N.D. White

The aim of this paper is to examine the development of the Security Council's powers in the field of international dispute resolution, particularly since the end of the Cold War, to assess those powers both in terms of their compatibility with the Charter and in terms of their effectiveness.

The concern is not simply to look at the issue of effectiveness. Indeed, with the Security Council becoming more effective, at least in terms of becoming more active, it could be argued quite strongly that one of the important questions for international lawyers is whether there is a legal limit on the expansion of the Security Council's powers.
Furthermore, the effectiveness of these powers, in terms of their success in ending or resolving disputes, has yet to be fully tested. The Secretary General recently examined the Security Council's role in the settlement of disputes as part of the review commissioned by the Security Council at its historic summit meeting on 31 January 1992. The present determination in the Security Council to resolve international disputes in the manner foreseen in the Charter has opened the way for a more active Council role.

 With greater unity has come greater leverage and persuasive power to lead hostile parties towards negotiations.
I urge the Council to take full advantage of the provisions of the Charter under which it may recommend appropriate procedures or methods of dispute settlement and, if all the parties to a dispute so request, make recommendations to the parties for a pacific settlement of the dispute. This appears to be a relatively traditional approach to the pacific settlement function of the Security Council.
While recognising that increased unity may make the recommendatory powers of the Security Council more effective, there is no suggestion that the Secretary General has in mind any radical revision of the settlement function towards the possibility of some sort of mandatory settlement. He does, however, state that `if peaceful means fail, the measures provided in Chapter VII should be used, on the decision of the Security Council, to maintain or restore international peace and security in the face of a `threat to the peace, breach of the peace, or act of aggression'. The backing up of a settlement plan by means of enforcement action, if the failure of the plan constitutes a threat to the peace or breach of the peace, appears to be a valid combination of Charter powers and one that is increasingly being threatened by the Security Council after the end of the Cold War.

 These and other developments in the Council's powers under Chapter VI will be examined in the course of this paper. In particular the quasi-judicial role of the Security Council will be highlighted when appropriate, in terms of its fact finding capability, its judgements, and the possibility of the enforcement of those judgements. The Security Council's emplacement of peacekeeping forces and its use of military and economic powers will not be examined except as they relate to the settlement of disputes.
Investigation The Council's ability to act in a preventative manner as well as to deal with disputes quickly and justly, would be greatly increased if it was supplied with a constant update of information on potential conflict zones and that it met without relying on one of the members of the United Nations bringing the matter to the attention of the Security Council under Article 35 of the UN Charter. Alternatively the Secretary General could more readily use his powers under Article 99 of the Charter `to bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security'. Investigatory bodies established by the Security Council to ascertain the facts of a dispute are relatively rare.

The Charter basis for such bodies is to be located in a combination of Articles 34 and 29, although they are rarely cited in the enabling resolutions. Article 34 provides that `the Security Council may investigate any dispute or any situation in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security'. Article 29 allows the Council to establish a body to fulfil this function. Article 29 provides that `the Security Council may establish such subsidiary organs as it deems necessary for the performance of its functions'.

From the wording of Article 34 it appears that a fact finding body is restricted to ascertaining whether a situation or dispute amounts to a danger to international peace within Chapter VI, and does not extend to examining whether a situation amounts to a `threat to the peace', `breach of the peace' or `act of aggression' within the meaning of Chapter VII. Such a literal interpretation of Article 34 was ignored virtually from the outset of the Council's work. Indeed, the sub-committee on the Spanish question established in 1946 was directed to ascertain whether the activities of the Franco regime constituted a situation within the meaning of Article 34 or Article 39, and subsequently Article 34 has been interpreted to allow for fact finding bodies in general.

Although there were other examples of fact finding during the Cold War, they can be characterised generally as being selective and often ineffectual, although on other occasions they did form the basis of a later peaceful settlement or at least a stabilisation of the conflict with the assistance of a UN peacekeeping force.
As early as 1988, with superpower relations beginning to thaw, there was an indication of greater fact finding by the Security Council, when a mission was sent to Nicaragua, and was a foretaste of the regional settlement process started by the Guatemala Accords of 1987 and culminating in the UN supervision of peaceful elections in Nicaragua in 1990.
Nevertheless, fact finding by the Security Council is not undertaken as a matter of course, it often relies on a patchwork of sources including established peacekeeping or observation teams, the Secretary General and his staff, and the occasional formal fact finding body mandated by a Security Council resolution. Whatever the source, intrusive fact finding can only be undertaken with the consent of the State or States involved in the dispute. The Security Council has not attempted to invoke a mandatory power to send a fact finding mission into a State, although it shall be seen that in the Gulf Crisis, after the conflict between Iraq and the Coalition forces ended in March 1991, Iraq was subjected to very intrusive missions created under Chapter VII of the Charter.

