An analysis of the powers of the Security Council under Article 39 of the UN charter to maintain and restore international peace

and security with reference to recommendations ( in the case of Israel Lebanon War 2006), and measures (Economic sanctions re; Libya 1992 and the use of force Re; Iraq 1991)

Introduction
The UN Charter declares to bring about by peaceful means and in conformity with principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of peace. Disputes likely to endanger international peace and security are required to be resolved by peaceful means. The UN member states have conferred the Security Council with the primary responsibility of maintaining international peace and security and have agreed to accept and carry out its decisions to that effect. This essay seeks to analyse the powers of the Security Council under Article 39 of the UN Charter to maintain and restore international peace and security with reference to recommendations made in relation to the Israel-Lebanon war in 2006, measures (economic sanctions) adopted against Libya in 1992 and the use of force against Iraq in 1991. The essay begins by briefly examination of the purposes of the UN Charter and the powers of the Security Council. Then, it analyses the powers of the Security Council under Article 39 of the UN Charter to maintain international peace and security with particularly references to recommendations made in relation to the Israel-Lebanon, measures (economic sanctions) adopted against Libya and the use of force against Iraq. Finally, the essay analyses the effective of the Security Council as UN organ vested with powers to maintain and restore international peace and security.

The purposes of the UN Charter

In the view of the founding fathers, the UN was to pursue a number of fundamental purposes. These include to maintain international peace and security, to bring about by peaceful means the adjustment or settlement of international disputes or situations which might lead to breach of peace, to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of people, to foster economic and social co-operation and to promote respect for human rights and fundamental freedoms for all persons. Plainly, the maintenance of international peace and security was the crucial goal of the UN Charter. In 1939-45 the tension between force and law had been magnified by the Second World War. It had become clear that that unless serious restraints were put on violence, the world would be heading for catastrophe. Accordingly, the UN Charter enshrines the legal obligation upon Member States to

settle disputes peacefully and stipulates a general prohibition of the unilateral use of force, subject to the exception of self defence. The intent of the Charter is that control over the use of force should lie within the UN which should act as a world policing and enforcement agency. The draftsmen were not interested in the peaceful settlement of any inter-state dispute. They were particularly concerned about disputes among states that could degenerate and imperil international peace and security. They therefore laid down in Chapter VI and VII of the Charter a set of provisions dealing with disputes the continuance of which is likely to endanger the maintenance of international peace and security. The basic philosophy underlying the Charter is that every effort should be made to maintain international peace and security. Whenever disagreements between States threaten to become explosive and to endanger international peace and security, the UN must step in and endeavour to defuse the situation. This implies that the UN must always watch out for possible cracks in the fragile edifice of international peace and security. The essence of the Charter, the point where it definitely breaks with previous rules of traditional international law, is that it establishes the principle that every dispute (the continuance which is likely to endanger international peace and security) is a public matter, so that whatever the parties wish it or not, they must accept the fact that the dispute may be debated in and actions taken by the Security Council or General Assembly, if that organ considers such debate or actions to be in the interests of maintaining international peace and security.

Powers of Security Council

The Security Council operates as an efficient UN executive organ of limited membership, functioning continuously. It consists of fifteen members, five of them being permanent members (Unites States, United Kingdom, Russia, China and France). Non-permanent members are elected every two years by the UN General Assembly. On all but procedural matters, decisions of the Council must be made by an affirmative vote of nine members, including the concurring votes (or at least the abstention) of the permanent members. A negative vote by any of the permanent members is sufficient to veto any resolution of the Council, save with regard to procedural questions, where nine affirmative votes are all that is required. The veto was written into the UN Charter in view of the exigencies of power during the creation of the UN. The Security Council acts on behalf of the members of the UN as a whole in performing its functions, and most of its decisions are binding upon all member states. The original scheme by which collective security system was achieved laid great stress upon the role of the Security Council, although this has been modified to some extent in practice. By Article 24 of

