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Nasu, Hitoshi --- "Investigation Proprio Motu for the Maintenance of International Peace and Security" [2004] AUYrBkIntLaw 5; (2004) 23 Australian Year Book of International Law 105

Investigation Proprio Motu for the Maintenance of International Peace and Security

Hitoshi Nasu[∗]

I. Introduction

International disputes arise as frequently from disagreements over facts as they do over legal points. So much is clear from international disputes concerning boundary delimitation, territorial entitlement, and most significantly, the use of armed force. While most disputes arising out of factual disagreements are resolved through compromise (with or without the assistance of a third party), some cases have led to persistent conflicts between the states or parties involved. Faced with the spectre of unresolved conflicts due to factual disagreements, especially when they endanger international peace and security, there are good reasons why the use of an independent fact-finding body empowered to investigate the dispute should be considered.[1] The significance of fact-finding in general in the field of the maintenance of international peace and security was confirmed by the United Nations (UN) General Assembly in 1991,[2] and the several reports authored or requested by UN Secretaries-General.[3] Notwithstanding the apparent need and enthusiasm for greater use of fact-finding missions, their use and usefulness have been significantly limited as a consequence of the sensitivities of states to increased constraints on their sovereignty. Among different types of fact-finding activities including inquiry[4] and observation,[5] investigation under article 34 of the UN Charter is of special interest in this relation, as it aims at overcoming the sensitivities of states for a particular purpose of maintaining international peace and security.[6]

In contrast to the active utilisation of investigatory bodies under article 34 of the UN Charter on the initiative of the Security Council at the beginning of the United Nations era, the unsatisfactory use of investigation over recent decades amounts to a failure on the part of the UN.[7] Even though the Security Council is often said to have been fully activated only since the end of the Cold War, an optimistic view of the prospects for an active role of the Security Council overlooks the fact that the Security Council has often failed in preventing or minimising armed conflicts. Indeed many of the Security Council’s peace enforcement missions have failed to manage conflict due to the lack of careful investigation or the disregard of the results obtained through investigation. For instance it is arguable that, in the case of the 1991 Gulf Crisis, the absence of an investigatory mission made Iraq confident of the unwillingness of intervention on the part of the UN and, after the armed invasion of Kuwait began, delayed an appropriate collective response to the events by the Security Council.[8]

This study analyses the possibilities of restoring the significance and utilisation of investigation proprio motu for the maintenance of international peace and security.[9] The consequential focus will be placed on the functions, the legal basis and the compulsory nature of investigation proprio motu by the Security Council, and the ensuing issue of effectiveness of its implementation, suggesting that:

1. investigation undertaken by the Security Council can perform several functions necessary to prevent the exacerbation of international conflicts;

2. the Security Council can decide to employ investigation proprio motu under article 34 of the UN Charter in any matters concerning the maintenance of international peace and security;

3. states are obliged to accept such investigation, pursuant to article 25 of the UN Charter without any exceptions;

4. the mandatory nature of investigation enables its effective implementation; and therefore

5. more extensive use of investigation proprio motu by the Security Council is desirable and required to reinforce the UN capabilities to prevent international conflicts from worsening.

To begin with, Section II examines methods of fact-finding in a historical context, tracing the developments leading up to investigation under article 34 of the UN Charter. Section III will clarify the functions, the legal basis and the legal nature of investigation to be taken on the initiative of the Security Council. Section IV will focus on the issue of effectiveness of investigations proprio motu carried out by the Security Council.

II. Emergence and Development of Fact-Finding

(a) Emergence of fact-finding activities

The institution of fact-finding in the international field began at least as early as 1895, when a massacre allegedly committed at Sassoun in Turkey was investigated by a commission composed entirely of Turks with the representatives of the states concerned attached to it.[10] It was at the Hague Peace Conferences of 1899 and 1907, however, that a method of fact-finding was introduced as a specific institutional arrangement in which a disputed issue of facts is independently investigated. There was awareness of its importance owing to the experience of the serious disagreement over the facts underlying the Maine incident between the United States of America and Spain in 1898.[11] This growing awareness led to the provisions on international commissions of inquiry in the Convention for the Pacific Settlement of International Disputes concluded in 1899 and further improved in 1907.[12] Article 9 of the Conventions stipulated that inquiry was ‘to facilitate a solution of these disputes [arising from a difference of opinion on points of fact] by elucidating the facts by means of an impartial and conscientious investigation’.[13] It is to be noted, however, that international commissions of inquiry were looked upon as a last resort, presupposing the inability of parties to a dispute to come to agreement by diplomatic methods,[14] which is in sharp contrast to the precautionary nature of investigation under article 34 of the UN Charter as will be discussed below.

The relevant provisions of the 1899 and 1907 Hague Conventions, however, reveal the limitation of their objectives,[15] the limitation of the scope of inquiry where that is applicable,[16] and the voluntary character of the resort to inquiry and of the acceptance of the report.[17] These restrictions upon international commissions of inquiry were by and large motivated by the strong fear of the possibility of intervention from other states. In particular, there was a fear by small states of intervention from great powers on the pretext of inquiry.[18] As a result, despite the strong assertion of wider use of inquiry based on the success in the Dogger Bank inquiry by Martens,[19] the restrictive term ‘involving neither honour nor essential interests’ remained in the 1907 Hague Convention. This real and legitimate fear must be borne in mind when the power of investigation proprio motu conferred upon the Security Council under article 34 of the UN Charter is examined, particularly in terms of whether an investigation is actually causing fear or dispelling it.

However, as international commissions of inquiry began to be established and started their work, the restrictions on the scope of inquiry were relaxed. On the one hand, fact-finding activities were incorporated into other methods of dispute settlement such as conciliation and judicial settlement.[20] On the other hand, fact-finding activities themselves also developed through the gradual removal of the limitations imposed on inquiry and thus provided a basis for the subsequent development of investigation under article 34 of the UN Charter. Although significant attempts were made to remove the limitations in the League of Nations era, the movement toward the removal of the limitation had already emerged in bilateral treaties concluded on the initiative of the United States. The arbitration treaties, known as the Taft or Knox Treaties signed on 3 August 1911,[21] negotiated between the United States on the one hand, and France and Great Britain on the other, assumed a wider application of inquiry and conferred upon the commission of inquiry the power to give a binding decision on the arbitrability of a dispute.[22] Also, the Treaties for the Advancement of Peace signed between the United States and 30 other countries on the initiative of the Secretary of State of the United States of America, William Jennings Bryan,[23] made all disputes between states parties of every nature whatsoever, factual or legal, and involving vital interests or not, subject to an inquiry in cases where a dispute was not settled by other treaties or diplomatic means, and for the first time explicitly set out the principle of moratorium.[24] These progressive applications of inquiry still remained within the framework of inquiry as a type of peaceful settlement of international disputes, but they are to be appraised as the first attempts to remove the limitations imposed on inquiry.

(b) Evolution of fact-finding activities

Fact-finding in the era of the League of Nations moved beyond the idea of inquiry as merely a means of pacific settlement of disputes between states. However, it seems that the movement was not intended by the drafters of the Covenant but rather was fostered through subsequent practice and studies. Four provisions of the Covenant of the League of Nations referred explicitly to inquiry or investigation: articles 5(2), 12(1), 15(1), and 17(2). Article 5(2) of the Covenant stipulated matters of procedure ‘including the appointment of Committees to investigate particular matters’, which can be regarded as a precedent for article 29 of the UN Charter (which will be discussed below[25]). Article 17 concerned inquiry into the circumstances of disputes involving non-member states of the League. Article 12(1) provided for inquiry as a method that must be utilised should any dispute likely to lead to a rupture arise, and adopted the notion of a cooling-off period.[26]

On the other hand, article 15(1) of the Covenant took a further step by setting up a ‘procedure for the League Council to investigate and settle international disputes’[27] at the request of any state members involved in a dispute.[28] This provision could be read as indicating the potential use of fact-finding in a new sense, moving away from the traditional method of inquiry and moving towards the idea of investigation in the public interest of maintaining of international peace and security. In the Corfu affair,[29] however, in which the nature of article 15(1) was addressed by a commission of jurists, it was held that, ‘[t]he Council’s function is not to assert its authority, but to assist in any means of settlement agreeable to the parties’.[30] This indicated that the use of investigation by the League Council in cooperation with the Secretary-General was to do no more than facilitate the peaceful settlement of international disputes.

The transformation of inquiry was heralded by developments in the League system in the field of the maintenance of international peace and security through article 11(1) of the Covenant. Although article 11(1) did not explicitly mention investigation or inquiry, such measures were clearly open to it for the preservation of international peace and security. Article 11(1) of the Covenant provided that:

Any war or threat of war, whether immediately affecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations. In case any such emergency should arise, the Secretary-General shall, on the request of any Member of the League, forthwith summon a meeting of the Council.

Although this provision was adopted without any change or argument,[31] its general wording gave the League of Nations greater liberty of action in the preservation of peace,[32] and opened the door to precautionary actions (including investigation) which were neither specifically mentioned in the Covenant nor even envisaged by its drafters, to forestall questions of aggression and sanctions under articles 10 and 16.[33]

The subsequent attempt to develop the League system in the field of the maintenance of international peace and security was twofold: the enhancement of enforcement measures under article 16, and the enhancement of preventive measures under article 11.[34] The first movement in the development of the League system concentrated on the enhancement of enforcement measures through the clarification of the definition of aggression. However, the successful settlement of the Demir-Kapu incident between Greece and Bulgaria in 1925,[35] due to the swift and decisive action by the League Council to maintain a provisional peace and to despatch a commission of inquiry, turned attention to the enhancement of preventive measures on the basis of article 11 of the Covenant.

