ASSESS THE CONTRIBUTION OF THE UNITED NATIONS TO THE ENFORCEMENT

OF INTERNATIONAL LAW WITH REFERENCE TO THE KUWAIT CRISIS 1990-1991.

LUBEGA NELSON
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MENTAL WEALTH – INTERNATIONAL LAW: PROBLEMS AND PROCESS
UEL-LA-7040

March 28, 2024

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 ABSTRACT

This research proposal assesses the contribution of the United Nations to the enforcement of

international law with reference to the Kuwait crisis 1990 - 1991.

The research study will give a background of the Kuwait crisis, the measures taken by the United

Nations through its organs, specifically the United Nations Security Council in resolving the crisis.

The legal consequences of such intervention together with the legality of the measures taken. The

study will also assess the contribution of the United Nations, with a view towards demonstrating

the capacity for enforceability of international law through the United Nations as a pivotal

custodian of international peace and security.

The study will demonstrate that there is need to revise the UN Charter and reconsider the

constitution of the Council and the voting process. With some adjustments to the its Charter to

ensure all members are subject to the same rules and enforcement, its role in this regard will be

undeniable.

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Contents

ABSTRACT...............................................................................................................................iv
1.0. Introduction.....................................................................................................................6
2.0. Literature Review........................................................................................................... 7
3.0. Limitations.....................................................................................................................14
4.0 Conclusion.....................................................................................................................14

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1.0. Introduction.

The enforcement nature of international law is a vital component of International peace and

security. While some authors assert that it is enforceable as they consider law as rules of

conduct to be enforced by external powers through the consent of a given community, others

are of the position that there is no room for the enforcement of international rights and

obligations in the present context of international law.

The formation of United Nations in 1945 after the cold war gave much hope to the forefathers

of enforceability of international law as it represented a central organ through which there can

be better coordination among states and international rights and obligations can be enforced.

However, there is still some contention as to the effectiveness of the United Nations in

enforcing the rules of international law. Using the Kuwait crisis as a case study, this research

proposal considers both sides of the argument by evaluating the role of the United Nations

through its various organs in enforcing international law and promoting international peace.

More particularly, this paper will discuss vividly the inception of the invasion, the actions

taken the United Nations towards the resolution of the dispute, the legality and effects of these

steps and the eventual consequences of the actions taken on the primary role of the United

Nations with a view towards demonstrating the capacity for enforceability of international law

through the United Nations.

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2.0. Literature Review.

The United Nations Security Council is created according to Article 7 of the UN Charter of

1945, its granted the powers to protect and maintain International peace and Security according

to Article 24(1) UN Charter,1945 as its primary role, the ideal spirit was that the council is the

custodian of security with a membership of five permanent nations after winning Second world

war, the means for maintenance of this peace where not expressly provided except, however

this role is meant to be executed along the Military Committee according to Article 26 of the

UN Charter but also Chapter VI that provides the council with the role in the pacific

settlement of disputes,

Furthermore, in the maintenance of peace, the security council may adopt the measure in the

question statement regarding the use of force as enshrined in Article 41 of the UN Charter

however where needs be the security council upon realization of failure of other measures may

use force in the maintenance of peace and security according to Articles 43,44,35,46 and 47 of

the UN Charter, there have been instances when the council has unleashed these powers as

examined in the essay below in reference to the Persian Gulf Crisis 1990-1991.

This article will examine the historical background which precipitated Iraq's invasion,

occupation and annexation of Kuwait. It will also examine the political and legal aspects of the

U.N. Security Council's resolutions pertaining to Iraq's actions against Kuwait. Finally, it will

examine the legitimacy in international law of the use of force against Iraq by the U.S. and its

coalition partners.

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While it may seem difficult to defend Iraq's use of force against the Sheikhdom of Kuwait,1 an

independent sovereign state2 and a member state of the United Nations as well as of the Arab

League,3 with whom Iraq had had diplomatic relations,4 it is equally Imperative to assess the

contribution of the United Nations in the enforcement of International law in the wake of the

Persian Gulf Crisis.

