Chapter VI of the United Nations Charter

From Wikipedia, the free encyclopedia
Jump to: navigation, search

Chapter VI of the United Nations Charter deals with peaceful settlement of disputes. It requires countries with disputes that could lead to war to first of all try to seek solutions through peaceful methods such as "negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice." If these methods of alternative dispute resolution fail, then they must refer it to the UN Security Council. Under Article 35, any country is allowed to bring a dispute to the attention of the UN Security Council or the General Assembly. This chapter authorizes the Security Council to issue recommendations but does not give it power to make binding resolutions; those provisions are contained Chapter VII.[1][2][3] Chapter VI is analogous to Articles 13-15 of the Covenant of the League of Nations which provide for arbitration and for submission of matters to the Council that are not submitted to arbitration. United Nations Security Council Resolution 47 and United Nations Security Council Resolution 242 are two examples of Chapter VI resolutions which remain unimplemented.

Nature of resolutions under Chapter VI[edit]

There is a general agreement among legal scholars outside the organization that resolutions made under Chapter VI (Pacific Settlement of Disputes) are not legally binding.[4][5][6][7][8][9][10][11][12] One argument is that since they have no enforcement mechanism, except self-help, they may not be legally binding.[13] Some States give constitutional or special legal status to the UN Charter and Security Council resolutions. In such cases non-recognition regimes or other sanctions can be implemented under the provisions of the laws of the individual member states.[14]

The Repertory of Practice of United Nations Organs was established because "Records of the cumulating practice of international organizations may be regarded as evidence of customary international law with reference to States' relations to the organizations."[15] The repertory cites the remarks made by the representative of Israel, Mr Eban, regarding a Chapter VI resolution. He maintained that the Security Council's resolution of 1 September 1951 possessed, within the meaning of Article 25, a compelling force beyond that pertaining to any resolution of any other organ of the United Nations, in his view the importance of the resolution had to be envisaged in the light of Article 25, under which the decisions of the Council on matters affecting international peace and security assumed an obligatory character for all Member States. The Egyptian representative disagreed.[16]

Secretary General Boutros Boutros-Ghali related that during a press conference his remarks about a "non-binding" resolution started a dispute. His assistant released a hasty clarification, which only made the situation worse. It said that the Secretary had only meant to say that Chapter VI contains no means of ensuring compliance and that resolutions adopted under its terms are not enforceable. When the Secretary finally submitted the question to the UN Legal Advisor, the response was a long memo the bottom line of which read, in capital letters: "NO SECURITY COUNCIL RESOLUTION CAN BE DESCRIBED AS UNENFORCEABLE." The Secretary said, "I got the message."[17]

Prof. Jared Schott explains that "Though certainly possessing judicial language, without the legally binding force of Chapter VII, such declarations were at worst political and at best advisory".[18]

In 1971, a majority of the International Court of Justice (ICJ) members in the Namibia advisory opinion held that the resolution contained legal declarations that were made while the Council was acting on behalf of the members in accordance with Article 24. The Court also said that an interpretation of the charter that limits the domain of binding decision only to those taken under Chapter VII would render Article 25 "superfluous, since this [binding] effect is secured by Articles 48 and 49 of the Charter", and that the "language of a resolution of the Security Council should be carefully analyzed before a conclusion can be made as to its binding effect".[19] The ICJ judgment has been criticized by Erika De Wet and others.[20] De Wet argues that Chapter VI resolutions cannot be binding. Her reasoning, in part states:

Allowing the Security Council to adopt binding measures under Chapter VI would undermine the structural division of competencies foreseen by Chapters VI and VII, respectively. The whole aim of separating these chapters is to distinguish between voluntary and binding measures. Whereas the pacific settlement of disputes provided by the former is underpinned by the consent of the parties, binding measures in terms of Chapter VII are characterized by the absence of such consent. A further indication of the non-binding nature of measures taken in terms of Chapter VI is the obligation on members of the Security Council who are parties to a dispute, to refrain from voting when resolutions under Chapter VI are adopted. No similar obligation exists with respect to binding resolutions adopted under Chapter VII... If one applies this reasoning to the Namibia opinion, the decisive point is that none of the Articles under Chapter VI facilitate the adoption of the type of binding measures that were adopted by the Security Council in Resolution 276(1970)... Resolution 260(1970) was indeed adopted in terms of Chapter VII, even though the ICJ went to some length to give the opposite impression.[21]

Others disagree with this interpretation. Professor Stephen Zunes asserts that "[t]his does not mean that resolutions under Chapter VI are merely advisory, however. These are still directives by the Security Council and differ only in that they do not have the same stringent enforcement options, such as the use of military force".[22] Former President of the International Court of Justice Rosalyn Higgins argues that the location of Article 25, outside of Chapter VI and VII and with no reference to either, suggests its application is not limited to Chapter VII decisions.[23] She asserts that the Travaux préparatoires to the UN Charter "provide some evidence that Article 25 was not intended to be limited to Chapter VII, or inapplicable to Chapter VI."[24] She argues that early state practice into what resolutions UN members considered binding has been somewhat ambiguous, but seems to "rely not upon whether they are to be regarded as "Chapter VI or "Chapter VII" resolutions [...] but upon whether the parties intended them to be "decisions" or "recommendations" ... One is left with the view that in certain limited, and perhaps rare, cases a binding decision may be taken under Chapter VI".[25] She supports the view of the ICJ that "clearly regarded Chapters VI, VII, VIII and XII as lex specialis while Article 24 contained the lex generalis ... [and] that resolutions validly adopted under Article 24 were binding on the membership as a whole".[26]

