses of force, affecting the sensitive East-West balance of power or simply involving the states which were closer to one or the other superpower, necessarily raised immediate and fierce criticism from one side and apologetic justification from the other side’: R Müllerson, Ordering Anarchy: International Law in International Society (The Hague, Martinus Nijhoff, 2000) 292.
34 ‘There was virtually no corner of the world that did not define itself with reference to the Cold War’: E Aksu, The United Nations, Intra-State Peacekeeping and Normative Change (Manchester, Manchester University Press, 2003) 44.
35 P Taylor, ‘The United Nations in the 1990s: Proactive Cosmopolitanism and the Issue of Sovereignty’ (1999) 47 Political Studies 538, 538.