1.

SOURCES OF INTERNATIONAL LAW

For a rule of international law to be binding, it must be derived from one of the recognized sources
provided by Article 38(1) of the Statute of the International Court of Justice 1945. They are the
authoritative and conventional sources of international law being an integral part of the United Nations
Charter8. The Article provides thus, ‘Article 38.1. The Court, whose function is to decide in accordance
with international law such disputes as are submitted to it, shall apply:

a. international treaties, conventions, whether general or particular, establishing rules expressly

recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of law’

Clearly therefore, the above section list identifies five sources of international law;

(a) Treaties between States;

(b) Customary international law derived from the practice of States;
(c) General principles of law recognized by civilised nations; and, as subsidiary means for the
determination of rules of international law:
(d) Judicial decisions and the writings of “the most highly qualified publicists

The above list, in hierarchical order, is used by the international court of justice to settle dispute arising
between states. However, experts in the field of international law expressed divergent opinions on the
interpretation of Article 38 (1) (a)-(d) of the ICJ Statute. One of the opinion is that the sources of
international law listed in Article 38(1) (a)-(d) are to be treated and used equally without priority given
to any one of them, while others opined that the provisions in Article 38 (1) (a)-(c) are different and
have priority over the provision of Article 38 (1) (d).

In terms of hierarchy, China for example, adopts treaties as having priority over customary international
law and other sources. This is believed to be as a result of Chinas’ perceived domination of the
development of customary international law by the West. As such, customs are inapplicable by the laws
of China.

Similarly, sources of international law are traditionally distinguished into material sources and formal
sources. Material sources are those relating to the place usually a document where the rules or terms of
an agreement are stated, this may be a convention, treaty, resolution of the United Nations or even a
statement in a textbook. The formal sources on the other hand, are those recognized by Article 38 (1) of
the Statute of the International court of justice as mentioned above. However, these sources of
international law are to a large extent seen to be state oriented rather international and different from
municipal laws.
Although Articles 38 (1) of the statute of the ICJ have been provided in principle to provide guide and
directions to the International Court of Justice in administering justice, it is mentioned whenever there is
any meaningful discussion on the sources of international law. It is frequently referred to and reproduced
in subsequent instruments of international law even though it is only limited to the International Court of
Justice.

Treaties

Treaties (sometimes called agreements, conventions, exchanges of notes or protocols) between States –
or sometimes between States and international organizations – are the other main source of law. Strictly
speaking a treaty is not a source of law so much as a source of obligation under law. Treaties are binding
only on States which become parties to them and the choice of whether or not to become party to a
treaty is entirely one for the State – there is no requirement to sign up to a treaty. A treaty becomes
binding on those States which have become parties to it, on the basis of th e principle of pacta sunt
servanda – which requires all States to honour their treaties. That is why treaties are more accurately
described as sources of obligation under law.

Moreover, even where a treaty provision is not intended to be codificatory but rather is an innovation
designed to change the rule, it can become part of customary law if it is accepted in practice. Per the
North Sea Continental Shelf cases (1969): ‘Although the passage of only a short period of time is not
necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis
of what was originally a purely conventional rule, an indispensable requirement would be that within
the period in question, short though it might be, State practice, including that of States whose interests
are specially affected, should have been both extensive and virtually uniform in the sense of the
provision invoked; - and should moreover have occurred in such a way as to show a general recognition
that a rule of law or legal obligation is involved.’ (ICJ Reps, 1969, p. 43)

Customary International Law

Customary law is both the oldest source and the one which generates rules binding on all States.
Customary law is not a written source. A rule of customary law, e.g., requiring States to grant immunity
to a visiting Head of State, is said to have two elements. First, there must be widespread and consistent
State practice – ie States must, in general, have a practice of according immunity to a visiting Head of
State. Secondly, there has to be what is called “opinio juris”, usually translated as “a belief in legal
obligation; ie States must accord immunity because they believe they have a legal duty to do so. As the
ICJ has put it:- ‘Not only must the acts concerned be a settled practice, but they must also be such, or be
carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the
existence of a rule requiring it. … The States concerned must feel that they are conforming to what
amounts to a legal obligation.’ (North Sea Continental Shelf cases, ICJ Reps, 1969, p. 3 at 44)

However, customary laws require closer examination. So far as practice is concerned, this includes not
just the practice of the government of a State but also of its courts and parliament. It includes what
States say as well as what they do. Also practice needs to be carefully examined for what it actually says
about law. The fact that some (perhaps many) States practise torture does not mean that there is not a
sufficient practice outlawing it. To quote from the ICJ’s decision in the Nicaragua case: ‘In order to
deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should
in general be consistent with such a rule; and that instances of State conduct inconsistent with a given
rule should generally have been treated as breaches of that rule, not as indications of the recognition of
a new rule.’ (ICJ in Nicaragua ICJ Reps, 1986, p. 3 at 98.)

General Principles

While treaties and custom are the most important sources of international law, the others mentioned in
Article 38 of the ICJ Statute of the ICJ should not be ignored. General principles of law recognized by
civilized nations – the third source – are seldom mentioned in judgments. They are most often employed
where the ICJ or another international tribunal wants to adopt a concept such as the legal personality of
corporations (e.g. in the Barcelona Traction Co. case (1970)) which is widely accepted in national legal
systems. But international law seldom adopts in its entirety a legal concept from a particular national
legal system; instead the search is for a principle which in one form or another is recognized in a wide
range of national legal systems.

Judicial Decisions

Article 38(1)(d) refers to judicial decisions as a subsidiary means for the determination of rules of law.
In contrast to the position in common law countries, there is no doctrine of binding precedent in
international law. Indeed, the Statute of the ICJ expressly provides that a decision of the Court is not
binding on anyone except the partiers to the case in which that decision is given and even then only in
respect of that particular case (Article 59).

