Talk:United Nations Security Council Resolution 478

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

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 22:29, 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)


>>>>>>>>>>>> There is no refernce to the resolution itself being illegal under article 80 of the UN charter. >>>>>>>>>>>> —Preceding unsigned comment added by 89.243.34.162 (talk) 12:16, 21 August 2010 (UTC)

Far too many references![edit]

This article has 11 references to back up a single (fairly non-controversial) claim: that decisions taken by the United Nations not under Chapter VII are non-binding. I'm sure this much is unnecessary, and just two or three references would be sufficient. There may be some dispute over the issue, but that's better covered at the UN resolution article than this one. Terraxos 23:50, 24 October 2007 (UTC)

I know this is an old comment, but for the benefit of future editors reading this page; Resolutions made under Chapter VII of the UN Charter are legally binding on all UN Member States. Resolutions made under Chapter VI are non-binding See UN_Security_Council#Resolutions for further details. Cynical (talk) 09:50, 12 January 2009 (UTC)
The resolutions section of that article explains it well now. It is not always clear what chapter a resolution is taken under, especially for older resolutions, like this one; the practice of the SC was then not to be explicit, and according to some authorities, including the ICJ, there may be cases in which and ways that ch VI resolutions are binding. So, without specific refs on a specific resolution, "binding" or "non-binding" is OR, and I will remove it. Note that this resolution uses the word "decides" and calls itself a "decision", which usually indicates "binding."John Z (talk) 19:02, 20 July 2009 (UTC)
There have been many published accounts which imply (but do not claim) that there have been no resolutions adopted under the provisions of Chapter VII with regard to the Question of Palestine. Here is an example: JCPA Editorial on Chapter VI and Chapter VII Resolutions.
Many of the resolutions which established the permanent cease fire lines and armistices lines during the 1948 war e.g. 54, 61, and 62 were adopted under the terms of Chapter VII and contained specific references to articles in that chapter of the Charter. That fact was acknowledged by the representative of Israel during the 340th meeting of the Security Council. You can select a language and download a pdf copy of the verbatim record here: S/PV.340 harlan (talk) 22:21, 20 July 2009 (UTC)

SC Decisions adopted under Chapter V, Article 24 of the UN Charter are binding[edit]

Article 25 of the Charter says that "The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter".

The Repertory of Practice of United Nations Organs, a UN legal publication, says that during the United Nations Conference on International Organization which met in San Francisco in 1945, attempts to limit obligations of Members under Article 25 of the Charter to those decisions taken by the Council in the exercise of its specific powers under Chapters VI, VII and VIII of the Charter failed. It was stated at the time that those obligations also flowed from the authority conferred on the Council under Article 24(1) to act on the behalf of the members while exercising its responsibility for the maintenance of international peace and security. See page 5, The Repertory of Practice of United Nations Organs, Extracts Relating to Article 25 [1] Article 24, interpreted in this sense, becomes a source of authority which can be drawn upon to meet situations which are not covered by the more detailed provisions in the succeeding articles of Chapter VI, VII, and VIII. See The Repertory of Practice of United Nations Organs, Extracts Relating to Article 24, [2]

In the Namibia case the ICJ ruled that the Security Council declaration of illegality was a decision made while acting on behalf of all the members under the terms of article 24. The members had agreed to accept and carry out Security Council decisions under the terms of article 25. That is exactly what happened in the case of this resolution. See page 19 of Repertory of Practice of United Nations Organs, Article 24 of the Charter, Supplement No 6 (1979 - 1984), volume 3 [3] harlan (talk) 10:10, 26 November 2009 (UTC)

this is complete Original Research. The only fact is that the resolution wasn't taken under chapter VII. that's the important bit. saying that Israel has obligation to follow SC resolutions not taken under Chapter VII because of Article 25 is complete OR and shows ignorance of understanding of International Law. Israel did not even have the ability to participate as a member in the SC (!) so the idea that it is obligated to follow this organ, with all its travesty, is laughable. —Preceding unsigned comment added by 207.237.44.150 (talk) 17:15, 26 November 2009 (UTC)
There is no original research involved at all. I cited and quoted official UN legal publications that speak for themselves. They say that decisions adopted under Article 24 are binding under the terms of article 25 and record the fact that this resolution was adopted under the terms of article 24. Here are some additional links that I added to "Principles of the institutional law of international organizations", by Chittharanjan Félix Amerasinghe, page 169 [4]; and the ICJ Advisory Opinion in the 1970 Namibia case, paragraphs 110-116 [5] which both confirm that Article 24 resolutions are binding.
The Justice Department Office of Legal Counsel concluded that the provisions of the Jerusalem Embassy bill invade exclusive presidential authorities in the field of foreign affairs and are unconstitutional. The memo cited Restatement (Third) of the Foreign Relations Law of the United States § 204 (1987)[6] harlan (talk) 08:19, 27 November 2009 (UTC)
Don't remove sourced material again or it might be construed as vandalism. Yes, they were acting under chapter V and not under VII (which is the binding chapter of the UN under international law, but that's not the point. you removed other stuff entirely which seems like vandalism). By the way, from time to time people claim that non chapter VII res. are binding based on advisory non binding by themselves obscure opinion of the ICJ or minority scholars. But the vast majority of legal scholars and most international law books agree that only chapter VII resolutions are binding. Dozens of these sources were formerly present in the article and can be restored. better not go there then. leave it as it is. the U.S reaction is valid of course. 207.237.44.150 (talk) 08:10, 28 November 2009 (UTC)
The best thing would be specific cites preferably with specific quotes that say what chapter this resolution was adopted under, whether it is binding or not, chapter VII or not. Anything else, on either side is or verges on OR. I disagree with 207.237.44.150's characterization of the majority opinion of legal scholars; the Namibia decision is hardly obscure. The SC has recently been more clear about its resolutions in their text; in earlier decades they were not.John Z (talk) 09:50, 28 November 2009 (UTC)

(outdent) That is what I had done John. I cited the official UN and Security Council analysis contained in the Repertory of Practice of United Nations Organs and the Repertoire Of The Practice Of The Security Council for this resolution, Article 24, and 25. The General Assembly mandated that a legal analysis of each decision be performed and published to make the evidence of international law more accessible. The repertory lists each of the "decisions" of the principal organs of the United Nations under each of the Articles of the Charter. Page 19 of Supplement No 6 (1979 - 1984) for Article 24 [7] says that the Security Council formally declared as illegal the legislative and administrative measures mentioned in paragraph 2 and 3 of resolution 478 while acting under Article 24 of the Charter.

The ICJ Namibia decision is cited in the Summary of Practice contained in the 1970 - 1978 supplements of the Article 25 and Article 24 repertory. The majority opinion in the Wall case cited resolution 478 (paragraph 75) in its analysis of the legal status of settlements in Jerusalem. Judge Higgins separate opinion in the Wall case cited the Namibia advisory opinion regarding the binding nature of a Security Council decision of illegality and the self evident principles of international law that the court (the primary judicial organ) could declare the situation in the OPT, including Jerusalem, illegal. harlan (talk) 23:42, 28 November 2009 (UTC)

Moved for discussion[edit]

I moved this here for discussion. You are quoting De Hoogh out of context. He isn't talking about Article 24 or this resolution.

"Additionally it may be noted that the Security Council cannot adopt binding decisions under Chapter VI of the Charter" (De Hoogh, Andre. Obligations Erga Omnes and International Crimes, Martinus Nijhoff Publishers, Jan 1, 1996, p. 371).

On pages 122-125 De Hoogh discussed the Nambia decision and said the court proceeded with its assessment that the Security Council had made a binding Article 24 decision of illegality. He noted that there is a prohibition on acquiring territory by force, and that even in cases where Security Council or the General Assembly only makes a recommendation, member states have an independent duty to determine the facts and not to recognize or assist wrongful acts.

This one is misleading and incorrect when it says all of the resolutions on the Middle East have been Chapter VI resolutions. UN Security Council Resolutions 54, 61, 62 were adopted under the terms of Chapter VII. They established permanent cease fire and armistice lines, including the ones between West Jerusalem and East Jerusalem. Abba Eban discussed the fact that 54 was a Chapter VII resolution during the 340th session of the Security Council. Select a language to download a pdf of the verbatim record here: S/PV.340.

"There is a hierarchy of resolutions... Chapter 6, under which all resolutions relating to the middle east have been issued, relates to the pacific resolution of disputes. Above that, there are the mandatory chapter 7 resolutions, which impose the clearest possible obligations, usually on a single state rather than on two or three states, which is what chapter 6 is there for. Chapter 7 imposes mandatory obligations on states that are completely out of line with international law and policy, and the United Nations has decided in its charter that the failure to meet those obligations may be met by the use of force." Straw, Jack. House of Commons debates, Hansard, Column 32, September 24, 2002.

