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The Contemporary Legal Nature of UN Security Council Ceasefire Resolutions

Published online by Cambridge University Press:  03 May 2013

CHRISTIAN HENDERSON  and
NOAM LUBELL
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Abstract

This article sets out to examine the legal nature of ceasefire resolutions issued by the United Nations Security Council. While it has become common practice for the Council to issue calls or demands for ceasefires, their legal nature – and in particular whether they are legally binding – remains unclear. Furthermore, given the ubiquity of non-international armed conflict, there is an additional challenge with regard to the legal effect of such resolutions upon non-state armed groups. The article provides an analysis of these issues and concludes with a potential way forward.

Keywords

armed groupsceasefiresinternational peace and securitySecurity CouncilUN resolutions
Type
INTERNATIONAL LAW AND PRACTICE
Information
Leiden Journal of International Law , Volume 26 , Issue 2 , June 2013 , pp. 369 - 397
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2013

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References

1 Morris, D. M., ‘From War to Peace: A Study of Cease-Fire Agreements and the Evolving Role of the United Nations’, (1996) 36 Virg. JIL 801Google Scholar, at 897.

2 Ibid., at 809.

3 These conflicts include those between the Netherlands and Indonesia (1947–48) and Iran and Iraq (1980–88) as well as conflicts in Korea (1950–53), Congo (1960–66), Angola (1975–2002), Somalia (1991–), Rwanda (1990–94), Kosovo (1998–99), Sudan (Darfur) (2003–), Côte d'Ivoire (2002–07), Libya (2011), and Syria (2011–). The UNSC has also adopted ceasefire resolutions in various conflicts in connection with the long-running situation in the Middle East, including the Arab–Israeli Wars (1947–48, 1956–57, 1967, 1973), the Israel–Lebanon conflict (2006), and the Israel–Gaza conflict (2009).

4 Other functions which have not been expressly included in the Charter but which have developed through the practice of the Council include the authorization of forcible measures and peacekeeping operations.

5 Morris, supra note 1, at 803.

6 See, for example, ‘Syria: UN Security Council Backs Ceasefire Deadline’, The Telegraph, 5 April 2012.

7 For the purposes of this article the term ‘ceasefire’ does not necessarily specifically need to be expressly mentioned in the particular resolution for it to be classed as a ‘ceasefire resolution’. Furthermore, the resolution does not need to have the provision regarding the ceasefire as its primary purpose, i.e., included in the first operative paragraph of the resolution. It may equally be included later in the resolution. In addition, some ceasefire resolutions require that the parties abide by a particular ceasefire that has already been agreed to by the parties, whereas others might include a general urge for the parties to lay down their arms. Lastly, the UNSC employs different ways of expressing that it requires a ceasefire; most commonly it ‘calls for’ or ‘calls upon’ the parties concerned to cease their fire, but it also ‘urges’, ‘appeals’, and ‘demands’ for such a ceasefire to be implemented. The important characteristic, however, is that there is a clear message by the UNSC that the warring parties should indeed cease their fire.

8 1945 Charter of the United Nations, 1 UNTS XVI, Art. 24(1).

9 See Bailey, S. D., ‘Cease-Fires, Truces and Armistices in the Practice of the UN Security Council’, (1977) 71 AJIL 461CrossRefGoogle Scholar, at 463–9.

10 UN Charter, supra note 8, Art. 25.

11 As Bailey and Daws admit, the Charter alone is an insufficient basis for determining which resolutions are binding. See Bailey, S. D. and Daws, S., The Procedure of the UN Security Council (1998), 263.CrossRefGoogle Scholar

12 It must be remembered that the UNSC is a political body, albeit one with the power to adopt legally binding decisions in resolutions.

13 See, e.g., Morris, supra note1; Bailey, supra note 9.

14 Various recent works have omitted to address and clarify this issue. See, in particular, Lowe, V.et al. (eds.), The United Nations Security Council and War: The Evolution of Thought and Practice since 1945 (2008).Google Scholar For a limited treatment of the issue see A. Orakhelashvili, Collective Security (2011), 32–9.

15 Conforti, B., The Law and Practice of the United Nations (2005), 194–5Google Scholar; Orakhelashvili, supra note 14, at 34, 39–45. Of course, determining the legal nature and effect of a UNSC resolution is but one aspect of its interpretation.

