UNSC Resolution Research Articles

International Law and the Legitimacy of Interim Governments

This paper addresses the role of international law in political communication in the practice of interim governance. It seeks to develop a clearer understanding of the value of membership of an international human rights treaty regime for assessments of the legitimacy of interim governance arrangements. The paper has a particular focus on the case of Afghanistan. It has three main parts. The first part considers the way in which assessments of the legitimacy of interim governments are structured (it argues for legitimacy of promises to be added to the established two part schema of origin and exercise). The second part examines key considerations relevant for the extent to which political communication rights exert constraint on the discretion of interim governments. The third part examines three modalities by which the strength of political communication rights as a source of constraint might be strengthened: UN SC resolution, peace agreement, and aid agreement. A key argument is that membership of an international human rights regime with political communication rights is a reason to take more seriously the promises of interim governments to pursue democracy, as it provides a platform for international scrutiny of the efforts that are made to move towards democratic governance. However, it is further contended that in practice the law appears to be too easily overlooked by both interim governments and the international actors that keep them in authority.

The ICC Judicial Finding on Non-cooperation Against the DRC and No Immunity for Al-Bashir Based on UNSC Resolution 1593

This article assesses, as unconvincing, the various criticisms raised by Pre-Trial Chamber II (PTC II) in its judicial finding on non-compliance by the Democratic Republic of Congo (DRC), after the International Criminal Court (ICC) state party failed to arrest and surrender the President of Sudan during a visit in the country in 2014. This Chamber has been reproached for the nonchalance with which it has abandoned the custom-based approach followed by Pre-Trial Chamber I in its previous Malawi and Chad decisions and for the consequent continuing uncertainty it has raised about the correct interpretation of Article 98(1) in relation to Article 27(2), customary international law and Security Council (SC) Resolution 1593. The article argues that the conclusion reached by PTC II that no impediment exists at the horizontal level between DRC and Sudan in respect of the execution of the 2009 and 2010 Court requests to arrest and surrender Al-Bashir, is correct. It contends that the Court cannot be blamed for having decided finally to turn to the most convincing approach to the issue of immunity of officials of states not parties to the Statute. Far from having resorted to an ‘implausible’ reading of Resolution 1593, the Chamber’s conclusion that Sudan should be treated similarly to a party to the ICC Statute, not by virtue of its consent, but by the compulsory nature of SC power under Chapter VII of the United Nations Charter, is supported by the general interpretative principles applicable to SC resolutions and by the collective intent of the SC to demand justice from the International Criminal Court. The Chamber’s request for the arrest and surrender of Al-Bashir, therefore, is not an ultra vires act. Furthermore, the link established by the Court between Article 97 and 98(1) of the Statute has the merit of shifting the pendulum towards a cooperation regime more vertical than that which is normally considered. The article concludes that the time has come for the Court to abandon its excessively prudent attitude towards refusals of states parties to comply with its requests and to draw support from all available legal sources to strengthen its requests of cooperation (including the Genocide Convention).

International legal problem in combating 'Islamic State' terrorist group in Syria

'Islamic State of Iraq and Syria' (ISIS) has occupied parts of internationally recognized states and exerts further territorial pretensions. ISIS, also, implements a repressive rule, through violations of human rights and humanitarian law, which may constitute international crimes. In facing the threat od ISIS, the perception of international terrorism is important since this group has the features of a territorial entity. So far, facing with the threat of ISIS has been reduced to a model that is adopted by the UN Security Council against the terrorist network Al-Qaida. An international coalition of states, led by the United States, has undertaken air strikes on positions ISIS, on several grounds: the responsibility to protect, the protection of national security, and at the request of Iraq. At the same time, the strikes are applied in Syria, which can not be accountable for the actions of ISIS and has not requested international assistance. International law does not allow actions which would aim to destroy or jeopardize the territorial integrity or political independence of any sovereign and independent state, which is acting in accordance with the principle of equal rights and self-determination of peoples, and is hence governed by a representative government. The UNSC resolution 2249 remains short of recommending international armed action under the aegis of UNSC, but represents a step forward in recognizing the responsibility of this body in facing ISIS, at least as far as the 'destruction of refuge' is concerned. The use of force in the territory of Syria, without the express authorization of the UNSC is illegal, because terrorism does not constitute grounds for the use of force against countries. But, it opens broader issues of responsibility for the development of ISIS and the humanitarian crisis in the Middle East, as well as the functioning of the system of collective security. Overcoming the current crisis UNSC implies not just a mechanism for effective implementation of previous, unarmed, measures, but also reaching consensus on the functioning of the collective security system, because if there is no protection of states and citizens from violence, the question arises of the reasons for the existence of the system itself.