the UN Charter, the Security Council is granted with the primary responsibility of maintaining international peace and security, and its decisions under Article 25 are binding upon all Member States. Powers of the Security Council are concentrated in two particular categories, the peaceful settlement of disputes and the adoption of enforcement measures. By these means, the Council conducts its primary task, the maintenance of international peace and security. The Security Council is given specific powers in Chapter VII of the UN Charter to act on behalf of states, even if this means using force itself to maintain international peace and security. In theory, the Security Council has also powers with regard to individual and collective self-defence. States must report their use of force in self-defence to the Security Council immediately and the right of the State to self-defence is temporary until the Security Council takes measures necessary to maintain international peace and security. In practice, the Security Council does not generally make pronouncements on the legality of claims to self-defence. For example, in the case of inter-State conflicts between Iran and Iraq (190-88) and Ethiopia and Eritrea (1998-2000) the Security Council did not decide who had the right to self-defence. In contrast when Iraq invaded Kuwait in 1990 the Security Council did expressly uphold the right of Kuwait to self-defence. While actions adopted by the Security Council in pursuance to Chapter VI of the UN Charter, dealing with pacific dispute settlement of disputes, are purely recommendatory, matters concerning threats to, breach of, the peace or acts of aggression, actions under Chapter VII, give rise to decision-making powers on the part of the Council. This is an important distinction and emphasises the priority accorded within the system to the preservation of peace and the degree of authority awarded to the Security Council to achieve this. The system is completed by Article 103 which declares that obligations under the Charter prevail over obligations contained in other international agreements. Article 39 of the UN Charter empowers the Security Council to determine the existence of any threat to the peace, breach of the peace, or act of aggression. This is the key to the collective security system. In practice, what amounts to a threat to, or breach of, the peace or act of aggression depends upon the circumstances of the case and the relationship of the five permanent members of the Security Council to the issue under consideration, as for a negative vote by any of the permanent members is sufficient to block all but procedural resolutions of the Council. Clearly, armed military actions, or threat thereof, are encompassed by Article 39. However, threat to the peace is not limited to military situations or international conflicts. In fact, it seems that the Council itself is the final judge of when a problem falls within Article 39, perhaps with the possibility of review by the International Court of Justice (ICJ). Therefore, threat to peace, a broad category provided for in Article 39, constitutes a safety net for Security Council action where the condition needed for breach of the peace or act of aggression do not appear to be present.

The concept of threat to peace has been used to cover internal situations that would once have been shielded from the UN action by Article 2(7). These include civil war situations in Somalia, Liberia and Rwanda; widespread violations of international humanitarian law in the former Yugoslavia; the failure by Libyan Government to demonstrate by concrete actions its renunciation of terrorism; the failure of Sudan to comply with earlier Security Council Resolutions demanding extradition to Ethiopia for prosecution suspects wanted in connection with assassination attempt against the Egyptian President; and incidences of humanitarian crisis in Haiti resulted from the overthrown of the legitimate Government of President Jean-Bernard Aristide. Recently, the Security Council has determined international terrorism as threat to international peace and security. This is an important step in combating such a phenomenon for its paves ways for the adoption of binding sanctions in such circumstances. The Security Council has determined the actual breach of the peace when North Korea invaded South Korea, the Argentine invasion of Falkland Islands, Iran-Iraq war and the Iraq invasion of Kuwait. Acts of aggression include the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any manner inconsistent with the UN Charter. The Security Council has been reluctant to find an act of aggression under Article 39. Rare examples are resolutions condemning South Africa (under the apartheid regime) action against Angola in 1976 and the aggressive acts by Iraq in 1990 against diplomatic premises and personnel in Kuwait. In response to inter-State conflicts, the Security Council has preferred merely to find a breach of the peace, as in the 1980-88 Iraq/Iran conflict and in response to the 1990 Iraq invasion of Kuwait, or a threat to the peace. While it may be clear that the Security Council exercises a wide discretion under Article 39, this does not mean that its powers are unlimited. As noted by Lamb there is no necessary dichotomy involving discretional powers and legality. A discretion can only exist within the law and the real question relates to the ambit of the conditions attaching to the discretional power. Once the Security Council has made such a determination under Article 39, it shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. Essentially, if the Security Council makes a determination that there has been a threat to the peace, breach of the peace or act of aggression under Article 39, it may go on to exercise its power under Chapter VII.

The adoption of Chapter VII enforcement actions constitutes an exception stated in Article 2(7) of the Charter according to which the UN is not authorised to intervene in matters which are essentially within the domestic jurisdiction of any State. Article 39 recommendations are understood to refer to Chapter VI provisions calling for the pacific settlement of international disputes, to be pursued either alone or in a tandem with economic and/or military decisions taken in accordance with Articles 41 and 42. Enforcement actions are listed in Article 40 to 42 and involve both military and nonmilitary. Under Articles 40, the Security Council may take provisional measures to stabilise the situation pending a determination under Article 39. The Security Council has invoked this on the basis for its call for cease-fire as, for example, in Resolution 598 of 20 July 1987 with regard to the 1980-88 IranIraq war conflict. This Resolution was unusual in that it made express reference to Articles 39 and 40. Article 41 allows the Security Council to decide what measures not involving the use of armed forces to give effects to its decisions and call upon the Member States to apply such measures. Measures include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other measures of communication, and the severance of diplomatic relations. Decision taken under Article 41 are binding on Member States who are usually required to report to the Secretary-General on the measures they have taken to comply with the resolution. Obviously, in the case of boycotts etc domestic law may have to be amended in order to prevent nationals trading with the delinquent state. In the United Kingdom, this is done under the United Nations Act 1946. A good example of this is the UK Order in Council imposing a UK arms embargo against Rwanda in pursuance to Security Council Resolution 918 (1994). Although non-military actions may well be an effective remedy in some cases, the UN Charter recognises that some acts may be so serious as to warrant the collective use of force. Thus, Article 42 provides that where the Security Council considers that measures provided under Article 41 are inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such actions may include demonstrations, blockade, and other operations by air, sea, or land forces of the UN members. In order to be able to function effectively in this sphere, Article 3 provides for Member States to conclude agreements with the Security Council to make available armed forces, assistance and facilities, while Article 45 provides that Member States should hold immediately available national air-force contingents for combined international enforcement action in accordance with Article 43 agreements. Article 47 provides for the creation of a Military Staff Committee, composed of the Chiefs of staff of the five permanent members or their representatives, to advise and assist the Security Council on

military requirements and to be responsible for the strategic direction of any armed force placed at the disposal of the Security Council.

