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THE SCOPE OF THE SUPREMACY CLAUSE OF THE UNITED NATIONS CHARTER

Published online by Cambridge University Press:  11 August 2008

Rain Liivoja
Rain Liivoja
Affiliation:
Research Fellow, Centre of Excellence in Global Governance Research, University of Helsinki.
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Abstract

Article 103 of the United Nations (UN) Charter stipulates that the obligations of UN Member States under the Charter prevail, in the event of a conflict, over their obligations under any other international agreement. While this important provision is often mentioned, its precise meaning remains something of a mystery. The present article tries to shed some light on the scope of this ‘supremacy clause’ by discussing, first, its operation with respect to treaties, and then by looking at its relevance to various other contractual arrangements and to customary international law.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 57 , Issue 3 , July 2008 , pp. 583 - 612
Copyright
Copyright © 2008 British Institute of International and Comparative Law

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References

1 M Akehurst, A Modern Introduction to International Law (Allen & Unwin, London, 1970) 202. Having lost none of its relevance, this observation has been retained in subsequent editions, see P Malanczuk, Akehurst's Modern Introduction to International Law (7th edn, Routledge, London, 1997) 364.

2 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174; Conditions of Admission of a State to Membership in the United Nations (Advisory Opinion) [1948] ICJ Rep 57 (First Admission Opinion); Competence of the General Assembly for the Admission of a State to the United Nations (Advisory Opinion) [1950] ICJ Rep 4 (Second Admission Opinion).

3 See, eg, A Orakhelashvili, ‘The Legal Basis of the United Nations Peace-keeping Operations’ (2003) 43 Virginia J Intl L 485–524.

4 R Kolb, ‘Does Article 103 of the Charter of the United Nations Apply Only to Decisions or Also to Authorizations Adopted by the Security Council?’ (2004) 64 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 21–35, 21.

5 D Shelton, ‘International Law and “Relative Normativity”’ in MD Evans (ed), International Law (2nd edn, OUP, Oxford, 2006) 159–85, 178 (emphasis added).

6 See B Fassbender, ‘The United Nations Charter as Constitution of the International Community’ (1997) 36 Columbia J Transnational L 529–619, 594 (claiming that art 2(6) and art 103 of the Charter ‘give a strong hint of its constitutional character’); see also ibid 577–78.

7 Constitution of the United States of America (17 September 1787) art VI(2); see also GP Fletcher and S Sheppard, American Law in a Global Context: The Basics (OUP, Oxford/New York, 2005) especially 150 et seq and 277 et seq.

8 Fassbender (n 6) 585–86.

9 See, eg, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16, Separate Opinion of Vice-President Ammoun, para 18 (observing that obligations ‘under the Charter’, as contemplated by art 103, ‘clearly include obligations resulting from the provisions of the Charter and from its purposes, and also those laid down by the binding decisions of the organs of the United Nations’); see also ND White and A Abass, ‘Countermeasures and Sanctions’ in Evans (n 5) 509–32, 527 (‘One effect of Article 103 of the UN Charter seems to be that mandatory sanctions resolutions adopted by the Security Council under Article 41 of the UN Charter result in obligations for member States that prevail over obligations arising under other international treaties.’).

10 See Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (opened for signature 23 September 1971, entered into force 26 January 1973) 974 UNTS 178, art 7 (‘The Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution. …’).

11 Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v UK, Libya v US) (Provisional Measures) [1992] ICJ Reps 3 and 114, paras 39 and 42, respectively.

12 ibid.

13 D Bowett, ‘The Impact of Security Council Decisions on Dispute Settlement Procedures’ (1994) 5 EJIL 89–101, 92. The same logic would surely apply by analogy to an ICJ decision.

14 First Admission Opinion (n 2) 64 (‘The political character of an organ cannot release it from the observance of the treaty provisions established by the Charter when they constitute limitations on its powers or criteria for its judgment.’); MJ Herdegen, ‘The “Constitutionalization” of the United Nations Security System’ (1994) 27 Vanderbilt J Transnational L 135–59, 150 (noting that ‘the Security Council, though a political organ, is confined to legally determined powers flowing from a treaty’).