16 Wood, M. C., ‘The Interpretation of Security Council Resolutions’, (1998) 2 MPYUNL 73Google Scholar, at 74.

17 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331 (1969). See, generally, M. E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (2009).

18 This might, for example, come in the form of a statement by the president of the UNSC.

19 The Namibia advisory opinion of 1971 is perhaps the most relevant here, as discussed below. See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276, Advisory Opinion of 21 June 1971, [1971] ICJ Rep. 16. More recently, and providing the most significant contribution by the ICJ since Namibia, the issue was broached in Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion of 22 July 2010, [2010] ICJ Rep. 403. See, generally, Oberg, M. D., ‘The Legal Effects of United Nations Resolutions in the Kosovo Advisory Opinion’, (2011) 105 AJIL 81CrossRefGoogle Scholar. While UNSC resolutions have been considered in other cases before the ICJ and other international courts and tribunals, none of these fully engage with, or contribute to, the issue of their interpretation.

20 Although for scholarly work which has touched upon this issue see, for example, Higgins, R., ‘The Advisory Opinion on Namibia: Which UN Resolutions are Binding under Article 25 of the Charter?’, (1972) 21 ICQL 270Google Scholar; Tiewal, S. A., ‘Binding Decisions of the Security Council within the Meaning of Article 25 of the UN Charter’, (1975) 15 Indian Journal of International Law 195Google Scholar. Christine Gray has described the issue of the binding nature of UNSC resolutions as a ‘complex question’. See Gray, C., International Law and the Use of Force (2008), 18.Google Scholar See also note 68, infra.

21 See, generally, Wood, supra note 16; Papastavridis, E., ‘Interpretation of Security Council Resolutions under Chapter VII in the Aftermath of the Iraqi Crisis’, (2007) 56 ICLQ 83CrossRefGoogle Scholar; Orakhelashvili, supra note 14, at 40–3.

22 See Namibia Advisory Opinion, supra note. 19, at 53. In the Kosovo advisory opinion the ICJ also held that the intent of the UNSC was important in determining not only the binding effect of a resolution but also who is bound. See Kosovo Advisory Opinion, supra note 19, at paras. 115, 117.

23 For example, in the context of the application of the VCLT, although they are rules of interpretation, they were developed in the context of treaties which differ in many key respects to UNSC resolutions. For example, although it is true that they are both agreements between states, a treaty represents the interests of individual states while a UNSC resolution represents the collective will of the Council with ostensibly the shared overriding aim of the maintenance of international peace and security. Furthermore, treaties are negotiated, drafted, and accepted between the parties upon whom they will apply and be legally binding while the majority of states whom UNSC resolutions are binding upon do not have an input in their drafting. UNSC resolutions are also not always intended to have binding legal effects. In this respect, it is not clear that Orakhelashvili is correct when he asserts that ‘given that there is no alternative set of interpretive rules [they] must be deemed to apply to resolutions’. See Orakhelashvili, supra note 14, at 40. The Namibia advisory opinion, on the other hand, did not address the specific question of the legal nature of UNSC ceasefire resolutions.

24 As Wood has commented, ‘[t]he United Nations Charter is, of course, of fundamental importance, both for the rules of law it contains and its Purposes and Principles and because it is the basis for all the Security Council's activities’. See Wood, supra note 16, at 93.

25 UN Charter, supra note 8, Art. 25 (emphasis added).

26 See, generally, Delbrück, J., ‘Article 25’, in Simma, B.et al. (eds.), The Charter of the United Nations: A Commentary (2002), 452–64.Google Scholar

27 See UN Charter, supra note 8, Art. 27(2) and (3). As Orakhelashvili has noted, ‘Article 25 confers binding force on Security Council decisions not on its resolutions per se.’ See Orakhelashvili, supra note 14, at 33.

28 For the presidential statement endorsing the Kofi Annan peace plan for Syria which contains a ceasefire see UN Doc. SC/10583 (2012). For the Assad regime's acceptance of it see BBC News, ‘Syrian Government Accepts Annan Peace Plan’, 27 March 2012, available at http://www.bbc.co.uk/news/world-middle-east-17522398.

