Talk:United Nations Security Council Resolution 478
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Difference between "mandate to enforce by arms" being "not binding under international law"
[edit]Your notes very accurately show how chapter VII needs to be invoked in order to issue a mandate to enforce SC decisions. It is very far removed from claiming that without chapter VII, they are considered "non binding under international law". They most certainly are. There is an editor who routinely expounds on these issues, I will try to track him/her down for additional comment.--AladdinSE 22:29, 9 September 2006 (UTC)
- the sources repeats the word "binding" 10 times. If this accurately shows something completely different, then it's speaking in code. Amoruso 22:34, 9 September 2006 (UTC)
>>>>>>>>>>>> There is no refernce to the resolution itself being illegal under article 80 of the UN charter. >>>>>>>>>>>> —Preceding unsigned comment added by 89.243.34.162 (talk) 12:16, 21 August 2010 (UTC)
International Law references
[edit]The reference that states under which article the resolution was adopted is relevant. References that discuss what it means are out of scope for this particular article.
Here are references that discuss the exclusive binding aspect of Chapter VII. They were regarded as far too large in scope for this article and were removed in the past:
No context for your last revert
[edit]I changed the position of the "illegalities" section because (there is no evidence of "illegalities" with respect to Geneva Convention etc as you put it) but before we discuss the niceties of the law, the discussion of the law by the United States and Israel to the Council should be there first. What is your problem with that? Stellarkid (talk) 04:09, 19 April 2010 (UTC)
- How can unilateral annexation not be illegal in the context of international law? See Right of conquest. Unomi (talk) 04:29, 19 April 2010 (UTC)
- What definition of illegality do you use? The Repertory noted changes to the demographic character of the occupied territory "in violation of the Geneva Convention". The ICJ found that Palestinians had been displaced; and that Israel has facilitated the transfer of portions of its own population into the occupied territory. It said those demographic changes contravene Article 49, paragraph 6, of the Fourth Geneva Convention of 1949.
- Article 8 of the Rome Statute describes those acts as "serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law", under the heading War Crimes. harlan (talk) 10:44, 19 April 2010 (UTC)
Firstly, the only suggestion of "illegality" that the resolution asserts is the Basic Law. The resolution merely says that the Geneva Convention in its judgment, "continues to apply." We are not discussing either the Rome Statute or the Repertory. Please review what other editors above have said above and stop adding your own personal analysis of the issues. You clearly have no consensus to do so. It is clear to any neutral editor from the above talk page that Chapter VII resolutions are the only ones that are "binding." At best you can use Emma Playfair who says it is arguably binding. However, it is totally inappropriate and WP:OR for us to be debating this at the article. It is simply commentary on the resolution and that is not what we are supposed to be doing here. Stellarkid (talk) 16:49, 20 April 2010 (UTC)
- You are mistaken. You are citing Muskie's remarks from S/PV.2245 (OR) and that verbatim record discusses the fact that settlements in the occupied territory are illegal (para 77) and specifically states that resolution 476 had clearly warned Israel that its actions were illegal before it adopted the basic law (para 19), i.e. that resolution called them a flagrant violation of the Fourth Geneva Convention. This resolution:
- Recalls Resolution 476
- Noted that Israel had not complied with resolution 476
- Reaffirmed its determination to secure the full implementation of its resolution 476 (1980)
- I've already explained in the Moderation/Arbcom section above that the Repertory cites each of those as a separate decisions adopted under Article 24.
- The Repertory and S/PVs are official publications of the UN that are always applicable evidence of the decisions contained in a resolution. The Repertory says "B. Measures to obtain compliance: Reaffirming other previous decisions of the Council: Situation in the Middle East: Resolution 478 (1980) of 20 August 1980, preamble" The Council Formally Declaring: 4. That the policies and practices changing the demographic character of occupied territories violate the Fourth Geneva Convention of 1949 - Situation in the Middle East - Resolution 478 (1980) of 20 August 1980, para 2. I don't see a bit of evidence that you intend to submit this issue to Moderation and your edits are obviously an attempt to prevent the official UN position from being included in the article. You have also removed Muskie's remark that Jerusalem's status cannot be unilaterally declared. harlan (talk) 20:27, 20 April 2010 (UTC)
Déjà vu Moved for discussion
[edit]I moved this here for discussion. This topic may fascinate outside legal scholars, but it is no longer a topic of discussion within the UN organization. You need to attribute opinions to their sources in the text of the article. The neutral voice of the encyclopedia cannot be used to argue against the travaux préparatoires to the UN Charter or the position of the UN organization on a constitutional matter.