Nevertheless, the ICJ refers frequently to its own past decisions and most international tribunals make
use of past cases as a guide to the content of international law, so it would be a mistake to assume that
“subsidiary” indicated a lack of importance. Article 38(1)(d) does not distinguish between decisions of
international and national courts. The former are generally considered the more authoritative evidence of
international law on most topics (though not those which are more commonly handled by national
courts, such as the law on sovereign immunity). But decisions of a State’s courts are a part of the
practice of that State and can therefore contribute directly to the formation of customary international
law.
2. COLLECTIVE SECURITY

Georg Schwarzenberger, the noted German power-political conceptualist in the realm of international
law, postulates the institutionalization of the lawful use of force in the international community.
According to him, what is required in this connection is a multilateral treaty whereby contracting parties
create an international agency vested with the power to employ force against aggressors and perhaps
other law-breakers. Such an instrument is basically introverted in character designed against a potential
future aggressor from among the contracting parties and may be classified as a collective self-defense
treaty which is extroverted envisaging aggression from outside the system.

Collective security holds with a lot of importance the fundamental premise that recourse to force against
aggression must be made by those who are not the immediate and direct victims. Collective security
operates on the strength of an authoritative decision made by an organ of the international community.
Collective security adopts a universalistic approach which requires universal participation in a system of
multilateral response to any potential threat against any individual state. It asserts that the peace of the
international community can be maintained through a binding predetermined agreement to take
collective action to preserve it.

Collective security does not require predetermined enemies, since the presumed aggressor can be any
member of the system, unknown beforehand. As Inis Claude, the reputed Professor Emeritus of
International Relations at the University of Virginia noted, collective security recognizes no traditional
friendship and no hardened enmities and permits no alliances with or alliances against. He says that any
illegal threat or use of force by any sovereign member of the international community against any other,
potential or real should trigger the combined force of all the rest. It expects to combine so much
collective power in opposition to that of a lawbreaker that the latter should be constrained from the self-
defeating illegal action by that threat or quickly be repulsed by the community’s action if it should
persist in its warlike course.

A collective security system is essentially a system for the management of means. Strictly speaking the
members of the system and its organs need not be concerned with the substance of the issue over which
aggression is committed. It isn’t necessary to consider the intrinsic merits of the dispute. The system is
involved with the penalization of disturbers to peace without too much consideration of the factors that
make the peace susceptible to disturbance and members must be willing to curb aggression without
regard to any underlying sympathies they may have.

Technically the system of collective security has two functions to perform: It should act as a deterrent to
potential aggression and at the same time impart a sense of security to all participating states. Following
an early post-war United Nations Economic and Social Council (UNESCO) report, collective security
was defined as consisting of three distinct sets of policies: the regulation of armaments, the pacific
settlement of disputes and collective action. In the light of these facts collective security can be defined
as a system in which each state in the system accepts that the security of one is the concern of all. Each
state agrees to join in a collective response to aggression to defend the status quo.

The UN was established to provide collective security around the globe and seal the loopholes of the
League of Nations. Historically, it has offered more effective machinery for the operation of the
collective security mechanism, so far. The UN successfully substituted the limited prohibition of war for
a more comprehensive proscription of the threat or use of force and put the self defence and enforcement
to the control and supervision of the security council. Its membership is more universal and it
incorporated more elaborate provisions for both economic and military sanctions. However, the UN was
never tested as a collective security apparatus during the Cold War because of the East-West cleavage,
during which time the veto power was misused along state interest lines. Power was no longer diffused
but was instead concentrated on the two blocs. During the cold war, the UN only authorized states to use
force in response to an act of aggression in two conflicts: The Korean War in 1950 and during Iraq’s
invasion of Kuwait in 1990. This was partly because of the veto powers of the five permanent members
and also the lack of political will both to initiate enforcement action and to bear its consequences.

Since the cold war ended, there has been much talk in the West about building a collective security
system. The success of the American led coalition that pushed Iraq out of Kuwait led some experts to
conclude that the UN might finally be ready to operate as a collective security institution. The
annexation of Kuwait in August 1990 was a clear-cut case of aggression of one member state against
another. It was eventually followed by the authorizing of an enforcement force against Iraq under
Chapter VII of the Charter.

Security Council Resolution 678 authorized member states cooperating with Kuwait’s legitimate
government to use all necessary means to expel Iraq from Kuwait. Similarly military action has been
authorized in the former Sudan, Yugoslavia, Somalia and East Timor. Be as it is, the ideal of
establishing a full-fledged collective security mechanism has been neither realized nor abandoned. The
goal has been pursued more ardently and consistently in words than in deeds and statesmen have
regularly turned to other objectives when confronted with concrete situations of urgency.

The world and more specifically the UN faces legal, political and institutional obstacles that hinders the
satisfaction of the essential requirements for permitting the operation of a collective security system, and
such a system, even if feasible, is in fact a less attractive ideal than it has often been considered. With
the above historical analysis, the ability of putting into practice such a doctrine backed up by a universal
ideology remains a miracle, but once such a system is established, it will not work miracles but realities.
This statement upholds that the UN as a doctrinal system has been faced by some obstacles that hinder
the organization from attaining the maximalist assumptions of its underlying principle

The contemporary concept of collective system in the UN today has been muddled by its modus
operandi. The challenge faced by the UN system comes as a result of legal, political and institutional
obstacles that saw the Iraq war affecting international system and international organizations greatly – as
something unusual which is antithetical to collective security. Today it can be argued that the UN Iraq
action was not an example of collective security but it was an unprecedented collective military
operation taken on behalf of the UN.