Extensive studies on the application of article 11 were initiated on 24 May 1926 by Paul-Boncour, the French delegate to the Preparatory Commission for the Disarmament Conference. Emphasising the need for information to be made readily available to the League, Paul-Boncour wrote in his memorandum submitted to the League Council that:

Before drafting its recommendations, the Council of the League, in the majority of cases, will desire to collect on the spot all information of a nature to throw light on the events. It will therefore cause an enquiry to be made, and bodies will have to be constituted to carry out these investigations and sent to the scene of the dispute.[36]

This suggestion was meant to shift the purpose of fact-finding used by the League Council from the peaceful settlement of international disputes through ex post facto inquiry to an anterior and preliminary assessment of a situation. In the report submitted in 1926 to the Committee of the League Council convened in response to the question proposed by Paul-Boncour and others,[37] Brouckère also mentioned the possibility of the Council taking preventive action including an arrangement for inquiry and investigation into facts, ‘so far as the States exercising sovereignty over the territories in which such action would be taken are prepared to consent’.[38]

A study of the application of article 11 of the Covenant continued further within the League Assembly and resulted in the memorandum submitted by Rutgers to the Committee on Arbitration and Security established by the League Assembly. Recognising the most extensive competence of the League under article 11 and its political nature, the report suggested that the League Council could intervene in any conflict, so long as it threatened to disturb international peace or the good understanding between nations even if there were no threat of war.[39] The report also rejected the idea that a situation involving a matter solely within the domestic jurisdiction of a state could not be considered under article 11 of the Covenant.[40] Thus, the report attempted to expand the jurisdiction of the League Council to include intervention that involved fact-finding missions. Nevertheless, the right of sovereign states to consent was still reserved.[41]

In practice, the manner in which the League Council actually exercised its power of fact-finding under article 11 of the Covenant was constrained by the realities of state sovereignty. While article 5(2) of the Covenant indicated that the appointment of committees of investigation might be decided by a majority of the members of the Assembly or the Council, ‘in practice no commission of inquiry was established by the League of Nations without the prior consent of both parties to the dispute, thus assuring their cooperation in the investigation’,[42] something also emphasised in the report of Brouckère and of Rutgers. Conwell-Evans states that, possible as it is to appoint a commission of investigation by a majority of the members, ‘it is understood that such a Commission cannot go to the territory of either party without the consent of the party to which the territory belongs’.[43] It is to be borne in mind, however, that even Japan with its aggressive policies in Manchuria after 18 September 1931, finally accepted the institution of a fact-finding mission in the area of conflict, even though Japan was under no obligation to consent to it.[44]

The practice of and studies on inquiry under the League of Nations thus released fact-finding missions, to some degree, from earlier constraints imposed on inquiry in terms of their objectives and scope. It was now clear that fact-finding could be used to provide a preliminary assessment of a situation and to assist the Council in taking an appropriate measure to prevent the aggravation of the situation. It also seemed that the scope of fact-finding for this purpose could extend to any disputes or situations so long as circumstances affected interstate relations and threatened to disturb international peace and security. Although the other limitation on the nature of inquiry remained unaffected, a sign of change appeared in article 7 of the General Convention to Improve the Means of Preventing War.[45] It prescribed that ‘the Council’s decisions and recommendations [of conservatory measures] shall … be binding for the purpose of the present Convention, provided that they are concurred in by all the Members voting other than the parties to the dispute’. Although this Convention never received the necessary ratifications to enter into force,[46] it is of significance in the historical context of article 25 of the UN Charter. Article 25 provides that the Security Council’s decisions are binding – this arguably includes those decisions instituting an investigation under article 34.

III. Investigation Proprio Motu under the UN Charter

(a) Definition and functions of investigation

The transformation from inquiry to a new type of fact-finding in relation to the maintenance of international peace and security is embodied in articles 33 and 34 of the UN Charter. Whilst article 33 provides for ‘enquiry’ as one of the peaceful means of dispute settlement (confirming the use of the traditional type of fact-finding) article 34 creates a new function of fact-finding (which we might call ‘investigation’), providing:

The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.

This provision explicitly mentions the objective of investigation, which is to play a substantial role as a basis for action by the Security Council. Distinct from inquiry, an investigation under article 34 ‘is concerned not only with past events and present conditions but with the evaluation of possible future development’,[47] and is specifically meant to discover whether a dispute or situation is likely to endanger the maintenance of international peace and security.[48] Because it is concerned with a deliberate examination of facts that are in dispute, investigation must also be distinguished from fact-gathering generally which may be concerned simply with identifying relevant facts per se.[49] Investigatory missions within the framework of the UN Charter are expected to provide an assessment of a situation, based on which the Security Council has the discretion to decide whether the situation constitutes a threat to international peace and security. In other words, it is envisaged that the function of investigation could extend from clarifying the basic facts of what actually happened to elucidating the ultimate facts in the evaluation of the legal consequences of what happened.[50] This change of function from inquiry is consolidated by the innovative establishment of the collective security mechanism in which the Security Council has the primary responsibility for the maintenance of international peace and security.

The task of assessing whether a dispute or a situation is likely to threaten international peace and security was first performed by the investigatory body established to examine the Spanish question in 1946.[51] The work of this body demonstrated the possibility that an investigation can be carried out proprio motu even in cases where no serious incident with international impact has occurred,[52] so long as there is some likelihood that the situation may threaten international peace and security.[53] Gross violation of human rights and arguably even the existence of a dictatorial government pursuing policies contrary to the principles of the UN Charter may be enough. The practice of fact-finding and fact-gathering is increasingly common, most notably in the areas of human rights,[54] and international criminal law,[55] to deal with these threats. Nonetheless, the Security Council’s primacy concern with the maintenance of international peace and security must still be connected in some way with the overarching objective of investigation into any sort of threat.

The significance of this function lies not only in the provision of a factual or legal basis for further action by the Security Council, but also in the provision of an authoritative and objective basis on which the subsequent determinations of the Security Council can be publicly assessed. The determination of enforcement measures taken by the Security Council without an objective investigation in cases where factual or legal ambiguity remains would cast doubt on the legitimacy of the determination, giving rise to concern among small states about the possible abuse of power by the Security Council. In the Lockerbie incident, for instance, the Security Council determined that the situation constituted a threat to international peace and security and acting under Chapter VII of the UN Charter imposed an arms embargo upon Libya.[56] The Security Council based this determination on the findings that resulted from the inquiries carried out by the United States and the United Kingdom without cooperation with an impartial international body of investigation. In addition, the evidence in support of the allegations of the United States and the United Kingdom ‘was never made public and, indeed, the claimants had refused to submit evidence to an impartial investigatory body’.[57] Accordingly, the Security Council resolutions were open to the criticism that they were based on prejudiced information skewed to reflect political objectives. The action of the Security Council in this instance triggered debates on the possibility of judicial control of the Security Council.[58] If the Security Council had set up an investigatory body proprio motu and had concluded that the government of Libya had been involved in international terrorist activities and therefore produced a situation which was likely to endanger the maintenance of international peace and security, resolutions adopted by the Security Council based on the impartial findings were more likely to have been regarded as fair and legitimate in a legal sense.[59] In this way, an investigation could have provided a quasi-judicial control for the Security Council – indicating an authoritative and legal view as to the appropriate course of action without a judicial binding nature.

Investigation has also been used to provide an authoritative and objective assessment of the use of armed force by individual states or other organs. This function of investigation can be traced back to the Commission of Enquiry set up under article 11 of the Covenant of the League of Nations in the Demir-Kapu incident in 1925 and in the Manchuria incident in 1932 in assessing the claims of legitimate self-defence.[60] Under the authority of the Security Council, the Commission of Investigation concerning Greece was set up proprio motu under article 34 of the UN Charter in order to examine the causes and the nature of the border violations and disturbances brought before the Security Council three times in 1946.[61] The Commission submitted a report to the Council in June 1947, which ascribed the causes of the disturbed conditions on the Northern Greek frontier to both the guerrilla activities assisted by Yugoslavia, and to a lesser extent, by Albania and Bulgaria, as well as to the internal situation in Greece.[62] Fact-finding missions set up without reference to article 34 also performed the same sort of function in investigating mercenary attacks carried out against the Republic of Guinea in 1970,[63] the People’s Republic of Benin in 1977,[64] and the Republic of Seychelles in 1981.[65]

Arguably investigation should be given a much more significant role in serious cases of terrorism, state-sponsored or otherwise. In response to terrorist attacks, victim states have often responded on their own initiative and on the basis of their own information.[66] While this may be considered necessary as a matter of self-defence in the face of a continuing and serious terrorist threat, it would clearly be desirable that an investigation be carried out on the initiative of the Security Council in an impartial and objective manner in order to establish solid foundations for Council deliberations concerning appropriate collective measures, if further terrorist attacks are not imminent. Indeed in the absence of investigation, unilateral recourse to armed reprisals without imminent threat of further international terrorist attacks may well exacerbate the situation, increasing the probability of further terrorist attacks.

The possibility that an investigation proprio motu could be usefully employed before an actual armed conflict occurs was demonstrated in the situation concerning Western Sahara.[67] In this instance, the Security Council, acting in accordance with article 34 of the UN Charter, requested the UN Secretary-General to enter into consultations with the parties concerned,[68] before an actual military action was carried out. This episode suggests that the mere provocation and the existence of disputes between states would be enough to enliven the powers of the Security Council to decide on the employment of investigation. Although the efforts made by the UN Secretary-General could not prevent the violation of the frontier of Western Sahara by Moroccan nationals, it was possible to advise the Security Council, based on the results of the investigation, to dispatch a peace-keeping force on the side of the Western Sahara. The presence of an international peace-keeping force may well have been enough to diffuse the situation and prevent the march of Moroccan nationals into the Western Sahara.

Thus, an investigation proprio motu held by the Security Council can perform at least four types of functions for the maintenance of international peace and security:

1. assessing whether a dispute or a situation is likely to threaten international peace and security;

2. providing an authoritative basis for assessing the legitimacy of the subsequent Security Council determinations;

3. assessing the legitimacy of the use of armed force; and

4. providing a preliminary assessment of preventive measures to be adopted.

Although the original function of investigation as prescribed in article 34 is confined to the first function, the other three functions are also to be seen as permissible as being entailed in the original functions. It is to be noted, on the other hand, that an investigation with these functions ‘would be ordered by the Council only when there is doubt or discrepancy as to whether the continuance of the dispute or situation is likely to endanger peace and security’.[69] Although it is uncertain whether the Security Council is under an obligation to hold an investigation when any doubt exists on this point, it would be evident enough that the Security Council may not order an investigation when the danger to peace is reasonably presumed not to exist.