Without a mandatory power to order a State to accept a fact finding mission, and in view of the fact that the Gulf Crisis was exceptional in the sense that military action preceded the missions when normally they should be one of the first steps taken by the Council, fact finding is not going to be properly institutionalised. If all members of the Security Council accepted that it did have the power to oblige States to accept a fact finding mission by making it clear in the enabling resolution that it was a binding resolution under Articles 34 and 25, there does not appear to be any legal limitation on this power. Article 34 itself is not restricted to recommendations.
Given that Article 25 creates a binding obligation on member States `to accept and carry out the decisions of the Security Council', a decision, as opposed to a recommendation to send an investigatory team, appears to be binding whether or not the Council makes a determination of a threat to or breach of the peace within Chapter VII.
This approach seems to be opposed by the United States and the United Kingdom. These two States seem to argue consistently that it is only under the umbrella of Chapter VII that a mandatory decision can be adopted. Western States seem to have maintained their position on this issue, and with their current dominance of the Security Council, a number of recent resolutions bear the mark of their approach to Chapter VII. Many of the resolutions dealing with the Iraqi invasion of Kuwait for example, whilst referring to the initial resolution, 660, which determined that the invasion was a breach of international peace within the meaning of Article 39, then simply stated that the Council was `acting under Chapter VII of the Charter'. While this meets the formal requirements of the Western approach, an examination of the contents of the resolutions reveals a use Council power beyond the literal meaning of Articles 39-42.

Although the Council did use its economic and military powers and well as demanding a withdrawal under Article 40, it also adopted resolutions `under Chapter VII' which, for example, demanded that Iraq release third state nationals from Iraq and Kuwait, demanded that Iraq comply with its obligations as regards foreign diplomats, reminded Iraq of its international responsibility for its invasion and occupation, condemned Iraq for its attempt to alter the demographic composition of Kuwait, as well as imposing far reaching cease-fire conditions upon Iraq after the war ended in April 1991.
Given that none of these resolutions can be reconciled with the terms of Chapter VII, it might be better for Western States to accept that the Security Council can adopt mandatory resolutions outside the confines of Chapter VII, and this would include the power of investigation. Turning to the issue of fact finding within the context of the Council's quasi-judicial power. If it is accepted that the Security Council has an inherent quasi-judicial power, it is evident that it was used sparingly for most of its life as the political pressures of the Cold War led to resolutions based on compromise rather than on judicial-type rulings. However, with the end of the Cold War the Council has increasingly used this power to condemn States for breaches of international law. Any basic judicial process would commence with a determination of the facts before moving on to formulate a judgement in terms of international law, yet in the Security Council, the facts are often not clarified, or if they are, the Council has already condemned.

For example, following disturbances in Jerusalem on 8 October 1990 which resulted in the deaths of several Arabs, the Security Council unanimously condemned the acts of violence committed by the Israeli Security forces while calling on Israel to abide by the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 1949, as well as supporting the Secretary General's decision to send a mission to examine the circumstances surrounding the events in Jerusalem and to report on ways to protect Palestinian civilians under Israeli occupation.
Not surprisingly Israel refused consent and was duly condemned for its intransigence by the Council.
Indeed, the judicial process seemed to be completely reversed when nearly one month after the shootings and the Council's condemnation of Israel, the Security Council watched an amateur video tape submitted as evidence that the shootings were unprovoked.

It is questionable whether this rather summary approach to justice will be improved as a result of the Secretary General's appeal for an increase in resort to fact finding contained in his Agenda for Peace or more significantly by a recent General Assembly resolution, supported by all member States, entitled the Declaration on Fact Finding by the United Nations in the Field of the Maintenance of Peace and Security, adopted without a vote on 17 January 1992, following a report of the Sixth Committee which in turn was based on work by the Special Committee on the Charter.
Although the resolution recognized `that the ability of the United Nations to maintain international peace and security depends to a large extent on its acquiring detailed knowledge about the factual circumstances of any dispute or situation', and that the competent organs of the UN should endeavour to undertake fact finding activities that should be `comprehensive, objective, impartial and timely', it still recognised that `the sending of a United Nations fact finding mission to the territory of any State requires the prior consent of that State'.