Recommendations made in relation to the Israel-Lebanon war

The Israel-Lebanon war was a 33-day military conflict in Lebanon and northern Israel. The principal parties were Hezbollah paramilitary forces and the Israeli military. The conflict started on 12 July 2006 following the killing of eight and abduction of two Israeli soldiers by Hezbollah along the Lebanese-Israeli border. This led to the outbreak of a large-scale war in Southern Lebanon resulting into the destruction of the Lebanese infrastructure, the death of 160 Israeli and 1500 Lebanese civilians and displacement of approximately one million Lebanese and 300,000500,000 Israelis, although most were able to return to their homes. Israel's retaliation to Hezbollah's seizure of the soldiers had the visible objectives of enforcing a rash application of Security Council Resolution 1559 (2004) and to bring about a Lebanese consensus around the dismantling of Hezbollah's armed wing. The conflict ended with UN-brokered cessation of hostilities preceded by the adoption of Security Council Resolution 1701 (2006). Resolution 1701 reiterated the responsibilities of the Security Council and determined the situation in Lebanon as constituting a threat to international peace and security. It called for an immediate cease-fire, Hezbollah's disarmament, the Israeli forces' withdrawal from Southern Lebanon, the deployment of the Lebanese army to the South, and the increase of capacity of the United Nations Interim Force in Lebanon (UNIFIL) deployed since 1978. The Lebanese army began deploying in southern Lebanon on 17 August 2006. The blockade was lifted on 8 September 2006. On 1 October 2006, most Israeli troops withdrew from Lebanon, though the last of the troops continued to occupy the border-straddling village of Ghajar. The remains of the two captured soldiers, whose fates were unknown, were returned dead to Israel on July 16, 2008 as part of a prisoner exchange. The Israel-Lebanese conflict was resolved diplomatically rather than militarily, with the passage of the Security Council Resolution 1701. However, the precise intention of the Security Council regarding the binding nature of the provisions of the Resolution is complex. The Lebanese Government has claimed that it secured the Resolution under Chapter VI, not VII. If the Resolution was secured under Chapter VI, then it has a non-binding effect. However, it will have binding nature if it was adopted under Chapter VII. The negotiating history shows that members of the Security Council acquiesced in a request from Lebanon not to specifically mention Chapter VII. However, the statements of Council members during the adoption of the Resolution are contradictory. For example, the Qatari foreign minister said the Resolution obligated

both parties to halt hostilities and provided for the immediate withdrawal of Israeli forces from Lebanon. The UK foreign minister stressed that the Resolution provided a framework for establishing peace, security and stability in Lebanon and that all the parties should respect its terms. The Russian representative called upon the parties to show the necessary political will and to strictly follow the course of action set out in the Resolution. A number of provisions in the Resolution imply that Chapter VII or Article 41 powers were the source of the authority for the Resolution and that the Security Council had intended to adopt binding provisions. The Resolution contains a determination under article 39 to suggest that Chapter VII was invoked. The Resolution's use of words, such as decides resonates with Article 25 and indicates a binding intention. It is clear from the context that the intention of the Security Council was to adopt binding measures rather than recommendations. This interpretation is supported by the language used in the Resolution to reflect that of other sanctions regimes. The Security Council has called for the implementation of Resolution 1701. In December 2006, the Council urgedStates to implement the arm embargo and expressed its intention to take further actions. In April 2007, the Council underscored certain statements made by Hezbollah as an open admission of activities which could violet Resolution 1701 and reiterated its decision on States not to sale or supply arms and related materials to Lebanon except as authorised by its Government. In August 2007, the Council took a stronger tone in presidential statement 2007/29 which expressed the Council's grave concern at reports of breaches of the arms embargo along the Lebanon- Syria border. The Council emphasised the obligation of all States, particularly in the region, to take all necessary steps to implement Resolution 1701 to in order to enforce the arms Embargo. In Resolution 1773 adopted in 2007 to renew UNIFIL's mandate some Security Council members reiterated States' obligations deriving from Resolution 1701.

