talmon, a commentary on article 2(6) un charter
TRANSCRIPT
Electronic copy available at: http://ssrn.com/abstract=1962660
institute for public international law
BONN RESEARCH PAPERS
ON PUBLIC INTERNATIONAL LAW
Paper No 1/2011, 20 November 2011
A Universal System of Collective Security Based on the Charter of the United Nations:
A Commentary on Article 2(6) UN Charter
STEFAN TALMON
The full text of this paper can be downloaded without charge from the Social Science Research Network electronic library at:
http://ssrn.com/abstract=1962660
Electronic copy available at: http://ssrn.com/abstract=1962660
2
A Universal System of Collective Security Based on the Charter of the United Nations:
A Commentary on Article 2(6) UN Charter
Stefan Talmon
Institute of Public International Law, University of Bonn
ARTICLE 2(6) The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.
...
6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.
...
TABLE OF CONTENTS MN
A. Introduction 1–13
I. The United Nations and Non-Member States 1–2
II. Article 2(6) and the pacta tertiis Rule 3–8
III. Nature of the Provision 9
IV. Practical Significance of the Provision 10–13
B. Historical Background 14–23
I. Article 17 of the Covenant of the League of Nations 14–15
II. Drafting History of Article 2(6) 16–20
III. Draft Declaration on the Rights and Duties of States 21–23
C. The Addressees of the Obligation 24–29
I. The United Nations Organization 24–25
II. Member States of the United Nations 26–27
III. Non-Member States 28–29
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D. The Text of the Provision 30–38
I. ‘Shall ensure’ 30–31
II. ‘States which are not Members of the United Nations’ 32
III. ‘Act in accordance with these Principles’ 33–36
IV. ‘So far as may be necessary for the maintenance of international
peace and security’ 37–38
E. Article 2(6) as Precursor of a Universal System of Collective
Security Based upon the UN Charter 39–75
I. A Universal System of Collective Security Based upon the Charter 39–41
II. Indications of a Universal System of Collective Security in the
Charter 42–43
III. United Nations and State Practice 44–65
1. Decisions Addressed to all States, International Organizations and
other Non-State Actors 46–50
2. Non-Member States and Other Actors as Target of Preventive and
Enforcement Measures 51–54
3. Implementation of Preventive and Enforcement Measures
by Non-Member States 55–63
(a) Early Practice 56
(b) Federal Republic of Germany prior to 1973 57
(c) Republic of Korea prior to 1991 58
(d) Switzerland prior to 2002 59–62
(e) Cook Islands 63
4. Opinion of Member States 64–65
IV. The ICJ’s Namibia and Kosovo Advisory Opinions 66–67
V. Legal Basis of a Universal System of Collective Security 68–75
1. The ‘Reparations of Injuries’ Approach: Objective Security Order 69–70
2. The Charter as an ‘Objective Regime’ 71
3. The Charter as the ‘Constitution’ of the International Community 72–73
4. A System Based on Customary International Law 74–75
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SELECT BIBLIOGRAPHY Bindschedler, R. L., ‘La Délimitation des compétences des Nations Unies’, Rec. des Cours 108 (1963–I), 306–423.
—— ‘Das Problem der Beteiligung der Schweiz an Sanktionen der Vereinten Nationen, besonders im Falle Rhodesiens’, ZaöRV 28 (1968), 1–15.
Bierzanek, R., ‘The Principle of Universality and Its Implementation in the United Nations Organization’, German Foreign Policy 9 (1970), 360 –372.
Boczek, B. A., ‘Permanent Neutrality and Collective Security: The Case of Switzerland and the United Nations Sanctions Against Rhodesia’, Case Western Reserve Journal of International Law 1 (1969), 75–104.
Braud, P., ‘Recherches sur l’État tiers en droit international public’, RGDIP 72 (1968), 17–96.
Bohr, S., ‘Sanctions by the United Nations Security Council and the European Community’, EJIL 4 (1993), 256–268.
Cahier, P., ‘La Charte des Nations Unies et les États tiers’, in Current Problems of International Law (Cassese, A. ed., 1975), 81–105.
—— ‘Le Problème des effets des traités à l’égard des tiers’, Rec. des Cours 143 (1974-III), 589–736.
Combacau, J., Le Pouvoir de sanction de l’ONU (1974).
Conforti, B./Focarelli, C., The Law and Practice of the United Nations (4th edn., 2010).
Czempiel, E. O., ‘Die Vereinten Nationen und die Nichtmitglierder: Über die Praxis und die Möglichkeiten der internationalen Organisationen‘, Politische Vierteljahresschrift 9 (1968), 56–81.
Falk, R. A., The Authority of the United Nations over Non-Members (1965).
—— ‘The Authority of the United Nations to Control Non Members’ in The Status of Law in International Society (Falk, R. A. ed., 1970), 185–241.
Frowein, J. A., ‘Die Vereinten Nationen und die Nichtmitglieder’, EA 25 (1970), 256–62.
Gunter, M. M., ‘Switzerland and the United Nations’, IO 30 (1976), 129–52.
Hagemann, M., ‘Der Beitritt der Schweiz zum Statut des Internationalen Gerichtshofes und die schweizerische Neutralität’, Schweiz. Jb. Internat. Recht 5 (1948), 117–54.
Hsueh, S.-S., L’ONU et les États non Membres (1953).
Kalala, T., Les resolutions de l’ONU et les destinataires non-étatiques (2009).
Kammerhofer, Jörg, ‘Constitutionalism and the Myth of Practical Reason: Kelsenian Responses to Methodological Problems, Leiden JIL 23 (2010), 723–40.
Katzarov, C. von, ‘Die Stellung der Nichtmitglieder der Vereinten Nationen’, Archiv VR 3 (1951/2), 1–22.
Kojanec, G., Trattati e terzi stati (1961).
—— ‘Lo Statuto delle Nazioni Unite e gli Stati non membri’, Comunità internazionale 23 (1968), 632–48.
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Krafft, M.-C./Thürer, D./Stadelhofer, J.-A., Switzerland, in National Implementation of United Nations Sanctions: A Comparative Study (Gowlland-Debbas, V. ed., 2004), 523–79.
Kunz, J.L., ‘Revolutionary Creation of Norms in International Law’, AJIL 41 (1947), 119–26.
Leube, S., The Position of Non-Member States in the United Nations System: Germany (doctoral thesis, New York University, 1951).
Martens, W., ‘Zur Frage der Bindung von Nichtmitgliedern an die Grundsätze der Vereinten Nationen’, Der Staat 7 (1968), 431–45.
McNeill, J. H., ‘Regional Enforcement Action Under the United Nations Charter and Constraints Upon States Not Members’, Cornell ILJ 9 (1975/76), 1–23.
Prevost, J. F., Les Effets des traités conclus entre Etats à l’égard des tiers (1973).
Ross, A., Constitution of the United Nations: Analysis of Structure and Function (1950).
Ross, J. F., Neutrality and International Sanctions: Sweden, Switzerland and Collective Security (1989).
Schenck, D. von, ‘Das Problem der Beteiligung der Bundesrepublik Deutschland an Sanktionen der Vereinten Nationen, besonders im Falle Rhodesiens’, ZaöRV 29 (1969), 257–315.
Scheuner, U., ‘Die Vereinten Nationen und die Stellung der Nichtmitglieder’, in Völkerrechtliche und staatsrechtliche Abhandlungen. Festschrift Bilfinger (Schreiber, G./Mosler, H. eds., 1954), 371–403.
Schindler, D., ‘Kollektive Sicherheit der Vereinten Nationen und dauernde Neutralität der Schweiz’, SZIER 2 (1992), 435–79.
Soder, J., Die Vereinten Nationen und die Nichtmitglieder. Zum Problem der Weltstaatenorganisation (1956).
Thürer, D., ‘UN Enforcement Measures and Neutrality: The Case of Switzerland’, Archiv VR 30 (1992), 69–85.
Tomuschat, C., ‘Obligations Arising for States against Their Will’, Rec. des Cours 241 (1993-IV), 195–373.
Vellas, P., Contribution à l’étude des obligations à la charge des tiers en droit international public (l’article 2 § 6 de la Charte des Nations Unies) (1950).
Verdross, A., ‘Le Nazioni Unite e i terzi Stati’, Comunità internazionale 2 (1947), 439–48.
Vitzthum, W. Graf, Article 2(6), in The Charter of the United Nations: A Commentary (2nd edn., Simma, B. ed., 2002), 140–8.
Widdows, K., ‘Security Council Resolutions and Non-Members of the United Nations’, ICLQ 27 (1978), 459–62.
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A. Introduction
I. THE UNITED NATIONS AND NON-MEMBER STATES
1 Article 2(6) is one, if not the main, provision of the Charter dealing with the
relationship between the Organization and non-members.1 Right from the beginning
of the UN, there has been a controversy over whether Art 2(6) is capable of having
any legal effects at all on non-members and, in particular, whether the UN may take
preventive and enforcement measures, including the use of armed force, against non-
members which would otherwise be illegal under international law, and whether it can
impose any obligations upon non-members in order to achieve its aim of maintaining
international peace and security.
2 Comments on the provision in the literature have been rather vague and opaque. Thus,
it has been said that Art 2(6) establishes the principle that ‘actions of non-members
are a matter of concern to the United Nations’,2 that it expresses ‘the intention also to
influence States not Members of the United Nations’,3 that it ‘reaches out at non-
member States and somehow subjects them to the activities of the organization’, 4 or
that it ‘constitutes a claim to regulate the conduct of non-members to the extent
required for the fulfilment of the object of that Article.’5
II. ARTICLE 2(6) AND THE PACTA TERTIIS RULE
3 At the heart of the controversy over the legal effects of Art 2(6) on non-members lies
the fundamental rule of customary international law, as expressed in the maxim pacta
tertiis nec nocent nec prosunt, that treaties, including the UN Charter, cannot validly
create rights and obligations for non-parties of the treaty.6 The rule follows from the
sovereignty of States and from the resulting principle that international law does not
1 Non-member States are also mentioned in Arts 11(2), 32, 35(2), 50, 93(2) of the Charter. See also Art 102(2) which speaks of ‘no party’ to a treaty which can also include non-member States. 2 GHS, 59. 3 Frowein, ‘Reactions by Not Directly Affected States to Breaches of Public International Law’ (1994) 248 Rec des Cours 345, 357. 4 Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 150 Rec des Cours 217, 257. 5 H Lauterpacht (ed), International Law. A Treatise (8th edn, 1955), 928-29. 6 See VCLT, Art 34. See also McNair, The Law of Treaties (1961) 309.
