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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

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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 I. The United Nations and Non-Member States II. Article 2(6) and the pacta tertiis Rule III. Nature of the Provision IV. Practical Significance of the Provision B. Historical Background I. Article 17 of the Covenant of the League of Nations II. Drafting History of Article 2(6) III. Draft Declaration on the Rights and Duties of States C. The Addressees of the Obligation I. The United Nations Organization II. Member States of the United Nations III. Non-Member States 113 12 38 9 1013 1423 1415 1620 2123 2429 2425 2627 2829

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3 D. The Text of the Provision I. Shall ensure II. States which are not Members of the United Nations III. Act in accordance with these Principles IV. So far as may be necessary for the maintenance of international peace and security E. Article 2(6) as Precursor of a Universal System of Collective Security Based upon the UN Charter I. A Universal System of Collective Security Based upon the Charter Charter III. United Nations and State Practice 1. Decisions Addressed to all States, International Organizations and other Non-State Actors 2. 3. Non-Member States and Other Actors as Target of Preventive and Enforcement Measures Implementation of Preventive and Enforcement Measures by Non-Member States (a) Early Practice (b) Federal Republic of Germany prior to 1973 (c) Republic of Korea prior to 1991 (d) Switzerland prior to 2002 (e) Cook Islands 4. Opinion of Member States IV. The ICJs Namibia and Kosovo Advisory Opinions V. Legal Basis of a Universal System of Collective Security 1. 2. 3. 4. The Reparations of Injuries Approach: Objective Security Order The Charter as an Objective Regime The Charter as the Constitution of the International Community A System Based on Customary International Law 5563 56 57 58 5962 63 6465 6667 6875 6970 71 7273 7475 5154 4650 II. Indications of a Universal System of Collective Security in the 4243 4465 3975 3941 3738 3038 3031 32 3336

4 SELECT BIBLIOGRAPHY Bindschedler, R. L., La Dlimitation des comptences des Nations Unies, Rec. des Cours 108 (1963I), 306423. Das Problem der Beteiligung der Schweiz an Sanktionen der Vereinten Nationen, besonders im Falle Rhodesiens, ZaRV 28 (1968), 115. 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), 75104. Braud, P., Recherches sur ltat 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), 256268. Cahier, P., La Charte des Nations Unies et les tats tiers, in Current Problems of International Law (Cassese, A. ed., 1975), 81105. Le Problme des effets des traits lgard des tiers, Rec. des Cours 143 (1974-III), 589736. Combacau, J., Le Pouvoir de sanction de lONU (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: ber die Praxis und die Mglichkeiten der internationalen Organisationen, Politische Vierteljahresschrift 9 (1968), 5681. 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), 185241. Frowein, J. A., Die Vereinten Nationen und die Nichtmitglieder, EA 25 (1970), 25662. Gunter, M. M., Switzerland and the United Nations, IO 30 (1976), 12952. Hagemann, M., Der Beitritt der Schweiz zum Statut des Internationalen Gerichtshofes und die schweizerische Neutralitt, Schweiz. Jb. Internat. Recht 5 (1948), 11754. Hsueh, S.-S., LONU et les tats non Membres (1953). Kalala, T., Les resolutions de lONU et les destinataires non-tatiques (2009). Kammerhofer, Jrg, Constitutionalism and the Myth of Practical Reason: Kelsenian Responses to Methodological Problems, Leiden JIL 23 (2010), 72340. Katzarov, C. von, Die Stellung der Nichtmitglieder der Vereinten Nationen, Archiv VR 3 (1951/2), 122. Kojanec, G., Trattati e terzi stati (1961). Lo Statuto delle Nazioni Unite e gli Stati non membri, Comunit internazionale 23 (1968), 63248.