3. LEGAL STATUS OF THE UNO & ITS ORGANS

Although from today’s perspective one must admit that legal personality belongs to the key theoretical
problems of international law, such an approach has been elaborated relatively late in the development
of the law of nations. The creation of the United Nations forced the ICJ to formulate some important
requirements relating to the recognition of legal personality of international organizations.

International personality is in principle indivisible, and its scope should be the same with respect to all
primary (states) and derivative or secondary (all other subjects including non-state actors, sometimes
called non-state participants in international relations) actors. There is no doubt that every state
possesses legal personality; doubt can exist, however, as to a qualification of a particular subject as a
state (an example of Palestine is especially striking from the point of view of international theory and
practice).

There are four elements connected with international legal personality: a treaty-making power (often
referred to as jus tractatuum), a right to send and receive diplomatic envoys (jus legationis), a right to
present claims based on international responsibility, and a right to use armed force. Consequently, every
international subject must possess these features. We have to make a distinction between the
international legal personality and competence to act in international relations. Those powers should be
provided in a statute (founding treaty) of the international organization concerned, or – with respect to
other non-state actors – in any instrument defining or confirming their international legal status. An
option to undertake an effective international action opposable to other subjects and shaping the
international position of the entity concerned is an indispensable element of the international legal
personality. A mere fact of possessing rights and obligations based on international law is not sufficient
to claim international personality. Such rights and duties must be based upon an international agreement
concluded between the states or other subjects of international law, and they are binding exclusively if
accepted by them.

Two theories have been formulated during the recent decades to define the legal personality of
international organizations. The objective one was proposed by F. Seyersted; the subjective was
popularized by D. Bowett. According to the objective concept, an international organization can be
granted the legal personality notwithstanding its statute, if some objective criteria required by (general)
international law are met. The partisans of the dominant, subjective theory maintain that the legal
personality can be either based on express provisions of the founding (constitutional) treaty, or implied
from powers, rights and obligations imposed upon the organization by the member states. In fact, both
theories suggest that international legal personality and particular powers to act are somehow connected
with the will of the member states.

The World Court in an advisory opinion on the international legal position of non-state actors
emphasized that international subjects can possess different scopes of powers. The Court used the
opportunity presented before it on 11 April 1949 concerning the reparation for injuries suffered in the
service of the UN to formulate a general theory of the legal personality of international organizations.
The opinion was applicable to the United Nations as the universal organization with nearly general
participation, where the will of the member states was decisive for a legal personality to vest itself on
the UN. The Court stated that if the member states conferred upon the organization certain powers, they
had to grant the UN certain scope of legal personality. In fact Art.104 of the Charter provides for a legal
personality, limiting it to domestic legal orders of the member states. Though a proposal to grant
international legal personality was rejected at the San Francisco conference, yet the court stressed that it
was assumed that the personality would derive from the Charter as a whole by concurrence of member
states. The power of the UN to send diplomatic agents was indispensable to perform the functions of the
UN, and since those agents had to be protected under international law, hence the Court based on the
doctrine of implied and conferred powers confirmed UN as a subjective legal entity based on its actions
in the international plane. Clearly, the ultimate power over UN and its legal status remains with its
member states. If, the member states choose to dissolve an international organization that they have
created, the legal entity shall extinguish immediately. This principle is currently universally accepted.
4. THE VETO POWER

The United Nations Charter confers, on the permanent members of the Security Council, a unilateral
right to veto Security Council resolutions on non-procedural matters. The relevant section in Article 27
of the UN charter reads:

“Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine
members.”

In fact, the UN charter does not explicitly use the words: veto power. When a draft resolution on non-
procedural matters is set before the council for vote the affirmative vote of nine council members as well
as the agreeing vote of the permanent members is required for the successful passing of the resolution.
Should a permanent member cast a dissenting vote on a non-procedural draft resolution that resolution
may not pass. Whereas should a permanent member not particularly agree with a proposed resolution
but that permanent member does not wish to cast a dissenting vote that member may simply abstain
from the vote allowing the resolution to pass, should it obtain the required minimum number of
concurring votes.

However while an abstention by a permanent member on non-procedural resolutions may not have a
direct ostensible impact on the outcome of the resolution the persuasive nature of a permanent member’s
abstention on the remaining council members must be noted. Therefore, permanent members possess a
right to veto Security Council resolutions on non-procedural matters. The distinction between procedural
matters and non-procedural matters lies in the fact that procedural matters are related to the operating
methods of the council. Procedural matters relate to the decisions made under article 28 to 32 of the UN
charter.

The rationale for the veto power can be ascertained from the commonality of statements of the
representatives of the United Kingdom, United States of America as well as the Soviet Union is that the
instrumentality of Veto is required for the purpose of the Security Council fulfilling its mandate, of
maintenance of international peace and security, the world’s super powers would have to be united and
unanimous with the course of action needed in order to remedy a threat or breach of the peace. Failure
here would result in a failure in fulfilment of the mandate as well as the failure of the UN itself.

The role of the veto power can be better understood when one realizes that the permanent members, of
the Security Council, being the world’s super powers are burdened with the permanent obligation of
maintenance of international peace and security. Without the permanent members the UN would most
likely have failed as the international organization would have considerably less enforcement power.
Therefore the veto power is bartered in exchange for the continued participation of the world’s super
powers in the affairs of the UN.