Although the Assembly encouraged States to adopt `a policy of admitting .. fact finding missions to their territory', the UN's respect for the sovereignty of its members undermines the proper institutionalisation of fact finding, whether it be by the Security Council, the General Assembly, or the Secretary General.
The fact is that even when States consent to such missions, they are often too late to contribute to the prevention of a conflict breaking out, and if a conflict is already underway, they do little towards its peaceful settlement. The sending of a fact finding mission in May 1992 to the disputed enclave of Nagarno Karabach, was endorsed by the Security Council months after the dispute, which had been a long running dispute between Soviet Republics, had become internationalised with the break up of the Soviet Union in December 1991. The settlement of disputes Article 36(1) of the Charter provides that `the Security Council may, at any stage of a dispute of a nature referred to in Article 33 or of a situation of a like nature, recommend appropriate procedures or methods of adjustment'.

Paragraph 2 of the Article directs the Council to `take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties'.
Article 37(2) empowers the Council to recommend `such terms of settlement as it may consider appropriate'. Whereas Article 36 empowers the Security Council to recommend the modalities for settlement or the framework within which a settlement process may be undertaken, Article 37 enables it to directly recommend the terms of settlement.
The question is whether the Security Council has by its practice, moulded these powers, along with its fact finding capacity and enforcement powers, to create a quasi-judicial function.
The problem is that the quasi-judicial powers are subsumed under the Security Council's wider power to maintain or restore international peace and security, which is exercised in accordance with political considerations, not necessarily legal principles.

Nevertheless a quasi-judicial power is clearly recognised in Article 1(1) of the Charter which reads in part that one of the Purposes of the UN is `to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace'.
Although it can be argued the Council does possess a quasi-judicial role, an examination of most Council debates leading to the adoption of a recommendation towards the pacific settlement of a dispute illustrate that it is often arrived at by political consensus.

The contention that although the Council does not decide cases in accordance with international law as does the World Court, it is constrained by a `broad framework of legally acceptable solutions', did appear to be flawed during the Cold War, in that some Security Council inspired pacification attempts sought solutions which appeared to contradict the tenets of international law.
For example, the Council supervised negotiations on the (first) Gulf War were premised on the non-identification of the aggressor, namely Iraq. Indeed, this neutral approach has persisted with Security Council inaction as regards the Iran-Iraq Gulf War despite the fact that the Secretary General apportioned responsibility to Iraq for its attack on Iran in 1980 in a report to the Security Council in 1991.

This attitude appears even more inexplicable in the light of Iraq's new found `pariah' status since its invasion of Kuwait in 1990, although it may be that the West has not yet fully accepted Iran into the international community. One can see from this that despite the ending of the Cold War political influences can still cloud the Council's judicial judgement. Alternatively, it may be argued that the Security Council fails to identify breaches of international law but it does not adopt resolutions which are themselves in breach of international law. However, this is a long way from the position that law plays an important role in the Council's pacification function. However, with the end of the Cold War, the Council has been more willing to make legal determinations even if they might inhibit the settlement process by branding one of the disputants as the guilty party.
Part of the reason for this is that the Council is more willing to enter into the enforcement provisions of Chapter VII if the parties do not comply with the determination.

Although this approach is somewhat selective, one must not forget that the target States have usually breached international law. The Cold War compromise approach to the situation in the Israeli Occupied Territories evidenced in Resolution 242 of 1967, was maintained in the Security Council right up until the end of the 1980's by Israel's ally, the United States, using its veto to prevent consistent declaratory resolutions condemning Israel's actions of repression as a breach of the Fourth Geneva Convention of 1949.