5 Krafft, M.-C./Threr, D./Stadelhofer, J.-A., Switzerland, in National Implementation of United Nations Sanctions: A Comparative Study (Gowlland-Debbas, V. ed., 2004), 52379. Kunz, J.L., Revolutionary Creation of Norms in International Law, AJIL 41 (1947), 11926. 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 Grundstze der Vereinten Nationen, Der Staat 7 (1968), 43145. McNeill, J. H., Regional Enforcement Action Under the United Nations Charter and Constraints Upon States Not Members, Cornell ILJ 9 (1975/76), 123. Prevost, J. F., Les Effets des traits conclus entre Etats lgard 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, ZaRV 29 (1969), 257 315. Scheuner, U., Die Vereinten Nationen und die Stellung der Nichtmitglieder, in Vlkerrechtliche und staatsrechtliche Abhandlungen. Festschrift Bilfinger (Schreiber, G./Mosler, H. eds., 1954), 371403. Schindler, D., Kollektive Sicherheit der Vereinten Nationen und dauernde Neutralitt der Schweiz, SZIER 2 (1992), 43579. Soder, J., Die Vereinten Nationen und die Nichtmitglieder. Zum Problem der Weltstaatenorganisation (1956). Threr, D., UN Enforcement Measures and Neutrality: The Case of Switzerland, Archiv VR 30 (1992), 6985. Tomuschat, C., Obligations Arising for States against Their Will, Rec. des Cours 241 (1993-IV), 195373. Vellas, P., Contribution ltude des obligations la charge des tiers en droit international public (larticle 2 6 de la Charte des Nations Unies) (1950). Verdross, A., Le Nazioni Unite e i terzi Stati, Comunit internazionale 2 (1947), 43948. Vitzthum, W. Graf, Article 2(6), in The Charter of the United Nations: A Commentary (2nd edn., Simma, B. ed., 2002), 1408. Widdows, K., Security Council Resolutions and Non-Members of the United Nations, ICLQ 27 (1978), 45962.

6 A. I. 1 Introduction THE UNITED NATIONS AND NON-MEMBER STATES 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 nonmembers 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 nonmember 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. 3 ARTICLE 2(6) AND THE PACTA TERTIIS RULE 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

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.

7 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
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Lauterpacht (n 5) 928. 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; Jimnez de Archaga, Derecho constitucional de las Naciones Unidas: comentario terico-prctico 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.

8 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 ILCs 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. 9 NATURE OF THE PROVISION 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. 10 PRACTICAL SIGNIFICANCE OF THE PROVISION 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

See UN Charter, Arts 11(2), 34, 36-38. 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 Vlkerrechtsdelikt in von Mnch (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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9 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) (ii) States which choose to stay outside the UN (Vatican City State, Cook Islands) States which withdraw from the UN (Indonesia, 20 January 1965 to 19 September 1966 24)

CPF/Mahiou (3rd edn) 482. 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 Indonesias 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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10 (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 Cyprus 25) (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. I. 14

Historical Background ARTICLE 17 OF THE COVENANT OF THE LEAGUE OF NATIONS 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

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See SC Res 541 (18 Nov 1983), SC Res 550 (11 May 1984). See CPF/Mahiou (3rd edn) 475-76. 27 See Simma/Vitzthum (2nd edn) 142 MN 4. 28 See Verdross, 441.

11 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 Courts 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. 16 DRAFTING HISTORY OF ARTICLE 2(6) 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, nonmember 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,
cf VCLT, Art 36. 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, Larticolo 17 del Patto della S.D.N. ed il diritto internazionale consuetudinario (1925) 3 RDI 177-85; Bavaj, Linterpretazione dellart. 17 del Patto della Societ delle Nazioni (1931); Weinberg, Vlkerbund 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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12 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 nonmember 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

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UNCIO III, 337; VI, 348. 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. 21 DRAFT DECLARATION ON THE RIGHTS AND DUTIES OF STATES 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

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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

For suggestions of minor rephrasing, see UNCIO III, 36 (Uruguay), 180 (Mexico). 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.
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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. I. 24

The Addressees of the Obligation THE UNITED NATIONS ORGANIZATION 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 membership 58 and to allow non-members to participate in international conferences held under the auspices of the UN. 59

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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.

See ILC Yearbook 1949, 113-16, 144; especially the statements of Hsu, Spiropoulos, Brierly, and Sandstm. See McNeill, 5; Kojanec, Comunit 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].
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15 II. 26 MEMBER STATES OF THE UNITED NATIONS 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. 28 NON-MEMBER STATES It has been argued that Art 2(6) imposes, at least indirectly, obligations also upon nonmember 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

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.

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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. I. 30

The Text of the Provision SHALL ENSURE 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

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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 nonforcible 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 67

SC Res 314 (28 Feb 1972) [2] (emphasis added). 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, Comunit internazionale 636. 69 See UNCIO III, 36 (Uruguayan proposal on rephrasing of para 6).See also Verdross, 441; Ross, 33.

17 II. 32 STATES WHICH ARE NOT MEMBERS OF THE UNITED NATIONS 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. 33 ACT IN ACCORDANCE WITH THESE PRINCIPLES 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 nonmember 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 Organizations 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

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 prambule de la Charte: base idologique de lO.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, Comunit internazionale 638-39.

