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Disobeying the Security Council or a disobedient Security Council? The effects of jus cogens on Security Council resolutions in recent debates of the ILC and in the views of states

At the most recent plenary session of the International Law Commission, which concluded on 5 August 2022, one issue proved particularly controversial. Indeed, it proved so controversial that Prof. Tladi, Special Rapporteur on peremptory norms of general international law (jus cogens), claimed that he was willing to fall on his sword over the issue, whereas Chinese ILC-member Prof. Huang insinuated that the Special Rapporteur’s position would destroy the current collective security system and risk a third world war (statements at the 3597th meeting, 25.07.2022, Prof. Tladi starting at 02:53, Prof. Huang at 03:00). What issue could incite such aggravated language in a forum as august as the ILC? The question at issue was whether Security Council resolutions are binding under international law if they conflict with peremptory norms. The ILC is at the brink of concluding its work on jus cogens. Its Drafting Committee adopted draft conclusions on second reading in May 2022, which were discussed at the recently-concluded plenary session. The question pertaining to Security Council resolutions arises from conclusion 16: “a resolution, decision or other…

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Three Options for the Veto Power After the War in Ukraine

If any good can come out of the war in Ukraine, it should be a resumption of the decade-long process in the United Nations aiming at reining in or even removing the veto power of the permanent members of the Security Council. President Zelensky’s recent call for reforming the veto system may help to create the necessary…

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Russia’s Recognition of the ‘Separatist Republics’ in Ukraine was Manifestly Unlawful

The rush to judgment can be deceptive. A recent contribution to these pages cautions us against making instant assumptions of fact and law when considering Russia’s recognition as states of parts of Luhansk and Donetsk Oblasts within Ukraine as manifestly unlawful. Two questions arise: Do the Oblasts meet the criteria of statehood and, if so,…

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EJIL:The Podcast! Episode 14 – “From Russia With War”

In this episode Philippa Webb, Marko Milanovic and I are joined by Rebecca Barber (Asia Pacific Centre for the Responsibility to Protect) and Mike Becker (Trinity College Dublin) to examine various aspects of Russia’s war on Ukraine. The discussion begins with an evaluation of Russia’s legal justification for invading Ukraine, moving to…

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What can the UN General Assembly do about Russian Aggression in Ukraine?

Yesterday Devika Hovell wrote an excellent post on this forum, rightly noting that the Security Council was not the body to deal with Russian aggression in Ukraine. Hovell pointed to the General Assembly as the most appropriate alternative, and suggested that the Security Council should pass a ‘Uniting for Peace’ (U4P) resolution, referring…

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