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Ch.I Purposes and Principles, Article 2 (5)

Helmut Philipp Aust

From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition)

Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor)

Content type:
Book content
Product:
Oxford Scholarly Authorities on International Law [OSAIL]
Series:
Oxford Commentaries on International Law
Published in print:
22 November 2012
ISBN:
9780199639762

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 08 June 2023

Subject(s):
UN Charter — Responsibility of states

(p. 235) Article 2 (5)

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.

…

5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.

…

  1. A.  Introduction 1

  2. B.  Drafting History 2–3

  3. C.  The Obligation to Assist the Organization in ‘Every Action’ 4–17

    1. I.  The Scope of the Provision 4–6

    2. II.  Practice in the Context of Enforcement Action under Chapter VII of the Charter 7–11

    3. III.  Practice in Other Contexts 12–15

    4. IV.  Evaluation of the Practice 16

    5. V.  The Special Issue of Permanent Neutrality 17

  4. D.  The Obligation to Refrain from Giving Assistance 18–24

    1. I.  The Scope of the Provision 18

    2. II.  Practice of the Security Council 19–22

    3. III.  Practice of the General Assembly 23

    4. IV.  Evaluation of the Practice 24

  5. E.  Article 2 (5) and General International Law 25–30

    1. I.  UN Enforcement Action and Non-Belligerency 25–27

    2. II.  Non-Assistance under Article 2 (5) and Complicity in the Law of State Responsibility 28–30

  6. F.  Conclusion: Towards an Obligation of Loyal Cooperation? 31–32

Select Bibliography

  • Aust HP, Complicity and the Law of State Responsibility (CUP 2011).
  • Combacau J, Le pouvoir de sanction de l’O.N.U. (Pedone 1974).
  • de Wet E, The Chapter VII Powers of the United Nations Security Council (Hart 2004).
  • Felder A, Die Beihilfe im Recht der völkerrechtlichen Staatenverantwortlichkeit (Schulthess 2007).
  • Forteau M, Droit de la sécurité collective et droit de la responsabilité internationale (Pedone 2006).
  • Goodrich LM, Hambro E, and Simons AP, Charter of the United Nations—Commentary and Documents (3rd edn, Columbia UP 1969), cited as GHS.
  • Gowlland-Debbas V, Collective Responses to Illegal Acts in International Law (Nijhoff 1990).
  • Kelsen H, The Law of the United Nations—A Critical Analysis of Its Fundamental Problems (Stevens & Sons 1951).
  • Mahiou A, ‘Article 2, paragraphe 5’ in J-P Cot and A Pellet (eds), La Charte des Nations Unies—Commentaire article par article (Economica 2005) 467.
  • Neff SC, War and the Law of Nations (CUP 2005).(p. 236)
  • Verdross A, ‘Austria’s Permanent Neutrality and the United Nations Organization’ (1956) 50 AJIL 61.
  • Zemanek K, ‘Das Problem der Beteiligung des immerwährend neutralen Österreichs an Sanktionen der Vereinten Nationen, besonders im Fall Rhodesien’ (1968) 28 ZaöRV 16.

A.  Introduction

1  Article 2 (5) consists of two sub-principles: its first part contains a positive obligation and stipulates that UN member States shall ‘give the United Nations every assistance in any action it takes in accordance with the present Charter’. The second part of Art. 2 (5) is negative in character and requires of the UN member States to ‘refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action’. These two parts of Art. 2 (5) may be seen as two sides of the same coin.1 Article 2 (5) highlights the bonds of solidarity between the UN and its member States.2 The provision underlines that the success of a system of collective security depends on the active support of its members as well as their willingness to isolate those States—and today also other actors3—which are considered to endanger international peace and security.4

B.  Drafting History

2  Article 2 (5) has no direct predecessor in the Covenant of the League of Nations. The provision reflects a certain change in the way the system of collective security of the UN was supposed to work in comparison to the League. Article 16 (1) of the Covenant provided that, ‘[s]hould any Member of the League resort to war in disregard of its covenants under Arts 12, 13 or 15, it shall ipso facto be deemed to have committed an act of war against all other Members of the League, which hereby undertake immediately to subject it to the severance of all trade or financial relations…’ and a number of additional consequences set forth in this provision.5 For the case of an illegal war under the Covenant, it was thus envisaged to set sanctions in motion automatically without a further centralized decision-making process on the part of the Council of the League.6 In comparison, Art. 2 (5) rests on the assumption that obligations of solidarity for UN member States are only triggered once the Organization has taken action against a State.7

3  Article 2 (5) was not much discussed at Dumbarton Oaks or in San Francisco. At Dumbarton Oaks, proposals existed with language similar to that of Art. 2 (5), although the two parts of it were contained in two distinct paragraphs.8 At San Francisco, the only significant discussion on Art. 2 (5) arose in the context of a French proposal to (p. 237) add a sentence to Art. 2 (5) reading ‘sans qu’un Etat puisse, pour s’y soustraire, invoquer un statut de neutralité’.9 This proposal was meant to underline that a status as a neutral state would not allow a member State to evade its obligations under Art. 2 (5). The proposal was not accepted. However, the sub-committee in which the suggested amendment was discussed ‘tacitly accepted’ that the vote taken on the draft provision covered the French proposal, thus underlining that it considered the status of permanent neutrality to be incompatible with membership in the UN.10 The subsequent practice of the Organization and its member States shows, however, that this was only a consensus on a very general level (see MN 17). Another proposal by Chile to amend Art. 2 (5) would have led to the inclusion of a half-sentence stipulating that ‘whenever disputes affect a Continent or region and do not constitute a danger to the general world peace, the States or other Continents or regions shall not be obligated to participate in operations of a military nature decided upon by the Council and the Assembly’.11 Also this proposal was not accepted.

