United Nations Security Council - Power of Resolutions

Power of Resolutions

The UN Charter is a multilateral treaty. It is the constitutional document that distributes powers and functions among the various UN organs. It authorizes the Security Council to take action on behalf of the members, and to make decisions and recommendations. The Charter mentions neither binding nor non-binding resolutions. The International Court of Justice (ICJ) advisory opinion in the 1949 "Reparations" case indicated that the United Nations Organization had both explicit and implied powers. The Court cited Articles 104 and 2(5) of the Charter, and noted that the members had granted the Organization the necessary legal authority to exercise its functions and fulfill its purposes as specified or implied in the Charter, and that they had agreed to give the United Nations every assistance in any action taken in accordance with the Charter.

Article 25 of the Charter says "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 a UN legal publication that is published by the Secretariat units concerned in accordance with their operational responsibilities and under the guidance of the Inter-Departmental Committee on Charter Repertory. It 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. 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. The Repertory on Article 24 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)".

In exercising its powers the Security Council seldom bothers to cite the particular article or articles of the UN Charter that its decisions are based upon. In cases where none are mentioned, a constitutional interpretation is required. This sometimes presents ambiguities as to what amounts to a decision as opposed to a recommendation, and also the relevance and interpretation of the phrase "in accordance with the present Charter".

In the preliminary rulings of the "Lockerbie" cases the ICJ held that the provisions of the Montreal Convention could be preempted by Security Council resolutions pursuant to Article 25 and Article 103 of the UN Charter. Article 103 provides that in the event of conflicts with other treaty obligations, the members' obligations under the Charter prevail. There is consensus that the treaty-based powers of the Security Council are limited to preemption of other treaties. The UN cannot circumvent peremptory norms and its resolutions are subject to judicial review.

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.

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. One argument is that since they have no enforcement mechanism, except self-help, they may not be legally binding. Some States give constitutional or special legal status to the UN Charter and Security Council resolutions. In such cases non-recognition regimes or other sanctions can be implemented under the provisions of the laws of the individual member states.

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

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

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

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

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

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

Those resolutions made dealing with the internal governance of the organization (such as the admission of new Member States) are legally binding where the Charter gives the Security Council power to make them.

If the council cannot reach consensus or a passing vote on a resolution, they may choose to produce a non-binding presidential statement instead of a Resolution. These are adopted by consensus. They are meant to apply political pressure — a warning that the council is paying attention and further action may follow.

Press statements typically accompany both resolutions and presidential statements, carrying the text of the document adopted by the body and also some explanatory text. They may also be released independently, after a significant meeting.