1.0 Introduction
This is a briefing paper for the Minister of Foreign Affairs on the legal issues [1] relating to Iran's ongoing nuclear energy programme. The Minister will be aware of escalating situation and the allegations that the nuclear programme is not solely for peaceful purposes. In light of the emergency session of the United Nations Security Council (hereafter "the SC") called by the United States, this report gives particular focus to:
A - An explanation and assessment of the options available to the SC; and
B - An opinion on whether, and if so on what basis, an alliance of concerned states could commence military strikes against Iran in the event the SC fails to agree on such a resolution.
2.0 Background to the situation at hand
Before addressing issues A and B above, it will be prudent to briefly outline the background to the situation at hand.
2.1 Non-Proliferation Treaty
The Treaty on the Non-Proliferation of Nuclear Weapons (hereafter "the NPT") is a treaty that aims, through good faith, to prevent the spread of nuclear weapons and nuclear weapons technology. It also aims to foster the peaceful uses of nuclear energy and to further the goal of disarmament. [2] Iran is a signatory to the treaty and has obligations to not pursue nuclear weapons or nuclear weapons technology. It is alleged that Iran is pursuing nuclear weapons materials and technology in breach of its obligations under the treaty. Additionally, Iran's past alleged non-compliance and cooperation with International Atomic Energy Agency (hereafter "IAEA") inspectors and requirements is also a breach of its obligations under the Statute of the IAEA.[3] Article IIIB(4) of the IAEA Statute allows the IAEA to report to the United Nations General Assembly (hereafter "the GA") or the SC where it feels appropriate. The article however requires the agency to report to the SC where issues of concern to international peace and security arise. It is therefore under this article that has led the current issue to be brought before the SC. [4]
2.2 Current relevant Security Council resolutions
Over the recent years the SC has passed four resolutions in response to allegations that Iran is pursuing nuclear weapons and technology.
2.2.1 Security Council Resolution 1696 (2006)
The IAEA was unable to provide assurances as to the nature of Iran's undeclared nuclear material and activities for three years. Thus this resolution was passed under Article 40 of the Charter of the United Nations (hereafter "the UN Charter"). Under this resolution they therefore demanded that Iran suspend all enrichment-related and reprocessing activities, including research and development. Under the resolution Iran had one month to comply or face the possibility of economic and diplomatic sanctions to enforce this decision. [5]
2.2.2 Security Council Resolution 1737 (2006)
This resolution, made under Article 41 of the UN Charter, calls upon all states to prevent the specialised teaching of Iranian nationals in disciplines that would contribute to Iran's "proliferation sensitive" nuclear activities or nuclear weapon delivery systems. [6]
2.2.3 Security Council Resolution 1747 (2007)
This resolution was authorised under Article 41 of the UN Charter. It called upon states to exercise restraint in the provision of "heavy weapons and related services" to Iran. It also required states and international financial institutions to not enter into commitments for grants, financial assistance or concessional loans with the Government of Iran, except for humanitarian and development purposes. [7]
2.2.4 Security Council Resolution 1803 (2008)
This latest resolution was also made under Article 41 of the UN Charter. In this resolution the SC expanded on the areas in the previous resolutions and required vigilance in areas of "public provided financial support for trade" with Iran and of banking with Iran. Requirements were also put on states receiving goods to and from Iran under various conditions. Additionally, the SC affirmed that it would review Iran's actions in light of the report requested from the IAEA, which was to be submitted within 90 days of the adoption of the resolution (2 March 2008). Failing the requirements under this resolution, the SC said that it would adopt further appropriate measures under Article 41 of the UN Charter to give effect to its resolutions. [8]
From this the Minister should note two points. Firstly, the Minister should be reminded that New Zealand is obliged to comply with the requirements of the resolutions noted above as per its obligations under Articles 24 and 48 of the UN Charter and the New Zealand United Nations Act 1946. Secondly, the Minister should note that the 90 days specified under Resolution 1803 (2008) will soon expire and that the IAEA should be expected to soon submit the required report.
