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The Development of International Refugee Protection through the Practice of the UN Security Council

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Christiane Ahlborn

1. Normative Competencies within the UN System: The Evolution of the Institutional Framework

Texte intégral

  • 15   For an overview see G.S. Goodwin-Gill and J. McAdam,The Refugee in International Law (2007), 16; (...)

1The development of the international legal protection of refugees has taken place within a dynamic institutional framework predating even the establishment of the United Nations. In the interwar period different institutional and inter-state arrangements were created under the auspices of the League of Nations to ensure, inter alia, the acquisition of legal status in countries of asylum.15 When States decided to codify the institution of asylum in the 1951 Convention Relating to the Status of Refugees, this legal approach to the Second World War refugee crisis was unsurprisingly embedded within the institutional framework of the United Nations, notably through the establishment of UNHCR by the General Assembly. In consequence, the contemporary international protection regime has evolved around these two main pillars, the 1951 Convention and its complement UNHCR, illustrating the close interaction between the institutional and normative building blocks of the system.

2In order to analyze the development of international refugee protection through the practice of the Security Council, it is necessary to understand the processes by which the Security Council has become incorporated into this system of existing normative competencies. The following discussion of the inclusion of the Security Council in the institutional refugee protection framework will begin by briefly outlining the role and practice of the General Assembly and other relevant UN organs in international refugee protection. However, while the practice of the General Assembly may give an indication of how the protection regime has been shaped by the actions of a political organ over the past decades, the Security Council’s sources of authority and its role in the international legal order clearly have to be distinguished from those of other organs in the UN system. After examining the normative authority of the Security Council over international refugee protection, it will therefore also be necessary to consider potential conflicts resulting from the de facto expansion of the institutional protection framework.

1.1 Traditional Competencies

1.1.1 Institutional Beginnings: UNHCR and the 1951 Convention

  • 16   UN Doc. A/RES/428 (V) (14 Dec. 1950). Adopted by thirty-six votes to five, with eleven abstention (...)
  • 17   UNHCR succeeded to the International Refugee Organization (IRO) as the principal UN organ respons (...)

3When the General Assembly formally adopted the Statute of the United Nations High Commissioner for Refugees as an annex to resolution 428 (V) at its 1950 session,16 calling on States to cooperate with UNHCR, it firmly anchored the legal protection of refugees within its area of competence. After bringing refugees covered by previous institutional arrangements or treaties into its scope of application,17 the UNHCR Statute includes refugees resulting from events occurring before 1 January 1951 and finally provides the following general definition of a refugee:

  • 18   UNHCR Statute, para. 6 A. (ii).

“[a]ny other person who is outside the country of his nationality, or if he has no nationality, the country of his former habitual residence, because he has or had a well-founded fear of persecution by reason of his race, religion, nationality or political opinion and is unable or, because of such fear, is unwilling to avail himself of the protection of the government of the country of his nationality, or, if he has no nationality, to return to the country of his former habitual residence.”18

  • 19   See Goodwin-Gill and McAdam, supra note 15, at 21.
  • 20   UNHCR Statute, para. 1. Of these two functions, the provision of international protection is of p (...)

4At first sight, this definition is very broad in character. It nevertheless restricts the possibility to receive refugee status by stipulating the condition of a well-founded fear of persecution on the basis of an exhaustive number of stated reasons.19 Once refugee status has been granted, the functions of UNHCR include “providing international protection” and “seeking permanent solutions” to the problem of refugees by way of voluntary repatriation or assimilation in new national communities.20

  • 21   UNHCR Statute, para. 3.
  • 22   UNHCR Statute, para. 9.
  • 23   UNHCR Statute, para. 9.
  • 24   UNHCR Statute, para. 11.
  • 25   See Goodwin-Gill and McAdam, supra note 15, at 429 (FN 44). The Statute expressly provides that “ (...)
  • 26   UNHCR Statute, para. 13. In contrast, the UN High Commissioner for Human Rights (UNHCHR) has a cl (...)
  • 27   UNHCR Statute, para. 17.
  • 28 Originally comprising twenty-four States, the Executive Committee has been enlarged to its present (...)

5In exercising these functions, UNHCR’s relationship with the General Assembly is generally defined by Article 22 of the UN Charter which served as the legal basis for the Assembly to establish UNHCR as its subsidiary organ. More specifically, the UNHCR Statute provides that UNCHR acts “under the authority of the General Assembly”.21 Although the Economic and Social Council (ECOSOC) also has the authority to give policy directives,22 it is only the General Assembly that may determine that UNHCR “shall engage in such additional activities, including repatriation and resettlement, as the General Assembly may determine”.23 The High Commissioner is further required to report annually to the General Assembly, through ECOSOC, and this report is to be discussed as a separate agenda item.24 The Secretary-General’s role was deliberately limited to shelter the High Commissioner from the highly politicized work of the UN Secretariat, and to ensure that UNHCR enjoys the necessary independence, authority and impartiality to carry out its humanitarian work as stipulated by its Statute.25 Although the High Commissioner is nominated by the Secretary-General, he or she is elected into office by the General Assembly.26 Moreover, the Statute provides that the High Commissioner and the Secretary-General “shall make appropriate arrangements for liaison and consultation on matters of mutual interest”.27 Finally, the Statute stipulates that the High Commissioner, especially in the case of difficulties, request the opinion of the advisory committee on refugees. Such a committee was first created in 1951 and finally replaced in 1958 by the so-called Executive Committee of the High Commissioner’s Program (ExCom), set up by ECOSOC and still operating today.28

  • 29   UN Doc. E/RES/248 (IX)B (8 Aug. 1949).
  • 30   UN Doc. A/RES/429 (V) (14 Dec. 1950), paras. 1 and 5. Article 13 (1) of the UN Charter provides t (...)
  • 31   Preamble and Article 35 (1) of the 1951 Convention.

6After the establishment of UNHCR, the General Assembly called on the agency to participate in the elaboration of the 1951 Convention, initiated by ECOSOC pursuant to Article 62 of the UN Charter in 194929 and finalized by a Conference of Plenipotentiaries convened by General Assembly resolution 429 (V).30 The 1951 Convention sets out a catalogue of obligations for countries of asylum with the principle of non-refoulement at its center. It was adopted only half a year after the UNHCR Statute, which it complements and extends by elaborating on the normative dimension of the above-described institutional framework. On the one hand, Article 1 of the 1951 Convention adopts a definition of a refugee with wording that is very similar to the UNHCR Statute, and it also includes an additional ground for persecution, namely membership of a particular social group. On the other hand, the refugee definition contained in the Convention is more restrictive than the definition in the UNHCR Statute as the Convention is only applicable to refugees of events occurring in Europe before 1 January 1951, a limitation that was only removed in 1967 by the Protocol Relating to the Status of Refugees. It is therefore significant that the 1951 Convention establishes a strong link with the UNHCR Statute by explicitly acknowledging UNHCR’s task of supervising international conventions providing for the protection of refugees and calling on contracting States to “undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and […] in particular facilitate its duty of supervising the application of the provisions of this Convention.”31 Interestingly, the International Court of Justice is also mentioned in Article 38 of the 1951 Convention in the event of disputes arising over the application or interpretation of the Convention. The international protection of refugees is thus guaranteed by a complex complementary framework made up of a treaty and an international agency. However, while all major UN organs have been assigned a role in this context, it is noticeable that neither the 1951 Convention nor the UNHCR Statute mentions the Security Council.