29 On the creation of legal obligations through unilateral statements see the Nuclear Test Cases (Australia v. France, New Zealand v. France), Judgment of 20 December 1974, [1974] ICJ Rep. 253.

30 See Namibia Advisory Opinion, supra note 19.

31 See, as an example, UNSC Res. 269 (1969), preamble, in which the UNSC was ‘[m]indful of its responsibility to take necessary action to secure strict compliance with the obligations entered into by States Members of the United Nations under the provisions of Article 25 of the Charter of the United Nations’.

32 See Delbrück, supra note 26, at 455; Orakhelashvili, supra note 14, at 33–9.

33 Higgins, supra note 20, at 278; Delbrück, supra note 26, at 456.

34 See Shaw, M., International Law (2008)CrossRefGoogle Scholar, 1236; Tzanakopoulos, A., Disobeying the Security Council: Countermeasures against Wrongful Sanctions (2011), 67.CrossRefGoogle Scholar

35 UN Charter, supra note 8, Art. 33(2).

36 In this respect Shaw notes that under Chapter VI ‘there is no power as such to make binding decisions with regard to member states’. Shaw, supra note 34, at 1268. Similarly, Morris states that a ceasefire resolution adopted under Chapter VI is ‘not binding upon the parties’ while ‘[a] Chapter VII-based cease-fire order or decision of the Security Council is . . . exactly that: a binding order establishing a legal duty to comply.’ Morris, supra note 1, at 812–13.

37 White and Saul note that the contention that it is only under Chapter VII that binding decisions can be made is a ‘predominant[ly] (western) view’. See White, N. D. and Saul, M., ‘Legal Means of Dispute Settlement in the Field of Collective Security: The Quasi-Judicial Powers of the Security Council’, in French, D., Saul, M., and White, N. D. (eds.), International Law and Dispute Settlement: New Problems and Techniques (2010), 203Google Scholar; Orakhelashvili, supra note 14, at 34.

38 An argument put forward in Orakhelashvili, supra note 14, at 33–9.

39 Indeed, Art. 33(1) of Chapter VI talks of ‘any dispute, the continuance of which is likely to endanger the maintenance of international peace and security’.

40 See, e.g., UNSC Res. 1572 (2004) (Côte d'Ivoire); UNSC Res. 1973 (2011) (Libya). Cf Orakhelashvili, supra note 14, at 36 (‘It is possible for the Council to adopt decisions, binding or operative, without resorting to Chapter VII.’) In addition, a determination by the UNSC that a situation has created a threat to the peace implicitly invokes Chapter VII. See White, N. D. and Cryer, R., ‘Unilateral Enforcement of Resolution 687: A Threat Too Far?’, (1998–99) 29 California Western International Law Journal 243Google Scholar.

41 The express ‘recommendation’ of a ceasefire is not something that the UNSC has adopted.

42 J. Frowein and N. Krisch, ‘Article 41’, in Simma et al., supra note 26, at 746.

43 See infra subsection 2.2 on the ‘general textual’ approach to interpretation.

44 See UNSC Res. 1860 (2009), para. 1 and UNSC Res. 2042 (2012), para. 4.

45 See UNSC Res. 1970 (2011), para.1. As another example, although not a ceasefire resolution but rather adopted in response to North Korea's nuclear test of 9 October 2006, UNSC Res. 1718 (2006) expressly stated that the Council was acting under Art. 41 of Chapter VII but then proceeded to ‘Demand’, ‘Decide’ and ‘Call upon’ throughout. On the significance on the use of ‘demands’ see infra subsection 2.2 on the ‘general’ textual approach.

46 Under Art. 42 of the UN Charter (1945) the UNSC ‘may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations’. For more on the UNSC's forcible powers see Henderson, C., ‘The Centrality of the United Nations Security Council in the Legal Regime Governing the Use of Force’, in White, N. D. and Henderson, C. (eds.), Research Handbook on International Conflict and Security Law: Jus ad Bellum, Jus in Bello, and Jus post Bellum (forthcoming 2013)Google Scholar.

47 Although with the emergence of the practice in the post-Cold War era of the Council authorising states to use force this standing army has never materialized. See ibid.