3.0 An Explanation and assessment of the options available to the SC
The powers of the SC are set out in Article 24 of the UN Charter. Article 24(1) states that "…the Security Council [shall have] primary responsibility for the maintenance of international peace and security…". Therefore, whenever there are alleged threats to the maintenance of international peace and security, as there arguably may be with the Iranian nuclear energy programme, the SC has the duty, set out above, to attempt to restore that peace and security. The tools with which the SC has already set out to do this with, and will likely continue to use, are set out in Chapter VII of the UN Charter. [9] The following sets out the key articles and provides and assessment of each. [10]
3.1 Article 39
This article is arguably the prerequisite article before the most powerful instruments of the UN can be invoked. [11] The adoption of enforcement measures therefore requires the SC to determine whether there is "…any threat to the peace, breach of the peace, or act of aggression…". As set out in Article 1(1) of the UN Charter, the maintenance of international peace and security is the most important goal of the UN. This resolution gives emphasises that the SC has the sole power to determine whether there is a threat to international peace and security. However, as an article that sets out the prerequisites with which the SC's extensive powers can be exercised, the exact conditions that satisfy its requirements remain vague because of the broad notions used in it.
In the case at hand the SC has at no stage determined that Iran's nuclear energy programme is a "threat to the peace, breach of the peace or act of aggression". It can be argued that the SC has deemed the requirements here have been satisfied because resolutions already made in response to the nuclear programme were created without explicit reference to this article. It is generally understood amongst the international community that the SC does not explicitly have to specify under which article it is acting, the use of the language of Article 39 is apparently sufficient. [12] In the resolutions outlined above however, the SC is "Concerned by the proliferation risks presented by the Iranian nuclear programme and…mindful of it primary responsibility…for the maintenance of international peace and security". [13] Arguably this falls much short of the SC "determines" or "finds" that the nuclear program is a threat to international peace and security, even though it uses words from Article 39.
No doubt this wording could be the result of diplomatic pragmatism and compromise, but nevertheless, it could be argued that the critical procedural restriction on the use of the SC's coercive tools has not been satisfied. In the situation with Kosovo, where the SC did not determine whether a threat to the peace existed because of diplomatic division, the imposition of an arms embargo was not in line requirements of Article 39. [14] The same could be said in this situation. Trade and economic sanctions have been imposed and yet no clear determination of the existence of a threat to peace and security has been made. If at the upcoming emergency meeting any state proposes further action, it is suggested that New Zealand somehow advocate that a determination under Article 39 first be made so as to give any proposed action clear legal legitimacy, even though New Zealand does not currently sit on the SC. This is especially important if New Zealand is to voluntarily comply with the resolution as its reputation as a responsible and honest international citizen would be brought into question.
3.2 Article 40
This article aims to "prevent an aggravation of the situation" before the SC. For this reason, before making further determinations authorised under Article 39, the SC may make "provisional" measures to try resolve the situation. Therefore, the measures taken under this situation must leave the legal positions of any state concerned unaffected. When considered in relation to the other articles available to the SC, this provision appears to be the "softer" provision that maintains matters at the status quo until the SC or other organisation have time to fully consider the issues at hand, or simply give the parties involved time to "cool off" before other actions are made. [15]
Again, as discussed above, it is often suggested that Article 40 does not require a determination under Article 39. This is of particular note because the article makes no reference to "peace and security". However, as discussed above, to ignore the provisions of Article 39 would remove one of the very few restrictions on the exercise of SC power.
With reference to the situation at hand, resolution 1696 was made under this Article. As required by the UN Charter, it was only provisional and threatened that if its requirements were not met the SC would consider "additional measures". [16]
3.3 Article 41
This article states that the SC may "…decide what measure not involving the use of force are to be employed to give effect to its decisions…". Thus this provides the legal basis for all non-military enforcement measures. The fact that the article also empowers the SC to call upon member states to enforce the measures, this article allows legally binding measures on third party states. [17] On the assumption that the allegations at hand are true, such an article can be critical for the successful maintenance of peace. If a third party state is to be adversely economically affected by a resolution it must promptly consult the SC to address these concerns. [18] It does not appear that New Zealand is one such state.
Although the article does not specifically say so, practice has not excluded the SC's power to impose positive obligations on the target state under this article. For example, Security Council Resolution 687 (1991) put a positive obligation on Iraq to destroy different categories of weapons, even though Article 41 appears to require only third party states to actively apply the measures required by the SC.