A situation that has been extremely contentious, in the world as well as behind closed doors in the
Security Council, over the last several years is the Syrian conflict. Over seven draft resolutions related to
the Syrian conflict have been vetoed by either China and/or Russia since 2011. The only draft resolution
related to the Syrian conflict not vetoed by both Russia and China was the last vetoed draft resolution of
12 April 2017 which Russia vetoed and China abstained. Had China and Russia not vetoed draft
resolutions aimed at condemning human rights abuses in Syria and restoring peace, through ceasefire
agreements, the Islamic State in Iraq and the Levant (ISIL, also known as Da’esh) may not have risen to
prominence. The veto power is indirectly responsible for the rise of the Islamic State through creating
the space in which foreign Islamic combatants could organize and develop to become a transnational
terrorist organization. Today the Islamic State is a threat to international peace and security as declared
by the Security Council. One cannot help but think that these circumstances may have been avoided if
the China and Russia did not exercise their veto powers.

As such, debates over the issue of the veto power have existed for several years to the extent that some
commentators are of the opinion that the issue has been debated since the inception of the United
Nations itself. The first argument for the continued use of the veto power borrows from the reason of the
veto power’s existence. The veto power exists in its present form because the founding members of the
United Nations had no choice but to grant the world’s super powers this mighty tool as a quid pro quo
for the participation of the world’s super powers in the endeavor of an international organization
representing the interests of peaceable states across the world.

One argument against the veto power considers how the United Nations uses “Soft Power” in order to
fulfil its goals and objectives. Under this argument it is stated that the impact of the United Nations can
be seen when the UN legitimizes and delegitimizes actions taken across the world by different actors
through the UNSC resolutions. Here, the veto power proves to be a complete impediment to this method
and without the veto power more resolutions, either condemning or praising certain conduct, would be
passed and as a result the objectives of the UN would be furthered.

Pro-veto authors also opine that the removal or adaptation of the Security Council or veto power is
unnecessary as any perceived failure of the Security Council in fulfilling its mandate can be rectified by
other measures. Particularly General Assembly resolution 377 which is also known as the “Uniting for
Peace” resolution states that should the UNSC fail to fulfill its mandate as a result of disagreement
between the permanent members in matters related to acts of aggression, breach or threat of breach of
international peace and security the General Assembly will deliberate the matter immediately. This
measure has indeed proven to be useful most notably in the debacle regarding the removal of France and
the United Kingdom’s forces from the Suez Canal which the UK and France both vetoed. The matter
was taken to the General Assembly, following the outline of the Uniting for Peace resolution, where the
resolution was passed and subsequently the UK and France removed their forces from the area.

The detractors of Veto claim that the exercise of the veto power for self-centered reasons at the expense
of the interests of the UN member states is offensive and one may even come to the conclusion that the
veto power has become a tool used to impede the mandate of the Security Council.

While the veto power is indeed a useful tool, which for the most part secures the mandate of the Security
Council through ensuring peaceful relations among the world’s super powers, it is apparent that the
exercise of the veto power can result in a threat to international peace and security and for this reason
the veto power assuredly needs reform. An acceptable reform proposal must consider two important
issues:

1. The concerns the drafters of the UN charter had when creating the UN charter. Particularly to ensure
the pacific relations of the world’s superpowers as a means of securing the mandate of the council.

2. The interests of civilian populations.

The interests of civilian populations is indeed paramount as an exercise of the veto power in cases
regarding human rights violations results in the illegitimacy of the UNSC by way of the growing
disenchantment of UN member states. Furthermore, the inactivity of the Security Council in cases of
human rights violations has also indicated that the solitude and vulnerability of persons subject to human
rights violations serves only to leave the individual more susceptible to radicalization and the
assumption of violent activities as seen in Syria with the Islamic State which has now become a threat to
international peace and security.
5. LEGAL EFFECTS OF RESOLUTIONS OF THE UNSC & UNGA

The legal effects of resolutions of the United Nations Security Council (SC) and General Assembly
(GA), as established in the judgments and opinions of the International Court of Justice (ICJ), differ
according to the type of resolution. The term ‘resolution’ as used in UN practice has a generic sense,
including recommendations and decisions, both of which have a vague and variable meaning in the
Charter. The Court, on the other hand, reserves the expression ‘decision’ for binding resolutions and
‘recommendation’ for non-binding ones.4 A resolution is ‘binding’ when it is capable of creating
obligations on its addressee(s).

It may be noted that a resolution, as a formal instrument, may combine different provisions that,
substantively, respectively recommend, decide or declare. These three expressions used in their
substantive meaning, shall decide whether a ‘resolution’, depending upon its’ context, shall be either be
a generic substantive term or designate the formal instrument.

Other factors relevant for the effects are the conventional or customary legal basis of the resolutions,
their compatibility with the Charter (intra vires or ultra vires), their addressees (one member, some
members, all members, other UN organs), their subject matter (to which the Charter may attach different
legal consequences), their terminology, and, for the possible effects on international customary law, the
ways they are adopted, who and how many vote for and against them, and perhaps even why they do so.

The most fundamental factor is whether the effects are intrinsic or extrinsic. Intrinsic effects stem
directly and immediately from the adoption of the resolution, on the basis of powers supplied by a treaty
or the customary law internal to it (usually the UN Charter, but possibly another treaty making use of the
existing UN institutional structure). Extrinsic effects spring from the resolution but are, due to the
adopting body’s lack of the necessary powers, directly based on international customary law. The
difference between the two hypotheses is the absence or presence, between the resolution and general
international law, of an intermediate legal basis providing the adopting body with the relevant special
powers.