Although there seemed to be ambiguity at the time of the adoption of Resolution 1701, the progression of language in the statements of the Security Council shows that the arms embargo was intended to have binding nature. Any analysis of the nature of the resolutions of the Security Council often needs to take not account not only the text or the general circumstances at the adoption, but

also the possibility that the analysis may be conclusively determined only from subsequent discussions of the Council. Resolution 1701 constitutes at least a partial diplomatic victory for Hezbollah insofar as it was an improvement on previous drafts that were rejected by both Hezbollah and the Lebanese Government. It is a transformative Resolution that provides a meaningful basis for moving forward and a framework for new political and security realities in Lebanon and the region. The deployment of the Lebanese army to southern Lebanon with UN troop support has put an end to four decades of control by non-state actors. Resolution 1701 is an important step toward a stable and sovereign Lebanon. It deserves sustained support and beckons the international community to make renewed efforts to find multilateral diplomatic solutions to other conflicts in the area. However, there are critical factors to the effectiveness of the peacekeeping measures adopted by the Resolution and the likelihood of a sustainable cease-fire. These include acceptance of the arrangements by Israel, Hezbollah, and the Lebanese population; training and motivation of peacekeeping forces; rules of engagement that allow for a military response to challenges; and co-operation among the various organizations involved in Peace-keeping under the Resolution. The Resolution envisions increasing UNIFIL to a maximum of 15,000, of which approximately 7,000 would come from European countries. Turkey and Qatar have agreed to participate, thus providing Arab/Muslim representation. There has been talk of deploying the expanded UNIFIL not only in southern Lebanon but also along the Syrian-Lebanese border. However, Syria objects to this proposal as a hostile act. Resolution 1701 also welcomed a decision by the Lebanese Government to deploy 15,000 personnel from the Lebanese Armed Forces to southern Lebanon as the Israeli forces withdrew. There are questions, however, about the likely effectiveness of Lebanese troops in maintaining stability. The 70,000-member Lebanese Armed Forces have limited capabilities and largely obsolescent equipments. Moreover, they are divided along religious sectarian lines, although Lebanon's leaders have tried in recent years to build a professional and more integrated force. While Resolution 1701 may succeed in creating a temporary calm and end to the fighting, may probably fail to change the fundamental political and military dynamics on the ground that started the war in the first place. The Lebanese Government and UNIFIL have stated that they will not disarm Hezbollah. Hezbollah itself has announced that it will not give up its weapons until a strong state has been established and that the war has not much harmed its military arsenal.

These raise many questions on how and whether Resolutions 1559 and 1701 will be complied with. Hezbollah remains wary of diplomatic initiatives by the international community and harbours a particular mistrust of the Security Council. Security Council Resolution 1559's initial purpose of bringing about political transformations in Lebanon through diplomacy has partly fallen through. Resolution 1701 charges the international force to act within the limits of its capabilities. While Hezbollah retains a great deal of capability and may remain an active military, Resolution 1701 depends on extraordinary co-operation from the Hezbollah, Israel, and the Lebanese Government and army. Resolution 1701 assumes that clashes between Israel and Hezbollah will not escalate to new major rounds of fighting; that Iran and Syria will not succeed in major resupply of new and provocative weapons; and that an international peacemaking force can be truly effective. However, Shib'a (Shebaa) Farms, a small 10-square-mile enclave near the Lebanon-Syria-Israel tri-border area known as the Shib'a Farms continues to exacerbate tensions in southern Lebanon and complicate implementation of cease-fire terms. At an inconclusive international conference on Lebanon held in Rome on July 2006, Lebanese Prime Minister presented a seven point proposal which called, inter alias, for placing the Shib'a Farms and some adjacent areas under UN jurisdiction until border delineation and Lebanese sovereignty over them are fully settled. The proposals also provided that the Shib'a Farms would be open to property owners during the period of UN custody. However, Resolution 1701 does not specifically endorse the seven-point plan and its proposals for dealing with the Shib'a Farms question. The Security Council should have noted that the status of the Shib'a Farms is an important factor, not only in the stability of Lebanon but also in any future agreements involving Israel, Lebanon, and Syria. If the Shib'a Farms area forms part of Lebanese territory occupied by Israel in 1982, it would come under the provisions of Security Council Resolutions 425 and 426, which addressed Israeli withdrawal from Lebanon. If it forms a part of the Syrian Golan Heights territory occupied by Israel in 1967, it would come under the provisions of other Security Council Resolutions (242 and 338), which address the Golan territory and other broader aspects of the Arab-Israeli conflict.

Measures (economic sanctions) against Libya

One of the notable trends in the present international community is the increasing of the international bodies, and principally, the Security Council, to react to threats of, breaches of peace and acts of aggression by means of sanctions. The British Royal Institute of International Affairs has defined sanctions as action taken by members of the international community against an infringement, actual or threatened, of the law.