On a humanitarian level, Article 41 does not specify limits on the effect sanctions or enforcement measures may have on individual citizens. Technically the SC is free to make its measures as harsh or complex as they wish. For example, SC sanctions on Southern Rhodesia put an embargo on oil imports. [19] This would have caused considerable economic pressure on the economy of Rhodesia, and even more so on the individual citizens. The SC has tried to address such concerns and therefore tries to refine its approach to the design, application and implementation of mandatory sanctions. [20] The resolutions in this case have been designed to reflect this concern and target individual people directly involved in the situation and also target trade relating to nuclear technology, arms and finances that may aid proliferation. If further resolutions are suggested at the emergency meeting, it is respectfully advised that the Minister ensure that similar restraints are proposed and voted on, so as to prevent unnecessary and disproportionate distress on the people of Iran.
3.4 Article 42
This is the most coercive tool available to the SC. It allows for the SC to use military force to "maintain or restore international peace and security". The use of force does not have to be actual military strikes but can also take the form of demonstrations and blockades. [21]
As a requirement the SC must deem that the provisions available under Article 41 "would be inadequate" and that military force is required. [22] It does not however mean that the SC must have first attempted to use Articles 40 and 41 and then resort to the use of force. Article 42 will always be available upon the determination that Article 41 would not be ineffective. Nevertheless, the Minister should note that the SC may only resort to military measures in exceptional cases. [23] Because of the inherent dangers associated to military action, under international law the SC must consider whether the action can be justified and whether it complies with principles of proportionality. [24]
This is the only article that explicitly uses the words "peace and security", referring it back to Article 39. This creates the basis for the argument that before action can be taken under this article there must be a determination that there is "a threat to the peace, breach of the peace or act of aggression". Some may argue that Articles 42 and 39 are separable and that therefore no determination under Article 39 is required, however, this does not explain why that article explicitly refers to Article 42. [25] Therefore such arguments are not truly convincing.
Once there has been a determination under Article 39 and a decision to use military force is made, the SC must then specify the type of force to be used to restore peace and security. This suggests that unless a specific decision is made in this regard, the use of force by states to enforce and implement SC resolutions is unlawful. [26] This will be discussed further below under 'Implied Authority'.
The Minister should note that arguments have been raised that the SC is not authorise a decentralised implementation of resolutions under Article 42. That is, to allow military forces to be controlled and governed by member states and the SC directly is illegal. The reason for this being that Article 43 requires there be a permanent force available to the SC and that such forces should carry out missions under Article 42. However, the Minister should not find such arguments convincing, for if they were to hold true the SC would be left "impotent" in the face of situations where there are threats to peace and security and a military response is required. [27] On a broad consideration, it is also in line with the UN Charter that to permit action under Article 42 even though the envisaged conditions under Article 43 have not been met. [28]
In relation to the Iran situation, as noted above, none of the SC resolutions explicitly refer to Iran's activities as a threat to international peace and security. For this reason, and the reasons noted above, New Zealand should be cautious in supporting the use of force against Iran. Additionally, the Minister should be mindful of recent statements made by the New Zealand that "it remains New Zealand's strong desire to see the matter resolved in a peaceful, diplomatic manner". [29]
Upon consideration of the above issues and wording of the relevant resolutions, it would appear that only action under Article 41 would be legal and appropriate.
4.0 Basis on which military strikes may be conducted against Iran in the event the SC fails to agree on a resolution
There are several heads under which a coalition of concerned states could consider conduct military strikes, namely: implied authority from the SC, the Uniting for Peace Resolution, self-defence and unilateral action. The legal issues relating to each head of action are set out below. [30]
4.1 Implied Authority from the Security Council
In the past, where states have not been able to secure express authority to use force from the Security Council under Article 42, certain states have sought to justify their use of force as being impliedly authorised by the SC. There have been three recent cases in which this has been used as a justification of military action:
- Iraq in January 1993, the imposition of no-fly zones and Operation Desert Fox,
- Kosovo, and
- Operation Iraqi Freedom.
4.1.1 Implied Authority in Iraq during 1990's
After Iraq had been forced out of Kuwait by a coalition of UN members, it was required by SC resolutions to allow weapons inspectors to ensure it was destroying its weapons of mass destruction (hereafter "WMDs"). [31] When it failed to do this, the UK, US and France launched large scale missile and air attacks on facilities connected with Iraq's nuclear weapons programme. The Secretary-General of the UN then said that "the raid…received the mandate from the SC, according to Resolution 678, and the cause…was violation by Iraq of Resolution 687…" [32] This was the first proper instance of implied authority being used. Although the full legality of the action is still not totally clear, from the Secretary-General's statement it is possible to discern that for claims of implied consent to be legitimate: there must be a material breach of a SC resolution and that the action taken must be to enforce that resolution.