C.  The Obligation to Assist the Organization in ‘Every Action’

I.  The Scope of the Provision

4  In order to determine the scope of the first half of Art. 2 (5), it needs to be clarified what ‘every action’ means. The prevailing tendency in the literature is to interpret the first half of Art. 2 (5) as covering only enforcement action taken by the UN under Chapter VII of the Charter.12 This view is based on the argument that only the SC is entitled to adopt binding measures. If Art. 2 (5) were to provide for an all-encompassing obligation of UN member States to literally assist ‘every action’ the Organization takes, the carefully circumscribed system of competences of the Charter would be put into jeopardy.13 This view rests on a systematic and contextual analysis of the Charter provisions, which are indeed usually interpreted as transferring the power to adopt binding decisions only to the SC and only insofar as it is acting under Chapter VII of the Charter. It has also convincingly been argued that Art. 2 (5) could not vest more powers in the SC than it possesses under Chapter VII. For instance, Article 2 (5) would not grant the SC the power to order States to make troops available. Such a wide-ranging interpretation of Art. 2 (5) would run against a systematic interpretation of the provisions of Chapter VII of the Charter.14 This restrictive view also connects with the little evidence there is from the drafting history of Art. 2 (5). At San Francisco, the delegate from Norway stressed that the first part of Art. 2 (5) should only be understood to refer to action taken by the SC as this would be the ‘only organ of the Organization having authority to take action’.15 This statement was not challenged by any other delegation. This view was also (p. 238) held by the US Department of State in a report to the US President on the outcome of the San Francisco Conference.16

5  However, this interpretation is not undisputed.17 The ICJ held in its Namibia Advisory Opinion that not only resolutions of the SC under Chapter VII of the Charter are binding upon UN member States. The Court argued that the reference to the specific powers of the SC in Art. 24 (2) would not exclude the possibility of ‘the existence of general powers to discharge the responsibilities conferred in paragraph 1’ of Art. 24.18 More particularly, the Court rejected the argument that Art. 25 would only cover resolutions of the Council adopted under Chapter VII of the Charter.19 This view of the ICJ also found support in the literature. It has been pointed out that if only decisions under Chapter VII of the Charter were binding, decisions of the Council under Chapter VIII (regional enforcement action) would lose much pertinence, as would be the case for decisions on investigations under Art. 34 of the Charter.20

6  Another question is whether ‘action’ taken by other UN organs can also be said to fall within the scope of Art. 2 (5). With respect to the GA, it is indeed the case that most of its powers are confined to the giving of recommendations (see Arts 10, 11 (1), 11 (2), 13, 14). The same holds true for ECOSOC (see Arts 62 (1), 62 (2)). The Secretary-General’s functions as set out in the Charter are quite limited in the first place. A special case is certainly the ICJ, as member States have pledged to comply with the decisions of the Court in cases to which they are a party (Art. 94 (1)). However, decisions of the ICJ can hardly be understood as ‘action’ of the Organization.21 Accordingly, this survey of the competences of UN organs to adopt binding measures indeed appears to speak in favour of the position that only action taken by the SC is covered by Art. 2 (5). Another argument in this regard is that also Art. 2 (2) requires of UN member States to ‘fulfil in good faith the obligations assumed by them in accordance with the present Charter’. Accordingly, when non-binding decisions have been taken, the obligation of good faith requires UN member States not to disregard entirely what the respective UN organ has recommended or called for.22 Eventually, the practice of the UN and its members will be decisive in order to determine the scope of the first part of Art. 2 (5). In this respect, a distinction can be made between practice which is connected with enforcement action under Chapter VII of the Charter (see MN 7–11) and practice which relates to other contexts (see MN 12–15).

(p. 239) II.  Practice in the Context of Enforcement Action under Chapter VII of the Charter

7  In the practice of the SC itself, there are only very few references to Art. 2 (5). In particular, the SC does not refer to this provision when it provides for specific obligations of assistance for UN member States. Rather, these obligations are then integral parts of the resolutions themselves. As such, these obligations benefit from the binding character of resolutions adopted under Chapter VII of the Charter. Their bindingness for UN member States then follows from Arts 25 and 48 of the Charter.23

8  Quite frequently, the SC is calling for or recommending assistance for a given form of action by the UN as well as for action which is in some form endorsed by the Organization. A classic example is the resolution the SC adopted in the context of the Korean crisis in 1950 where it called upon member States ‘to render every assistance to the United Nations in the execution of this resolution’.24 In situations like this, no binding obligation to assist the UN has been established as the SC itself opted against a binding formulation in its resolution.25 The same holds true when the SC ‘urges’ for cooperation of the member States in the achievement of a certain aim.26 The formulation ‘urges’ is particularly often used with respect to cooperation of UN member States with sanctions committees established by the SC.27 At times, the SC includes calls for assistance in its resolutions which raise the question whether the assistance sought would not already be required under Art. 2 (5) itself.28 In the resolution establishing the no-fly zone over Libya in 2011, for example, the SC called ‘upon all Member States, acting nationally or through regional organizations or arrangements, to provide assistance, including any necessary overflight approvals, for the purposes of implementing paragraphs 4, 6, 7 and 8 above; ….29 The argument could be made that already the imposition of a no-fly zone in a binding resolution under Chapter VII requires UN member States under Art. 2 (5), possibly in combination with Art. 25, to permit overflights of other UN member States enforcing such a no-fly zone.30 If all UN member States refused to grant overflight (p. 240) rights, a no-fly zone could not be successfully implemented. The Libyan example shows that some enforcement measures arguably require concrete forms of assistance by UN member States even in the absence of specific decisions of the SC in this regard. In other cases, it will be less clear what exactly is required of States in order to assist the UN in its action. In either case, specific calls for assistance may be seen as a concretization of what the SC expects UN member States to do.31