However, since mid-1989 the Security Council has consistently condemned such acts in a series of resolutions which, it may be conjectured may have led, in part, to Israel entering into negotiations, albeit tentative ones, on settlement in the Middle East. At first the United States abstained on these condemnatory resolutions, but now it votes for them, including resolution 799 of 18 December 1992 which condemned the Israeli expulsion of the 400 Palestinians to southern Lebanon. Although, as we have pointed out, there are defects in the Council's judicial approach, in that it is of a somewhat selective and summary nature, in the Middle East, where settlement without consistent condemnations has not occurred, there is a strong argument for supporting the Council's new approach.
However, the Council has still stopped short of attempting to enforce these resolutions, to attempt to make them effective. In other instances, the post Cold War practice of the Council has not only taken on greater judicial overtones, but has increasingly extended to enforcement of its determinations utilising the powers of Chapter VII of the UN Charter.
This has particularly been the case as regards Iraq following its aggression against Kuwait in August 1990, Libya for its support for terrorism, and finally the remnants of the Yugoslavian State (Serbia and Montenegro) for its intervention in the neighbouring former Yugoslav Republic and emerging State of Bosnia in May 1992. In these instances the Security Council condemned the State in question for breaching international law and then went on to enforce that decision using its economic, and in the case of Iraq, its military powers under Chapter VII of the Charter.

Nevertheless, despite the increase in quasi-judicial activity by the Council, the Charter seems to rule out the possibility of the development of a mandatory, that is binding, power of settlement. Articles 36 and 37 are firmly premised on the Security Council simply having the ability to recommend terms of settlement.
There has been little suggestion that the Council has the power to impose a mandatory settlement by a combination of Article 25 and Articles 36 and 37. Although the express provisions of Chapter VI do not allow for the Council to impose a mandatory settlement, it
is able to use a combination of powers under Chapters VI and VII to the same effect if it determines that the situation or conflict is a threat to or breach of the peace. Indeed, the gateway to Chapter VII, Article 39, provides that the Security Council can `make recommendations' for settlement `or decide what measures shall be taken in accordance with Article 41 and 42'.

This appears to allow the Council to propose pacific settlement, and if it is not accepted, to take economic or military action. Such a combination of powers amounting to the attempted enforcement of a settlement may appear to be equivalent to a binding settlement, but is still dependent on the parties initially consenting to it. The Security Council has used a combination of powers in order to make the emplacement of a peacekeeping force conditional on the parties accepting the terms of a settlement, but it has not yet fully utilised a combination of settlement and enforcement measures. However, it has come close to this in the break up of Yugoslavia, when it imposed sanctions against the Serbian-led remnants of that State for interfering in the emerging neighbouring State, and former Yugoslav republic, of Bosnia, by imposing quite restrictive sanctions in May 1992. This may be taken further if international pressure on the various factions in Bosnia leads to the acceptance of a peace plan for the federalisation of the country. At the moment the plan seems not only to envisage consensual peacekeeping, but enforcement of its provisions if any of the parties fails to comply with the agreement. The Security Council expressed support for the Vance Owen plan on 8 January 1993 and threatened further measures if any of the parties did not cooperate.
The threat of consequences for non compliance with a UN sponsored peace plan has also been used recently in relation to two situations where the UN peace plans were faltering badly, namely Cambodia and Angola.

The Security Council has effectively imposed terms of settlement on Iraq in 1991 following the successful prosecution of a UN authorised war against it to counter the Iraqi invasion of Kuwait in August 1990.
This is the reversal of the normal process whereby the Council proceeds in a faltering incremental fashion from settlement proposals to enforcement action. The Iraqi aggression was met with economic and military enforcement action authorised by the Security Council.
With the Iraqis in Kuwait defeated in March 1991, the Security Council imposed the most draconian measures seen in the organ's lifetime. Resolution 687 was adopted on 3 April 1991 by 12 votes to one (Cuba) with Yemen and Ecuador abstaining. Its preamble contained, inter alia, an affirmation of the `sovereignty, territorial integrity and political independence of Kuwait and Iraq' and called on States taking military action under UN authority to `bring their military presence in Iraq to an end as soon as possible'.
Although this statement satisfied sufficient members that the Council's intention was not to overthrow the Iraqi regime, the thrust of the resolution was to oblige Iraq to compensate for its aggression, to severely curtail that regime's ability to wage further aggressive wars by intrusive disarmament provisions, and also, by maintaining the sanctions regime, to ensure the Iraqi regime's compliance with the resolution and probably to gradually undermine its grip on the country.
It also demanded that Iraq and Kuwait respect the `inviolability of the international boundary and the allocation of islands' as agreed by them in 1963. It authorised the Secretary General to make arrangements to demarcate the boundary between Iraq and Kuwait, and finally decided to guarantee the inviolability of the demarcated international boundary.
This, as with the rest of the resolution, was a measure taken under Chapter VII and was therefore binding on Iraq.