This remark doesn't mention US policy on the annexation which is the subject of the resolution:

The U.S. Secretary of State in his remarks to the Council, in connection with the section of the resolution relating to the transfer of embassies from Jerusalem, said that in the judgment of the U.S. this instruction is not binding and has no validity, and the U.S. rejects it as a disruptive attempt to dictate to other countries.Israel Ministry of Foreign Affairs

Here is some information that should be included to supply the US views on the annexation and Muskie's remarks:

Muskie said that Israel's annexation of East Jerusalem cannot finally settle the status of Jerusalem. see Muskie Bypassed In Decision, The Bryan Times - Aug 11, 1980 [8]

ABC and CBS both reported Secretary of State Edmund Muskie's order to take part in the United Nations debate was said to have been a political decision made by the White House with regard to Jewish voters. -- Lou Cioffi, ABC Evening News for Wednesday, August 20, 1980. [9]

The World Affairs Report said "Secretary of State Muskie used the United Nations as an electoral platform". see The World affairs report, Volume 10, by the California Institute of International Studies, Page 445.

harlan (talk) 10:20, 28 November 2009 (UTC)

First of all, you don't move to discussion things selectively.
That is the standard practice. Entire articles are never moved to the talk page. harlan (talk) 20:53, 28 November 2009 (UTC)
I didn't ask for the entire article to be removed, just certain content was removed within the same paragraph, that which you didn't like. Amoruso (talk) 21:05, 28 November 2009 (UTC)
Secondly, as to the US quote - it is SPOT on, it is a reaction to the resolution. Not your so called "annexation". That is not the subject of this article. The subject on this article is the resolution and its controversial idea that it can tell countries to move their embassies. The US reacted on that. Your additional quotes about US' opinions on east Jerusalem are irrelevant, and so are editorial comments of newspapers or TV channels about their opinion on official delegates' remarks - that is not encyclopedic at all.
The subject of the resolution is reflected in the title, "Territories occupied by Israel", and in the Security Council agenda: The enactment of a "basic law" in the Israeli Knesset proclaiming a change in the character and status of the Holy City of Jerusalem. harlan (talk) 20:53, 28 November 2009 (UTC)
Then don't mention at all that the resolution asked members to move their embassies - then we wouldn't need reactions to this provision. One is free to address the actual text of the resolution. Amoruso (talk) 21:05, 28 November 2009 (UTC)
Thirdly, De Hoogh is not quoted out of context. He explicitly explains that the binding chapter is chapter VII and the recommendation chapter is chapter VI. "where Security Council or the General Assembly only makes a recommendation, member states have an independent duty to determine the facts and not to recognize or assist wrongful acts" --> that's exactly true. Having a responsibility/duty to perform something out of a sense of morality or other reasons, is not the same as binding. Regardless, and this was already said, there are several dozens of legal scholars' statements reciting the fact that Chapter VII is the only binding chapter. If you want, they can be restored. They were removed because this is not the place to argue it.
De Hoogh wasn't talking about morality. He discussed the "Article 24 binding decision of illegality" and the court's decision in the Namibia case. He also talked about an enforceable independent legal duty, since his book was about erga omnes. He said that recognizing or assisting another state in the commission of a wrongful act of state is also a wrongful act of state. harlan (talk) 20:53, 28 November 2009 (UTC)
In another place you said that Chapter VI is not relevant. Namibia case reflects that resolutions can be taken under chapter VI or VII. See also [10] Amoruso (talk) 21:05, 28 November 2009 (UTC)
Fourthly, your statement is "This one is misleading and incorrect when it says" is WP:OR. In Wikipedia, we quote reliable sources. International Law is about perception and compliance. The most important aspect of it is what world leaders see and believe. The fact that Straw believes that Chapter VII resolutions were never taken and only Chapter VI resolutions were taken is important and is the very definition of international law. And Even if 3 resolutions about the 1948 War were taken under chapter VII according to some interpretations, the core of the quote is still correct. Straw was not making a mathematical argument but rather explaining that under present-day reality, all resolutions pertaining to the conflict are not Chapter VII resolutions. Amoruso (talk) 18:34, 28 November 2009 (UTC)
Wikipedia is an encyclopedia. There is no requirement for editors to assign WP:UNDUE weight to extemporary statements that contain substantial factual errors. Straw doesn't mention Article 24 or 25 (Chapter V) decisions or this resolution. That appears to be WP:Synth. harlan (talk) 20:53, 28 November 2009 (UTC)
There is obviously no undue weight there in general comments about the binding manner of Chapter VII if that issue is invoked. Amoruso (talk) 21:05, 28 November 2009 (UTC)

International Law references[edit]

The reference that states under which article the resolution was adopted is relevant. References that discuss what it means are out of scope for this particular article.

Here are references that discuss the exclusive binding aspect of Chapter VII. They were regarded as far too large in scope for this article and were removed in the past:

Only SC resolutions under Chapter VII are binding[edit]

  • "Some analysts have pointed out that Security Council resolutions condemning or criticizing Israel have been passed under Chapter VI of the U.N. Charter, which are different from the Chapter VII resolutions against Iraq." Ayoob, Mohammad. "The war against Iraq: normative and strategic implications", in Robinson, Mary & Weiss, Thomas G. & Crahan, Margaret E. & Goering, John (eds). Wars on Terrorism and Iraq: human rights, unilateralism, and U.S. foreign policy, Routledge (UK), May 1, 2004, p. 164.
  • "Additionally it may be noted that the Security Council cannot adopt binding decisions under Chapter VI of the Charter." De Hoogh, Andre. Obligations Erga Omnes and International Crimes, Martinus Nijhoff Publishers, Jan 1, 1996, p. 371.
  • "Council recommendations under Chapter VI are generally accepted as not being legally binding." Magliveras, Konstantinos D. Exclusion from Participation in International Organisations, Martinus Nijhoff Publishers, Jan 1, 1999, p. 113.
  • "Within the framework of Chapter VI the SC has at its disposal an 'escalation ladder' composed of several 'rungs' of wielding influence on the conflicting parties in order to move them toward a pacific solution... however, the pressure exerted by the Council in the context of this Chapter is restricted to non-binding recommendations." 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, Jan 1, 2001, p. 66.
  • "The responsibility of the Council with regard to international peace and security is specified in Chapters VI and VII. Chapter VI, entitled 'Pacific Settlements of Disputes', provides for action by the Council in case of international disputes or situations which do not (yet) post a threat to international peace and security. Herein its powers generally confined to making recommendations, the Council can generally not issue binding decisions under Chapter VI." Schweigman, David. The Authority of the Security Council Under Chapter VII of the UN Charter, Martinus Nijhoff Publishers, Jan 1, 2001, p. 33.
  • "Under Chapter VI, the Security Council may only make recommendations but not binding decisions on United Nations members". Wallace-Bruce, Nii Lante. The Settlement of International Disputes, Martinus Nijhoff Publishers, Jan 1, 1998, pp. 47-48.
  • "First, it may issue non-binding resolutions under Chapter VI of the Charter expressing its opinion on the abuses and their resolution." Mertus, Julie. The United Nations And Human Rights: A Guide For A New Era, Routledge, 2005, ISBN 0415343380, p. 120.
  • "Under Chapter VI the Security Council can only make non-binding recommendations. However, if the Security Council determines that the continuance of the dispute constitutes a threat to the peace, or that the situation involves a breach of the peace or act of aggression it can take action under Chapter VII of the Charter. Chapter VII gives the Security Council the power to make decisions which are binding on member states, once it has determined the existence of a threat to the peace, breach of the peace, or act of aggression." Hillier, Timothy, Taylor & Francis Group. Sourcebook on Public International Law, Cavendish Publishing, ISBN 1843143801, 1998, p. 568.
  • "Nor is the disenchanting performance due to the fact that under Chapter VI the SC may only address non-binding resolutions to the conflicting parties." Cede, Franz, and Sucharipa-Behrmann, Lilly. The United Nations: Law and Practice, Martinus Nijhoff Publishers, 2001, ISBN 9041115633, p. 70.
  • "This clause does not apply to decisions under Chapter VII (including the use of armed force), which are binding on all member states (unlike those adopted under Chapter VI which are of a non-binding nature)." Köchler, Hans. The Concept of Humanitarian Intervention in the Context of Modern Power, International Progress Organization, 2001, ISBN 3900704201, p. 21.
  • "The impact of these flaws inherent to Resolution 731 (1992) was softened by the fact that it was a non-binding resolution in terms of Chapter VI of the Charter. Consquently Libya was not bound to give effect to it. However, the situation was different with respect to Resolution 748 of 31 March 1992, as it was adopted under Chapter VII of the Charter." De Wet, Erika, "The Security Council as a Law Maker: The Adopion of (Quasi)-Judicial Decisions", in Wolfrum, Rüdiger and Röben, Volker. Developments of International Law in Treaty Making, Springer, 2005, ISBN 3540252991, p. 203.
  • "There are two limitations on the Security Council when it is acting under Chapter VI. Firstly, recommendations of the Council under Chapter VI are not binding on states." Werksman, Jacob. Greening International Institutions, Earthscan, 1996, ISBN 1853832448, p. 14.
  • "Chapter VI exhorts members to settle such claims peacefully and submit them for mediation and arbitration to the United Nations. Chapter VI, however, is not binding - in other owrds, there is no power to compel states to submit their disputes for arbitration or mediation by the United Nations." Matthews, Ken. The Gulf Conflict and International Relations, Routledge, 1993, ISBN 041507519X, p. 130.
  • "One final point must be noted in connection with Chapter VI, and that is that the powers of the Security Council are to make "recommendations." These are not binding on the states to whom they are addressed, for Article 25 relates only to "decisions." Philippe Sands, Pierre Klein, D. W. Bowett. Bowett's Law of International Institutions, Sweet & Maxwell, 2001, ISBN 042153690X, p. 46.
  • "Article 2, para. 6, must be linked, first of all, to the use of these kinds of pressure that have no mandatory effect. Both the General Assembly and the Council have the power to make recommendations to the States, that is, resolutions that do not bind the States (see section 89)). Worthy of mention from this point of view are the provisions of Article 11, para. 2 ("The General Assembly may discuss any questions relating to the maintenance of international peace and security... and... may make recommendations with regard to any such question to the State or States concerned") and the various provisions of Chapter VI, particularly Article 33, para. 2, Article 36, and Article 37, para. 2, which give the Security Council the power to recommend settlement of disputes likely to endanger the peace." Conforti, Benedetto. The Law and Practice of the United Nations, Martinus Nijhoff Publishers, 2005, ISBN 9004143084, p. 127.
  • "...the primary authority of the Security Council is defined in terms of international peace and security. The Council's jurisdiction under Chapter VI—which give it recommendatory but not binding authority—is stated in very broad terms." Matheson, Michael J. Council UNbound: The Growth of UN Decision Making on Conflict and Postconflict Issues after the Cold War, US Institute of Peace Press, 2006, ISBN 1929223781, p. 42.
  • "After much lobbying, the Council agreed on a resolution intended to "assist the parties to achieve a just, lasting and mutually acceptable political solution" that would provide for the self-determination of the people of Western Sahara. But the preamble went on to specify that the Council was "acting under Chapter VI of the Charter of the United Nations." In short, this remained an exercise of good offices, not binding arbitration subject to enforcement." Jensen, Erik. Western Sahara: Anatomy of a Stalemate, Lynne Rienner Publishers, 2005, ISBN 1588263053, p. 112.
  • "Thus decisions under Chapter VI, for example, to recommend terms of settlement are not binding, and even decisions under Article 40 of Chapter VII may not be." Political science quarterly, v. 90 (1975-76), Academy of Political Science, Columbia University, p. 147.
  • "The UN distinguishes between two sorts of Security Council resolution. Those passed under Chapter Six deal with the peaceful resolution of disputes and entitle the council to make non-binding recommendations. Those under Chapter Seven give the council broad powers to take action, including warlike action, to deal with “threats to the peace, breaches of the peace, or acts of aggression”. Such resolutions, binding on all UN members, were rare during the cold war. But they were used against Iraq after its invasion of Kuwait. None of the resolutions relating to the Israeli-Arab conflict comes under Chapter Seven." Iraq, Israel and the United Nations: Double standards?, The Economist, October 10, 2002.
  • "There are two sorts of security council resolution: those under 'chapter 6' are non-binding recommendations dealing with the peaceful resolution of disputes; those under 'chapter 7' give the council broad powers, including war, to deal with 'threats to the peace ... or acts of aggression'." Emmott, Bill. If Saddam steps out of line we must go straight to war, The Guardian, November 25, 2002.
  • "...there is a difference between the Security Council resolutions that Israel breaches (nonbinding recommendations under Chapter 6) and those Iraq broke (enforcement actions under Chapter 7)." Kristof, Nicholas D. Calling the Kettle Black, The New York Times, February 25, 2004.
  • "There is a hierarchy of resolutions... Chapter 6, under which all resolutions relating to the middle east have been issued, relates to the pacific resolution of disputes. Above that, there are the mandatory chapter 7 resolutions, which impose the clearest possible obligations, usually on a single state rather than on two or three states, which is what chapter 6 is there for. Chapter 7 imposes mandatory obligations on states that are completely out of line with international law and policy, and the United Nations has decided in its charter that the failure to meet those obligations may be met by the use of force." Straw, Jack. House of Commons debates, Hansard, Column 32, September 24, 2002.
  • "There is another characteristic of these resolutions which deserves a mention, and that is that they are under chapter 7 of the United Nations charter. Chapter 7 has as its heading 'Action with respect to threats to the peace, breaches of the peace, and acts of aggression'. This is the very serious chapter of United Nations rules, regulations, laws and principles, which the United Nations activates when they intend to do something about it. If the United Nations announces under chapter 7 that it intends to do something about a matter and it is not done, that will undermine the authority of the United Nations; that will render it ineffective. There are many other resolutions under other chapters. Resolution 242 gets a bit of a guernsey here every now and then. Resolution 242 is under chapter 6, not chapter 7. It does not carry the same mandate and authority that chapter 7 carries. Chapter 6 is the United Nations trying to put up resolutions which might help the process of peace and it states matters of principle that are important for the world to take into consideration. Resolution 242 says that Israel should withdraw from territories that it has occupied. It also says that Israel should withdraw to secure and recognised boundaries and that the one is dependent upon the other. Resolution 242 says that, but it is not a chapter 7 resolution." Beazley, Kim, Waiting for blow-back (speech delivered in Parliament on February 4, 2003, The Sydney Morning Herald, February 5, 2003.
  • "There are several types of resolutions: Chapter 6 resolutions are decisions pursing the Pacific Settlement of Disputes, and put forward Council proposals on negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies, and other peaceful means. Chapter 7 resolutions are decisions for Action with Respect to Threats to the Peace, involving use of force and sanctions, complete or partial interruption of economic relations, rail, sea, air, postal, telegraphic radio and other means of communication and the severance of diplomatic relations. Resolutions passed under Chapter 7 of the Charter are binding on all UN members, who are required to give every assistance to any action taken by the Council, and refrain from giving any assistance to the country against which it is taking enforcement action." Iran dossier crosses the Atlantic: Where to from here? (Microsoft Word document), Greenpeace position paper on Iran.</ref> The International Court of Justice (ICJ), however, has asserted that all UN Security Council resolutions are legally binding,[1] in its 1971 Namibia non-binding advisory opinion. This assertion by the ICJ has been countered by Erika De Wet and others.[2] 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 Nambia 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.[3]