There are three basic types of legal effects. A legal rule, when triggered by a determination that the
conditions for its application are fulfilled, states the obligations, rights and powers that result. A
resolution may therefore have the legal effect of (i) creating obligations, rights and/or powers (which we
shall call ‘substantive effects’), and/or (ii) making determinations of facts (e.g. that an alleged fact is
true) or legal situations (e.g. that an obligation was violated) – which are the ‘causative effects’ that
trigger the substantive effects. To this should be added (iii) how and when the substantive effects
operate (‘modal effects’). Each of these categories has a dual nature according to whether the effects are
intrinsic or extrinsic.

The Binding Effect of GA Decisions

The binding effect of GA decisions is limited, ratione materiae, to organizational matters, but may
cover, ratione personae, the entire UN sphere. Although GA resolutions are recommendatory as a rule,
especially regarding external relations with Member States, the World Court has recognized the binding
legal effect of GA decisions pertaining to the admission of new Member States, voting procedure, or
apportionment of the budget, and in general has confirmed that the World Court possesses certain
powers of decision.

Resolutions of the GA have no binding effect in the operational realm of international peace and
security. Neither the GA’s budgetary powers in this area, nor its enforcement powers to suspend or expel
UN Members, fall outside of the organizational sphere. Ratione personae, GA decisions obviously bind
their (valid) addressees. They may also bind the UN at large, and consequently all Member States, e.g.,
through their regular contributions to the budget. This generalized effect includes those that voted
against the decision, such as the trustee state in questions pertaining to its trusteeship. So the binding
scope of GA decisions covers the entire internal UN sphere.

The Binding Effect of SC Decisions

The ICJ has not definitively decided whether SC decisions possess an overriding binding effect, but it
has specified that the binding effect includes, ratione materiae, operational matters and covers, ratione
personae, all Member States. Unlike the recommendations of the SC, its decisions have binding force,
but the Court has made only a provisional finding that SC decisions have an overriding normative power
capable of pre-empting obligations flowing from traditional sources of international law. Recognizing
such overriding binding force would give a secondary source of UN law (decisions) a greater normative
value than many primary sources of international law (treaties) – thereby giving the SC a potentially
very disruptive power – and would ultimately place great faith in the SC truly acting on behalf of all
Member States.

Ratione materiae, the binding effect of SC resolutions belongs to the realm of international peace and
security and includes enforcement under Chapter VII of the UN Charter, but is not limited to that. Since
just about any significant international event or situation can be characterized as a threat to peace and
security, the scope of the SC’s binding powers, if combined with an overriding binding force, would
make the SC a dauntingly powerful organ. Whether a specific SC resolution is binding is determined by
the language used in it, the discussions leading to it, the Charter provisions invoked, etc., all with the
purpose of establishing the intent of the SC.

The precise content of the binding effect is left to the SC itself, but the Court has found certain ‘implicit’
legal effects and, inversely, put some limits on the effects when these conflict with the principles and
purposes in Chapter I of the UN Charter. This limitation is too vague to have much practical value in the
absence of any organ competent to review the validity of SC resolutions. Ratione personae, an SC
decision may bind all UN Member States, including ‘those members of the Security Council which
voted against it and those Members of the United Nations who are not members of the Council’.

As for non-Member States, the most coherent interpretation of a difficult passage in the Namibia opinion
rejects any direct binding effect. This interpretation respects the basic principle that treaties only bind
parties, and avoids the difficult question of whether the UN Charter is subject to special rules within the
law of treaties. It also leads to the same practical outcome since just about every state is now a member
of the UN.

Clearly, there is a dichotomy in the legal effects given by the ICJ to GA and SC resolutions. The cause
of this dichotomy is neither the type of resolution, nor the customary or conventional basis of the effects,
nor the legal order affected. It is the difference between the intrinsic nature of the effects based on
special powers and the extrinsic nature of the effects based directly on general international law.

6. VOTING PROCEDURE IN THE UN GA

Voting rights

Rule 82

Each member of the General Assembly shall have one vote.

Rule 834

Decisions of the General Assembly on important questions shall be made by a two-thirds majority of the
members present and voting. These questions shall include: recommendations with respect to the
maintenance of international peace and security, the election of the non-permanent members of the
Security Council, the election of the members of the Economic and Social Council, the election of
members of the Trusteeship Council in accordance with paragraph 1 c of Article 86 of the Charter, the
admission of new Members to the United Nations, the suspension of the rights and privileges of
membership, the expulsion of Members, questions relating to the operation of the trusteeship system,
and budgetary questions.

Rule 844

Decisions of the General Assembly on amendments to proposals relating to important questions, and on
parts of such proposals put to the vote separately, shall be made by a two-thirds majority of the members
present and voting.

Simple majority

Rule 854

Decisions of the General Assembly on questions other than those provided for in rule 83, including the
determination of additional categories of questions to be decided by a two-thirds majority, shall be made
by a majority of the members present and voting.

Method of voting

Rule 874
(a) The General Assembly shall normally vote by show of hands or by standing, but any representative
may request a roll-call. The roll-call shall be taken in the English alphabetical order of the names of the
members, beginning with the member whose name is drawn by lot by the President. The name of each
member shall be called in any roll-call, and one of its representatives shall reply “yes”, “no” or
“abstention”. The result of the voting shall be inserted in the record in the English alphabetical order of
the names of the members.

(b) When the General Assembly votes by mechanical means, a non-recorded vote shall replace a vote by
show of hands or by standing and a recorded vote shall replace a roll-call vote. Any representative may
request a recorded vote. In the case of a recorded vote, the General Assembly shall, unless a
representative requests otherwise, dispense with the procedure of calling out the names of the members;
nevertheless, the result of the voting shall be inserted in the record in the same manner as that of a roll-
call vote.