On August 2, 1990, after midnight, Iraq's armed forces crossed into Kuwait, moved toward

Kuwait's capital and within seven hours occupied it.5 The United States, Britain and France

immediately condemned the Iraqi invasion, called for the immediate and unconditional

withdrawal of all Iraqi troops from Kuwait and froze all Iraqi and Kuwaiti assets in their

respective countries.6 They also announced the immediate halting of all arms shipments to Iraq.

The Soviet Union, Iraq's main arms supplier, followed suit, halting all Soviet arms sales to

Iraq, and called on the Iraqi government to with-draw all of its troops, unconditionally and

immediately, from Kuwait.8

From the foregoing, one may conclude that the UN’s reaction to the Iraq invasion was

appropriate and even legally justifiable. However, on a closer evaluation, the conclusion may

be opposite. There exist differing opinions on the actions of the UN to the invasion. Mary

O’Connell is of the firm view that the Council’s actions towards addressing the invasion were

appropriate. She asserts that Iraq was in clear violation of Article 2 of the Charter which

prohibits forceful territorial acquisition and since Iraq had no defense such as self-defense

allowed under the Charter, the UN was right to authorize 'all means necessary' to end the

invasion. On the other hand, John Quigley states that the mere duty of the Council to maintain

international peace does not give it the authority to use military force to achieve that mandate

1 Article 2(4) of the U.N. Charter provides: "All members shall refrain in their inter-national relations from the threat or use of force against the territorial integrity
or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations." U.N. CHARTER art. 2, para. 4.
2 Kuwait attained full independence from Great Britain on June 19, 1961. See HUMPHREY TREVELYAN, THE MIDDLE EAST IN REVOLUTION 186-91 (1970).
3 Kuwait was admitted to membership in the Arab League on July 20, 1961. Id. at 179. 38
4 Iraq recognized Kuwait in 1963, after the overthrow of the Iraqi regime of Abdul-Karim Qasim and after Iraq dropped its claim to Kuwait. Id. at 67, 175.
5 Michael R. Gordon, Iraq Army Invades Capital of Kuwait in Fierce Fighting, N.Y. TIMES, Aug. 2, 1990, at Al. See also THE MIDDLE EAST 355-56 (Daniel c.

Diller ed., 7th ed. 1991) (revised to include a Persian Gulf Crisis Supplement, Congressional Quarterly) [hereinafter THE MIDDLE EAST 7th].
6 Barbara Toman, Several Countries Freeze Kuwait's Overseas Assets, WALL ST. J., Aug. 3, 1990, at A4. See also THE MIDDLE EAST 7th, supra note 1, at 356.
8 Ved P. Nanda, The Iraqi Invasion of Kuwait: The U.N. Response, 15 S. ILL. U. L.J. 431 (1991). See also THE MIDDLE EAST 7th, supra note 1, at 356.

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and that such force is reserved only for situations where other means will not be effective.

In response to Iraq's forcible occupation of Kuwait in the summer of 1990, the United Nations

Security Council adopted a number of resolutions that year. A detailed analysis will be made

of some of the resolutions as passed by the U.N Security Council, in reference to the Persian

Gulf crisis; assessing their contribution and shortfalls in regard to the enforcement of

International Law. It should be noted that the below discussion is three-fold, as it discusses

both actions of the U.N Security Council, the legality of the resolutions and at the same time,

the violations of international law occasioned by the very resolutions.

On 6th August, 1990, the Security Council adopted U.N. Security Council Resolution 661,

Owing to Iraq’s apparent unwillingness to heed resolution 660. The U.N. Security Council

Resolution 661, prohibited all U.N. members from buying oil from, or having any commercial

or financial dealings with Iraq and Kuwait.9

It is of essence to note that Security Council Resolution 661, did not have a legal foundation

because sanctions, economic and financial, should only be the consequence of a legally

determined act of aggression.10 Economic or financial sanctions, whereby the U.N. attempts to

disrupt the commercial and financial activities of a member state and its nationals, are such

severe measures that they should never be imposed on a member state without affording that

member "due process" of law.11 Because of the severity of economic and financial sanctions

and the hardships they can bring to the innocent nationals of an accused state, they should not

be imposed lightly. If they are imposed against a state which has not committed a legally

determined act of aggression under international law or against one whose "aggression" has

