Discussion

• Pages: 125

The UN Security Council and the Creation of International Law - John Murphy:

Regarding Judy Miller's comment about the United Nations Security Council and its powers of law creation, I would suggest with respect that the Security Council of the United Nations-at least if it's acting under Chapter VII-has the authority to debate, decide, and enforce international law. For more on this issue, I would recommend the two-volume book United Nations Legal Order1 edited by Oscar Schachter and Chris Joyner, which goes into the authority of the UN Security Council and other bodies of the United Nations to create, to interpret, to apply and enforce international law.

George Walker:

I think I agree that Security Council's decisions under Chapter VII are law.

Any other resolution of the Security Council, any General Assembly resolution except those governing United Nations governments and most other organizations unless the participants have agreed that they are law, are either supportive of law or the like. General Assembly resolutions may never declare law and they are not law in their own light, but I believe that on the political side of things they can contribute to soft law.

The Law of Neutrality Under the UN Charter - Christopher Greenwood:

Regarding the question of the application of the law of neutrality in an environment where you have Security Council action. I think it is clear that if the Security Council adopts a decision under Chapter VII, that decision or 1. UNITED NATIONS LEGAL ORDER (2 vols.), (Oscar Schachter and Christopher C. Joyner eds., 1995).

rather the obligation to comply with it prevails over any other rule of international law. There is, therefore, no difficulty if you have a Security Council decision which, for example, prohibits the delivery of particular goods to a particular State. That is why I have some reservation in trying to draw lessons from what happened in the second Gulf conflict and applying them to the conflict in Kosovo.

In the second Gulf conflict, you had a very clear, unambiguous Security Council Resolution 661,2 which forbid the delivery of virtually anything to Iraq or Kuwait, and a second resolution, 665,3 which authorized navies of governments cooperating with the government of Kuwait to enforce 661. Now neither of those conditions was satisfied in the Kosovo conflict. Resolution 11604 only applied to the delivery of weapons and military equipment to Yugoslavia and there was no equivalent of 665. So on the critical point about intercepting deliveries of oil to Yugoslavia, there was no Security Council authority. For legal basis, you would have had to fall back on the customary international law principles. That's where I would suggest there is a real difficulty in practice.

Peacekeepers or an Occupying Force? - Christopher Greenwood:

I would just like.to say something about the situation after Resolution 12445 was adopted because we've only briefly touched on that so far. It seems to me that 1244 moved the goalposts completely with respect to Kosovo because it me'ant that when ground troops went into Kosovo, they did so under a Security Council mandate. Had that not happened, then I think the legal position would have been a very murky one indeed. Suppose that the Yugoslav government had capitulated as it did, but we had not been able to get a resolution through the Security Council because of the Chinese veto. You would then, I think, be in a position where the troops that now make up KFOR would have been there in effect as belligerent occupants or at least under a regime of belligerent occupation tempered by whatever Yugoslavia had agreed to. That would have been an extremely uncomfortable position indeed. However much we might find 1244 limiting, the law of belligerent occupation would have been a limit a great deal more difficult to live with.

2. S.C. Res. 661 (Aug. 6,1990), U.N. Doc. S/RES/661 (1990).

-3. S.C. Res. 665 (Aug. 25, 1990), U.N. Doc. S/RES/665 (1990).

4. S.C. Res. 1160 (Mar. 31, 1998), U.N. Doc. S/RES/1160 (1998).

5. S.C. Res. 1244 (June 10, 1999), U.N. Doc. S/RES/1244 (1999).

The Legality of Blockade or Visit & Search - Adam Roberts:

As I recall the way the issue of visit and search arose during the Kosovo events of 1999, there should have been no problem about the application of most of the law of armed conflict because it applies when there is fighting. But I recall it being said that one of the difficulties was that numerous Western leaders in their wisdom had proclaimed that...