Regarding the Legality of the UN Security Council Resolution 1696 on Iran's Nuclear Program, I have received a number of requests for more information, specifically on whether UNSC Resolutions taken under Chapter VII are necessarily and absolutely "binding" on Iran under Article 103 of the UN Charter, in disregard of the Non-Proliferation Treaty.
I previously mentioned that the right of any country to obtain and use technology to develop and use its own natural resources to power its own economy is a sovereign right which must be respected as an element of jus cogens - and this applies to nuclear technology too. After all, if it wasn't a sovereign right, then by what right did China, Israel, Russia etc. build their nuclear programs?
Article 103 of the UN Charter says that UNSC resolutions trump obligations under international treaties such as the NPT. However, Article 103 does not apply to sovereign rights and jus cogens. It is a general and well-recognized principle of international law that UNSC resolutions that are contrary to jus cogens are ultra vires and NOT binding.
The International Law Commission recently addressed this very issue:
"The question has sometimes been raised whether also Council resolutions adopted ultra vires prevail by virtue of Article 103. Since obligations for Member States of the United Nations can only derive out of such resolutions that are taken within the limits of its powers, decisions ultra vires do not give rise to any obligations to begin with. Hence no conflict exists...If United Nations Member States are unable to draw up valid agreements in dissonance with jus cogens, they must also be unable to vest an international organization with the power to go against peremptory norms. Indeed both doctrine and practice unequivocally confirm that conflicts between the United Nations Charter and norms of jus cogens result not in the Charter obligations’ pre-eminence, but their invalidity. In this sense, the United Nations Charter is an international agreement as any other treaty. This is particularly relevant in relation to resolutions of the Security Council, which has more than once been accused of going against peremptory norms."
SOURCE: UN Doc. A/CN.4/L.682, p.176-177
And also:
"Peremptory norms exist to protect the values and interests that are fundamentally important to the international community as a whole. As Judge Lauterpacht emphasized in the Bosnia case, jus cogens unconditionally binds the Security Council and this was implied also in the Tadic case. Moreover, it was very recently corroborated in the Kadi case before the Court of First Instance of European Communities, where the Court ruled that it was 'empowered to check, indirectly, the lawfulness of the resolutions of the Security Council in question with regard to jus cogens, understood as a body of higher rules of public international law binding on all subjects of international law, including the bodies of the United Nations, and from which no derogation is possible'. In line with the last ruling is also the doctrine as far as the conceptual basis of this approach is concerned: the Security Council must respect peremptory norms because the core values protected by jus cogens are not derogable or waivable in the sense of jus dipositivum. Moreover, it should be acknowledged that, as when concluding a treaty, States cannot be presumed to authorize acts contrary to jus cogens, a fortiori when they establish an international organization, they cannot avoid their operation either. This is affirmed also by the principle that States cannot delegate to it more powers than they themselves can exercise (nemo plus juris transfere quam ipse habet). Acts contra juris gestionis are beyond the powers of an institution, in casu the Security Council and therefore the provisions of the UN Charter on the latter's powers have to be interpreted and executed in a way that is compatible with peremptory norms. In addition, it is argued that not only are the Council's Resolutions part of a secondary law subjected to the Charter, but also part of a system, which in its entirety is subordinated to jus cogens. As a result, the terms of a Resolution, if vague, must be construed as requiring an outcome that is consistent with jus cogens."
Source: "Interpretation of Security Council Resolutions under Chapter VII in the aftermath of the Iraqi Crisis" by Efthymios Papastavridis
International & Comparative Law Quarterly
January 2007
Copyright © 2007 by British Institute of International and Comparative Law
Comments