9 S.C. Res. 661, U.N. SCOR, 45th Sess., 2933d mtg. (Aug. 6, 1990) reprinted in 29 l.L.M. 1325 (1990) [hereinafter S.C. Res. 661).
10 Chapter VII, articles 39-51 of the U.N. Charter are the main authority for the imposition of sanctions. See U.N. CHARTER arts. 39-51. The essential element,
however, is that this drastic coercive measure must be used legally and responsibly and not at the whim of one powerful or influential state or group of states in order
to advance their special interests. As former Senator J.W. Fulbright once wrote: "The crucial distinction is not between coercion and voluntarism, but between duly
constituted force, applied through law ... and the arbitrary coercion of the weak by the strong." J. WILLIAM FULBRIGHT, THE CRIPPLED GIANT 108 (1972). For
an analysis of the existing sanctioning process under Chapter VII of the U.N. Charter, see MYRES s. McDONALD & FLORENTINO 0. FELECIANO, LA w AND
MINIMUM WORLD PUBLIC ORDER 261-383 (1961). See also MALLISON & MALLISON, supra note 96, at 419-24.
11 See H. Lauterpacht, The Boycott in International Relations, 1933 BRIT. Y. B. INT'L L. 125. See also GEORGE A. FINCH, THE SOURCES OF MODERN

INTERNATIONAL LAW 44-58

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Furthermore, Paul Kahn (1993) argues that prior to the invasion, international institutions failed

to act when needed as under the formal system of law, national interests of states superseded

international interest and as such, the response of the international community to unaggravated

violence by Iraq through sanctions and force was a true expression of the new world order as it

reflects an international decision-making process. However, Dallal (1992) is of the opinion that

there was never a legal determination of Iraq’s invasion as illegal as that is the function of the

International Court of Justice. He states that the declaration was political and since there was no

legal declaration by the ICJ, neither resolution 660 nor 661 which is based on the former can be

said to be well founded in law. The UN General Assembly in 1974 defined aggression as the use

of armed forces by a state against the sovereignty, territorial integrity or political independence

of another state, or in any other manner inconsistent with the Charter of the United Nations.

Since there was already a laid down definition which will determine whether the invasion

qualifies as aggression or not which can be determined by the ICJ and no clear proof whether

negotiations would have resolved the dispute, the Council ought to have been more prudent in

their political declaration of the invasion as illegal.

Additionally, Iraq has claimed that a group of Kuwaitis seeking to overthrow Kuwait's

unrepresentative Sheikhdom had invited Iraq to invade Kuwait and liberate it from the grip of a

corrupt and feudalistic regime.12 Under the doctrine of humanitarian intervention, a state may

have the right to use force against another sovereign to protect its inhabitants from inhumane

treatment by their governing sovereign.13 This claim should also have been examined more

closely and adjudicated by the International Court of Justice which was not the case as the U.N

Security Council is not a Court of Justice. Iraq's claim, therefore, that it invaded Kuwait at the

invitation of the Sheikhdom's oppressed opposition should not have been taken lightly and

dismissed out of hand. In this regard, the United Nations through its organs; the Security

12John Kifner, Iraq Proposes Peace Talks, then Lashes Out at the U.S., N.Y. TIMES, Aug. 22, 1990, at A9.
13Michael J. Bazyler, Reexamining the Doctrine of Humanitarian Intervention in Light of the Atrocities in Kampuchea and Ethiopia, 23 STAN. J. INT'L L. 547, 547-
48 (1987); Laura K. Wheeler, The Grenada Invasion: Expanding the Scope of Humanitarian Intervention, 13 B.C. INT'L & COMP. L.R. 413, 415-17 (1985).

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Council and ICJ fell short in the enforcement of international law.

Consequently, On August 9, 1990, the U.N. Security Council adopted Resolution 662, which

condemned Iraq’s invasion of Kuwait and declared its annexation "illegal. 14 and called on

member states to refrain from doing any act that might be construed as validating or

recognizing the annexation. Despite all efforts, the Security Council still had concern over the

state of diplomatic missions and third state nationals in Kuwait.

