The directive nature of UNSC Resolution 2118 raises questions as to whether or not the UN Security Council has the legal authority to undo elements of a multilateral disarmament treaty painstakingly negotiated over decades. Is the UNSC legally empowered to amend, qualify or even nullify the application of international treaties? Does the UNSC have the power arbitrarily to amend the application of any international treaty, in the absence of consultation with the treaty signatories and the UN General Assembly?
Article 103 of the UN Charter provides that:
“In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”
Further, Article 25 of the Charter provides that:
“The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”
There is little doubt then that the duties placed on Members in accordance with the Charter by binding decisions of the Security Council are also obligations under the Charter for the purposes of Article 103.66
65 Reese Erlich, “Who Really Used Chemical Weapons in Syria”, December 1, 2014, Who, What & Why; available at: http://whowhatwhy.org/2014/12/01/really-used-chemical-weapons-syria/
66 See, e.g., Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16, Separate Opinion of Vice-President Ammoun, para 18 (observing that obligations ‘under the Charter’, as contemplated by art 103, “clearly include obligations resulting from the provisions of the Charter and from its purposes, and also those laid down by the binding decisions of the organs of the United Nations”); see also Nigel D White and A Abass,
18 Annex II: International Law Challenges to WMD Disposition Options This was the central issue in the Lockerbie case, one of the few cases where the effects of Article 103 have been specifically considered. As is well known, the case dealt with the question
whether Libya was obliged to extradite two of its nationals who were accused of blowing up an aircraft over the Scottish village of Lockerbie. Libya relied on the 1971 Montreal Convention, arguing that it was only bound to extradite the suspects if it did not prosecute them domestically. The International Court of Justice (ICJ), however, came to the conclusion that whatever choice Libya might have had under the Montreal Convention, the Security Council resolution enjoyed priority. This was because all parties to the dispute were, “as Members of the United Nations ... obliged to accept and carry out the decisions of the Security Council in accordance with Article 25 of the Charter.” The ICJ further held that in accordance with Article 103 of the Charter, the obligations of the Parties in complying with a Chapter VII Security Council resolution prevail over their obligations under any other international agreement, including the Montreal
Convention.67
A few decades later, in Nicaragua vs. the USA, the Court further concluded that “all regional, bilateral, and even multilateral, arrangements that the Parties to this case may have made ... must be made always subject to the provisions of Article 103.”68
With Articles 25 and 103 in mind, UNSC resolution 2118 requires the OPCW to act in violation of the CWC in several important respects. Article XII of the CWC states that only the
Conference of the States Parties may, in consultation with the Executive Council, bring cases of particular gravity to the attention of the UNSC, whereas the UNSC resolution authorizes the Executive Council alone to do this. This disenfranchises the Conference of the States Parties, the only OPCW policy-making organ representing the views of all 192 member states.
Furthermore, the UN approached Norway, Albania and Belgium, inviting them to destroy large quantities of Syrian chemical weapons on their territory. This was in direct contravention of the “no transfer” prohibition of Article 1 (a) of the CWC. Likewise, Syrian transfers of its chemical weapons from its territory would be a further violation of Article 1(a) of the CWC. However, as demonstrated in the Syria case, a legally binding UN Security Council Resolution can supersede or suspend the obligations and requirements of the CWC without doing damage to the
obligations of the rest of the states parties to the CWC. In the Syria case, the intent in thus ‘Countermeasures and Sanctions’ in Evans M., ed., International Law 4th. Oxford University Press. 537-562 (n 5) 509–32, 527 (“One effect of Article 103 of the UN Charter seems to be that mandatory sanctions resolutions adopted by the Security Council under Article 41 of the UN Charter result in obligations for member States that prevail over obligations arising under other international treaties”).
67 Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at
Lockerbie (Libya v UK, Libya v US) (Provisional Measures) [1992] ICJ Reps 3 and 114, paras 39 and 42,
respectively.
Available at: http://www.icj-cij.org/docket/index.php?sum=460&p1=3&p2=3&case=89&p3=5. 68 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Jurisdiction and Admissibility) [1984] ICJ Rep 392, para 107. Available at: http://www.icj-
19 Annex II: International Law Challenges to WMD Disposition Options modifying obligations under the CWC was to achieve the very purpose for which it is intended;
i.e., the elimination of chemical weapons.
3. Legal Justifications for Evading Treaty Obligations Acting Without Security