48 For more on the issue of ceasefires and the enforcement of them see infra subsections 2.1.3 and 2.1.4.

49 See, e.g., UNSC Res. 54 (1948), para. 2, on the conflict in the Middle East; UNSC Res. 598 (1987), para. 1, on the conflict in the Gulf between Iran and Iraq.

50 See J. Frowein and N. Krisch, ‘Article 40’, in Simma et al., supra note 26, at 732.

51 Morris, supra note 1, at 812 (emphasis added).

52 See UNSC Res. 54 (1948), para. 2; and UNSC Res. 598 (1987), para. 1.

53 For the significance of such language see infra subsection 2.2.

54 White and Saul, supra note 37, at 212.

55 Tzanakopoulos, supra note 34, at 67–8.

56 Schachter, O., ‘United Nations Law in the Gulf Conflict’, (1991) 85 AJIL 452CrossRefGoogle Scholar, at 461.

57 See Certain Expenses of the United Nations, Advisory Opinion of 20 July 1962, [1962] ICJ Rep. 151, at para. 167. For those who support this doctrine in the context of the implied power of the UNSC to authorize states to use armed force see, for example, Blokker, N., ‘Is the Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by “Coalitions of the Able and Willing”’, (2000) 11 European Journal of International Law 541CrossRefGoogle Scholar, at 542; Greenwood, C., ‘New World Order or Old? The Invasion of Kuwait and the Rule of Law’, (1992) 55 Modern Law Review 153CrossRefGoogle Scholar, at 153; Kirgis, F., ‘The Security Council's First Fifty Years’, (1995) 89 AJIL 506CrossRefGoogle Scholar, at 521.

58 Berman, F., ‘The Authorization Model’, in Malone, D. (ed.), The UN Security Council: From the Cold War to the 21st Century (2004), 153Google Scholar at 156.

59 Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, [1949] ICJ Rep. 174, at para. 182. Orakhelashvili notes that,

[t]he implied powers doctrine is reinforced by the principle of effective interpretation of the Charter as a treaty. The rationale of effective interpretation is that, if the organ in question is to discharge its responsibilities under the Charter effectively, then it should be able to adopt such decisions as are necessary for and antecedent to that.

Orakhelashvili, supra note 14, at 51.

60 Campbell, A. I. L., ‘The Limits on the Powers of International Organizations’, (1983) 32 ICLQ 523CrossRefGoogle Scholar, at 528.

61 Orakhelashvili, supra note 14, at 51.

62 See Namibia Advisory Opinion, supra note 19, at 52.

63 Ibid.

64 Ibid. See also Higgins, supra note 20, at 284–6. The significance of this judgment is potentially heightened in the context of the discussion in subsection 2.2 of the current article on the ‘general textual’ approach to interpretation given that the UNSC in Resolution 276 (1970) merely ‘[c]all[ed] upon all States . . . to refrain from any dealings with the Government of South Africa’. UNSC Res. 276 (1970), para. 5.

65 Although this is not without exception. See UNSC Res. 338 (1973), at para. 1, where the UNSC ‘[c]alled upon all parties to the present fighting to cease all firing and terminate all military activity immediately, no later than 12 hours after the moment of the adopting of this decision, in the positions they now occupy’.

66 Although, as noted above, this does not preclude it from being described as a ceasefire resolution. See note 3, supra.

67 Namibia Advisory Opinion, supra note 19, at 52.

68 See, for example, Y. Dinstein, War, Aggression and Self-Defence (2011), 54–8; Orakhelashvili, supra note 14, at 37–8. Article 31 of the VCLT provides firstly a ‘general rule’ of interpretation so that ‘[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty’ (emphasis added).

69 Dinstein, supra note 68, at 52.

70 Ibid.

71 Ibid., at 53–4. However, although Dinstein makes the distinction between ‘calls’ and ‘orders’ for ceasefires in terms of their binding effect, he does not support this contention with any empirical evidence as to how those within the UNSC or the subjects of the ceasefire resolutions have interpreted them. Indeed, his distinction appears to be based more on doctrine than on empirical evidence and supported with little in the way of practice on this point, although others, while claiming the importance of the language used, are ambiguous in the use of it themselves. For example, Morris notes with some frequency the notions of the UNSC ‘calling for’ and ‘demanding’ a ceasefire and of ‘U.N.-sponsored or imposed ceasefire agreements’ without distinguishing between them in any legal sense. See, for example, Morris, supra note 1, at 802 and 809.