On August 18, the U.N. Security Council passed Resolution 664, which called on Iraq to

release all the foreign nationals it had detained in Iraq and Kuwait. On August 25, the U.N.

Security Council passed Resolution 665, authorizing the use of all "necessary measures" to

enforce the economic sanctions against Iraq. On September 26, it passed Resolution 670,

which expanded the economic sanctions against Iraq and barred passenger and cargo traffic to

and from Iraq, except for humanitarian purposes. On October 29, 1990, it passed Resolution

674, which demanded that Iraq stop detaining foreign nationals.

From the foregoing, it is evident that, in the first few months of the invasion, the UN tried to

deal with the issue through diplomatic and economic means which is why so far, all of its

resolutions and sanctions have been on the use of peaceful measures to resolve the dispute but

the measures taken did not save the situation.

Finally, on November 29, 1990, it adopted Resolution 678, which authorized the use of "all

necessary means" to make Iraq comply with all previous Security Council resolutions by

January 15, 1991.

It is doubtful that Security Council Resolution 678 was in fact properly and legally adopted by

the U.N. Security Council, in view of the abstention rather than a concurrence by China, one of

the five permanent members of the U.N. Security Council. China's abstention must have been

14ACCESS, supra note 7, at 8. On August 9, 1990, in response to Iraq's declaration of a "comprehensive and eternal merger" with Kuwait, the United Nations
Security Council reaffirmed its position, demanding Iraq's immediate and unconditional withdrawal, and declaring Iraq's "annexation" of Kuwait to be illegal, null
and void. See S.C. Res. 662, U.N. SCOR, 45th Sess., 2934th mtg. (Aug. 9, 1990) reprinted in 29 I.L.M. 1327 (1990) [hereinafter S.C. Res. 662). See also ACCESS,
supra note 7, at 15

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legally fatal to the proper adoption of the resolution under article 27 of the U.N. Charter, which

provides: "Decisions of the Security Council . . . shall be made by an affirmative vote of nine

members including the concurring votes of the permanent members. . . "15

In effect, S.C. Res. 678 was an ultimatum issued to Iraq by the U.N. Security Council. It stated

that certain U.N. members would use "all necessary means," interpreted by these states to

mean force,16 to coerce Iraq to implement these resolutions. Article 2 of the U.N. Charter

requires all members of the U.N. to "settle their international disputes by peaceful means" and

to "refrain in their international relations from the threat or use of force" which, in effect, is

the issuing of ultimatums to a fellow member state. The Charter of the U.N. seems to seek the

avoidance of the indiscriminate use of force or the threat to use force, in an effort to prevent

extortion under the guise of compelling respect for legal rights. On its face, therefore, Security

Council Resolution 678 would seem to violate Article 2 of the U.N. Charter and the norms of

international law.

In light of the above resolution, at exactly 12:50 a.m. Baghdad time on January 17, 1991, the

first attack aircraft of the coalition forces of 28 nations ranged against Iraq, and the first cruise

missiles from the U.S. battleships Missouri and Wisconsin took off in coordinated strikes to

attack military targets in Baghdad and throughout Iraq and occupied Kuwait. At about 6:30

Eastern Standard Time, or about an hour and a half after it began, prime time news viewers in

the United States were able to see and hear the effects of the first attacks on Baghdad.' The

offensive to liberate Kuwait, authorized by United Nations Security Council Resolution 678 to

start no earlier than January 15, had begun. Iraq had spurned "one final opportunity, as a pause

of goodwill,"? to leave Kuwait, which it invaded August 2, 1990. Such attack was not

15 Mideast Tensions, N.Y. TIMES, Nov. 30, 1990, at A10. Commenting on China's abstention, Louis Jay Herman, in a Letter to the Editor of The New York Times,
wrote: "Thus a draft resolution is killed just as effectively by an abstention as by a negative vote or 'veto' ... [of a permanent member of the U.N. Security Council]. See
Louis Jay Herman, Legal Fiction Oils U.N. ~Iraq Resolution, N.Y. TIMES, Dec. 14, 1990, at A38.
16 Secretary of State James Baker, in addressing the members of the Security Council, during deliberations on S.C. Res. 678, stated: Our aim today must be to

convince Saddam Hussein that the just and humane demands of this Council, and of the international community, cannot be ignored. If Iraq does not reverse its
course peacefully, then other necessary measures, including the use of force, should be authorized. We must put the choice to Saddam Hussein, in unmistakable
terms. Mideast Tensions, N.Y. TIMES, Nov. 30, 1990, at A10.