1.1.2 Normative Development through the Practice of the General Assembly

  • 32   1969 OAU Convention Governing the Specific Aspects of RefugeeProblems in Africa, 1001 UNTS 45 (20 (...)
  • 33   See generally A.V. Eggli, Mass Refugee Influx and the Limits of Public International Law (2002); (...)
  • 34   See Goodwin-Gill and McAdam, supra note 15, at 23.
  • 35 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 Jul. 1996, [1996] ICJ Rep. (...)
  • 36   General Assembly resolutions can be declaratory of customary norms or evidence of emerging custom (...)

7Since the adoption of the 1951 Convention, States have been reluctant to accept new treaty obligations pertaining to international refugee law. Despite notable codifications at the regional level such as the 1969 OAU Convention on the Specific Aspects of the Refugee Problem in Africa and the non-binding 1984 Cartagena Declaration on Refugees,32 no universal treaty has been drafted to cover more recent developments such as large-scale refugee crises or internal displacement,33 often taking place in the context of armed conflict which is not per se covered by the existing refugee definition. Although the UNHCR Statute mandates the agency to relate, as a rule, to groups and categories, the refugee definition in the Statute as well as the definition in the 1951 Convention are basically individualistic and seem to require a case-by-case examination of subjective and objective elements after asylum-seekers have crossed an internationally recognized border.34 Nonetheless, the competent UN organs, mainly led by humanitarian and political considerations, have continuously adapted the UNHCR Statute and the 1951 Convention to new protections needs. ECOSOC and the UNHCR Executive Committee have played a considerable role in this evolution. However, it is primarily the General Assembly which has given “normative value”35 to emerging protection standards, in particular by contributing to the formation of customary international law.36

  • 37   As Goodwin-Gill and McAdam point out, UNHCR is not merely a forum in which states may express the (...)
  • 38   Report of the 31st session (1980): UN Doc. A/AC.96/588 (16 Oct. 1980), paras. 29 A(c), 29 B(c)(e) (...)
  • 39   See UN Doc. A/RES/1499 (XV) (5 Dec. 1960) (“consult with the High Commissioner in respect of meas (...)
  • 40   See Goodwin-Gill and McAdam, supra note 15, at 427. This vacuum may be due to the legal consequen (...)
  • 41   See Goodwin-Gill and McAdam, supra note 15, at 428.

8As paragraph 9 of the UNHCR Statute expressly gives authority to the General Assembly to include “additional activities” in UNHCR’s mandate, the General Assembly has made use of its normative powers to develop international refugee protection through its resolutions and in constant interaction with the practice of its subsidiary organ on the ground, UNHCR.37 With a view to expanding the mandate of UNHCR, the General Assembly has amended the legal basis of the agency and has authorized its on-going activities. As the development of UNHCR’s mandate illustrates, most States have clearly wanted the United Nations to assume responsibilities with regard to a broad category of persons obliged to flee their countries for a variety of reasons. In 1980, for instance, the UNHCR Executive Committee “emphasized […] the leading responsibility of [UNHCR] in emergency situations which involve refugees in the sense of the Statute or of General Assembly resolution 1388 (XIV) and its subsequent resolutions”.38 Those “subsequent resolutions” first outlined UNHCR’s good offices in securing contributions for assistance to refugees, which were not within the competence of the UN by definition of the UNHCR Statute. On this basis, UNHCR’s mandate was further developed to include assistance and protection activities, and eventually recognition of a general responsibility to seek solutions to the problems of refugees and displaced persons of concern to UNHCR, regardless of where such problems arise.39 The General Assembly has endorsed UNHCR’s activities for humanitarian reasons, but also to use the means of international law in order to fill the “legal vacuum” created through the lack of national protection.40 As a result, the United Nations has now assumed responsibility for both the refugee fleeing from persecution and the refugee fleeing from the violence of a “man-made disaster”, despite the fact that the present system of duty and cooperation fails to demand durable solutions from sovereign States, for instance, in the form of new treaty obligations beyond the 1951 Convention.41

  • 42   See, for instance, UN Doc. A/RES/49/169 (24 Feb. 1995), preamble and para. 2, in connection with (...)
  • 43   See, for instance, UN Doc. A/RES/48/116 (24 Mar. 1994), para. 2; UN Doc. A/RES/63/149 (27 Jan. 20 (...)
  • 44   Article 8 of the OAU Convention; Cartagena Declaration, preamble (e), (f), (g).
  • 45   UNHCR, Note on International Protection, UN Doc. A/AC.96/830 (7 Sept. 1994), at 16, para. 32. The (...)
  • 46 Reservations to the Convention on Genocide, Advisory Opinion of 28 May 1951, [1951] ICJ Rep. 15, at (...)

9Although the General Assembly could evidently not modify the 1951 Convention in the same way as the UNHCR Statute, it has developed – in cooperation with the UNHCR Executive Committee – the normative content of the Convention by means of a progressive interpretation of its provisions in the light of new protection challenges. Its resolutions have consistently underlined “the importance of the 1951 Convention and the 1967Protocol relating to the Status of Refugees as the cornerstone of theinternational system for the protection of refugees”, and promoted its implementation at the national level.42 In addition to urging States to ratify the 1951 Convention, the General Assembly has equally recognized the supplementary nature of regional agreements and called for their ratification.43 Whereas both the Cartagena Declaration and the OAU Convention provide for cooperation with UNHCR,44 the refugee agency has in turn made use of these regional instruments. In so doing, it has applied the term “refugee” in the broader sense of these regional definitions to denote persons in need of international protection due to a serious threat to their life, liberty or security of person in their country of origin such as persecution or armed conflict, or serious public disorder.45 To adopt the words of the ICJ in its Advisory Opinion on the Genocide Convention, the General Assembly has thus demonstrated that the 1951 Convention continues to be “a permanent interest of direct concern to the United Nations which has not disappeared with the entry into force of the Convention” and that its provisions “associate the General Assembly with the life of the Convention”,46 in particular through its subsidiary organ UNHCR.

  • 47   See V. Gowlland-Debbas, ‘The Functions of the United Nations Security Council in the Internationa (...)
  • 48   See ibid.

10Although the normative effects of General Assembly resolutions are limited outside the UN legal order, its resolutions clearly have had a normative impact on international refugee protection. The twin instruments – the 1951 Convention and the UNHCR Statute – and their regional complements have bestowed legal authority on the General Assembly as well as a normative quality on its decisions, including the attribution of legal significance to its practice with regard to interpretation and legal development.47 Consequently, the development of international refugee protection through the practice of the General Assembly shows how the actions of a political organ become part of a legal framework through the existence of legal mechanisms, that is through their operation, their formal and substantive content, and the broader legal environment.48

1.2 Expanded Competencies

  • 49   UN Doc. E/CN.4/1992/73 (5 Mar.1992), endorsed by UN Doc. A/RES/48/135 (18 Feb. 1994). The role of (...)