(b) Legal basis for investigation

Under the UN Charter, it is clear that the legal basis for investigation proprio motu by the Security Council lies in article 34. Goodrich, Hambro and Simons state that, whilst there is no obligation upon the Security Council to carry out an investigation, ‘the Council itself may take the initiative’ and carry out an investigation under article 34 of the UN Charter without a request from any of the parties involved.[70] Whether there are alternative bases is more contentious, as two particular episodes demonstrate. In relation to both the Spanish question and the Laos frontier incidents, it was suggested that an investigation could be authorised as a procedural matter under article 29 of the UN Charter and therefore supported by an unqualified majority vote of the Security Council.[71] However, the institution of investigation on alternative bases has been controversial and, in theory and in practice, the reliance on the alternative legal bases has lessened the genuine power and authority of the Security Council to initiate investigation proprio motu which are assumed in its use under article 34 of the UN Charter.

In the Spanish question, the proposed institution of the sub-committee of investigation had been at first referred to in article 34 of the UN Charter, but the reference was omitted in the second proposal by the Australian delegate, who explained that it was aimed at enabling ‘the proposed body to be brought in under Article 29 as a subsidiary organ’.[72] Evidently the Australian delegate omitted the reference to article 34 because ‘the adoption of this resolution would have required the affirmative vote of the Soviet Union which had already expressed its opposition to the delay which would result from an investigation’.[73] The delegate of the Soviet Union responded to the change in tack by stating that, ‘bearing in mind … that my voting against the Australian draft resolution would make its adoption impossible, I shall abstain from voting’,[74] and thus avoided setting a precedent for the establishment of investigatory bodies without concurrent votes of the five permanent members.

A decisive determination was made on this point in establishing the fact-finding mission concerning the Laos frontier incidents.[75] In this episode, a controversy arose over the legal basis for the fact-finding sub-committee, though the necessity for a prompt and impartial report on the facts of the situation was largely agreed in the Security Council. While it was explained that a draft resolution containing the establishment of a fact-finding body relied on article 29 of the UN Charter,[76] the representative of the Soviet Union opposed it and urged that the question be settled as to whether the vote on the draft resolution should be considered a procedural one.[77] However, the President of the Security Council overruled the result of the voting in favour of the majority despite the negative vote of the Soviet Union.[78] It is evident that the majority in the Security Council avoided the procedural arguments and veiled the procedural defects in the course of the adoption of the resolution.[79] Also, there is no doubt that the overruling by the President was contrary to the understanding expressed in the Four-Power Statement,[80] and arguably to article 27 of the UN Charter.[81] Hence, it is difficult to legitimise the decision to hold an investigation by unqualified majority votes in the Security Council, relying on article 29, unless subsequent practice otherwise determines.[82]

Furthermore, the argument relying on article 29 ignores the distinction between investigation in the strict sense and other types of fact-finding missions based on the consent of the states concerned. It also papers over the distinction between a matter of substance and a matter of procedure. While fact-finding bodies can be established based on the consent of states concerned under the general power of the Security Council conferred by article 24 of the UN Charter,[83] the institution of investigation is given a specific legal basis in article 34 of the UN Charter, as distinct from other contractual types of fact-finding missions. The significance of investigation is not confined to Chapter VI of the Charter but lies in its role as the nexus between Chapter VI and Chapter VII of the Charter. The significance of article 34 in this relation was expressed in the Four-Power Statement on voting procedures, holding that:

decisions and actions by the Security Council may well have major political consequences and may even initiate a chain of events which might, in the end, require the Council under its responsibilities to invoke measures of enforcement under Section B, Chapter VIII [now Chapter VII]. This chain of events begins when the Council decides to make an investigation … It is to such decisions and actions that unanimity of the permanent members applies, with the important proviso, referred to above, for abstention from voting by parties to a dispute.[84]

This statement confirmed that the decision on the use of the power of investigation is not a procedural matter, and requires the concurrence of the votes of the five permanent members. Considering that the determinations of the Security Council are of a political nature and do not necessarily refer to relevant provisions of the UN Charter, it is important to see the source of the power of investigation in substance, which must not be confused with its political appearance. In other words, the decision to conduct an investigation has to be distinguished as a matter of substance from the establishment of subsidiary organs to carry out the determination as a matter of procedure.

Although it is still possible to establish a fact-finding subsidiary organ by an unqualified majority vote of the Security Council based on the general power under article 24 or on article 29 of the UN Charter, the functions of the body established on such bases are compelled to be restricted to fact-finding conditional upon the prior consent of the states to be inquired into and therefore cannot go beyond the traditional type of fact-finding. Indeed, the report submitted by the sub-committee concerning the Laos frontier incidents stressed that the work had to be confined to fact-finding as a procedural subsidiary organ of the Security Council.[85] The sub-committee confined its own functions to the collection of information and the presentation of the facts for the information of the Security Council, and refrained from making any recommendations to the Security Council. It can be reasonably inferred from this fact that the lack of concurrence among the permanent members would deprive an investigatory body of its power and authority to prevent and deter the exacerbation of international conflicts on its own initiative, which are assumed in the institution of investigation under article 34 of the UN Charter.

(c) Legal nature of investigation

(i) Legal nature of investigation in relation to article 25

Given that the exercise of the power of investigation by the Security Council is based on article 34 of the UN Charter, rather than on the consent of states concerned, the question arises whether the Security Council can exercise the power without obtaining consent of states to be investigated. In other words, to what extent can the Security Council exercise the power of investigation in relation to state sovereignty? This question includes two legal issues: whether the determinations of the establishment of investigatory missions constitute ‘decisions’ within the meaning of article 25,[86] and whether the determinations of the establishment of investigatory missions without the consent of states concerned are in contravention of article 2(7) of the UN Charter in the absence of decisions made under Chapter VII of the Charter.

The first question is ultimately whether the Security Council is able to make ‘decisions’ under Chapter VI of the UN Charter. The binding nature of the decisions to undertake an investigation was extensively debated in the Greek frontier incidents in 1946-47.[87] On the one hand, some states took a flexible interpretation, regarding any decisions made by the Security Council (including the institution of investigation) as legally binding upon all member states of the UN.[88] On the other hand, it was suggested by some states that a decision of the Security Council had to be confined to measures taken under Chapter VII of the UN Charter and that the measures taken under Chapter VI of the UN Charter were merely of a recommendatory nature, which required the consent of the states concerned to be implemented.[89] The question of whether the holding of an investigation is of a binding nature upon the states concerned comes down to the question of the scope of ‘decisions’ in article 25 of the UN Charter.

The ordinary meaning of ‘decisions’ seems to indicate any decisions of the Security Council irrespective of the Chapter provisions to be relied on, and the travaux préparatoires of the UN Charter and the advisory opinion of the International Court of Justice (ICJ) in the Namibia Case of 1971 confirm the flexible interpretation. The travaux préparatoires reveal that a Belgian proposal to restrict the scope of decisions to be taken by the Security Council was defeated, having met with opposition especially from the United Kingdom and the Soviet Union.[90]

Furthermore, the ICJ, rejecting the contention that article 25 of the UN Charter applies only to enforcement measures adopted under Chapter VII of the UN Charter, opined in the Namibia Case in 1971 that:

It has been contended that Article 25 of the Charter applies only to enforcement measures adopted under Chapter VII of the Charter. It is not possible to find in the Charter any support for this view. Article 25 is not confined to decisions in regard to enforcement action but applies to “the decisions of the Security Council” adopted in accordance with the Charter … The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers of Article 25, the question is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provision invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council.[91]

In contrast, practice on the part of some states has been somewhat ambivalent.[92] At the beginning of the UN era, Western states were in support of the flexible interpretation of article 25. In the Greek frontier incidents, the representatives of the United States, Brazil, China and the United Kingdom expressed their views in support of the Belgian argument that the decision to carry out an investigation was of a binding nature upon the states concerned by article 25.[93] The United Kingdom had also claimed in the Corfu Channel Case that the Security Council resolution adopted under article 36 of the UN Charter was binding upon the parties by virtue of Albania’s acceptance of all the obligations of a member state and in conformity with article 25.[94] At a later stage, however, Western states abstained from the voting on Resolution 269 of 12 August 1969, in which it was decided that continued occupation of the territory of Namibia by the South African authorities constituted an aggressive encroachment on the authority of the UN, the representative of the United Kingdom stating that ‘as a matter of law, my Government considers the Security Council can only take decisions generally binding on Member States only when the Security Council has made a determination under Article 39’.[95] Concurring in the view expressed by the ICJ in the Namibia Case that the binding nature of resolutions turns upon whether the parties intended them to be ‘decisions’ or ‘recommendations’, Higgins analyses the changed attitude of the United Kingdom as follows:

The United Kingdom, interestingly, is essentially adopting a teleological posture here, placing the main weight of its argument not on the letter of the Charter, or the travaux, but rather on the operational understanding which best allows the Security Council to carry out its business. A practice that perhaps had been regarded by some international lawyers as of rough and ready convenience – namely, that in the drafting of resolutions, Chapter VII resolutions are to be regarded as capable of binding, whilst Chapter VI resolutions are not – is now said to be endowed with the status of law.[96]

Likewise, White has noted that, ‘[t]he Western view is probably based on the desire to provide a rough and ready, convenient and simple guide to the drafting of resolutions, which through constant reiteration by its adherents has taken on, for them, the status of international law’.[97]

The rough and ready interpretation of the Charter has eventually led to a formalistically dichotomised approach: binding decisions under Chapter VII versus non-binding recommendations under Chapter VI. It is true that there has been a view that the Security Council has the right to send a fact-finding mission without receiving the prior consent of states concerned, a view expressed during the debate in the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization from 1989 to 1991,[98] and was, in an ambiguous term, incorporated in the Declaration on Fact-Finding adopted by the General Assembly on 9 December 1991.[99] The actual practice of the Security Council has, however, persisted in the oversimplified twofold approach, which eventually resulted in the adoption of Resolution 1264 authorising under Chapter VII of the UN Charter multinational forces led by Australia to intervene, pursuant to the request of the government of Indonesia, in the territory of East Timor.[100] This resolution is a typical example in which binding decisions are confused with enforcement measures under Chapter VII of the UN Charter. The formalistically oversimplified approach to the Charter on the part of permanent members of the Security Council might be the cause of insufficient and ineffective use of investigation as a preliminary step for collective, forceful or peaceful, measures.