9  When Art. 2 (5) is invoked directly or indirectly in the course of deliberations before the SC, it is referred to in order to stress that member States in general or a specific State should take steps to enforce a given SC resolution. In a 2007 SC debate on the relationship between the UN and regional organizations, the representative of Uruguay referred to a collective responsibility of UN member States to participate in UN enforcement action; an obligation which he anchored in Art. 2 (5).32 Article 2 (5) was also invoked a number of times with respect to the South African occupation of Namibia and the responsibility of UN member States ‘to take steps to compel South Africa to respect its international obligations with regard to Namibia’.33 Article 2 (5) has also been referred to in order to point out that also the State which is the target of enforcement measures is bound to comply with the resolution ordering the sanctions. With respect to South African support for the racist regime in Southern Rhodesia, Yugoslavia argued before the SC that ‘South Africa has directly, openly and in a wholesale manner violated the sanctions imposed by the Security Council against the illegal racist régime of the white minority in Southern Rhodesia. South Africa is thereby infringing one of the fundamental principles of the Charter embodied in Article 2, paragraph 5.’34

10  The Appeals Chamber of the ICTY relied on Art. 2 (5) in conjunction with Arts 25 and 48 of the Charter in order to stress that enforcement measures under Chapter VII of the Charter are not only binding upon the targeted state, but are also ‘mandatory vis-à-vis the other Member States, who are under an obligation to cooperate with the Organization’.35 In this respect, it can also be noted that the ICJ made a passing reference to obligations of cooperation of UN member States with the international criminal tribunals established by virtue of SC resolutions.36 In its Genocide Convention Case the Court considered whether Serbia and Montenegro was in breach of its obligation ‘to prevent and to punish’ the crime of genocide under Art. I of the Genocide Convention. At issue was the question whether the ICTY was an international tribunal within the meaning of Art. VI of the Convention which would have jurisdiction ‘with respect to those Contracting Parties which shall have accepted its jurisdiction’.37 The ICJ found a breach of Art. I by Serbia and Montenegro for having failed to cooperate with the ICTY on the basis that the Federal Republic of Yugoslavia (FRY) had accepted the creation of the tribunal in the Dayton Agreement. In addition, however, the Court pointed out that (p. 241) ‘the admission of the FRY to the United Nations in 2000 provided a further basis for its obligation to co-operate’,38 a formulation which could be read as an implicit reference to Art. 2 (5) (either alone or in combination with Art. 25). As the Court’s basis of jurisdiction derived solely from the Genocide Convention, it was, however, precluded from going further into the details of this point.39

11  At times, Art. 2 (5) is referred to when States or other international organizations point to their responsibility to implement SC resolutions. With respect to the SC Committee established pursuant to Res 126740 Ecuador reported that it has implemented the requirements following from this resolution and the Committee’s list of targeted individuals, ‘on the legal basis provided by Chapter 1, Article 2, paragraph 5 of the Charter’.41 Concerning the same subject-matter, the EU Commission relied on Art. 2 (5) before the General Court of the European Union (previously known as ‘Court of First Instance’) in order to substantiate that EU Member States were not free to disregard SC resolutions.42

III.  Practice in Other Contexts

12  In its early case-law, the ICJ interpreted Art. 2 (5) more widely. In the Reparation for Injuries Advisory Opinion, the Court stressed ‘the importance of the duty to render to the Organization “every assistance”’ which is accepted by the members in Art. 2 para 5 of the Charter. It must be noted that the effective working of the Organization—the accomplishment of its task, and the independence and effectiveness of the work of its agents—requires that these undertakings should be strictly observed. For that purpose, it is necessary that, when an infringement occurs, the Organization should be able to call upon the responsible State to remedy its default, and, in particular, to obtain from the State reparation for the damage that the default may have caused to its agent.’43

13  In 2000, the High-level Panel on UN Peace Operations relied on Art. 2 (5) in its final report (‘Brahimi Report’) in a rather broad manner. It was argued that member States would be expected to give ‘every assistance’ to fact-finding missions instituted by the SG.44

14  States refer to Art. 2(5) from time to time in order to highlight the institutional responsibility of the UN. In these cases, Art. 2(5) is accordingly not employed in order to stress the responsibility of UN member States, but rather to militate for a certain course of UN action itself. In 1972, for instance, the representative of Liberia argued in the SC that ‘it seems to my Government that it is the reasonable responsibility of the Council in accordance with the provisions of the Charter under Article 2, paragraph 5, to take steps to compel South Africa to respect its international obligations in regard to Namibia’.45

(p. 242) 15  Furthermore, Art. 2 (5) has been referred to twice by groups of UN member States which introduced draft resolutions into the GA for a reform of the SC. In 2005, a group of twenty-seven States introduced a draft resolution which first noted that ‘the effectiveness, credibility and legitimacy of the work of the Security Council will be enhanced by its improved representative character, its better ability to discharge its primary responsibility and to carry out its duties on behalf of all members’ before reasserting in another preambular paragraph ‘the purposes and principles of the Charter, and recalling that, under Article 2(5) of the Charter, every Member State has pledged to “give the United Nations every assistance in any action it takes in accordance with the present Charter”’.46 Half a year later and in the GA’s next session, a draft resolution was introduced by Brazil, Germany, and India which was in this respect identical.47 These references to Art. 2 (5) are obviously decoupled from any specific form of UN action. Instead, they convey an understanding of Art. 2 (5) as a fundamental principle for the general relationship between the Organization and its member States. The two draft resolutions also referred to the ‘special responsibility’ of the permanent members of the SC to uphold the principles of the UN. Accordingly, Art. 2 (5) has been used here to argue for a more general bond of solidarity between the Organization and its members. The mainly political argument is made that permanent members of the SC which would not support a reform of the SC along the lines provided for in the two draft resolutions would act against the best interests of the Organization. While it is doubtful whether this actually follows from Art. 2(5), this example shows that in some contexts States are willing to interpret Art. 2 (5) as a more encompassing provision than it is usually portrayed as being in the literature.