11When the Security Council began its activities with regard to international refugee protection in the early 1990s, it had to integrate itself in an elaborate system of actors at the national, regional and international levels. Moreover, the Security Council was certainly not the sole new actor in this expanding institutional framework. One has only to think of the important role of the Special Representative of the Secretary-General on the Human Rights of Internally Displaced Persons who was appointed at the request of the UN Human Rights Commission in 1992.49 However, due to its standing in the international system and its normative powers under the UN Charter, the Security Council may be one of the most important additions to the international protection regime. The General Assembly can only extend the responsibilities of its subsidiary organ UNHCR and interpret the 1951 Convention; it cannot directly impose obligations on States – a power that is reserved to the Security Council whose actions thus have a markedly different impact on international law. Yet, neither the UNHCR Statute nor the 1951 Convention assigns any role to the Security Council. A description of the extent of institutional expansion through the de facto inclusion of the Security Council would therefore be incomplete without a subsequent examination of the Council’s normative authority over international refugee protection.

1.2.1 Institutional Expansion: The De Facto Inclusion of the Security Council

  • 50   UN Doc. A/RES/36/148 (16 Dec. 1981), preamble.
  • 51 Ibid.
  • 52   UN Doc. S/RES/361 (30 Aug. 1974), para. 4.
  • 53   UN Doc. A/RES/41/70 (3 Dec. 1986), para. 4 (emphasis added).

12The possibility that the Security Council make use of its competencies to promote the development of international refugee protection was first officially acknowledged by the Group of Governmental Experts on International Cooperation to Avert New Flows of Refugees in 1986. The Group was established in 1981 by General Assembly resolution 36/148 in which the Assembly expressed its grave concern over the continuing massive flows of refugees in many parts of the world and the human suffering affecting millions of refugee men, women and children.50 The General Assembly also stressed “that massive flows of refugees may not only affect the domestic order and stability of receiving States but also jeopardize the political and social stability and the economic development of entire regions and thus endanger international peace and security”.51 The Security Council had previously referred to different aspects of international refugee protection, for instance, by emphasizing the right to return of Cypriot refugees.52 However, when the General Assembly endorsed the Report of the Expert Group, it urged “the main organs of the United Nations to make fuller use of their respective competenciesunder the Charter of the United Nations for the prevention of new massive flows of refugees, as envisaged in paragraph 68 of the report”.53

  • 54   See UN Doc. S/RES/688 (5 Apr. 1991), preamble.

13This call was answered by the Security Council for the first time in 1991, with a recognition in resolution 688 concerning Iraq that the repression of the civilian, in particular Kurdish, population by its own government was not primarily within the domestic jurisdiction of Iraq. In order to legitimize this finding, the Council stated that a massive flow of refugees caused by the actions of the Iraqi government contributed to the threat to the peace and security in the region under Article 39 of the UN Charter.54 This determination – reminiscent of the language of the above-mentioned General Assembly resolution – was only the beginning of a whole series of similar Security Council resolutions, often followed by measures adopted under Chapter VII of the UN Charter. By linking refugee flows to threats to peace and security, the Security Council thus gradually became part of the institutional protection framework.

  • 55   See, for instance, UN Doc. S/PV.3875 (24 Apr. 1998); UN Doc. S/PV.4089 (13 Jan. 2000); UN Doc. S/ (...)
  • 56 Statement by Mrs. Sadako Ogata, United Nations High Commissioner for Refugees, to the United Nation (...)
  • 57   UN Doc. S/PV.4291 (8 Mar. 2001); UN Doc. S/PV.4470 (7 Feb. 2002); UN Doc. S/PV.4973 (20 May 2004) (...)
  • 58 UNHC, Note on International Protection 2004, UN Doc. A/AC.96/989 (7 Jul. 2004), at 12, para. 43, s (...)

14This de facto inclusion was probably most clearly indicated by the increasing interaction between the Security Council and UNHCR. From 1993 onwards the then High Commissioner Sadako Ogata addressed the Council on different country situations, in particular the looming displacement crisis in the former Federal Republic of Yugoslavia.55 Ogata justified this emerging practice with the following explanation: “Our recent experiences in protecting and assisting refugees have proven the essential links between peacemaking, peacekeeping and humanitarian action. A link which has brought my Office into closer contact with the Security Council.”56 Following Ogata’s example, the subsequent High Commissioners for Refugees have equally raised situation-related and substantive aspects with the Council on various formal and informal occasions.57Moreover, these issues have often come to be reflected in the Security Council’s resolutions, either with the direct support of the UNHCR Office in New York or indirectly through the UN Secretariat.58 However, before analyzing the content and scope of the Council’s extensive pronouncements on international refugee protection, one first has to inquire into the legal basis for the Security Council’s acts with regard to this field of the law, which the 1951 Convention as well as the UNHCR Statute clearly situate within the mandate of the General Assembly.

1.2.2 Normative Authority of the Security Council

  • 59   A. El-Erian, ‘The Legal Organization of International Society’, in M. Sorensen (ed.), Manual of P (...)

15Considering that no legal instrument makes explicit reference to the Security Council’s authority with regard to international refugee protection, this inquiry can only be undertaken by examining the UN Charter. As Judge El-Erian emphasized, “[w]hatever the legal nature of the powers attributed to an international institution, they are specific in the sense that they may be exercised only with respect to certain subject-matters prescribed by the constituent instrument.”59 The Charter circumscribes the Council’s principal function and powers in Article 24 which gives the Council the primary responsibility for the “maintenance of international peace and security”. The specific powers of the Security Council are further laid down in Chapters VI (Pacific Settlement of Disputes), VII (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression), VIII (Regional Arrangements) and XII (International Trusteeship System). The Council’s powers are only expressly limited by Article 24 (2), obliging it to act in accordance with the purposes and principles of the United Nations. Accordingly, the UN Charter sets out a very broad scope of action for the Security Council. To the extent that aspects of international refugee protection are related to the maintenance of peace and security, they fall within the scope of Security Council’s competence.

  • 60   The procedural requirement is given by the voting procedures. See J.A. Frowein and N. Krisch, ‘Ar (...)
  • 61   See generally I. Österdahl, Threat to the Peace: The Interpretation by the Security Council of Ar (...)
  • 62   UN Doc. S/23500 (31 Jan. 1992), at 3.
  • 63   UN Doc. S/RES/1308 (17 Jul. 2000) on the responsibility of the Security Council in the maintenanc (...)
  • 64 See Higgins, supra note 36, at 5.