(ii) Legal nature of investigation in relation to article 2(7)

The second question is whether article 2(7) of the Charter prohibits an investigation into any of the matters within the domestic jurisdiction of states. Article 2(7) of the UN Charter prohibits the United Nations from intervening in ‘matters which are essentially within the domestic jurisdiction of any state’ unless enforcement measures under Chapter VII are applied. Investigation under article 34 clearly is outside the application of Chapter VII, but an investigation was actually carried out with regard to the Spanish question. The investigation in the Spanish question was based mainly on documents received, not only from the UN member states, but also from the Spanish government despite the absence of its prior consent.[101] The reason why this investigation was carried out into a domestic situation without conflicting with article 2(7) can be explained by the preliminary nature of investigation itself, which prevents an investigation from constituting ‘intervention’ in the sense of article 2(7).

Considering the purpose of investigation conducive to the application of enforcement measures under Chapter VII, investigation should not be seen as a form of intervention, as it otherwise would be tantamount to nullifying the effects of the exception to article 2(7). If an investigation in a situation perceived by the state to fall within its domestic jurisdiction constitutes an intervention in the sense of article 2(7) and is thus prohibited, the Security Council would be prevented in many cases from determining, in an impartial and objective manner, whether the domestic situation constitutes a threat to international peace. Since an investigation is carried out only for the purpose of assessing a situation or dispute and providing a basis for the deliberation of the Security Council, it is by no means intended to deny the independence or to violate the territorial integrity of the state.[102] The plea of domestic jurisdiction cannot prevent the Security Council from undertaking an investigation, as the phrase ‘any dispute or any situation which might lead to international friction or give rise to a dispute’ in article 34 of the UN Charter indicates. For these reasons, the issue of intervention in matters of domestic jurisdiction does not seem to be relevant, so long as the matter is so significant as to attract an investigation by the Security Council.

IV. Implementation of Investigation Proprio Motu

The notion of the taking of measures proprio motu by an international organ, in other words, on its initiative without a request from the parties to a dispute, has been fostered by the ICJ in its rules of procedure.[103] It has been suggested that the raison d’être of the notion comes from ‘higher authority as emanating entirely from an impartial organ, prompted exclusively by considerations of objective judicial necessity’.[104] Given that the Security Council is invested with a wide range of jurisdiction so long as matters affecting international peace and security are concerned, it is suggested that the Security Council can make decisions in the nature of provisional measures proprio motu by considerations of objective necessity for preserving international peace and security.[105] It was suggested above that so far as the power of investigation is concerned, the Security Council can exercise the power without a request from the parties to a conflict in order to assess the situation from the viewpoint of the maintenance of international peace and security. In addition, once the Security Council decides to dispatch an investigatory body, a state in whose territory the investigation is carried out is under an obligation to accept and observe it. However, an investigation without the prior consent of states involved necessarily entails the questions of effectiveness and practicability. Even though the compulsory nature of the decision to investigate is established in legal theory, the failure to implement an investigation decided by the Security Council diminishes the significance of compulsory investigation.

Shore points out that ‘the difficulty lies not in the Charter which would support such an interpretation [states’ obligation to cooperate with investigation] but in the application of that interpretation’.[106] For the purpose of solving this practical problem, Kerley proposes an investigation under article 39 of the UN Charter as another possible basis for fact-finding activities,[107] though it seems difficult on its face to accept this proposition. To put it simply, the question can be formed as whether it is possible to authorise the use of armed force before the recognition of a threat to the peace, breach of the peace, or act of aggression to assist an investigatory mission. However, this perspective seems to be too narrow to assess correctly the effectiveness and practicability of the power of investigation. Although it is surely impossible to carry out an investigation in cases where a sovereign state or a dominant party in an area to be investigated strongly resists it, there have been cases where even a state which found itself disadvantaged by the authorisation of an investigation cooperated in the work of commissions of investigation, as Japan did in the Manchuria incident, and as Spain did in the Spanish question despite its non-member status of the UN. These cases represent significant state practice of compliance.

The rationale behind the effective implementation of investigation proprio motu by the Security Council resulting from its mandatory nature is threefold:

1. recommendatory nature of the results of investigation;

2. probability of unfavourable prejudgment resulting from the rejection of investigation; and

3. political or economic pressure from strong states.

While decisions to institute investigatory bodies are of an obligatory nature under article 25 of the UN Charter, reports of investigatory bodies are of no more than a recommendatory nature providing the Security Council with a basis for the deliberations concerning appropriate collective measures. States are not bound to accept the recommendations proposed in the reports, as member states under the UN Charter, have committed themselves to be bound only by the decisions of the Security Council. Considering that the recommendatory nature of the reports of fact-finding bodies has been one of the prerequisites for acceptance of the procedure of inquiry by states parties to a dispute since the emergence of the procedure at the end of the nineteenth century,[108] it is fair to say that this element contributes more or less to easing the attitudes of states to be investigated.

The second element of forcing states to accept a mission of investigation would be the probability of unfavourable prejudgment resulting from a breach of the obligation to accept an investigation. Although the objective of investigation lies not in the determination of aggressors or wrongdoers, but with providing an assessment of a situation to forestall the aggravation of the situation, the refusal of investigation would be seen as carrying the presumption of moral or legal culpability. The political impact upon states that attempt to refuse an investigation was demonstrated by the fact that the representatives of Albania, Bulgaria, Yugoslavia and the Soviet Union exhausted technical arguments to obstruct the work of the Commission of Investigation during the discussions of the Greek frontier incident.[109]

The third element, political or economic pressure from strong states, is an important but at the same time dangerous point in carrying out an investigation proprio motu. While a forceful investigation was carried out into the Armenian massacre in 1895, the fear of forceful intervention on the pretext of investigation by strong states had already been expressed in the Hague Conferences of 1899 and 1907 by small states.[110] However, a distinction has to be drawn between the forceful investigation by the Great Powers in the nineteenth century and the compulsory investigation by the Security Council under the UN collective security regime. Even if it is still possible for an investigation proprio motu by the Security Council to be abused by the concurrent votes of the permanent members, it is also possible in theory to block the decision by collective veto power of the non-permanent members. Moreover, it would not be the case so long as an investigation is carried out by an independent body of the Security Council, for impartial and non-political findings will be made public and thus prevent the abuse, as the second function of investigation shows.[111]

For investigation proprio motu to be used effectively for the maintenance of international peace and security, the linkage between the results of investigation and the possible function of collective measures is indispensable. Thus far, there is no precedent in which the Security Council adopted a collective measure based on the findings and recommendations of an investigatory body, though the report on the Spanish question recommended a collective measure under article 41 of the UN Charter.[112] It is undeniable that decisions in the Security Council to take collective measures are not dictated by the results of investigation, and therefore that the finding of a situation as being likely to endanger international peace and security does not necessarily lead to the adoption of collective measures. However, the findings and recommendations made by an impartial and objective body of investigation is desirable and even necessary for preserving the fairness and authority of the decisions of the Security Council. It may well support the deployment of peace-keeping operations as well as the adoption of collective enforcement measures.

Since the unsatisfactory use of a fact-finding mission in the Laos frontier incidents, the Security Council has become much less involved in fact-finding activities on its own initiative.[113] Although re-evaluation of UN fact-finding missions took place in the General Assembly, the debate and outcome laid emphasis on the role of the Secretary-General in carrying out fact-finding missions.[114] In the aftermath, the Security Council re-activated the despatching of a subsidiary body to carry out fact-finding activities concerning the situation in Burundi, which deteriorated after the attempted coup d’état and the subsequent massacres in 1993.[115] Also, the Security Council despatched five missions in 2000 to observe the implementation of Security Council resolutions concerning the situation of Kosovo,[116] the Congo,[117] Eritrea and Ethiopia,[118] Sierra Leone,[119] and East Timor and Indonesia,[120] all of which have provided detailed observations and recommendations for the Security Council. The recent practice of despatching subsidiary bodies for the purpose of fact-finding could lead to the re-activation of the power of investigation on the initiative of the Security Council. However, it still remains to be seen whether the Security Council would widely and effectively exercise the power of investigation proprio motu in a mandatory manner as a basis for a subsequent course of action.

In this connection, it is to be noted that recent activities of the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC) in Iraq could be seen as indicating the readiness of the Security Council to re-activate the power of investigation, though it was established by Security Council Resolution 1284 (1999) pursuant to paragraph 9(b) of Security Council Resolution 687 (1991) under Chapter VII,[121] not based on article 34 of the UN Charter. Security Council Resolution 1284 (1999) mentioned in paragraph 4 the obligation of Iraq to allow UNMOVIC ‘immediate, unconditional and unrestricted access to any and all areas’.[122] Complying with this obligation, it is reported that Iraqi authorities provided prompt access even in cases where inspections were performed without notice.[123] Moreover, UNMOVIC reported that they did not find evidence of the continuation or resumption of programs of weapons of mass destruction, though unresolved disarmament issues still remained.[124] Not only did the report convince the majority of the member states of the Security Council that the use of armed force should not be authorised at that time, it also gave their position a reasonable factual basis. In this sense, it would not be wrong to say that the Security Council successfully utilised the power of fact-finding similar to that of investigation envisaged under article 34 of the UN Charter

V. Conclusion

The method of investigation that emerged in the League of Nations and that has been developed through the UN is more than mere fact-finding. It extends to the evaluation of the legal consequences of facts to be found and can perform four functions in the maintenance of international peace and security:

1. assessing whether a dispute or a situation is likely to threaten international peace and security;

2. providing an authoritative basis for the assessment of the subsequent Security Council determinations;

3. assessing the legitimacy of the use of armed force; and

4. providing a preliminary assessment of preventive measures to be adopted.

This article has argued that the Security Council can employ an investigation proprio motu to perform these functions under article 34 of the UN Charter. This investigation has a compulsory nature as a ‘decision’ of the Security Council under article 25, entailing the authority to compel states being investigated to cooperate in the investigation.

Despite the great power of investigation and general compliance of states involved in a targeted dispute to investigation, the Security Council, especially in recent decades, has underestimated the potential utility of investigation proprio motu. It can be applied to a wide range of situations, including those arising out of frontier incidents, international terrorist attacks, gross violation of human rights, internal ethnic conflicts, and preparations for armed attacks or invasion. In order for the Security Council to utilise investigation proprio motu in those situations, however, it is essential to revive the flexible or functional interpretation of the UN Charter, making it possible for an investigation to have legal force and political powers based on the concurrence of the five permanent member states.

