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[casi] Legal issues and the SC

Dear List,

I find the issue of the legality (or illegality) of SC resolution of great
importance to our actions against sanctions.

I disagree with the notion that what is needed is that no permanent member
vetoes a resolution, since the Charter did not specify that. It requires the
concurring vote of the permanent members. In the decision referred to, the ICJ
only stated that "the voluntary abstention of a permanent member has consistently
been interpreted as not constituting a bar to the adoption of resolutions by the
Security Council". To my knowledge there has been no SC resolution determining
that interpretation, nor any decision by the ICJ or amendment to the Charter. The
ICJ is only stating that that is how the article has been interpreted.

If abstention is not considered as barring the adoption of a resolution, this
raises the following questions: would a resolution at the SC be adopted and become
binding if ALL five permanent members abstain from voting? Would a resolution at
the SC be adopted and become binding if ALL SC members abstained from voting?
Where does the limit to this "voluntary abstention" go??

However, I have asked Mr. Elias Davidsson (who has researched and written
about that issue) to comment on the current discussion, and I am posting his
comments which I find extremely good and relevant.


Dear Hassan,

Colin Rowat is right in his assessment of the Security Council
practice (or interpretation) of the Charter.  This practice has not
been challenged by any State.  Thus, it is wrong to state that a
binding SC resolution requires the affirmative votes of the five
permanents. It requires only that no permanent vetoes a resolution
and that nine members of the Council support the resolution.

My opinion that the maintenance of the sanctions against Iraq after
April 1991 is illegal , is not based on the reasons you mention
(voting) but because the Council should have, had it acted in good
faith, lifted the sanctions that were imposed in August 1990 as a
means to secure the end of Iraq's invasion and occupation of Kuwait.
After having done so, if the Council considered in good faith that a
devastated and defeated Iraq still remained a threat to international
peace, warranting the reimposition of economic sanctions, it had to
identify specifically the nature of that threat emanating from Iraq
at THAT TIME, make a new resolution addressing THAT threat and
reimpose sanctions.  It is very unlikely that a voting majority would
have been secured in the Council to consider a devastated Iraq as a
threat to international peace.

In order to secure the maintenance of the sanction, the dominating
Council members secured the acceptance of other members to a neat
trick, namely to replace the aim of the sanctions imposed in August
1990 with new aims, without lifting the sanctions, and without making
a new determination of a threat to the peace.  The procedural
shortcut permitted, in fact, to maintain sanctions which would
certainly not have been reimposed if the Council had been presented
with a draft resolution to declare a devastataed and defeated Iraq as
a "threat to international peace and security", the talisman
permitting the imposition of sanctions (see Charter Articles 39 and

What the Council did constituted a clear abus de droit, a blatant
procedural irregularity taken in order to accomplish what a strict
respect of the Charter procedure would not have allowed.  This abuse
taints with irregularity, and in my opinion, illegality, of all
subsequent resolutions related to the sanctions.  This is not the
first time the Council acted irregularly and abusively.  But while
the Council is clearly a political body that can do what it wishes,
an external observer is free to evaluate the legitimacy and legality
of such a body and its decisions. That's what I have done.

There is a vast difference between the apparent "irregularity" of how
Article 27 is interpreted (five concurring votes) by the Council and
the gross irregularity by the Council of having not made a new
determination of a threat to the peace after the defeat of Iraq in
April 1991, as a prelude to the reimposition of sanctions.  The
members of the Council violated thereby their obligation of good
faith, which includes the duty to end coercive measures imposed by
the Council when the aim of these measures had been attained. This
was the case after the removal of Iraqi occupation of Kuwait.

Further more, the "negative veto", that is the capacity of a single
permanent member to veto the lifting of sanctions and thus hold the
entire international community hostage to its policies, is in my
opinion unconstitutional. The negative veto has been the main tool of
the US to maintain the Iraq sanctions (Madeleine Albright explicitely
threatened to use the negative veto if Council members were to submit
a draft resolution lifting the sanctions).  The claim that the
Charter permits "negative vetoes" is based on an interpretation of
the UN Charter (a treaty) that is impermissible according to the
rules of treaty interpretation established in the Vienna Convention
on the Law of Treaties.

I hope I clarified the issue.  You are free to send my note to Colin
and others (in that case please include my email, in case such people
might wish to contact me).

With my kind regaards,

Elias Davidsson - Post Box 1760 - 121 Reykjavik - Iceland
Tel. (00354)-552-6444  or  (mobile phone) 863-6444   Fax: (00354)-552-6579
Email:     URL:

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