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as yet recognize anything in the nature of a legislative process by which rules of law
are imposed upon a dissenting minority of States.7
4 Hans Kelsen was one of the first who took the view that the Charter could impose
obligations on non-members in the interest of international peace and security.8 He
argued that, by virtue of Art 2(6), non-member States indirectly had the same
obligations as member States. Recognizing the tension between Art 2(6), as he
conceived it, and the pacta tertiis rule, he called the provision ‘revolutionary’.9
5 This view, however, is not borne out by the language of Art 2(6) and has therefore
rightly been rejected by the overwhelming majority in the literature which takes the
view that non-members cannot be bound by an obligation under the Charter to which
they are not a party, unless the Charter obligation is reflective of an obligation under
customary international law.10
6 The controversy has largely been mitigated by the fact that the principles enunciated
in Art 2(1) to (4) are today generally accepted as forming part of customary
international law and some, such as the principle on the prohibition of the use of force
in Art 2(4), are even considered jus cogens and, as such, are binding on members and
non-members alike.11 The customary international law status of the obligation to settle
international disputes by peaceful means is not contradicted by Art 35(2) of the
Charter which requires non-member States who want to bring a dispute to the
attention of the SC or the GA to accept, in advance for the purposes of the dispute,
‘the obligations of pacific settlement provided in the present Charter’.12 This special
requirement may be explained by the fact that the Charter obligations are much wider
and more specific than the general customary international law obligation.13 The
customary international law status of the first four principles in Art 2 has also been
7 Lauterpacht (n 5) 928. 8 See Kelsen, ‘Sanctions in International Law under the Charter of the United Nations’ (1946) 31 Iowa LR 499, 502; and Kelsen, 85-86, 90, 108, 116, 124, 715. 9 ibid 110. A similar view was adopted by Verdross, 445; Jiménez de Aréchaga, Derecho constitucional de las Naciones Unidas: comentario teórico-práctico de la Carta (1958) 63-66. See also the view of several delegates in the GA, RP 3 I, 377. For a modern proponent, see eg Brownlie, Principles of Public International Law (7th edn, 2008) 689. 10 See eg Widdows, 469-61; Schindler, 459; Tomuschat, 252; Frowein (n 3) 357; CPF/Salmon (3rd edn) 393 [13]; Liivoja, ‘The Scope of the Supremacy Clause of the United Nations Charter’ (2008) 57 ICLQ 583, 596. For earlier authors taking the same view, see Graf Vitzthum, 146 MN 19. See also MN 74-75. 11 cf UNCIO XVII, 147. See also Conforti/Focarelli, 152, 154 (with regard to the principles in Art 2(2) and (4)). 12 But see Bindschedler, Rec des Cours 403-407 and 423.
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confirmed by the GA in its 1970 Declaration on Principles of International Law
concerning Friendly and Co-operation among States in Accordance with the Charter
of the United Nations (Friendly Relations Declaration) which replaced the term
‘Members’ with ‘every State’, ‘all States’, or just ‘States’.14
7 The obligation in Art 2(5) to ‘refrain from giving assistance to any State against which
the United Nations is taking preventive or enforcement action’ was already
acknowledged as a duty of ‘every State’ in the ILC’s Draft Articles on the Rights and
Duties of States,15 and will usually coincide with the general obligation of States not
to aid or assist another State in the commission of an internationally wrongful act.16
8 Ultimately, the only problematic issue left with regard to the legal effects of Art 2(6)
is thus whether non-members are under the obligation set out in Art 2(5) ‘to give the
United Nations every assistance in any action it takes in accordance with the present
Charter’ and, in particular, whether they are under an obligation ‘to accept and carry
out the decisions of the Security Council in accordance with the Charter’ as set out in
Art 25.
III. NATURE OF THE PROVISION
9 Although, according to the chapeau of the Art 2, the provision is one of the
‘Principles’ according to which the Organization and its Members shall act it does not
contain a proper statement of principle but establishes an obligation.17 It is thus not
surprising that the statement in paragraph 6 is the only provision of Article 2 which is
not replicated in the 1970 Friendly Relations Declaration.18
IV. PRACTICAL SIGNIFICANCE OF THE PROVISION
10 During the first ten years of the UN more than 20 States willing to join remained
outside the Organization; at the beginning of the 1990s there were still some 11 States
13 See UN Charter, Arts 11(2), 34, 36-38. 14 See GA Res 2624 (XXV) (24 Oct 1970). 15 See Art 10 ILC Draft Articles on the Rights and Duties of States, ILC Yearbook 1949, 288. 16 See Art 16 of the 2011 ILC Articles on Responsibility of States for Internationally Wrongful Acts. See also Klein, ‘Beihilfe zum Völkerrechtsdelikt’ in von Münch (ed), Festschrift Schlochauer (1981) 425, 434-37. 17 See UNCIO VI, 310; XVII, 147 (Canada). See also ‘Preparatory Study Concerning a Draft Declaration on the Rights and Duties of States: Memorandum submitted by the Secretary-General’, UN Doc A/CN.4/2 (15 Dec 1948) 41. 18 GA Res 2624 (XXV) (24 Oct 1970).
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which were not members of the UN. With the increase in membership and the UN in
the early 2000s achieving almost complete universality the practical significance of
the relationship between the UN and non-member States was substantially reduced
and the scope of application of Art 2(6) was said to be a ‘theoretical problem’ and an
object of doctrinal debates about the nature of the UN system and international law in
general.19
11 In the practice of the UN, the number of express references to Art 2(6) or States which
are not Members of the UN has been constantly decreasing over the years, the more
the UN became a universal organization.20 Only on very few occasions Art 2(6) has
been expressly mentioned in the final version of a SC resolution.21 The last time
express reference was made in a binding SC resolution to ‘States not members of the
United Nations’ or ‘States non-members of the United Nations’ was in SC Res 1054
(26 Apr 1996).22
12 In recent years the provision has regained some practical significance with the
creation of a number of new States which did not, or not immediately, become
members of the UN and which were involved in, or the cause of disputes affecting
international peace and security.23
13 The following situations may give rise to the application of Article 2(6):
(i) States which choose to stay outside the UN (Vatican City State, Cook Islands)
(ii) States which withdraw from the UN (Indonesia, 20 January 1965 to 19
September 196624)
19 CPF/Mahiou (3rd edn) 482. 20 For some early examples, see RP I, 40 [12], 51 [50-54]; RP 5 I, 52 [9]. 21 See SC Res 314 (28 Feb 1972) [2]; 320 (29 Sep 1972) [2]; 409 (27 May 1977) [2]. See also SC Res 277 (18 Mar 1970) [18] (‘Urges, having regard to the principle stated in Article 2 of the Charter, Stats not Members of the United Nations to act in accordance with the provisions of the present resolution’). References to ‘States not members of the UN’ many also be found in several draft resolutions; see UN Docs S/14832/Rev.1 (19 Jan 1982), S/17631 (14 Nov 1985), S/17633 (15 Nov 1985), S/18705 (19 Feb 1987), S/18785 (7 Apr 1987), S/1994/541 (6 May 1994), S/1994/571 (16 May 1994) and S/1996/293 (26 Apr 1996). 22 For previous resolutions using the same of similar formulations, see SC Res 918 (17 May 1994),[15]; 917 (6 May 1994), [12]; 883 (11 Nov 1993), [12]; 757 (30 May 1992) [11]; 748 (31 Mar 1992), [7]; 661 (6 Aug 1990), [5]; 591 (28 Nov 1986), [12]; 558 (13 Dec 1984), [3]. 23 See eg SC Res 752 (15 May 1992) which deals with the situation in Bosnia and Herzegovina prior to the admission of the new State to the UN on 20 May 1992. 24 Indonesia’s withdrawal was interpreted as a ‘cessation of cooperation’, rather than withdrawal, which allowed the country to resume its membership without a new application for membership.
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(iii) States which are expelled from the Organization in accordance with Article 6
of the Charter
(iv) New States which are formed as a consequence of the dissolution or
dismemberment of an existing member States and which are not accepted as
its successor and refuse to apply for new membership (Federal Republic of
Yugoslavia, 27 April 1992 to 1 November 2000)
(v) New States in the sometimes extended period between gaining independence
and admission to the UN (Kuwait, 19 June 1961 to 14 May 1963; Bangladesh,
16 December 1971 to 17 September 1974)
(vi) De facto States whose status is disputed and which are unlikely to be admitted
to the UN (Abkhzia, Kosovo, Nagorno-Karabakh, Somaliland, South Ossetia,
Transnistria)
(vii) De facto States which the SC has called upon all States not to recognize and
which thus may not be admitted to UN membership (Turkish Republic of
Northern Cyprus25)
(viii) Quasi-State entities which have not (yet) declared independence (Taiwan)
(ix) Non-State entities which are claiming statehood (Saharan Arab Democratic
Republic; Palestine, 15 November 1988 to 13 September 1993)
B. Historical Background
I. ARTICLE 17 OF THE COVENANT OF THE LEAGUE OF NATIONS
14 Art 17 of the Covenant of the League of Nations has been referred to as an equivalent
provision to,26 or a predecessor of Art 2(6).27 However, the two provisions are
fundamentally different.28
25 See SC Res 541 (18 Nov 1983), SC Res 550 (11 May 1984). 26 See CPF/Mahiou (3rd edn) 475-76. 27 See Simma/Vitzthum (2nd edn) 142 MN 4. 28 See Verdross, 441.
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15 Art 17(1), which is more akin to Art 35(2) and Art 11(2) of the Charter, is simply
conferring rights on third States and is compatible with general international law.29 In
the Eastern Carelia case, the PCIJ held that Art 17(1) did not give the League Council
the power to ask for an advisory opinion on a dispute between a member State
(Finland) and a non-member State (Russia), if the latter had not accepted the
invitation of the League Council to accept the obligations of membership in the
League of Nations for the purposes of the dispute,30 or had otherwise consented to the
Court’s jurisdiction.31 Art 17(3), together with Art 16, is reminiscent of a traditional
alliance clause, ie a commitment of the member States to collective self-defence in
case of acts of war by a non-member against a member of the League of Nations. Art
17(4) of the Charter comes closest to Art 2(6), in that the Covenant ascribed powers to
the League Council to intervene in disputes wholly between non-member States –
powers which could be based neither on the Covenant nor on notions of collective
self-defence.32 The League never attempted to exercise those powers.
II. DRAFTING HISTORY OF ARTICLE 2(6)
16 Article 2(6) must be seen against the backdrop of the Second World War which had
been started by States not members of the League of Nations, and the decision not to
include the ‘enemy States’ as original members of the United Nations. It was therefore
considered desirable to include a provision in the Charter that provided basic authority
for dealing with non-member States.33
17 The idea behind the present Art 2(6) was that member States would adhere to the
principles in their relations with non-member States, and that, conversely, non-
member States would also act in conformity with those principles.34 According to the
Rapporteur para 6 ‘was intended to provide a justification for extending the power of
the Organization to apply to the actions of non-members’.35 Belgium, in particular,
29 cf VCLT, Art 36. 30 See League Covenant, Art 14. 31 Eastern Carelia, 1923 PCIJ, Ser B, No 5, 27-28. The Russian Government had expressly declined the invitation (ibid 24). 32 On Art 17 of the League Covenant, see Morpurgo, ‘L’articolo 17 del Patto della S.D.N. ed il diritto internazionale consuetudinario’ (1925) 3 RDI 177-85; Bavaj, L’interpretazione dell’art. 17 del Patto della Società delle Nazioni (1931); Weinberg, Völkerbund und Nichtmitgliedstaaten (1932). 33 US Department of State, Charter of the United Nations: Report to the President on the Results of the San Francisco Conference (1945) 42. 34 UNCIO III, 337-38. For the drafting history, see also McNeill, 4-6. 35 UNCIO VI, 348.