The function of the Security Council has fallen into the gap between recommendatory peaceful measures and obligatory enforcement measures. The dichotomy of the Security Council’s approach toward international conflicts stems from the rigid interpretation of ‘decisions’ of the Security Council as confined to equivalence with ‘enforcement measures’. There are many other legal possibilities to be adopted by the Security Council between the two extreme measures, including recommendations of enforcement measures, decisions to establish investigations, decisions to establish peace-keeping operations and so on. Persistence in a rigid interpretation of the UN Charter will lead not only to the malfunction of the Security Council but also to the loss of authority and fairness of the UN itself. This article has argued that the under-used investigation proprio motu is one mechanism that has significant potential to assist the Security Council in maintaining international peace and security.


[∗] PhD Candidate, University of Sydney; BA, MA (Aoyama Gakuin), MIL (Sydney).
This paper is based on the presentation delivered at the Postgraduate Student Workshop, Australia and New Zealand Society of International Law Eleventh Annual Meeting, Wellington, 3 July 2003. I wish to express my gratitude to Challis Professor of International Law Ivan A Shearer, Professor Takashi Tsugeyama, Associate Professor Donald R Rothwell, and Dr Christopher S Ward for invaluable comments and advice. My thanks also to Mr Tim Stephens for proofing the manuscript to ensure its readability in English and to Ms Toni Smith at the United Nations Information Centre, Sydney, for assistance in collecting UN documents. However, the author alone remains responsible for any errors.

[1] Bowett suggests the usefulness of an independent fact-finding body in reflecting on some controversial incidents including the Gulf of Tonkin incident in which the Security Council could not resolve the factual disagreement as to the place where United States warship was attacked by patrol boats of the Democratic Republic of Vietnam, which was critical to the settlement of the dispute. D W Bowett, ‘Reprisals Involving Recourse to Armed Force’ (1972) 66 American Journal of International Law 1, 29-31. See also D W Bowett, ‘The United Nations and Peaceful Settlement’ in H Waldock (ed), International Disputes: The Legal Aspects (1972) 179, 186-87.

[2] Declaration on Fact-finding by the United Nations in the Field of the Maintenance of International Peace and Security, GA Res 46/59 (1991) (Declaration on Fact-finding). For a review of the Declaration, see A Berg, ‘The 1991 Declaration on Fact-Finding by the United Nations’ (1993) 4 European Journal of International Law 107, 107-14.

[3] An Agenda for Peace: Report of the Secretary-General Pursuant to the Statement Adopted by the Summit Meeting of the Security Council on 31 January 1992, 17 June 1992, UN Doc A/47/277-S/24111, [25]; Comprehensive Review of the Whole Question of Peacekeeping Operations in All Their Aspects, 21 August 2000, UN Doc A/55/305-S/2000/809 (Brahimi report), [32]-[33]; Prevention of Armed Conflict, 7 June 2001, UN Doc A/55/985-S/2001/574, [38].

[4] Inquiry is a method of fact-finding, which is aimed at resolving a disputed issue of fact and at creating a basis for the peaceful settlement of international disputes, as distinct from investigation which is to be examined in this study as having a greater potential use for the maintenance of international peace and security in the institutionalised conflict resolution mechanisms of the UN. See J G Merrills, International Dispute Settlement (3rd ed, 1998) 44-45; J Collier and V Lowe, The Settlement of Disputes in International Law: Institutions and Procedures (1999) 24. Cf K J Partsch, ‘Fact-Finding and Inquiry’ in R L Bindschedler et al (eds), Encyclopedia of Public International Law (vol 1, 1981) 61.

[5] Observation is ‘the process in which military, socio-economic, and political conditions in a target country are analysed in terms of their conflict propensity’. R Grist ‘More than Eunuchs at the Orgy: Observation and Monitoring Reconsidered’ (2001) 8 International Peacekeeping 59, 61. While observation is concerned with future events without undertaking an inquiry into causes and past incidents, investigation is directed at past events, current events as well as their possible future development. T Schweisfurth, ‘Article 34’ in B Simma (ed), The Charter of the United Nations: A Commentary (1995) 514, 519. Cf D W Wainhouse, International Peace Observation: A History and Forecast (1966) 1-2.

[6] The term ‘investigation’ has a particular legal connotation deriving from its use in art 34 of the UN Charter as will be discussed below. Where it is arguable whether a mission is of an investigatory nature in this strict sense, the term ‘fact-finding’ will be used instead.

[7] H McCoubrey and N D White, International Organizations and Civil Wars (1995) 83. Since the 1960s the Security Council has not instituted any investigation, in a strict sense, for the explicit purpose of determining whether the continuance of a dispute or situation is likely to endanger the maintenance of international peace and security as prescribed in art 34 of the UN Charter. See eg Repertory of Practice of United Nations Organs, Supplement No 5, Vol 2 (1986) 119. However, it has on occasion despatched fact-finding missions without reference to art 34, some of which could be seen as falling within the ambit of investigation. See below nn 63-65 and corresponding text. For a list of fact-finding missions despatched by the Security Council up to the end of the Cold War, see Schweisfurth, above n 5, 517-18. Since the end of the Cold War, the Security Council has established fact-finding missions in Nagorny-Karabakh, Georgia, Burundi, the Congo, Eritrea and Ethiopia, and Sierra Leone, but most of the missions played a consultative role rather than an investigatory role within the meaning of art 34 of the UN Charter.

[8] Rakisits finds a major deficiency in the UN preventive diplomacy in relation to the 1991 Gulf Crisis in the fact that the Security Council showed no interest when the British government suggested to its delegation at the UN that it look into the possibility of bringing the issue up for discussion using art 34, and that the Security Council failed to discuss the issue even after intelligence reports had confirmed that Iraq had amassed a very significant number of troops in its border with Kuwait. C Rakisits, ‘The Gulf Crisis: Failure of Preventive Diplomacy’ in K Clements and R Ward (eds), Building International Community: Cooperating for Peace, Case Studies (1994) 58, 90.

[9] The term ‘proprio motu’ is used in this article to refer to measures taken by the Security Council on its own initiative without a request from the parties to a dispute. It is therefore similar to the sense in which the term is used in art 75(1) of the Rules of the ICJ, which provides that, ‘The Court may at any time decide to examine proprio motu whether the circumstances of the case require the indication of provisional measures which ought to be taken or complied with by any or all of the parties.’

[10] Contrary to Turkish obligations under a treaty concluded at Berlin in 1878, it was reported that cruelties had been committed upon Armenians in Turkey in August 1894. The government of Great Britain, supported by France, Italy and Russia, suggested the establishment of a mixed commission of enquiry composed of their representatives as well as those of Turkey. In response to the suggestion, the Turkish government appointed a commission of five members composed entirely of Turks, but with the Consular Delegates of the states concerned attached to it. It is reported by the Consular Delegates attached to the commission that the commission held 107 sittings and heard 190 witnesses and found that hundreds of deaths had been caused by the atrocities against Armenians in August and September 1894. For details, see United Kingdom, Report of the Consular Delegates Attached to the Commission Appointed to Inquire into the Events at Sasun, 15 August 1895, Parliament Command Paper No C 7894, No 252, 161-89. See also N B-Yaacov, The Handling of International Disputes by Means of Inquiry (1974) 35-36.

[11] The explosion of the US battleship Maine in Havana harbour on 15 February 1898 was investigated by the US government as well as by the Spanish government, which led to two contradictory findings, having a precipitating effect upon the outbreak of the Spanish-American war. Merrills, above n 4, 45.

[12] For the English version of the Convention in 1899 and 1907, see J B Scott, The Hague Conventions and Declarations of 1899 and 1907 (2nd ed, 1915) 41-81 (hereinafter 1899 Hague Convention and 1907 Hague Convention). The improvement of the provisions on inquiry in 1907 Hague Convention was largely confined to the rules of procedure such as the determination of the mode and time in which a commission was to be formed, the place where the commission shall sit, the languages to be used and so on. See arts 10-36 of 1907 Hague Convention.

[13] Ibid 46.

[14] J B Scott, The Hague Peace Conference of 1899 and 1907: A Series of Lectures Delivered Before the Johns Hopkins University in the Year 1908 (vol 1, 1909) 266.

[15] The limited objective is evident in that inquiry was envisaged as being used simply for the purpose of the settlement of disputes per se, due to the failure of the attempts to connect inquiry with obligatory arbitration or resort to war. J B Scott, The Proceedings of the Hague Conference; Translation of the Official Texts: The Conference of 1899 (1920) 727-31; J B Scott, The Proceedings of the Hague Conference; Translation of the Official Texts: The Conference of 1907 (vol 2, 1921) 403-4.

[16] Art 9 limited the scope of inquiry at the outset by use of the phrase ‘disputes of an international nature involving neither honor nor vital interests’. The inquiry into the Dogger Bank incident between Britain and Russia in 1905 demonstrated that, unless an actual clash of policy was involved, even disputes involving the honour and the essential interests of the parties involved could be amenable to the inquiry process. See, eg Merrills, above n 4, 47. The significance of the inquiry should not be overestimated, given that the representative to the Hague Conferences of Russia (which was unlikely to receive favourable findings from the inquiry) was enthusiastic about the creation and the enhancement of an international mechanism of inquiry. For a thorough analysis of the Dogger Bank inquiry, see Yaacov, above n 10, 45-88.

[17] The question as to whether the resort to inquiry and the acceptance of the report as a result of inquiry should be obligatory or voluntary was the most controversial issue throughout the two Hague Conferences. The obligatory recourse to the international commissions of inquiry, while strongly asserted by Russian delegate De Martens, had met with serious objections from a number of delegates and was eventually rejected. Scott, above n 15, The Conference of 1899, 780-82; Scott, above n 15, The Conference of 1907, 218-21.

[18] Strong opposition to the idea of inquiry was expressed by Romania, Serbia, Greece and Bulgaria. See Scott, above n 15

, The Conference of 1899, 627-38. But see F De Martens, ‘International Arbitration and the Peace Conference at the Hague’ (1899) 169 (No 516) North American Review 604, 613.

[19] De Martens argued that there was general agreement that the Dogger Bank incident seemed to affect the honour and the essential interests of two great powers and that the commission of inquiry was set up despite the existence of art 9 of the 1899 Hague Convention. See above n 15, The Conference of 1907, 381.

[20] See Yaacov, above n 10, 119-32; C C Hyde, ‘The Place of Commissions of Inquiry and Conciliation Treaties in the Peaceful Settlement of International Disputes’ (1929) 10 British Yearbook of International Law 89, 96-110.