72 Orakhelashvili notes that ‘[t]he words “call upon” can convey a recommendation or a binding decision, depending on whether the resolution suggests that a particular step or action called upon is a necessary one’. Orakhelashvili, supra note 14, at 37. See also his argument at text accompanying note 38, supra.

73 Wood, supra note 16, at 81.

74 Ibid., at 80.

75 Ibid., at 89.

76 Ibid., at 81.

77 Ibid., at 82.

78 Ibid.

79 Ibid., at 95.

80 That is, nine out of the 15 members including the concurring votes of the five permanent members.

81 See C. Henderson, The Persistent Advocate and the Use of Force: The Impact of the United States upon the Jus ad Bellum in the Post-Cold War Era (2010), 37–62.

82 Ibid., at 43.

83 Although see our qualification as to the direct application of the VCLT to the interpretation of UNSC resolutions in note 23supra. However, there is no reason why the rules drawn upon here are not similarly applicable to the interpretation of UNSC resolutions.

84 VCLT (1969), supra note 17, Art. 31(3)(a).

85 Ibid., Art. 31(3)(b).

86 Morris, supra note 1, at 809.

87 UNSC Res. 27 (1974).

88 See UNSC Res. 32 (1947), para. 1 (‘order’) and para. 2 (‘recommendation’).

89 UNSC Res. 338 (1973), para.1.

90 UNSC Res. 339 (1973) (emphasis added).

91 See subsection 2.1, supra, on the Charter approach to interpretation.

92 UNSC Res. 340 (1973), preamble.

93 Ibid., at para. 1 (emphasis added).

94 VCLT (1969), supra note 17, Arts. 31(2)(a) and 32(a) and (b).

95 UNSC Res. 1441 (2002), which was adopted in the build-up to the war in Iraq in 2003, is another example of such ‘intentional ambiguity’. See, generally, Byers, M., ‘Agreeing to Disagree: Security Council Resolution 1441 and Intentional Ambiguity’, (2004) 10 Global Governance 165Google Scholar; Henderson, supra note 81, at 37–97.

96 UNSC 6063rd meeting, 8 January 2009, UN Doc. S/PV.6063, at 4 (United States).

97 Ibid.

98 Ibid., at 7 (Japan) and 9 (Burkina Faso).

99 Ibid., at 7 (Mexico).

100 Ibid., at 2 (President).

101 Ibid., at 10 (Saudi Arabia).

102 Ibid., at 3 (UN Secretary-General) and 7 (Costa Rica).

103 Ibid., at 7 (Japan).

104 Ibid., at 9 (Austria).

105 Ibid., at 6 (Turkey).

106 Vietnam, e.g., stated that ‘[m]y delegation would like to have seen a resolution with more clear-cut language, providing for an immediate ceasefire and an immediate withdrawal of Israeli forces from Gaza’ (ibid., at 8), whilst Burkina Faso stated that ‘[w]e feel that the message could have been more clearly articulated, but we also know that the sense of urgency required compromise. Now, we need to do our utmost to ensure effective implementation of this important resolution’ (ibid., at 9). See also Libya, ibid., at 5; and Turkey, ibid., at 6. The UK, on the other hand, believed that ‘the United Nations has served its purpose of speaking loudly, clearly, authoritatively, and unequivocally’ (ibid., at 4).

107 Ibid., at 6 (Costa Rica) (emphasis added). In terms of what these ‘serious consequences’ might be, Costa Rica only stated that it ‘harbour[ed] the hope that the Council will also be consistent with the decision it has taken today and that it will use its authority in order to ensure respect for that decision’; see discussion infra in section 4 on the link between ceasefire resolutions and sanctions or other consequences.

108 Ibid. (emphasis added).

109 Ibid., at 10 (Palestine).

110 Ibid., at 7 (Mexico).

111 Ibid., at 7 (Japan) and 10 (Palestine). See also ibid., at 3 (UN Secretary-General).

112 Ibid., at 8 (China and Uganda).

113 Ibid., at 10 (Egypt and Saudi Arabia).

114 The issue as to whether obligations could in any case be binding on such non-state actors is discussed infra in section 3 of this article.