Conduct during voting

Rule 884

After the President has announced the beginning of voting, no representative shall interrupt the voting
except on a point of order in connection with the actual conduct of the voting. The President may permit
members to explain their votes, either before or after the voting, except when the vote is taken by secret
ballot. The President may limit the time to be allowed for such explanations. The President shall not
permit the proposer of a proposal or of an amendment to explain his vote on his own proposal or
amendment.

Voting on amendments

Rule 904

When an amendment is moved to a proposal, the amendment shall be voted on first. When two or more
amendments are moved to a proposal, the General Assembly shall first vote on the amendment furthest
removed in substance from the original proposal and then on the amendment next furthest removed
therefrom, and so on until all the amendments have been put to the vote. Where, however, the adoption
of one amendment necessarily implies the rejection of another amendment, the latter amendment shall
not be put to the vote. If one or more amendments are adopted, the amended proposal shall then be voted
upon. A motion is considered an amendment to a proposal if it merely adds to, deletes from or revises
part of the proposal.

Voting on proposals

Rule 91
If two or more proposals relate to the same question, the General Assembly shall, unless it decides
otherwise, vote on the proposals in the order in which they have been submitted. The General Assembly
may, after each vote on a proposal, decide whether to vote on the next proposal.

Elections

Rule 924

All elections shall be held by secret ballot. There shall be no nominations.

7. VOTING PROCEDURE IN THE UN SC

Article 27

1. Each member of the Security Council shall have one vote.

2. Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine
members.

3. Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine
members including the concurring votes of the permanent members; provided that, in decisions under
Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.

Rule 40

Voting in the Security Council shall be in accordance with the relevant Articles of the Charter and of the
Statute of the International Court of Justice.

Part I presents developments in procedures related to decision-making and voting.

Part II covers instances in which the procedural or non-procedural nature of a decision is indicated by
the results of the vote taken on it.

Part III is concerned with the Council actually voting upon whether a matter is procedural or non-
procedural. During the period under review, no such vote was taken.
Part IV covers the abstention, non-participation or absence of a Council member in relation to the
requirements of Article 27, paragraph 3. Part V deals with decisions adopted without a vote.

8. SECURITY COUNCIL REFORMS

The United Nations Security Council was created as the central enforcer of a globalizing world, a
beacon of hope for ensured peace and security in the world. To some, it is the ultimate club within a
club, the ways and means to identify areas in the world that need change and then execute it. Its created
purpose within the United Nations in the postwar world was to make certain there wasn't a third world
war by maintaining peace and security for all peoples, even allowing use of force.

That, however, was 75 years ago, and the Security Council no longer reflects the power realities and
geopolitical truths of the 21st Century. The struggles of the UN to address many of the most difficult
problems facing the interional community are well known. There is widespread agreement it needs help.
The Security Council comes in for special concern. Unlike the UN General Assembly, is does not
recognize all 193 Member States as sovereign equals. Instead, it allows 15 countries to make decisions
on many of the most important and dangerous issues facing humanity.

The Security Council grants the ultimate power of veto to five countries who were among the victorious
allies of World War Two, generations ago. The Security Council can do nothing without their support or
abstention. And while the international theater was changing around them, with membership in the
General Assembly rising from 51 to 193 States joining the United Nations, Security Council
membership rose only from 11 to 15. While the Security Council is the principle UN body responsible
for enforcing the UN Charter, critics say it lacks the ability to do so. Its membership is too small and
excludes many of the world’s largest and most powerful states, including major powers like Brazil,
Germany, India, Japan, and South Africa. There are no countries from Africa or Latin America among
the permanent members. Instead, all these countries must complete for the 10 rotating seats on the
Security Council, elected by the General Assembly to terms of two years.

The UN Reform Proposals: Less than twenty‐five with no increase in veto right

The former president of the United Nations General Assembly and an erstwhile chairman of the high-
level panel on threats challenges and change, Razali Ismail, proposed in 1997 that the membership of
Security Council be increased to twenty-four by adding nine new seats to the current fifteen seats. He
favored five new permanent seats without veto (one each for Africa, Asia, the Grulac and two
industrialized States) and four NP seats (one each for Africa, Asia, the Grulac, and EE). The proposal
aimed at promoting representativeness of UN members in the Security Council which in turn would give
legitimacy to the SC. He opined that the reform plan will add regional flavor to the permanent caucus of
the Security Council. However, will the new no veto-seats to be acquired by the developing States and
the two developed States offer any dramatic change in the decision making process in the Security
Council? What will make them (new PMs without veto) relevant in the permanent club of the SC when
the votes of the new-5 are tantamount to votes of NPMs of the Council since the voting pattern would
likely remain without any change being caused to Article 27 of the UN Charter? The new five PMs
would likely become redundant in the exclusive permanent club of the Security Council without a veto.
Among the Member States of the United Nations, some states argued that adding new nine seats to the
Security Council would make the Council too large to make effective and efficient decisions or
resolutions. This may be true to that fact that under the current fifteen members of the Security Council,
compromises and exigent and successful negotiations are difficult to attain. Therefore, as the
membership of the Security Council increases its effectiveness and efficiency in terms performing its
purpose and functions decreases. Therefore, the notion of “the more the merrier” was denounced by
other members of the United Nations. The idea of reforming the UN Security Council did not end with
Razali Ismail reform proposal. It keeps resonating among the Member States of the UN, especially those
in the category of the developing states.

Although, the permanent membership of the Global South is quintessential in the reform of the United
Nations Security Council; because the global influence is now concentrated in Asia and not the West.
However, geographical representation is the main idea behind the quest for the expansion of the
permanent membership of the SC and it is also the same notion behind its opposition. The expansion of
the permanent seats in the UNSC will not result in a balanced geographical representation still. The
question of veto (if the new PMs possess veto powers) and its possible further abuse or purposeful use to
suppress other members of the Security Council will continue to be of great concern in the reform
process of the SC.