[21] General Arbitration Treaty Between the United States of America and the French Republic; and General Arbitration Treaty between Great Britain and the United States of America. Texts of the treaties are cited in (1911) 5 American Journal of International Law Supplement 249-57.

[22] See art 3 of each treaty. Ibid 251-52, 255-56.

[23] J B Scott (ed), Treaties for the Advancement of Peace between the United States and Other Powers Negotiated by the Honorable William J Bryan, Secretary of State of the United States (1920). For detailed comparison among the treaties, see G A Finch, ‘The Bryan Peace Treaties’ (1916) 10 American Journal of International Law 882, 882-90; N L Hill, ‘International Commissions of Inquiry and Conciliation’ (1932) 278 International Conciliation 89, 95-96.

[24] The principle of moratorium on war rests upon the assumption that a mandatory delay in hostilities would afford disputant states an opportunity to arrange an amicable settlement. M D Dubin, ‘Toward the Concept of Collective Security: The Bryce Group’s “Proposals for the Avoidance of War,” 1914-1917’ (1970) 24 International Organization 288, 291. Dubin notes that the principle of moratorium provided the basic formula underlying arts 12, 13 and 15 of the Covenant of the League of Nations. Ibid 292.

[25] See below Section III (b).

[26] Art 12(1) of the Covenant reads: ‘The Members of the League agree that if there should arise between them any dispute likely to lead to a rupture they will submit the matter either to arbitration or judicial settlement or to enquiry by the Council, and they agree in no case to resort to war until three months after the award by the arbitrators or the judicial decision or the report by the Council.’

[27] F A Boyle, Foundations of World Order: The Legalist Approach to International Relations (1898-1922) (1999) 126.

[28] Art 15(1) of the Covenant reads: ‘If there should arise between Members of the League any dispute likely to lead to a rupture, which is not submitted to arbitration or judicial settlement in accordance with Article 13, the Members of the League agree that they will submit the matter to the Council. Any party to the dispute may effect such submission by giving notice of the existence of the dispute to the Secretary-General, who will make all necessary arrangements for a full investigation and consideration thereof.’

[29] Italian officials of the international boundary commission between Albania and Greece were assassinated at Janina within the Greek territory. Italy demanded from the Greek government an apology, indemnity and compensation. While the Greek government put reservations on some of the demands, the Italian troops attacked and occupied Corfu which was part of Greek territory at that time. For details, see C C Hyde, International Law: Chiefly as Interpreted and Applied by the United States (1951) 1666-7; F P Walters, A History of the League of Nations (vol 1, 1952) 244-55.

[30] Q Wright, ‘Opinion of Commission of Jurists on Janina-Corfu Affair’ (1924) 18 American Journal of International Law 536, 540.

[31] D H Miller, The Drafting of the Covenant (vol 1, 1928) 173.

[32] J T Shotwell and M Salvin, Lessons on Security and Disarmament: From the History of the League of Nations (1949) 3.

[33] Stone saw the significance of art 11 in relation to the definition of aggression. Stone contended that what was envisaged under art 11 was free of the penal connotations of aggression and even of breach of the Covenant, and that the determination of aggression was to be left to post-mortem inquiries after attempts to forestall or restore peace had failed. J Stone, Aggression and World Order: A Critique of United Nations Theories of Aggression (1958) 32-33, 38-40.

[34] M Takahashi, Anzen-Hosho-Josetsu (Introduction to International Security – author’s translation) (1960) 51-88.

[35] Shots were exchanged between the frontier soldiers of Bulgaria and Greece on 19 October 1925, both alleging that the other opened the firing and resulting in a Greek military advance into Bulgarian territory. In response to the appeal made by the Bulgarian government and after confirming all hostilities had ceased, the League Council established the Commission of Enquiry to establish the facts of the incident and to fix the responsibility. Although the Greek delegate had once opposed the Commission’s competency to deal with the claims for reparation and indemnities, the solution proposed by the Council based on the report of the Commission was accepted by both parties. For details, see J Barros, ‘The Greek-Bulgarian Incident of 1925’ in J Larus (ed), From Collective Security to Preventive Diplomacy: Readings in International Organization and the Maintenance of Peace (1965) 57, 57-90.

[36] Memorandum by M Paul-Boncour in Support of his Proposals Relating to Question V(a) and V(b), League of Nations, Documents of the Preparatory Commission for the Disarmament Conference, Series II, Annex VI, 21-25 May 1926, Doc No C.425.M.158, 111.

[37] The Committee of the Council was convened to respond to the French, Polish and Finnish proposals referred to it by the Preparatory Commission for the Disarmament Conference. Among others, Question 1(b) of the French Proposal to the Preparatory Commission for the Disarmament Conference reads: ‘The Commission therefore suggests to the Council that methods or regulations should be investigated which would enable the Council to take such decisions as may be necessary to enforce the obligations of the Covenant as expeditiously as possible.’ Ibid Annex V, 110.

[38] Report by M De Brouckère on Point 1(b) of the Proposal Laid Before the Preparatory Commission for the Disarmament Conference by the French Delegation, League of Nations, Documents of the Preparatory Commission for the Disarmament Conference, Series III, 1 March 1927, Doc No C.740.M.279.1926.IX, 101.

[39] Memorandum on Articles 10, 11, and 16 of the Covenant, League of Nations, Documents of the Preparatory Commission for the Disarmament Conference, Series VI, Annex I, 4 April 1928, Doc No C.165.M.50.1928.IX, 146 [126]-[128].

[40] Ibid 149 [153].

[41] The report notes as one of the specific cases where art 11 can be applied: ‘The Council may also send a commission to the spot, with the consent of the party to whose territories it is to proceed, to enquire into the situation on the frontier areas of the parties to the dispute.’ Ibid 148 [141].

[42] W I Shore, Fact-Finding in the Maintenance of International Peace (1970) 25.

[43] T P Conwell-Evans, The League Council in Action (1929) 139.

[44] In response to an explosion that occurred on 18 September 1931 around the South Manchuria Railway near Mukden, the Japanese military forces in Manchuria bombarded and occupied Mukden and at the same time seized control of the South Manchuria Railway. The Chinese government appealed immediately to the League Council under art 11 of the Covenant, but it was not until 10 December 1931 that the Council appointed a Commission of Enquiry on the basis of the Japanese proposal. The Commission was appointed ‘to study on the spot and to report to the Council on any circumstance which, affecting international relations, threatens to disturb peace between China and Japan’. For details, see J W Wheeler-Bennett (ed), Documents on International Affairs 1932 (1933) 240-60.

[45] General Convention to Improve the Means of Preventing War (26 September 1931), League of Nations, Publications No C.658(1).M.269(1).1931.IX.

[46] The Convention was ratified by Peru, Norway and Netherlands, and acceded to by Nicaragua. In order for the Convention to enter into force, however, ratifications or accessions of ten states were needed in accordance with art 13. See M O Hudson (ed), International Legislation: A Collection of the Texts of Multipartite International Instruments of General Interest (vol 5, 1936) 1090.

[47] L M Goodrich and A P Simons, The United Nations and the Maintenance of International Peace and Security (1955) 189. See also Schweisfurth, above n 5, 519.

[48] See the remark made by the Syrian representative to the Security Council in relation to the establishment of a sub-committee to examine the Corfu Channel incidents in 1946. UN SCOR (114th mtg), UN Doc S/PV.114, 430. Applying this criterion, the Syrian representative regarded the proposed activities of the sub-committee as simple fact-finding, different from investigation. Presumably because the sub-committee was not set up charged with investigating under art 34, the result of the fact-finding was disappointing, as in the view of the representatives of the United Kingdom and the Soviet Union. UN SCOR (120th mtg), UN Doc S/PV.120, 557-58 (UK); (121st mtg), UN Doc S/PV.121, 579 (Soviet).

[49] B G Ramcharan, ‘Introduction’ in B G Ramcharan (ed), International Law and Fact-Finding in the Field of Human Rights (1982) 1, 8. Fact-gathering activities in the field of international peace and security are often called ‘early-warning’, which enables to predict and diagnose emerging conflicts through gathering information, conducting research and assessing global trends. See B G Ramcharan, The International Law and Practice of Early-Warning and Preventive Diplomacy: The Emerging Global Watch (1991) 18-20, 44-59. A wide range of players have been involved in early-warning, notably including the International Crisis Group which is a non-governmental organisation offering updated analyses and suggestions for improvement of potential conflict situations in the world. See International Crisis Group, <http://www.crisisweb.org> at 1 October 2003. See also International Commission on Intervention and State Sovereignty, The Responsibility to Protect (2001) 21-22.

[50] This distinction of facts is shown by Plunkett, who argues that the function of a fact-finding body should be confined to basic facts because ultimate facts concern the source from which a standard applied is drawn and is often ambiguous and may even cause disagreements between states in the field of international law. E A Plunkett, ‘UN Fact-Finding as a Means of Settling Disputes’ (1968) 9 Virginia Journal of International Law 154, 156-61.

[51] Attention was drawn to the situation in Spain, as a result of denunciation by the delegate of Poland in the Security Council of the existence and activities of the Franco regime in terms of its relationships with Nazi Germany. Based on the proposal by the Australian delegate, Colonel Hodgson, a sub-committee of investigation was established with the objective ‘to make further studies in order to determine whether the situation in Spain has led to international friction and does endanger international peace and security, and if it so finds, then to determine what practical measures the United Nations may take’. See the Resolution adopted on 29 April 1946 in UN SCOR (39th mtg), UN Doc S/PV.39, 244-45.

[52] An investigation was carried out into a general situation without being triggered by any particular incident. The Australian delegate, Colonel Hodgson, made it clear that the Spanish question was ‘not a dispute but a situation, which has caused wide international controversy and differences of opinion in each of our countries’. UN SCOR (35th mtg), UN Doc S/PV.35, 194.

[53] It is to be noted that the prior consent of Spain was not required in deciding on the institution of an investigation. Spain was not a member state of the UN at the time.

[54] See eg H J Steiner and P Alston, International Human Rights in Context: Law, Politics, Morals (2nd ed, 2000) 602-3; Ramcharan, above n 49, ‘Introduction’, 11-21.

[55] See eg A Cassese, International Criminal Law (2003) 406-9.