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18 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 nonmember 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
See GA Res 264 (8 Oct 1948) [1]. 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].
78 77

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--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

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.

83

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. 39

A UNIVERSAL SYSTEM OF COLLECTIVE SECURITY BASED UPON THE UN CHARTER 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

RP I, 52; RP 3 I, 176. See also GA Res 1353 (21 Oct 1959) on the human rights violations by the nonmember 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.

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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. 42 INDICATIONS OF A UNIVERSAL SYSTEM OF COLLECTIVE SECURITY IN THE CHARTER 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

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.

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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 nonmembers. 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. 44 UNITED NATIONS AND STATE PRACTICE 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 96

See Kelsen, 106. 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 nonmember 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

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.

100

24 1. Decisions Addressed to all States, International Organizations and other NonState 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

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 ICJs Namibia advisory opinion, [1971] ICJ Rep, 16, 56 [126].

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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

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].

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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

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 Europische 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.

118

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: Rhodesia 124 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 Milutinovi. The ICTYs 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-tatiques et les ractions l`illicite dans la socit 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).

28 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 SCs 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

UN Doc. A/CN.4/488 (25 Mar 1998) 95. ICTY Trial Chamber III, Prosecutor v Milan Milutinovi 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.
129

128

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. 55 Implementation of Measures by Non-Member States 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 nonmember 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--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 SCs 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

See UN Doc S/4417 (6 Aug 1960) 5. The S-Gs 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).

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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

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

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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 ZaRV 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 Switzerlands 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/Threr/Stadelhofer, 525. 149 SC Res 661 (6 Aug 1990), 670 (25 Sep 1990). See Threr, 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/Threr/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/Threr/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
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 matire de droit international public 1994 (1995) 5 RSDIE 647, 653 (translation provided)). 160 cf Bindschedler (1968) 28 ZaRV 2, 9. 161 Hannikainen, Peremptory Norms (Jus Cogens) in International Law (1988) 223; Threr, 72; Hailbronner, Sanctions and Third Parties and the Concept of International Public Order (1992) 30 AVR 2, 11-12; Krafft/Threr/Stadelhofer, 527, 549, 566. 162 Schindler, 458-64; Linsi, Gegenmassnahmen in der Form des Embargos zur Durchsetzung elementarer Vlkerrechtsverpflichtungen in der schweizerischen Aussenpolitik (1994) 103-16; Schaub, Neutralitt und Kollektive Sicherheit (1995) 124-25. See also Tomuschat, 256-57.
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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. 64 Opinion of Member States 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

But see Threr, 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 (nonmember) 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 lIndonsie des Nations Unies (1965) 11 AFDI 498, 512-14.

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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 SCs decision, the United States argued, this failure would be a violation of Charter provisions and obligations. 172 IV. 66 THE ICJS NAMIBIA AND KOSOVO ADVISORY OPINIONS 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 Courts 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 nonmember 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 Courts advisory opinion in the SC in 1971, the representative of Guyana stated
SCOR, 29th year, 1798th meeting (22 Oct 1974) 14 [95]. 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 rgime 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 raction dcentralisees lillicite (1990) 152. 175 See SC Res 301 (20 Oct 1971) [6], [11] and [15].
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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 Courts 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

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 berg, 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 tatiques des rsolutions du Conseil de scurit in Socit franaise 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

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36 V. 68 LEGAL BASIS OF A UNIVERSAL SYSTEM OF COLLECTIVE SECURITY 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. 69 The Reparations for Injuries Approach: Objective Security Order 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

Kosovos 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 nonmember 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, Vlkerrechtlicher Vertrag und Drittstaaten (1988) 28 Berichte der deutschen Gesellschaft fr Vlkerrecht 9, 15.

37 revolutionized international law. 185 Most authors therefore limit the dictum to the question of the UNs legal personality. 186 The problem with this line of argument much like with the ICJs 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. 71 The Charter as an Objective Regime 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 ICJs 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. 72 The Charter as the Constitution of the International Community 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
The UNs legal counsel had taken a different view arguing that the UNs 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.
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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. 74 A System Based on Customary International Law 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

See Kelsen, 109-10; Ross, 40; Verdross, 445; Jimnez de Archaga, Derecho constitucional de las Naciones Unidas: comentario terico-prtico 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 fr 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.

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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 States 198 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

See above MN 46-54. 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.
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196