15 See Bowett (n 13) 92–93 (‘The Council decisions are binding only in so far as they are in accordance with the Charter.’); Herdegen (n 14) 157 (‘The binding effect of mandatory resolutions stands and falls with their validity.’); see also H Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (Praeger, New York, 1950) 95 (‘The meaning of Article 25 is that the Members are obliged to carry out these decisions which the Security Council has taken in accordance with the Charter.’), cited approvingly by Judge El-Kosheri at para 23 of his Dissenting Opinion to Lockerbie (n 11).

16 See, eg, A Orakhelashvili, ‘The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions’ (2005) 16 EJIL 59–88, 69 (‘… the obligation to comply with the Council's resolutions is conditional upon the Council's compliance with the Charter principles: Article 103 cannot make a resolution which is unlawful under the Charter prevail over other legal norms.’).

17 For a convenient overview, and some well-founded conclusions, see Kolb (n 4).

18 R (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58, paras 33–34 (Lord Bingham), paras 115–17 (Lord Rodger), para 135 (Lord Carswell), para 152 (Lord Brown).

19 SC Res 1546 (8 June 2004) para 10.

20 ibid Annex.

21 Convention for the Protection of Human Rights and Fundamental Freedoms (opened for signature 4 November 1950, entered into force 3 September 1953) ETS No 5, art 5.

22 Al-Jedda (n 18) para 33 (Lord Bingham).

23 Compare ibid para 152 (Lord Brown).

24 See Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations (signed 26 June 1947, entered into force 21 November 1947) 11 UNTS 11, s 11(5).

25 Repertory of Practice of United Nations Organs, Supplement No 3 (1959–1966), vol 4, 209 <untreaty.un.org/cod/repertory/art103/english/rep_supp3_vol4-art103_e.pdf> accessed 28 January 2008.

26 ibid.

27 General Act of Arbitration for the Pacific Settlement of International Disputes (adopted 26 September 1928, entered into force 16 August 1929) 93 LNTS 342.

28 Nuclear Tests (Australia v France) [1974] ICJ Rep 253, Joint Dissenting Opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga and Sir Humphrey Waldock, para 78.

29 See generally MC Wood, ‘The Interpretation of Security Council Resolutions’ (1998) 2 Max Planck Ybk UN Law 73–95.

30 Emphasis added. Para 2 adds that a non-registered instrument cannot be relied on before a UN body.

31 A Aust, Modern Treaty Law and Practice (CUP, Cambridge, 2000) 15.

32 For a succinct overview of the issues involved, see FL Kirgis, ‘International Agreements and US Law’ ASIL Insights (May 1997) <www.asil.org/insights/insigh10.htm> accessed 28 January 2008.

33 Summary Report of Eighteenth Meeting of Coordination Committee, The United Nations Conference on International Organization (25 April–26 June 1945) Doc WD 314, CO/126, 17 Documents of the United Nations Conference on International Organization (22 vols, UN, New York, 1945–1955) 111–18, 112 (UNCIO).

34 ibid.

35 See especially Aust (n 31) 26–46.

36 See J Klabbers, The Concept of Treaty in International Law (Kluwer Law International, The Hague, 1996).

37 South West Africa (Ethiopia v South Africa, Liberia v South Africa) (Preliminary Objections) [1962] ICJ Rep 319, Separate Opinion of Judge Jessup, 407 (footnote omitted).

38 ibid; see also Namibia opinion (n 9), Separate Opinion of Vice-President Ammoun, para 18 (noting that ‘Article 103 applies both to past and future commitments’ (emphasis added)).

39 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Jurisdiction and Admissibility) [1984] ICJ Rep 392, para 107 (emphasis added).

40 Al-Jedda (n 18) para 35, citing, inter alia, Lockerbie (n 11) para 39 and R Bernhardt, ‘Article 103’ in B Simma (ed), The Charter of the United Nations: A Commentary (2nd edn, OUP, Oxford, 2002) vol II, 1292–302, 1299–300.

41 Vienna Convention on the Law of Treaties (opened for signature 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, art 30(1) (‘Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States parties to successive treaties relating to the same subject-matter shall be determined in accordance with the following paragraphs.’).

42 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (opened for signature 21 March 1986, not in force) (1986) 25 ILM 543, art 30(6).