[56] In the evening of 21 December 1988, Pan Am Flight 103 en route from London to New York exploded and crashed at Lockerbie, southern Scotland. As a result, all 259 passengers and crew were killed instantly, among which it is said 189 persons were US nationals; eleven local residents also died at the crash site. The investigation into the incident was carried out both in the US and the UK, which led, three years after the incident, to the charging of two Libyan nationals. In the immediate aftermath of the rejection by Libya of the requests made by the US and the UK to surrender the two suspects, the US and the UK put the Security Council in motion, resulting in the adoption of res 731 and 748, the latter of which determined that the failure by Libya to comply with res 731 ‘constitute[s] a threat to international peace and security’ and, acting under Chapter VII of the UN Charter, imposed an arms embargo upon Libya. For details of the facts, see F Beveridge, ‘The Lockerbie Affair’ (1992) 41 International and Comparative Law Quarterly 907, 907-9. J P Grant, Summary, Lockerbie Trial Briefing Site, University of Glasgow School of Law <http://www.ltb.org.uk/backgroundsummary.cfm> at 1 October 2002.

[57] M Weller, ‘The Lockerbie Case: A Premature End to the “New World Order”?’ (1992) 4 African Journal of International Law 302, 313.

[58] See eg D Akande, ‘The International Court of Justice and the Security Council: Is There Room for Judicial Control of Decisions of the Political Organs of the United Nations?’ (1997) 46 International and Comparative Law Quarterly 309; V Gowlland-Debbas, ‘The Relationship Between the International Court of Justice and the Security Council in the Light of the Lockerbie Case’ (1994) 88 American Journal of International Law 643; G R Watson, ‘Constitutionalism, Judicial Review, and the World Court’ (1993) 34 Harvard International Law Journal 1, 22-28; T M Franck, ‘The “Powers of Appreciation”: Who is the Ultimate Guardian of UN Legitimacy?’ (1992) 86 American Journal of International Law 519.

[59] It was highly likely that Libya would have accepted an investigation proprio motu by the Security Council, given Libya’s invitation to the UN Secretary-General to investigate, on the spot, the allegations of Libyan involvement in the incident and terrorist activities. See Weller, above n 57, 314-17. On the other hand, the fairness and legitimacy of the Security Council’s decisions resulting from impartial findings as the result of an investigation does not necessarily mean that Libya would have been forced to comply with the decisions, though the exposure to legal culpability would have put more pressure on Libya.

[60] In the Demir-Kapu incident, the Greek government alleged that the military advance into Bulgarian territory was nothing but a measure of legitimate defence, but this justification was rejected in the report of the Commission of Enquiry. See Report of the Commission of Enquiry into the Incidents of the Frontier Between Bulgaria and Greece, 7 December 1925, League of Nations Official Journal, Doc No C.727.M.270.1925.VII, 197-203. In the Manchuria incident, the Japanese claim of legitimate self-defence was also dismissed in the report of the Commission of Enquiry. See Report of the Commission of Enquiry: Appeal by the Chinese Government, 4 September 1932, League of Nations Official Journal, Doc No C.663.M.320.1932.VII, 71-126.

[61] For an overview of the three discussions on the situation of Greece, see ‘The Greek Question’ [1946-47] Yearbook of the United Nations 336, 336-38, 351-75.

[62] Report to the Security Council by the Commission of Investigation Concerning Greek Frontier Incidents, UN SCOR Spec Supp No 2 vol 1, 25 June 1947, 106-8, 112-14 .

[63] On 22 November 1970, mercenary troops landed in the capital city of Conakry, the Republic of Guinea, and carried out bombing raids at several points in the city. The Security Council immediately decided to send a special mission to the Republic of Guinea to report on the situation in SC Res 289 (22 November 1970). See ‘Complaints by Guinea against Portuguese’ [1970] Yearbook of the United Nations 187, 187-91. The report submitted by the Special Mission concluded the force had been assembled in Guinea (Bissau) and was composed of military units of the Portuguese armed forces, acting in conjunction with Guinean dissident elements from outside of Guinea, for the purpose of overthrowing the government and replacing it with dissident elements. Report of the Security Council Special Mission to the Republic of Guinea Established under Resolution 289 (1970), 3 December 1970, UN Doc S/10009/Add.1, [38]-[41].

[64] On 16 January 1977, an aircraft made an unauthorised landing at the airport in Cotonou, Benin from which a number of persons in military uniform disembarked and marched towards the city of Cotonou, firing indiscriminately at civilians. The Beninese armed forces repulsed the attacks, but were unable to prevent the retreating attackers from taking off. The Security Council decided by consensus to send a special mission to Benin in order to investigate the events in SC Res 404 (8 February 1977). See ‘Complaint by Benin’ [1977] Yearbook of the United Nations 207, 207-14. The report of the Special Mission concluded that Benin had been subjected to an armed attack with the primary objective of overthrowing the present government of Benin, and went on to speculate from the testimony of the captured member of the attacking force and the documentation left behind that the attackers, who had come from France, Senegal and Ivory Coast and trained in Morocco, had been transported from Morocco to Gabon on 15 January and, from there, had embarked to Benin. Report of the Security Council Special Mission to People’s Republic of Benin Established under Resolution 404 (1977) UN SCOR Spec Supp No 3, 7 March 1977, UN Doc S/12294/Rev.1, [141]-[145].

[65] On 25 November 1981, an armed group landed at Seychelles International Airport, and after fighting with the Seychelles People’s Defence Force hijacked another aircraft heading to the South African airport of Durban. The Security Council unanimously adopted res 496 on 15 December 1981 in which it was decided to send a commission of inquiry in order to investigate the origin, background and financing of the mercenary attack. See ‘Armed Attack against Seychelles’ [1981] Yearbook of the United Nations 226, 226-27. The Commission of Inquiry submitted a report on 15 March 1982, which stated that, although it did not have full knowledge of the origin and background of the attack, as it had not been able to interview the mercenaries who had returned to South Africa, it concluded that the attack was aimed at overthrowing the Seychelles government and that it was difficult to believe that the South African authorities did not at least have knowledge of the preparations for the attack, given the tight control exercised by security forces in South Africa. Report of the Security Council Commission of Inquiry Established under Resolution 496 (1981), UN SCOR Spec Supp No 2, 15 March 1982, UN Doc S/14905/Rev.1, 44-5 [271]-[282].

[66] For example, the United States attacked Libya on 14 April 1986 in response to repeated terrorist attacks on United States nationals including the La Belle Discothèque bombing in Berlin on 5 April 1986, alleging that it had direct, precise and irrefutable evidence of Libyan involvement in those terrorist attacks. UN SCOR (2674th mtg), UN Doc S/PV.2674, 16-18. The United States also launched missiles at targets in Sudan in response to the terrorist bombings near the United States embassies in Nairobi, Kenya and Dar es Salaam, Tanzania on 7 August 1998, claiming that the main suspect in the embassy attacks, Osama bin Laden, had ties to a pharmaceutical plant in Sudan that produced or stored nerve gas precursors, though the claim was dubious on a number of points. See J Lobel, ‘The Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and Afghanistan’ (1999) 24 Yale Journal of International Law 537, 544-45.

[67] While Western Sahara had been a Non-Self-Governing Territory under Spanish administration, Morocco and Mauritania persistently asserted their sovereign rights over Western Sahara, despite the advisory opinion given by the ICJ in 1975 effectively denying the validity of their allegations. When the King of Morocco announced that he would conduct a march of Moroccan people into Western Sahara, the government of Spain appealed to the Security Council, urging it to send a mission to find out the intention of the government of Morocco in the announcement of a march. Although the Security Council requested the UN Secretary-General to have consultations with the parties concerned, Moroccan nationals eventually marched into Western Sahara on 6 November over three days. For details, see ‘The Question of Western Sahara’ [1975] Yearbook of the United Nations 175, 177-84.

[68] SC Res 377 (1975).

[69] E J de Aréchaga, Voting and the Handling of Disputes in the Security Council (1950) 87.

[70] L M Goodrich, E Hambro and A P Simons, Charter of the United Nations: Commentary and Documents (3rd and rev ed, 1969) 266.

[71] Art 29 of the UN Charter reads, ‘The Security Council may establish such subsidiary organs as it deems necessary for the performance of its functions.’

[72] UN SCOR (37th mtg), UN Doc S/PV.37, 216.

[73] Shore, above n 42, 86.

[74] UN SCOR (39th mtg), UN Doc S/PV.39, 243.

[75] Amidst increasing tension of the civil war in Laos with foreign interventions, the government of Laos requested the UN Secretary-General on 5 September 1959 to take an appropriate procedural action to halt the aggression for which, it alleged, the Democratic Republic of Vietnam was responsible. In spite of a procedural inconsistency in raising the question, the Security Council took the question on the agenda and, with only the Soviet Union objecting, appointed a sub-committee to examine the Laotian complaint. For details of the facts, see A M Weisburd, Use of Force: The Practice of States Since World War II (1997) 179-80; ‘The Question of Laos’ [1960] Yearbook of the United Nations 1959, 62, 62-67.

[76] UN SCOR (847th mtg), UN Doc S/PV.847, 11 [60].

[77] The Soviet representative argued that the establishment of an investigatory body was a question of substance entailing political consequences. UN SCOR (848th mtg), UN Doc S/PV.848, 5 [30].

[78] The Soviet representative argued the ruling was at variance with the UN Charter and expressed the view that the resolution could not be regarded as having any legal force or binding on anyone. Ibid 23 [133].

[79] Kellogg points to the confusion of the substantive functions of the Security Council with the procedural means of carrying them out in relation to the question of Laos. M K Kellogg, ‘The Laos Question: Double What Veto?’ (1959) 45 Virginia Law Review 1352, 1358.

[80] The second paragraph of Part II of the Four-Power Statement reads that, ‘the decision regarding the preliminary question as to whether such a matter is procedural must be taken by a vote of seven members of the Security Council, including the concurring votes of the permanent members’. Documents of the United Nations Conference on the International Organization (vol 11, 1945) 714. Although the Statement may not be binding on all members of the Security Council, it has been and still remains undoubtedly an authoritative interpretation of the UN Charter.

[81] Arts 27(2) and (3) of the UN Charter reads that: ‘2. Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members. 3. Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of article 52, a party to a dispute shall abstain from voting.’ Gross is of the view that the second paragraph of Part II of the Four-Power Statement merely reflects the voting rules implicit in art 27 of the UN Charter. L Gross, ‘The Double Veto and the Four-Power Statement on Voting in the Security Council’ (1953-4) 67 Harvard Law Review 251, 266-67, 278.