Amoruso (talk) 18:51, 28 November 2009 (UTC)

These references are comparing Chapter VI to Chapter VII. Many of them do not say that ONLY Chapter VII resolutions are binding. That claim is your WP:Synth conclusion. These quotes don't say anything about Article 24 and 25, which are in Chapter V. harlan (talk) 19:54, 28 November 2009 (UTC)
That is incorrect. The following quote for example says: "There is another characteristic of these resolutions which deserves a mention,and that is that they are under chapter 7 of the United Nations charter. Chapter 7 has as its heading 'Action with respect to threats to the peace, breaches of the peace, and acts of aggression'. This is the very serious chapter of United Nations rules, regulations, laws and principles, which the United Nations activates when they intend to do something about it. If the United Nations announces under chapter 7 that it intends to do something about a matter and it is not done, that will undermine the authority of the United Nations; that will render it ineffective. There are many other resolutions under other chapters."
Article 24 says: The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII." Article 24 is simply a preamble that lays down specific powers. We know this because Chapter V is entitled "CHAPTER V: THE SECURITY COUNCIL" - it has no concern with power and resolutions. There is no power inherit in Article 24 itself. Obviously if Article VI, one of the powers, is not binding, then if the UN acted without invoking a power at all, then it can't be binding. Otherwise, what would have stopped the SC from acting under Chapter VII in this resolution? If anything, acting under Chapter V raises the argument that it is even inferior to a Chapter VI recommendation. Amoruso (talk) 20:53, 28 November 2009 (UTC)

Israel claimed that Chapter VI resolutions are binding under Article 25[edit]

The question of the scope of the obligation of members under Article 25 was addressed for the record by Mr Eban of Israel in his remarks about the Security Council decision of 13 January 1955 in connection with the Palestine question. His remarks are cited as evidence in the Summary of Practice of United Nations Organs for Article 25, supplement 1, volume 1, paragraphs 5-9. [11]

His verbatim statement appears in the minutes of the 688th session of the Security Council:

49. Mr. EBAN (Israel): Israel's viewpoint on the problem now under discussion has been expounded on many occasions and is amply recorded in the proceedings of the Security Council and the Egyptian-Israel Mixed Armistice Commission. I would therefore propose to submit Israel's case by way of brief summary rather than exhaustive review.
50. On 1 September 1951, the Security Council recorded its decision calling for the termination by Egypt of all interference with the passage of international commercial shipping through the Suez Canal, with special reference to shipping bound to and from Israel [S/2322]. At the same time, the Security Council categorically denied the Egyptian claim to discriminate against Israel ships or cargoes on the grounds of belligerency, and asserted that the Egyptian-Israeli General Armistice Agreement far from sanctioning belligerent practices, as Egypt contended, actually required the total cessation of those practices. The importance of this resolution should be envisaged in the light of Article 25 of the Charter, under which the Security Council's decisions on matters affecting international peace and security have a special and unique force, being, indeed, obligatory on all Member States by virtue of the latter's signature of the Charter. S/PV.688

That was a "precedent setting" viewpoint published by a WP:RS source. harlan (talk) 01:14, 29 November 2009 (UTC)

Obligatory by virtue of signature is indeed the moral obvious obligation of international law cooperation. It has nothing to do with LEGALLY binding. The fact that Egypt did not comply and was not sanctioned for not complying shows you that it is not binding. Your quotation proves the opposite of what you desired to prove. Serious OR and Off topic quotation. Also, I don't see Abba Even mentioning Chapter VI? Did i miss it? Or is it chapter V? You earlier said that the armistice agreements resolutions were made under Chapter VII. This Suez Canal resolution says: "Recalling that in its resolution 73 (1949) of I I August 1949 relating to the conclusion of Armistice Agreements between Israel and the neighbouring Arab States it drew attention to the pledges in these Agreements "against any further acts of hostility between the parties", "Recalling further that in its resolution 89 (1950) of 17 November 1950 it reminded the States concerned that the Armistice Agreements to which they were parties contemplated "the return of permanent peace in Palestine", and, therefore, urged them and the other States in the area to take all such steps as would lead to the settlement of the issues between them," and pertains directly to it, and was taken in 1951. [So if those were Chapter VII, the 1951 resolution concerning Egypt one is most likely too. Make up your mind. Not chapter VI. And even if an off statement showed double standard from an Israeli point of view, it would have nothing to do with the question of whether security council resolutions under chapter VI are binding - for that issue see quotations above.. pretty clear. Amoruso (talk) 01:30, 29 November 2009 (UTC)
Amoruso, The UN Repertory system was mandated by the General Assembly in 1952, under GA resolution 686 (VII), as a means of making the evidence of customary international law more accessible. It is a UN LEGAL publication prepared under the guidance of the Inter-Departmental Committee on Charter Repertory. The experts there cited Mr. Eban's remarks as evidence of customary UN practice regarding the obligations of members under article 25. Wikilawyerng over the difference between moral obligations and legal obligations is irrelevant unless you have a published source that discusses the Repertory of Practice of United Nations Organs.
Please read paragraphs 110-116 of the ICJ advisory opinion (starting on page 76). [12] The Court said that the Security Council was acting on behalf on the members in accordance with Article 24 of the Charter when it declared the situation in Namibia illegal, and that members were obliged to accept and carry out that decision in accordance with the terms of article 25. If you need a further explanation see "The Advisory opinion on Namibia: Which UN Resolutions are Binding under Article 25 of the Charter?", Rosalyn Hlggins, International and Comparative Law Quarterly (1972), 21:270-286 Cambridge University Press [13]. harlan (talk) 03:00, 29 November 2009 (UTC)
i think it's you who needs to read the opinion. see below. This article is not about Namibia. Just because ICJ thought that it was binding then, doesn't mean the same here. Please read and understand your own words: "THAT DECISION". Regardless, ICJ's opinion is just that, an opinion among several others, so the point is moot to begin with. Amoruso (talk) 04:44, 29 November 2009 (UTC)
This resolution was included in the General Assembly's request for an advisory opinion, and the analysis of the applicable international law supplied by the ICJ. Judge Higgins cited the Namibia decision to support the binding nature of ANY DETERMINATION OF ILLEGALITY made by a competent organ of the UN: "The obligation upon United Nations Members not to recognize South Africa's illegal presence in Namibia, and not to lend support or assistance, relied in no way whatever on "erga omnes". Rather, the Court emphasized that "A binding determination made by a competent organ of the United Nations to the effect that a situation is illegal cannot remain without consequence." (Namibia para. 117.) harlan (talk) 11:13, 29 November 2009 (UTC)