Резолюция 1540 Совета Безопасности ООН: укрепление международного права в сфере нераспространения

The article addresses the UNSC Resolution 1540 as the unique legally binding document strengthening international legal basis of MDW non-proliferation regime. It analyses the activity of Committee 1540, its priorities, as well as results of monitoring of Resolution implementation by the states-parties to the United Nations.

Fighting for a Seat at the Table: International Representation of Kosovo

This article examines the issue of international representation of Kosovo as it evolved from the establishment of an international administration by UNSC Resolution 1244 in June 1999, to Kosovo’s declaration of independence of 17 February 2008, until the present day. It summarizes external relations powers exercised by UNMIK and analyses the changes brought by Kosovo’s declaration of independence. In particular, it deals with the issue of Kosovo’s representation in regional fora. The article will also demonstrate how the issue of international representation has influenced the wider story of Kosovo’s contested statehood and, in particular, its on-going dispute with Serbia. Moreover, it will also discuss the EU’s involvement in the dispute and how the prospect of potential EU membership/association for Serbia and Kosovo, respectively, has served as a powerful incentive in the negotiations. In that sense it will show how this particular dispute has and can be managed by external and internal actors and what methods and incentives can facilitate compromise and agreement between the parties, how their own positions can either solidify or evolve, and how external mediators can either exacerbate the problem or contribute to the solution. The article also argues that conflicting attitudes towards international representation of Kosovo concern not just its external relations but also relate to the legitimacy of its independence, its statehood and its representatives. It shows that despite disputed statehood there is undoubtedly a ‘creeping legitimacy’ of Kosovo and its representatives even among those who are vigorously opposed to Kosovo’s independence.

A turn toward experimentalism? Rethinking security and governance in the twenty-first century

AbstractConventional understandings of security cooperation are rooted in the state-centric and materialist assumptions dominant in the Cold War and subscribe to the dictum of the Reagan years, ‘trust but verify’. In today's more complex setting, however, governance arrangements with the most potential to address constantly mutating security threats, such as the concern over nuclear terrorism, may not be those solely designed to ensure compliance, but rather those that are better equipped to identify and solve new problems. This article draws on a burgeoning literature on ‘new’ or ‘experimental’ governance and advances an analytical framework to consider the extent to which states and other actors might be turning toward an alternative set of mechanisms that rely more heavily on non-binding standards and recommendations, peer review, increased participation, and experimentation to generate new knowledge about the challenges they face, even in the ‘hard’ case of security cooperation. It then explores this potential reorientation in two separate, but complementary cases that have emerged as key tools in preventing illicit nuclear proliferation: the Financial Action Task Force on Money Laundering (FATF), which seeks to bolster states' counter-financing of terrorism systems, and the UNSC Resolution 1540 Committee, which guides efforts to fill the governance gaps in the nuclear non-proliferation regime. Although both cases on paper contain more traditional enforcement components, in practice they rely increasingly on experimental governance. The article concludes with an evaluation of the promise and limits of an experimentalist framework in understanding the evolution of governance arrangements in response to a more complex security environment and suggests potential avenues for future research.

Tilting at Windmills? The Indian Debate over the Responsibility to Protect after UNSC Resolution 1973

India voted for United Nations Security Council Resolution 1970, but abstained from Resolution 1973 authorizing a no-fly zone over Libya, subsequently criticizing the NATO campaign. This stance provoked much comment within India and among foreign commentators on Indian foreign policy. Some praised it as morally superior to approving military action, which was portrayed by some as Western ‘neo-colonialism’. Others, however, were critical of India’s unwillingness to back intervention in Libya and the principle of the Responsibility to Protect. For the critics, India’s objections to UNSC 1973 merely demonstrated the continued weakness of the foreign policy establishment and its inability to balance power politics and ethical values. This article evaluates these various positions, but argues that while the Libyan episode stimulated an unprecedented amount of comment in India about R2P, it is unlikely that the Indian government or leading Indian commentators will soon shift their positions.

D2. U.S. AMB. to the un Susan Rice, Explanation of the U.S. Vote on the Unsc Resolution on Condemning Continuing Israeli Settlements, New York, 18 February 2011.

Ambassador Rice made the following statement to the UN Security Council in effort to explain how the United States could veto a draft resolution (see Doc. A4 above) reaffirming the illegality of Israeli settlements that had been carefully crafted to use wording from previous U.S. official statements on the subject under consideration. The text was taken from the United States Mission to the United Nations Web site at usun.state.gov. For background on the resolution and the U.S. veto, see Graham Usher's “Letter from the UN” in this issue

Peace Agreements or Pieces of Paper: UN Security Council Resolution 1325 and Peace Negotiations and Agreements

On the 31 October 2000 UNSC Resolution 1325 was adopted. The resolution provided for a range of measures aimed at the inclusion of women in the prevention, management and resolution of conflict. In particular, several of the resolution’s provisions addressed the role of women and gender in peace negotiations and agreements. This article examines whether and how Resolution 1325 has impacted on the drafting of peace agreements. We analyse explicit references to women and gender in peace agreements from 1990 to 2010, providing a quantitative and qualitative assessment of the extent to which women and gender are addressed.

