Resisting United Nations Security Council Resolutions

272 Pages·2014·1.106 MB·English

by  Sufyan Droubi

Resisting United Nations Security
Council Resolutions
The United Nations Security Council has primary responsibility for main-
taining international peace and security. In discharging its powers it must
act in accordance with the Purposes and Principles of the UN, and observe
the rules governing voting and procedure established in the organisation’s
Charter. The Council adopts mandatory resolutions that may establish obliga-
tions for Members and non-Members, and such obligations trump conflict-
ing obligations originating from any other international agreement. Member
States must cooperate with the organisation and among themselves, in the
implementation of any action prescribed by the Council against States whose
behaviour the Council considers an act of aggression, or a threat to, or breach
of, international peace and security.
This book analyses resistance to Security Council resolutions and puts forward
a theory of lawful resistance. Sufyan Droubi takes a positivist approach to the
UN Charter regarding it as a constitution. Special emphasis is placed on the
construction of the Charter’s meaning through the practice of both organs
and Members of the UN and on the need to enhance the effectiveness of the
organisation with due respect to the rule of law. The book proposes that
nonviolent resistance to a mandatory resolution of the Security Council, on
grounds that the latter is incompatible with the Charter or jus cogens norms,
may be considered lawful under the Charter if some elements are present.
In exploring a number of case studies of individual and collective State resist-
ance to mandatory Council resolutions, the book proposes that resistance may
function as a rudimentary instrument of accountability and protection of the
Charter and jus cogens, in the absence of more mature mechanisms of judicial
review. The book will be of excellent use and interest to scholars and students
of constitutional international law and international relations.
Sufyan Droubi holds a doctorate in international law from the University
of Essex, UK (2013) and a Master’s degree in social relations law from the
Pontifical Catholic University of São Paulo (2004). His main areas of interest
are public international law and international human rights.
Routledge Research in International Law
Available:
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Community
Elena Katselli Proukaki
International Economic Actors and Human Rights
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The Law of Consular Access
A Documentary Guide
John Quigley, William J. Aceves and Adele Shank
State Accountability under International Law
Holding States Accountable for a Breach of Jus Cogens Norms
Lisa Yarwood
International Organisations and the Idea of Autonomy
Institutional Independence in the International Legal Order
Richard Collins and Nigel D. White (eds.)
Self-Determination in the Post-9/11 Era
Elizabeth Chadwick
Participants in the International Legal System
Multiple Perspectives on Non-State Actors in International Law
Jean d’Aspremont
Sovereignty and Jurisdiction in the Airspace and Outer Space
Legal Criteria for Spatial Delimitation
Gbenga Oduntan
International Law in a Multipolar World
Matthew Happold (ed.)
The Law on the Use of Force
A Feminist Analysis
Gina Heathcote
The ICJ and the Development of International Law
The Lasting Impact of the Corfu Channel Case
Karine Bannelier, Théodore Christakis and Sarah Heathcote (eds.)
UNHCR and International Refugee Law
From Treaties to Innovation
Corinne Lewis
Asian Approaches to International Law and the Legacy of Colonialism
The Law of the Sea, Territorial Disputes and International Dispute
Settlement
Jin-Hyun Paik, Seok-Woo Lee, Kevin Y. L. Tan (eds.)
The Right to Self-determination Under International Law
“Selfistans,” Secession, and the Rule of the Great Powers
Milena Sterio
Reforming the UN Security Council Membership
The Illusion of Representativeness
Sabine Hassler
Threats of Force
International Law and Strategy
Francis Grimal
The Changing Role of Nationality in International Law
Alessandra Annoni and Serena Forlati
Criminal Responsibility for the Crime of Aggression
Patrycja Grzebyk
Regional Maintenance of Peace and Security under International Law
The Distorted Mirror
Dace Winther
International Law-Making
Essays in Honour of Jan Klabbers
Rain Liivoja and Jarna Petman
Resolving Claims to Self-Determination
Is There a Role for the International Court of Justice?
Andrew Coleman
The Rise of Tamil Separatism in Sri Lanka
From Communalism to Secession
Gnanapala Welhengama and Nirmala Pillay
The United Nations and Collective Security
Gary Wilson
Forthcoming titles in this series include:
International Law, Regulation and Resistance
Critical Spaces
Zoe Pearson
The Cuban Embargo under International Law
El Bloqueo
Nigel D. White
The Changing Nature of Customary International Law
Methods of Interpreting the Concept of Custom in International Criminal
Tribunals
Noora Arajärvi
Technology and the Law on the Use of Force
New Security Challenges in the Twenty First Century
Jackson Maogoto
Criminal Diversity in International Law
The Effectiveness of the UNESCO Convention on the Protection and
Promotion of the Diversity of Cultural Expressions
Lilian Hanania
Public–Private Partnerships and Responsibility under International
Law
A Global Health Perspective
Lisa Clarke
Resisting United Nations Security Council Resolutions
Sufyan Droubi
Resisting United Nations
Security Council Resolutions
Sufyan Droubi
Routledge RTayolour &t Flreandcisg Geroup
LONDON AND NEW YORK
First published 2014
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2014 Sufyan Droubi
The right of Sufyan Droubi to be identified as editor of this work has been
asserted by him in accordance with sections 77 and 78 of the Copyright,
Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced
or utilised in any form or by any electronic, mechanical, or other means,
now known or hereafter invented, including photocopying and recording,
or in any information storage or retrieval system, without permission in
writing from the publishers.
Trademark notice: Product or corporate names may be trademarks or
registered trademarks, and are used only for identification and
explanation without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
El Droubi, Sufyan.
Resisting United Nations Security Council resolutions / Sufyan Droubi.
p. cm. -- (Routledge research in international law)
Includes bibliographical references and index.
ISBN 978-0-415-71043-5 (hardback) -- ISBN 978-1-315-86763-2 (ebk) 1. United Nations. Security
Council--Resolutions. 2. United Nations. Charter. I. Title.
KZ5036.E4 2014
341.23’23--dc23
2013041945
ISBN: 978-0-415-71043-5 (hbk)
ISBN: 978-1-315-86763-2 (ebk)
Typeset in 11/12 Garamond 3 by
Servis Filmsetting Ltd, Stockport, Cheshire
Contents
Acknowledgements x
Table of cases xi
Preface xiv
Introduction xvi
1 The powers of the United Nations Security Council and
resistance to its resolutions 1
1.1 Scope of the powers of the UNSC and mandatory resolutions 1
1.2 Addressees of mandatory UNSC resolutions 3
1.3 The effects of mandatory resolutions 5
1.4 Interpreting Council resolutions for the ascertainment of
their nature 7
1.5 Resolutions in accordance with the Charter, the
presumption against normative conflict and voidability 10
1.6 The Council’s competence to decide, States’ powers of
autointerpretation and judicial review by the ICJ 11
1.7 Resistance to prima facie mandatory resolutions 14
2 UN Charter as a constitution and the notion of
constitutional resistance 27
2.1 The Charter as a constitution 27
2.2 Purposes and Principles of the UN 30
2.3 Peremptory norms of international law 34
2.4 Doctrine of implied powers 38
2.5 Rule of law at the UN and international levels 41
2.6 The notion of constitutional resistance 44
3 South African resistance to the demands that it abandon
apartheid and withdraw from Namibia 56
3.1 South Africa’s arguments 56
3.2 Summary of the main resolutions of the Security Council
addressing apartheid 58
3.3 Summary of the main resolutions of the Security Council
addressing Namibia 62
viii Contents
3.4 Debates and voting in the Council 65
3.5 The ICJ on Namibia 67
3.6 Review of the lawfulness of South Africa’s resistance and
conclusion 70
4 Iraq’s resistance to economic sanctions, with focus on its
opposition to the implementation of humanitarian exemptions 77
4.1 Summary of the main resolutions of the Council in their
respective contexts 78
4.2 Debates and voting in the Council 81
4.3 Iraq’s resistance and arguments 82
4.4 Failure of the exemptions regime and of the OFF
programme: the economic embargo as one of the causes of
the humanitarian hardship 84
4.5 Reaction of international organisations 85
4.6 Evolution of the understanding of the aims of economic
embargoes 86
4.7 Assessment of the embargo and OFF mechanism 88
4.8 Review of the lawfulness of Iraq’s resistance and conclusion 89
5 Bosnia and Herzegovina’s noncompliance with the arms
embargo 96
5.1 Summary of the main resolutions of the Council 96
5.2 Resort to the General Assembly 98
5.3 Resort to the International Court of Justice 101
5.4 Resort to the Organisation of the Islamic Conference 103
5.5 Reaction of the Council 104
5.6 Resistance to the embargo and its justification 107
5.7 Reports of the Secretary-General 109
5.8 Commentary concerning the right to self-defence and the
Security Council 111
5.9 Review of the lawfulness of resistance and conclusion 112
6 Libya’s noncompliance with determinations for the
surrender of suspects and payment of compensation 120
6.1 Summary of the main resolutions of the Council 120
6.2 Debates and voting in the Council 122
6.3 Resort to the International Court of Justice 125
6.4 Resort to the League of Arab States, Organisation of
the Islamic Conference, Non-Aligned Movement and
Organisation of African Unity 128
6.5 Strength of the claims of unlawfulness of the Council’s
resolutions 130
6.6 Differences between Libya and other cases in which
extradition was determined by the UNSC 134
6.7 Review of the lawfulness of resistance and conclusion 136
Contents ix
7 Iran’s noncompliance with demands that it suspend nuclear
activities and comply with the Protocol Additional to the
Safeguards Agreement 145
7.1 Legal background 145
7.2 The case of Iraq 148
7.3 The case of the Democratic Popular Republic of Korea 149
7.4 Summary of the main resolutions of the IAEA Board of
Governors 150
7.5 Summary of the main resolutions of the Council 151
7.6 Debates and voting in the Council 153
7.7 Strength of the claims on unlawfulness of the Council’s
resolutions 155
7.8 Review of the lawfulness of resistance and conclusion 159
8 Targeted sanctions on individuals suspected of terrorism 167
8.1 Summary of the main resolutions of the Council 168
8.2 The Kadi case 172
8.3 The Abdelrazik, Othman and Nada cases 177
8.4 Debates in the Council 180
8.5 Impacts of the decisions on the 1267 regime 181
8.6 Review of the 1267/1989 regime by the Special rapporteur 183
8.7 Review of the lawfulness of resistance and conclusion 186
9 Critique of the prevalent theories 194
9.1 Ciobanu: right of last resort as a political determination of a
preliminary objection to political organs of the UN 194
9.2 De Wet: right of last resort for the protection of
fundamental norms 200
9.3 Tzanakopoulos: civil disobedience to the Council as a
countermeasure to the unlawfulness of a resolution 204
10 Resisting UNSC resolutions 212
10.1 Member States’ obligation towards peace and security 212
10.2 Resistance as a mechanism to foster development of the law
of the UN 216
10.3 State resistance and civil disobedience 219
10.4 Government resistance and State resistance 222
10.5 Resisting UNSC resolutions 225
Conclusion 230
Bibliography 234
Index 244