References[edit]

  1. ^ Collective Insecurity, Harvard International Review,"Chapter VI establishes the appropriate methods of settling international disputes and the Security Council's powers in relation to them. It is generally agreed that resolutions under Chapter VI are advisory rather than binding. These resolutions have generally been operative only with the consent of all parties involved. Traditionally, the Chapter has not been interpreted to support collective intervention by member states in the affairs of another member state"
  2. ^ Possible Extension of the UN Mandate for Iraq: Options, 'The basic difference between Chapters VI and VII is that under Chapter VII, the Council may impose measures on states that have obligatory legal force and therefore need not depend on the consent of the states involved. To do this, the Council must determine that the situation constitutes a threat or breach of the peace. In contrast, measures under Chapter VI do not have the same force, and military missions under Chapter VI would rest on consent by the state in question'
  3. ^ History of failed peace talks, BBC, 2007-11-26
  4. ^ Köchler, Hans. The Concept of Humanitarian Intervention in the Context of Modern Power, International Progress Organization, 2001, ISBN 3-900704-20-1, p. 21.
  5. ^ De Wet, Erika, "The Security Council as a Law Maker: The Adoption of (Quasi)-Judicial Decisions", in Wolfrum, Rüdiger and Röben, Volker. Developments of International Law in Treaty Making, Springer, 2005, ISBN 3-540-25299-1, p. 203.
  6. ^ Werksman, Jacob. Greening International Institutions, Earthscan, 1996, ISBN 1-85383-244-8, p. 14.
  7. ^ Matthews, Ken. The Gulf Conflict and International Relations, Routledge, 1993, ISBN 0-415-07519-X, p. 130.
  8. ^ Neuhold, Hanspeter. "The United Nations System for the Peaceful Settlement of International Disputes", in Cede, Franz & Sucharipa-Behrmann, Lilly. The United Nations, Martinus Nijhoff Publishers, 1 Jan 2001, p. 66.
  9. ^ Schweigman, David. The Authority of the Security Council Under Chapter VII of the UN Charter, Martinus Nijhoff Publishers, 1 Jan 2001, p. 33.
  10. ^ Hillier, Timothy, Taylor & Francis Group. Sourcebook on Public International Law, Cavendish Publishing, ISBN 1-84314-380-1, 1998, p. 568.
  11. ^ De Hoogh, Andre. Obligations Erga Omnes and International Crimes, Martinus Nijhoff Publishers, 1 Jan 1996, p. 371.
  12. ^ Philippe Sands, Pierre Klein, D. W. Bowett. Bowett's Law of International Institutions, Sweet & Maxwell, 2001, ISBN 0-421-53690-X, p. 46.
  13. ^ Magliveras, Konstantinos D. Exclusion from Participation in International Organisations, Martinus Nijhoff Publishers, 1 Jan 1999, p. 113.
  14. ^ See National implementation of United Nations sanctions: a comparative study, by Vera Gowlland-Debbas, Djacoba Liva Tehindrazanarivelo, Brill, 2004, ISBN 90-04-14090-5; and Recognition and the United Nations, by John Dugard, Cambridge University Press, 1987, ISBN 0-949009-00-8.
  15. ^ "Ways and means for making the evidence of customary international law more readily available" (PDF). Report of the International Law Commission, 1950. United Nations. 
  16. ^ Repertory of Practice of United Nations Organs, Article 25, Sup. 1, Vol 1, para 5–9. [1].
  17. ^ Unvanquished: a U.S.-U.N. saga, By Boutros Boutros-Ghali, I.B. Tauris, 1999, ISBN 1-86064-497-X, p. 189.
  18. ^ Chapter VII as Exception: Security Council Action and the Regulative Ideal of Emergency, page 56
  19. ^ Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971 at paragraphs 87–116, especially 113.
  20. ^ Frowein, Jochen Abr. Völkerrecht – Menschenrechte – Verfassungsfragen Deutschlands und Europas, Springer, 2004, ISBN 3-540-23023-8, p. 58.
  21. ^ De Wet, Erika. The Chapter VII Powers of the United Nations Security Council, Hart Publishing, 2004, ISBN 1-84113-422-8, pp. 39–40.
  22. ^ Zunes, Stephen, "International law, the UN and Middle Eastern conflicts". Peace Review, Volume 16, Issue 3 September 2004 , pages 285 – 292:291.
  23. ^ Higgins, Rosalyn. "The Advisory opinion on Namibia*: Which un Resolutions are Binding under Article 25 of the Charter?" International & Comparative Law Quarterly (1972), 21 : 270–286:278.
  24. ^ Higgins, Rosalyn. "The Advisory opinion on Namibia*: Which un Resolutions are Binding under Article 25 of the Charter?" International & Comparative Law Quarterly (1972), 21 : 270–286:279.
  25. ^ Higgins, Rosalyn. "The Advisory opinion on Namibia*: Which un Resolutions are Binding under Article 25 of the Charter?" International & Comparative Law Quarterly (1972), 21 : 270–286:281–2.
  26. ^ Higgins, Rosalyn. "The Advisory opinion on Namibia*: Which un Resolutions are Binding under Article 25 of the Charter?" International & Comparative Law Quarterly (1972), 21 : 270–286:286.