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was a strong proponent of the provision, considering it to be a ‘most important
provision’ which would no longer allow non-member States to rely on the status of
neutrality in order to avoid the obligations of the Charter.36 It saw the provision as an
affirmation of ‘the right of the Organization to impose on third-party States [...]
respect for those principles’ enumerated in Art 2.37 The ‘moral and legal basis’ of this
right was seen in the fact that the Charter was ‘not a special covenant but a general
one’ and that it would ‘stand out as the will of most of the civilized States’ and that it
could even be called ‘the collective conscience of humanity’.38 In fact, Belgium
argued for the extension of the obligations of non-member States not only to the
principles but also to ‘other rules the general application of which is recognized by the
International Organization’.39
18 Other States expressed concerns considering the imposition of an obligation on non-
member States ‘contrary to legal postulates’.40 They argued for the deletion of the
provision and suggested that all States should be (made) members of the
Organization.41 However, a motion to postpone consideration of the provision was
defeated, and the text of the provision was adopted unanimously.42 The vote was
taken on the understanding that ‘the association of the United Nations, representing
the major expression of the international legal community, is entitled to act in a
manner which will insure the effective cooperation of non-member states with it, so
far as that is necessary for the maintenance of international peace and security.’43
19 In the Dumbarton Oaks Proposals paragraph 6 originally read:
All members of the Organization shall refrain from giving assistance to any state against which preventive or enforcement action is being undertaken by the Organization.
The Organization should ensure that states not members of the Organization act in accordance with these principles so far as may be necessary for the maintenance of international peace and security.44
36 UNCIO III, 337; VI, 348. 37 UNCIO III, 337. See also UNCIO I, 561 (Panama) and VI, 305. 38 UNCIO III, 337. 39 UNCIO III, 337-38. 40 UNCIO III, 193-94 (Venezuela); VI, 348 (Uruguay). 41 UNCIO III, 194; VII, 325 (Venezuela); 237 (Brazil). 42 See UNCIO VI, 348, 722; XVIII, 112, 113, 375. 43 UNCIO VI, 722. 44 UNCIO III, 3-4.
13
During the drafting process, only two major changes were made.45 First, the first
subparagraph was at first made a separate paragraph and later integrated into para 5.46
By giving the present para 6 a distinct section number, it was ‘intended to establish it
more clearly as a general principle of a general application, and not limited only to
refraining from giving the assistance mentioned in the first section of the original text
of paragraph 6’.47 Second, the hortatory ‘should’ was replaced with the mandatory
‘shall’ to ‘mark more strongly the obligations of the Organization’.48
20 The Coordination Committee at its session on 22 June 1945 finally decided to discard
the term ‘non-member state’ and to use the phrase ‘state not (or which is not) a
Member of the United Nations’ instead.49
III. DRAFT DECLARATION ON THE RIGHTS AND DUTIES OF STATES
21 The issue of the rights and duties of States not Members of the UN resurfaced in1948
in the discussions of a Draft Declaration on the Rights and Duties of States submitted
by Panama. Article 20 of the draft articles provided as follows:
20. Co-operation in the Pursuit of the Aims of the Community of States It is the duty of every State to take, in co-operation with other States, the measures prescribed by the competent organs of the Community of States in order to prevent or put down the use of force by a State in its relations with another State, or in the general interest.50
22 In their responses to this draft article, a number of States offered their opinions as to
the state of the law. Greece argued that Art 20 should not appear in the draft, because
the obligations in question were contained in particular international law and not
general international law.51 The United Kingdom contended that Art 20 dealt with
‘matters which, for Members of the United Nations, [were] regulated by the
Charter.’52 For the United States, the proposed article as worded went ‘beyond the
accepted principles of international law’.53
45 For suggestions of minor rephrasing, see UNCIO III, 36 (Uruguay), 180 (Mexico). 46 See UNCIO VI, 687; XVII, 147. 47 UNCIO VI, 722. See also ibid VI, 401, 460; and IV, 478. 48 See UNCIO VI, 83; XVII, 147; XVIII, 375. 49 UNCIO XVII, 344. 50 Draft Declaration on the Rights and Duties of States and Explanatory Note Submitted by Panama, UN Doc A/CN.4/2 (15 Dec 1948) 38. 51 ibid 115. 52 ibid 92. 53 ibid 209.
14
23 The matter was referred to the ILC where the provision was clearly rejected, only one
vote being cast in its favour. The overwhelming view was that such a provision was in
contradiction to existing international law and that no such duty of assisting the UN in
its actions could be imposed on non-member States.54
C. The Addressees of the Obligation
I. THE UNITED NATIONS ORGANIZATION
24 The obligation in Art 2(6) is addressed to the ‘Organization’.55 As a legal person
separate from its member States the UN can be the addressee of rights and
obligations. The provision has been referred to and invoked by member States,
especially in the early years of the organization, in support of requests to include
certain questions concerning non-member States in the agenda of the GA or the SC,56
or in support of calls for action by the UN against non-member States.57 The
provision has also been relied upon to construe an obligation on the part of the UN to
admit new States to membership58 and to allow non-members to participate in
international conferences held under the auspices of the UN.59
25 As a legal person the UN is acting through its organs. The real addressees of the
obligation are therefore the principal organs that have competence in the area of
international peace and security – the SC, GA and the S-G. Article 2(6), however,
does not establish any new powers; the organs are to act rather within the existing
competence structure laid down in the Charter.
54 See ILC Yearbook 1949, 113-16, 144; especially the statements of Hsu, Spiropoulos, Brierly, and Sandstöm. 55 See McNeill, 5; Kojanec, Comunità internazionale 636; Bindschedler, Rec des Cours 405. 56 RP I, 38 [9], 40 [13] (Polish request to discuss measures against Spain (at the time not a UN member) expressly based on Art 2(6)). 57 See eg SCOR, 1st year, 34th meeting (17 Apr 1946) 167, 169 (Poland and France calling for action against Spain); ibid, 2nd year, 147th meeting (27 Jun 1947) 1121 (USA calling for action against Albania and Bulgaria); ibid, 5th year, 523rd meeting (16 Nov 1950) 13 (Cuba calling for action against North Korea and the PRC); ibid, 19th year, 1118th meeting (19 May 1964) 4-5 (Cambodia calling for action against South Vietnam). See also RP I, 51-52 (Human rights in Hungary and Bulgaria). 58 See eg SCOR, 20th year, 1836th meeting (11 Aug 1975) 3 [22]-[23] (India arguing for the admission to membership of North and South Vietnam). For earlier examples, see RP I, 39 n 2. 59 See UN Conference on Diplomatic Intercourse and Immunities, Official Records I (1962) 4 [37].
15
II. MEMBER STATES OF THE UNITED NATIONS
26 The chapeau of Art 2 provides that the ‘Organization and its Members shall act in
accordance with the following Principles’, including those set out in para 6. As the
GA and SC are composed of representatives of the member States, those organs (and
thus the Organization itself) can only act if the member States so decide. There is thus
at least a subsidiary or secondary duty on the member States, acting through the
Organization, to ensure that non-member States act in accordance with the principles
in Art 2.60
27 To the extent that the principles set out in Art 2 constitute jus cogens, an obligation on
member States to ensure that non-member States are acting in accordance with these
principles can also be derived now from Art 41 of the ILC Articles on Responsibility
of States for Internationally Wrongful Acts.61
III. NON-MEMBER STATES
28 It has been argued that Art 2(6) imposes, at least indirectly, obligations also upon non-
member States.62 Hans Kelsen, the most prominent proponent of this view, argued
that ‘if the Charter attaches a sanction to certain behaviour of non-Members, it
establishes a true obligation of non-Members to observe the contrary behaviour’.63
However, this view is based on the assumption that Art 2(6) ‘may be interpreted to
mean that the Organization is authorised to react against a non-Member state which
does not act in conformity with the principles laid down in Article 2 with a sanction
provided for by the Charter.’64 The Charter in Art 2(6), however, does not attach any
‘sanction’ to the behaviour of non-member States; it simply stipulates that the UN
‘shall ensure’ that they conduct themselves in a certain way.65
60 For the view that Art 2(6) places an obligation upon Member States, see ILC Yearbook 1949, 74 [40]; ibid 1964-I, 67 [6], 69 [30], 72 [55], 73 [67]. Contra UNCIO VI, 348 (UK). 61 cf UN Doc A/C.6/56/SR.13 (23 Nov 2001) 12 [62]. 62 Kelsen, 85-86, 90, 108, 116, 124, 715; Verdorss, 441; Lauterpacht (n 5) 929 n 1. See also Fassbender, The United Nations Charter and the Constitution of the International Community (2009), 78, who, without further ado, seems to have reformulated Art 2(6) to read that ‘states which are not Members of the United Nations [shall] act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security’. But see also ibid 110-11. 63 Kelsen, 107. 64 ibid 106. 65 See Kammerhofer, 736.
16
29 The view that Art 2(6) imposes obligations upon non-member States also seems to
find some support in SC Res 314 (28 Feb 1972) where the SC stated that ‘all States’
were to implement fully all SC resolutions establishing sanctions against Southern
Rhodesia ‘in accordance with their obligations under Article 25 and Article 2,
paragraph 6, of the Charter of the United Nations’.66 Such an understanding is
contrary to the wording of Art 2(6), its drafting history and general international
law.67 Non-member States may, however, be subject to such obligations under general
international law.
D. The Text of the Provision
I. ‘SHALL ENSURE’
30 Article 2(6) stipulates a competence of the Organization and its member States to act
within the framework of the Charter in order to realize the result set out in that
provision. But, based on the wording, it also establishes an obligation to act, and not
just a discretionary power.68
31 Opinion on the content of the obligation is divided. While some have said that ‘shall
ensure’ means that the Organization must take all the measures which it may deem
necessary, including preventive and enforcement action under Chapter VII, to have
non-member States act in accordance with the principles set out in Art 2,69 the
majority takes the view that the Organization may only take political and other non-
forcible action against non-members in order to make them comply with these
principles.70 The power of the Organization to take preventive or enforcement
measures against non-member States may however, depending on the principle
concerned, find its basis in other (general) rules of international law.
66 SC Res 314 (28 Feb 1972) [2] (emphasis added). 67 See Widdows, 462; Conforti/Focarelli, 152; Liivoja, ‘The Scope of the Supremacy Clause of the United Nations Charter’ (2008) 57 ICLQ 57 595; Kammerhofer, 735. 68 Kojanec, Comunità internazionale 636. 69 See UNCIO III, 36 (Uruguayan proposal on rephrasing of para 6).See also Verdross, 441; Ross, 33.
17
II. ‘STATES WHICH ARE NOT MEMBERS OF THE UNITED NATIONS’
32 The obligation in Art 2(6) is directed at ‘States’ which are either not yet or no longer
members of the UN. States whose membership is suspended continue to be bound by
their obligations under Art 2.71 The obligation does not extend to international
organizations or other non-State actors.
III. ‘ACT IN ACCORDANCE WITH THESE PRINCIPLES’
33 The term ‘these Principles’ refers to the principles set forth in Art 2.72 There is,
however, some confusion over whether it covers all or only some of the principles laid
down in that provision. While some have taken the term to mean all principles in
paras 1-5,73 others have excluded the principle in para 2,74 or even have limited the
scope of application to para 5.75 An examination of the principles shows that para 1
concerns the internal organization of the UN and is of a programmatic character only.