115 Higgins, supra note 20, at 283.

116 Wood, supra note 16, at 79.

117 Ibid.

118 UNSC 6063rd Meeting, supra note 96, at 6 (Costa Rica).

119 Ibid.

120 Ibid., at 7.

121 Ibid., at 8 (Vietnam).

122 Ibid., at 9 (Burkina Faso).

123 Ibid., at 4–5 (United States).

124 Ibid., at 5 (Libya).

125 Ibid., at 10 (Palestine).

126 Ibid., at 11 (Israel).

127 See analysis of current and emerging trends in the nature of armed conflicts in A. Blin, ‘Armed Groups and Intra-State Conflicts: The Dawn of a New Era?’, (2011) 882 IRRC 287.

128 UNSC Res. 145 (1960); UNSC Res. 161 (1961).

129 UNSC Res. 163 (1961).

130 UNSC Res. 713 (1991); UNSC Res. 743 (1992); UNSC Res. 819 (1993); UNSC Res. 1199 (1998).

131 UNSC Res. 918 (1994).

132 UNSC Res. 851 (1993); UNSC Res. 1127 (1997).

133 UNSC Res. 733 (1992); UNSC Res. 746 (1992); UNSC Res. 886 (1993).

134 UNSC Res. 1375 (2001).

135 UNSC Res. 1556 (2004); UNSC Res. 1593 (2005).

136 UNSC Res. 1572 (2004); UNSC Res. 1633 (2005).

137 UNSC Res. 1970 (2011); UNSC Res. 1973 (2011).

138 UNSC Res. 2042 (2012).

139 UNSC Res. 163 and UNSC Res. 864; UNSC Res. 418; UNSC Res. 713; UNSC Res. 733: ‘there is a common understanding, manifested by the “subsequent practice” of the membership of the United Nations at large, that the “threat to the peace” of Article 39 may include, as one of its species, internal armed conflicts’. Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94–1, Appeals Chamber, 2 October 1995, para. 30.

140 UNSC Res. 864 (1993).

141 Ibid.

142 On the evolvement of the concept of ‘threat to the peace’ see Talmon, S., ‘The Security Council as World Legislature’, (2005) 99 AJIL 175CrossRefGoogle Scholar, at 180–1.

143 The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (published by the International Development Research Centre, 2001); A More Secure World: Our Shared Responsibility, Report of the Secretary-General's High-Level Panel on Threats, Challenges and Change, UN Doc. A/59/565 (2004).

144 With the debatable exception of narrow forms of self-determination.

145 Although international human rights law will provide an element of regulation in certain circumstances.

146 See many of the conflicts mentioned earlier, supra notes 127–37, including: Congo in 1964, Somalia in 1992, Rwanda in 1994, Kosovo in 1998 and 1999, and on to Libya in 2011 and Syria in 2012.

147 UNSC Res. 199 (1964).

148 UNSC Res. 733 (1992).

149 UNSC Res. 918 (1994).

150 UNSC Res. 1199 (1998).

151 UNSC Res. 1572 (2004).

152 UNSC Res. 1973 (2011).

153 See discussion, supra in section 2 of this article.

154 They would also likely have trouble fulfilling the ‘peace-loving’ requirement in Article 4 of the UN Charter: ‘Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.’

155 See further discussion below.

156 UNSC Res. 918 (1994).

157 UNSC Res. 1244 (1999).

158 UNSC Res. 1633 (2005).

159 This is further apparent in the use of sanctions against non-state actors, as will be returned to in the conclusion; see also infra note 180; in addition, the debates surrounding the formulation of resolutions demonstrate that states consider the resolutions to obligate non-state actors. See the debates for Res. 1860 (2009) and statements by Brazil (5, S/PV.6061 Resumption 1), Costa Rica (6, S/PV. 6063), and Pakistan (10, S/PV.6061 Resumption 1).

