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Home EJIL Analysis Can UNSC Presidential Statements be Legally Binding?

Can UNSC Presidential Statements be Legally Binding?

Published on April 15, 2009        Author: 

The United States government now apparently thinks so. A couple of days ago the Security Council adopted a presidential statement condemning the recent missile launch by North Korea (press release here; text here). In response to reporters questioning why the Council was unable to adopt a formal resolution, and whether this meant that the presidential statement was merely imposing political, rather than legal obligations on the DPRK, Susan Rice, the US Ambassador to the UN, said the following:

First of all the United States views presidential statements, broadly speaking, as binding. In this instance, it is more than binding in that it adds to an existing Chapter 7 sanctions regime. So in our view, there is no doubt that the measures that will be imposed as a consequence of this presidential statement by the 24 or 30 of April will occur and will be binding.

Source: US Mission to the UN; see also this CNN report. According to another report, Ambassador Rice also said that the presidential statement “is a strong and legally binding outcome of the Security Council which meets all of the objectives that we have.” Her remarks were echoed by British Ambassador John Sawers, who called the proposed draft “a formal and binding position of the council.” (source: AP).

So, it appears that at least two of the P-5 now take the position that presidential statements can qualify as binding decisions of the Council. This is news – maybe not terribly big news, but news nonetheless. Readers are of course aware that many scholars (and states) have historically been of the view that only formal Chapter VII resolutions of the UNSC can be legally binding. The ICJ disagreed with that proposition in its Namibia advisory opinion, holding that Article 25 of the Charter’s notion of Council ‘decisions’, which are binding in nature, are not confined merely to Chapter VII resolutions, and are subject to no particular requirement of form.

The Council’s practice, which is quite deliberately full of ambiguity, on the whole seems to be supportive of the broader view (for an excellent and succinct primer on UNSC decisions, see this research report). But even within this broader view the orthodoxy has so far been that presidential statements impose only political, not legal obligations – see generally S. Talmon, ‘The Statements by the President of the Security Council’, (2003) 2 Chinese JIL 419, at 447 et seq. The importance of the issue (though it should by no means be overstated) is that a broader notion of binding decisions allows for greater diplomatic flexibility in decision-making within the UNSC.

The UNSC’s treatment of nuclear proliferation and North Korea is indeed an excellent example of how such flexibility can be of practical use. Russia and China in particular have consistently attempted to prevent what they saw as overreaction by the other permanent members. They have especially seemed keen on precluding any possible use of force against the DPRK, particularly through an implied UNSC authorization argument a la Iraq 2003. Thus, the UNSC first adopted Resolution 1695 (2006), which in its chapeau did not reference Chapter VII, nor made an Article 39 determination, but rather invoked the language of Article 24 of the Charter. That it was not a Chapter VII resolution does not necessarily mean, however, that it imposed no legal obligations on the DPRK. Later Resolution 1718 (2006) was explicitly a Chapter VII resolution, with op. paras. 15 & 16 seemingly deliberately designed to prevent an implied authorization argument.

And now we have this presidential statement, the most recent product of negotiations between the P-5. It remains to be seen whether the UNSC’s practice (and the member states) will accept the possibility of legally binding decision-making through presidential statements, which are after all adopted by consensus – a more rigid requirement than for a resolution.

In other news, the DPRK has decided to withdraw from the six-party talks, restart its nuclear program, and expel IAEA inspectors. Oh well…

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2 Responses

  1. Francesco Messineo

    Marko – A very interesting point, especially in that you point out that the requirement for presidential statements is consensus, which would appear to be procedurally *more* than is required for resolutions.

    However, two things:

    a) It is true that consensus is indeed harder to get in the abstract; but it may be easier in practice to achieve it in the case of presidential statements precisely on the basis that the majority of scholarship and the practice so far does not go in the direction that they are binding in the sense of article 25 UNC. – Otherwise I suspect some of the P-5 would not have renounced the possibility of a veto.

    b) On the other hand, it should also be mentioned that at least some people interpret article 25 UNC as meaning that *all* resolutions, not just Chapter VII resolutions, are binding on member states; this seems to me the best construction of article 25, both as a matter of what the text says and its policy outcome. But I suspect article 25 could *not* be interpreted as including presidential statements because they are at least so far used as political-diplomatic instruments rather than norm-creating decisions. But mine here is of course a tautology derived from practice (a statement is a statement and not a decision; well, who says?)

    – Developments are, indeed, possible, but I would not attach too much emphasis to what it is the best political position for the US and the UK governments to have at this very day and moment. In other areas where presidential statements have been used in the past, I suspect the same countries would not have agreed / might not agree in the future.

    Has anyone studied this in any depth?

  2. Patthara Limsira

    Dear Francesco Messineo,

    Thank you raised this issue. Please correct me if I wrong, it is my first time.
    From my knowledge, the mandate of SC is under article 25, which created legal biding to a SC resolution. Moreover under article 103 which allow this resolution’s obligation prevails other.
    The Presidential Statement did not fill within this category. If SC wanted it to be legal binding, it must be resolution not a statement.
    I think this could be the other unilateral act of State that wanted to create other political tool that hallucinate to be legal binding which shall prevail other international obligations.