CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ SOME CRITICAL REFLECTIONS ON THE EXTENDED USE OF MILITARY FORCE… uncompromisingly stressed that there is no such thing as an “implied authorization to use force”, stating “that force has either been authorized or it has not.” 11 2.2 Security Council authorization The UN Charter does not provide an exact basis of UNSC authorization. The authorized military operations replaced in fact stipulations of the UN Charter that the UNSC would have at its disposal armed forces in accordance with a special agreements concluded with member states (Art. 43-7). Such agreements, however, have never been concluded. Military operations “authorized” by the UNSC are not carried out or financed by the UN but by states alone or by international organizations (NATO, the EU, the AU), participating in military operations. Only during the period from 1 January 2000 until January 2012 did the UNSC adopt 80 resolutions in which it authorized states and international organizations to use armed force. Of these 80 resolutions, 75 were adopted unanimously. Almost all resolutions explicitly determined that the situations concerned constitute “a threat to international peace and security” and referred to Chapter VII of the UN Chapter. 12 In most cases the UNSC refers to threats to peace and security. Only a reference to Chapter VII does not itself automatically mean an “authorization” of the use of force. The UNSC may accept not only a recommendation but also decide upon a wide variety of measures provided in Art. 39. Therefore the text of the resolutions and their correct interpretation should be decisive. A phrase in resolutions authorizing one to use “all necessary means” has been understood mostly as authorization to use also military force. There are cases when the UNSC explicitly excluded the use of military force, imposing economic sanctions on Iran and other countries. On the other hand, there are some cases (exceptionally) when the SC in authorization resolutions referred directly to the use of armed force. If there is an intention of the UNSC to authorize the use of armed force, the UNSC should express it explicitly 13 to avoid any doubts. The UNSC may provide authorization for a limited period of time or without giving any time. In such a case a new resolution to terminate authorization is required. It is important for the UNSC to always execute control or supervision over authorized military operations. Therefore a reporting procedure on the basis of the UNSC authorization, often in specified intervals, is required. A unilateral action taken individually or collectively without UNSC authorization is difficult to justify on the basis of either the UN Charter or general (customary) international law. 11 Supra note 1, p. 10. 12 See BLOKKER, N. Outsourcing the use of force: towards more Security Council control of authorized operations? in: WELLER, M. (ed.) The Oxford Handbook of the Use of Force in international Law. Oxford: OUP Oxford, 2015, pp. 202-226. 13 Ibid ., p. 213. LOBEL, J., RATNER, M. Bypassing the Security Council: ambiguous authorizations to use force, lease-fires and the Iraqi inspection regime. AJIL. Vol. 93, 1999, pp. 124-154.

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