The principle in para 2 is solely addressed to member States which have assumed
obligations under the Charter in order to allow them to enjoy the rights and benefits
resulting from membership. In practice, the reference to ‘these Principles’ is thus
limited to the principles in paras 3, 4 and 5.76 This raises the question of how the
Organization has to ensure that non-member States act in accordance with these three
principles.
34 The principle of the peaceful settlement of dispute requires the UN to ensure that non-
member States can actually settle their disputes by peaceful means. Arts 11(2), 32,
35(2) and 93(2) of the Charter can be seen as an expression of that obligation. These
provisions must therefore be interpreted and applied in light of the Organization’s
obligation under Art. 2(6). In addition, parties to the ICJ Statute but not Members of
the UN are to be invited to participate in the GA in electing members of the Court in
70 See UNCIO III, 337 (Belgium); XVII, 147 (Canada) (‘see to it’); ILC Yearbook 1960-II, 88 [26] (‘use its best endeavours’); Widdows, 460-61 (‘do its utmost to urge’); Tomuschat, 252 (‘use its best efforts with a view to inducing’). See also ILC Yearbook 1949, 115 [23], [25]. 71 See UN Charter, Art 5. 72 RP I, 37. 73 Fassbender (n 62) 111. 74 See UNCIO XVII, 147 (USA). 75 Salomon, Le préambule de la Charte: base idéologique de l’O.N.U. (1946) 180-85 (arguing that Art 2(6) was directed at neutral non-member States which the provision required to provide active assistance when the UN was taking preventive or enforcement measures). 76 See Ross, 33; Kelsen, 107-109; Kojanec, Comunità internazionale 638-39.
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the same manner as the UN member States in order to enhance the acceptance of the
Court as a dispute settlement mechanism.77 In consequence of Art 2(6), the organs of
the UN which are competent to seek advisory opinions from the ICJ must, if
necessary, request the Court to give an advisory opinion on legal questions concerning
non-member States.78 It has also been claimed that Art 2(6) serves as a legal basis for
the UN to bring international claims against non-member States,79 although this seems
to be going too far.
35 The principle of the prohibition of the threat or use of force requires the UN to take up
any situation involving a non-member State which may constitute or result in a threat
or use of force. This does not mean that non-member States are under an obligation,
similar to that of member States under Art 51, to report immediately to the SC
measures taken by them in the exercise of the right of self-defence in order to enable
the SC to take such action as it deems necessary to maintain international peace and
security.80Art 2(6), in and of itself, also does not impose any obligations upon non-
member States to carry out the decisions of the SC for the maintenance of
international peace and security,81 or authorize the UN to take any preventive or
enforcement measures against non-member States.
36 The principle of giving every assistance to the UN in any action it takes in accordance
with the Charter requires the UN to open channels of communication and cooperation
with non-member States. Art 50 which gives non-members the ‘right’ to consult the
SC on special economic problems arising from the carrying out of preventive and
enforcement measures can be seen as an expression of that obligation. It may also be
argued that the UN must facilitate the establishment by non-member States of
permanent observer missions to the Organization to allow them to promote
cooperation with the UN, safeguard their interests in relation to the Organization and
to report on its activities.82 The practice of the SC of inviting non-member States
77 See GA Res 264 (8 Oct 1948) [1]. 78 See Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion) [2010] ICJ Rep [18]-[28]. Contra Eastern Carelia, 1923 PCIJ, Series B, No 5, 27-28, where the PCIJ required the consent of the non-member State in order to give an advisory opinion. 79 See Reparations for Injuries Suffered in the Services of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 191 (ind op Alvarez). 80 Contra Kelsen, ‘Limitations on the Functions of the United Nations’ (1946) 55 Yale LJ 997, 1010. 81 Contra Kelsen, 85-86. 82 See United Nations Conference on the Representation of States in their Relations with International Organizations, Official Records I (1976) 110 [13].
19
which maintain permanent observer missions at UN headquarters to nominate judges
of international tribunals established by the SC,83 and including those non-member
States in the electoral body electing these judges may be seen as practical examples of
providing opportunities for assistance to non-member States.84 The S-G also has
invited ‘non-member States having observer status with the Organization’ to inform
the Registrar of the ICTR whether they were willing to enforce prison sentences
imposed by the Tribunal.85 On the other hand, the statement by legal counsel for the
UN in the Reparations for Injuries case, that the UN ‘unquestionably has the right to
insist, under international law, vis-à-vis a State, whether that State be a Member or a
non-member, that its agents be given the protection necessary for the performance of
the functions of the Organization’86 seems to go beyond Art 2(6).
IV. ‘SO FAR AS MAY BE NECESSARY FOR THE MAINTENANCE OF INTERNATIONAL PEACE AND
SECURITY’
37 It was understood at the San Francisco Conference that the intention of the
qualification ‘so far as may be necessary for the maintenance of international peace
and security’ was to limit the obligation in Art 2(6) to matters concerning the
maintenance of international peace and security.87 In the debate on the question of the
observance of human rights and fundamental freedoms in Bulgaria and Hungary in
1949 it was argued that no action could be taken against the two non-member States
because ‘international peace and security were [not] threatened by the alleged
violations of human rights’. This view, however, was not accepted. The prevailing
view was that ‘in case of a flagrant and continuing violation of human rights, the
prolongation of which might endanger peace in the area, the United Nations, in
accordance with Article 2 (6), was fully entitled to take up the matter and to make its
83 See eg the annexes to SC Res 1165 (30 Apr 1998), 1166 (30 Apr 1998), 1966 (22 Dec 2010). See also UN Docs S/1998/761 (19 Aug 1998), S/2002/1131 (11 Oct 2002), S/2002/1272 (21 Nov 2002). 84 See eg the annexes to SC Res 955 (8 Nov 1994), 1329 (5 Dec 200), 1431 (14 Aug 2002), 1597 (20 Apr 2005), 1966 (22 Dec 2010). 85 See UN Doc A/53/429-S/1998/857 (23 Sep 1998) 18 [156]. 86 Reparations for Injuries Suffered in the Services of the United Nations (Advisory Opinion) [1949] ICJ Pleadings 77. 87 UNCIO XVII, 147 (USA). See also Mosler, ‘The International Society as a Legal Community’ (1974) 140 Rec des Cours 1, 206. For Kelsen, 109, the purpose of all obligations imposed by the Charter is – directly or indirectly – the maintenance of international peace and security.
20
voice heard.’88 Today, Art 2(6) cannot be seen as preventing the UN to concern itself
with human rights violations in the territory of, or by non-member States.
38 Organs of the UN which are not seized with matters of international peace and
security such as ECOSOC cannot rely on Art 2(6) to justify actions with regard to
non-member States, but such actions might find their basis in other provisions of the
Charter or general international law.89
E. Article 2(6) as the Precursor of a Universal System of Collective Security Based
upon the UN Charter
I. A UNIVERSAL SYSTEM OF COLLECTIVE SECURITY BASED UPON THE UN CHARTER
39 It is not only the acts of States, whether members of the UN or not, which may give
rise to threats to international peace and security. The actions of non-State actors such
as regional governmental organizations, national liberation movements, rebel groups
and terrorist organizations may equally affect or endanger international peace and
security. A system of collective security thus cannot operate successfully without
embracing all sources of threats to the peace, irrespective of whether they originate
from within the UN membership or from outside. Art 2(6) with its limited scope of
application does not allow the UN to adequately address threats to international peace
and security from outside the Organization. It has therefore been superseded by a
universal system of collective security which is based upon the relevant Charter
provisions but does not derive its legal force from the Charter as a treaty.
40 This universal, that is, generally applicable system of collective security goes beyond
a general obligation incumbent upon all international actors not to conduct themselves
in a way that constitutes a threat to the peace, breach of the peace or act of
aggression.90 It rather subjects all relevant international actors to the authority of the
UN, and in particular the SC, with regard to measures necessary for the maintenance
of international peace and security. This means that those actors are under an
88 RP I, 52; RP 3 I, 176. See also GA Res 1353 (21 Oct 1959) on the human rights violations by the non-member State PR China in Tibet. 89 On the competence of ECOSOC to make recommendations to non-member States, see RP III 256-57. 90 cf CPF/Mahiou (3rd edn) 479-80.
21
obligation to give the UN every assistance in any action it takes in accordance with
the Charter; and, in particular to accept and carry out the decisions of the SC, as laid
down in Arts 25 and 48. As a result, non-member States, for example, can no longer
rely on their status of neutrality in order to escape preventive and enforcement action
ordered by the UN.91
41 This universal system of collective security creates obligations for, and justifies
actions against all international actors in the area of international peace and security. It
thus allows the UN to overcome the limitations inherent in a treaty-based system. The
legality of actions taken by the SC against member States can be explained on the
basis of Art 25 of the Charter which requires member States to ‘accept […] the
decisions of the Security Council’. The question of justification is therefore not really
an issue with regard to actions directed at member States because it can be argued that
any measure ordered by the SC against a member State is covered by its consent to the
Charter. While the member States who is the addressee of the measure may not be
able to complain that does not automatically mean that a non-member of the UN can
rely upon the Charter, a pactum tertii, unless it can be shown that the relevant
provision of the Charter was intended by UN member States to accord rights also to
third parties.92 Actions by the SC addressed to, or directed against non-members of
the Organization, however, cannot be justified in any way on the basis of the Charter,
as the Charter as a treaty can create obligations for third parties only with their
express consent.93
II. INDICATIONS OF A UNIVERSAL SYSTEM OF COLLECTIVE SECURITY IN THE CHARTER
42 There are indications in the text of the Charter itself that its system of collective
security was designed to be capable of universal application. The ultimate purpose of
the UN is ‘to maintain international peace and security, and to that end: to take
effective collective measures’.94 That purpose is not restricted to the relations among
91 cf Salomon (n 75) 180-85; Kelsen, 108; Taubenfeld, ‘International Actions and Neutrality’(1953) 47 AJIL 377, 385. Contra Tucker, The Law of War and Neutrality at Sea (1957) 176. 92 cf VCLT, Art 36. 93 cf VCLT, Arts 34, 35. Such actions, however, may be justified on grounds of general international law; for example, as collective countermeasures. 94 UN Charter, Art 1(1). See also the preamble, para 1 which is phrased in general terms, and Arts 1(2), 14 and 55 which generally refer to ‘friendly relations among nations’.
22
member States.95 It is clear from the text of the Charter that the Organization was to
be capable of taking preventive or enforcement measures against ‘any State’ and not
just against member States.96 It is inherent in a system of collective security that it is
to deal with all threats to the peace, breaches of the peace and acts of aggression and
not only those originating from within the membership.97 The pertinent provisions of
the Charter are phrased in broad enough terms to cover both members and non-
members.98
43 Art 50, which gives non-member States of the UN the ‘right’ to consult the SC on
special economic problems arising from the carrying out of preventive and
enforcement measures, is based on the assumption that non-member States are
justified, or even obligated, to carry out these measures taken by the SC.99 Art 103
provides that obligations of UN members under the Charter shall prevail over their
obligations ‘under any other international agreement’. The provision is clearly aimed
at the member States, but as international agreements may also be concluded by
member States with non-member States it could be argued that the drafters of the
Charter implicitly assumed that the Charter could also provide a justification for the
violation of agreements with non-member States.
