Quick Bleg About the Security Council

by Kevin Jon Heller

Can anyone point me toward a good discussion — historical and/or theoretical, preferably both — of the ability (or inability) of the Security Council to adopt resolutions that are binding on states that are not members of the UN?

http://opiniojuris.org/2013/09/13/quick-bleg-security-council/

12 Responses

  1. Widdows, ICLQ 1978, 459; Bindschedler, ZaoRV 1968, 1; Zemanek, ZaoRV 1968, 16; Talmon, Article 2(6), in Simma, Charter of the United Nations, 2012, 261-262; Peters, Article 25, in Simma, Charter of the United Nations, 2012, 800.

  2.  The Contemporary Legal Nature of UN Security Council Ceasefire Resolutions’, co-authored with C.Henderson, Leiden Journal of International Law, Volume 26, Issue 2, 2013.

  3. Thanks! But Andre, what is ZaoRV?

  4. Eric David’s commentary on Article 34 VCLT in Corten and Klein’s Commentary, paragraph 13:
    “13.  ‘Stand guaranteeobligations:49 although the relative effect of treaties excludes the possibility that they may confer rights or obligations to States not parties to them, clauses requiring that States parties obtain a specific behaviour from a third State are sometimes presented as exceptions to that principle. Such is the case of Article 2(6) of the Charter of the United Nations, mistakenly referred to by India as imposing ‘corresponding obligations upon non-member States’.50 It is obvious that this provision does not constitute an exception to the principle of the relative effect, since there is no obligation being imposed (p. 893) on third States. According to the terms of Article 6(2), only the UN is obliged to ensure that non-member States comply with the principles of the maintenance of international peace and security; the Article does not imply that non-member States are bound by those principles.51 Despite this, it must be noted that in practice, the Security Council does not forego the multiplication of resolutions requiring that ‘all States’52 do or abstain from doing something, without concern as to whether the addressees of those resolutions are members of the United Nations.53 Even if there are not many third States to the UN, could it be said that they are bound by its mandatory resolutions? Notably, before Switzerland became a member of the United Nations in 2002, it reserved the right to carry out, or not carry out, those resolutions.54
    Available online at: http://opil.ouplaw.com/view/10.1093/law/9780199546640.001.0001/law-9780199573523-chapter-69#law-9780199573523-div3-2122
     

  5. @ Kevin: ZaoRV = Zeitschrift für ausländisches öffentliches Recht und Völkerrecht = Heidelberg Journal of International Law 

  6. Sorry about that: Zeitschrift für öffentliches Recht under Völkerrecht (Heidelberg Journal of International Law). The contributions are in German, but had (or tended to have) an English summary. What I remember from my Ph.D. times is that both States (Austria and Switzerland) implemented SC sanctions (investigated with respect to those imposed against Rhodesia) while affirming that they were not legally bound to do so. Their focus, however, was on the question of their neutrality.

  7. Forgot about the ‘a’ in the abbreviation: Zeitschrift für ausländisches öffentliches Recht under Völkerrecht.

  8. The Korean War, although at the time North and South Korea were not recognized as “states” by all countries.

  9. You may also wish to have a look at the ICTY Trial Chamber decision of 6 May 2003 on the Defence Motion Challenging Jurisdiction in The Prosecutor v. Milan Milutinovic, Dragoljub Ojdanic and Nikola Sainovic. Footnote 109 cites Kelsen and Brownlie as making your point directly, even if the decision itself does not go quite that far.

  10. Added also are:
    1) Richard A. Falk, The Authority of the United Nations over Non-Members (Princeton, N.J.: Princeton University, 1965), regarding the authority of the UN and the League of Nations over non-members, particularly the meaning of Article 2(6) of the Charter.
    2) Finn Seyersted, Common Law of International Organizations (Leiden; Boston: Martinus Nijhoff Publishers, 2008) at 380–390, regarding the objective personality.
     

  11. Thanks to all! I appreciate it. The power of the interwebs.

  12. And of course the ICJ Namibia advisory opinion, para. 126.

    In addition to the references provided above, especially Widdows 1978, see Cahier, “La Charte des Nations Unies et les Etats tiers”, in A. Cassese (ed.), Current Problems of International Law (1975), pages 99–100 (in French).

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