De Hoogh does not discuss Chapter V, Article 24, or this resolution on page 371. He does not say that only Chapter VII resolutions are binding on that page. What he does say is that the Security Council cannot adopt binding resolutions under the powers contained in Chapter VI. The concatenation with the material from the essays in the Playfair book is a WP:Synth construction.
On pages 122-125 De Hoogh discussed the Nambia decision and said the court proceeded with its assessment that the Security Council had made a binding Article 24 decision of illegality. He noted that there is a prohibition on acquiring territory by force, and that even in cases where the Security Council or the General Assembly only makes a recommendation, member states have an independent duty to determine the facts and not to recognize or assist wrongful acts. So, it is simply perverse to use him to support a violation of an obligation erga omnes:
Although it is generally accepted that only Security Council resolutions under Chapter VII are binding <ref name="DeHoogh">{{cite book |title=Obligations Erga Omnes and International Crimes |pages=371 |author=Andre DeHoogh |year=1996 |publisher=Martinus Nijhoff Publishers}}</ref> it has been noted that it is "arguable" that an Article 24 may be considered binding. <ref name="Playfair">{{cite book |title=International Law and the Administration of Occupied Territories |author=Emma Playfair, Editor |isbn=978-0-19-825297-9}}</ref>
And I moved this here for the same purpose.
The Repertory of Practice of United Nations Organs is a legal publication, which analyzes and records the decisions of the UN organs.[1] It states that the decisions were adopted by the Security Council acting on behalf of the members under Article 24.[2] Judge Higgins in an advisory opinion some years after the adoption of resolution 478, states that although some determinations were not adopted under Chapter VII of the Charter, determinations regarding "illegal situations" are nonetheless considered to be binding on all of the members.[3] The Repertory says: "The question whether Article 24 confers general powers on the Security Council ceased to be a subject of discussion following the advisory opinion of the International Court of Justice rendered on 21 June 1971 in connection with the question of Namibia (ICJ Reports, 1971, page 16)."[2]
The subsequent advisory opinion of the International Court of Justice expressed the view that all States are under an obligation not to recognize the illegal situation in and around East Jerusalem.[4]
It is all WP:SYNTH and it is not up to us to determine. (My addition was merely by way of compromise.) It is not an enforceable decision. If you can't enforce something, how is it binding? The US has said it does not consider it binding and while other situations have been argued that obliquely reference this resolution, it has simply not been adjudicated. This shouldn't be in the article at all. It is not informative, merely confusing to the general reader. Stellarkid (talk) 18:36, 20 April 2010 (UTC)
- You are mistaken. You are citing Muskie's remarks from S/PV.2245 (OR) and that verbatim record discusses the fact that settlements in the occupied territory are illegal (para 77) and specifically states that resolution 476 had clearly warned Israel that its actions were illegal before it adopted the basic law (para 19), i.e. that resolution called them a flagrant violation of the Fourth Geneva Convention. This resolution:
- Recalls Resolution 476
- Noted that Israel had not complied with resolution 476
- Reaffirmed its determination to secure the full implementation of its resolution 476 (1980)
- I've already explained in the Moderation/Arbcom section above that the Repertory cites each of those as separate decisions adopted under Article 24.