16Since the UN Charter does not define the term “international peace and security”, the Security Council has wide discretion in establishing its competence as illustrated by its determinations of a threat to the peace, a breach of the peace or an act of aggression in a particular situation pursuant to Article 39 of the UN Charter.60 Among the three elements that may trigger Security Council resolutions with enforcement character under Chapter VII, it is specifically the concept of a threat to the peace that has been continuously enlarged in the Security Council’s practice.61 As early as 1992, the Council emphasized that “the non-military sources of instability in the economic, social, humanitarian and ecological fields have become threats to peace and security”.62 While it may not be unusual for refugee flows to fall into this categorization, the Council has even considered HIV/AIDS as a threat to international peace and security.63 Following a determination pursuant Article 39 of the UN Charter, the Security Council’s wide discretionary powers under the UN Charter also extend to the choice of measures pursuant to Articles 40, 41 and 42. The UN Charter does not explicitly prescribe any particular order in which these measures have to be taken, ranging from inaction through recommendations, calls for provisional measures, mandatory non-forcible measures, to military force. Given the necessities of the maintenance of international peace and security, the reference to a specific normative authority of the Council for taking these measures is often muted, in the sense that its decisions must be taken with some urgency.64 In this discretionary framework of the UN Charter, it is therefore difficult to establish the specific normative authority of the Security Council’s actions and their effects on international refugee protection.

  • 65 As the ICJ pointed out in its 1971 Namibia Advisory Opinion, the binding effect of Security Counci (...)
  • 66 M. P. de Brichambaut, ‘The Roleof the United Nations Security Council in the International Legal S (...)
  • 67 As Paul Szasz notes: “It is generally accepted that IGOs [intergovernmental organizations] in gene (...)

17Traditionally, the coercive nature of the Security Council’s enforcement powers is considered as the primary source of the Council’s normative authority and the premise for the effects of its actions on general international law. The binding force of Security Council decisions is based on Article 25 of the UN Charter, by virtue of which the Council may impose obligations on UN Member States. The Security Council’s coercive powers are further reinforced by Article 103 of the UN Charter stipulating that in case of conflict such obligations shall prevail over any other international agreements. In the context of its enforcement actions, the Security Council’s resolutions frequently contain statements about the pertinent legal rules in connection with its political considerations of a particular case or matter.However, given the situation-specific approach of Article 39 of the UN Charter, the normative effects of these statements depend on a variety of factors such as a reference to Chapter VII of the UN Charter, the scope ratione personae and ratione materiae of the respective resolution, and the particularities of a given situation.65 From a conventional point of view, the Security Council is thus “not, properly speaking, an organ that creates law”,66 but merely a political organ that interprets and applies existing law in relation to UN Member States.67

  • 68   Alvarez observes that “the Council’s normative authority is premised on both its coercive powers (...)
  • 69   Higgins, supra note 36, at 5 (emphasis added). See also R. Higgins, Problems and Process: Interna (...)
  • 70   As early as 1952, the General Assembly had also passed UN Doc. A/RES/686 (VII) (5 Dec. 1952), par (...)
  • 71   See J.-M. Henckaerts and L. Doswald-Beck (eds.), Customary International Humanitarian Law (Volume (...)
  • 72   See North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic o (...)
  • 73 Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case (...)

18Progressive voices have more recently claimed that the Security Council may influence the formation of international norms beyond law enforcement in specific cases, drawing its normative authority from its unique status in the international system.68 As Rosalyn Higgins noted already in 1963, although “the Security Council is likely to state that it is basing itself on the law as it conceives it to be, the line between applying and legislating it becomes thin: certainly a question of developing law becomes involved.69 In fact, it seems to be increasingly accepted that the Security Council may contribute to the development of nascent customary international law.70 Although the Security Council’s actions cannot be said to represent the generality of the requisite State practice in the same way as the General Assembly’s actions can, the consistent and uniform reiteration of obligations by the Security Council may result in widespread State practice. In this vein, the International Committee of the Red Cross (ICRC), in its recent study on customary international humanitarian law, extensively referred to the practice of the Security Council in situations of armed conflict.71 If this practice subsequently finds general acceptance in the opinio iuris of UN Member States, it may contribute to the crystallization or consolidation of customary international law.72 This interplay between the Security Council’s practice and its acceptance by States was, for instance, addressed by the International Criminal Tribunal for the Former Yugoslavia (ICTY). In the Tadić case, the Appeals Chamber discussed States’ interpretation of the Security Council’s statements about the mixed nature of the conflict and the applicable international humanitarian law to determine the scope of application of the ICTY Statute.73 However, in order to be relevant for the formation of customary international law, it is evident that the general acceptance of States must be based on the existence of an (emerging) rule of general international law and not only on compliance with Article 25 of the UN Charter.

  • 74   See Higgins, supra note 36, at 5.
  • 75   On the Security Council quasi-legislative activities see supra note 9.

19The development of customary international law through the practice of the Security Council obviously poses many procedural questions concerning the Council’s composition, its nature as a political organ and the coherence of its ad hoc actions. Yet a closer look at the practice of States reveals that many of these questions are equally relevant to customary law-making through the traditional subjects of international law.74 A more problematic phenomenon is rather presented by the Council’s recent quasi-legislative activities, especially in the field of counterterrorism. Whereas the Security Council’s influence on customary international law stems from references to existing or emerging rules of law, its quasi-legislative resolutions stipulate abstract norms of general application that go beyond existing rules of international law in apparent disregard of the consensual nature of treaty obligations. Although this development was somewhat foreshadowed by Higgins’ earlier observations, its possible consequences for the international legal system are not yet foreseeable.75

  • 76   See Gowlland-Debbas, supra note 47, at 287.

20For the purpose of this study on the development of the international legal protection of refugees through a political UN organ, it can be concluded that resolutions of the Security Council may enforce existing rules of international law, develop customary international law and possibly even lay down new rules of general application. The Council’s discretionary determinations under Article 39 of the Charter and its resulting actions can thus be brought within a legal construction that illustrates how the law operates in integrating political decisions into legal processes with far-reaching legal consequences,76 which transcend the illusive dichotomy between law and politics. Accordingly, the Security Council does not have the same general competence over international refugee protection as the General Assembly, based on the UNHCR Statute and also the 1951 Convention. It is the UN Charter itself that gives normative authority to the Security Council, and that transforms the Security Council’s decisions into normatively significant elements for the development of this field of law and the international legal system in general.

1.3 Conflicting Competencies

  • 77   See M. Koskenniemi, ‘The Police in the Temple – Order, Justice and the UN: A Dialectical View, (1 (...)

21The UN Charter was meant to be based on a separation of functions between the General Assembly and Security Council, the former having competence over humanitarian, economic and social matters and the latter being responsible for political matters.77 While a certain overlap of powers and functions cannot possibly be avoided, the expansion of the notion of threat to international peace and security to include areas such as international refugee protection has unhinged the institutional balance of the UN system. As a consequence, the development of legal rules applicable to the protection of refugees by both principal organs on the basis of different legal premises may lead to institutional conflicts as well as questions of authority and control over subsidiary organs, notably UNHCR.

1.3.1 Institutional Conflicts: General Assembly and Security Council

  • 78   See Koskenniemi, supra note 77, at 337-38; R.L. Bindschedler, ‘La délimitation des compétences de (...)
  • 79   See Certain Expenses of the United Nations, Advisory Opinion of 20 July 1962, [1962] ICJ Rep. 151 (...)