Concretely, the request to remove the right to veto or lower its uses in the permanent caucus of the
UNSC may take a form of a wild goose chase. Therefore, regional organizations should maximize the
potential advantage promoted in Chapter VIII, Articles 52-54 of the UN Charter by dramatically
promoting peace and stability in their regions. This way, the veto power of the P-5 or its uses would
decline since the ability to use veto depends on availability of regional security challenges which are of
international importance.

9. CAN UN SC RESOLUTIONS PREVAIL OVER RIGHTS & FREEDOMS OF

INDIVIDUALS

Recent case laws emerging from various international tribunals facing questions related to UN Security
Council resolutions, including Behrami and Behrami v. France, and Saramati v. France, Germany and
Norway and Berić and Others v. Bosnia and Herzegovina, shows the clear tendency to grant primacy to
the UN legal order. This trend, far from being well founded on formal arguments, appears to be a tribute
to a legal order perceived as superior, and, at the same time, is revealing of the ‘value oriented’ approach
followed by courts internationally. Such an approach can be categorized from a theoretical perspective
in the light of the French International Law theorist George Scelle’s theory of relations between legal
orders, whereby the courts implement in their respective legal orders values stemming from the UN
legal order.

The UN Security Council's practice of imposing unilateral targeted sanctions has resulted in serious
limitations on the enjoyment of individuals' human rights. The whole system of the United Nations has
been conceived to deal with the primary actors in international law: states. In this spirit, a mechanism of
international security has been created that gives the United Nations Security Council a unique power to
deal with threats to the international peace and security. The Security Council can deal with such threats
by imposing sanctions against the source of the threat.

But it was never thought of during the San Francisco Conference to sanction individuals. Nevertheless,
ever since the Security Council has applied sanctions, it has targeted them also against individuals and
other non-state actors. The very first time the Security Council chose to apply sanctions in 1966, it did
not target a state but the white minority government of Southern Rhodesia, at the time not a sovereign
state but a British colony. Virtually all United Nations sanction regimes in part directly affect
individuals.

Human rights that might be threatened by Security Council action include the right to life, the right to
health, property rights, the liberty of movement and freedom to choose a residence, the right to respect
for private and family life and, above all, procedural rights. Since the system of sanctions under Article
41 of the Charter of the United Nations has been created as a means to act against states, the procedures
of the Security Council leave no room for problems in relation with other actors of international law.
Targeted individuals have no instruments to defend themselves against Security Council action. When
the Council directs its sanctions against a state, it usually demands a certain behaviour from the targeted
state. The targeted state can decide whether or not to comply with the relevant Security Council
resolution in order to obtain a lifting of the sanctions. In the case of the sanctions against individuals and
entities, the Security Council did not ask for any behaviour.

The Preamble of SC Res. 1390, 28 January 2002 simply states that acts of terrorism pose a threat to
international peace and security and that in order to face this threat certain action was necessary against
a list of individuals and entities. Affected individuals are not heard in front of the Security Council – this
is a privilege reserved to states.

Since affected individuals cannot defend themselves against Security Council action, some of their
human rights might be infringed. In the foreground are fair trial guarantees such as the right of access to
court or the presumption of innocence and other procedural guarantees, because they are the key to other
human rights. It is an open question whether affected individuals can bring proceedings against the
states which implement the Security Council sanctions.

Much of this tendency emerges from the reading of Article 103 of the UN Charter, which states that:

In the event of a conflict between the obligations of the Members of the United Nations under the
present Charter and their obligations under any other international agreement, their obligations under
the present Charter shall prevail.

However, the role of Art. 103 is often overplayed in these debates concerning the conflicts between
Security Council obligations and human rights law.  There are 2 overlapping questions here:

(i) Is the Security Council bound by human rights norms when it acts (e.g. in combatting terrorism,
imposing sanctions or in authorising action in peacekeeping or peace enforcement)?;

(ii) (ii) are States bound to apply Security Council decisions that may conflict with the human rights
obligations of those States and impede on natural rights of their citizens?. 

Art. 103 does not and cannot answer the first question. Also, Art. 103 should not be regarded as
the starting point in answering the second question. Furthermore, one may not even reach Art. 103 in
answering that latter question.
The question whether the Council is bound by human rights norms relates to the issue whether there are
limits to the powers of the Council. Art. 103 does not purport to deal with the limits to the powers of the
Security Council. The answers to those questions are to be found elsewhere.

Firstly, in the fact that the Council is an organ of a bigger organization (the United Nations) which is
itself a subject of international law. Secondly, and more specifically, the Council is, as a general matter,
bound by human rights law. This is because the Charter in Art. 24(2) provides clearly that in discharging
its duties “…the Security Council shall act in accordance with the Purposes and Principles of the United
Nations.”

Those purposes include, in Art. 1(3) read with Art. 55(c), achieving international cooperation in
promoting and encouraging respect for human rights and fundamental freedoms. There is a question as
to which human rights obligations are binding on the organization and on the Security Council but
unless one ignores the Charter there ought to be no doubt that the Council is bound by human rights law.

Whether States are bound by Security Council resolutions that are inconsistent with human rights
obligations of those States is a matter that might at first sight appear to be governed by Art. 103. 

After all, it appears as if there is a conflict of obligations here and apparently we should refer to Art. 103
to resolve that conflict. In para 42 of the ICJ’s provisional measures order in the Lockerbie case, the
World Court noted that as a general matter, Art. 103 applies to obligations derived from Security
Council resolutions and therefore obligations under those resolutions would prevail over inconsistent
obligations under any treaty. However, since the Security Council is bound by human rights norms, any
particular resolution that fails to respect the limits to the powers of the Council would be ultra vires the
Council.