43 Humphrey Waldock, Third Report on the Law of Treaties, UN Doc A/CN.4/167 (1964) II Ybk Intl L Commission 5–65, 36–37 (YBILC) (‘The more general opinion … seems to be that, while article 103 precludes the Member State from executing the treaty which is inconsistent with the Charter, the non-member remains entitled to hold the Member responsible for a breach of the treaty. … But … it may be advisable for the Commission simply to rest on the language of Article 103 and not to seek to draw from it conclusions as to the effect of the Article on treaties concluded by Members with non-members.’ (footnote omitted)).

44 Draft Articles on the Law of Treaties, Report of the International Law Commission on the Work of its Eighteenth Session, UN Doc A/6309 (1966) II YBILC 172–363, 214.

45 For the various positions, see Draft Articles on the Law of Treaties between States and International Organizations or between International Organizations, Report of the International Law Commission on the Work of its Thirty-fourth Session, UN Doc A/37/10 (1982) II-2 YBILC 1–146, 41.

46 ibid. This has not prevented some authors from relying on the 1986 Vienna Convention when claiming that the Charter ‘takes precedence in relation to treaties concluded by international organizations’. Bernhardt (n 40) 1295.

47 LM Goodrich, E Hambro and AP Simons, Charter of the United Nations: Commentary and Documents (3rd edn, Columbia UP, New York/London, 1969) 614.

48 Report of the Rapporteur of Committee IV/2, as approved by the Committee, Doc 933, IV/2/42(2), 13 UNCIO 703–12, 708.

49 Treaty Establishing the European [Economic] Community (signed 25 March 1957, entered into force 1 January 1958) OJ C 325/33 (consolidated version, 24 December 2002).

50 Compare 1969 Vienna Convention (n 41) art 30(3) (‘When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended … the earlier treaty applies only to the extent that its provisions are compatible with those of the latter treaty.’); see also Kelsen (n 15) 113 (‘As to treaties concluded between Member states the provision of Article 103 is superfluous. For according to general international law, such treaty, if concluded before the Charter has come to force, is abrogated by the Charter …’).

51 Summary Report of Sixth Meeting of Committee IV/2, Doc 419, IV/2/19, 13 UNCIO 602–3, 603.

52 But see Kelsen (n 15) 113 (arguing that such treaties are ‘null and void under Article 108 and 109 of the Charter’ because the Charter can only be amended in accordance with these provisions).

53 See 1969 Vienna Convention (n 41) art 41(1) (‘Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if: (a) the possibility of such a modification is provided for by the treaty; or (b) the modification in question is not prohibited by the treaty and: (i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations; (ii) does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole.’).

54 Compare First Admission Opinion (n 2) Dissenting Opinion of Judge Zoričić, 105–6, and Dissenting Opinion of Judge Krylov, 114–15 (on whether an agreement to support the admission of certain States to the UN could be in conflict with art 4 of the Charter which lays down the conditions of admission).

55 Kelsen (n 15) 116.

56 See, eg, J Soder, Die Vereinten Nationen und die Nichtmitglieder (Röhrsheid, Bonn, 1956), JA Frowein, ‘The United Nations and Non-Member States’ (1970) 25 Intl J 333–44.

57 See 1969 Vienna Convention (n 41) art 34; 1986 Vienna Convention (n 42) art 34. For a discussion, see, eg, M Fitzmaurice, ‘Third Parties and the Law of Treaties’ (2002) 6 Max Planck Ybk UN Law 37–137.

58 Lord McNair, The Law of Treaties (Clarendon, Oxford, 1961) 309.

59 See, eg, I Brownlie, Principles of Public International Law (6th edn, OUP, Oxford, 2003) 660–61, citing Kelsen (n 15) 85–86.

60 See Sir Gerald Fitzmaurice, ‘Fifth Report on the Law of Treaties,’ UN Doc A/CN.4/130, (1960) II YBILC 69–107, 88 (‘[T]he fact that a third State is not, and cannot be under any direct obligation in the matter, not being a party to the treaty concerned, does not of itself absolve the parties to the treaty, so far as they are able, and can do so without any illegality, from endeavouring to secure that the third State conforms its conduct or action to the provisions of the treaty.’).

