Resisting United Nations Security Council Resolutions

Sufyan Droubi

• Publisher: Taylor & Francis
• Year: 2014
• eBook ISBN: 9781317964278
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

The United Nations Security Council has primary responsibility for maintaining international peace and security. In discharging its powers it must act in accordance with the Purposes and Principles of the UN, and observe the rules governing voting and procedure established in the Organisation's Charter. The Council adopts mandatory resolutions that may establish obligations for members and non-members, and such obligations trump conflicting obligations originating from any other international agreement. Member States must cooperate with the Organisation and among themselves, in the implementation of any action prescribed by the Council against States whose behaviour the Council considers an act of aggression, or a threat to, or breach of, international peace and security.

This book analyses resistance to Security Council resolutions and puts forward a theory of lawful resistance. Sufyan Droubi takes a positivist approach to the UN Charter regarding it as a constitution. Special emphasis is placed on the construction of the Charter's meaning through the practice of both organs and Members of the UN and on the need to enhance the effectiveness of the Organization with due respect to the rule of law. The book proposes that nonviolent resistance to a mandatory resolution of the Security Council, on grounds that the latter is incompatible with the Charter or jus cogens norms, may be considered lawful under the Charter if some elements are present.

In exploring a number of case studies of individual and collective State resistance to mandatory Council resolutions, the book proposes that resistance may function as a rudimentary instrument of accountability and protection of the Charter and jus cogens, in the absence of more mature mechanisms of judicial review. The book will be of excellent use and interest to scholars and students of constitutional international law and international relations.

1 The powers of the United Nations Security Council and resistance to its resolutions

This chapter ascertains the power of the SC to adopt mandatory resolutions; identifies their addressees; and determines the effects of such resolutions. It reviews the methods of interpretation of SC resolutions; affirms that the SC is bound to respect the Purposes and Principles of the Charter; affirms the presumption of lawfulness and validity of SC resolutions; reviews the power of autodecision and autoenforcement; and analyses the ICJ instruments for reviewing the lawfulness of SC resolutions. What follows is a brief panorama of the different topics, without the aim of exhausting any of them. This overview, albeit incomplete, is necessary for the proper understanding of the notion of resistance that is introduced later in the book.

1.1 Scope of the powers of the UNSC and mandatory resolutions

Article 24(1) of the Charter bestows on the SC primary responsibility for the maintenance of international peace and security, with Article 24(2) declaring that its specific powers are defined in Chapters VI, VII, VIII and XII, concerning, respectively, the pacific settlement of disputes; actions with respect to threats to the peace, breaches of the peace and acts of aggression; regional arrangements, and the international trusteeship system. Also, as the SG noted in 1947, provisions in Chapters not listed in Article 24(2) also grant specific powers to the organ.¹ For example, Article 26 in Chapter V enables the Council to take action to regulate armaments, and Article 94(2) in Chapter XIV authorises it to make recommendations regarding, or enforce decisions of, the ICJ. Notable among the above is Chapter VII, which allows the Council, inter alia, to seize a situation that it deems to constitute a threat or breach of international peace, adopt provisional measures without prejudice to the rights of States, and adopt measures that it deems necessary for maintaining and restoring peace, which may or not involve the use of force. Furthermore, the practice is now established in that the Council, apart from such specific powers, has ‘powers commensurate with its responsibility for the maintenance of peace and security’.² Powers not explicitly granted in the Charter are implicit in it on account of their necessity to the Council in the discharge of its responsibilities.

Under Article 25, MSs agreed to accept and carry out the decisions of the SC in accordance with the Charter. For the moment, the last part of the provision (in accordance with the present Charter) is left aside.³ The combination of Articles 24(1) and 25 result in obligations arising from a Council’s resolution, adopted under any part of the Charter, having the potential of being mandatory. While generally accepted today, this proposition has been challenged in the past, notably by South Africa, which claimed that Article 25 only made it mandatory for MSs to comply with resolutions which were already binding under specific provisions of Chapter VII. The ICJ, however, rejected that assertion, holding that ‘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’;⁴ furthermore, ‘the obligation of States to comply with the decisions of the Council under Article 25 of the Charter extends to all decisions of the Council, not merely those under Chapter VII.’⁵ Accordingly, in Namibia, the Court considered the relevant resolutions of the Council adopted under Article 24; their binding effect resulting from Article 25.⁶

Nevertheless, Article 25 must be placed in the perspective of the Council’s practice. The first time the SC invoked Article 25 as its main or sole legal basis for action was in 1966, in resolution 232 (1966) concerning Southern Rhodesia. To date, the Council has expressly invoked Article 25 on very few occasions.⁷ There seems to be general agreement that all such resolutions are mandatory in nature. The canons of interpretation put forward by the ICJ in Namibia, and discussed later in the text, also lead to this conclusion. Since the end of the 1990s, explicit invocation of Article 25 has become rare. However, that should not be taken as signalling a weakening of the interpretation that Article 25 can ground mandatory resolutions. Far from it, the Repertoire indicates that States are in agreement that resolutions under that Article are mandatory.⁸ What is more, the SC has recently overcome a difficult diplomatic impasse concerning what should be its actions in regards to the Syrian conflict with the unanimously adopted resolution 2118 (2013), whose legal basis was Article 25. In fact, in this resolution, the SC expressly affirmed that MSs ‘are obligated under article 25 … to accept and carry out the Council’s decision’.⁹ Milanovic correctly observes that this was the first time that the SC ‘so openly adopted this view’ finally settling the issue by corroborating the ICJ dictum in Namibia.¹⁰

