Talk:United Nations Security Council Resolution 465

Difference between "mandate to enforce by arms" being "not binding under international law"

Your notes very accurately show how chapter VII needs to be invoked in order to issue a mandate to enforce SC decisions. It is very far removed from claiming that without chapter VII, they are considered "non binding under international law". They most certainly are. There is an editor who routinely expounds on these issues, I will try to track him/her down for additional comment.--AladdinSE 22:28, 9 September 2006 (UTC)

the sources repeats the word "binding" 10 times. If this accurately shows something completely different, then it's speaking in code. Amoruso 22:34, 9 September 2006 (UTC)

I finally found the material, in another article, that differentiates the findings of fact from recommendations and enforcement measures when referring to what is binding. Your own sources make the distinction. Indeed, the ICJ opinion, also found in the other article, roundly rejects your reasoning. This is the highest and most prestigious body of jurisprudence in the world talking.--AladdinSE 08:30, 25 March 2007 (UTC)

See other article for comment. Jayjg ^(talk) 20:28, 29 March 2007 (UTC)

ICJ, South Africa vs Namibia, 1971, pt. 113:

"It has been contended that Article 25 of the Charter applies only to enforcement measures adopted under Chapter VII of the Charter. It is not possible to find in the Charter any support for this view. Article 25 is not confined to decisions in regard to enforcement action but applies to "the decisions of the Security Council" adopted in accordance with the Charter. Moreover, that Article is placed, not in Chapter VII, but immediately after Article 24 in that part of the Charter which deals with the functions and powers of the Security Council. If Article 25 had reference solely to decisions of the Security Council concerning enforcement action under Articles 41 and 42 of the Charter, that is to say, if it were only such decisions which had binding effect, then Article 25 would be superfluous, since this effect is secured by Articles 48 and 49 of the Charter."

http://www.icj-cij.org/docket/files/53/5594.pdf —Preceding unsigned comment added by 84.48.51.55 (talk • contribs)

This assertion by the ICJ has been countered by Erika De Wet and others:

The International Court of Justice took the position in the Namibia Advisory Opinion that Art. 25 of the Charter, according to which decisions of the Security Council have to be carried out, does not only apply in relation to chapter VII. Rather, the court is of the opinion that the language of a resolution should be carefully analyzed before a conclusion can be drawn as to its binding effect. The Court even seems to assume that Art. 25 may have given special powers to the Security Council. The Court speaks of "the powers under Art. 25". It is very doubtful, however, whether this position can be upheld. As Sir Gerald Fitzmaurice has pointed out in his dissenting opinion: "If, under the relevant chapter or article of the Charter, the decision is not binding, Article [69/70] 25 cannot make it so. If the effect of that Article were automatically to make al decisions of the Security Council binding, then the words 'in accordance with the present Charter' would be quite superfluous". In practice the Security Council does not act on the understanding that its decisions outside chapter VII are binding on the States concerned. Indeed, as the wording of chapter VI clearly shows, non-binding recommendations are the general rule here." Frowein, Jochen Abr. Völkerrecht - Menschenrechte - Verfassungsfragen Deutschlands und Europas, Springer, 2004, ISBN 3540230238, p. 58.

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 characterised 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. De Wet, Erika. The Chapter VII Powers of the United Nations Security Council, Hart Publishing, 2004, ISBN 1841134228, pp. 39-40.

In practice the Security Council does not consider its decisions outside Chapter VII to be binding (Frowein, p. 58). Jayjg ^(talk) 23:54, 5 April 2009 (UTC)

De Wet's opinion does not really matter. Others says the opposite of De Wet. But the ICJ is the principal judicial organ. It's interpretations is authorative. The UN Charter, Article 92:

"The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter." —Preceding unsigned comment added by Rostow (talk • contribs) 00:11, 6 April 2009 (UTC)

Actually, De Wet's legal opinion really does matter, as does Frowein's. Where are the others who "say the opposite"? As for your original research, it means nothing compared to the dozens of reliable sources that say the opposite of you. Jayjg ^(talk) 00:21, 6 April 2009 (UTC)

You are clearly POV pushing here Jayjg. You should at least move all that stuff about binding vs none-binding into a separate section below the body of the resolution. I will supply references to prominent legal scholars witch offers a different opinion than De Wet. Why an Wikipedia article should give more weight tho De Wet then the to the International Court of Justice is a complete mystery. —Preceding unsigned comment added by Rostow (talk • contribs) 00:56, 6 April 2009 (UTC)

Wikipedia doesn't give more weight to De Wet than to the ICJ. It does, however, give more weight to what multiple reliable sources say than to your personal opinions. Jayjg ^(talk) 01:36, 6 April 2009 (UTC)