61 See, eg, GM Danilenko, Law-Making in the International Community (Martinus Nijhoff, Dordrecht, 1993) 61, fn 77.

62 See Wolfgang Graf Witzthum, ‘Article 2(6)’ in Simma (n 40) vol I, 140–48, 141.

63 Namibia Opinion (n 9) 126 (‘As to non-member States, although not bound by Articles 24 and 25 of the Charter, they have been called upon [by the Security Council] to give assistance in the action which has been taken by the United Nations with regard to Namibia.’).

64 However, resolutions, where they are called upon to implement sanctions, could conceivably be qualified as authorizations, with the attaching consequences. Discussed in the text at nn 17–20 above.

65 E Sciso, ‘On Article 103 of the Charter of the United Nations in the Light of the Vienna Convention on the Law of Treaties’ (1987) 38 Österreichische Zeitschrift für öffentliches Recht und Völkerrecht 161–79, 168.

66 R St J Macdonald, ‘Fundamental Norms in Contemporary International Law’ (1987) 25 Canadian Ybk Intl L 115–49, 122–23 (‘… a non-member may be estopped from denying or may have acquiesced in the precedence of the Charter by reason that it knew or should have known that the state with which it had contracted had limited its competence.’).

67 See J Klabbers, ‘Straddling Law and Politics: Judicial Review in International Law’ in R St J Macdonald & DM Johnston (eds), Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (Martinus Nijhoff, Leiden/Boston, 2005) 809–35, 834.

68 1969 Vienna Convention (n 41) art 53 (emphasis added).

69 ibid art 64 (emphasis added).

70 See Goodrich et al (n 47) 519 (‘… this Article does not provide for the automatic abrogation of obligations inconsistent with the terms of the Charter. The rule is put in such form as to be operative only when there is an actual conflict.’); Humphrey Waldock, Second Report on the Law of Treaties, UN Doc A/CN.4/156 (1963) II YBILC 36–94, 55 (‘The conflicting treaty may be unenforceable, if to enforce it involves a violation of the Charter; but it is not void.’); compare DP O'Connell, International Law (2nd edn, Stevens & Sons, London, 1970) vol 2, 274 (‘The Article carefully avoids stating that the inconsistent treaty is invalid, and it may be that its only effect is to prevent members form invoking the inconsistent treaty before United Nations organs.’).

71 Report of the Rapporteur of Committee IV/2 (n 48) 707; see also H Lauterpacht, ‘The Covenant as the “Higher Law”’ (1936) 17 British Ybk Intl L 54–65, 58 (‘The expression “abrogates” means in effect “is superior to”—now and for the future.’).

72 See Draft Articles on the Law of Treaties (n 44) 247 (‘… the law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international law having the character of jus cogens.’), referred to, rather carefully, in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Merits) [1986] ICJ Rep 14, para 190.

73 Case T–306/01 Yusuf and Ali Barkaat Int'l Foundation v Council and Commission [2005] ECR II-3533; Case T–315/01 Kadi v Council and Commission [2005] ECR II-3649.

74 Bernhardt (n 46) 1298–99.

75 See, eg, Agreement between the Government of Denmark and the Government of Malawi on Danish Government Loan to Malawi (signed 1 August 1966) 586 UNTS 3 art 12 (‘Unless otherwise provided for in the Agreement, the Agreement and all the rights and obligations deriving from it shall be governed by Danish law.’).

76 See 1969 Vienna Convention (n 41) art 2(1)(a).

77 Indeed, Black's Law Dictionary (8th edn, West, St Paul, 2004) 834 defines an ‘international agreement’ as ‘[a] treaty or other contract between different countries’ (emphasis added).

78 See n 75.

79 This may be due to so-called ‘stabilisation clauses’ which insert into the contractual relationship legal standards external to the domestic law of the participating State (such as general principles of law), or which limit the possibility of the State concerned to influence the carrying out of the contract via changes in domestic law. On such contracts generally, see, eg, E Paasivirta, Participation of States in International Contracts (Lakimiesliiton kustannus, Helsinki, 1990).

80 An important consideration in this respect would be, though, that the private entity in question does not have any ‘obligations under the Charter’, as those lie on the Member States. However, the internal legal system of the State in which such an entity is established might give effect to obligations of that State on the domestic plane, thus affecting the private entity concerned.

