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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. Hassan ----------------------------------------------------- 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 41). 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 ------------------------------------------------------------------- Elias Davidsson - Post Box 1760 - 121 Reykjavik - Iceland Tel. (00354)-552-6444 or (mobile phone) 863-6444 Fax: (00354)-552-6579 Email: edavid@simnet.is URL: http://www.juscogens.org ------------------------------------------------------------------ _________________________________________________________ SPORTS SPORTS SPORTS! Hurry up and read the latest updates in the exciting world of sports. http://www.maktoob.com/ _______________________________________________ Sent via the discussion list of the Campaign Against Sanctions on Iraq. To unsubscribe, visit http://lists.casi.org.uk/mailman/listinfo/casi-discuss To contact the list manager, email casi-discuss-admin@lists.casi.org.uk All postings are archived on CASI's website: http://www.casi.org.uk