[82] Another justification for the President’s ruling could be made by reference to Rule 30 of the Provisional Rules of Procedure of the Security Council, which provides that, ‘If it [President’s ruling] is challenged, the President shall submit his ruling to the Security Council for immediate decision and it shall stand unless overruled.’ Although it means that President’s ruling can stand by an unqualified majority vote despite opposition from some of the permanent members, the President’s power to make rulings is in any event confined to the conduct of business pursuant to those rules. Gross warns that, ‘To concede to the President the power to make rulings on the question whether a matter shall be voted on under paragraph 2 or 3 of Article 27 of the Charter would be tantamount to replacing Article 27 of the Charter by Rule 30 of the Rules of Procedure.’ L Gross, ‘The Question of Laos and the Double Veto in the Security Council’ (1960) 54 American Journal of International Law 118, 128.

[83] Art 24(1) of the UN Charter reads: ‘In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.’

[84] Above n 80, 712.

[85] Report of Security Council Sub-Committee under Resolution of 7 September 1959, 3 November 1959, UN Doc S/4236.

[86] Art 25 of the UN Charter reads, ‘The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter’ (emphasis added). Another issue in this connection is whether a decision to employ an investigation is made in accordance with the UN Charter. However, the issue would not arise, so long as an investigation is carried out in cases where doubt or discrepancy as to whether the continuance of the dispute or situation is likely to endanger international peace and security exists. See text accompanying above n 69.

[87] This question twice caused extensive controversy. The controversy first arose in May 1947 when Albania, Bulgaria and Yugoslavia refused to appoint liaison representatives to the Subsidiary Group, raising a question of the legality of the Subsidiary Group, which was established by the Commission of Investigation in the interest of efficient dispatch of its work without the participation of the three states. The controversy arose again in July when, based on the report from the Commission, the US representative proposed a draft resolution containing the establishment of a new commission which was charged with making an investigation of any frontier violation, although the draft resolution was eventually vetoed by the Soviet Union.

[88] A clear expression of this view was made at the time the controversy first arose by the representative of Belgium, Langenhove, who regarded the nature of investigation under art 34 of the UN Charter as an injunction and ‘an act preparatory to the recommendation which may be made in conformity with Chapter VI’. Langenhove stated that, ‘Since the Council’s resolution of 18 April [to establish the Commission of Investigation] is binding on the four States, they are in principle bound by the decisions of 29 April [to establish the Subsidiary Group] taken by the Commission of Investigation in pursuance of instructions it received by this resolution’ and went on to say that ‘the States concerned are bound to lend their help in every measure necessary to make the execution of the decision of 29 April possible’. UN SCOR (134th mtg), UN Doc S/PV.134, 843-44. This view was generally supported. UN SCOR (135th mtg), UN Doc S/PV.135, 874-75 (US), 880 (Brazil), 882-83 (China); (136th mtg), UN Doc S/PV.136, 897 (UK). Also, this view did not meet opposition in terms of the binding character of the decisions of the Security Council even from Albania, Bulgaria and Yugoslavia. See eg UN SCOR (136th mtg), UN Doc S/PV.136, 900.

[89] This view was expressed by the representatives of Bulgaria, Yugoslavia and Albania, which opposed the establishment of the second commission against their will, contending that, so long as the commission was established under Chapter VI, the recommendation necessarily required the consent of the parties concerned. See eg UN SCOR (156th mtg), UN Doc S/PV.156, 1280-1 (Bulgaria); (159th mtg), UN Doc S/PV.159, 1371 (Yugoslavia); (167th mtg), UN Doc S/PV.167, 1536-39 (Soviet). For a summary of the debate, see L B Sohn, Cases on United Nations Law (2nd ed, 1967) 331-47. However, the significance of this view was limited, as the proposed commission was characterised as fact-finding or peace observation rather than investigation, on the basis that the proposed commission was not to assess the situation whether the continuance was likely to endanger the maintenance of international peace and security, but to make an inquiry into any frontier violations that would occur and any complaints that would be brought by one government against another regarding border conditions. See, UN Doc S/391, cited in UN SCOR (147th mtg), UN Doc S/PV.147, 1124-26.

[90] Above n 80, 393-95.

[91] Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16, 52-53 [113]-[114] (Namibia Case).

[92] See also S D Bailey and S Daws, The Procedure of the UN Security Council (3rd ed, 1998) 268-71.

[93] See above n 88.

[94] Corfu Channel Case (United Kingdom v Albania) (Pleadings) [1949] 1 ICJ Plead 6, 19-20.

[95] UN SCOR (1589th mtg), UN Doc S/PV.1589, 26.

[96] R Higgins, ‘The Advisory Opinion on Namibia: Which UN Resolutions Are Binding under Article 25 of the Charter?’ (1972) 21 International and Comparative Law Quarterly 270, 283.

[97] N D White, Keeping the Peace: The United Nations and the Maintenance of International Peace and Security (2nd ed, 1997) 62.

[98] Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, UN GAOR (44th sess), Supp No 33, 5 May 1989, UN Doc A/44/33, 16 [41], 26-27 [68].

[99] Above n 2. Para 6 of the Declaration reads that, ‘The sending of a United Nations fact-finding mission to the territory of any state requires the prior consent of that State, subject to the relevant provisions of the Charter of the United Nations’ (emphasis added). The debate in the drafting reveals that some of the delegation preferred specific mention of art 25 of the UN Charter in this provision. See UN GAOR (45th sess), Supp No 33, 8 March 1990, UN Doc A/45/33, 24 [52].

[100] Rothert explains that the Security Council invoked Chapter VII for practical reasons such as to enable multinational forces to be deployed in the absence of the consent of the militias active in East Timor and to prevent the deployment from being subject to Indonesia’s withdrawal of consent. M Rothert, ‘U.N. Intervention in East Timor’ (2000) 39 Columbia Journal of Transnational Law 257, 274. However, if the Security Council had been willing to enforce its decision, it would have not been necessary to obtain Indonesia’s consent, sacrificing a number of lives for it. It could be that the Security Council invoked Chapter VII in order to give the Resolution a binding effect upon Indonesia and East Timor.

[101] Report of the Sub-Committee on the Spanish Question, UN SCOR Spec Supp, 31 May 1946, 1 [2].

[102] See text accompanying above n 40. Lauterpacht considers intervention within the meaning of art 2(7) as follows: ‘It signifies dictatorial interference in the sense of action amounting to a denial of independence of the State. It implies a peremptory demand for positive conduct or abstention – a demand which, if not complied with, involves a threat of or recourse to compulsion; though not necessarily physical compulsion, in some form.’ H Lauterpacht, ‘The International Protection of Human Rights’ (1947-I) 70 Recueil des Cours 5, 19. But see L Preuss, ‘Article 2, Paragraph 7 of the Charter of the United Nations and Matters of Domestic Jurisdiction’ (1949-I) 74 Recueil des Cours 553, 605-19.

[103] See above n 9.

[104] J Sztucki, Interim Measures in the Hague Court: An Attempt at a Scrutiny (1983) 155.

[105] Dumbauld considers that the raison d’être of provisional measures is the requirement for security of rights endangered. E Dumbauld, Interim Measures of Protection in International Controversies (1932) 19-21.

[106] Shore, above n 42, 100.

[107] E L Kerley, ‘The Powers of Investigation of the United Nations Security Council’ (1961) 55 American Journal of International Law 892, 901-2.

[108] See above n 17.

[109] When these states questioned the legality of the Subsidiary Group set up by the Commission of Investigation without the consent of those states, they did not oppose the binding nature of the decisions of the Security Council, but argued the Commission’s decision was ultra vires and procedurally defective. See n 88.

[110] See text accompanying above n 18.

[111] See above Section III (a).

[112] Although the Sub-Committee on the Spanish Question concluded that the situation did not constitute an existing threat to the peace within the meaning of art 39, it held that the situation was likely to endanger the maintenance of international peace and security within the meaning of art 34 and on the basis of this finding recommended the eventual termination of diplomatic relations with Spain, which is a measure stipulated in art 41 of the UN Charter. The failure of the report to be adopted presumably resulted from this contradictory conclusion, which was pointed out by some delegates. See UN SCOR (45th mtg), UN Doc S/PV.45, 330 (Egypt), 337 (Soviet); (46th mtg), UN Doc S/PV.46, 346-7 (UK).

[113] See above n 7.

[114] In the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization (1989-1991), the policy suggestion of giving preference to the UN Secretary-General in carrying out fact-finding missions was largely accepted. See eg above n 98, [36]-[37]; Declaration on Fact-finding, above n 2, [15]. For a detailed analysis of this policy, see C Bourloyannis, ‘Fact-Finding by the Secretary-General of the United Nations’ (1990) 22 New York University Journal of International Law and Politics 641, 657-67.

[115] Report of the Security Council Mission to Burundi on 13 and 14 August 1994, 9 September 1994, UN Doc S/1994/1039.

[116] Report of the Security Council Mission on the Implementation of Security Council Resolution 1244 (1999), 29 April 2000, UN Doc S/2000/363.

[117] Security Council Mission Visit to the Democratic Republic of the Congo, 4-8 April 2000, 11 May 2000, UN Doc S/2000/416.

[118] Security Council Special Mission Visit to Eritrea and Ethiopia, 9 and 10 May 2000, 11 May 2000, UN Doc S/2000/413.

[119] Report of the Security Council Mission to Sierra Leone, 16 October 2000, UN Doc S/2000/992.

[120] Report of the Security Council Mission to East Timor and Indonesia, 20 November 2000, UN Doc S/2000/1105.

[121] SC Res 1284 (1999) [1].

[122] Ibid [4].

[123] Twelfth Quarterly Report of the Executive Chairman of the United Nations Monitoring, Verification and Inspection Commission in accordance with Paragraph 12 of the Security Council Resolution 1284 (1999), 28 February 2003, UN Doc S/2003/232, [12].

[124] Thirteenth Quarterly Report of the Executive Chairman of the United Nations Monitoring, Verification and Inspection Commission in accordance with Paragraph 12 of the Security Council Resolution 1284 (1999), 30 May 2003, UN Doc S/2003/580, [7]-[16].


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