22Under the law of the United Nations, it is theoretically not possible for the UN principal organs to impinge on each other’s Charter-mandated delimitation of powers.78 By establishing the Security Council’s principal function in the UN system, Article 24 of the UN Charter implicitly also regulates the relationship between the Security Council and the General Assembly by attributing to the Council the ‘primary’ responsibility for the maintenance of peace and security. Although it has been clearly acknowledged that the General Assembly has a secondary responsibility,79 Article 11(2) in connection with Article 12 (1) of the UN Charter provide that the General Assembly may only discuss questions relating to the maintenance of international peace and security in relation to any dispute or situation if the Security Council is not exercising the functions assigned to it under the Charter in relation the same dispute or situation. However, the logic behind this separation of powers is seriously flawed in one respect: the UN Charter does not delineate the competencies of the General Assembly against any similar intrusion on the part of the Security Council, a scenario apparently not envisaged by the drafters of the UN Charter. Article 24 (3) of the UN Charter merely requires the Security Council to submit annual reports and special reports to the General Assembly.

  • 80 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Op (...)
  • 81 Ibid., para. 28.
  • 82 Ibid., para. 27.
  • 83   As Gowlland-Debbas pointed out with regard to the 1951 Convention, the Security Council “agirait (...)

23Although the pertinent jurisprudence of the ICJ mainly concerns questions that the General Assembly has raised concerning international peace and security, it can still provide useful guidance in interpreting the relationship between the two principal organs in view of the Security Council’s activities with regard to international refugee protection. In its Advisory Opinion on the Wall, the ICJ noted that there has been an increasing tendency over time for the General Assembly and the Security Council to deal in parallel with the same matter concerning the maintenance of international peace and security.80 The Court considered this practice consistent with Article 12(1) of the UN Charter,81 reasoning that the two organs concentrate on different issues: While the Security Council has tended to focus on the aspects of matters related to international peace and security, the General Assembly has taken “a broader view, considering also their humanitarian, social and economic aspects”.82 With regard to the international legal protection of refugees, it could thus be concluded that both organs address the same matter but from different perspectives. The General Assembly develops the whole spectrum of international refugee protection, with particular emphasis on the UNHCR Statute and the 1951 Convention. In contrast, the Security Council concentrates on those aspects of international protection that are specifically related to peace and security, for instance, the prevention of refugees flows by addressing the root causes of displacement such as serious human rights violations.83

  • 84   With regard to the legality of the establishment of UN Emergency Force in the Middle East (UNEF) (...)
  • 85   See Koskenniemi, supra note 77, at 348. With reference to the Security Council and the General As (...)

24While this conclusion does still not exclude institutional overlaps between the activities of the two organs, the ICJ has pointed out the decisive difference in the relationship between the Security Council and the General Assembly in the Expenses case: unlike the General Assembly, the Council has coercive powers under Chapter VII.84 Despite Koskenniemi’s warnings against the risks involved in the use of these coercive powers to enforce – not even to speak of developing or making – international law, the ‘security police’ have become well settled in the ‘temple of justice’ that now has to accommodate the institutional consequences of this development.85 Instead of emphasizing the potential for conflict between the General Assembly and the Security Council, the best way to reconcile traditional and new competencies may hence be to recognize the inseparability of contemporary security issues from humanitarian, social and economic concerns. It is this inseparability that makes a dialectic view on the relationship between the General Assembly and the Security Council unrealistic. This relationship should be framed in terms of complementarity – rather than subsidiarity – which would allow both principal organs to make use of their respective responsibilities in order to mutually reinforce their efforts in developing areas of law such as international refugee protection.

1.3.2 UNHCR and the Security Council: What Kind of Authority?

  • 86   C. Palley, ‘Legal Issues Arising from Conflicts between UN Humanitarian and Political Mandates – (...)

25Such efforts on the part of the General Assembly and, more recently, the Security Council evidently include UNHCR. However, while UNHCR is a subsidiary organ of the General Assembly, it is unclear on which legal basis the Council interacts with the UN refugee agency. Palley, for instance, notes that “UNHCR is a body duty-bound to act as enjoined by the UN General Assembly and in cooperation, in certain cases, with other UN organs having jurisdiction (e.g. the Security Council in security matters and the Secretary-General in preventive diplomacy)”,86 but does not provide any legal explanations for this cooperation. Does the Security Council have any authority over UNHCR in matters relating to its primary responsibility, the maintenance of international peace and security, thereby influencing international refugee protection in a way similar to the General Assembly?

  • 87   See D. Sarooshi, The United Nations and the Development of Collective Security: The Delegation by (...)
  • 88   The Repertory of Practice of United Nations Organs lists the following three characteristics of a (...)
  • 89   Under the specific authority of Articles 22 and 29, the relevant principal organ can only establi (...)
  • 90   UN Doc. S/RES/1645 (20 Dec. 2005) and UN Doc. A/RES/60/180 (30 Dec. 2005).

26Like General Assembly resolutions, Security Council resolutions have internal effects within the UN legal order. As such they may be binding on other UN organs, including subsidiary organs such as UNHCR, provided the Charter has granted the Council the authority to take such decisions. Moreover, the Charter neither stipulates which entities the Council may use in its efforts to ensure the maintenance or restoration of international peace and security, nor does it explicitly prohibit its use of subsidiary organs established by other principal UN organs for such a purpose. At first glance, this a contrario argument might find support in the assumption that for purposes of external attribution, subsidiary organs are considered subsidiary organs of the UN as a whole and not only subsidiary organs of the principal organ which lawfully established them under the respective article of the UN Charter.87 However, the internal UN order clearly places the mandate of a subsidiary organ under the authority and control of the respective principal organ that has established the subsidiary organ either under the general competence of Article 7 (2) or under Articles 22 and 29 relating to specific functions of the General Assembly and Security Council, respectively.88 The fact that UNHCR was not created pursuant to the general authority of Article 7 (2) of the UN Charter, but was established in accordance with the very specific authority of Article 22, allowing the General Assembly to “establish such subsidiary organs as it deems necessary for the performance of its functions”, puts additional emphasis on the close institutional link between the General Assembly and UNHCR.89 In contrast to the Peace-Building Commission, which was recently established by both the General Assembly and the Security Council, UNCHR is thus under the exclusive authority and control of the General Assembly.90

  • 91   UN Doc. A/RES/47/105 (26 Apr. 1993), para. 14.See also Sections III.B.1 and IV.A.2, infra.
  • 92   See Articles 30, 31 and 32 of the UN Charter.
  • 93   Provisional Rules of the Security Council, UN Doc. S/96/Rev. 7 (21 Dec. 1982), Rule 39.
  • 94   UNHCR Statute, para. 11.

27Nonetheless, the finding that the Security Council does not have any direct authority or control over UNHCR’s mandate does not imply that it cannot influence UNHCR’s activities in any way. As the General Assembly has recognized, other “competent principal organs of the United Nations”, including the Security Council, may request UNHCR’s intervention in situations of in-country protection for internally displaced persons.91 Moreover, the Council has the freedom to adopt rules of procedure, including the capacity to extend invitations to non-Council members or other UN entities, which would explain the regular meeting between the Council and UNHCR.92 Rule 39 of the Provisional Rules of Procedure states that the Security Council “may invite members of the Secretariat or other persons, whom it considers competent for the purpose, to supply it with information or to give other assistance in examining matters within its competence.”93 Consequently, it is submitted that the Security Council’s interaction with UNHCR is a result of an exercise of the Council’s discretion to consult with relevant UN organs. UNHCR itself does not have the right to address the Council proprio motu. Paragraph 11 of the UNHCR Statute stipulates that “[t]he High Commissioner shall be entitled to present his views before the General Assembly, the Economic and Social Council and their subsidiary bodies”, and not the Security Council.94 The Security Council’s own initiatives to collaborate and consult with UNHCR, beginning in the post-Cold War era, have therefore demonstrated that international refugee protection is not only “a permanent interest of direct concern” to the General Assembly, but to both UN organs in their specific and interrelated fields of competence.