When further breaches occurred, the US and UK launched operation Desert Fox in 1998 where extensive bombing of Iraq was conducted. The US and UK claimed that SC Resolution 1205, which condemned the decision of Iraq to cease cooperation with weapons inspectors, had revived authority under Resolution 678. However this time most states did not accept the legality of the action. Russia stated that "it was a breach of International law, the US and UK had no right to act independently on behalf of the UN…". [33]
4.1.2 Implied Authority in the case of Kosovo
In response to the use of excessive force by Serbian forces and the Kosovo Liberation Army, the SC passed three resolutions under Chapter VII of the UN Charter: SC Resolutions 1160 (1998), 1199 (1998), and 1203 (1998). It is clear that none of these resolutions expressly authorised the use of force, and it is accepted that they did not amount to an implied authorisation to use force. [34]
Nevertheless, when NATO began a bombing campaign, several states argued that the resolutions did justify the use of force. They suggested that as the SC had adopted the resolutions under Chapter VII and that Yugoslavia had committed "flagrant violations" of their requirements, NATO was justified in acting as it did. [35] However, when Yugoslavia challenged the ten NATO members before the International Court of Justice (hereafter "the ICJ"), only nine states based their defence on implied authority. The tenth state, Belgium, said that the armed intervention was "based on" SC resolutions, but then went further to also rely on humanitarian intervention. [36] From this, and opinion at the time it is clear that the majority of states were not willing to accept a doctrine of implied authorisation and many have since stressed the role of the SC and need for express authorisation. [37]
4.1.3 Implied Authority in Operation Iraqi Freedom
The most recent and extensive instance where implied authority was relied upon occurred was in March 2003 against Iraq. Prior to the US led invasion of Iraq, the SC passed Resolution 1441 which recalled the SC's previous relevant resolutions requiring Iraq cooperation with weapons inspectors, including Resolutions 678 (1991) [38] and 687 (1992). The resolution also found that Iraq was in material breach of its obligations under the resolutions. [39] As Iraq had allegedly refused to cooperate with weapons inspectors the US and UK argued that there had been a material breach of the resolution, however this issue was never determined by the SC or Secretary-General. They then also argued that resolution 1441 did not expressly stipulate that another resolution was necessary before military action could be authorised. [40] Finally the US and UK (and Australia) argued that the material breach revived the authority to use force under Resolution 678, and states were free to unilaterally resort to force. [41] In spite of this, most SC members, including Russia, France and China, were not convinced that there was implied authority to resort to force. In March 2003 the Secretary-General also noted that "if the US and others were to go outside the [Security] Council and take military action, it would not be in conformity with the [UN] Charter." The Minister should note that for a majority of states this remains the current legal position. [42]
4.1.4 Implied Authority in the current case with Iran
In light of the above instances where implied authority was relied upon as a justification for military action, there has only been one situation where the international community has accepted its legitimate use. This occurred where there the SC (or Secretary-General on behalf of the SC) determined that there was a material breach of a SC resolution. As has previously been the position of the New Zealand, the Minister would be prudent to wait for SC determination and authorisation in this instance before taking any action. If this were to occur, there would most likely in any case be a resolution making sure of this authority.
On a purely rights and legal focus, unilateral reliance on the doctrine of implied authority is also illegal on the following grounds. Articles 31 and 32 of the UN Charter give states, whose interest are affected by matters discussed at the SC, the right to appear before the SC to give their opinion. As Article 42 envisages that the SC should normally sit and discuss the question of the use of force before authorising it, reliance and unilateral action under the doctrine of implied authority deprives states such as Iran of their right to appear before the SC to state their case before action is taken against them. Given that coercive military force is relatively serious, the writers of this report believe that the gravity and importance of this right arguably increases and should be given more protection.
The Minister should also be aware that there is uncertainty as to what constitutes a material breach. The Iranian position is that a material breach will only occur if there is any occurrence of nuclear diversion, for which there is currently no evidence. [43] On the other hand, the US and other states would likely argue that a material breach would occur where there is any non-compliance with a SC resolution, or arguably even the IAEA statute or NPT. This contrast of opinion further adds weight to the suggestion that it would be prudent for New Zealand to wait for SC determination and authorisation.