IV.  Evaluation of the Practice

16  The presentation of the practice concerning the first part of Art. 2 (5) supports the narrow interpretation which conceives the obligation to give assistance to apply only for enforcement measures under Chapter VII of the Charter. In this respect, there is more available practice which is also more directly linked to Art. 2 (5). In comparison, the instances in which the first part of Art. 2 (5) has been invoked in situations beyond the scope of Chapter VII of the Charter are relatively few and far between. However, it is conceivable that Art. 2 (5) might develop in the direction of a broader principle to give assistance to the UN also in contexts which are not related to Chapter VII. The wording of Art. 2 (5) is not entirely clear in this regard and can thus at least not stand in the way of a different reading of the provision evolving in the future.

V.  The Special Issue of Permanent Neutrality

17  A particular problem associated with the first part of Art. 2 (5) is the membership of permanently neutral States in the UN. Permanent neutrality is a general status of States in international law and needs to be distinguished from neutrality in individual armed conflicts (on Art. 2 (5) and this latter form of neutrality see MN 25–27). Especially in (p. 243) the early years of the Organization, it was a widely held view that UN membership and a status as a permanently neutral State would be mutually exclusive.48 Today, this appears to be no longer a practical problem for the Organization. With Austria (since 1955) and Switzerland (since 2002), the UN includes two member States which define themselves as permanently neutral. In practice, especially the membership of Austria led to certain nuances in the application of SC resolutions. In order to reconcile its membership with its status as a neutral State, Austria relied on two complementary arguments.49 First, it held the view that military enforcement measures under Chapter VII of the Charter would not constitute wars in the traditional meaning of the concept under international law. As the law of neutrality would only apply in the case of traditional interstate wars, the problem of neutrality would not arise. In addition, Austria maintained that it would decide on a case-by-case basis on whether its status as a permanently neutral State would allow for participation in SC ordered sanctions.50 Since 1992, Austria has no longer relied on this doctrine.51 When Switzerland joined the UN in 2002, it did not see any contradiction between its status as a permanently neutral State and UN membership.52 Apparently, Switzerland would try to reconcile its status as a permanently neutral State with the necessities of military enforcement measures on a case-by-case basis. This became apparent when the President of the Swiss Confederation explained the Swiss legal position with respect to the 2003 Iraq war. While the President pointed out that Switzerland could not grant overflight rights to US military aircraft due to its status as a permanently neutral State, he emphasized that an authorization to use military force by the SC would have changed the situation.53

D.  The Obligation to Refrain from Giving Assistance

I.  The Scope of the Provision

18  The second part of Art. 2 (5) posits that UN member States ‘shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action’. This negative part of Art. 2 (5) is considered to be an ‘important clarification’.54 It is understood as an ‘accessory’ provision, its ‘primary aim being to prevent any hindrance to any action undertaken by the United Nations’.55 Its obligation of (p. 244) non-assistance supplements the principal enforcement action the SC has taken.56 Whereas it is clear that ‘enforcement action’ refers to measures adopted under Chapter VII of the Charter, the meaning of ‘preventive action’ is subject to debate. Hans Kelsen argued that enforcement action may also be of a preventive character. In contrast, the formulation ‘preventive action’ in Art. 2 (5) would not refer to the provisional measures the SC may adopt according to Art. 40 of the Charter. As Art. 40 would expressly stipulate that ‘such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned’, the obligation of non-assistance under Art. 2 (5) could not refer to these measures: ‘The term “preventive action” in Article 2, paragraph 5, can hardly have another meaning than an enforcement action taken for the purpose to prevent a breach of the peace.’57 According to other authors, it is, however, precisely Art. 40 to which the term ‘preventive action’ is referring.58 This discussion does not appear to raise major practical problems. It is fairly uncontroversial that provisional measures under Art. 40 shall leave unaffected the rights of the parties concerned. However, there is nothing inherent in this position to preclude a form of provisional obligation of non-assistance from arising. However, also when the SC judges a situation to warrant the imposition of provisional measures, it is desirable that UN member States form a ‘closed rank’ against the State which has been identified as being responsible for the given situation. Although the measures are provisional, they can still be binding under Chapter VII of the Charter if it transpires from the Resolution that the SC intended the measures to be binding.59 Accordingly, the formulation ‘preventive action’ in Art. 2 (5) should be understood as referring also to situations covered by Art. 40.

II.  Practice of the Security Council

19  In the practice of the SC, obligations of non-assistance are frequently provided for directly in the text of a resolution.60 As is the case with the positive obligations of assistance under the first part of Art. 2 (5), the concrete obligation of non-assistance then derives its binding force from the particular resolutions of the SC. Hence, a recourse to Art. 2 (5) is, strictly speaking, not necessary.61 Such resolutions can be very specific insofar as they specify the different forms of conduct which are considered to be unlawful support for a given State.62 A recurring example from practice is the imposition of an arms embargo on a State. Such embargos can be seen as specific emanations of an obligation not to assist a State targeted by SC enforcement action as the delivery of weapons could potentially aggravate the situation. It has been noted in the literature that to date there have been only two sanctions regimes—one against Sudan63 and one in the context of the Hariri murder64—which did not in some form or another include an arms embargo.65

(p. 245) 20  A different type of resolution provides only in the abstract that ‘Member States shall refrain…from rendering any assistance’ (in this specific case to the illegal regime in Southern Rhodesia).66 It can also be noted that the SC also frequently provides for obligations of non-assistance to non-State actors.67

21  In other cases, the SC is only calling on States to refrain from any action which would endanger or undermine the efforts of the Council in maintaining international peace and security in the context of resolutions adopted under Chapter VII of the Charter.68 In the more recent practice of the SC, such calls are sometimes formulated in a rather indirect and qualified manner. An example in this regard is the formulation used by the SC in Res 1803 in the context of the Iranian nuclear programme, where the SC:

calls upon all States to exercise vigilance in entering into new commitments for public provided financial support for trade with Iran, including the granting of export credits, guarantees or insurance, to their nationals, or entities involved in such trade, in order to avoid such financial support contributing to the proliferation sensitive nuclear activities, or to the development of nuclear weapons delivery systems, as referred to in Res 1737 (2006).69

The goal of this paragraph is clearly in line with the rationale underlying Art. 2 (5): the targeted State shall not be strengthened in its efforts to resist UN enforcement measures. However, with respect to what is required from UN member States it can be observed that, firstly, the SC is only calling upon States and, secondly, that even on the basis of this non-binding requirement it is only ‘vigilance’ that is called for.