Even the ICJ didn't claim that SC Resolutions not under Chapter VII are binding[edit]

It only opined that "in determining the binding force of a Security Council decision, the following matters must be considered: the wording of the decision; the provisions of the charter upon which it is based; the intent of the Council as documented; and the context in which the decision is taken." Seeing as the resolution was not adopted under chapter VII, there were no enforcement mechanisms proposed etc, the resolution is not binding even according to the ICJ. Of course the ICJ's advisory opinion has been criticized. Anyway, this discussion is all off topic to the article. Amoruso (talk) 01:30, 29 November 2009 (UTC)

Actually he court said "It would be an untenable interpretation to maintain that, once such a declaration had been made by the Security Council under Article 24 of the Charter, on behalf of all member States, those Members would be free to act in disregard of such illegality or even to recognize violations of law resulting from it." That means your interpretation is untenable (and unpublished).
Once again, read paragraphs 110-116 of the ICJ advisory opinion (starting on page 76). [14] The Court said that the Security Council was acting on behalf on the members in accordance with Article 24 of the Charter when it declared the situation in Namibia illegal, and that members were obliged to accept and carry out that decision in accordance with the terms of article 25.
If you need a further explanation see "The Advisory opinion on Namibia: Which UN Resolutions are Binding under Article 25 of the Charter?", Rosalyn Hlggins, International and Comparative Law Quarterly (1972), 21:270-286 Cambridge University Press [15] harlan (talk) 03:10, 29 November 2009 (UTC)
What I quoted was the court's words. Every resolution is to be determined by its terms according to the ICJ. [16] See for example here]. You can also read the actual case here at page 78: [17]

"The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, al1 circumstances that might assist in determining the legal consequences of the resolution of the Security Council". Amoruso (talk) 04:37, 29 November 2009 (UTC)

We obviously need a subsection on Chapter V general powers. Don't look now, but the ICJ did perform a careful analysis of the Security Council's intentions with regard to Jerusalem and the Council's requests for Israel to rescind its measures to change the status of the occupied territories in resolutions 446, 452, 465, and 478. It decided that Israel had contravened Article 49, paragraph 6, of the Fourth Geneva Convention and the Security Council resolutions. It said that Israel's international obligation for its wrongful acts was engaged, and expressed the view that all states are under a legal obligation not to recognize or assist the illegal situation in and around East Jerusalem.
You insist on including a remark made by Secretary Muskie which demonstrated that he thought the Council intended for this resolution to have operative legal effects. The 1993 book 'International law and the administration of occupied territories', by Emma Playfair (editor) came to the same conclusion. It cited the test in the Namibia decision and said that the Security Council arguably intended for resolution 478 to be binding on the members under the terms of article 25. [18] The 1982 edition of the Foreign affairs of Pakistan‎ commented on customary practice from the perspective of a member state: "This regrettable decision is in contravention of the Security Council Resolution 478 (1980) and also runs counter to Article 25 of the Charter of the United Nations.", see page 68. I'll be adding those citations to the article too. harlan (talk) 06:07, 29 November 2009 (UTC)
You can add anything you want as long as it addresses the resolution itself, it's not your WP:OR and it's not WP:POV and doesn't constitute UNDUE WP:WEIGHT. Emma Playfair's source is indeed acceptable, contradicts some of your earlier statements, and if quotes should be quoted in full: "although... chapter VII...""at least arguable" are key words. But I'm not sure If it's WP:RS. She's not a prominent legal scholar and it should be qualifed by her Palestinian connections. Pakistani quote doesn't seem to add anything either. Amoruso (talk) 06:46, 29 November 2009 (UTC)
Also, I feel the succinct "under Article 24, not Chapter VII" should be left as it is. If Namibia is mentioned, then the article will again have to mention criticism of that case. Better leave those discussions elsewhere. Amoruso (talk) 07:01, 29 November 2009 (UTC)

The ICJ did claim that SC Resolutions adopted under Article 24 are binding[edit]

The "basic law" was placed on the Security Council agenda as the result of a letter submitted by the Representative of Pakistan.[19] The quote from the Pakistani journal of Foreign Relations is spot on topic and describes the obligation of members to accept and carry out the Security Council decisions contained in resolution 478 according to the terms of article 25. Here is a summary:

  • Note 2 on Page 1 of the Repertory says: "The question whether Article 24 confers general powers on the Security Council ceased to be a subject of discussion following the advisory opinion of the International Court of Justice rendered on 21 June 1971 in connection with the question of Namibia (ICJ Reports, 1971, page 16)." THAT DECISION applies to all subsequent Article 24 determinations of illegality. Page 19 discusses resolution 478 and says that the Security Council was "acting" on behalf of the members under Article 24 when it formally declared the legislation illegal, and when it determined that the policies and practices in the occupied territories violated the Geneva Conventions.[20]
  • An ICJ opinion is not just an opinion. In many countries international treaties and resolutions of international organizations are treated under the national constitutions as legal instruments. Countries that "give the United Nations every assistance in any action it takes in accordance with the present Charter" [21] have implemented the sanctions adopted under Article 24 on the basis of the Namibia decision despite the so-called "controversy". See National implementation of United Nations sanctions: a comparative study, By Vera Gowlland-Debbas, Djacoba Liva Tehindrazanarivelo
  • The General Assembly specifically cited resolution 478 in its request for an advisory opinion. At paragraph 22 Judge Higgins noted the SC resolutions: "The question put by the General Assembly asked the Court to respond by 'considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions'" (General Assembly resolution ES-10/14)."
  • At paragraph 24 Judge Higgins said the Court did find: "violations of Article 49 of the Fourth Geneva Convention (para. 120), and of Articles 46 and 52 of the Hague Regulations and Article 53 of the Fourth Geneva Convention (para. 132). I agree with these findings."
  • At paragraph 38 Judge Higgins said that the Article 24 determinations in this and the other Security Council resolutions were legally binding and cited Namibia as the controlling authority: "That an illegal situation is not to be recognized or assisted by third parties is self-evident, requiring no invocation of the uncertain concept of 'erga omnes'. It follows from a finding of an unlawful situation by the Security Council, in accordance with Articles 24 and 25 of the Charter entails 'decisions [that] are consequently binding on all States Members of the United Nations, which are thus under obligation to accept and carry them out' (Legal Consequences for States of the Continued Presence of' South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (19701, Advisory Opinion, I. C. J. Reports 1971, p. 53, para. 115)"
  • In International Court of Justice Firmly Walled in the Law of Power in the Israeli–Palestinian Peace Process, by Paul J. I. M. De Waart, Leiden Journal of International Law, 18 (2005), pp. 467–487 the author said that the Court's "brief analysis recited the following facts as relevant for the indication of the legal consequences of the construction of the wall in the OPT:
  • UN rejection of measures taken by Israel from 1967 onwards changing the status of East Jerusalem;#41... ...#41. The Court referred to SCresolutions 298 (1971) of 25 September 1971 and 478 (1980) of 20 August 1980 (Ibid.,at 165–6, para. 75)."

Those are all WP:RS sources and there is zero WP:OR involved. The WP:POV in the article comes from the argumentative material taken directly from the MFA website. It isn't grounded in any article of the Charter and doesn't cite any authorities. Attempts to exclude the published official positions taken by the organs of the UN regarding "binding determinations" under article 24 are not supported by WP:WEIGHT. harlan (talk) 23:34, 29 November 2009 (UTC)

Please see either above or below to understand that your attempts to include discussions of Article 24 are WP:OR. WIkipedia is not about truth - it's about quoting sources relevant to the article - DIRECTLY. Saying there's "zero WP:OR involved." doesn't help your case. Of course "The WP:POV in the article comes from the argumentative material taken directly from the MFA website." is POV, it's THEIR pov, and it's cited in the correct way, saying it's their opinion. What does weight have anything to do with it? nothing... it's a simple case of OR. You speak of this resolution, not of others, in this article.. simple. kind regards, Amoruso (talk) 00:36, 8 April 2010 (UTC)

US Embassy Act[edit]

It isn't clear why the 1995 US legislation belongs on this page, other than a "see also". What is the justification? Zerotalk 09:14, 29 November 2009 (UTC)

The article says that countries moved their embassies out of Jerusalem because of the resolution, which might be true even it's not cited, so here we have a country thinking about moving its embassy into Jerusalem. That's the justification. Amoruso (talk) 01:37, 8 April 2010 (UTC)

Muskie's Remarks[edit]

Muskie was talking about the draft resolution before it was adopted. See S/PV.2245%20%28OR%29 paragraph 106, [22]. In the Namibia case the ICJ had said "It would be an untenable interpretation to maintain that, once such a declaration had been made by the Security Council under Article 24 of the Charter, on behalf of all member States, those Members would be free to act in disregard of such illegality or even to recognize violations of law resulting from it." harlan (talk) 17:38, 27 December 2009 (UTC)

Removed OR and irrelevant discussion of Article 24[edit]

User Harlan insisted on putting what he believes is a legal opinion regarding Article 24, while at the same time erasing 20 different legal opinions that explain there's no binding application to resolutions not taken under Chapter VII. That doesn't work, not NPOV and a complete OR. In addition, in a reference to a comment by the U.S. representative, the user wanted to reference the ICJ court advisory opinion about Namibia as a response to the U.S. comment. That's also OR and a commentary - not an encyclopedic description of this resolution which is what the subject is about. Amoruso (talk) 00:11, 8 April 2010 (UTC)

Note that doing otherwise is against a consensus that was violated[edit]

User John Z explains: The best thing would be specific cites preferably with specific quotes that say what chapter this resolution was adopted under, whether it is binding or not, chapter VII or not. Anything else, on either side is or verges on OR. Please do not reinstate OR. Amoruso (talk) 00:23, 8 April 2010 (UTC)