4.2 The Uniting for Peace Resolution
During the Cold War, the GA, concerned at the inaction of the SC and its failure to play its constitutional role under the UN Charter, passed the Uniting for Peace Resolution (hereafter "the UFPR") in 1950. This allowed the GA to call and emergency meeting in the event that there was a lack of unanimity between the permanent members of the SC to perform its primary responsibility: the maintenance of peace and security. [44] The GA may then recommend collective measures, including the use of armed force if necessary, however this can only be done where there is an act of aggression or threat to the peace. [45] The legality of this was upheld by the ICJ based on the reasoning that the SC has the primary, but not exclusive, responsibility for the maintenance of international peace and security. [46]
In the current case there are three problems that arguably prevent the legitimate use of this resolution. Firstly, there is currently no unanimity between the SC permanent members. Even if there is disagreement on ways forward between members, it must be substantial to constitute true unanimity as envisaged when the UFPR was first drafted.
Secondly, the SC is still deciding on possible means of resolving the issue at hand as each of the resolutions relating to Iran above end with "[the SC] Decides to remain seized of the matter". As the SC has the primary responsibility to deal with threats to the peace and security, it would arguably be unreasonable for the GA invoke the UFPR, especially given the wording of the current resolutions.
Lastly, there has arguably been no "breach of the peace or act of aggression". Thus the prerequisites required before a resolution justifying strikes on Iran have not been met and any use of force under the UFPR would be illegal.
4.3 Self-Defence
Article 51 of the UN Charter states that nothing in the Charter "…shall impair the inherent right of individual and collective self-defence if an armed attack occurs…". Upon initial consideration of the words of the UN Charter, it appears that such an argument based on individual or collective self-defence would not hold because there has not been an armed attack for states to respond to. However, in situations such as this, states therefore turn to the doctrine of pre-emptive self-defence, or what has colloquially been called pre-emptive strike.
The argument rests on the existence of some imminent threat of attack from a target state upon one or more other states. In the case of Iran, it is suggested that Iran is developing nuclear weapons with the intention to use, or threaten to use, such weapons on other states. If the allegations are true this concern carries some weight, especially given the statements of President Ahmadinejad towards Israel [47]. No doubt Israel would find such statements coupled with the allegation of Iran's nuclear ambitions threatening, and in light of collective security treaties, so would Israel's allies. Nevertheless, the question of whether this justification for the use of force is legal has not conclusively been determined.
In 1981 Israel undertook an attack on Iraq's nuclear reactors claiming anticipatory self-defence. Israel claimed that it had acted to remove a nuclear threat to its existence as the nuclear reactor was designed to produce bombs whose target would have been Israel. In spite of this the SC condemned Israel for its actions, as did the GA which found that its actions were premeditated and unprecedented acts of aggression [48]. In allowing the condemnation of Israel, the US stated that Israel's actions violated the charter because they did not exhaust peaceful means for the resolution of the dispute first. Other states said that the attack was unjustified given that the IAEA had found that there was no evidence Iraq was planning to use the reactor for the development of nuclear weapons. Other states simply rejected anticipatory self-defence in principle. [49]
In recent year under the Bush administration, the US has arguably extended the doctrine "far beyond its traditional scope". [50] Pre-emptive self-defence was one of the grounds with which the US tried to justify its war on Iraq in 2003 with Operation Iraqi Freedom. [51]
However, in spite of this it is unclear whether the international community, including the US, believes in the legality of this doctrine. Firstly, as noted above, the US did not solely rely on the doctrine when justifying their attack. What's more, the other countries who supplied troops in the initial attack did not attempt to rely on this ground to justify their actions at all but instead claimed there was implied authorisation. Furthermore, the reluctance of the US to acknowledge the right of other states to invoke pre-emptive self-defence further adds weight to doubts as to the legal legitimacy of this defence. [52]
Although politically New Zealand is bound by collaborative security agreements, on a legal basis, the Minister should be cautious in agreeing to any actions based on self-defence. Firstly, there has been no armed attack towards New Zealand, nor any of its allies, by Iran. Therefore New Zealand would not be able to legally rely on article 51 of the UN Charter if there is a strike on Iran based on unilateral or collaborative self-defence claim. Also, claims of pre-emptive self-defence may not hold up as there as yet appears to be no imminent threat of attack from Iran. Even if the doctrine is assumed to be a legal justification for the use of force, as the IAEA has not determined that there is evidence that Iran is developing nuclear weapons, any action under this ground would be considered illegal as it was when Israel relied on the doctrine under similar circumstances.