However, it is uncertain whether international community, as used in this context, equates international organisations such as the UN for the purpose of establishing the legality of sanctions. Abi-Saab defines sanctions as coercive measures taken in execution of a decision of a competent social organ i.e. an organ legally empowered to act in the name of the society or community that is governed by the legal system. Unlike countermeasures which are normally taken by individual states, sanctions are imposed within a collective context, normally by an international organisation. This corresponds to the growth in recognition of international community interests, representing the creation of international institutional responses to violations of such core norms. A significant instance in this respect is the Security Council taking sanctions in 1992 against Libya for the blowing up of Pa Am flight 103 over Lockerbie (Scotland), in 1988 and France's UTA flight 772 over the Republic of Niger in 1989. The Security Council determined that the failure by the Libyan Government to demonstrate by concrete action its renunciation of terrorism and its continued failure to respond fully and effectively to the requests in Resolution 731 (1992), constituted a threat to international peace and security. Resolution 731 (1992) had called for the extradition of alleged bombers of an airplane over Lockerbie in 1988 to the UK or USA. The Security Council imposed a relatively restricted range of sanctions upon Libya due to its refusal to renounce terrorism and respond fully and effectively to the call in Security Council Resolution 731 (1992) to extradite suspected bombers to the UK or USA and the refusal to pay compensation claims. The sanctions included: (a) to deny of permission to any aircraft destined to Libya to take off from, land, or overfly their territory; (b) to prohibit the supply of any aircraft or aircraft components to Libya; and (c) to prohibit any provision to Libya of arms and ammunitions, technical advice, assistance, or training on military matters. The Security Council also called upon States to reduce significantly the number and the level of staff at Libyan diplomatic missions and consular posts and restrict or control the movement within their territory of all such staff who remain. Further Security Council imposed oil sanctions through the resolution 883 on 11 November 1993. That Resolution required all countries to refrain seriously from providing Libya any type of facilities and equipment useful in the export of oil and gas, and or, in the area of refining. A committee was set up to monitor compliance with the sanctions. In 1998, the Security Council adopted Resolution 1192 which provided, inter alias, for the suspension of the sanctions upon the certification by the Secretary-General of the arrival of the accused bombers in the Netherlands for trial.

The official position is that measures taken under Article 41 are not punishment but should be designed to secure compliance with decisions of the Security Council. Thus, the Security Council' imposed sanctions upon Libya through Resolution 748 (1992) in order for Libya to comply with Resolution 721 (1992), i.e. extraditing the alleged bombers. However, measures imposed by the Security Council under Article 41 are not restricted to cases of non-compliance with its decisions. The practice of the Security Council has moved considerably towards dealing with responsibility of States for breaches of international law. The determination of guilt against Iraq for its invasion of Kuwait, and the requirement for it to pay compensation is a case in point. However, the Committee on Economic, Social and Cultural rights has stated that sanctions often cause significant disruption in the distribution of food, pharmaceutical and sanitation supplies, jeopardise the quality of food and the availability of clean drinking water, severely interfere with the functioning of basic health and education systems, and undermine the right to work. Accordingly, the Committee stated in its opinion that sanctions regimes should not violate basic economic, social and cultural rights, on the basis that unlawfulness of one kind should not be met with unlawfulness of another. It follows that economic sanctions, in particular, may seriously affect and jeopardise the basic human rights of children, the elderly, the sick, women and other vulnerable members of the civilian population. Consequently, the Security Council has increasingly included in its resolutions on sanctions humanitarian exemptions with a view to permitting the flow of essential goods and services destined for humanitarian purposes. However, as noted by the Committee in its opinion, these exemptions have not produced the intended effects. Obviously, the Security Council imposed sanctions on Libya not on the basis of breach of international law but with the aim of maintaining international peace and security. It must be the case that in these situations, a fortiori, it must protect the human rights of the targeted State's population. If the ICJ actively reviews sanction imposed by the Security Council, a possibility raised by theLockerbie case, considerations of proportionality might be examined the Court. For example, the original act of bombing the aircraft had occurred several years before the case was brought and was never classified as a threat. It is therefore controversial to view Libya's subsequent failure to respond fully to the USA's requests to surrender suspects or to pay compensations, as a threat of international peace and security within the meaning of Article 39, especially when it had not established that Libya violated international law.

It is not alleged that the concept of breach of the peace is necessarily synonymous with a breach of international law, but rather, that the threat appeared rather insubstantial, or disproportionate to the measures adopted. In practice, Security Council's sanctions faces two limitations. Firstly, they must not cause serious human rights violations, though this is difficult to prove, especially when the sanctions contain an exception for humanitarian supplies. Secondly, they must be proportionate to the end being aimed at, either the restoration of international peace and security by the withdrawal of an aggressor State or some specific acts that would lead to the termination of the threat to the peace and security. The Security Council's decision to impose economic and other sanctions upon Libya amounted to the handling over of two bomber suspects and renunciation of terrorism by Libya. This dully occurred and the sanctions were repealed by Resolution 1192 (1998). However, although the sanctions were ostensibly directed towards the objective of prosecuting and punishing a grave incident of international terrorism, the precise methods selected by the Security Council in Resolutions 731 and 748 were more suggestive of a desire to punish the Libyan State than to avert a genuine threat to international peace and security. Sanctions imposed by the Security Council draw no distinction between the just and the unjust. They affect both the State and its citizens. This situation is the direct result of the primitive doctrine of collective responsibility. Following the sanctions imposed by the Security Council, Libya faced serious financial losses mainly in its oil industry. Libya has announced that the sanctions until 1998 had cost the country around 24 billion dollars, most of which affected its oil industry. In addition to the 24 billion dollars loss, Libya's income dropped by 5 billion dollars. The Libyan oil industry endured the largest sum of financial losses, and the refining section within the oil industry faced the highest loss. The trend of development and progress in the areas of exploration and production were also substantially damaged. Moreover, the gas development to meet increase in demand domestically and the demand for export tremendously slowed down. The imposition of sanctions in 1990s has had great impact on both, the sanctioned countries and the world energy market as well. Though they have had far less negative consequences than the Iraq sanctions they have been seen by the majority of the international community as symptomatic of sanctions abuse by a small number of great powers. In comparison with Iraq, Iraq citizens suffered from the effects of sanctions in the period 1990-2003 because of the guilt of their government. Epidemiology study conducted by Columbia University in 1999, which did not rely on Iraq data, indicated that at least 100,000 and more likely over 200,000, children below the age of five died between August 1991 and March 1998 over and above the number that would be expected to die in normal times. Three quarters of these excess deaths were attributed to sanctions. This is more than