That then leads to the question whether ultra vires resolutions create any obligations for UN members.
For it is only if they create obligations that one gets to Art. 103. On the contrary, if an ultra vires  is void
then it creates no obligations for members.  If so, Art. 103 does not apply. There is simply no conflict of
obligations to which that provision would apply.

So when faced with a Security Council decision that appears to be inconsistent with human rights
norms, the key questions are:

(i) Is the Security Council decision consistent with limitations on the powers of the Council;

(ii) (ii) If the Council has acted beyond its powers what are the legal effects of the illegal decision.

This second question is an area on which there hasn’t been enough analysis. Are ultra vires decisions
void or they voidable only? Unless one can answer this question, one does not get to Art. 103. Adopting
the view that illegal decisions of international organizations are voidable only (i.e valid until there is a
decision that it is illegal), is problematic because there are few (and in the case of the Council, no)
organised procedure by which a competent body can decide that decisions of the Council are illegal. To
take the view that illegal decisions are voidable is to say that they stand, unless by accident, there is
review or perhaps unless the Council changes it mind. This is clearly unsatisfactory and the better view
is that ultra vires decisions – but not those merely suffering some minor procedural defect – are a
nullity. As Judge Morelli said in the Certain Expenses case:

In the case of acts of international organizations . . . there is nothing comparable to the remedies existing
in domestic law in connection with administrative acts. The consequence of this is that there is no
possibility of applying the concept of voidability to the acts of the United Nations. If an act of an organ
of the United Nations had to be considered as an invalid act, such invalidity could constitute only
the absolute nullity of the act. In other words, there are only two alternatives for the acts of the
Organization: either the act is fully valid, or it is an absolute nullity, because absolute nullity is the only
form in which invalidity of an act of the Organization can occur. (1962, ICJ Reps. p. 222)

Thus, where a decision is illegal, a State is free to depart from it. There is no obligation on it to comply
with such a decision. Would this be a useful position to adopt with regard to Council decisions? The
danger of adopting it is that the entire collective security system may unravel if States were free to pick
and choose which resolutions they wish to follow.

The European Court of Human Rights pronounced on this issue in two instances. In the cases
of Nada  (Grand Chamber judgment) and al-Dulimi (Chamber judgment) the Court was asked to
evaluate the lawfulness of the domestic implementation of sanction measures against individuals and
private organizations governed by the EU regime. In both the cases the European Court held that when
the Security Council directs sanctions against individuals, it has to use the member states as
intermediaries. The decisions of the Security Council bind states, not individuals. Sanctions of the
Council are being applied by the member states. This concept of indirect action against individuals is
common in international organizations.

When the Security Council imposes travel bans on individuals, it touches their liberty of movement and
freedom to choose a residence. But these rights are not violated by the Security Council action, because
they do not work in a cross-border way. The liberty of movement and the freedom to choose a residence
are rights that are granted only in the country of nationality or residence. There is no universal human
right that gives individuals a claim to enter any other country than that of their own nationality – and the
Security Council does not require states to deny entry into their territory to their own nationals. But
other human rights, such as the right to health and the right to life, can be affected by travel bans, for
instance in a case where medical care can only be obtained in a foreign country. And restrictions on
travel can affect the right to respect for private and family life.

Another interference are the Security Council’s financial sanctions. Especially in a case where financial
funds remain frozen indefinitely or are even transferred to a fund, the right of property, the right to
work, which includes the right to gain ones living, and other economic rights may be violated.

The central set of human rights that is affected by sanctions against individuals are procedural rights. In
order to resist sanctions, affected individuals must have access to a body that is able to review the
measures in an effective way. As seen before, the Security Council is not such a body, since it is a
political body and it does not receive complaints by individuals. The jurisdiction of the International
Court of Justice is reserved to states. But several international human rights covenants guarantee the
right to a fair trial. The conditions for this right vary in the different conventions, but as a principle they
grant the right to a fair trial where civil rights or obligations or criminal charges are at stake. There are
several indications that the sanctions of the Security Council against individuals affect civil rights or
even have a punitive effect have to be remedied.

It is universally agreed that norms of jus cogens prevail over all other norms, including obligations to the
contrary under the Charter of the United Nations. Most norms of jus cogens can be found in the Charter
itself. The Charter’s human rights clauses can be counted to the jus cogens provisions that are contained
in the Charter. Thus Security Council decisions that contradict the Charter’s own human rights
provisions and other jus cogens norms cannot prevail under Article 103.

When the Security Council imposes sanctions on individuals that clearly violate human rights which
have attained jus cogens status, the implementing states are not bound to comply with the relevant
resolution under Articles 25 and 103 of the Charter. As seen before, several human rights can be
violated by Security Council decisions. But which of these rights prevail over the provision of Article
103 UNC?

The right to life is among the non-derogable rights of the ICCPR and can be counted to the jus cogens.
Therefore in the unlikely cases where an individual’s life is threatened by the Security Council’s
sanctions the implementing states can derogate from their implementing duty. A more central question is
whether the right to a fair trial and access to court prevails over Article 103 UNC. Affected individuals
who are unable to challenge Security Council action against them, cannot assert the violation of other
human rights.

It is therefore essential for them to be able to obtain some kind of effective review of their situation. The
Security Council needs to respect the legal limits of the Charter and other central provisions of
international law. The effectiveness of its sanctions depends heavily on the perception of the
implementing states. Member states must have the possibility to refuse the implementation of an illegal
Security Council decision – especially where it impacts it citizens’ rights directly, like Switzerland has
done in the case of the sanctions against individuals in Iraq.