The sources of public international law have been articulated within Article 38(1) of the Statute of the International Court of Justice; United Nations Security Council resolutions are not included within this. The Namibia Opinion, despite its suggestion in para.126, cannot be considered an authority for the proposition that Security Council resolutions are binding on non-member States, particularly read within the context of the ICJ judgement as a whole. Nor does the judgement support the view that UN Security Council resolutions are a source of public international law. More recently, however, there has been some support for the view that certain Security Council resolutions have taken on a legislative character, that the Security Council is becoming a legislature for the World and therefore becoming a law-making body. Not surprisingly, there are a number of States who have expressed concern with this view. This is not least because the Security Council appears to have extensive powers, which having little legal regulation and coupled with the fact that the organisation is highly undemocratic, does not afford the impartiality that is required for such a function.
Security Council Resolutions
The term ‘resolution’ has been used in United Nations (UN) practice in a generic sense, but it includes broadly two kinds of statements: recommendations and decisions. When the International Court of Justice (ICJ) refers to Security Council resolutions, it reserves the expression ‘decision’ for binding resolutions and ‘recommendation’ for non-binding ones. Security Council resolutions are generally only binding on the addressee, which may be one member, some members, all members, or other UN organs. It can even be binding on ‘those members of the Security Council which voted against it and those members of the United Nations who are not members of the Council’. However, with regard to non-UN member states, Oberg has argued that the most coherent interpretation of a difficult passage in the Namibia Opinion rejects any direct binding effect. Therefore, it is argued that despite the ICJ statement in the Namibia opinion in that ‘it is for non-member states to act in accordance (sic) with those decisions (of the UN Security Council)’, that such resolutions are not binding on non-member states. In general, treaties only bind parties, in accordance with the concept within international law that consent is required to be bound by such obligations. Finally, since almost all States are now members of the UN, it would be hard to find non-member States to be bound in this way.
Sources of Public International Law
The sources of public international law are articulated within Article 38 (1) of the Statute of the ICJ. These include international conventions, international custom, and general principles. Judicial decisions and academic writings are also subsidiary means of legal interpretation. Therefore, if UN Security Council resolutions are a source of public international law, they must fall within one of these categories.
De Brichambaut has explained that since the Security Council adopts resolutions, it can be assumed that it creates norms within the institutional framework that is defined by the UN Charter. However, this does not mean that these norms are source of public international law, but that the Security Council can create rights and obligations with respect to UN member States. The Security Council therefore acts only in accordance with its authority as delineated within the UN Charter.
Chapter VII UN Charter
The Security Council is a political organ and makes political decisions; however, it does produce resolutions, which have legal consequences. It is a legally effective collective security system, and its activities are defined within Chapter VII of the UN Charter. If the Security Council therefore makes a determination that there has been a ‘threat to peace, breach of the peace, or act of aggression’ under Article 39, it may exercise powers pursuant to Articles 40 to 42 of the UN Charter. Since this concept has no definition within the UN Charter, it gives the Security Council the ability to exercise wide discretion. Once the conditions within Article 39 are satisfied, Article 40 enables the Security Council to impose ‘provisional measures’, which are legally binding on States. Article 41 then empowers the Security Council to impose economic or diplomatic sanctions, in order to give effect to the resolution. Finally, Article 42 authorises the Security Council to take action by air, sea or land forces to maintain or restore international peace and security. Therefore, the UN Security Council may appear to be imposing legal sanctions on states, however, the link between the Charter mechanisms for peace maintenance and the concept of legal sanctions is tenuous. The purpose of enforcement action ‘is not: to maintain or restore the law, but to maintain, or restore peace, which is not necessarily identical with the law’.
Mandatory decisions under Chapter VII, triggered by Article 39, are the outcome of political considerations, not legal reasoning, nor are its proceedings subject to judicial procedures. The determination of what constitutes a ‘threat to peace, breach of the peace, or act of aggression’ is a selective and to a large extent arbitrary process. The Security Council is not required to match the gravity of the situation to its response and it is not required to adopt the measures provided under Chapter VII in any particular order. Therefore, it is hard to conceive of the Security Council as a law-making body.
Advisory Opinion on Namibia
In the Namibia Opinion, the ICJ recalled that although non-member States are not bound by Article 24 and 25 of the UN Charter, that they had been called upon in Security Council ‘resolution 276 (1970) to give assistance in the action which has been taken by the United Nations with regards to Namibia’. The ICJ went on to say that any state entering into relations with South Africa concerning Namibia, could not expect the UN or its members to recognise such a relationship. Since the UN General Assembly Mandate of South Africa in Namibia had been terminated, ‘and South Africa’s continued presence in Namibia been declared illegal’ the ICJ considered that ‘it is for non-member States to act in accordance with those decisions’.
However, as Gowlland-Debbas has explained that Security Council determinations of illegality and invalidity are essentially declaratory and not intended to create the illegality or nullity of the acts in question. The powers of the Security Council cannot be considered to be legislative powers therefore, even in a broad sense. As Judge Onyeama emphasised in his separate opinion in the Namibia case, stating:
The declaration of illegality of the continued presence of South Africa in Namibia did not itself make such presence illegal; it was… a statement of the Security Council’s assessment of the legal quality of the situation created by South Africa’s failure to comply with the General Assembly’s resolution… it was in fact a judicial determination.