III. UNITED NATIONS AND STATE PRACTICE
44 The practice of the UN and of States, both members and non-members of the UN,
shows that in the area of international peace and security the UN is regarded as
competent to create obligations for, and justify the taking of preventive and
enforcement measures against all international actors, not just member States. As
early as 1953, the SC expressed the view that its resolutions can create binding
obligations for member States and non-member States alike. In resolution 101 the SC
recalled ‘to the Governments of Israel and Jordan [at the time a non-member State]
their obligations under Security Council resolutions’ and reaffirmed that it is essential
95 See Kelsen, 106. 96 UN Charter, Arts 2(5), 2(7), 50. 97 See ILC Yearbook 1964-I, 69 [30]. See also Conforti/Focarelli, 150; Tomuschat, 252-54. 98 See UN Charter, Arts 34, 39-42. 99 See also Art 32 (‘any State […] party to a dispute under consideration by the SC’) and Art 35(2).
23
that ‘the parties abide by their obligations under [...] the resolutions of the Security
Council’.100
45 It is important, in the present context, to distinguish between binding decisions and
mere recommendations. While recommendations may be indicative of a universal
system of collective security they are not conclusive. From its very beginning, the UN
has addressed recommendations and requests to ‘all States’; ‘every State’; ‘all States
and authorities’; ‘all Member and all other States’; and, in situations of civil strife in a
country, ‘all parties, movements and factions’ and ‘all parties concerned’.101 Such
requests, as a rule, do not raise any problems in terms of international law.102 No
special powers are required for the UN to take non-binding action in the area of
international peace and security. It thus goes too far to say that ‘the apparent absence
of any protests against such resolutions [directed to ‘all States’] [...] may be taken as
acquiescence in the application of the Charter as universal international law.’103 The
situation is, however, different if a request infringes upon existing rights, and member
States and other actors rely upon these recommendations as a circumstance precluding
wrongfulness. For example, in 1950 the SC adopted resolutions 83 and 84 which
recommended that member States intervene with military means in the defence of the
non-member State South Korea.104 To the extent that the use of force against the non-
member States North Korea and the PR of China could not be based on notions of
collective self-defence, only the recommendation by the SC could have precluded its
wrongfulness.105
100 SC Res 101 (24 Nov 1953) [B2] and [C1] (emphasis added). See also SC Res 50 (29 May 1948) and 54 (15 Jul 1948) which were addressed to both Israel and Jordan, at a time when neither was a member of the UN. 101 RP I, 39. For examples, see ibid, 40-53; RP 1, I, 22-24; RP 2, I, 18-19; RP 3, I, 175-78; RP 4, I, 72-75; RP 5, I, 50-53; RP 6, I, 91-97; RP 7 to 10 on Art 2(6) to be published in vol I; all available at http://www.un.org/law/repertory/. 102 In many cases, such recommendations may just have spelled out existing obligations under customary international law or called for unfriendly but not illegal acts such as the rupture of diplomatic relations. 103 This view, however, was taken byBaxter, ‘Treaties and Custom’ (1970) 129 Rec des Cours 25, 71. 104 SC Res 83 (27 Jun 1950) and 84 (7 Jul 1950). See also Kunz, ‘Legality of the Security Council Resolutions of June 25 and 27, 1950’ (1951) 45 AJIL 137, 139.
24
1. Decisions Addressed to all States, International Organizations and other Non-
State Actors
46 In the resolution practice of the UN, the distinction between member States and other
actors has long been losing importance. In the early years of the UN, the SC still made
a distinction between operative paragraphs in which it addressed binding decisions to
‘all States Members of the United Nations’ or ‘(all) Member States’, and those
couched in non-binding language in which it called upon or urged ‘States not
Members of the United Nations’ or ‘all States’ to act in a certain manner.106 This
distinction was given up in 1977 when, in resolution 418, the SC, acting under
Chapter VII, for the first time addressed a binding decision to ‘all States’ and called
upon ‘all States, including States non-members of the United Nations, to act strictly in
accordance with the provisions of this resolution’.107 At the time, there were still more
than ten States outside the UN. By addressing its decisions to ‘all States’ the SC made
clear that it was incumbent upon non-member States, too, to heed its measures.108
Ever since 1977, the SC has addressed binding decisions relating to the imposition,
implementation or administration of sanctions to ‘all States’, irrespective of whether
they are members of the UN or not.109 In a legal opinion on resolution 661 (1990),110
which employs the same language as resolution 418, the Secretariat of UNIDO found
that ‘this resolution constitutes a decision of the Security Council in accordance with
Article 39 of the Charter of the United Nations, which is binding on all States. All
States are therefore under an international legal obligation to take [the requested]
measures’.111
47 The last reference in a SC sanction resolution to ‘States not members of the United
Nations’ or ‘States non-members of the United Nations’ can be found in resolution
105 See also GA Res 500(V) (18 may 1951) recommending an embargo on all war material directed towards the PR of China and North Korea. 106 See eg SC Res 232 (16 Dec 1966), 253 (29 May 1968), 277 (18 Mar 1970), 388 (6 Apr 1976), 409 (27 May 1977). 107 SC Res 418 (4 Nov 1977) [2] and [5]. The ‘all States’ formula was first used in a draft resolution introduced by Canada and the FRG; see UN Doc S/12433 (31 Oct 1977). On this resolution, see Widdows, 459-62, who concludes that the term ‘calls upon’ was intended to create a binding obligation for non-member States (ibid, 462). 108 See Tomuschat, 254. 109 For a list of resolutions adopted under chapter VII addressed to ‘all States’, see Conforti/Focarelli, 153-54. 110 See SC Res 661 (6 Aug 1990) [2] and [5]. 111 UNJYB 1990, 311. For the inclusion of ‘non-member States’ in the ‘all States’ formula, see the ICJ’s Namibia advisory opinion, [1971] ICJ Rep, 16, 56 [126].
25
1054 (1996) where the SC called upon ‘all States, including States not members of the
United Nations and the United Nations specialized agencies to act strictly in
conformity with this resolution, notwithstanding the existence of any rights granted or
obligations conferred or imposed by any international agreement or of any contract
entered into or any licence or permit granted prior to the entry into force of the.’112
48 In 2003, probably in light of the UN having achieved almost complete universality,
the SC returned to the practice of, at least occasionally, expressly addressing decisions
or authorizations to ‘Member States’ and distinguishing in operative paragraphs
between provisions addressed to ‘Member States’ and those addressed to ‘all
States’.113 The large majority of decisions, however, continues to be addressed to ‘all
States’. The return to the ‘Member States’ formula does not seem to signify any
change in the practice of the SC with regard to the binding force and reach of its
resolutions.
49 The explicit reference in SC resolution to ‘States not members of the United Nations’
has been replaced over the years by references to ‘all international and regional
organizations, including the United Nations and its specialized agencies’,114 ‘relevant
United Nations bodies and other organizations and interested parties’,115 or ‘relevant
United Nations bodies and other interested parties’.116 In 1991, the SC for the first
time called upon ‘all international organizations to act strictly in accordance’ with a
binding decision addressed to all States and imposing an embargo against Iraq.117 The
SC, acting under Chapter VII, has also addressed decisions to States and ‘regional
organization’ such as the EU or NATO and has authorized these organizations, or
112 SC Res 1054 (26 Apr 1996) [5]. For earlier resolutions using the same of similar formulations, see SC Res 918 (17 May 1994) [15], 917 (6 May 1994) [12]; 883 (11 Nov 1993) [12], 757 (30 May 1992) [11], 748 (31 Mar 1992) [7]; 661 (6 Aug 1990) [5], 591 (28 Nov 1986) [12], 558 (13 Dec 1984) [3]. 113 See eg SC Res 1483 (22 May 2003), 1718 (14 Oct 2006), 1822 (30 Jun 2008), 1844 (20 Nov 2008), 1874 (12 Jun 2009), 1970 (26 Feb 2011), 1973 (17 Mar 2011). Compare also SC Res 1487 (12 Jun 2003) and 1422 (12 Jul 2002). 114 See SC Res 1333 (19 Dec 2000) [17]. 115 SC Res 1643 (15 Dec 2005) [13], 1893 (29 Oct 2009) [18]. 116 SC Res 1929 (9 Jun 2010) [30], 1973 (17 Mar 2011) [25]. 117 SC Res 687 (3 Apr 1991) [25]. See also SC Res 748 (31 Mar 1992) [7]; 917 (6 May 1994) [12], 1173 (12 Jun 1998) [17], 1343 (7Mar 2001) [22].
26
member States acting through or in cooperation with them, to take all necessary
measures to carry out certain tasks.118
50 International organizations such as the EU have consistently implemented economic
and other sanctions decisions of the SC indicating an intention to be bound.119 It has
been argued that, because the EU is not a member of the UN, it does not have a direct
obligation under the UN Charter to give effect to the decisions of the SC imposing
economic sanctions.120 The EU as a subject of international law is, however, subject
to the universal system of collective security and thus bound to comply with the
decisions of the SC. Both the EU member States and the European Commission
consider the EU bound by decisions of the SC adopted under Chapter VII. Declaration
No 13 of the Conference of the Representatives of the Governments of the Member
States concerning the common foreign and security policy annexed to the Treaty of
Lisbon stresses ‘that the European Union and its Member States will remain bound by
the provisions of the Charter of the United Nations and, in particular, by the primary
responsibility of the Security Council and of its Members for the maintenance of
international peace and security.’121 The ECJ confirmed that the EU ‘must respect
international law’, including binding SC resolutions, in the exercise of its powers.122
To the extent that the EU implements sanctions decisions of the SC that infringe upon
exiting rights, it can, as a rule, only be the decision of the SC that provides the
circumstance precluding the wrongfulness of the action.123
118 See eg SC Res 1639 (21 Nov 2005), 1671 (25 Apr 2006), 1845 (20 Nov 2008), 1846 (2 Dec 2008), 1851 (16 Dec 2008), 1895 (18 Nov 2009), 1948 (18 Nov 2010). 119 See Art 215 and 75 TFEU and Chapter 2 of Title V of the TEU. For the practice of the EU and its predecessor the EC in implementing SC sanctions, see eg Bohr, ‘Sanctions by the United Nations Security Council and the European Community’ (1993) 3 EJIL 258-62, 265; Bethlehem, ‘The European Union’ in Gowlland-Debbas (ed) National Implementation of United Nations Sanctions (2004) 123-65. 120 See Osteneck, Die Umsetzung von UN-Wirtschaftssanktionen durch die Europäische Gemeinschaft (2004), 307-48. 121 Declaration [No. 13] concerning the common foreign and security policy, annexed to the Final Act of the Intergovernmental Conference, 13 Dec 2007, Official Journal of the European Union C 306 (17 Dec 2007) 255 (emphasis added). 122 Joined Cases C-402/05 P and C-415/05 P, Kadi and Al-Barakat v. Council and Commission, Judgment (Grand Chamber) of 3 Sep 2008 [291]. See also ibid [270] where the European Commission argued that an act adopted by the SC was not binding on the Community because it was ultra vires the Charter, not because those acts were not binding on the Community as such. 123 The EU as a non-injured party regularly will not be in a position to rely upon countermeasures as a circumstance precluding wrongfulness.