There has been a discussion on whether an obligation arising from a resolution is a ‘Charter treaty obligation’ and it seems that the correct answer is that it ‘is not a treaty obligation. The obligation to comply may be, but the decision per se is not’.¹¹ As this work emphasises, it is a Charter-based obligation. However, it is submitted, that does not stop resolutions of the Council from modifying States’ obligations and rights. Bowett questioned whether ‘states ratifying the Charter ever believed they were granting to the Council a blank cheque to modify their legal rights’.¹² For him, Council’s resolutions may ‘spell out, or particularize, the obligation of members that arise from the Charter’, but may not ‘create totally new obligations that have no basis in the Charter, for the Council is an executive organ, not a legislature’.¹³ As an example, he suggested that the Council could not decide with binding effect that a State must transfer part of its territory to another State, even if it deemed such transfer necessary for the maintenance of international peace.¹⁴

But the fact is that the Council has acted as a legislature, for instance, when it adopted resolutions 1373 (2001) and 1540 (2004), which laid down obligations of general and abstract nature, i.e. of legislative character,¹⁵ that had no direct basis in the Charter. Resolution 1373 (2001) addressed the financing of terrorism, and many of its provisions were simply taken from the International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly (GA) in 1999 and entered in force in 2002. As to resolution 1540 (2004), it addressed the threat of nuclear terrorism, and preceded the adoption of the International Convention for the Suppression of Acts of Nuclear Terrorism in 2005.

Furthermore, although the Council has never determined the transfer of territory from one to another State, it certainly established the legal grounds for Kosovo to secede from the former Federal Republic of Yugoslavia (FRY), and materially facilitated the unfolding of the facts that led to its secession. Resolution 1244 (1999) completely suspended the Yugoslavia sovereignty over that part of its territory by guaranteeing ‘substantial autonomy and self-administration’ for Kosovo.¹⁶ Without prohibiting a declaration of its independence or reserving for itself the final determination of its status,¹⁷ the Council made it possible for Kosovo to secede from the State of the Serbia.¹⁸

These and other resolutions, such as those that established the International Criminal Tribunal for the former Yugoslavia (ICTFY)¹⁹ and the International Criminal Tribunal for Rwanda (ICTR),²⁰ may be legally justified in a constitutional reading of the Charter and on the doctrine of implied powers, which are studied in Chapter 2. The next section provides an overview of how resolutions of the Council developed so as to address non-members and nonstate actors.

1.2 Addressees of mandatory UNSC resolutions

SC resolutions may address not only MSs, but also non-members, by force of Article 2(6) of the Charter, which determines that the organisation must ensure that non-members abide by the principles listed in Article 2 insofar as this is necessary for the maintenance of international peace and security. While this provision has lost much of its importance given that almost all States are members of the UN, it still bears a theoretical relevance in face of the pacta tertiis non nocent rule, a principle of customary law that is also enshrined in Article 34 of the VCLT, and of the theoretical possibility that a State be expelled from the organisation under Article 6 or simply withdraw from it.²¹

Opinions on the reach of Article 2(6) vary. Some deny that the provision is ‘capable of obliging a third state to behave in a certain way’,²² while others assert that this provision may be construed not only as revoking the principle that States cannot be bound by treaties they have not ratified, but also as forbidding MSs which decide to quit the organisation, or are expelled from it, from escaping their basic obligations under the Charter.²³ The interpretation that extends the effects of mandatory resolutions on former and non-members seems more appropriate in face of the UN and States’ practice. Illustrating, when Indonesia withdrew from the organisation in 1965, the UK ascertained that that country’s obligations under Article 2 survived its withdrawal.²⁴

What is more, the Council has in many resolutions established obligations to MSs and non-members alike. Until the 1990s, the language it used in reference to non-members was not as emphatic as that used in reference to MSs. Usually, the Council ‘called upon’ or ‘urged’ non-members to respect the terms of the resolution.²⁵ As section 1.4 explains, such and similar expressions although suggesting a mere recommendation, may nevertheless camouflage a mandatory decision in diplomatic language. Be it as it may, the language of provisions addressed to non-members became clearly mandatory in the 1990s as can be evidenced, inter alia, by resolutions 748 (1992) and 757 (1992), which, respectively, affirmed the duty of ‘every state’ to refrain from any involvement with terrorism and decided that ‘all states’ should adopt the sanctions it imposed on the FRY, respectively.²⁶

Furthermore, at a certain moment IOs were also targeted by mandatory resolutions. Resolution 748 (1992), for instance, had language calling ‘all international organizations to act strictly in accordance with the provisions of the present resolutions’, irrespective of ‘any rights or obligations conferred or imposed by any international agreement or any contract entered into or any licence or permit’.²⁷ Albeit the expression used was ‘called upon’, careful interpretation of the resolution made it clear that determination was mandatory. In fact, the contextual interpretation of the resolution clarifies tha...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Table of cases
• Preface
• Introduction
• 1. The powers of the United Nations Security Council and resistance to its resolutions
• 2. UN Charter as a constitution and the notion of constitutional resistance
• 3. South African resistance to the demands that it abandon apartheid and withdraw from Namibia
• 4. Iraq’s resistance to economic sanctions, with focus on its opposition to the implementation of humanitarian exemptions
• 5. Bosnia and Herzegovina’s noncompliance with the arms embargo
• 6. Libya’s noncompliance with determinations for the surrender of suspects and payment of compensation
• 7. Iran’s noncompliance with demands that it suspend nuclear activities and comply with the Protocol Additional to the Safeguards Agreement
• 8. Targeted sanctions on individuals suspected of terrorism
• 9. Critique of the prevalent theories
• 10. Resisting UNSC resolutions
• Conclusion
• Bibliography
• Index