22  At times, the SC includes a whole panoply of decisions, recommendations, and calls within a single resolution which may all have a bearing on Art. 2 (5). An example is Res 253 which concerns Southern Rhodesia. The Preamble to this resolution first shows the SC to be ‘gravely concerned’ over trade with the illegal regime in violation of a previous resolution. In its operative part, which was adopted under Chapter VII of the Charter, the SC reaffirms prohibitions of certain dealings with the regime that member States of the UN are required to prohibit (op 3). In the next operative paragraph, the SC lays down binding obligations of non-assistance with respect to certain commercial, industrial, or touristic relations between States and the illegal regime in Southern Rhodesia (op 4). In two additional paragraphs, member States are called upon to implement the resolution (op 8, 11). Finally, the SC:

deplores the attitude of States that have not complied with their obligations under Article 25 of the Charter, and censures in particular those States which have persisted in trading with the illegal régime in defiance of the resolutions of the Security Council, and which have given active assistance to the régime.70(p. 246)

A similar range of different calls for specific forms of non-assistance can be found in more recent resolutions concerning the nuclear weapons programme of the Democratic People’s Republic of North Korea.71

III.  Practice of the General Assembly

23  In the practice of the GA, there are some instances in the context of Southern Rhodesia in which Art. 2 (5) has been referred to directly in order to stress that member States of the UN have to comply with binding decisions of the SC.72 In other situations in which the GA is calling for non-assistance to a given State, Art. 2 (5) is not mentioned directly. These resolutions frequently concern the Middle East Conflict. The GA then calls for non-assistance in the context of the occupation of the Syrian Golan73 and the Palestinian Territories in the West Bank.74 At times, the GA also more generally calls upon States not to hinder UN efforts with respect to peace and reconciliation. In the context of the internal conflict in Afghanistan (prior to the attacks of 11 September 2001), the GA called upon:

all signatories of the Tashkent Declaration on Fundamental Principles for a Peaceful Settlement of the Conflict in Afghanistan and the Afghan parties to implement the principles contained in that Declaration in support of the efforts of the United Nations toward a peaceful resolution of the Afghan conflict, in particular the agreement not to provide military support to any Afghan party and to prevent the use of their territories for such purposes, and recalls their appeal to the international community to take identical measures to prevent the delivery of weapons to Afghanistan.75

IV.  Evaluation of the Practice

24  In the situations just described, language is employed by the GA which is similar to Art. 2 (5). However, the legal principle underlying Art. 2 (5) is not directly concerned. As discussed above, the scope of the first half of Art. 2 (5) is not as clearly limited to UN action under Chapter VII of the Charter as is the case with respect to the second part of Art. 2 (5). Here, the wording of the provision is quite clear insofar as assistance is only forbidden which is given to states which are the subject of preventive or enforcement action. Accordingly, the obligation of non-assistance under Art. 2 (5) is only triggered when the SC has passed a binding decision under Chapter VII of the Charter. When the GA is using language similar to Art. 2 (5) it is thus making a political argument not to assist a given State.76 Also in these cases, the use of such similar language may fulfil a legitimate role. It may remind States that as members of the UN they are under (p. 247) a broader obligation not to contradict or impede UN efforts also in situations which are not covered by Chapter VII of the Charter.77

E.  Article 2 (5) and General International Law

I.  UN Enforcement Action and Non-Belligerency

25  The general relevance of Art. 2 (5) for the UN System in particular and international law in general is frequently underestimated. It is true that the provision is not too frequently invoked in the practice of the organs of the UN. It is also true that its content is frequently elaborated in greater detail in specific resolutions of the SC. However, this element of redundancy should not lead us to disqualify Art. 2 (5) as a principle of minor importance for the UN. Generally, the principles enunciated in Art. 2 are all particularly important for the interpretation of the Charter.

26  A particularly important function of Art. 2 (5) in this regard is that it connects legal effects from the UN legal system with other branches of international law. The rationale behind Art. 2 (5) may explain why States acted in a given way and may, in certain circumstances, help States to establish their legal position in a given situation. An example of this function of Art. 2 (5) may be its impact on the law of neutrality.78 Still today, States may decide to remain neutral in armed conflicts between other States on an ad hoc basis. Although it was, for a long time, held in the literature that military enforcement action under Chapter VII of the Charter would not lead to a status of war in the classic sense,79 this view is very hard to reconcile with the objective conception of ‘armed conflict’ in contemporary international humanitarian law.80 Accordingly, also when States enforce resolutions of the SC by means of military force, an armed conflict between them and the State targeted by the SC enforcement action comes into being.81 When other States decide not to participate directly in this conflict, they fall under the regime of the law of neutrality.82 If they decide to render support to States enforcing the SC resolution, it is questionable whether they can still be considered as neutral States under international humanitarian law.