81 Report of the Rapporteur of Committee IV/2 (n 48) 705.

82 Nuclear Tests (Australia v France) (n 28) para 43, and Nuclear Tests (New Zealand v France) [1974] ICJ Rep 457, para 46 (taking the view that no ‘subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect’).

83 See, eg, AL Corbin, vol 1, Corbin on Contracts (8 vols, West, St Paul, 1950–51) 25 et seq, 347 et seq and 631 et seq; WW McBryde, The Law of Contract in Scotland (Green & Sons, Edinburgh, 1987) 13–27; GH Treitel, The Law of Contract (11th edn, Sweet & Maxwell, London, 2003) 67 et seq.

84 UNSC Res 661 (6 August 1990) para 5 (emphasis added).

85 See UNSC Res 670 (25 September 1990) (Iraq) para 3; UNSC Res 748 (31 March 1992) (Libya) para 7; UNSC Res 757 (30 May 1992) (Bosnia and Herzegovina) para 11; UNSC Res 841 (16 June 1993) (Haiti) para 9; UNSC Res 864 (15 September 1993) (Angola/UNITA) para 20; UNSC Res 883 (11 November 1993) (Libya) para 12; UNSC Res 917 (6 May 1994) (Haiti) para 12; UNSC Res 918 (17 May 1994) (Rwanda) para 15; UNSC Res 1054 (26 April 1996) (Sudan) para 5; UNSC Res 1127 (28 August 1997) (Angola/UNITA) para 10; UNSC Res 1132 (8 October 1997) (Sierra Leone) para 11; UNSC Res 1160 (31 March 1998) (Yugoslavia) para 10; UNSC Res 1173 (12 June 1998) (Angola) para 17; UNSC Res 1267 (15 October 1999) (Taliban) para 7; UNSC Res 1298 (17 May 2000) (Eritrea and Ethiopia) para 9; UNSC Res 1306 (5 July 2000) (Sierra Leone) para 9; UNSC Res 1333 (19 December 2000) (Taliban) para 17.

86 Recourse to the practice of UN bodies as an auxiliary tool for the interpretation of the Charter has been criticized more generally. See, eg, Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 151, Separate Opinion of Sir Percy Spender, 189–90 (‘I find difficulty in accepting the proposition that a practice pursued by an organ of the United Nations may be equated with the subsequent conduct of parties to a bilateral agreement and thus afford evidence of intention of the parties to the Charter … and in that way or otherwise provide a criterion of interpretation.’).

87 Repertory of Practice of United Nations Organs, Supplement No 8 (forthcoming), vol VI (revised advance version), <untreaty.un.org/cod/repertory/art103/english/rep_supp8_vol6-art103_e_advance.pdf> accessed 20 August 2007.

88 The relevance of consent seems to be greater in case of special custom, bringing it perhaps closer to agreements than general custom. Compare A D'Amato, The Concept of Custom in International Law (Cornell University Press, Ithaca/London, 1971) 233–63, but especially 250–51 (‘… we might think of treaties as a highly formal type of ‘special custom,’ or indeed we might view special custom as an informal treaty. Either way we have rules evolved by particular states that concern themselves only, that indicate their mutual agreement.’).

89 Covenant of the League of Nations (signed 28 June 1919, entered into force 10 January 1920) 225 CTS 195.

90 H Kelsen, Legal Technique in International Law: A Textual Critique of the League Covenant (Geneva Research Centre, Geneva, 1939) 149 (emphasis in the original). Kelsen continues by explaining that ‘[t]his results from the fact that the words inter se refer both to “obligations” and to “understandings” and that in addition, in the French text the verb “contracter” is used in the second part of [the] paragraph … and applies both to “obligations” and to “ententes”’. ibid.

91 RB Russell, A History of the United Nations Charter: The Role of the United States 1940–1945 (The Brookings Institution, Washington DC, 1958) 387.

92 Agenda for the Second Meeting of Committee IV/2, Doc 153, IV/2/3, 13 UNCIO 574–75, 575 (line breaks omitted, italics substituted for underlining).