PEACE AGREEMENTS OR PIECES OF PAPER? THE IMPACT OF UNSC RESOLUTION 1325 ON PEACE PROCESSES AND THEIR AGREEMENTS

AbstractOn the 31 October 2000 UNSC Resolution 1325 was adopted. The resolution provided for a range of measures aimed at the inclusion of women in the prevention, management and resolution of conflict. In particular, several of the resolution's provisions addressed the role of women and gender in peace negotiations and agreements. This article examines whether and how Resolution 1325 has impacted on the drafting of peace agreements. We analyse explicit references to women and gender in peace agreements from 1990 to 2010, providing a quantitative and qualitative assessment of the extent to which women and gender are addressed. We conclude by using our findings and analysis to address the relationship of feminist intervention to international law, and debates around the strategies and trade-offs which underlie feminist promotion and use of UN Security Council Resolutions in particular.

A Note on the ICJ Advisory Opinion on Kosovo

On 22 July 2010, the International Court of Justice (hereinafter the “ICJ”) delivered its advisory opinion on the accordance with international law of the unilateral declaration of independence in respect of Kosovo. The ICJ concluded that the declaration of independence dated 17 February 2008 did not violate any applicable rule of international law consisting of general international law, UNSC resolution 1244 (1999) (hereinafter the “Resolution 1244”) and the Constitutional Framework for Provisional Self-Government in Kosovo (hereinafter the “Constitutional Framework”). The ICJ delivered the advisory opinion in response to a question set out in resolution 63/3 dated 8 October 2008 of the General Assembly of the United Nations Organization (hereinafter the “General Assembly”), which asked if “the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo is in accordance with international law.”

Forging a Feminist Vision for Dealing with the Past in Northern Ireland: What Role for the UNSCR 1325

These Remarks were presented to a local women's conference in Northern Ireland. They consider how UNSC Resolution 1325 on Women, Peace and Security might be utilized by women attempting to influence official processes to deal with the past in Northern Ireland. In the Remarks, two aspects of the Resolution are considered, namely the protection of women as victims of violence, and the participation of women in peacemaking. The commentator suggests that, to date, interventions from Northern Irish women into official processes to deal with the past have concentrated on the participation aspect of the Resolution. Drawing on international experience of feminist engagement with transitional justice, the Remarks contend that women in Northern Ireland would do well to focus greater energy and attention on the protection aspect of the Resolution, articulating more fully and comprehensively the diverse forms of violence to which women were subjected during the conflict, and demanding accountability for that violence. In this way, UNSC Resolution 1325 might facilitate a conversation that has long proven difficult and divisive amongst women in Northern Ireland on the nature and extent of the gender-specific impact of the conflict violence, and ultimately, provide a platform to influence official conversations about dealing with the past in Northern Ireland.

The 2003 Invasion of Iraq: How the System Failed

Under international ius ad bellum norms the use of force is always illegal, except when qualified as one of two exceptions: when authorized by a legitimate right of self-defence and when authorized by a relevant UN Security Council Resolution. The Iraq invasion of 2003 has been rationalized as lawful and authorized by a material breach of UNSC Resolution 1441. It is submitted that a breach of that Resolution is insufficient legal grounds for invasion. The Resolution is not explicit enough to warrant such construction and cannot claim to lift or abolish an existing state of cease-fire. It was for the UN not for individual states to decide whether Iraq had failed to fulfill its obligations to such an extent as to warrant punitive military action. The UN refused to take such action. The other argument presented in favour of the invasion's legality was preventive self-defence. Not only was that argument irrelevant, it was also an exercise in convolution - it asserted that legally under certain circumstances pre-emptive self-defence is the same as preventive self-defence. It clearly is not. The self-defence argument rested on two conclusions, subsequently proved false - the alleged weapons of mass destruction arsenal in the possession of Iraq and the alleged links between Al-Qaeda and Saddam Hussein. The invasion wasn't lawful under either of those two arguments. International law does need to adapt to new threats such as terrorist activity and cruel regimes, but not at the cost of making the whole system of ius ad bellum obsolete and dysfunctional.

What makes news newsworthy?