27
2. Non-Member States and Other Actors as Target of Preventive and Enforcement
Measures
51 The SC has not only addressed demands to non-members but has also imposed
preventive and enforcement measures against them. To date, the SC has imposed
sanctions under Chapter VII against two non-member States: Rhodesia124 and the
Federal Republic of Yugoslavia (Serbia and Montenegro) – FRY. Neither of the two
States objected to these measures on the grounds of their non-membership.125
52 From April 1992 to November 2000, the FRY was considered not to be a member of
the UN.126 This did not prevent the SC, acting under Chapter VII, from imposing
wide-ranging sanctions against the FRY, including the interruption of trade relations
and air traffic.127 As the resolutions themselves made clear, some of these measures
were contrary to existing treaty obligations of member States toward the FRY. The
SC seemed to assume that its decisions could serve as justification of any violation of
the treaty rights of the FRY. This view also seems to be shared by the United States
which in a statement to the ILC on the question of State responsibility declared that
‘an act of State, properly undertaken pursuant to a Chapter VII decision of the
Security Council cannot be characterized as an internationally wrongful act.’128
53 Support for the view that the SC, acting under Chapter VII, can adopt measures
binding upon non-member States can also be found in Prosecutor v Milan
Milutinović. The ICTY’s Trial Chamber III, while not pronouncing on the question of
the application of the UN Charter to non-member States in general, nevertheless
stated that the ‘constitutional character of the Charter, its near universal membership,
the critical importance to the international community of the goal of the maintenance
124 See SC Res 232 (16 Dec 1966), 253 (29 May 1968), 277 (18 Mar 1970), 388 (6 Apr 1976) and 409 (27 May 1977). For the view that these sanctions were directed at a non-member State, see Combacau, 137 n 11; Leben, ‘Les contre-mesures inter-étatiques et les réactions à l`illicite dans la société internationale’ (1982) 28 AFDI 9, 28. Contra Ress, Das Handelsembargo (2000), 72-73. 125 See Conforti/Focarelli, 151-52. 126 See SC Res 757 (30 May 1992), 777 (19 Sep 1992), 1326 (31 Oct 2000) and GA Res 47/1 (22 Sep 1992), 55/12 (1 Nov 2000). See also Wood, ‘Participation of Former Yugoslav States in the United Nations and in Multilateral Treaties’ (1997) 1 Max Planck Yearbook of United Nations Law 231, 241-51; Jovanovic, ‘The Status of the Federal Republic of Yugoslavia in the United Nations’ (1998) 21 Fordham ILJ 1718-36; and Application for Revision of the Judgement of 11 July 1996 in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, [2003] ICJ Rep 7, 14-24. 127 See SC Res 757 (30 May 1992), 787 (16 Nov 1992), 819 (16 Apr 1993), 820 (17 Apr 1993), 1160 (31 Mar 1998).
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of international peace and security, are all factors that combine to render the Chapter
VII resolution establishing the Tribunal applicable to any country that was a part of
the former SFRY, irrespective of its United Nations membership at the time of the
adoption of that resolution, or at the time of the commission of the offences.’129 The
Chamber therefore held that ‘even if the FRY was not a member of the United
Nations at the relevant time, Chapter VII of the Charter is open to the interpretation
that the Security Council had authority over the FRY in the circumstances of the this
case.’130 Although the Chamber intended to limit its finding to the circumstances of
the case, its reasoning can be applied generally to the question of the binding force of
SC decisions for non-member States. The SC’s authority cannot depend on whether a
conflict arose in a territory that was once part of a member States or whether the
conflict started at a time when the territory in question still belonged to a member
State. Fact is that the SC, acting under Chapter VII, adopted a resolution that, at the
time of its adoption, was to be applicable to a non-member State.131
54 The SC has targeted not only non-member States but also other non-members. In
situations of civil strife in a country, the SC now almost routinely addresses appeals
and requests to ‘all parties’ to the conflict, not only to the (government of the)
member State.132 The SC has imposed sanctions against rebel groups and local de
facto governments within the territory of a member State.133 While some have tried to
explain these actions on the basis that the decisions of the SC apply not only to the
government of a member State but also to ‘subordinate territorial organs of a nation to
128 UN Doc. A/CN.4/488 (25 Mar 1998) 95. 129 ICTY Trial Chamber III, Prosecutor v Milan Milutinović and others, Case No IT-99-37-PT, Decision on Motion Challenging Jurisdiction (6 May 2003) [62] and, more generally, [45]-[61]. 130 ibid [63]. 131 See especially SC Res 827 (25 May 1993) [4], deciding that all States cooperate fully with the Tribunal and comply with requests for assistance or orders issued by a Trial Chamber of the Tribunal. 132 See eg SC Res 1004 (12 Jul 1995), 1355 (15 Jun 2001), 1975 (30 Mar 2011). For further examples, see Kalala, 58-62, 94-98, 149-50, who also argues that the SC, acting under Chapter VII, can impose binding obligations upon international organizations and rebel movements. See also Kooijmans, ‘The Security Council and Non-State Entities as Parties to Conflicts’ in Wellens (ed) International Law: Theory and Practice (1998), 333-46. 133 See eg SC Res 864 (15 Sep 1993), 1045 (8 Feb 1996), 1127 (28 Aug 1997), 1173 (12 Jun 1998), all concerning UNITA in Angola; SC Res 1171 (5 Jun 1998) concerning RUF in Sierra Leone; SC Res 1267 (15 Oct 1999), 1333 (19 Dec 2000), 1390 (16 Feb 2002) concerning the Taliban in Afghanistan.
29
which the Charter rules apply’,134 the better explanation is that all these actors are
subject to the universal system of collective security.
3. Implementation of Measures by Non-Member States
55 State practice since 1945 shows that a number of States prior to becoming members of
the UN implemented sanctions imposed by the SC against both member and non-
member States and reported the measures taken to the SC, suggesting that they felt
under an obligation to do so. As non-member States cannot rely on the Charter as a
basis for their actions vis-à-vis the target of the sanctions, those actions can only be
justified on the basis on a universal system of collective security.
(a) Early Practice
56 On 29 May 1948, the SC, desiring to bring about a cessation of hostilities in Palestine,
addressed a number of requests to ‘all Governments and authorities concerned’ and
called upon ‘all Governments to take all possible steps to assist in the implementation’
of the resolution.135 This call upon ‘all Governments’ was interpreted by the President
of the SC to mean ‘all States – not only Member States, but non-member States as
well’.136 On the instruction of the SC the S-G sent a cablegram to States, both
members and non-members of the Organization, asking them to report on the steps
taken on implementation of the SC’s requests. Several non-member States informed
the S-G that they would ‘comply with the aforesaid resolution, enforcing it in
conformity with the interpretation set forth in your cable.’137
(b) Federal Republic of Germany prior to 1973
57 In the 1960s the Federal Republic of Germany (FRG) complied with several SC
resolutions addressed to ‘all States’ which imposed sanctions against South Africa and
Southern Rhodesia, and regularly reported to the SC on the measures it took ‘in
134 See UN Doc S/4417 (6 Aug 1960) 5. The S-G’s explanation concerned the application of SC decisions to Katanga, a renegade province of the newly independent Republic of Congo. It should be noted that, at the time, the Republic of Congo itself had not yet become a member State of the UN. 135 SC Res 50 (29 May 1948). 136 SCOR, 3rd year, 320th meeting (15 Jun 1948) 3. 137 UN Docs S/855 (23 Jun 1948) 2 (Italy), 3 (Hungary), 6-7 (Switzerland) and S/855/Add.3 (9 Jul 1948) 1 (Austria).
30
accordance with’ the various resolutions.138 In its note of 17 February 1967, the
German Government stressed, however, that it had taken these measures ‘in spite of
the fact that the FRG is not a member of the United Nations’.139 This has been
interpreted as manifesting a belief on the part of the FRG that it was in no way bound
to participate in such sanctions.140
(c) Republic of Korea prior to 1991
58 The Republic of Korea (ROK) in 1990/1991 implemented all sanctions imposed by
the SC against Iraq and duly reported on the measures it had taken ‘in pursuance of’
the various SC resolutions.141 On no occasion did the ROK Government intimate that
it was acting independently of the UN. On the contrary, the Government of the
Republic of Korea informed the S-G that it ‘is abiding by resolutions 687 (1991) and
700 (1991) [...] and that the competent authorities have also taken domestic measures
to ensure the implementation of the relevant provisions of the said resolutions.’142
(d) Switzerland prior to 2002
59 In the early years of the UN, Switzerland, insisting on its status as a permanently
neutral State, did not take part in economic sanctions regimes imposed by the SC
against Rhodesia.143 But, in order not to become a centre for the evasion of sanctions,
the Swiss Government introduced the practice of the courant normal or the ‘normal
trade flow’ for its economic relations with Rhodesia. 144 Switzerland insisted that the
adoption of these measures could not be interpreted as recognition of a legal
obligation on non-member States to apply economic sanctions. These measures were
adopted on a purely autonomous and voluntary basis.145 However, as early as 1971
138 See eg UN Docs A/AC.115/L.143 (13 Oct 1965), 20 (sanctions against South Africa); S/7181 (4 Mar 1966); S/7181/Add.1 (18 May 1966) (sanctions against Southern Rhodesia). For reports of the FRG see also UN Docs S/10852/Add. 1, Annex I and II; S/11178/Add. 2, Annex I and II. See further Zacklin, The United Nations and Rhodesia (1974) 84-7, as well as Martens and von Schenck. 139 UN Doc S/7781 (21 Feb 1967), annex 2, 20. 140 McNeill, 10. 141 See UN Docs S/21487 (10 Aug 1990) 2, S/21617 (24 Aug 1990). 142 UN Doc S/23016 (9 Sep 1991) 2. 143 See SC Res 232 (16 Dec 1966), 409 (27 Mar 1977). See also Zacklin (n 138) 85-7. 144 The practice of ‘normal trade flow’ meant that Switzerland froze the volume of its bilateral trade with a country at the average level for a period of reference (usually three years) prior to the imposition of sanctions. 145 In a note, dated 13 Feb 1967, addressed to the S-G, the Swiss Federal Government stated that ‘for reasons of principle, Switzerland, as a neutral State, cannot submit to the mandatory sanctions’ of the UN but offered ‘independently and without recognizing any legal obligation’ to limited its economic exchanges with Rhodesia
31
the Swiss Federal Council took the view that Art 2(6) might give the UN the authority
to involve non-members in collective security operations.146 When the SC imposed an
arms embargo on South Africa,147 Switzerland was already applying a weapons
embargo against the country nationally so that the question of the implementation of
SC resolutions did not arise.148
60 The end of the bipolar world led Switzerland to abandon its restrictive policy of
neutrality. In 1990, the country for the first time fully participated in the economic
sanctions adopted by the SC against Iraq.149 The Swiss Government, however, pointed
out that, as a non-member State of the UN, it participated in these sanctions not
because it was legally bound to do so under the Charter, but because it had chosen to
do so ‘independently’ or ‘on an autonomous basis’.150 On that basis, the country
consistently implemented all economic sanctions adopted by the SC until it joined the
UN in September 2002. Switzerland, on several occasions, even took part in military
measures conceding overflight and transit rights to foreign troops involved in UN
authorized military operations.151 It also fully implemented in its domestic law the SC
resolutions deciding that ‘all States’ shall cooperate fully’ with the ICTY and the
ICTR and shall comply with requests for assistance or orders of these courts.152 In all
cases, where the SC requested ‘all States’ to report on the steps they have taken to
give effect to a resolution, Switzerland duly filed reports.153 It should also be noted
that, on several occasions, the Swiss Government reported on the measures it had
to those of previous three years’ (UN Doc S/7781 (21 Feb 1967), 58-59). See also Bindschedler (1968) 28 ZaöRV 7-14; Gunter, 146-48; Letsch, Rhodesien, die Vereinten Nationen und die Schweiz (1983). 146 Swiss Federal Council, Report of the Federal Council to the Federal Assembly Concerning Switzerland’s Relations with the United Nations (17 Nov 1971) 10; quoted in Gunter, 151. 147 SC Res 418 (4 Nov 1977). 148 UN Doc S/12644 (13 Apr 1978). See also Krafft/Thürer/Stadelhofer, 525. 149 SC Res 661 (6 Aug 1990), 670 (25 Sep 1990). See Thürer, 64-65. 150 See eg UN Docs S/21585 (22 Aug 1990), S/26061 (9 Jul 1993), S/AC.31/1997/28 (18 Dec 1997). But see also Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5), [2002] 2 AC 883, 1102 (Lord Steyn: ‘And, under article 2(6) of the United Nations Charter, the resolutions [661 and 670] called on the few non-members of the United Nations to abide by the resolutions, and they at least acquiesced’). 151 See Krafft/Thürer/Stadelhofer, 526-27. 152 SC Res 827 (25 May 1993) [4]; 955 (8 Nov 1994) [2]. On the Swiss implementation of these resolutions, see Krafft/Thürer/Stadelhofer, 563-66. 153 See eg SC Res 1132 (8 Oct 1997) [13] requesting States to report to the S-G within 30 days of the date of adoption of the resolution. On 12 January 1998, Switzerland informed the S-G that it ‘intends to implement, independently, the measures provided for’ in paras 5 and 6 of resolution 1132’ (UN Doc S/1998/41 (16 Jan 1998)). The Secretariat treated the Swiss report as filed ‘in compliance with paragraph 13 of resolution 1132’ (UN Doc S/1998/103 (5 Feb 1998) 6 [23]). Only six States had reported within the specified deadline; see UN Doc S/1998/112 (10 Feb 1998) 1 [4].