I'm doing what John suggested. I'm quoting what the official legal publication of the United Nations says about this particular resolution. That same UN publication cites the landmark ICJ Namibia decision which said that resolutions adopted under article 24 are legally binding on members - and that within the UN this is no longer a topic for discussion.
The article used to cite a number of sources about Chapter VII resolutions, but they did not mention this particular resolution. The official policy of the UN is relevant and will be cited in any event. harlan (talk) 04:58, 8 April 2010 (UTC)
No, you're not doing that. This is what you're quoting: " they are nonetheless binding on all of the members. The Repertory of Practice of United Nations Organs says: "The question whether Article 24 confers general powers on the Security Council ceased to be a subject of discussion following the advisory opinion of the International Court of Justice rendered on 21 June 1971 in connection with the question of Namibia (ICJ Reports, 1971, page 16)." The Repertory of Practice of United Nations Organs, Article 24, Supplement No 6 (1979 - 1984), " ---> nothing here talks about this resolution. Like you said, it's a commentary and it talks about Namibia case and Article 24. Unfortunately, Namibia case and ICJ in general are controversial - most legal scholars agree that only Chapter VII resolutions are binding. Many believe that the ICJ has become a political organ, and many believe that the UN has no legitimacy to enforce anything on countries except in the framework of a chapter 7 resolution. This article is not about Namibia. Nor about the ICJ nor about UN commentaries concerning Article 24. The most you can bring is this: "X said that in his opinion Resolution 478 is binding because of ICJ remarks". That's it. If you can find such a quote and it's relevant and answers to all wikipedia guidelines, good. if not not. Amoruso (talk) 09:35, 8 April 2010 (UTC)
Furthermore, the article doesn't even say what you're saying. This is a complete misunderstanding on your behalf. ""The question whether Article 24 confers general powers on the Security Council ceased to be a subject " --> general powers sure... that's a different question all together. General powers with a BINDING effect is a different matter all together. This is your second misunderstanding. The first is you thinking that Namibia case said that Article 24 was binding. Wrong. Like I quoted for you legal opinions of scholars, and like every professor of international law will explain to you, and like a direct quote of the Namibia case itself explains, what the case said was that Article 24 CAN be binding according to different circumstances, where the chapter under which the resolution was taken is one of these factors, but not an absolute factor. This is the famous Namibia test. You even brought sources which mention did test but you for some reason ignore that. This is the notorious Namibia test:

"The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, al1 circumstances that might assist in determining the legal consequences of the resolution of the Security Council".

What you did before was ignore this legal test of the case, and bring this quote that "SUCH a resolution that was taken under...... is binding" - SUCH doesn't refer to THIS resolution.
What this UN document says is that the Council has power to make resolutions outside of Chapter VI or VII (maybe, if it says anything all) - it doesn't mention the word binding here, so it's irrelevant for that reason as well. The entire quotation really makes little sense at this point and doesn't support your argument. Do not reinstate this material again without consensus. You inserted it a month after we realized that there's no consensus to insert it, and you're trying again to insert it without consensus. Amoruso (talk) 09:44, 8 April 2010 (UTC)
Amoruso, the ICJ already analyzed resolution 478 and you are ignoring their conclusions. If you look in the sections above, John Z already stated that the Namibia case was not obscure and disagreed with your position. I cited an article by Paul De Waart about the majority opinion in the Wall case, and the advisory opinion of Judge Higgins regarding the relevance of the South West Africa/Namibia precedent to any Security Council resolution involving a determination of illegality. Please stop talking nonsense about "consensus". There hasn't been so much as an RFC on this issue. There was no discussion of the UN repertory before I raised the matter, and you are the lone editor who is trying to complain about the use of that source now. Legal scholars do not settle disputes regarding the interpretation of the UN Charter or international law. Those tasks are listed among the purposes and functions of the ICJ.
I'm quoting two passages from the same volume of the repertory, i.e. See Note 2 on Page 1 and page 19 [23]. That material is published by a very reliable source on matters of international law, and it isn't original research or a synthesis. It is backed up by the written opinions of publicists and judges in the Wall case, so I'll add that information as well.
  • Paul De Waart noted that Resolution 478 was one of many relevant resolutions adopted pursuant to the Charter that were included in the ICJ's legal analysis in the Wall Case. The Court noted that the Security Council, by resolution 478 (1980) of 20 August 1980, stated that the enactment of the Basic Law Jerusalem constituted a violation of international law. The Court concluded that East Jerusalem and the West Bank and Gaza ‘remain occupied territories and that Israel despite subsequent events in these territories to the contrary, has continued to have the status of occupying Power’. The Court concluded that the Israeli settlements in Occupied East Jerusalem have been established in breach of international law and said that the illegal situation can only be brought to an end through implementation in good faith of all relevant Security Council resolutions. See the ICJ Advisory Opionion, para 75, 86, 120, and 162.[24]; and De Waart, Paul, "International Court of Justice Firmly Walled in the Law of Power in the Israeli–Palestinian Peace Process, Leiden Journal of International Law, 18 (2005), pp. 467–487.
and? we know it's a violation of international security resolution - hence international law. it's what the sources call moral obligation. It doesn't have any legally binding nature.. this is irrelevant to the discussion. this was an advisory (and political) decision. it has no bearing on the binding issue. Amoruso (talk) 13:29, 8 April 2010 (UTC)
  • Judge Higgins said the Court had already found in a contentious case that a Security Council determination of an illegal act "entails a legal consequence, namely that of putting an end to an illegal situation" (Huyu de lu Torre, Judgment, I.C.J. Reports 1951, p. 82). She said there was no need to invoke the concept of erga omnes, and cited the decision in the Namibia case as a controlling authority in regard to the decisions made by the Security Council regarding illegal situations: "It follows from a finding of an unlawful situation by the Security Council, in accordance with Articles 24 and 25 of the Charter entails "decisions [that] are consequently binding on all States Members of the United Nations, which are thus under obligation to accept and carry them out". See Advisory Opinion of Judge Higgins para 38 [25] harlan (talk) 13:10, 8 April 2010 (UTC)
again, so? you're going in circles. Find me a quote that says that resolution 478 is binding. Not chapter X or chapter Y in certain circumstances. Quoting controversial advisory opinions about chapters' possible legality, and somewhere there the resolution is referenced among others (it's still not clear where it's actually referenced by your quotations - you're just throwing stuff out there), and presenting it as if THIS resolution is binding LOL as a fact - is not ok. These quotes do exist, so if you want just put them in as that person's opinion. Amoruso (talk) 13:29, 8 April 2010 (UTC)
" If you look in the sections above, John Z already stated that the Namibia case was not obscure and disagreed with your position." --> incorrect. John Z has a different opinion but he agreed that we should reference directly things to this resolution. Of course it's not obscure - but it's irrelevant to this article. It's relevant for other articles.Amoruso (talk) 13:34, 8 April 2010 (UTC)

Let's simplify the dispute[edit]

  • You claim that the resolution was taken under Chapter V, Article 24, and not under a specific power article in Chapter VI or Chapter VII. Let's assume this is true.
  • You claim that resolutions taken under this specific article without invoking any specific powers are binding. You quoted passages from the ICJ to this effect (even though the Namibia test clearly says that no article is automatically binding and this test is the one frequently quoted - even by your sources). At any rate, These passages are controversial. If you insert them, we'll have to include the criticism of the ICJ decision and perhaps criticism of the ICJ as a whole, especially how controversial was the UN referral of the Wall decision to the ICJ in the first place. Many countries both in Europe and in North America have made serious objections against the referral of the case to the ICJ to begin with. In fact, 32 countries and the European Union (representing 15 countries) have submitted statements to the ICJ arguing that it does not have jurisdiction on this matter and opposing the referral, including Canada, Australia, the United States, South Africa, and Russia.
  • Your quotes from the controversial ICJ wall case: One judgeprofessor commenting on the ICJ case refers to Resolution 478 but doesn't say it's binding. Another Judge says that certain resolutions that refer to illegal situations are binding - but she doesn't say Resolution 478 is one of them. Regardless, note that you never explained it in this way in the article - you never said judge X said that and definitely did not explain that it was within the framework of a controversial advisory, and political, opinion, which Israel ignored to begin with. Amoruso (talk) 13:57, 8 April 2010 (UTC)
  • You claim that the resolution was included in a repertory of the UN (without clarifying the signfiicance of this repertory) and that there was a comment there about "no dispute over the general powers conferreed by Artilce 24". Let's assume this is relevant - general powers DOES NOT equal legally binding.
  • So I ask you once again, please, to only include people's direct statements regarding this resolution, not to make general comments about universal truth or universal law and international law discussions. Please keep this short and to the point - this article deals only with resolution 478, so it has to be clearly relevant and legible for everyone to understand. Amoruso (talk) 13:44, 8 April 2010 (UTC)

(outdent) Your wikilawyering has lost contact with reality, so I'll just incorporate my answers to any relevant objections that you've raised in my edits to the article. You might be interested in reading the actual written submissions of the various state parties in the Wall case. They are available online here.[26] None of them questioned the Court's legal jurisdiction. They cited political considerations connected with the Quartet Roadmap negotiations, and requested that the Court exercise its discretion to turn down the request for an opinion.