- The Repertory and S/PVs are official publications of the UN that are always applicable evidence of the decisions contained in a resolution. The Repertory says "B. Measures to obtain compliance: Reaffirming other previous decisions of the Council: Situation in the Middle East: Resolution 478 (1980) of 20 August 1980, preamble" The Council Formally Declaring: 4. That the policies and practices changing the demographic character of occupied territories violate the Fourth Geneva Convention of 1949 - Situation in the Middle East - Resolution 478 (1980) of 20 August 1980, para 2. I don't see a bit of evidence that you intend to submit this issue to Moderation and your edits are obviously an attempt to prevent the official UN position from being included in the article. You have also removed Muskie's remark that Jerusalem's status cannot be unilaterally declared. I'd suggest you self revert. harlan (talk) 20:32, 20 April 2010 (UTC)
I meant to have written "enforceable" as that is the general consensus with respect to Chapter VII. But I think none of it belongs in there anyway. It is a better article without sorts of legalese. As I said earlier, 478 has never been challenged in and of itself and thus tangential decisions referring to it are irrelevant. Furthermore, advisory opinions about another matter are not binding either. But all that violates WP:PRIMARY . If you want to put in such stuff, it should be from secondary sources.
Resolution 478, which is what we are defining here, does not say anything about a violation of the 4th Geneva Convention. It merely says that according to the resolution, it applies to Jerusalem.
With respect to Muskie's comments, they were meant to elucidate America's position, considering that America was the only country that abstained. The remark that Jerusalem's status cannot be unilaterally declared is contained/understood in the comment that "The question of Jerusalem must be addressed in the context of negotiations for a comprehensive, just and lasting Middle East peace." It is a broader and clearer statement and implies that it cannot be "unilaterally declared." You cannot unilaterally declare something that requires negotiations. It's an oxymoron. You see, this is exactly the problem that WP talks about in WP:PRIMARY. "Primary sources that have been reliably published may be used in Wikipedia, but only with care, because it is easy to misuse them. Any interpretation of primary source material requires a reliable secondary source for that interpretation. A primary source can be used only to make descriptive statements that can be verified by any educated person without specialist knowledge. Do not make analytic, synthetic, interpretive, explanatory, or evaluative claims about material found in a primary source." The use of ICJ opinions or Repertory of Practice etc are all primary sources, and you are stringing them together to make a statement with regard binding or not binding, which is interpretation of those sources. This shouldn't be this hard! Stellarkid (talk) 23:39, 20 April 2010 (UTC)
- Now I realise that WP is not to be used as a RS, however, if you read United Nations Security Council you will see that it says among other things: "Security Council Resolutions are legally binding if they are made under Chapter VII (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression) of the Charter." and "There is a general agreement among legal scholars outside the organization that resolutions made under Chapter VI (Pacific Settlement of Disputes) are not legally binding.[19][20][21][22][23] [24][25][26][27] One argument is that since they have no enforcement mechanism, except self-help, they may not be legally binding.[28]" Stellarkid (talk) 00:11, 21 April 2010 (UTC)
Special Research Report Security Council Action Under Chapter VII: Myths and Realities, June 2008
Section on Namibia:
Despite this opinion, there continued to be disagreement within the Council’s Ad Hoc Sub-Committee on Namibia on whether to follow the Court’s conclusion and reaffirm “the obligation of all Members of the United Nations, under Article 25 of the Charter, to accept and carry out the decisions of the Security Council” .(S/10330)
In subsequent debates in the Council, the representatives of France, the UK and others pointed to their disagreement with the Court’s opinion. The French representative argued that binding decisions are limited to those situations under Article 39 and that they must clearly have fallen “within the framework of Chapter VII of the Charter and have been adopted as a result of the establishment of threats to the peace, as required by Article 39” (S/PV.1588). The UK representative stated that his government considered that “the Security Council can take decisions generally binding on member states only when the Security Council has made a determination under article 39 that a threat to the peace, breach of the peace or act of aggression exists. Only in these circumstances are the decisions binding under Article 25” (S/PV.1589).
The underlying argument seems to be that the Council’s power to make binding decisions is confined to Chapter VII and that the binding “decisions” referred to in article 25 are only those adopted by the Council under Chapter VII.
{skip}
The key point is that the analysis of the nature of Council resolutions often needs to take into account not just the text or the general circumstances at the adoption, but also the possibility that this assessment may be conclusively determined only from subsequent Council discussions. In some cases, then, the possibility of evolution in the Council’s understanding of its own decisions is critical.