160 On the question of human rights obligations for non-state actors, see A. Clapham, Human Rights Obligations of Non-State Actors (2006); see also J. Ruggie, Protect, Respect and Remedy: A Framework for Business and Human Rights, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, UN Doc. A/HRC/8/5 (2008); For an examination of international legal personality see, generally, R. Portmann, Legal Personality in International Law (2010).

161 Common Article 3 to the 1949 Geneva Conventions states that ‘In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions’. See also Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 UNTS 609, entered into force Dec. 7, 1978.

162 See Cassese, A., ‘Status of Rebels under the 1977 Geneva Protocol on Non-International Armed Conflicts’, (1981) 30 ICLQ 416CrossRefGoogle Scholar; Clapham, A., ‘Human Rights Obligations of Non-State Actors in Conflict Situations’, (2006) 863 IRRC 491CrossRefGoogle Scholar; Sivakumaran, S., ‘Binding Armed Opposition Groups’, (2006) 55 ICLQ 381CrossRefGoogle Scholar; Kleffner, J., ‘The Applicability of International Humanitarian Law to Organized Armed Groups’, (2011) 882 IRRC 443CrossRefGoogle Scholar.

163 Sivakumaran, supra note 162, at 381–93; Clapham, supra note 162, at 498; Kleffner, supra note 162, at 445–9.

164 Cassese, supra note 162, at 429 (original emphasis). Another difficulty that may arise in more recent times will be with regard to armed groups with an international profile, operating not in a single domestic legal arena, but across multiple territories of different states with different legal obligations, and thus not subject to a single uniform system of domestic law.

165 Sivakumaran, supra note 162, at 384–5; Kleffner, supra note 162, at 447–8.

166 An indicative situation was encountered when the National Liberation Movement of South Vietnam made it clear that they did not consider themselves bound by the obligations taken on by a government whose authority they did not respect (though they did maintain that their detainees were treated humanely). D. Forsythe, ‘Legal Management of Internal War’, (1978) 72 AJIL 272, at 292; However, this concern might be alleviated if the armed group sees adherence with the law as contributing to the legitimacy of their struggle. See discussion in Sivakumaran, supra note 162, at 386–8; Kleffner, supra note 162, at 446.

167 A ‘convincing theory is that [armed groups] are bound as a matter of international customary law to observe the obligations declared by Common Article 3’. Prosecutor v. Kallon and Kamara, Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, Appeals Chamber, Special Court for Sierra Leone, SCSL-2004–15-AR72(E), SCSL-2004–16-AR72(E), 13 March 2004, para. 47. See discussion of the customary-law approach in Sivakumaran, supra note 162, at 373–5; Kleffner, supra note 162, at 454–5; on the role of armed groups in the formation of international law, and suggestions for new approaches, see Roberts, A. and Sivakumaran, S., ‘Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Humanitarian Law’, (2012) 37 Yale JIL 107Google Scholar.

168 Kleffner, supra note 162, at 449–51.

169 UN Charter, supra note 8, Art. 25.

170 See discussion in section 2 of this article, supra.

171 But see infra for differences that may be crucial.

172 See the use of the phrase ‘Decides that all States shall’ in a number of resolutions, including: UNSC Res. 418 (South-Africa); UNSC Res. 661 (Iraq/Kuwait); UNSC Res. 1127 and 1173 (Angola); UNSC Res. 1540 (WMD); UNSC Res. 1989 (terrorism). In the last of these, operative paragraph 1 clearly addresses ‘all States’, while other paragraphs (e.g., 9–15) mention ‘Member States’, thus highlighting the difference and making clear that para. 1 is directed not only at members.

173 Namibia Advisory Opinion, supra note 19, at para. 126.

174 See discussion in Widdows, K., ‘Security Council Resolutions and Non-Members of the United Nations’, (1978) 27 ICLQ 459CrossRefGoogle Scholar, at 460–2; Oberg, M., ‘The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ’, (2006) 16 EJIL 879CrossRefGoogle Scholar, at 885; Bohr, S., ‘Sanctions by the United Nations Security Council and the European Community’, (1993) 4 EJIL 256CrossRefGoogle Scholar, at 262.

175 VCLT, supra note 17, Arts. 34, 35. It is debatable whether these rules have customary status and whether they apply to non-state actors. See Cassese, supra note 162, at 423; Sivakumaran, supra note 162, at 377–9.