27  In this context, it has been argued that Art. 2 (5) helps to explain why these supportive states may still claim some benefits of the law of neutrality. This involves, most importantly, the privilege of not becoming a lawful target in the course of the conflict. Article 2 (5) can be read as allowing States to adopt a policy of non-belligerency as it was first developed by the United States in the Second World War prior to their official entry (p. 248) into the war.83 Such policies of non-belligerency are usually viewed with scepticism; they are described as inadmissible ‘half-way houses’ between the status of belligerency and neutrality.84 However, in the presence of a binding decision of the SC under Chapter VII of the Charter, it is admissible for States to discriminate between the side to a conflict which is enforcing the ‘community interest’ and a State which has become the target of enforcement action.85 The admissibility of such a policy of non-belligerency is also a consequence of the direction which SC practice has taken in the context of military enforcement measures. As the SC is habitually only authorizing States to ‘use all necessary means’ for the realization of an objective set forth by an SC resolution,86 UN member States can decide in these situations to what extent they wish to contribute to the collective effort of enforcing international peace and security. In their determination of how they position themselves towards such enforcement measures, the positive as well as the negative sides of Art. 2 (5) constitute a bottom-line of solidarity with the collective efforts which UN member States are not free to disregard.87 In concrete terms, this means that UN member States are not free to support a State which has been identified as the party responsible for a conflict. At the same time, they may discriminate in their behaviour between this responsible State and other States without becoming a belligerent party to the conflict. Rather, they retain the benefit of remaining aloof from the conflict.

II.  Non-Assistance under Article 2 (5) and Complicity in the Law of State Responsibility

28  Another connection between Art. 2 (5) and general international law may be seen in the nowadays generally accepted obligation of States not to render aid or assistance to the commission of internationally wrongful acts by another State. Article 16 of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts (ASR) specifies that:

A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.88(p. 249)

In addition, Art. 41 (2) ASR provides that in the case of a serious breach of a peremptory norm under general international law (ius cogens), ‘no State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation’.89 Article 41 (2) is complementary to Art. 16 ASR insofar as it sets stricter standards for helping States when particularly serious breaches of international law are at stake. It has been noted that Art. 2 (5) may be seen as a simultaneously more specific and older emanation of the principle embodied in Arts 16 and 41 (2) ASR.90 It is true that the UN Charter is not generally concerned with the invocation and implementation of the responsibility of States for wrongful acts.91 Rather, it has a political goal: the maintenance of international peace and security. Still, the rationale of Art. 2 (5) is somewhat similar to an underlying policy objective of Arts 16 and 41 (2): a wrongdoer shall not be strengthened by the support of other States.92 The general law of State responsibility pursues this objective by the imposition of responsibility to third States helping another State to violate international law. The second half of Art. 2 (5) stipulates a similar obligation for a specific field of application—enforcement measures under Chapter VII of the Charter. Despite the primarily political ambit of the UN Charter, it can safely be assumed that almost all situations in which the SC is taking enforcement measures under Chapter VII also involve violations of international law by the targeted State. Although the goal of SC enforcement action is not the invocation of responsibility, the assertion of legality will often be a by-product of SC action. The second part of Art. 2 (5) is thus a special UN-related norm requiring non-assistance for specific forms of internationally wrongful acts.

29  The obligation of non-assistance under UN law differs in scope as well as in terms of the standards which trigger its applicability from the obligations of non-assistance under Arts 16 and 41 (2) ASR. The scope of Art. 16 ASR is broader insofar as it covers all internationally wrongful acts. In comparison, Art. 2 (5) is more limited as it applies only to situations in which the SC has decided on enforcement measures under Chapter VII of the Charter. The standards for the applicability of the two provisions differ with respect to the conditions under which a helping State incurs responsibility. Article 16 ASR is characterized by fairly restrictive conditions. The aiding or assisting State needs to render its support in full knowledge of the circumstances of the internationally wrongful act. What is more, an analysis of international practice conducted in a different study has argued that international law actually requires the intent of helping States to aid or assist another State in the commission of a wrongful act. Article 16 requires a high subjective threshold before a supporting State can be held responsible under this provision.93 In comparison, Art. 2 (5) lacks such a subjective threshold.94 This difference can be explained because of the presence of a centralized decision-making process.95 As the second part of Art. 2 (5) is only applicable when the SC has (p. 250) decided on enforcement measures under Chapter VII, the general uncertainty for States as to whether or not they would violate international law by virtue of aid or assistance to a given State is removed.96 The stricter standard of Art. 2 (5) can also be explained on the basis of a second consideration. Due to its linkage with Chapter VII of the Charter, Art. 2 (5) protects certain collective goods, namely international peace and security. In this respect, Art. 2 (5) is quite close to Art. 41 (2) ASR which also lacks the high subjective threshold for responsibility which is required under Art. 16 ASR. For Art. 41 (2) ASR this follows primarily from the importance of the legal values it protects as it is only applicable when serious breaches of peremptory norms are at stake.97 In addition, the ILC argued in its commentary to the ASR that due to their magnitude such serious breaches could hardly go unnoticed by other States.98 Accordingly, Art. 41 (2) ASR sets stricter standards for complicit States also in the absence of a centralized decision-making process.99 This effect of Art. 41 (2) ASR is somewhat mitigated as the provision only applies ‘after the fact’, insofar as the maintenance of a situation brought about by a serious breach is concerned.100 Arguably, the stricter standards set forth by Art. 41 (2) should, however, generally apply when serious breaches of ius cogens are at stake.

30  In some circumstances, Arts 16 and 41 (2) ASR can be considered as kinds of substitute provisions for Art. 2 (5) when there is a deadlock in the SC. It is not possible to mechanically translate the type of situations in which the SC is taking action into internationally wrongful acts under the law of State responsibility. However, many situations in which the SC could take action under Chapter VII of the Charter but fails to do so for various political reasons involve violations of international law. In these cases, UN member States will find themselves under an obligation under general international law to refrain from supporting the State in question which is responsible for these violations of international law.