32
taken ‘in order to implement’ a certain SC resolution without including a proviso as to
it acting on an independent basis.154
61 In resolution 1373 (2001), the SC decided that ‘all States’ were to take specific
measures to combat international terrorism and called upon them to report on actions
they had taken to implement that resolution.155 On 19 December 2001, Switzerland
submitted its report ‘pursuant to paragraph 6 of resolution 1373 (2001)’ without any
proviso that, as a non-member State, it did so independently or that it was not obliged
to do so.156 On the contrary, Switzerland stressed that since 1990 it had
‘systematically applied the non-military sanctions decided on by the Security
Council’157 and that it cooperated with the international criminal tribunals established
by the Security Council.158 It thus seems that since 1990 Switzerland increasingly
accepted that SC sanctions decisions were also binding upon non-member States.159 In
any case, Switzerland always seemed to be more concerned about its permanent
neutrality than about the pacta tertiis rule.160
62 The opinion in the literature on whether Switzerland was bound to implement SC
decisions is divided. While some argued that there was no legal obligation arising
from the Charter law for non-member States,161 others held Switzerland bound to
implement SC sanctions by virtue of general international law.162 The latter view
seems to be the better one as it is difficult to understand how Switzerland could rely
on SC ‘decisions’ to justify otherwise illegal actions (such as aiding and abetting the
use of force, the freezing of foreign funds and financial resources, and the imposition
154 See e.g. UN Doc S/22958 (19 Aug 1991) 2, informing the S-G about the measures ‘taken by the Swiss Government in order to implement paragraph 4 of Security Council resolution 700 (1991)’. See also UN Docs S/23338 (31 Dec 1991), S/24160 (24 Jun 1992), S/1994/77 (24 Jan 1994). 155 SC Res 1373 (28 Sep 2001) [2], [3], [6]. 156 UN Doc S/2001/1224 (20 Dec 2001). See also UN Doc S/2002/868 (1 Aug 2002). 157 UN Doc S/2001/1224 (20 Dec 2001) 5. See also ibid 6, 11. 158 ibid 14. 159 But see the Legal Opinion of the Directorate of Public International Law of the Swiss Federal Department of External Affairs of 7 March 1994 which stated: ‘neither case law nor doctrine offers sufficient evidence to affirm the existence of a legal obligation on the part of non-member states, based on custom, to comply with sanctions imposed by the United Nations’ (reproduced in Caflisch, La Pratique suisse en matière de droit international public 1994 (1995) 5 RSDIE 647, 653 (translation provided)). 160 cf Bindschedler (1968) 28 ZaöRV 2, 9. 161 Hannikainen, Peremptory Norms (Jus Cogens) in International Law (1988) 223; Thürer, 72; Hailbronner, ‘Sanctions and Third Parties and the Concept of International Public Order’ (1992) 30 AVR 2, 11-12; Krafft/Thürer/Stadelhofer, 527, 549, 566. 162 Schindler, 458-64; Linsi, Gegenmassnahmen in der Form des Embargos zur Durchsetzung elementarer Völkerrechtsverpflichtungen in der schweizerischen Aussenpolitik (1994) 103-16; Schaub, Neutralität und Kollektive Sicherheit (1995) 124-25. See also Tomuschat, 256-57.
33
of restrictive measures against foreign air traffic and aircraft) while, at the same time,
not being bound by these decisions – either the Charter is applicable or it is not.163
(e) Cook Islands
63 The Cook Islands, one of the few remaining non-member States of the UN, also
reported within the prescribed period ‘on measures it has taken to implement United
Nations Security Council resolution 1373 (2001) as called for by the Council’.164 In
addition, on 9 April 2003 the country adopted the ‘United Nations (Security Council
Resolutions) Act’ which allows the country, by way of regulations, to give domestic
effect to SC resolutions with respect to international peace and security.165 In its
report to the Counter-Terrorism Committee (CTC) of 8 September 2004, the Cook
Islands accepted an ‘obligation on States to report to the CTC’ but explained that it
had been unable to meet the timetable set by the CTC due to resources constraints.166
4. Opinion of Member States
64 Over the years, UN member States have repeatedly expressed the opinion that the
powers of the Organization with respect to the maintenance of international peace and
security also extend to non-member States.167 For example, in 1965 when Indonesia
withdrew from the UN several member States argued that the country remained
‘amenable to the jurisdiction of the Security Council’.168 Similarly, in a debate on the
expulsion of South Africa from the UN in 1974, Guyana argued that enforcement
action can be taken against non-members as the ‘Charter has assumed the character of
basic law of the international community and that non-members are expected to
163 But see Thürer, 81-82, who relies on the SC decisions as a ‘ground of justification’ without taking this reasoning to its logical conclusion. 164 See UN Doc S/2001/1324 (31 Dec 2001), encl [1.9]. See also the follow-up reports and the reports pursuant to SC Res 1390 (16 Jan 2002) [6]: UN Docs S/2002/1445 (17 Jun 2002); S/2002/1445/Add.1 (6 Oct 2003); S/2004/745 (16 Sep 2004). 165 United Nations (Security Council Resolutions) Act 2003, 2003 No 2. The Cook Islands had previously implemented sanctions imposed against Rhodesia and Iraq. 166 UN Doc S/2004/745 (16 Sep 2004), encl [2.1]. The CTC lists contact details for ‘Cook Islands (non-member)’ for information and assistance in connection with matters arising under SC Res 1373; see UN Docs S/2002/138 (31 Jan 2002) 10, 18; S/2002/700 (2 May 2002) 11; S/2002/1031 (13 Sep 2002) 11. 167 See eg GAOR, 6th committee, 18th session, 806th meeting (6 Nov 1963) 133 [12] (Mexico); UN Doc A/CONF.25/16 (1963) 4 (Cuba). See also RP 3 I, 177. 168 See UN Docs S/6140 (7 Jan 1965) 3 [11] (Malaysia), S/6229 (12 Mar 1965) 2 (UK), S/6356 (17 May 1965) 3 (Italy). See also Nizard, ‘Le retrait de l’Indonésie des Nations Unies’ (1965) 11 AFDI 498, 512-14.
34
recognize this law as one of the facts of international life and to adjust themselves to
it.’169
65 In 1966, in the debates leading up to SC resolution 232 in which the SC imposed
sanctions against Southern Rhodesia,170 several member States took the view that the
sanctions provided for under Art 41 were not only binding upon all members of the
UN, but were also obligatory for non-member States in accordance with Art 2(6) of
the Charter.171 If any member or non-member should substantially fail to carry out the
SC’s decision, the United States argued, ‘this failure would be a violation of Charter
provisions and obligations.’172
IV. THE ICJ’S NAMIBIA AND KOSOVO ADVISORY OPINIONS
66 The ICJ dealt with the question of whether non-members of the UN can be bound by
decisions of the SC in its advisory opinions on Namibia and Kosovo. In its Namibia
advisory opinion the ICJ held that non-members of the UN were not bound by Arts 24
and 25 of the Charter. However, the Court accepted that certain decisions of the SC
can be ‘opposable to all States’ and that ‘it is for non-member States to act in
accordance with those decisions’ and to ‘give assistance [...] in the action which has
been taken by the United Nations’.173 It is true that the Court’s opinion must be seen
within the specific context of the termination of the mandate and cannot necessarily
be taken as evidence for a general power of the SC to impose obligations upon non-
member States.174 It shows however that non-member States must give assistance in
the action which has been taken by the UN – a view shared by the SC.175 Speaking on
the Court’s advisory opinion in the SC in 1971, the representative of Guyana stated
169 SCOR, 29th year, 1798th meeting (22 Oct 1974) 14 [95]. 170 In SC Res 232 (16 Dec 1966) [7], the SC, having regard to the principles stated in Art 2 of the Charter, urged ‘States not Members of the United Nations’ to act in accordance with the present resolution’ and in [5] called upon ‘all States’ not to render financial or other economic aid to the illegal racist régime in Southern Rhodesia’. 171 See SCOR, 21st year, 1332nd meeting (9 Dec 1966) 15 [59] (Argentina), ibid, 1333th meeting (12 Dec 1966) 6 [23] (USA), 11 [46] (Japan), ibid, 1340th meeting (16 Dec 1966) 10 [38] (Uruguay). See also RP 4 I, 74. 172 SCOR, 21st year, 1333th meeting (12 Dec 1966) 6 [23]. 173 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) [1971] ICJ Rep 16, 56 [126] and 58 [133(3)]. See also ibid 149 (sep op Onyeama). In its written statement to the Court, Finland said that it was ‘doubtful whether it can be considered that the pertinent provisions of the Charter, although dealing with States in general or expressly with States not members of the Organisation (as in Art 2, para 6), are binding’. It conceded, however, that similar obligations, as those based on the Charter, may arise for third States from the general principles of international law, i.e. customary law (ibid, ICJ Pleadings 1970, 375-76). 174 cf Sicilianos, Le réaction décentralisees à l’illicite (1990) 152. 175 See SC Res 301 (20 Oct 1971) [6], [11] and [15].