176 But see Widdows, supra note 174, at 460–1.

177 Shaw, supra note 34, at 929; I. Brownlie, Principles of Public International Law (2008), 628; but see Widdows, supra note 174, at 460; see also discussion of binding nature in Tzanakopoulos, supra note 34, at 78.

178 For detailed analysis, see D. Murray, ‘Critiques Relating to the Third Party Consent Theory’, PhD chapter in ‘The Attribution of International Law to Armed Opposition Groups’ (work in progress, on file with the authors); see discussion of consent in Shaw, supra note 34, at 9–11; see also Charney, J., ‘Universal International Law’, (2003) 87 AJIL 530Google Scholar.

179 Murray, supra note 178.

180 There may, however, be other reasons why there remains a need to answer the theoretical questions, at least in the area of IHL which can lead to individual criminal responsibility. See Sivakumaran, supra note 162, at 370–1; Kleffner, supra note 162, at 444–5.

181 In the context of ruling out one form of obligation in a specific case, the ICJ appears to have accepted that obligations can be intended. Note the use of ‘beyond that’ in the following:

The only point at which resolution 1244 (1999) expressly mentions other actors relates to the Security Council's demand, on the one hand, ‘that the KLA and other armed Kosovo Albanian groups end immediately all offensive actions and comply with the requirements for demilitarization’ (para. 15) and, on the other hand, for the ‘full cooperation by all concerned, including the international security presence, with the International Tribunal for the Former Yugoslavia’ (para. 14). There is no indication, in the text of Security Council resolution 1244 (1999), that the Security Council intended to impose, beyond that, a specific obligation to act or a prohibition from acting, addressed to such other actors.

Kosovo Advisory Opinion, supra note 19, para. 115 (emphasis added); but see also discussion of legal effect in Oberg, supra note 19, at 85–6.

182 See examples, supra notes 156–9.

183 See discussion, supra in subsection 2.1.4.

184 See, in another context, Certain Expenses Advisory Opinion, supra note 57 at paras. 167–168. On the need to interpret resolutions in light of the intention of the Council and the context of the UN Charter, see Wood, supra note 16; on the intended flexibility of the Security Council's powers, see M. Wood, ‘The UN Security Council's Powers and Their Limits’, in The UN Security Council and International Law: Hersch Lauterpacht Memorial Lectures (November 2006), para. 6.

185 In the 1973 Arab–Israeli conflict, UNSC Res. 338 used ‘calls upon’, but a ceasefire only followed in UNSC Res. 340, which used the language of ‘demands’. However, this in itself does not prove the ceasefire came about due to the resolution language as opposed to, for example, the result of the military battles on the ground and the political dynamics. See also earlier discussion of these resolutions, in notes 89–93, supra, and accompanying text.

186 For example, Res. 203 (1965) concerning the Dominican Republic ‘called for’ a ceasefire and resulted in suspension of hostilities; while in Res. 1089 (1996) on Tajikistan the ‘demand’ resulted in a ceasefire.

187 For example, see the resolutions on Cyprus–Turkey: Res. 353 (calls upon), Res. 354 (demands compliance with ceasefire element of 353), Res. 357 (demands), Res. 358 (insists); the resolutions on Iran–Iraq: Res. 479 (calls upon), Res. 514 (calls for), Res. 522 (urgently calls again for), Res. 582 (calls upon), Res. 588 (calls upon to implement 582), Res. 598 (1987, Chap VII (ref. is to Arts 39 and 40), demands; but still no reaction).

188 See subsection 2.1.2, supra.

189 An approach suggested by Kelsen. See H. Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (1950), 293; Cf. Delbrück, supra note 26, at 456.

190 Including Angola, Sudan, Israel, Libya, Rwanda, former Yugoslavia, Somalia, Syria, and more.

191 Comparing the relative number of cases in which sanctions were imposed over the years, it appears that they are more likely in non-international armed conflicts than in international armed conflicts.

192 UNSC Res. 1556 (Sudan); UNSC Res. 864 (Angola); UNSC Res. 912, UNSC Res. 918 (Rwanda).

193 UNSC Res. 733 (Somalia).

194 Cf Orakhelashvili, supra note 14, at 38.