Rule 165
Where the Security Council takes binding preventive or enforcement measures under Chapter VII of the Charter of the United Nations − including the authorization of the use of force by a particular State or group of States − no State may rely upon the law of neutrality to justify conduct which would be incompatible with its obligations under the Charter of the United Nations.
[Commentary]
- This Rule deals with the situation in which the Security Council, acting under Chapter VII (“Action With Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression”) of the UN Charter, has determined that a threat to the peace, breach of the peace or an act of aggression exists under Art. 39,[766] and has taken preventive or enforcement measures. When this occurs, States not Belligerent Parties to the international armed conflict in question are no longer allowed to rely upon the law of neutrality. According to Art. 25 of the UN Charter,[767] decisions of the Security Council, as distinguished from recommendations, are binding on Member States. Moreover, treaties, such as the 1907 Hague Convention V and the 1907 Hague Convention XIII, become inapplicable because Art. 103 of the UN Charter provides that “[i]n 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”.
- It is generally recognized that a binding decision by the UN Security Council on the use of force (including an authorization of the use of force under Chapter VIII) not only serves as a legal basis for the resort to force under the authority of the UN Security Council, but also imposes obligations on States not participating in the enforcement or preventive action. This has been demonstrated by State practice. States not participating in the hostilities may not hamper or impede measures taken in accordance with a binding decision of the UN Security Council. They are not entitled to rely upon the impartiality of Neutrals or to intern members of the armed forces that are acting on the basis of the UN Security Council decision.
- The UN Security Council may decide on either enforcement or on preventive measures. The former are taken with a view to responding to a breach of the peace or an act of aggression. The latter are taken in the face of a threat to peace.
- Needless to say perhaps, Rule 165 applies only when the UN Security Council adopts binding decisions under Chapter VII of the UN Charter. Rule 165 is inapplicable in other situations, where the UN Security Council abstains from doing so, for whatever reason.
- Art. 39 of the UN Charter: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”
- Art. 25 of the UN Charter: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”
Categories: X: Scope of Application