F.  Conclusion: Towards an Obligation of Loyal Cooperation?

31  Article 2 (5) sometimes appears to be a rather forgotten provision among the fundamental principles of the UN. Despite the fact that Art. 2 (5) is not among the most cited provisions in the deliberations of UN organs, it is a provision of greater importance than is usually assumed. This is owed not so much to the way it impacts upon concrete parts of the organizational practice of the UN; rather, its importance relates to its potential to contribute to the systemic understanding of the UN system of collective security. As we have shown, Art. 2 (5) may be seen to contribute a linkage between the UN Charter and important issues concerning the law of neutrality. It also connects UN enforcement action with a crucial element of the law of State responsibility. What is more, there is evidence also in the international practice concerning Art. 2 (5) which speaks in favour (p. 251) of seeing it as a principle providing for an obligation of loyal cooperation between the Organization and its members.101

32  Similar principles are well known in other systems of multilevel governance.102 In EU law, for example, the principle of loyal cooperation requires of the EU and its member States to mutually respect the rights and interests of each other.103 This concept, which was originally developed in German constitutional law doctrine,104 could also fruitfully be employed with respect to the UN.105 In fact, the recognition of such a principle for the UN does not go beyond what the ICJ recognized in its Reparation for Injuries Advisory Opinion.106 In comparison to 1949, however, the need for such a principle is more acute today. Especially with respect to the ever-widening scope of activities of the SC, it can be noted that an obligation of loyal cooperation which would also work in favour of the UN member States could have helped to mediate the conflicts over human rights concerns in the context of so-called ‘targeted sanctions’. In combination with the general principle under Art. 2 (2),107 according to which ‘All Members…shall fulfil in good faith the obligations assumed by them in accordance with the present Charter’, Art. 2 (5) could serve as a building block for a principle of loyal cooperation between the UN and its members. In order not to become an all-encompassing yet meaninglessly vague general principle, one could potentially distinguish between an inner core which relates to the functions of the UN in the field of Chapter VII of the Charter and a wider circle in which this principle could help to establish common positions of how the Organization and its member States are to interact.

Footnotes:

1  CPF/Mahiou 467.

2  R Kolb, An Introduction to the Law of the United Nations (Hart 2010) 138.

3  On UNSC resolutions targeting non-State actors see B Fassbender, The United Nations Charter as the Constitution of the International Community (Nijhoff 2009) 148–50.

4  V Gowlland-Debbas, Collective Responses to Illegal Acts in International Law (Nijhoff 1990) 380; M Forteau, Droit de la sécurité collective et droit de la responsabilité internationale (Pedone 2006) 201.

5  The Covenant of the League of Nations (adopted 28 June 1919, entered into force 1 October 1920) 225 Parry 195.

6  See further Kelsen, 725–26; J Fisher Williams, ‘Sanctions under the Covenant’ (1936) 17 BYIL 130, 135.

7  A Verdross, ‘Austria’s Permanent Neutrality and the United Nations Organization’ (1956) 50 AJIL 61, 65.

8  Mahiou (n 1) 467.

9  UNCIO VI, 312, Doc 423, I/1/20 and UNCIO VI, 722, Doc 739, I/1/19(a).

10  UNCIO VI, 722, Doc 739, I/1/19(a).

11  UNCIO VI, 559, G/7 (i).

12  Kelsen, 97; GHS, 56; E de Wet, The Chapter VII Powers of the United Nations Security Council (Hart 2004) 376.

13  Kelsen, 97; Frowein and Krisch on Art. 2 (5) (2nd edn) MN 7.

14  de Wet (n 12) 263; apparently for a strict duty of assistance: O Corten, Le droit contre la guerre (Pedone 2008) 267.

15  UNCIOVI, 346–47, Doc 810, I/1/30.

16  US Department of State, ‘Report to the President on the Results of the San Francisco Conference’ (26 June 1945), reprinted in GHS 56.

17  Mahiou (n 1) 470.

18  Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) [1971] ICJ Rep 16, para 110.

19  ibid, para 113.

20  See further Peters on Art. 25 MN 11–14; this view is also held by some States, see UNSC Verbatim Record (22 June 2006) UN Doc S/PV.5474 (Resumption 1), at 29 (statement of Mexico).

21  See, however, S Rosenne, The Law and Practice of the International Court, 1920–2005, vol 1 (Nijhoff 2006) 207.

22  See further Kolb on Art. 2 (2) MN 27–29; P Neusüß, Legislative Maßnahmen des UN-Sicherheitsrates im Kampf gegen den internationalen Terrorismus (Utz 2008) 190.

23  An example of a mandatory call for assistance to UN enforcement action is UNSC Res 1484 (30 May 2003) UN Doc S/RES/1484, op 7: The SC ‘[d]emands that all Congolese parties and all States in the Great Lakes region respect human rights, cooperate with the Interim Emergency Multinational Force and with MONUC in the stabilization of the situation in Bunia and provide assistance as appropriate…’.

24  UNSC Res 82 (25 June 1950) UN Doc S/RES/82 para III.

25  For further examples from the practice see UNSC Res 146 (9 August 1960) UN Doc S/RES/146, op 2 (on the Congo crisis); UNSC Res 253 (23 May 1968) UN Doc S/RES/253, op 16 (on Southern Rhodesia); UNSC Res 282 (23 July 1970) UN Doc S/RES/282, op 6 (on South Africa); UNSC Res 678 (29 November 1990) UN Doc S/RES/678, op 3 (on Iraq and Kuwait); UNSC Res 794 (3 December 1992) UN Doc S/RES/794, op 11 (on Somalia); UNSC Res 940 (31 July 1994) UN Doc S/RES/940, op 11 (on Haiti); UNSC Res 1132 (8 October 1997) UN Doc S/RES/1132, op 8 (on Sierra Leone); UNSC Res 1267 (15 October 1999) UN Doc S/RES/1267, op 9 (on al-Qaida); UNSC Res 1386 (20 December 2001) UN Doc S/RES/1386, op 2 (on Afghanistan); UNSC Res 1929 (9 June 2010) UN Doc S/RES/1929, op 15 (on non-proliferation with respect to Iran).