93 Summary Report of Sixth Meeting of Committee IV/2, Doc 419, IV/2/19, 13 UNCIO 602–3, 602 (‘… certain delegated expressed the belief that no text should be inserted in the Charter regarding inconsistent obligations …’).

94 Revised Summary Report of Fourteenth Meeting of Committee IV/2, Doc 873, IV/2/37(1), 13 UNCIO 653–56, 654.

95 Report of the Rapporteur of Committee IV/2 (n 48) 707.

96 ibid.

97 ibid.

98 ibid. See also Russell (n 91) 922 (‘The United States position was that, if the Covenant had not contained Article 20, it would be better to omit the subject from the Charter.’).

99 Text revised by the Advisory Committee of Jurists at its Seventh Meeting, Doc WD 296, CO/102(2), 18 UNCIO 342 (‘In the event of a conflict between the obligations of the members of the United Nations under the present Charter and any other international obligations to which they are subject, their obligations under the present Charter shall prevail.’)

100 Summary Report of Eighteenth Meeting of Coordination Committee (n 33) 113–14.

101 ibid 114 (emphasis added).

102 ibid.

103 Summary Report of Second Meeting of Commission IV, Doc 1153, IV/12(1), 13 UNCIO 104.

104 Summary Report of Forty-first Meeting of Coordination Committee, Doc WD 441, CO/205, 17 UNCIO 382; Report of Ninth Plenary Meeting, Doc 1210, P/20, 1 UNCIO 631.

105 Report of the Rapporteur of Committee IV/2 (n 48) 706 (‘After careful consideration of the texts and of the solutions … proposed, [the Committee] has concluded that the text herewith submitted probably represents the maximum of agreement attainable while at the same time expressing in satisfactory form the general principle which the Charter should incorporate.’).

106 Charter of the Organization of American States (signed 30 April 1948, entered into force 13 December 1951) 119 UNTS 3, art 132.

107 North Atlantic Treaty (signed 4 April 1949, entered into force 24 August 1949) 34 UNTS 243, art 7; Multilateral Agreement on Trade in Goods (signed 15 April 1994, entered into force 1 January 1995) 1867 UNTS 187, art 21(c); General Agreement on Trade in Services (signed 15 April 1994, entered into force 1 January 1995), 1869 UNTS 183, art 14bis; Agreement on Trade-Related Aspects of Intellectual Property Rights (signed 15 April 1994, entered into force 1 January 1995) 1869 UNTS 299, art 73(c).

108 Agreement between the United Nations and the Universal Postal Union (adopted 15 November 1947, entered into force 1 July 1948) 19 UNTS 119, art VI(2) (‘As regards the Members of the United Nations, the Union agrees that in accordance with Article 103 of the Charter no provision in the Universal Postal Convention or related agreements shall be construed as preventing or limiting any State in complying with its obligations to the United Nations.’).

109 Repertory, Supplement No 3 (n 25) vol 4, 214.

110 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, UNGA Res 2625 (XXV) (24 October 1970) (emphases added).

111 Declaration on the Strengthening of International Security, UNGA Res 2734 (XXV) (16 December 1970) para 3.

112 Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations, annexed to UNGA Res 42/22 (18 November 1987) para 4 (‘Confirm[ing] that, in the event of a conflict between the obligations of the Member States of the United Nations under the Charter and their obligations under any other international agreement, their obligations under the Charter will prevail in accordance with article 103 of the Charter’).

113 Respect for the Purposes and Principles Contained in the Charter of the United Nations to Achieve International Cooperation in Promoting and Encouraging Respect for Human Rights and for Fundamental Freedoms and in Solving International Problems of a Humanitarian Character, UNGA Res 55/101 (2 March 2001) preamble (‘Taking into account that, in accordance with Article 103 of the Charter, in the event of a conflict between the obligations of the Members of the United Nations under the Charter and their obligations under any other international agreement, their obligations under the Charter shall prevail’).

114 UNGA Res 56/152 (13 February 2002); UNGA Res 57/217 (27 February 2003); UNGA Res 58/188 (22 March 2004); UNGA Res 59/204 (23 March 2005). In this latest resolution the operative words ‘Taking into account’ were replaced with ‘Bearing in mind’.