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sanctioned by S.C. Res. 678 and was probably a violation of the U.N. Charter and of the norms

of international law. On 16th January 1991, the military might of states cooperating with the

legitimate government of Kuwait began air strikes against Iraq. This was followed by ground

troops on 24th of February 1991 and by midnight of 28th of February, the armed forces of Iraq

had been quashed and Kuwait was finally liberated.

A few months later, the Council drew up terms for a formal cease fire in resolution 687 which

among others, required Iraq’s full compliance with all prior resolutions. Some of the other

requirement for the cease fire include Iraq’s repudiation of its annexation of Kuwait as part of its

province, undertaking of liability for third party nationals and assistance in the destruction of all

incendiary device planted in Kuwait and in areas occupied by the United States and European

Economic Union coalition in Iraq. In order to ensure compliance with the terms of the cease fire

and prevent boundary violation, the Council adopted resolution 689 which set up the United

Nations Iraq-Kuwait Observation Mission (UNIKOM) with the strength of three hundred

military observers to monitor the demilitarized zone (DMZ) and the Khawr 'Abd Allah

waterway along the boundary between Iraq and Kuwait.17

While the UN’s efforts during the crisis was timely and perhaps even necessary, some of those

efforts are questionable and thus raises the question of the effectiveness of the UN in enforcing

international law. As it stands now, the UN seems to be against the use of force but also permits

its use in certain situations. It raises question of how you can denounce a mechanism but still

employ same. For rule of law to prevail, no one should be a judge in his own case. Thus, there is

need to revise the UN Charter and reconsider the constitution of the Council and the voting

process. Nevertheless, the UN since inception has been pivotal in the enforcement of

international law and maintenance of international peace and security. With some adjustments

to the its Charter to ensure all members are subject to the same rules and enforcement, its role in

17UN Documents Map, 'UNIKOM: Iraq-Kuwait-Background Mandate Facts and Figures' https://peacekeeping.un.org/mission/past/unikom/background.html
accessed 31 March 2024.

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this regard will be undeniable.

3.0. Limitations.

The first limitation would be that where the Council's authority is regulated by specific

provisions contained elsewhere in the Charter (Chapters VI, VII, VIII, etc.) that the Council's

general or 'implied' powers should not be construed in such a way as to violate or exceed the

allocation and limitation of authority contained in specific provisions of the Charter. The

existence of implied or general powers does not give the Council the authority to ignore or

contravene specific provisions of the Charter, or where relevant, of other relevant rules and

principles of international law.18 An example in point was the use of force on a member state

and imposition of economic sanctions without due process which consequently affected

innocent people through economic hardships and starvation which was a direct violation of

human rights and International Humanitarian Law.

Another limitation can be found in the fact that the Council's general powers do not provide it

with a blank cheque to take measures which would violate fundamental principles and rules of

international law, even if these are not specifically referred to in Chapter I or in other

provisions of the Charter. In short, the Council is no more allowed to do anything which is not

specifically prohibited on the basis of its general powers, than it is on the basis of specific

authority granted to it elsewhere in the Charter - particularly if this would violate fundamental

human rights or humanitarian norms. The Charter provide for limitations on the authority of the

Council to take measures in the context of the maintenance of peace and security under its

general powers contained in Article 24, as well as under particular chapters and provisions of

the Charter. But there are other limitations as well, as will be demonstrated in the subsequent

paragraphs of this chapter.

18Gill, T. D. (1995). Legal and some political limitations on the power of the UN Security Council to exercise its enforcement powers under Chapter VII of the
Charter. Netherlands Yearbook of International Law, 26, 33–138. doi:10.1017/S0167676800000362

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Another direct restriction specifically laid down in the Charter regarding the exercise of

enforcement powers by the Council are those referred to in Articles 1(1) and 24, namely the

duty of the Council to act in conformity with the Purposes and Principles of the Organization.