Notes

15   For an overview see G.S. Goodwin-Gill and J. McAdam,The Refugee in International Law (2007), 16; M. Mousalli, ‘The Evolving Functions of the Office of the High Commissioner for Refugees’, in V. Gowlland and L. Samson (eds.), Problems and Prospects of Refugee Law (1992), 81.

16   UN Doc. A/RES/428 (V) (14 Dec. 1950). Adopted by thirty-six votes to five, with eleven abstentions.

17   UNHCR succeeded to the International Refugee Organization (IRO) as the principal UN organ responsible for refugees. See generally L. W. Holborn, The International Refugee Organization: A Specialized Agency of the United Nations (1956).

18   UNHCR Statute, para. 6 A. (ii).

19   See Goodwin-Gill and McAdam, supra note 15, at 21.

20   UNHCR Statute, para. 1. Of these two functions, the provision of international protection is of primary importance because protection – for example, in the form of intervention to secure admission and non-refoulement of refugees – is a precondition for finding lasting solutions. The General Assembly has reaffirmed international protection as a principal function since at least 1974: UN Doc. A/RES/3271 (XXXIX) (10 Dec. 1974). Recent resolutions also emphasize that “the protection of refugees is primarily the responsibility of States, whose full and effective cooperation, action and political resolve are required to enable the Office to fulfill its functions”: UN Doc. A/RES/60/129 (16 Dec. 2005), para. 7.

21   UNHCR Statute, para. 3.

22   UNHCR Statute, para. 9.

23   UNHCR Statute, para. 9.

24   UNHCR Statute, para. 11.

25   See Goodwin-Gill and McAdam, supra note 15, at 429 (FN 44). The Statute expressly provides that “the work of the High Commissioner shall be of an entirely non-political character; it shall be humanitarian and social and shall relate, as a rule to groups and categories of refugees” UNHCR Statute, para. 2.

26   UNHCR Statute, para. 13. In contrast, the UN High Commissioner for Human Rights (UNHCHR) has a closer link to the UN Secretariat. The UNHCHR has the rank of an Under-Secretary-General and the Office is considered part of the UN Secretariat. UN Doc. A/RES/48/141 (7 Jan. 1994).

27   UNHCR Statute, para. 17.

28 Originally comprising twenty-four States, the Executive Committee has been enlarged to its present membership of seventy- eight (2009). See generally Goodwin-Gill and McAdam, supra note 15, at429.

29   UN Doc. E/RES/248 (IX)B (8 Aug. 1949).

30   UN Doc. A/RES/429 (V) (14 Dec. 1950), paras. 1 and 5. Article 13 (1) of the UN Charter provides that the General Assembly shall encourage the progressive development of international law and its codification. Accordingly, the General Assembly – often through the intermediary of ECOSOC – has participated in the elaboration of various international agreements relevant to international refugee protection, including the 1951 Convention and its 1967 Protocol.

31   Preamble and Article 35 (1) of the 1951 Convention.

32   1969 OAU Convention Governing the Specific Aspects of RefugeeProblems in Africa, 1001 UNTS 45 (20 Jun.1974) [hereinafter: OAU Convention], and Cartagena Declaration on Refugees, adopted at a colloquium entitled “Coloquio Sobre la Proteccíon Internacional de los Refugiados en Américan Central, México y Panamá: Problemas Jurídicos y Humanitarios” held at Cartagena, Colombia from 19 – 22 November 1984, Annual Report of the Inter-American Commission on Human Rights, OAS Doc. OEA/Ser.L/V/II.66/doc.10, rev. 1, at 190-93 (1984-85) [hereinafter: Cartagena Declaration].

33   See generally A.V. Eggli, Mass Refugee Influx and the Limits of Public International Law (2002); Henckaerts, J.-M., Mass Expulsions in International Law and Practice (1995).

34   See Goodwin-Gill and McAdam, supra note 15, at 23.

35 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 Jul. 1996, [1996] ICJ Rep. 226, at 254, para. 70.

36   General Assembly resolutions can be declaratory of customary norms or evidence of emerging custom by stating the necessary opinio iuris of governments in the widest forum for the expression of such opinions, dependent on their content and conditions of adoption: See Military and Paramilitary Activities in and against Nicaragua case (Nicaragua v. United States of America), Judgment of 27 Jun. 1986, [1986] ICJ Rep. 14, at 98-104, paras. 187-195 [hereinafter: Nicaragua case). Framed as general principles, General Assembly resolutions can also contribute to the progressive development of international law and consolidate customary norms. Moreover, resolutions that are declarations have direct legal effect as authoritative interpretations of the Charter. See R. Falk, ‘On the Quasi-Legislative Competence of the General Assembly’, (1966) 60 AJIL 782; M.D. Öberg, ‘The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ’, (2006) 16 EJIL 879; M. Bothe, ‘Legal and Non-legal Norms: A Meaningful Distinction in International Relations?’, (1980) 11 NYIL 65. See generally R. Higgins, The Development of International Law through the Political Organs of the United Nations (1963); J. Castaneda, Legal Effects of United Nations Resolutions (1969).

37   As Goodwin-Gill and McAdam point out, UNHCR is not merely a forum in which states may express their views; as a subject of international law, it can also be considered an actor in the relevant field whose actions count in the process of the formation of law. On the legal personality of UNHCR see Goodwin-Gill and McAdam, supra note 15, at 430 (stating that “Clearly, by derivation and intention, UNHCR does enjoy international personality. As a subsidiary organ of the General Assembly, its ‘personality’ (its capacity to possess international rights and duties) can be traced to the United Nations at large.”) and Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 Apr. 1949, [1949] ICJ Rep. 174, at 178-179. See generally Alvarez, supra note 9, in particular at 184. See also C. Lewis, ‘UNHCR’s Contribution to the Development of International Refugee Law: Its Foundation and Evolution’, (2005) 17 International Journal of Refugee Law 67.