Therefore, it is clear that the Security Council does not make the law and therefore its resolutions do not constitute a source of public international law. They do have a role however, in interpreting current law and contribute to the law-making process.
Customary International Law
Article 38 of the ICJ Statute refers to ‘international custom, as evidence of general practice accepted as law’. In the Fisheries case, Judge Read described customary international law as ‘the generalisation of the practice of States’. As Crawford has explained, ‘it is the conclusion drawn by someone as to two related questions: (a) is there a general practice; (b) is it accepted as international law?’ A custom arises therefore when a particular practice has become general. It is considered that the practice of international organisations can constitute one element of State practice. In Libya/Malta Continental Shelf case, the ICJ explained that the substance of customary international law should be sought from State practice and opinio juris of States. Opinio juris may be obtained from General Assembly or Security Council resolutions, if their subject matter is not too restricted to particular circumstances. Therefore, although Security Council Resolutions are not a source of public international law, they do constitute State practice, which may contribute to customary international law.
Article 103 UN Charter provides that obligations of member States under the UN Charter should prevail over other International agreements. Therefore, since Security Council Resolutions are obligations under the UN Charter, these can take precedence over International Treaties. However, Security Council resolutions are created using a very different process to Treaties. In the Kosovo advisory opinion, the ICJ considered factors relating to the interpretation of resolutions of the Security Council. They explained that ‘Security Council resolutions are the product of a voting process provided for in Article 27 of the Charter, and the final text of such resolutions represents the view of the Security Council as a body’.
Interpretation of Security Council resolutions is also very different to interpretation of Treaties. According to the Vienna Convention on the Law of Treaties, the starting point is the intent of the parties, and the best evidence of common intent is the specific language of the treaty. In terms of Security Council Resolutions, their implications can be incredibly far reaching, particularly for the State against whom the enforcement measures are being taken. As Frowein has argued: ‘such a resolution is the legal basis for the most severe encroachment upon the sovereignty of a member of the United Nations’. Therefore, although such resolutions have considerable impact and may even take precedence over Treaty law, they are essentially only a source of rights and obligations for member States of the UN and not a source of public international law.
Security Council as Lawmaker
Despite the fact that Security Council Resolutions cannot be considered to be sources of international law, there are many areas where the Security Council has made significant contributions to the body of international law. These areas have been enumerated by Michael Wood and include statehood: recognition and non-recognition; the law of treaties; State responsibility; international criminal law; international humanitarian law; international human rights law; and the international administration of territory.
Reference has been made to the Security Council as a ‘World Legislature’ and it has been suggested that a new legislative stage started with the adoption of Resolution 1373 on September 28, 2001. The president of the UN Security Council, in referring to the planned adoption of Resolution 1540 of April 28, 2004, described the ongoing consultation process for that resolution as ‘the first major step towards having the Security Council legislate for the rest of the United Nations membership’. Krisch has even gone so far as to say that ‘[b]y means of its enforcement powers, the Security Council has in fact replaced the conventional law-making process on the international level.’
Talmon has claimed that the hallmark of any international legislation is the general and abstract character of the obligation imposed. He suggests that Security Resolutions are framed in this manner. For example Resolution 1390, relating to the freezing of Al Qaeda assets, exhibit the characteristics of the legislative or generic resolution. This kind of resolution has also been referred to as a ‘resolution, not in response to a particular fact situation’. Therefore, it is argued that these resolutions are similar to obligations entered into states as international agreements. These new legislative or generic resolutions therefore have been referred to as international legislation.
At the same time, there are those who express concern at the Security Council’s increasing tendency to assume new and wider powers on behalf of the international community, by passing resolutions which are binding on all member States. There are others who express the opinion that the Council has no such legislative authority, claiming that the purported enactment of global legislation ‘is not consistent with the provisions of the United Nations Charter’. There may be some justification in these concerns, after all the UN Security Council is a political institution and not a legal one. It is also a highly undemocratic and has few legal constraints upon its own actions. Therefore, if it is the case that UN Security Council Resolutions are making their way into the realms of public international law via this route, then this appears to be a dangerous step.
The ICJ’s Namibia Opinion did not make Security Council resolutions binding on non-member states. Although paragraph 126 has been referred to as a ‘difficult paragraph’, taking the judgement as a whole it is hard to arrive at this conclusion. It is also clear that this judgment did not impact upon Security Council resolutions status as a source of public international law. Although such resolutions may add to the body of state practice which influences the development of customary international law, these resolutions cannot be considered law in themselves. Nevertheless, there is a growing body of opinion that has spoken of the legislative function of the Security Council and has identified certain ‘generic’ or ‘legislative’ resolutions. Some UN Member States have expressed the view that these are the beginnings of a legislative function within the Security Council. There are clear dangers in recognising this view, the Security Council is first and foremost a political and not a law making body and appears to lack the impartiality required to fulfil such a function.
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