October 2013 Monthly Forecast

Posted 30 September 2013
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PEACEMAKING, PEACEKEEPING AND PEACEBUILDING

In Hindsight: Chapter VII

 

Also see An Abridged History of Security Council Deadlocks and Uniting for Peace

Permanent members have worked overtime for nearly two weeks to codify into a Security Council decision the 14 September Russia-US agreement to secure and dismantle chemical weapons stockpiles in Syria. With the issue of whether the Council acts under Chapters VI or VII of the UN Charter, and whether it does so in a binding manner, at the core of these negotiations, it may be worthwhile to take a closer look at this matter. There seems to be some uncertainty as to the difference between Chapters VI and VII, and also about what makes a Council decision binding under international law.

Interpretation of Security Council resolutions is a complex art. As determined by the International Court of Justice in its advisory opinion of 21 June 1971 (Namibia), “the language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council” (para. 114). With the above in mind, the following guidelines may therefore be helpful in determining whether a particular Council decision or provision is binding:

  • Decisions of a binding nature can be adopted by the Security Council using its general powers under Articles 24 and 25 of the UN Charter without reference to either Chapters VI or VII.
  • Chapter VII is usually invoked following an Article 39 determination by the Security Council that there has been a “threat to the peace, breach of the peace, or act of aggression”. An explicit reference to Article 39 or to the nature of the determination is not essential, however, for the Council to use its Chapter VII powers. Resolution 1973 on Libya, for example, interestingly stated that the situation in Libya “continues to constitute a threat to international peace and security” although Resolution 1970, likewise adopted under Chapter VII, contained no explicit Article 39 determination.
  • Even when the Security Council does use its Chapter VII powers, it is not essential for the decision to be binding to have an explicit reference to Chapter VII or a particular article thereof. In an apparent effort to increase clarity, however, the Council has of late prefaced resolutions or provisions under Chapter VII with an explicit reference to its “acting under Chapter VII”.
  • Resolutions adopted under Chapter VII may also (and usually do) include provisions which are non-binding.
  • Chapter VII powers must be used to authorise Security Council-mandated sanctions regimes—although an explicit reference to Chapter VII or Article 41 more specifically is not essential.
  • Chapter VII powers must be likewise used to authorise the use of force, either by a UN peacekeeping operation or by member states—but again an explicit reference to Chapter VII or Article 42 more specifically is not essential.
  • At times, the Security Council has sought to include a precise reference to the article on which the measures imposed are based, most frequently Article 41, to exclude any inference that the Council might be including measures under Article 42. Recent examples include resolutions 1718, 1874, 1928 and 2094 on DPRK, which read “acting under Chapter VII… and taking measures under its Article 41”, as well as resolutions 1737, 1747, 1803 and 1929 on Iran, 1970 and 2009 on Libya and 2048 on Guinea-Bissau.
  • At times, the Security Council has likewise sought to exclude any inference that it might be including measures under Article 42 in underlining that a further Council decision is required for the use of force. Recent examples likewise include resolutions 1718 and 1874 on DPRK, which reads “further decisions will be required, should additional measures be necessary”, as well as resolutions 173717471803 and 1929 on Iran.
  • Although the UN Charter does not expressly prescribe a particular form for adopting binding decisions, Security Council practice suggests that resolutions are the primary vehicle for binding decisions. Presidential statements and press statements are not used as vehicles for such decisions.
  • Security Council decisions bind member states and the UN itself—but there is uncertainty regarding non-member states and regional organisations. Sometimes decisions address individuals and non-state actors with the intent to bind such parties. It remains to be seen how this practice will evolve over time.
  • Uncertain consent by the party concerned, unease about legal ambiguity and deployment in increasingly hostile operational environments have increasingly led the Security Council to authorise UN operations and the use of force with explicit reference to Chapter VII.
  • The practical conduct of UN peacekeeping operations—and whether force is actually used or not—is typically more strongly influenced by other factors such as the concept of operations and the rules of engagement rather than the language of the mandate itself as expressed in the relevant Council decision.
  • Since the end of the Cold War, the Security Council has shifted its emphasis markedly increasing its adoption of Chapter VII resolutions or resolutions with Chapter VII provisions. Whereas only 10 of the 37 resolutions adopted in 1990 were under Chapter VII (27.0 percent), 32 of the 53 resolutions adopted in 2012 made reference to Chapter VII (60.4 percent).

For a more detailed analysis, see our 23 June 2008 Special Research Report entitled “Security Council Action under Chapter VII: Myths and Realities”.