4.3.1 General Principles Governing the Use of Armed Force - Necessity and Proportionality
Finally, the Minister should be aware of the principles of necessity and proportionality. As a part of the basic core of self-defence, all states generally agree that self-defence must be necessary and proportionate. [53] According to these principles, self-defence must not be retaliatory or punitive. These requirements are not expressed in the UN Charter but are part of International Customary Law. [54] In the event that New Zealand does agree to any military strike on Iran, the Minister should ensure that such action is only what is proportional and necessary to remove the threat.
4.4 Unilateral action independent of the United Nations
The principle of state sovereignty, put broadly, asserts that states are free do as they wish. Therefore, under a strict realist interpretation of this there is nothing preventing states from making a military strike against Iran without authority from the UN or legal justification. However, upon becoming members of the UN, states agreed to accept the authority of the UN and their obligations under the UN Charter. As the UN Charter aims to prohibit unilateral use of force and centralise its legitimate use under the authority of the SC, coupled with the description of this head of action, such action would be illegal and in contradiction of the principles and articles of the UN Charter.
5.0 Conclusion
This briefing paper considers the legal aspects of the options available to the world community in response to Iran's nuclear energy programme. Upon consideration of the options, the only clearly legal option available is a resolution from the Security Council. These options included resolutions under Articles 41 and 42 of the UN Charter. All other options under the various other heads of action outlined have elements of illegality and illegitimacy in their justification. These heads of action were implied authority, the Uniting for Peace Resolution, self-defence and unilateral action independent of the United Nations. In the upcoming emergency meeting of the Security Council, the Minister should be mindful of the legal requirements of each head of action, as well as their respective political considerations, when considering action on New Zealand's behalf.
[1] As the Minister will be aware this is largely a political issue. However, as noted, the scope of this briefing is the legal issues relating to this situation. For this reason the political elements of the issues raised will not be discussed within the scope of this briefing, even though the political elements may often be of primary significance compared to the legal issues.
[2] International Atomic Energy Agency, Treaty on the Non-Proliferation of Nuclear Weapons (NPT), International Conventions and Agreements, <http://www.iaea.org/Publications/Documents/Treaties/npt.html>, (at 6 May 2008).
[3] Article XII sets out the safeguards that all member states must comply by. IAEA is an abbreviation of the International Atomic Energy Agency.
[4] The Minister should note that Iran rejects that its activities are a threat to international peace and security and therefore this requirement to report to the SC should not have been triggered. See "Communication dated 26 March 2008 received from the Permanent Mission of the Islamic Republic of Iran to the Agency", IAEA Information Circular, INFCIRC/724, p.3.
[5] In Focus: IAEA and Iran, Chronology of Key Events New Update, International Atomic Energy Agency, <http://www.iaea.org/NewsCenter/Focus/IaeaIran/iran_timeline3.shtml#july06>, (at 6 May 2008).
[6] United Nations Security Council Sanctions Committee, Security Council Committee Established Pursuant to Resolution 1737 (2006), The United Nations, <http://www.un.org/sc/committees/1737/index.shtml>, (at 6 May 2006).
[7] Ibid, (at 6 May 2006).
[8] Ibid, (at 6 May 2006).
[9] The tools are referred to in this way because the "concerned states" have already set out the issue under Chapter VII. However it is arguable that the dispute could initially have been discussed under Chapter VI as the dispute, on a political level, is essentially between a few "concerned states" and Iran. If the measures taken under Chapter VI failed the SC could have then turned to Chapter VII.
[10] Due to the scope of this briefing it is not possible to set out a full discussion on the nature, procedural requirements, and measures available under of the articles. Those matters which are relevant to the upcoming emergency session have however been discussed. For a full discussion on the nature of these articles see Bruno Simma et. al., The Charter of the United Nations: A Commentary (Edition 2, Oxford University Press, New York, 2002) pps701-759.
[11] Ibid, p718.
[12] Christine Gray, International Law and the Use of Force, (Edition 2, Oxford University Press, New York, 2004) p197.