35
that his Government trusted ‘that non-Member States of the Organization that have
hitherto considered themselves free to pursue courses of conduct in or in relation to
Namibia inconsistent with the decisions of this Organization will henceforth desist
and acknowledge themselves as being under obligations of a similar nature to those of
all Member States.’176
67 In the Kosovo advisory opinion, the ICJ stated in very broad terms that ‘the Security
Council may adopt resolutions imposing obligations under international law’. The
Court did not limit this finding to States, or even to member States.177 The Court, after
finding that SC resolution 1244 (1999) being adopted under Chapter VII clearly
imposed international legal obligations, examined whether the authors of the
declaration of independence of Kosovo (which clearly were not a member of the UN)
were prohibited by that resolution from declaring independence.178 The Court
observed that ‘it has not been uncommon for the Security Council to make demands
on actors other than United Nations Member States and intergovernmental
organizations.’179 It then examined whether the SC intended to create binding legal
obligations ‘for such other actors’. The Court’s opinion is thus based on the
assumption that the SC, if it intends to do so, can create binding legal obligations for
actors other than member States, including non-State actors.180 This view was also put
forward by Norway in its submissions to the Court when it argued that according ‘to
Article 2(6) of the UN Charter, even a state that is not a member of the UN has the
obligation to act in accordance with the principles of the Charter so far as may be
necessary for the maintenance of international peace and security, and it must also
comply with Security Council resolutions including resolution 1244.’181
176 SCOR, 26th year, 1584th meeting (27 Sep 1971) 19 [218]. See also ibid, 1585th meeting (28 Sep 1971) 5 [38] (Liberia). 177 Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion) [2010] ICJ Rep [85]. 178 ibid [113]-[119]. 179 ibid [116] 180 See also Öberg, ‘The Legal Effects of United Nations Resolutions in the Kosovo Advisory Opinion’ (2011) 105 AJIL 84-86. See, generally, Bolani, ‘Security Council Sanctions on Non-state Entities and Individuals’ (2003) 56 RHDI 429-30; Florent, ‘Les destinataires non étatiques des résolutions du Conseil de sécurité’ in Société française pour le Droit international (ed), Le sujet en droit international: colloque du Mans (2005) 115. 181 Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion), Written Statement of the Kingdom of Norway, 16 Apr 2009, annex 2, 20-24. See also ibid, Written Comments of the USA, July 2009, 35 (‘If the obligation to “accept and carry out” the decisions of the Security Council does not apply to non-state actors, then it would be difficult to see how
36
V. LEGAL BASIS OF A UNIVERSAL SYSTEM OF COLLECTIVE SECURITY
68 A universal system of collective security which covers all international actors cannot
be based on the UN Charter as a treaty which is open only to States and which not all
States have acceded to. This leaves the question of the legal basis of such a universal
system.
1. The ‘Reparations for Injuries’ Approach: Objective Security Order
69 In its advisory opinion in the Reparation for Injuries case, the ICJ held that ‘the vast
majority of the members of the international community [assembled in the UN] had
the power, in conformity with international law, to bring into being an entity
possessing objective international personality, and not merely personality recognized
by them alone’.182 Following that dictum, one could argue that the vast majority of the
members of the international community were also able to create an ‘objective’ or
universal system of collective security and that, in light of the language of the Charter,
they intended to do so. This view finds some support in statements of delegations at
the San Francisco conference who considered the UN as representing ‘the authorized
expression of the international community’ or even as the ‘collective conscience of
humanity’ which had the right to impose obligations on third-party States.183 It has
been said that these statements show that there was ‘legislative intention’ present at
San Francisco.184
70 It seems unlikely, however, that the ICJ in 1949 attributed general law-making powers
to ‘the vast majority of the members of the international community’. Such a view
would have established the UN as a world legislature and thus would have
Kosovo’s declaring independence could be seen [...] as having violated international law, even if its actions were inconsistent with Resolution 1244’). 182 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 185. 183 UNCIO III, 337; VI, 348 (Belgium). See also UNCIO VI, 722 (‘The vote [on what is now para 6] was taken on the understanding that the association of the United Nations, representing the major expression of the international legal community, is entitled to act in a manner which will ensure the effective cooperation of non-member states with it’). See further ILC Yearbook 1964-I, 69 [28] (Jimenez de Arechaga saying that the obligation in Art 2(6) ‘was grounded on the will of the vast majority of the international community [...] thereby establishing a fundamental rule of law for all States’). 184 Ross, 33; Tomuschat, ‘Völkerrechtlicher Vertrag und Drittstaaten’ (1988) 28 Berichte der deutschen Gesellschaft für Völkerrecht 9, 15.
37
revolutionized international law.185 Most authors therefore limit the dictum to the
question of the UN’s legal personality.186 The problem with this line of argument –
much like with the ICJ’s finding in the Reparation for Injuries case in general – is that
it does not answer, within the framework of the sources of international law, the
question of the legal basis of such a universal system of collective security.187 The
ICJ, in the Reparations for Injuries case, effectively created new law.188
2. The Charter as an ‘Objective Regime’
71 Sir Humphrey Waldock in his Third Report to the ILC on the Law of Treaties
proposed that a State not party to a treaty that establishes an ‘objective regime’ which
does not protest against or otherwise manifest its opposition to the regime shall be
considered as having impliedly accepted the regime and be bound by any general
obligations which it contains.189 One example given for such an objective regime
established by treaty was ‘general international organizations’.190 The only evidence
advanced for the proposition was the ICJ’s advisory opinion in the Reparations for
Injuries case. The ILC decided not to include a special provision on treaties
establishing objective regimes in its final draft on the Law of Treaties as the concept
was ‘unlikely to meet with general acceptance’. The ILC thought that objective
regimes could be brought into existence only by custom or by the consent of third
parties.191
3. The Charter as the Constitution of the International Community
72 It has been suggested that, in a revolutionary act, the UN Charter has been devised as,
or has subsequently become the ‘constitution of the international community’ as a
185 The UN’s legal counsel had taken a different view arguing that the UN’s ‘international personality is recognized not only by the Member States but by the non-member States as well’ and that ‘it is now founded upon a general rule of international law’ (Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Pleadings 74). 186 See eg Brownlie (9) 689-90. 187 See ICJ Statute, Art 38(1). The legal basis of the objective legal personality can be found neither in treaty law nor in customary international law. There is also no general principle of law that would establish such legal personality. 188 Some of the individual opinions are revealing in this respect; see [1949] ICJ Rep 174, 191 (ind op Alvarez); 205 (diss op Badawi Pasha). 189 ILC Yearbook 1964-II, 26-27. See also, arguing pro futuro, McNair, ‘Treaties Producing Effects “Erga Omnes”’, in Scritti di Diritto Internazionale in Onore di Tomaso Perassi II (1957), 23, 30-33. 190 ibid 31 [14]. 191 ibid 1966-II, 231, 334. For the ‘unease at the idea’ of treaties establishing objective regimes, see also ibid 1960-II, 98 [71]; ibid 1966-I/2, 79, 91, 317. See further Widdows, 461.
38
whole.192 As the constitution of the international community the Charter lays down
the basic principles governing the life of the community, enjoys priority over
‘ordinary’ rules, and is binding on all members of the community, including those not
members of the UN. For that reason, the SC as the guarantor of international peace
and security under the Charter can address binding decisions to all members of the
international community.
73 The idea of the UN Charter being the constitution of the international community may
be an interesting and appealing idea but not one rooted in the doctrine of sources.
Rather, it is arrived at by deduction from preconceived ideas. Constitutionalist
scholars, on the basis of self-defined criteria or some hypotheses, determine that the
Charter constitutes a ‘constitution’ from which certain legal consequences, including
universality of Charter law, follow. This approach amounts to law-making by
taxonomy.193 What constitutionalist scholars do not satisfactorily explain, is how and
why the Charter has become a constitution and who took that decision (apart from the
constitutionalists themselves). The Charter is and remains a treaty and must be
interpreted and applied in accordance with the law of treaties and general international
law.194
4. A System Based on Customary International Law
74 Even if the UN Charter is regarded as a treaty its provisions establishing a system of
collective security may still be binding on non-members, not by virtue of Art 2(6), but
because the provisions have given rise to norms of customary international law. The
Vienna Convention on the Law of Treaties makes it clear that the pacta tertiis
principle does not preclude a rule set forth in a treaty from becoming binding upon
third parties as a rule of customary international law.195 This is not to say that the
Charter as a whole, from the outset, has been part of customary international law but
192 See Kelsen, 109-10; Ross, 40; Verdross, 445; Jiménez de Aréchaga, Derecho constitucional de las Naciones Unidas: comentario teórico-prático de la Carta (1958) 66. For the UN Charter as the ‘constitution of the international community’, see also Simma (n 4) 258-62; Tomuschat, 256; Franck, ‘Is the UN Charter a Constitution?’, in Frowein et al (eds), Verhandeln für den Frieden: Liber Amicorum Tono Eitel (2003), 95, 97; Fassbender (n 62) 9, 78-82, 109-14, 147-48. 193 For a critique of constitutionalist thinking and its application to Art. 2(6), see Kammerhofer, 723-40; Wood, ‘The Security Council and the “Constitutionalization” of International Law’, (2007), http://www.law.leeds.ac.uk/assets/files/research/cfig/cfig_report_07.pdf. 194 Similar Conforti/Focarelli, 10-12; Osteneck (n 120) 292-307 (with numerous further references). 195 VCLT, Art 38.
39
that the provisions establishing the collective security system have become accepted
as such over time.
75 The practice of UN organs, especially the SC,196 the opinion expressed by member
States,197 and the consistent and uniform practice of non-member States198 suggest
that at least since the 1990s the provisions of the Charter dealing with international
peace and security have acquired the status of rules of customary international law
that are binding on non-members, both States and non-State actors alike,
independently of the Charter.199 With regard to non-State actors such customary rules
of international law could be brought about without any involvement on their part.200
196 See above MN 46-54. 197 See above MN 64-65. 198 See above MN 55-63. 199 See also Tzanakopoulos, Disobeying the Security Council (2011) 78 (with further references); Chesterman, ‘Who Needs Rules? The Prospects of a Rules-Based International System’ (2006) 3 n 1, http://www.iilj.org/research/documents/panel_2_report.pdf. For earlier views that non-members are bound by the peace and security provisions of the Charter as customary international law, see Ross, 32; Gunter, 146 m 62. See also ILC Yearbook 1964-I, 67 [6] (Waldock), 69 [32] (Yasseen), 72 [55] (Tunkin), 74 [6] (Pal). Contra McNeill, 7-9, 11. 200 cf the creation of rules of customary human rights law, humanitarian law and international criminal law creating rights and duties for individuals.