total number of Iraqis killed in the Gulf War, when the overwhelming majority of casualties were combatants. The response has been to modify and target sanctions on those who are really responsible. The development of smart sanctions is still at an early stage. The question is whether they will be effective in achieving their aims by targeting the regime leaders of States and individuals such as terrorist suspects while at the same time alleviating the suffering of civilian population. One may argue that the sanctions against Libya following the Lockerbie case succeeded because they were well targeted, consisting of a ban on flight and an embargo on arms. However, in many situations, sanctions rarely achieve their primary purpose unless they are combined with economic and military measures to produce the required change in the targeted State. On other occasions it is the combination of sanctions with diplomacy. Therefore, economic sanctions are not by themselves an alternative to military force or diplomacy but must be used in combination with other foreign policy tools. Although economic sanctions may be intended to rally States behind their censorious attitude and they may be a symbol of public exposure and condemnation of the State allegedly misbehaving, the history of international relations speaks volumes for their ineffectiveness in practice. Sanctions advocates would argue that they still hold great promise. But only under conditions of wide international agreement, clear legal basis and purpose, and minimal harm to the innocent. These seem elusive goals in a world where a few powerful states and private interests use sanctions for their own geo-strategic and economic gains. However, sanctions continue to offer interesting possibilities. As observed by the UN Secretary-General, sanctions, as preventive or punitive measures, have the potential to encourage political dialogue, while rigorous economic and political sanctions can diminish the capacity of the protagonists to sustain prolonged fight.'

The use of force against Iraq in 1991

The most recent episode of the Security Council action under Chapter VII that has generated the greatest interest is the use of force against Iraq invasion of Kuwait. Iraq invaded Kuwait on 2 August 1990. The response of the Security Council to the Iraq invasion occurred in phases, moving from condemnation to economic sanctions and finally to the authorisation of use of force. In Resolution 660 (1990), unanimously adopted on the same day of the invasion, the Security Council condemned the Iraq invasion of Kuwait and demanded Iraq to withdraw immediately and unconditionally all its forces to the position in which they were located on 1 August 1990. Resolution 660 was followed by a series of resolutions that imposed various measures of increasing severity on Iraq. Resolution 661 (1990) imposed a regime of economic sanctions upon Iraq.

Resolution 662 (1190) declared the Iraq invasion of Kuwait null and void with no legal validity. The Resolution also called States to refrain from any action or dealing which might be interpreted as indirect recognition of the invasion. In Resolution 664, the Security Council demanded Iraq to permit the immediate departure of nationals of third countries. In Resolution 665 (1990), the Security Council authorised limited use of force to prevent the breaching of the sanctions regime. Eventually, due to unsatisfactory response from Iraq to its earlier resolutions, the Security Council adopted Resolution 678 (1990) on 29 November 1990. This gave Iraq one final opportunity ending on or before 15 January 1991, as a pause of good will to fully implement the earlier resolutions and withdraw from Kuwait. After this date, Member States co-operating with Kuwait were authorised 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. The Security Council requested all States to proved appropriate support for the action in pursuance of the Resolution. Military action commenced on 16 January by a coalition of States in Operation Desert Storm under the leadership of the USA. A cease-fire was declared by Resolution 687 which was wide-ranging in its terms. The action of the Security Council in response to Iraq invasion of Kuwait has been seen as a legitimate use of force under its enforcement power elaborated under Chapter VII of the UN Charter and binding upon all Member States by virtue of Article. Dixon argues that the military action was the most effectively enforcement action undertaken so far and the most widely supported, both politically and materially. It was collective security par excellence and this was the Council doing exactly what it was designed to do, and within the framework of the exercise of enforcement in the light of the absence of Article 43 arrangements. Some viewed the military action as the first textbook example of Security Council enforcement action under Chapter VII. Resolution 678 (1990), authorised Members stated to take all necessary means to restore international peace and security. It is clear from the debates of the Security Council that the phrase all necessary means was intended to cover the use of armed force. A common joke at the time of the adoption of Resolution 687 to declare the cease-fire was that just as Saddam Hussein had declared the war in Iraq to be the mother of all battles, Resolution 687 was the mother of all resolutions. The ejection of Iraq from Kuwait by a UN authorised force illustrated that collective security could work if UN Member States had the political will to make it work. Although it may be accurate to argue that the action in Iraq was the first textbook example of Security Council enforcement action under Chapter VII, there are some notable differences between the action taken and the UN Charter provisions. As Anton, Mathew and Morgan states:

To begin with, there was no standing army. Thus, instead of taking action itself, the Security Council was obliged to endorse the actions of a coalition of states. Further, rather that ordering states to act on its behalf, the Security Council authorised action by states who had already indicated they were willing to act in collective self-defence of Kuwait. The broad terms of the Resolution have also raised questions concerning its legitimacy. There were also cogent political reasons why the enforcement action was possible where so many others were not. Resolution 678 received positive votes from four of the five permanent members, while China abstained. The absence of Chinese veto was the most significant political aspect of the episode. Under the language of the official English text, abstention counts as a concurring vote in the practice of the Security Council. However, the language both French and Spanish official texts suggests that an abstention would constitute a veto. Accordingly, the legality of Resolution 678 has been questioned because of its significance, given the fact that the Security Council contemplated a use of force, and the fact that the reason for China's abstention was to seek a peaceful solution and had difficulty with accepting the Resolution because the phrase all necessary means permitted the use of military action. The Security Council could not altogether avoid the suspicion of the Member States using the UN to further their own political goals. The failure to of Resolution 678 to find expressly that measures under Article 41 had failed and the unfettered authorisation of the use of military action are other reasons said to impugn the legality of the Resolution. In Resolution 660 (1990), the Security Council stated expressly and unambiguously that it was acting under Articles 39 and 40 of the UN Charter. However, in Resolution 678, the Council said that it was acting under Chapter VII. Although it is reported that Resolution 678 was adopted because the sanctions imposed upon Iraq were inadequate or proved to be inadequate to achieve the removal of Iraq from Kuwait, it appears that Article 42, which authorises the Security Council to take military action when measure provided in Articles 41 would be inadequate or have proved to be inadequate, was not the legal basis for the Resolution. The reason for this is that Article 42 has a dependent relationship with Article 43 in which Member States consents to contribute to the maintenance of international peace and security by undertaking to make available to the Security Council, on its call and in accordance with a special agreement or arrangements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining peace and security. However, Sarooshi argues that Article 43 is simply one way of the Security Council fulfilling its purpose and that it can delegate its powers of maintaining international peace and security to Member States.

Justification of the use of force under Article 51 has been claimed to be elusive. In Resolution 661 (1990), the Security Council affirmed the inherent right of individual or collective self-defence in accordance with Article 51 of the UN Charter. Resolution 678 embraced Article 51 by recalling and reaffirming, inter alias, Resolution 661. However, instead of citing Article 51 explicitly, the Security Council referred to it indirectly and merely by recalling and reaffirming the self-defence Article. It is also hard to argue that the Security Council made recommendations under Article 39 because in Resolution 678, the Council made authorisations or decision, not a recommendation. Article 39 recommendations are understood to refer to Chapter VI provisions calling for the pacific settlement of international disputes, to be pursued either alone or in a tandem with economic and/or military decisions taken in accordance with Articles 41 and 42. The Operation Desert Storm gave rise to concern among States about the need to limit the discretion of Member States authorised to use force, the lack of UN control over the decision as to when to start the operation, the conduct of the campaign, the wide range and unclear mandate and the lack of time limit on the coalition action. This may demonstrate that whatever legal position may have been in 1991, subsequent state practice have confirmed that authorisation of peace enforcement missions is accepted as valid under the UN Charter. However, the lack of UN control remains a concern for many States. While it may be possible to interpret the UN Charter as to empower the Security Council to authorise the use of force on its behalf, or to delegate some of its powers relating to the maintenance of international peace and security, the open-ended nature of the mandate in the case of Iraq is a cause of concern. This can be evidenced by the continuing military actions against Iraq since 1991. Shortly after the end of Operation Desert Storm, the Security Council established no-fly zones. The USA and UK presumed to enforce these zones on the ground that the Security Council has authorised the use of military action. Another unilateral use of military action occurred in 1998 withOperation Desert Fox on the ground that Iraq had committed a material breach of its obligations of disarmament imposed by Resolution 687 (1991). This was followed by the 2003 invasion which basing on the same arguments concerning material breach and the revived authority of Resolutions 678 (1990), 687 (1991) and 1441 (2003) though legal justifications have varied from humanitarian necessity to and pre-emption. It is difficult to argue whether the process of reinterpreting the UN Charter by subsequent conducts since 1991 has moved beyond the authorisation by the Security Council to Member States to take action in the absence of specifically designated UN forces operating under the aegis of the Military Staffs Committee. In particular, it is difficult to argue whether in certain situations such authorisation may be implied or expressly granted.

What is clear, however, is that the Security Council has not live up to the expectations held by some commentators after the use military action in Iraq. If force is a necessary tool in international relations then it should rightly be carried out by and with the approval of a collective body, like the UN. However, USA has been at the forefront of the controversy over the unilateral use of force. At the same time many have felt that collective action is sometimes not possible so a single state may be allowed to use forcible actions. Connected with this debate is the controversy over whether it should be the Security Council who ultimately allows for the use of force, creating ambiguity as to the position of regional organisations.

