Saturday, January 31, 2009

How Binding Is a UN Security Council Resolution?


A preface is necessary here: I've deliberately chosen this topic for its relation to my previous post. Yesterday's reflections on America's interest in maintaining the uncomfortable peace in Georgia presupposes one important thing: namely, that Russo-American relations will not so dramatically shift under the new administration as to tempt the US into supporting Russia's position in the Russo-Georgia dispute. Arguably, should this occur, a Security Council resolution could pass--nominally forcing Georgia's hand, compelling it into submitting to Russia's legal claims on South Ossetia and Abkhazia.

And then the prior post's argument would become irrelevant, right? Because the Security Council could take action--and its noteworthy American role thereby reinforced--there would be no threat of America's influence in global governance being diminished.

Not so fast.

As I've intimated before, Security Council resolutions have historically been regarded binding obligations. Violations are not to be taken lightly. History provides ample demonstration of this: the Korean War, the Gulf War. The list is sobering. When you fail to comply, you risk the world's punishment. The weight of insuperable coalitions is sent against you.

But could there ever exist Security Council resolutions which are not binding? Obviously, if the answer is yes, then there may be moral and legal recourse to a State Party strapped with a Security Council oblgation. And, more importantly, there would be a compelling case for the United States to avoid brining its Resolution power to bear in such cases. Just as America's global role is undermined when the Security Council fails to address serious problems, it would be undermined if a Council's reaction were unenforceable.

Can a Security Council Resolution be Void? Three Perspectives.

At the outset, even the perspective that answers the above question in the affirmative goes to great length in qualifying the response. "However improbable that may be" is the careful language used by its most ardent proponents as a hedge. See e.g., page 177-78 of Un Doc. A/CN.4/L.682, referencing an opinion from the European Community's Court of First Instance.

1) Natural Law Answers "Yes."

This is ultimately the position adopted by the Court referenced in the above document. According to this viewpoint, there are certain absolute standards to which nation-states have been held from time immemorial, for reason of basic moral imperative. These collectively are known as jus cogens. If a Resolution ever demands conduct in violation of these norms, their legal authority is void.

2) Natural Law Answers "No."

The best exponent of this view came from the American position in the infamous Michael Domingues Case. Michael Domingues was a 16-year-old tried as an adult, convicted of murder, and sentenced to death. Domingues protested the application of capital punishment to him as violative of jus cogens; minors cannot be condemned to death. The matter eventually caught the attention of the Inter-American Commission of Human Rights. Ultimately, the United States addressed the Commission, arguing that, while it being undeniable jus cogens placed restrictions on capital punishment, these restrictions should be determined by reference to binding obligations growing out of the supreme arbiters of international law. Only through reference to the policy decisions of the international legal framework, as developed, can any meaningful universal "norms" be discovered. Otherwise, jus cogens becomes a subjective judgment call of any official faced with the issue.

As an aside, this argument seems vaguely reminisicent of the majority's in Griswold v. Connecticut. Even if no treaty (or the Constitution in Griswold) speaks directly to the issue, its developments in application, interpretation, and history set some guidelines.

It just so happens that as regards international law, Resolutions are so strongly indicative of norms, that they themselves cannot be contrary thereto.

3) Positive Law Answers "No."

The best approach to take in understanding this perspective is to view morality in international law as an operation of Realpolitik. And As the institutions, treaties, and their derivative Resolutions are themselves products of this same process, the two cannot logically be inconsistent. I.e., if "genocide" has become an unacceptable exercise of a state's police power--and thus a limitation on an otherwise sacrosanct sovereignty--it is only because it has been defined (and strongly condemned) by the relevant international players speaking through the institutional extensions of their power.

Much of the Realist and Critical Theorist literature takes this view. Note that in practical consequence, there's little daylight between this view and the second natural law view.

Relevance to Georgia

Returning to the theme invoked in the Introduction, if one presupposes the ridiculously unlikely Russo-American alignment envisioned, the new administration would still nonetheless do well to preserve the status quo. As any Resolution accepted by a Russo-American friendly Security Council would implicate Georgia territorial integrity issues--thereby giving the latter room to argue the unenforceability of said Resolution--such a move could only ever trigger the exact consequence best avoided by America. (I.e., a diminution in the effectiveness of the Security Council as an international voice-of-last-resort.)

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