In order to provide counter piracy support in the Gulf of Aden, and to ensure the delivery of the Humanitarian Aid intended to the territory of Somalia, NATO escorted World Food Program vessels off the coast of Somalia, from October to December 2008. This mission was assigned to the NATO Standing Maritime Group 2 and was acting under the name of Operation Allied provider. Following the request of the Secretary General of the United Nations on 25 September 2008, the operation took place in support of UNSC resolution 1814,1816, and 1838.

Potentials and limitations of spatial and demographic development in Kosovo-Metohija lignite basin

The initial research carried out for the purpose of elaborating the Spatial Plan for Kosovo-Metohija Lignite Basin indicated the need to address numerous conflicts and opposing interests in the area concerned. This required the Plan to focus on harmonizing the economic, social and spatial aspects of developing a mining-energy-industrial system (hereinafter MEIS) and its surroundings, devising the new ways for the protection of local population interests and use of novel approaches in dealing with the environmental consequences of lignite exploitation and processing. The area wherein Kosovo-Metohija lignite deposits are found is replete with diverse conflicting interests, including insufficient and uneven development, extremely large overall and especially agrarian population density (among the highest in Europe), unemployment and a sizable portion of the grey economy, low level and quality of services of public interest, ethnic conflicts and polarization, etc. The environmental effects of MEIS activities in a situation of this kind were revealed by the early stages of research in all segments of economic, social and spatial development, along with a high degree of environmental degradation. The main conflict in the Plan area is the one between mining and agriculture, i.e. open pit lignite mining and high-fertility soil covering lignite deposits. The conflict is additionally aggravated by the remarkable density of agricultural population on this territory and high selling prices of the land. Therefore, a substantial part of the Plan?s propositions was related to the conditions of settlement and infrastructure relocation, population resettlement and measures to relieve the tensions and prevent the outbreak of potential conflicts in implementing the Plan. The Spatial Plan is conceived as a complex and comprehensive document defining the framework, basic principles, starting points and measures tackling the numerous development conflicts, spatial, social and ecological limitations, including the relevant analytical and data bases deriving from field research and surveys. Despite the fact that under the UN SC Resolution 1244, the Autonomous Province of Kosovo and Metohija has been under the jurisdiction of the United Nations since June 1999, we believe that the Draft of the Spatial Plan and the research work done for its purpose are still valid, since to this date there have been no attempts to start the formation of new open pits in Kosovo lignite basin.

Forty Years without Resolve: Tracing the Influence of Security Council Resolution 242 on the Middle East Peace Process

This essay offers an assessment of the extent to which UNSC Resolution 242's procedural and substantive recommendations have facilitated a negotiated settlement of the Arab-Israeli conflict. The historical record of each of the mechanisms of the Middle East peace process demonstrates that the mediation mechanism established in 242 was too feeble for the task assigned to it. The resolution's ambiguities and omissions further diminished its value as a tool of dispute resolution, creating confusion about what acceptance of 242 signified, encouraging hard bargaining by the parties, and denying leaders the political cover for necessary compromise.

The Reaction of the US to the Entry into Force of the ICC Statute: Comments on UN SC Resolution 1422 (2002) and Article 98 Agreements

The Reaction of the US to the Entry into Force of the ICC Statute: Comments on UN SC Resolution 1422 (2002) and Article 98 Agreements

The Reaction of the US to the Entry into Force of the ICC Statute: Comments on UN SC Resolution 1422 (2002) and Article 98 Agreements

This paper deals with two issues. First, Security Council Resolution 1422 (2002) whereby the Council requested the International Criminal Court (ICC) to suspend investigations and prosecutions concerning personnel of UN authorized or established operations belonging to States not Parties to the ICC Statute. It is argued that this resolution is grounded more in the ICC Statute than in the UN Charter; thus, it will be for the Court to interpret and determine its scope in light of the provisions of the Statute. Second, the paper discusses agreements proposed by the US based on Article 98 ICC Statute. Under these agreements an ICC State Party would be bound to obtain US consent in order to transfer an American national to the Court. It is submitted that these Agreements, as currently drafted, are incompatible with the Statute. Although, certain conditions (such as the duty of the ICC State Party to ensure that the alleged perpetrators of international crimes do not go unpunished) may be considered as implicit in agreements already made by States Parties with the US, new agreements should expressly provide for a specific obligation for the US to investigate and prosecute in the event of the other contracting party deciding not to prosecute the American national. If the US decides that prosecution is unnecessary, it should be required to give a detailed explanation to the other contracting State. Alternatively, such agreements should provide for a mechanism whereby the transfer to the US of Americans detained by the ICC State Party may only be effected with the authorization of the Court.

Sex and Death in the Rational World of Defense Intellectuals

Sex and Death in the Rational World of Defense Intellectuals