The effectiveness of the Security Council

The role of the UN and its collective security system has been seriously challenged in recent years. The Security Council has been criticised for failing to act in cases of genocide and other humanitarian disasters which threaten international peace and Security. For example, criticisms have been levelled at the Security Council's failure to respond to events in Bosnia Herzegovina and Rwanda. On the other hand, there exist some examples of Security Council authorised force suggesting that the Council is taking a wide view of its enforcement powers to maintain international peace and security. However, one certainty is that the lack of political will on the part of the Member States rather than institutional failure is the main reason for the failure of the Security Council to act. There is no prospect of Security Council enforcement action unless it is with the agreement with the five permanent members. The existence of veto ensures the Security Council is frozen until these States decides UN collective action that serves their purpose. It works when the powerful UN members put forth their collective will, but never in the face of opposition from those who wield either the constitutional or military power to prevent it. Previously, it was the old Soviet Union that was neutering the Security Council through the use of veto, but now it the USA. With the imposition of sanctions against Libya, the Security Council has reached the height of its powers as it now seems to be motivated by the powerful state interests of the five permanent members rather than by a desire for a new world order. As the Deputy Secretary-General put it recently: Many of those who supported the [2003 invasion of Iraq] saw the Security Council's failure to authorise action as symptomatic of the UN's inability to provide a muscular response to today's threats. Many who opposed the war were disillusioned that the UN appeared helpless to prevent what they saw as premature and dangerous war, fought on uncertain grounds. As a result.people on all sides experienced a crisis of confidence in the UN.

The key question is the future of the UN collective security. The UN could rise to the challenge of meeting new threats or it could risk erosion in the face of mounting discord between its Member States and unilateral action by them. The Security Council needs to develop criteria for an early authorisation for forcible measures to address certain types of threats such as terrorist groups armed with weapons of mass destruction. In December 2003, the UN Secretary-General created the High Level Panel on Threats, Challenges and Change to generate new ideas about the kind of policies and institutions required for the UN to be effective in the 21st Century. In its report the High Level Panel claimed to set out a bold vision of collective security to respond to the world of new and evolving threats that could not have been anticipated during the foundation of the UN. The High Level Panel said that the Security Council needs to be more proactive in the future. Currently States want to bypass the Security Council, because of the lack confidence in the quality and objectivity of its decision-making. The solution is not to reduce the powers of the Security Council, but to reform it. The High Level Panel identified five criteria of legitimacy which the Security Council should address in decisions on military force in order to improve the chances of reaching international consensus on deeply divisive issues. Force should be used only (a) if there is serious threat; (b) for a proper purpose; (c) as a last resort; (d) involving proportional means; and (e) when military force is likely to have better results than inaction. States (at the world leaders submit held on September 2005) were divided on the desirability of the five criteria while others were sceptical about the need for the adoption of such criteria at all, which resulted into non-inclusion of the criteria in the States' Summit Outcome Document. While others have regretted the non-inclusion of the five criteria in the Summit Outcome Document,it is hard to imagine that the five criteria could have any real impact on the decisionmaking of the Security Council. The five criteria are inherently flexible, and largely subjective; they will not be in themselves be able to produce agreement. In Kosovo, the subject of fundamental disagreement between members of the Security Council was whether the use of force was the last resort. In Iraq the fundamental disagreement was based on the threat posed by Iraq's development of weapons of mass destruction and whether force was being used for a proper purpose and as a last resort. Given such disagreements, it is hard to see how application of the criteria could improve the effectiveness of the Security Council. In addition, there may be no point adopting such criteria to govern decision-making of the Security Council while remains itself unrepresentative. Any crisis of legitimacy of UN collective security system does not arise out of doctrinal disagreements on the law,

rather on practical and political problems and will remain the main obstacle to an effective Security Council.

Conclusion
The Security Council has the primary responsibility of maintaining international peace and security. Under Article 39 of the UN Charter, the Security Council has powers to determine the existence of any breach to the peace, breach of the peace or acts of aggression and then make recommendations or take military or non-military measures under Article 41 and 42. The Security Council has used these powers in response to Israel-Lebanon war, Libya's involvement in Lockerbie bombing and Iraq invasion of Kuwait in order to maintain international peace and security. The role of the Security Council for the maintenance of international peace and security has not been a tremendous success in the broadest strategic sense. However, the position of the Security Council has improved since the end of the Cold War. The longrunning dispute with Iraq and how to deal with its failure to comply fully with Security Council Resolution 687 (1991) appeared to mark a further moment of achievement with the adoption of Resolution 1441 (2002). However, the optimism which may have been engendered by the UN in the early 1990s has dissipated. The unanimity of the Security Council has fractured amid deep division between the permanent members. Increasing resort to force by states and non-state entities coupled with easy access to weapons of high destructive capacity pose a signification challenge to the Security Council in maintaining international peace and security