38   Report of the 31st session (1980): UN Doc. A/AC.96/588 (16 Oct. 1980), paras. 29 A(c), 29 B(c)(e)(f).

39   See UN Doc. A/RES/1499 (XV) (5 Dec. 1960) (“consult with the High Commissioner in respect of measures of assistance to groups who do not come within the competence of the United Nations”); UN Doc. A/RES/1673 (XVI) (18 Dec. 1961) (“refugees for whom [the High Commissioner] lends his good offices”); UN Doc. A/RES/1959 (XVIII) (12 Dec. 1963) (“refugees for whom [the High Commissioner] lends his good offices”); UN Doc. A/RES/2294 (XXII) (11 Dec. 1967) (“refugees who are of [the High Commissioner’s] concern); UN Doc. A/RES/3143 (XXVIII) (14 Dec. 1973) (“refugees for whom [the High Commissioner] lends his good offices”); UN Doc. E/RES/2011 (LXI) (2 Aug. 1981) (“refugees and displaced persons, victims of man-made disasters”), endorsed by UN Doc. A/RES/31/55 (30 Nov. 1976); UN Doc. A/RES/34/60 (29 Nov. 1979) (“refugees and displaced persons in various parts of the world”). See generally I.C. Jackson, The Refugee Concept in Group Situations (1999).

40   See Goodwin-Gill and McAdam, supra note 15, at 427. This vacuum may be due to the legal consequences of statelessness, or it may be a matter of fact, where an individual is unable or unwilling to avail himself or herself of the protection of the government of his/her country, either because of a well-founded fear of persecution, or because of some man-made disaster, such as violence resulting from a variety of sources.

41   See Goodwin-Gill and McAdam, supra note 15, at 428.

42   See, for instance, UN Doc. A/RES/49/169 (24 Feb. 1995), preamble and para. 2, in connection with the annual report of the UNHCR in which the Executive Committee used the same formulation. UN Doc. A/49/12/Add.1 (20 Oct. 1994), at 9, para. 18 (c). See, also UNHCR, Note on International Protection, UN Doc. A/AC.96/830 (7 Sept. 1994), para. 15, emphasizing that “[t]he provisions of the Convention remain the standard against which any measures for the protection and treatment of refugees are judged.”

43   See, for instance, UN Doc. A/RES/48/116 (24 Mar. 1994), para. 2; UN Doc. A/RES/63/149 (27 Jan. 2009), preamble.

44   Article 8 of the OAU Convention; Cartagena Declaration, preamble (e), (f), (g).

45   UNHCR, Note on International Protection, UN Doc. A/AC.96/830 (7 Sept. 1994), at 16, para. 32. The 1969 Convention contains a two-part refugee definition, including the 1951 Convention/UNHCR Statute definition as the first part and adding: “The term ‘refugee’ shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.” (Article 1 of the OAU Convention). The 1984 Cartagena Declaration states that “the definition or concept of a refugee to be recommended for use in the region is one which, in addition to containing the elements of the 1951 Convention and the 1967 Protocol, includes among refugees persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.” (Cartagena Declaration, para. 3)

46 Reservations to the Convention on Genocide, Advisory Opinion of 28 May 1951, [1951] ICJ Rep. 15, at 19 (emphasis added).

47   See V. Gowlland-Debbas, ‘The Functions of the United Nations Security Council in the International Legal System’, in M. Byers (ed.), The Role of Law in International Politics: Essays in International Law and International Relations (2000), 277 at 288.

48   See ibid.

49   UN Doc. E/CN.4/1992/73 (5 Mar.1992), endorsed by UN Doc. A/RES/48/135 (18 Feb. 1994). The role of the Special Representative of the Secretary General and the Guiding Principles on Internal Displacement will be discussed below (see Section 2.2, subheading ‘Internally Displaced Persons’, infra). It is noteworthy that while the international protection regime included new actors such as the Security Council and the Secretary-General’s representative for IDPs, other actors such as ECOSOC became less important. UN Doc. A/RES/58/153 (22 Dec. 2003), which also removed the provisional character from the UNHCR’s mandate, replaced the written reporting system through ECOSOC through direct reporting to the General Assembly.

50   UN Doc. A/RES/36/148 (16 Dec. 1981), preamble.

51 Ibid.

52   UN Doc. S/RES/361 (30 Aug. 1974), para. 4.

53   UN Doc. A/RES/41/70 (3 Dec. 1986), para. 4 (emphasis added).

54   See UN Doc. S/RES/688 (5 Apr. 1991), preamble.

55   See, for instance, UN Doc. S/PV.3875 (24 Apr. 1998); UN Doc. S/PV.4089 (13 Jan. 2000); UN Doc. S/PV.4219 (10 Nov. 2000).

56 Statement by Mrs. Sadako Ogata, United Nations High Commissioner for Refugees, to the United Nations Security Council, New York (11 Mar. 1993).

57   UN Doc. S/PV.4291 (8 Mar. 2001); UN Doc. S/PV.4470 (7 Feb. 2002); UN Doc. S/PV.4973 (20 May 2004); UN Doc. S/PV.5353 (24 Jan. 2006); UN Doc. S/PV. 6062 (8 Jan. 2009). For an
overview of the consultations between UNHCR and the Security Council see Security Council Report, Monthly Forecast Jan. 2009, High Commissioner for Refugees Briefing, available at: http://
www.securitycouncilreport.org/site/c.glKWLeMTIsG/b.4844173/k.7FE6/January_2009brHigh_Commissioner_for_Refugees_Briefing.htm (last visited on 20 Jul. 2009).

58 UNHC, Note on International Protection 2004, UN Doc. A/AC.96/989 (7 Jul. 2004), at 12, para. 43, stating that “[t]hrough it [sic] office in New York, UNHCR has in close cooperation with the Office for the Coordination of Humanitarian Affairs (OCHA) and DPKO contributed to reports on the topic [of the protection of civilians in armed conflict] and has sought to advise on the drafting of relevant parts of Security Council resolutions insofar as these are related to persons and issues of concern to the Office.” Even though the access of UNHCR to the Security Council is limited (see Section 1.3.2), the UN Secretariat is one of the primary interlocutors of the UNHCR Office in New York. This fact is significant as Security Council resolutions are often based on reports by the Secretary-General, which they may even partly incorporate, so that the Secretariat’s influence on the substance of the resolution will be considerable. See M. Wood, ‘The Interpretation of Security Council Resolutions’, (1998) 2 Max Planck Yearbook of United Nations Law 73, at 80.

59   A. El-Erian, ‘The Legal Organization of International Society’, in M. Sorensen (ed.), Manual of Public International Law (1968), 55 at 75.

60   The procedural requirement is given by the voting procedures. See J.A. Frowein and N. Krisch, ‘Article 39’, in B. Simma (ed.), The United Nations Charter: A Commentary (2002), 717.

61   See generally I. Österdahl, Threat to the Peace: The Interpretation by the Security Council of Article 39 of the UN Charter (1998); K. Wellens, ‘The UN Security Council and New Threats to the Peace: Back to the Future’, (2003) 8 Journal of Conflict and Security Law 15.

62   UN Doc. S/23500 (31 Jan. 1992), at 3.

63   UN Doc. S/RES/1308 (17 Jul. 2000) on the responsibility of the Security Council in the maintenance of international peace and security: HIV/AIDS and international peacekeeping operations.

64 See Higgins, supra note 36, at 5.

65 As the ICJ pointed out in its 1971 Namibia Advisory Opinion, the binding effect of Security Council resolutions has “to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council.” Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), Advisory Opinion of 20 Jun. 1971, [1971] ICJ Rep. 16, at 53, para. 114. In general, the binding quality of Security Council decisions is indicated by reference to Chapter VII. For a discussion of possible rules of interpretation of Security Council resolutions, in particular Articles 31-33 of the Vienna Convention on the Law of Treaties (1155 UNTS 331, 27 Jan. 1980), see Wood, supra note 58. See also Öberg, supra note 36.