The EU stated that an advisory opinion was unnecessary because its members had drafted and adopted ES-10/13 which declared the construction of the wall was a violation of international law. The Russian Federation also voted for that resolution. South Africa cited resolution 478 and Israel's obligation to accept and implement it, and other relevant resolutions, in accordance with Article 25 of the Charter. If you had bothered to read the resolution, or the repertory, you'd have known that it contained several article 24 decisions regarding Israel's failure to implement earlier resolutions, and provided that the Secretary-General would have to report back on the implementation of this and the earlier resolutions. That didn't leave any wiggle room for interpretation under the rules of analysis prescribed in the Namibia case, and Judge Higgins said as much. Several sources noted that she was answering the question put to the Court by the General Assembly about principles of international law contained in Security Council resolutions. BTW, the General Assembly mandated the repertory to make the evidence of international law more accessible. The views of Israel and Muskie belong in a reception and criticism section balanced by the many published comments expressing favorable opinions of the resolution, and etc. harlan (talk) 14:06, 11 April 2010 (UTC)

Your statement "None of them questioned the Court's legal jurisdiction" is a complete lie [27], and so the rest of the post is completely inaccurate. Irrelevant though. What are you trying to say, seriously? that the ICJ in the wall case said that this resolution is binding? I don't know at this point what are you trying to say. it's you who's wiki lawyering. i'm not interested in debating things with you that have no relation to this article. Amoruso (talk) 14:16, 11 April 2010 (UTC)
one of the legal basis against jurisidcition presented by countries and by legal scholars is that while The General Assembly is authorized by the U.N. Charter to ask the ICJ to render an advisory opinion on any legal question, according to the language of Article 12 of the U.N. Charter, in order for the General Assembly to act, the Security Council may not simultaneously be exercising any of its functions with respect to the dispute or the situation in question.

The ICJ interpreted Article 12 differently. It (incorrectly) held that due to the increasing tendency over time for the General Assembly and the Security Council to deal in parallel with the same matter concerning the maintenance of international peace and security, Article 12 had evolved to permit the current action of the General Assembly. It is interesting that the ICJ was so willing to note the evolution in interpretation of certain articles of the U.N. Charter with respect to its jurisdiction, but did not even consider the possibility of evolution in interpretation of Article 51, which concerned Israel’s right to self-defense.

Another basis against jurisdiction was that the General Assembly did not really set forth a legal question. Israel argued that the question regarding the “legal consequences” of the construction of the “wall” only allows for two possible interpretations, each of which would lead to a course of action precluded for the ICJ. It could first be interpreted as a request for the Court to find that the construction of the wall is illegal, and then give its opinion on the legal consequences of that illegality. Israel contended that if the General Assembly had wished to obtain the view of the Court on the highly complex and sensitive question of the legality of the construction of the wall, it should have expressly sought an opinion to that effect.

A second possible interpretation of the General Assembly’s question, according to Israel, was that the Court was supposed to assume the construction of the wall was illegal and give its opinion on that assumed illegality, and it would be improper to rule on such a questionable assumption. Furthermore, Israel pointed out that the question itself is imprecise and abstract, as it fails to specify whether the legal consequences sought are the consequences for the General Assembly, another organ of the U.N., the Member States, Israel, the Palestinian Territory, a combination of these, or a different entity altogether.

Another claim against the ICJ’s jurisdiction to issue an advisory opinion was Israel’s lack of consent to a request concerning a solely contentious matter between Israel and Palestine.
The jurisdiction of the ICJ on this matter was completely challenged, and the ICJ's urge to condemn Israel was due to it being another political organization of the UN, not legal per se or unbiased. Amoruso (talk) 15:29, 11 April 2010 (UTC)

(outdent) Amoruso Israel's views were clearly not shared by the other states that you mentioned, or the High Contracting Parties to the Geneva Convention. Israel's argument was moot, since the relevant resolutions and the question put to the Court dealt with violations of the Geneva Convention. For example, violations of Article 49(6) of the Fourth Geneva Convention are subject to universal jurisdiction, because they are not merely disputes between two states, or acts in which only a single state has a legal interest.

You are laboring under the incorrect impression that you can use hyperbole as an excuse to purge the official published legal positions of the United Nations and other well sourced material from articles under I-P sanctions.

The UN's International Law Commission noted an earlier example, The Repertoire of Questions of General International Law before the League of Nations, 1920-1940, published by the League's Geneva Research Centre. It advised that "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." [28]

Article 13 of the UN Charter tasks the General Assembly with promoting the progessive codification of international law and it adopted GA resolution 686 (VII), "Ways And Means For Making The Evidence Of Customary International Law More Readily Available" It mandated the répertoire of the practice of UN organs, prepared under the supervision of the Secretariat of the United Nations.

Mr. Eban's comment about a Chapter VI Security Council resolution was cited as evidence of practice in "The Summary of Practice of United Nations Organs for Article 25", supplement 1, volume 1, paragraphs 5-9. He said that "The importance of this resolution should be envisaged in the light of Article 25 of the Charter, under which the Security Council's decisions on matters affecting international peace and security have a special and unique force, being, indeed, obligatory on all Member States by virtue of the latter's signature of the Charter."

The question put to the Court dealt with the legal consequences of relevant Security Council resolutions in light of the principles of international law contained in them. Of course, Judge Higgins advised that one of the self-evident principles of international laws is that an illegal situation is not to be recognized or assisted by third parties. She said that it follows from a finding of an unlawful situation by the Security Council, in accordance with Articles 24 and 25 of the Charter entails "decisions [that] are consequently binding on all States Members of the United Nations." See also the De Waart article and Rosalyn Higgins, "The Advisory opinion on Namibia: Which UN Resolutions are Binding under Article 25 of the Charter?", International and Comparative Law Quarterly (1972), 21:270-286 Cambridge University Press. harlan (talk) 02:32, 12 April 2010 (UTC)

Simplify it even more for dummies like me[edit]

The footnote says:

^ Muskie was talking about the draft resolution before it was adopted. See S/PV.2245(OR) paragraph 106, [1]. In the Namibia case the ICJ had said "It would be an untenable interpretation to maintain that, once such a declaration had been made by the Security Council under Article 24 of the Charter, on behalf of all member States, those Members would be free to act in disregard of such illegality or even to recognize violations of law resulting from it."


Muskie actually says (from the source given) "110 So that there can be no mistake, let me note that we will continue firmly and forcefully to resist any attempt impose sanctions against Israel under Chapter VII of the Charter. That step is contained in a draft resolution presented here but not to be voted upon. [s/14106] We are unalterably opposed to it. We will vote against any such draft resolution."

An RS is needed to establish whether this is at all relevant to this case. How is the Namibia case relevant to this case? What does the ICJ means when it refers to "once such a declaration as been made"? What type of declaration is "such a declaration?" This is a primary source and we need to be careful how we use them. I know you have your own analysis but that is not sufficient for WP. It is not up to us to make the case, but up to some other notable and reliable source. WP:

::Our policy: Primary sources that have been reliably published may be used in Wikipedia, but only with care, because it is easy to misuse them. Any interpretation of primary source material requires a reliable secondary source for that interpretation. A primary source can be used only to make descriptive statements that can be verified by any educated person without specialist knowledge. For example, an article about a novel may cite passages to describe the plot, but any interpretation needs a secondary source. Do not make analytic, synthetic, interpretive, explanatory, or evaluative claims about material found in a primary source. Do not base articles entirely on primary sources. Do not add unsourced material from your personal experience, as that would make Wikipedia a primary source of that material.

Stellarkid (talk) 04:12, 17 April 2010 (UTC)

This is WP:OR and fails the WP:SYN test: "The Repertory of Practice of United Nations Organs says: "The question whether Article 24 confers general powers on the Security Council ceased to be a subject of discussion following the advisory opinion of the International Court of Justice rendered on 21 June 1971 in connection with the question of Namibia (ICJ Reports, 1971, page 16)."[1] Stellarkid (talk) 06:09, 17 April 2010 (UTC)

Harlan, why do you continue to put this in when it is clearly WP:SYNTH Stellarkid (talk) 06:15, 17 April 2010 (UTC)

Further you are editing in your personal POV and if you continue I will be forced to put a POV tag on it. Perhaps we will have to go to some form of mediation since you are putting in your own synthesis here, including material presumably impugning Muskie's motives and whether he was accurately reflecting the US position or whether he was catering to Jewish voters. This is not necessary. Please stick with the subject and try to strip off your POV here. Stellarkid (talk) 07:01, 17 April 2010 (UTC)

The article is citing a primary source, the verbatim Security Council record, for the comments made by Muskie and Israel. Needless to say the editorial content comes from the MFA website, another primary source. I most certainly can quote the Israeli Law Journal, the U.S. State Department memo, the ABC News, and the Stanford University Political Science Journal criticism of Muskie's remarks. NPOV requires the inclusion of all the significant viewpoints that have been published on the subject. harlan (talk) 13:30, 17 April 2010 (UTC)

Issues for Moderation/ARBCOM Accusations of WP:OR and WP:SYNTH[edit]

There is no WP:OR, WP:Syth, or personal POV involved. The United Nations has its own legal personality which is distinct from that of its members. You are objecting to the inclusion of material that reflects the official position of the United Nations regarding the resolution. The UN publishes that material in order to make the evidence of the rules and principles of international law more readily available. This resolution contains a finding of an unlawful situation and there are customary and conventional rules of international law that apply to that situation.

In the Wall case, the Court was specifically asked about the legal consequences of the rules and principles of international law contained in this resolution.