The disputed boundary was seen as a continuing potential flashpoint between Iraq and Kuwait and so the Council was coercing the Iraqis into settling their dispute with Kuwait to prevent it being so used again.
The Iraqis had no choice but to accept this and all the other aspects of the resolution.
A Boundary Commission was established in May 1991 with three independent experts and a representative each from Iraq and Kuwait. Despite Iraq's complaints about the legality of the Council's imposition of a boundary, the Commission has proceeded to a final demarkation of the boundary. On the issue of responsibility, Resolution 687, reaffirmed that Iraq `is liable under international law for any direct loss, damage ... or injury to foreign Governments, nationals and corporations, as a result of Iraq's unlawful invasion and occupation of Kuwait', reaffirming its resolution 674 of 29 October 1990.

This clearly shows the Council acting in a judicial capacity. It also decided to establish a fund to pay compensation and a Compensation Commission to administer it. The Secretary General was requested to report with a recommendation for `mechanisms for determining the appropriate level of Iraq's contribution to the fund based on a percentage of the value of the exports of petroleum and petroleum products .... taking into account the needs of the people of Iraq'. In Resolution 705 adopted on 15 August 1991, the Security Council decided that the figure should be that suggested by the Secretary General of 30%. It is clear from the above that Iraq's ability to comply with its obligation to compensate depended upon it resuming exports of oil, which it could not do since resolution 687 maintained the sanctions regime, first imposed by resolution 661 of 6 August 1990.

On 15 August 1991 the Security Council adopted Resolution 706, which authorized States to allow the import of petroleum products from Iraq for a period of six months to an amount not exceeding $1.6 billion. The purpose of this resolution was to allow Iraq to purchase foodstuffs and medicines under the exceptions to the sanctions regime, but also to pay 30% of that amount into the Compensation Fund. Iraq so far has refused to sell any oil, not on the grounds that it refuses to comply with its obligations under Resolution 687 but on the basis that because it is willing to fulfil its obligations under that Resolution, sanctions should no longer be applied against it.
The Council, still faced with Iraqi intransigence, adopted Resolution 778 on 2 October 1992 by 14 to 0 with 1 abstention (China) which decided that all States in which there were Iraqi government funds or petroleum products transfer those funds or sell those products to put into an account, some of which would go into the Compensation fund the rest into paying for the disarmament and humanitarian programmes in Iraq. This resolution was adopted under the auspices of Chapter VII. Apart from a continuing arms embargo against Iraq, Resolution 687 included a decision that `Iraq shall unconditionally accept the destruction, removal or rendering harmless, under international supervision' of its chemical and biological weapons, development and support systems, as well as `all ballistic missiles with a range greater than 150 kilometres'. Iraq was put under an obligation to fully report, within fifteen days, on its weapons systems and to undertake not to develop ones in the future.

A Special Mission was created to inspect and verify the destruction of these weapons as well as to develop a plan for
the ongoing monitoring of the state of Iraqi armament. Furthermore, Resolution 687 decided that `Iraq shall unconditionally agree not to acquire and develop nuclear weapons' and to report to the International Atomic Energy Agency (IAEA) within fifteen days on its nuclear weapons facilities.
Iraq was also obliged to allow the IAEA to remove, render harmless or destroy such facilities and weapons, and to develop a plan for the on going monitoring of Iraq's nuclear programme.
The disarmament of Iraq pursuant to Resolution 687 has been a long and so far uncompleted task. It has involved a slow process, with the Special Commission's inspectors and the IAEA officials gradually gaining access to weapons facilities not revealed in Iraq's initial response to Resolution 687. Destruction and removal of some weapons and facilities has been achieved but neither the Special Commission nor the IAEA has yet fulfilled their tasks.
The Secretary General has pointed out that a three stage process is involved, namely `inspection and survey, disposal of weapons of mass destruction and the facilities for their production, and ongoing monitoring and verification of Iraq's compliance with its obligations under' Resolution 687.