66 M. P. de Brichambaut, ‘The Roleof the United Nations Security Council in the International Legal System’, in M. Byers (ed.), The Role of Law in International Politics (2001), 269 at 275.

67 As Paul Szasz notes: “It is generally accepted that IGOs [intergovernmental organizations] in general, and those of the UN system in particular, do not have any inherent legislative authority; that is they cannot create international norm that are directly binding on states generally or even just on their members – though they can take certain decisions binding on their members vis-à-vis the organization (e.g. the assessment of contributions).” P. Szasz, ‘General Law-Making Processes’, in C.C. Joyner (ed.), The United Nations and International Law (1997), 27 at 58.

68   Alvarez observes that “the Council’s normative authority is premised on both its coercive powers as well as on its legitimacy, at least relative to more self-interested actors (such as the states using force or reacting to it). It is based on the Council is licensed to confer the legitimacy of the international community. […] Despite the persistent complaints about the Council’s unrepresentative nature, about the propriety and continued viability of the veto and the double standards it permits, about the Council’s lack of transparency relative to other UN organs, and about its lack of effective consultations with ‘more representative’ organs like the GA, the Council continues to be seen as the principal, if not the only, legitimator of uses of force precisely because it is the only organ, other than self-judging states, specifically authorized to use force itself and to license others to do so.” Alvarez, supra note 9, at 189. On law-making through the practice of political organs see also I. Brownlie, Principles of Public International Law (2008), 692; A. Boyle and C. Chinkin, The Making of International Law (2007), 108.

69   Higgins, supra note 36, at 5 (emphasis added). See also R. Higgins, Problems and Process: International Law and How We Use It (1994), 32, for a discussion between “Law and Obligations” with occasional references to the Security Council.

70   As early as 1952, the General Assembly had also passed UN Doc. A/RES/686 (VII) (5 Dec. 1952), para. 1 (b), on “Ways and means for making the evidence for customary international law more readily available” which requested the UN Secretary-General to establish the “Repertoire of the Practice of the Security Council”, available at http://www.un.org/Depts/dpa/repertoire/.

71   See J.-M. Henckaerts and L. Doswald-Beck (eds.), Customary International Humanitarian Law (Volume I: Rules) (2005), for instance, at 194-202.

72   See North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. The Netherlands), Judgment of 20 Feb. 1969, [1969] ICJ Rep. 3, at 44, para. 77.

73 Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1, A.C. (2 Oct. 1995), paras. 74-78.

74   See Higgins, supra note 36, at 5.

75   On the Security Council quasi-legislative activities see supra note 9.

76   See Gowlland-Debbas, supra note 47, at 287.

77   See M. Koskenniemi, ‘The Police in the Temple – Order, Justice and the UN: A Dialectical View, (1995) 6 EJIL 325, at 335. See also F.A. Vallat, ‘The General Assembly and the Security Council of the United Nations’, (1952) 29 British Yearbook of International Law 63, at 78.

78   See Koskenniemi, supra note 77, at 337-38; R.L. Bindschedler, ‘La délimitation des compétences des Nations Unies’, (1963) 108 Recueil des cours 307, at 312.

79   See Certain Expenses of the United Nations, Advisory Opinion of 20 July 1962, [1962] ICJ Rep. 151, at 163 [hereinafter: Certain Expenses case; see also H. Kelsen, The Law of the United Nations (1951), 283.

80 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 Jul. 2004, [2004] ICJ Rep. 136, at 149, para. 27 (emphasis added).

81 Ibid., para. 28.

82 Ibid., para. 27.

83   As Gowlland-Debbas pointed out with regard to the 1951 Convention, the Security Council “agirait plutôt en amont et en aval de cette Convention dans le sens qu’il s’adresserait soit à la prévention de flux massifs, soit au retour des réfugiés en combinant des mesures coercitives avec des solutions politiques.” V. Gowlland-Debbas, ‘La Charte des Nations Unies et la Convention de Genève du 28 Juillet 1951 Relative au Statut des Réfugiés’, in V. Chetail (ed.), La Convention de Genève du 28 Juillet 1951 Relative au Statut des Réfugiés 50 Ans Après: Bilan et Perspectives (2001), 193 at 212. For a discussion of the Security Council’s role in the prevention of refugee flows see Section 2.1.

84   With regard to the legality of the establishment of UN Emergency Force in the Middle East (UNEF) I by the General Assembly, the ICJ found that “it is the Security Council which is given a power to impose an explicit obligation of compliance if for example it issues an order or command to an aggressor under Chapter VII. It is only the Security Council which can require enforcement by coercive action against an aggressor.” Certain Expenses case, supra note 79, at 163.

85   See Koskenniemi, supra note 77, at 348. With reference to the Security Council and the General Assembly, Koskenniemi observed that “the police are ransacking the temple, searching for criminals and those it calls terrorists.”

86   C. Palley, ‘Legal Issues Arising from Conflicts between UN Humanitarian and Political Mandates – A Survey’, in V. Gowlland-Debbas (ed.), The Problem of Refugees in the Light of Contemporary International Law Issues (1994), 145 at 152.

87   See D. Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (1999), 87.

88   The Repertory of Practice of United Nations Organs lists the following three characteristics of a UN subsidiary organ: (1) A subsidiary organ is created by, or under the authority of, a principal organ of the United Nations; (2) The membership, structure and terms of reference of a subsidiary organ are determined, and may be modified by, or under the authority of a principal organ; (2) A subsidiary organ may be terminated by, or under the authority of a principal organ. See UN, Repertory of Practice of United Nations Organs (Vol. 1) (1955), 228. See generally D. Sarooshi, ‘The Legal Framework Governing United Nations Subsidiary Organs’, (1996) 67 BYIL 413.

89   Under the specific authority of Articles 22 and 29, the relevant principal organ can only establish subsidiary organs to perform “its [the principal organ’s] functions” whereas the general authority of Art. 7(2) does not contain any functional limitation: Art. 7(2) allows principal organs to create
subsidiary organs which the principal organ itself cannot perform, as established by the ICJ in the Effect of Awards of Compensation Made by the UN Administrative Tribunal (Advisory Opinion of 13 Jul. 1954, [1954] ICJ Rep. 47) and the Application for Review of Judgment No. 158 of the UN Administrative Tribunal (Advisory Opinion of 12 Jul. 1973, [1973] ICJ Rep. 166) cases. See
Sarooshi, supra note 88, at 425.

90   UN Doc. S/RES/1645 (20 Dec. 2005) and UN Doc. A/RES/60/180 (30 Dec. 2005).

91   UN Doc. A/RES/47/105 (26 Apr. 1993), para. 14.See also Sections III.B.1 and IV.A.2, infra.

92   See Articles 30, 31 and 32 of the UN Charter.

93   Provisional Rules of the Security Council, UN Doc. S/96/Rev. 7 (21 Dec. 1982), Rule 39.

94   UNHCR Statute, para. 11.

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