  • The General Assembly request for an advisory opinion (Resolution ES-10/14) specifically cited SC resolution 478 as a "relevant resolution", and asked the Court what are the legal consequences arising from the construction of the wall considering the rules and principles of international law, including the Fourth Geneva Convention, and "the relevant Security Council and General Assembly resolutions?" The Court cited resolution 478 and the decision not to recognize the basic law in its legal analysis at (para 75) and stated that the applicable rules and principles of international law which are relevant in assessing the legality of the measures taken by Israel can be found in the United Nations Charter and certain other treaties, in customary international law and in the relevant resolutions adopted pursuant to the Charter by the General Assembly and the Security Council (para 86).[29]
  • Prof. De Waart noted: that the Court's legal analysis in the Wall Case had cited the UN rejection of measures taken by Israel from 1967 onwards changing the status of East Jerusalem and the SC resolution 478 requirement that other states not recognize or assist Israel: "In the Namibia case the Court considered that when the SC adopts a decision under Article 25 in accordance with the UN Charter it is for member states to comply with that decision, 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. To hold otherwise would be to deprive this principal organ of its essential functions and powers under the Charter." De Waart said that Professor J. Salmon had cited those rules from the Namibia case in his oral arguments in the Wall case on 23 February 2004. see De Waart, Paul J. I. M., "International Court of Justice Firmly Walled in the Law of Power in the Israeli–Palestinian Peace Process", Leiden Journal of International Law, 18 (2005), pp. 467–487, especially 474, and 485-486. This is a secondary source that has been mentioned repeatedly on this talk page.
  • At paragraph 22 of her opinion Judge Higgins noted the SC resolutions: "The question put by the General Assembly asked the Court to respond by 'considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions'" (General Assembly resolution ES-10/14)."
  • At paragraph 38 Judge Higgins said that the Article 24 determinations in this and the other Security Council resolutions were legally binding and cited the Namibia case as the controlling authority: "That an illegal situation is not to be recognized or assisted by third parties is self-evident, requiring no invocation of the uncertain concept of 'erga omnes'. It follows from a finding of an unlawful situation by the Security Council, in accordance with Articles 24 and 25 of the Charter entails 'decisions [that] are consequently binding on all States Members of the United Nations, which are thus under obligation to accept and carry them out' (Legal Consequences for States of the Continued Presence of' South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (19701, Advisory Opinion, I. C. J. Reports 1971, p. 53, para. 115)"[30]

The UN Charter is an international convention establishing rules expressly recognized by the member states. Article 25 of the Charter says that "The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter". The Repertory of Practice of United Nations Organs is an official legal publication containing mandated analytical studies of the decisions of the principal organs of the United Nations under the Articles of the Charter of the United Nations. [31]

  • The International Law Commission took note of the earlier practice of the League of Nations in preparing The Repertoire of Questions of General International Law before the League of Nations, 1920-1940 and reported that records of the cumulating practice of international organizations, like the UN, may be regarded as evidence of customary international law with reference to States' relations to the organizations. See Ways and means for making the evidence of customary international law more readily available
  • One of the purposes of the General Assembly under Article 13 of the UN Charter is to promote the progressive codification of international law. General Assembly resolution 686 (VII), "Ways And Means For Making The Evidence Of Customary International Law More Readily Available" mandated that a reportery of the practice of the UN organs be prepared by the Secretariat units concerned.[32]
  • The Repertory of Practice of United Nations Organs says that during the United Nations Conference on International Organization which met in San Francisco in 1945, attempts to limit obligations of Members under Article 25 of the Charter to those decisions taken by the Council in the exercise of its specific powers under Chapters VI, VII and VIII of the Charter failed. It was stated at the time that those obligations also flowed from the authority conferred on the Council under Article 24(1) to act on the behalf of the members while exercising its responsibility for the maintenance of international peace and security. See page 5, The Repertory of Practice of United Nations Organs, Extracts Relating to Article 25 [33]
  • The Repertory of Practice of United Nations Organs says Article 24, interpreted in this sense, becomes a source of authority which can be drawn upon to meet situations which are not covered by the more detailed provisions in the succeeding articles. See The Repertory of Practice of United Nations Organs, Extracts Relating to Article 24, [34]

The same volume of the Repertory on Article 24 which says: "The question whether Article 24 confers general powers on the Security Council ceased to be a subject of discussion following the advisory opinion of the International Court of Justice rendered on 21 June 1971 in connection with the question of Namibia (ICJ Reports, 1971, page 16)" - also enumerates each of the decisions in Security Council resolution 478 taken by the Council under article 24 of the Charter. If you had actually read the citation you would not be asking for a source which says the decisions were taken on behalf of the members under Article 24. See See Note 2 on page 1 of Sup. 6, vol. 3, Article 24 and the entries on the following pages:

  • Page 12 of 30

II. Determination of the nature of the question
Affirming that measures and actions obstruct the achievement of peace in a region:
Situation in the Middle East:
Resolution 478 (1980) of 20 August 1980, para. 4

  • Page 19 of 30

The Council formally declaring:
1. Illegal legislative and administrative measures invalid:
(i) Situation in the Middle East:
Resolution 478 (1980) of 20 August 1980, para. 3

  • 4. That policies and practices changing the demographic

character of occupied territories violate the Geneva Convention of 1949:
Situation in the Middle East:
Resolution 478 (1980) of 20 August 1980, para. 2

  • page 24 of 30

VIEL Measures to promote the implementation of resolutions
B. Measures to obtain compliance:
Reaffirming other previous decisions of the Council:
Situation in the Middle East:
Resolution 478 (1980) of 20 August 1980, preamble

  • page 25 of 30

Requesting States to cooperate in the implementation of
resolutions and decisions of the Council:
Resolution 478 (1980) of 20 August 1980, para. 5 (a) and (b)

  • Page 26 of 30

F. Deprecation of refusal or failure to implement the resolu-
tions and decisions:
2. Of the Security Council:
(i) Situation in the Middle East:
Resolution 478 (1980) of 20 August 1980, para. 1

  • G. Authorizing or requesting the Secretary-General:

1. To report on the implementation of a resolution or
decision of the Council:
(i) Situation in the Middle East:
Resolution 478 (1980) of 20 August 1980, para. 6

  • Page 29 of 30

IX. Measures to ensure further consideration
A. Request for information from the Secretary-General re-
garding the implementation of a decision of the Security
Council:
(i) Situation in the Middle East:
Resolution 478 (1980) of 20 August 1980, para. 6

  • Page 30 of 30

B. Provision by express decision to consider the matter further:
(i) Situation in the Middle East:
Resolution 478 (1980) of 20 August 1980, para. 7

harlan (talk) 11:32, 17 April 2010 (UTC)

you are making this needlessly complicated. We are talking specifically about Resolution 478.

Your points are all tangential to the article at hand. The wall was not even built when this resolution came into being. The fact that this resolution was referenced in an advisory opinion by the ICJ on the wall might be mentioned in passing, but there are caveats here, such as the fact that the ICJ opinion was non-binding and advisory only. This ICJ opinion is another primary source which must be used with caution and a later development which really has very little bearing on the description of this resolution.

The DeWaart analysis is indeed a secondary source, and I object to that only on the grounds that we are not arguing the legality or binding nature of UN resolutions under various chapters. That would be for an article about UN Resolutions in general or about Chapter 25 or Chapter7 etc. This is not for WP to push as we are not legal scholars. Please review again WP policy with respect to primary sources. Your citations may well have been superseded by something that you or I may not be aware of. That is one reason we use reliable secondary sources.

It may at best be fair to mention that the legality or binding nature of this resolution has been questioned, but both sides must be heard from, including legal scholars and important figures from both sides. Judge Higgins with respect to Chapter 24 and 25 of the Charter in an opinion on Namibia is very far removed from an article describing Resolution 248.

Certainly every UN resolution could be approached from all sides, such as 1701 for example, or 181, and the legality of each can be rejected as well as ignored. The reality is that most resolutions are more honored in the breach. But that is my opinion and not to be put up even if I can prove it with all sorts of primary sourced citations.

Finally I never asked for a source that says the decisions were taken under Article 24. I said and say again, that most of what you have put up as bearing on this resolution is an example of WP:SYNTH and your own personal analysis. You have put up a lot of legal and primary sources, but you have not explained how all this is even remotely necessary or appropriate to this article.Stellarkid (talk) 05:18, 19 April 2010 (UTC)

The article presents a legal argument, made by Muskie, which holds that a portion of the resolution is null and void. The subsequent legal analysis of the primary judicial organ of the UN provides a different analysis from a reliable published source. It says that members have an obligation not to recognize or help maintain an illegal situation.
Your interpretation of WP:Synth is incorrect. I am citing published analysis. The General Assembly labelled resolution 478 as a "relevant resolution" and requested a legal analysis of the legal consequences of the relevant resolutions. The Repertory specifically discusses both the Namibia precedent and the decisions contained in resolution 478. De Waart noted that the General Assembly had specifically asked about resolution 478 in their request for an opinion. He also cited the Namibia precedent and said that it came up in oral arguments. Judge Higgins cited the General Assembly's question with regard to the relevant Security Council resolutions, and she responded by applying the Namibia precedent. Those are not tangential issues. harlan (talk) 10:03, 19 April 2010 (UTC)

No context for your last revert[edit]

I changed the position of the "illegalities" section because (there is no evidence of "illegalities" with respect to Geneva Convention etc as you put it) but before we discuss the niceties of the law, the discussion of the law by the United States and Israel to the Council should be there first. What is your problem with that? Stellarkid (talk) 04:09, 19 April 2010 (UTC)

How can unilateral annexation not be illegal in the context of international law? See Right of conquest. Unomi (talk) 04:29, 19 April 2010 (UTC)
What definition of illegality do you use? The Repertory noted changes to the demographic character of the occupied territory "in violation of the Geneva Convention". The ICJ found that Palestinians had been displaced; and that Israel has facilitated the transfer of portions of its own population into the occupied territory. It said those demographic changes contravene Article 49, paragraph 6, of the Fourth Geneva Convention of 1949.
Article 8 of the Rome Statute describes those acts as "serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law", under the heading War Crimes. harlan (talk) 10:44, 19 April 2010 (UTC)

Firstly, the only suggestion of "illegality" that the resolution asserts is the Basic Law. The resolution merely says that the Geneva Convention in its judgment, "continues to apply." We are not discussing either the Rome Statute or the Repertory. Please review what other editors above have said above and stop adding your own personal analysis of the issues. You clearly have no consensus to do so. It is clear to any neutral editor from the above talk page that Chapter VII resolutions are the only ones that are "binding." At best you can use Emma Playfair who says it is arguably binding. However, it is totally inappropriate and WP:OR for us to be debating this at the article. It is simply commentary on the resolution and that is not what we are supposed to be doing here. Stellarkid (talk) 16:49, 20 April 2010 (UTC)

You are mistaken. You are citing Muskie's remarks from S/PV.2245 (OR) and that verbatim record discusses the fact that settlements in the occupied territory are illegal (para 77) and specifically states that resolution 476 had clearly warned Israel that its actions were illegal before it adopted the basic law (para 19), i.e. that resolution called them a flagrant violation of the Fourth Geneva Convention. This resolution:
  • Recalls Resolution 476
  • Noted that Israel had not complied with resolution 476
  • Reaffirmed its determination to secure the full implementation of its resolution 476 (1980)
I've already explained in the Moderation/Arbcom section above that the Repertory cites each of those as a separate decisions adopted under Article 24.
The Repertory and S/PVs are official publications of the UN that are always applicable evidence of the decisions contained in a resolution. The Repertory says "B. Measures to obtain compliance: Reaffirming other previous decisions of the Council: Situation in the Middle East: Resolution 478 (1980) of 20 August 1980, preamble" The Council Formally Declaring: 4. That the policies and practices changing the demographic character of occupied territories violate the Fourth Geneva Convention of 1949 - Situation in the Middle East - Resolution 478 (1980) of 20 August 1980, para 2. I don't see a bit of evidence that you intend to submit this issue to Moderation and your edits are obviously an attempt to prevent the official UN position from being included in the article. You have also removed Muskie's remark that Jerusalem's status cannot be unilaterally declared. harlan (talk) 20:27, 20 April 2010 (UTC)

Déjà vu Moved for discussion[edit]

I moved this here for discussion. This topic may fascinate outside legal scholars, but it is no longer a topic of discussion within the UN organization. You need to attribute opinions to their sources in the text of the article. The neutral voice of the encyclopedia cannot be used to argue against the travaux préparatoires to the UN Charter or the position of the UN organization on a constitutional matter.

