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 3597^th 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 act of an international organization that would otherwise have binding effect does not create obligations under international law if and to the extent that they conflict with a peremptory norm […].“ The conclusion clearly covers Security Council resolutions. This is nothing new, it has been claimed by states, courts and scholars before (see here). Prof. Tladi therefore initially included Security Council resolutions in the conclusion itself (then draft conclusion 17). Several states from different regions welcomed including Security Council resolutions in the text of the conclusion, among them Brazil, Iran, South Africa, and Togo. Overall, a clear majority of states supported the applicability of conclusion 16 to Security Council resolutions. To appease a few dissenting states, Security Council resolutions were moved from the text of the conclusion itself to the commentary. Additionally, the commentary stressed that a conflict between Security Council resolutions and jus cogens was highly unlikely, and that conclusion 16 would not permit states unilaterally to disobey such resolutions. Still, Prof. Huang (and Russian ILC-member Prof. Zagaynov) objected to the mention of the Security Council, even in the commentary.

A risk of disobeying the Security Council?

Some P5-states had previously taken a more radical stance. According to France, the United Kingdom and the United States, Security Council resolutions should be explicitly excluded from conclusion 16. This would have given a Security Council resolution binding effect even if it violated jus cogens. More moderately, China and Russia had proposed simply to remove Security Council resolutions from the commentary. In a recent tweet, Prof. Tladi has characterized this critically as a defence of privilege – the privilege being a permanent seat and veto right in the organ whose abundant powers jus cogens limits. However, a privilege of disobeying jus cogens never existed. More than a defence, this must therefore be characterized as an attempted deterioration. No other state challenged the applicability of conclusion 16 to Security Council resolutions (although Israel and Germany stressed that relevant practice was lacking).

In the plenary debate (see statement starting at 02:25), Prof. Huang advanced three arguments that also reflected the P5-states’ criticism: Firstly, he highlighted the Security Council’s central role in the UN-Charter and its collective security system. As the Council’s authority had a direct bearing on war and peace, the validity of its resolutions should not be undermined. States could abuse conclusion 16 and unilaterally decide not to implement a resolution under the pretext that it conflicted with jus cogens. Secondly, the Council’s importance was recognized by Art. 103 UN-Charter, according to which obligations under the Charter, including those created by Council resolutions, prevail over other treaty obligations. Thirdly, he discarded the possibility of a conflict between a Security Council resolution and jus cogens as entirely a product of imagination. He concluded that therefore, mentioning the Security Council in the commentary would cause bewilderment and confusion. Interestingly, no P5-member (or any other state) raised the argument that the Security Council was not bound by jus cogens. Thus, the question really is whether a Security Council resolution violating jus cogens is automatically invalid, or what other consequence the violation would entail.

It has already been argued in other contexts that the possibility to unilaterally invoke the invalidating effect of peremptory norms could undermine international law. In particular, it was claimed that Art. 53 VCLT, according to which a treaty conflicting with a peremptory norm is void, would threaten the sanctity of treaties by allowing states to evade their contractual obligations. To mitigate the risk inherent to unilateral invocations of jus cogens, Art. 66 VCLT provides for dispute settlement with the ICJ. However, several states made reservations against Art. 66 VCLT. Moreover, while Art. 53 VCLT reflects customary international law (a treaty conflicting with jus cogens is invalid also for states outside the VCLT), Art. 66 VCLT does not. Effectively, therefore, dispute settlement with the ICJ is compulsory for some states only. Still, contrary to pessimistic predictions, Art. 53 VCLT has not seemingly disrupted the stability of treaty relations – it has rarely been invoked to claim the invalidity of treaties. Is it reasonable to assume that unilateral invocations of peremptory norms will undermine the binding authority of Security Council resolutions, when the risk of deterioration has not materialized with regard to treaties?

One difference between the two cases is that it would be clearly be in bad faith if a state negotiated and ratified a treaty and later claimed its invalidity under Art. 53 VCLT. By contrast, Security Council resolutions may impose obligations on UN member states without them having had any say in the drafting process. In this case, states might therefore be more inclined to turn to jus cogens as a way out. However, unilateral invocations do not occur in a vacuum. Other states, and the Security Council, can reject and thereby delegitimize abusive invocations of jus cogens. It seems unlikely that a disobedient state will be successful with its unilateral invocation of jus cogens if the invocation simply has no merit to it. Such a State might still not implement the resolution, but at significant reputational costs. In any case, however high the risk of abuse, mentioning or omitting Security Council resolutions in the commentary to conclusion 16 will most likely not have a significant effect on amplifying or mitigating that risk.

A Security Council disobeying jus cogens?

Likewise, it does seem highly unlikely that the Security Council would adopt a resolution disobeying a norm whose peremptory status is well accepted, such as the prohibition of genocide or slavery. Nevertheless, the possibility that Security Council resolutions might disobey jus cogens is not, as Prof. Huang claimed, entirely a product of imagination. For example, one way to end Russia’s ongoing aggression against Ukraine might be a Security Council resolution accepting Russian control over (some of) the territory it illegally invaded. Arguably, such a resolution would conflict with the peremptory right to self-determination (see Annex of the draft conclusions) of the Ukrainian people and the obligation not to recognize situations as legal that were created by a serious breach of jus cogens (conclusion 19). Another example is the Kadi case, in which the European Court of First Instance determined a potential clash between a Security Council resolution and the applicant’s fundamental rights, claimed by the Court to be jus cogens. These examples are not uncontroversial, but they illustrate that conflicts between Security Council resolutions and jus cogens may arise. Therefore, a conflict between a Security Council resolution and jus cogens cannot be equated with a conflict between jus cogens and the Charter, as implied by Prof. Huang. In addition, while Art. 103 UN-Charter protects the validity of the Charter against conflicting treaties, it does not put the Charter above and beyond jus cogens.

A risk of abusive unilateral invocations of the law is inherent to any decentralized system that lacks compulsory jurisdiction. While expressly mentioning the Security Council in conclusion 16 or the commentary thereto may bear the risk of encouraging unilateral invocations of jus cogens to evade Charter obligations, explicitly excluding Security Council resolutions from conclusion 16 would pose the risk that the Security Council takes jus cogens less seriously. Ultimately, the question seems to be what risk one prefers. While P5-states were critical towards mentioning the Security Council, others welcomed reference to the Council. They may see a greater risk in the Security Council disobeying peremptory norms. Hence, the controversy both reflects diverging views on the authority of the Security Council, as well as on the authority of jus cogens.

During the plenary on 26 July 2022, the ILC eventually, after additional informal consultations, adopted by consensus the commentary to conclusion 16 with express reference to Security Council resolutions (see here at 00:16). Whatever changed the minds of the dissenting ILC members, the adoption is to be welcomed. Now, conclusion 16 clearly covers Security Council resolutions. The ILC thereby rightly recognized that Security Council resolutions do not create binding effects to the extent that they conflict with jus cogens. While the ILC has reached its conclusion on the issue, it remains to be seen what states will do with conclusion 16 in practice. Contrary to Prof. Huang’s fear, bewilderment and confusion are unlikely to unfold.