In January 1992, the Secretary General reported that progress had been made on all three stages but significant work was yet to be done and pointed to Iraqi intransigence and lack of cooperation.
The Security Council has adopted further mandatory decisions in order to obtain Iraqi compliance with its disarmament demands. The Security Council condemned Iraq's failure to comply fully with its obligations contained in Resolution 687, in Resolution 707 adopted on 15 August 1991, and demanded that Iraq allow the Special Commission and the IAEA inspectors access to all weapons facilities and demanded that Iraq cease concealing some of those facilities.
It also determined that `Iraq retains no ownership interest in items to be destroyed, removed or rendered harmless pursuant to' Resolution 687.

As regards future monitoring of Iraq's compliance with Resolution 687, the Security Council adopted a mandatory resolution on 11 October 1991. Resolution 715 approved the plan submitted by the Secretary General and the IAEA and demanded that Iraq meet unconditionally all the obligations under that plan.
The plan provides for inspections, aerial overflights of Iraq and submission of reports by Iraq so that the Special Commission and the IAEA will be able to monitor and verify that no nuclear, chemical or biological weapons or ballistic missiles or other items prohibited by Resolution 687 are acquired anew by Iraq. Iraq has not yet fully accepted the plan as required by Resolution 715, instead it has adopted an approach of arrogating to itself the power of determining what it considers to be its obligations under Resolution 687.
A recent act in this test of strength between the Security Council and the Iraqis followed from a Presidential statement on 11 January 1993 in the Security Council which demanded Iraqi compliance with UN resolutions. Iraq's failure to comply satisfactorily with this demand led the United States and its partners launching limited air raids against targets in Iraq.

As a result Iraq promised freedom of access to UN weapons inspectors and stated that it would desist from taking equipment from the demilitarized zone between Iraq and Kuwait. Iraq does not appear to have indicated that it will fully comply with all UN resolutions as yet.
Despite the problems the Security Council has encountered in trying to remove the threat to the peace constituted by the high level of Iraqi armament, it has achieved a remarkable success in gradually wearing down the Iraqi resistance to its disarmament programme.
Whether the programme will be fully completed remains to be seen, but the progress so far has been astounding.
Iraqi compliance has been faltering but has been eventually given as it suffers from continuing sanctions and from the threat of further devastating military action. The Council has a general power to formulate plans for disarmament in Article 26 of the UN Charter, but there is no clear evidence that this was intended to be a mandatory power. Ironically if one accepts the West's view that it is only under Chapter VII that mandatory resolutions can be adopted, there appears little room to imply such a power.

However, if one adopts a more flexible attitude, mandatory resolutions can be adopted outside the confines of Chapter VII if the resolutions clearly show such an intention and the implication of such a power does not breach the express provisions of the Charter.
This does not raise any direct legal challenge to this aspect of Resolution 687 but it does call into question the West's artificial approach to Chapter VII of the Charter, bearing in mind that 687 stated that it was adopted under Chapter VII. Whatever the approach, a mandatory disarmament power appears legitimate since Article 26 is not expressly confined to recommendations, although the wording of Article 26 does not explicitly grant a power to impose disarmament on one particular state. However, if one look at its imposition of a settlement as regards the issues of compensation and the frontier dispute, it appears more difficult to impute a mandatory power to the Security Council.
Those provisions of Chapter VI that allow the Council to propose terms of settlement, namely Articles 36 and 37, allow for recommendations only, yet Resolution 687 is expressly adopted under Chapter VII. One may point to the Iraqi acceptance of Resolution 687 as pushing to one side the problem of the binding nature of the Resolution, but this does overcome the fact that the Council intended the Resolution to be binding. The suggestion by Schachter that Article 39 is the source of Resolution 687 is not fully persuasive since that only provides for recommendations for settlement or for decisions under Articles 41 and 42.

Although Schachter's approach explains why Resolution 687 comes within Chapter VII, it does not explain the binding nature of the Resolution.
Another suggestion that the Security Council possesses those customary powers that a victorious state has to impose terms on the vanquished State seems problematic not only because the Charter does not expressly so provide but also because peace treaties are binding because of the vanquished State's consent and subsequent obligation to comply with the peace treaty subject to Articles 52 and 53 of the Vienna Convention on the Law of Treaties.
This fails to explain the binding nature of Resolution 687 or the mandatory power from which it was derived. It appears unavoidable to conclude that whereas the Council's disarmament programme for Iraq is a legitimate implied power derived from Article 26 to fulfil the Council's primary responsibility for international peace and security under Article 24, its development of its quasi-judicial powers to punish Iraq and determine its border with Kuwait appear more problematic.