De Hoogh does not discuss Chapter V, Article 24, or this resolution on page 371. He does not say that only Chapter VII resolutions are binding on that page. What he does say is that the Security Council cannot adopt binding resolutions under the powers contained in Chapter VI. The concatenation with the material from the essays in the Playfair book is a WP:Synth construction.

On pages 122-125 De Hoogh discussed the Nambia decision and said the court proceeded with its assessment that the Security Council had made a binding Article 24 decision of illegality. He noted that there is a prohibition on acquiring territory by force, and that even in cases where the Security Council or the General Assembly only makes a recommendation, member states have an independent duty to determine the facts and not to recognize or assist wrongful acts. So, it is simply perverse to use him to support a violation of an obligation erga omnes:

Although it is generally accepted that only Security Council resolutions under Chapter VII are binding <ref name="DeHoogh">{{cite book |title=Obligations Erga Omnes and International Crimes |pages=371 |author=Andre DeHoogh |year=1996 |publisher=Martinus Nijhoff Publishers}}</ref> it has been noted that it is "arguable" that an Article 24 may be considered binding. <ref name="Playfair">{{cite book |title=International Law and the Administration of Occupied Territories |author=Emma Playfair, Editor |isbn=978-0-19-825297-9}}</ref>

And I moved this here for the same purpose.


The Repertory of Practice of United Nations Organs is a legal publication, which analyzes and records the decisions of the UN organs.[4] It states that the decisions were adopted by the Security Council acting on behalf of the members under Article 24.[5] Judge Higgins in an advisory opinion some years after the adoption of resolution 478, states that although some determinations were not adopted under Chapter VII of the Charter, determinations regarding "illegal situations" are nonetheless considered to be binding on all of the members.[6] The Repertory says: "The question whether Article 24 confers general powers on the Security Council ceased to be a subject of discussion following the advisory opinion of the International Court of Justice rendered on 21 June 1971 in connection with the question of Namibia (ICJ Reports, 1971, page 16)."[5]

The subsequent advisory opinion of the International Court of Justice expressed the view that all States are under an obligation not to recognize the illegal situation in and around East Jerusalem.[7]


It is all WP:SYNTH and it is not up to us to determine. (My addition was merely by way of compromise.) It is not an enforceable decision. If you can't enforce something, how is it binding? The US has said it does not consider it binding and while other situations have been argued that obliquely reference this resolution, it has simply not been adjudicated. This shouldn't be in the article at all. It is not informative, merely confusing to the general reader. Stellarkid (talk) 18:36, 20 April 2010 (UTC)

You are mistaken. You are citing Muskie's remarks from S/PV.2245 (OR) and that verbatim record discusses the fact that settlements in the occupied territory are illegal (para 77) and specifically states that resolution 476 had clearly warned Israel that its actions were illegal before it adopted the basic law (para 19), i.e. that resolution called them a flagrant violation of the Fourth Geneva Convention. This resolution:
  • Recalls Resolution 476
  • Noted that Israel had not complied with resolution 476
  • Reaffirmed its determination to secure the full implementation of its resolution 476 (1980)
I've already explained in the Moderation/Arbcom section above that the Repertory cites each of those as separate decisions adopted under Article 24.
The Repertory and S/PVs are official publications of the UN that are always applicable evidence of the decisions contained in a resolution. The Repertory says "B. Measures to obtain compliance: Reaffirming other previous decisions of the Council: Situation in the Middle East: Resolution 478 (1980) of 20 August 1980, preamble" The Council Formally Declaring: 4. That the policies and practices changing the demographic character of occupied territories violate the Fourth Geneva Convention of 1949 - Situation in the Middle East - Resolution 478 (1980) of 20 August 1980, para 2. I don't see a bit of evidence that you intend to submit this issue to Moderation and your edits are obviously an attempt to prevent the official UN position from being included in the article. You have also removed Muskie's remark that Jerusalem's status cannot be unilaterally declared. I'd suggest you self revert. harlan (talk) 20:32, 20 April 2010 (UTC)

I meant to have written "enforceable" as that is the general consensus with respect to Chapter VII. But I think none of it belongs in there anyway. It is a better article without sorts of legalese. As I said earlier, 478 has never been challenged in and of itself and thus tangential decisions referring to it are irrelevant. Furthermore, advisory opinions about another matter are not binding either. But all that violates WP:PRIMARY . If you want to put in such stuff, it should be from secondary sources.

Resolution 478, which is what we are defining here, does not say anything about a violation of the 4th Geneva Convention. It merely says that according to the resolution, it applies to Jerusalem.

With respect to Muskie's comments, they were meant to elucidate America's position, considering that America was the only country that abstained. The remark that Jerusalem's status cannot be unilaterally declared is contained/understood in the comment that "The question of Jerusalem must be addressed in the context of negotiations for a comprehensive, just and lasting Middle East peace." It is a broader and clearer statement and implies that it cannot be "unilaterally declared." You cannot unilaterally declare something that requires negotiations. It's an oxymoron. You see, this is exactly the problem that WP talks about in WP:PRIMARY. "Primary sources that have been reliably published may be used in Wikipedia, but only with care, because it is easy to misuse them. Any interpretation of primary source material requires a reliable secondary source for that interpretation. A primary source can be used only to make descriptive statements that can be verified by any educated person without specialist knowledge. Do not make analytic, synthetic, interpretive, explanatory, or evaluative claims about material found in a primary source." The use of ICJ opinions or Repertory of Practice etc are all primary sources, and you are stringing them together to make a statement with regard binding or not binding, which is interpretation of those sources. This shouldn't be this hard! Stellarkid (talk) 23:39, 20 April 2010 (UTC)

Now I realise that WP is not to be used as a RS, however, if you read United Nations Security Council you will see that it says among other things: "Security Council Resolutions are legally binding if they are made under Chapter VII (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression) of the Charter." and "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.[19][20][21][22][23] [24][25][26][27] One argument is that since they have no enforcement mechanism, except self-help, they may not be legally binding.[28]" Stellarkid (talk) 00:11, 21 April 2010 (UTC)

Special Research Report Security Council Action Under Chapter VII: Myths and Realities, June 2008

Section on Namibia:

Despite this opinion, there continued to be disagreement within the Council’s Ad Hoc Sub-Committee on Namibia on whether to follow the Court’s conclusion and reaffirm “the obligation of all Members of the United Nations, under Article 25 of the Charter, to accept and carry out the decisions of the Security Council” .(S/10330)

In subsequent debates in the Council, the representatives of France, the UK and others pointed to their disagreement with the Court’s opinion. The French representative argued that binding decisions are limited to those situations under Article 39 and that they must clearly have fallen “within the framework of Chapter VII of the Charter and have been adopted as a result of the establishment of threats to the peace, as required by Article 39” (S/PV.1588). The UK representative stated that his government considered that “the Security Council can take decisions generally binding on member states only when the Security Council has made a determination under article 39 that a threat to the peace, breach of the peace or act of aggression exists. Only in these circumstances are the decisions binding under Article 25” (S/PV.1589).

The underlying argument seems to be that the Council’s power to make binding decisions is confined to Chapter VII and that the binding “decisions” referred to in article 25 are only those adopted by the Council under Chapter VII.

{skip}

The key point is that the analysis of the nature of Council resolutions often needs to take into account not just the text or the general circumstances at the adoption, but also the possibility that this assessment may be conclusively determined only from subsequent Council discussions. In some cases, then, the possibility of evolution in the Council’s understanding of its own decisions is critical.


The article discusses ambiguity in the SC language, with respect to words such as "decides" or "calls upon." It may appear to be settled law, but clearly it is still a matter of some dispute and disagreement. The U.S. has said it does not consider itself bound by it much as France and UK have said that it did not consider itself bound unless “the Security Council can take decisions generally binding on member states only when the Security Council has made a determination under article 39 that a threat to the peace, breach of the peace or act of aggression exists." Ultimately the UN is a collection that stays together in a voluntary union based on agreement with basic principles. If you want to include the binding nature of this article based on the ICJ's opinion on Namibia, it would be important to include the fact that a number of major democratic countries disagree with the court's assessment. Stellarkid (talk) 05:42, 21 April 2010 (UTC)

Stellarkid, my objection remains the same. This article is about the decisions adopted by the Security Council in this particular resolution. The UN is an organization that regulates its own operations according to the Charter, its travaux préparatoires, and the decisions of the ICJ. The UN SC Secretariat unit and the Court have published the official UN legal analysis of the resolution in that connection, and they have provided the definitions of what constitutes a binding decision among the members of the organization. You are trying to re-argue all of that with WP:Synth material from third party legal scholars who have no standing within the UN. The main SC article makes it clear that they are outsiders, you are not doing that. You are presenting their views using the neutral voice of the encyclopedia and employing a synthesis to suggest they hold certain views. In most cases, like the one in the section immediately above, those legal scholars agree that international law is directly applicable to illegal situations and that it creates obligations and consequences regardless of the content of SC resolutions.
The article already has a criticism section containing opposing views from member states regarding this resolution. harlan (talk) 09:27, 21 April 2010 (UTC)


In any event those opinions need to be attributed to the individuals in the text There is already a crticisms section where they can go.
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