For example, the Charter prohibits the use or threat of (armed) force by Member States in their

international relations, but this is clearly not a prohibition on the Council from using (or

authorizing) (armed) force in the maintenance or restoration of international peace and

security, since this is the very raison d'etre of the Charter's collective security system.

Following the military operations which succeeded in liberating Kuwait, the Council adopted

its cease-fire Resolution 687, which, inter alia, demanded that Iraq and Kuwait respect the

inviolability of the international boundary set out by agreement between the two States in 1963

and decided to demarcate that boundary with the assistance of the Secretary-General (who

accordingly appointed a Commission of Experts to carry out the demarcation.19

However, none of this involves the permanent allocation of territorial rights or any power on

the part of the Council and the Organization as a whole, or the Member States which made up

the coalition to take any measures which would affect the territorial integrity of Iraq or any

other State under similar circumstances. The principle of territorial integrity was affirmed by

the Council itself in relation to Iraq.20 Thus, this was a limitation.

4.0 Conclusion.

The Iraqi government could bring the U.S. and its coalition partners to the International Court

of Justice, for the violent destruction occasioned against Iraq. The present Iraqi regime could

also be held to account for a series of illegal acts committed during the crisis.

19 SC Res. 662 (9 August 1990), SC Res. 678 (3 April 1991) reproduced in Weller, loc. cit.
n. 121, at pp. 3 and 877, respectively. Under part A of the latter resolution the Council demanded that Iraq and Kuwait respect the international boundary agreed
between them in Baghdad in 1963 (para. 5, idem. 9)
20 Gill, T. D. (1995). Legal and some political limitations on the power of the UN Security Council to exercise its enforcement powers under Chapter VII of the

Charter. Netherlands Yearbook of International Law, 26, 33–138. doi:10.1017/S0167676800000362

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The use of force for the settlement of disputes, even if it is legally defensible, is rarely

politically or morally justifiable. It is always risky militarily. Iraq's use of force to repossess the

territory of Kuwait, which belonged to it historically, but which was usurped from it illegally

and unjustifiably, was no doubt unwise politically and militarily. It was at best morally

doubtful. Instead of resorting to the use of force to recover its stolen territory, Iraq would have

been well advised to submit its claim to Kuwait for arbitration or for adjudication before the

International Court of Justice.

This paper focuses on the enforceability of international law through the various organs of the

UN with the role played by the UN during the Kuwait crisis as a point of focus. An evaluation

of the resolutions by the UN Security Council revealed that there are positives and negatives

impact of these resolutions as while the Council was swift in enforcing the rules of

international law against forceful acquisition of territory and ending the conflict, it also

neglected some legal procedures in adopting some of those resolutions and some of its acts are

regarded as ultra vires by some scholars. Notwithstanding this, the proposal evaluates the

setbacks in the UN Charter which inhibits its capacity to be an undeniable institution in the

enforcement of international law but points to the achievements of the organization as a central

and effective organ for enforcement and maintenance of international law, peace and security.

Further research should indicate how reform to the Charter can be achieved to attain true

equality of member states of the Charter in terms of enforcement against violation of

sovereignty of other nations, membership of the security council and the voting powers of

members.

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(Nicaragua V USA) ICJ Reports,1986.

- Clyde Haberman, The Iraqi Invasion, N.Y. TIMES, Aug 6, 1990, at§ 1

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[18] [111] Syracuse Journal of International Law and Commerce 111.

- Gill, T. D. (1995). Legal and some political limitations on the power of the UN Security

Council to exercise its enforcement powers under Chapter VII of the Charter.

Netherlands Yearbook of International Law, 26. 33-138

- John Kifner, Iraq Proposes Peace Talks, then Lashes Out at the U.S., N.Y. TIMES,

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in-doubt-how-he-will-vote-on-iraq-at-un.html Accessed 31st March 2024

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https://peacekeeping.un.org/mission/past/unikom/background.html Accessed 31 March

2024

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