It may that such a development will be entrenched by consistent subsequent practice on the part of the Council. Furthermore, it is perhaps possible to reconcile this approach with the International Court's doctrine of implied powers as found in the Reparations case of 1949 when it stated `the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice'.

Or it may be that States, particularly the permanent members, have adopted a more open, `living instrument', approach to the Charter, allowing it to evolve to cope with changes in international relations leading to the development of powers which fulfil the purposes of the UN even if it is not possible to imply such powers from the particular provisions of the instrument. This approach is more akin to the controversial doctrine of `inherent' powers. Seyersted states that: ... while intergovernmental organizations, unlike States, are restricted by specific provisions in their constitutions as to the aims for which they shall work, such Organizations are, like States, in principle free to perform any sovereign act, or any act under international law, which they are in a factual position to perform to attain these ends, provided that their constitutions do not preclude such acts ......

Thus, it is not necessary to look for specific provisions in the constitution, or to resort to strained interpretations of the text and intentions, or to look for precedents or constructions to justify legally the performance by an intergovernmental organization of a sovereign or international act not specifically authorised in its constitution.

As an intergovernmental organization it has inherent power to perform such acts.
Whether one accepts the `implied' or `inherent' approach, it is possible to see the imposition of mandatory settlements under Chapter VII as a development of the Council's express powers to recommend settlement under Chapter VI (Articles 36 and 37) or Chapter VII (Article 39) and not as a breach of those provisions. However, such a power is probably confined to very similar situations as with that occurring after the defeat of Iraq in Kuwait. The Council had pursued enforcement action and had the ability to impose conditions on Iraq.
In most instances pacific settlement is attempted before any coercion. In relation to the Bosnian peace plan the Council has not built on a purported general power to impose settlement based on its Iraqi experience, but has endorsed the various peace plans which must be agreed to by the parties. The plan will be accompanied by peacekeeping troops and the possibility of enforcement action if its goes awry.
Peaceful solution backed up by enforcement where necessary is not, legally speaking, the same as mandatory settlement, although practically there may be little difference. Given that the combination of consensual peaceful solution, to be backed by Chapter VII
measures if necessary, seems to come within the clear provisions of the UN Charter, and given that it appears unnecessary for the Council to move on directly to try to develop a power of mandatory settlement, the precedent value of Resolution 687 would appear to be limited.

However, if the Council is going to opt for a military solution more often, then assuming it is successful, and terms are imposed on the defeated State or party under Chapter VII then we have to examine whether such a power is possibly ultra vires as well as looking at the issue of whether such a development enhances the effectiveness of the Security Council.

On the issue of effectiveness, a mandatory power of settlement appears perhaps less effective in ending disputes than a consensual solution backed up, if necessary, by coercion. Some form of consent, indicating willingness to settle, is obviously preferable to forcing parties into a solution they manifestly do not accept.
However, is the parties refuse to agree, there seems to be strong arguments for imposing a solution on the recalcitrant party or parties. In the case of the former Yugoslavia, each successive peace plan has been objected to by at least one of the parties.
If such intransigence continues then the Security Council may have little option but to impose it upon the parties by force (or else withdraw).

Enforcement would raise the ghost of Vietnam and a continuing commitment of troops to Bosnia for an indefinite period as well as creating the danger of escalation. On the issue of ultra vires, it must be pointed out that there are limited chances for the Security Council's exercise of power being challenged before the World Court, and that even if the Court has the chance it has shown a reluctance so far to question the legality of resolutions formally adopted by the Security Council and so has not developed a substantial doctrine. In the Expenses case, for example, the International Court favoured a presumption against ultra vires, where the action taken was `appropriate for the fulfilment of one of the stated purposes of the United Nations'.

A decision on the merits in the Lockerbie case between Libya and the US/UK, or in some future case where the issue of Security Council power may be discussed, may help to develop a more substantial body of jurisprudence on the doctrine of ultra vires.