[13] See the preamble to all four resolutions: SC Res 1696, 5500th mtg, UN Doc S/Res/1696 (2006), SC Res 1737, 5612th mtg, UN Doc S/Res/1737 (2006), SC Res 1747, 5647th mtg, UN Doc S/Res/1747 (2007), and SC Res 1803, 5848th mtg, UN Doc S/Res/1803 (2008).
[14] Simma et. al., above n10, p727. Additionally, see discussion of the relationship between Articles 39 and 40 at p731.
[15] Simma et. al. above n10, p727. Additionally, see discussion of the relationship between Articles 39 and 40 at p733.
[16] SC Res 1696, 5500th mtg, UN Doc S/Res/1696 (2006).
[17] Simma et. al. above n10, p727. Additionally, see discussion of the relationship between Articles 39 and 40 at p739.
[18] Article 50 of the Charter of the United Nations.
[19] SC Res 217, 1258th mtg, UN Doc S/Res/217 (1975).
[20] United Nations Security Council Sanctions Committee, United Nations Security Council Sanctions Committees, The United Nations, <http://www.un.org/sc/committees/>, (at 6 May 2008).
[21]Article 42 of the UN Charter.
[22]Ibid, Article 42.
[23] Simma et. al., above n10, p753.
[24] Ibid, p753. Note that the wording of Article 42 states "as may be necessary to the maintenance of peace and security". Arguably this brings the necessity and proportionality principles right into the UN Charter itself.
[25] Ibid, p753.
[26] Ibid, p753.
[27] Certain Expenses Case, ICJ Reports (1962), p167.
[28] Simma et. al., above n10 p753. This is particularly apparent under consideration of Article 48 which specifies that not all action has to be performed by forces at the disposal of the SC but that there is room for action from the forces of member states.
[29] Phil Goff, "Iran's Continued Non-compliance Causes Concern - Goff" (Ministry of Foreign Affairs and Trade, 13 March 2008). See also, Phil Goff, "UN Imposes Further Sanction s on Iran" (Ministry of Foreign Affairs and Trade, 25 March 2008).
[30] Again, as the Minister will surely be aware, if either option is pursued by any state its justifications may be primarily politically motivated and the legal justification may be of secondary concern. Any action may, in practice, become legally justified if conducted by a sufficiently powerful state.
[31] SC Res 687, 2981th mtg, UN Doc S/Res/687 (1991).
[32] "UK Materials on International Law', 65 BYIL (1993) 736, in Gray, above n12, p266.
[33] UN Press Release SC/6611, 16 December 1998.
[34] Gray, above n12, p267.
[35] These states included France, the Netherlands and Slovenia. Gray, above n12, p269.
[36] The Legality of the Use of Force Case, Belgium Oral Pleadings, in Gray, above n12, p269.
[37] Gray, above n12, p269.
[38] Recall that Resolution 678 authorised member states "cooperating with the Government of Kuwait…to use all necessary means to drive Iraq out of Kuwait and restore international peace and security…" (Emphasis added)
[39] Gray, above n12, p281.
[40] The resolution only required the SC "consider" the situation and not, as it was argued, make a "decision" on the situation.
[41] Gray, above n12, p281.
[42] Ibid, p281.
[43] "Communication dated 26 March 2008 received from the Permanent Mission of the Islamic Republic of Iran to the Agency", IAEA Information Circular, INFCIRC/724, p.3.
[44] Such meetings may be summoned upon request of the any seven SC members or by a majority of the members of the GA.
[45] GA Res 377 (V), 5th session, 302 mtg, UN Doc G/Res/377 (1950), paragraph 1.
[46] Certain Expense Case, ICJ Reports (1962) 151.
[47] See various report starting from the 27 October 2005 where the Iranian President stated that Israel should be "wiped of the face of the earth". Ewen MacAskill and Chris McGreal, "Israel should be wiped off map, says Iran's president" Newspaper (United Kingdom, 27 October 2005) <http://www.guardian.co.uk/world/2005/oct/27/israel.iran>, (at 8 May 2008).
[48] General Assembly Resolution 36/27.
[49] Gray, above n12, p133.
[50] Ibid, p176.
[51] The other ground was implied authorisation from the SC.
[52] Gray, above n12, p199.
[53] Gray, above n12, p120
[54] Affirmed in the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports (1996) 226, paragraph 141 and the Oil Platforms Case, ICJ Reports (2003) at paragraph 43.