115 UNSC Res 1343 (7 March 2001) para 22 (second set of italics added).

116 See UNSC Verbatim Record (7 March 2001) UN Doc S/PV.4287.

117 The relevant part reads ‘nonobstant l'existence de droits acquis ou d'obligations contractées’ in French and ‘independientemente de los derechos y obligaciones contraídos’ in Spanish (emphases added).

118 UNSC Draft Resolution (21 April 2004) UN Doc S/2004/313, para 11.

119 Lockerbie cases (n 15), Declaration of Acting President Oda, part III.

120 JE Alvarez, ‘Judging the Security Council’ (1996) 90 AJIL 1–39, 29.

121 TM Franck, ‘The “Powers of Appreciation”: Who Is the Ultimate Guardian of UN Legality?’ (1992) 86 AJIL 519–23, 522.

122 See P-M Dupuy, ‘The Constitutional Dimension of the Charter of the United Nations Revisited’ (1997) 1 Max Planck Ybk UN Law 1–33, 13, fn 36 (‘It should be noted that one of the highly controversial issues raised by the Order of the Court in the Lockerbie Case is that it does not even consider the fact that the rule “aut dedere, aut judicare”, embodied in the Montreal Convention (over which Resolution 748 prevails on the basis of Charter Article 103) is most probably at the same time a customary rule.’).

123 Lockerbie cases (n 15), Declaration of Acting President Oda, part III (‘The claim on the ground of the violation of sovereign rights would have instituted a totally different litigation, and whether or not the Court has jurisdiction to deal with that issue is certainly a different matter.’).

124 AF Perez, ‘The Perils of Pinochet: Problems for Transitional Justice and a Supranational Governance Solution’ (2000) 28 Denver J Intl L & Policy 175–221, 211, fn 139.

125 Bowett (n 13) 92.

126 GR Watson, ‘Constitutionalism, Judicial Review, and the World Court’ (1993) 34 Harvard Intl L J 1–45, 25, with a reference to Franck (n 121) 521–22.

127 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro)) (Provisional Measures) [1993] ICJ Rep 325, Separate Opinion of Judge Lauterpacht, para 100.

128 See also Herdegen (n 14) 156 (‘… the peremptory norms of international law provide insurmountable limitations upon both the conferment and the exercise of competence flowing from the Charter.’).

129 See also JJ Paust, ‘Peace-Making and Security Council Powers: Bosnia-Herzegovina Raises International and Constitutional Questions’ (1994) 19 Southern Illinois University L J 131–51, 139 (‘The fact that Article 103 of the Charter compels a primacy of member obligations under the U.N. Charter over more ordinary treaties does not deny the relevance of customary jus cogens as norms preempting any international agreement.’ (footnotes omitted)).

130 See n 47 and accompanying text.

131 Kelsen (n 15) 111–21.

132 A Ross, Constitution of the United Nations: Analysis of Structure and Function (Ejnar Munksgaard, Copenhagen, 1950) 33–34.

133 White and Abass (n 9) 521 (‘Article 103 gives obligations arising out of the UN Charter pre-eminence over obligations arising under any other international treaty, though it is not clear that this affects member States' customary rights.’).

134 Orakhelashvili (n 16) 69.

135 Bernhardt (n 46) 1299.

136 M Koskenniemi, ‘Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law’, Report of the Study Group of the International Law Commission, UN Doc A/CN.4/L.682 (13 April 2006) para 345.

137 Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, UN Doc A/CN.4/L.702 (18 July 2006) para 35 (emphasis added).

138 R (Al-Jedda) v Secretary of State for Defence (HC) [2005] EWHC 1809 (Admin) para 114.

139 ibid.

140 Yusuf and Kadi (n 73) paras 207 and 156, respectively.

141 Yusuf and Kadi (n 73) paras 231 and 181, respectively.

142 B Conforti, The Law and Practice of the United Nations (2nd edn, Kluwer Law International, The Hague/London/Boston, 2000) 10; see also G Arangio-Ruiz, ‘The “Federal Analogy” and UN Charter Interpretation: A Crucial Issue’ (1997) 8 EJIL 1–28.

143 P Reuter, Introduction to the Law of Treaties (2nd edn, Kegan Paul, London/New York, 1995) 147.