The article discusses ambiguity in the SC language, with respect to words such as "decides" or "calls upon." It may appear to be settled law, but clearly it is still a matter of some dispute and disagreement. The U.S. has said it does not consider itself bound by it much as France and UK have said that it did not consider itself bound unless “the Security Council can take decisions generally binding on member states only when the Security Council has made a determination under article 39 that a threat to the peace, breach of the peace or act of aggression exists." Ultimately the UN is a collection that stays together in a voluntary union based on agreement with basic principles. If you want to include the binding nature of this article based on the ICJ's opinion on Namibia, it would be important to include the fact that a number of major democratic countries disagree with the court's assessment. Stellarkid (talk) 05:42, 21 April 2010 (UTC)
- Stellarkid, my objection remains the same. This article is about the decisions adopted by the Security Council in this particular resolution. The UN is an organization that regulates its own operations according to the Charter, its travaux préparatoires, and the decisions of the ICJ. The UN SC Secretariat unit and the Court have published the official UN legal analysis of the resolution in that connection, and they have provided the definitions of what constitutes a binding decision among the members of the organization. You are trying to re-argue all of that with WP:Synth material from third party legal scholars who have no standing within the UN. The main SC article makes it clear that they are outsiders, you are not doing that. You are presenting their views using the neutral voice of the encyclopedia and employing a synthesis to suggest they hold certain views. In most cases, like the one in the section immediately above, those legal scholars agree that international law is directly applicable to illegal situations and that it creates obligations and consequences regardless of the content of SC resolutions.
- The article already has a criticism section containing opposing views from member states regarding this resolution. harlan (talk) 09:27, 21 April 2010 (UTC)
In any event those opinions need to be attributed to the individuals in the text There is already a crticisms section where they can go.
References
- ^ General Assembly resolution 686 (VII), "Ways And Means For Making The Evidence Of Customary International Law More Readily Available" mandated that a reportery of the practice of the UN organs be prepared by the Secretariat units concerned
- ^ a b For example, The Repertory of Practice of United Nations Organs, Article 24, Supplement No 6 (1979 - 1984), volume 3 indicates the Council was acting on behalf of the members when it formally declared illegal legislative and administrative measures invalid in resolution 478. See Note 2 on Page 1 and page listings on pages 12,19,24,25,26,29,and 30 [1]
- ^ See Judge Higgins response to the question contained in General Assembly resolution ES-10/14 in her Separate Advisory Opinion, paras 22 and 38:[2]; and De Waart, Paul J. I. M., "International Court of Justice Firmly Walled in the Law of Power in the Israeli–Palestinian Peace Process", Leiden Journal of International Law, 18 (2005), pp. 467–487, especially 474, and 485-486
- ^ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. International Court of Justice.
Extended-confirmed-protected edit request on 14 May 2018
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Hello, Per today's news, there is now an American embassy in Jerusalem. I think this should be added after the sentence indicating that all withdrawals had completed by 2006, and there should additionally be a small grammatical change. I believe the change should read as follows:
Change: Most nations with embassies in Jerusalem relocated their embassies to Tel Aviv, Ramat Gan or Herzliya following the adoption of Resolution 478. Following the withdrawals of Costa Rica and El Salvador in August 2006, no country maintains its embassy in Jerusalem.
To: Most nations with embassies in Jerusalem relocated their embassies to Tel Aviv, Ramat Gan or Herzliya following the adoption of Resolution 478. Following the withdrawals of Costa Rica and El Salvador in August 2006, no country maintained its embassy in Jerusalem until May 2018. Following a controversial announcement in December 2017, the United States relocated their embassy from Tel Aviv to Jersualem on May 14, 2018.
Potential source to use: https://edition.cnn.com/2018/05/14/politics/jerusalem-us-embassy-trump-intl/index.html
Cheers, bleybovich Bleybovich (talk) 15:58, 14 May 2018 (UTC)
Done L293D (☎ • ✎) 17:30, 14 May 2018 (UTC)
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