26  UNSC Res 1267 (15 October 1999) UN Doc S/RES/1267, op 5 (on Al-Qaida).

27  See eg UNSC Res 1390 (28 January 2002) UN Doc S/RES/1390, op 7; UNSC Res 1989 (17 June 2011) UN Doc S/RES/1989, Preamble; see also the reference to the ‘need of enhanced assistance and cooperation’ between the 1540 Committee and UN member States in UNSC Res 1977 (20 April 2011) UN Doc S/RES/1977, Preamble; see also Forteau (n 4) 205.

28  See also Neusüß (n 22) 191.

29  UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973, op 9.

30  This view is also held by MN Schmitt, ‘Wings over Libya: The No-Fly Zone in Legal Perspective’ (2011) 36 YJIL Online 45, 56.

31  Forteau (n 4) 204.

32  Statement of Uruguay, UNSC Verbatim Record (28 March 2007) UN Doc S/PV.5649 (Resumption 1), para 4.

33  See eg the statement of Liberia, UNSC Verbatim Record (28 September 1971) UN Doc S/PV.1585 para 16.

34  Statement of Yugoslavia, UNSC Verbatim Record (24 October 1974) UN Doc S/PV.1800 para 41.

35  Prosecutor v Tadić (Decision on the Defence Motion on the Interlocutory Appeal on Jurisdiction) IT-94-1-AR72 (2 October 1995) para 31.

36  UNSC Res 827 (25 May 1993) UN Doc S/RES/827 (establishing the ICTY); UNSC Res 955 (8 November 1994) UN Doc S/RES/955 (establishing the ICTR).

37  Convention on the Prevention and Punishment of the Crime of Genocide (adopted 1 January 1948, entered into force 12 January 1951) 78 UNTS 277.

38  Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) [2007] ICJ Rep 43, para 447.

39  ibid, para 449.

40  UNSC Res 1267 (15 October 1999) UN Doc S/RES/1267.

41  UNSC Committee established pursuant to resolution 1267 (1999) ‘Note Verbale’ (25 August 2003) UN Doc S/AC.37/2003/(1455)/67, 2.

42  Case T-85/09 Kadi v European Commission [2010] OJ C 317/29, para 92.

43  Reparation for Injuries suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 183.

44  UNGA ‘Comprehensive Review of the Whole Question of Peacekeeping Operations in all their Aspects’ (21 August 2000) UN Doc A/55/305-S/2000/809 para 32.

45  UNSC Verbatim Records (1 February 1972) UN Doc S/PV.1632 para 28.

46  UNGA ‘Draft Resolution introduced by Afghanistan, Belgium, Bhutan, Brazil, Czech Republic, Denmark, Fiji, France, Georgia, Germany, Greece, Haiti, Honduras, Iceland, India, Japan, Kiribati, Latvia, Maldives, Nauru, Palau, Paraguay, Poland, Portugal, Solomon Islands, Tuvalu und Ukraine’ (6 July 2005) UN Doc A/59/L.64.

47  UNGA ‘Draft Resolution’ (5 January 2006) UN Doc A/60/L.46**.

48  JL Kunz, ‘Austria’s Permanent Neutrality’ (1956) 50 AJIL 418, 423; HJ Taubenfeld, ‘International Actions and Neutrality’ (1953) 47 AJIL 377, 393, 395; for a different view see, however, P Guggenheim, ‘La sécurité collective et le problème de la neutralité’ (1945) 2 SJIR 9, 44–45; Verdross (n 7) 67.

49  K Zemanek, ‘Das Problem der Beteiligung des immerwährend neutralen Österreichs an Sanktionen der Vereinten Nationen, besonders im Fall Rhodesien’ (1968) 28 ZaöRV 16.

50  See further W Hummer, ‘Der internationale Status und die völkerrechtliche Stellung Österreichs seit dem Ersten Weltkrieg’ in H Neuhold, W Hummer, and C Schreuer (eds), Österreichisches Handbuch des Völkerrechts, Band 1—Textteil (4th edn, Manz 2004) 562 MN 3320f.

51  ibid, MN 3321.

52  UNSC ‘Application of the Swiss Confederation for Admission to Membership in the United Nations’, UN Doc S/2002/801 (24 July 2002); see also B Conforti and C Focarelli, The Law and Practice of the United Nations (4th edn, Nijhoff 2010) 40.

53  ‘La neutralité à l’épreuve du conflit en Irak’, étude préparée par le Conseil fédéral en reponse à un postulat de M Reimann, député au Conseil des Etats, et à une motion déposée au Conseil national par le Groupe parlementaire de l’Union démocratique du centre (UDC), reprinted in L Caflisch, ‘La pratique suisse en matière de droit international public 2005’ (2006) 16 SZIER 605, especially at 651f.

54  Frowein and Krisch (n 13) MN 8.

55  Gowlland-Debbas (n 4) 380.

56  J Combacau, Le pouvoir de sanction de l’O.N.U. (Pedone 1974) 190.

57  Kelsen, 93.

58  de Wet (n 12) 376, note 12; Frowein and Krisch (n 13) MN 3.

59  M Ruffert and C Walter, Institutionalisiertes Völkerrecht (CH Beck 2009) para 420; see further Krisch on Art. 40 MN 13–14.

60  See eg UNSC Res 1132 (8 October 1997) UN Doc S/RES/1132, op 6 (on Sierra Leone) and the resolutions referred to below.

61  Forteau (n 4) 201.

62  See eg UNSC Res 283 (29 July 1970) UN Doc S/RES/283 (on Namibia).

63  UNSC Res 1054 (26 April 1996) UN Doc S/RES/1054.

64  UNSC Res 1636 (31 October 2005) UN Doc S/RES/1636.

65  J Matam Farrall, United Nations Sanctions and the Rule of Law (CUP 2007) 110.

66  UNSC Res 277 (18 March 1970) UN Doc S/RES/277, op 2.

67  See UNSC Res 1484 (30 May 2003) UN Doc S/RES/1484, op 7: The SC ‘… demands also the cessation of all support, in particular weapons and any other military materiel, to the armed groups and militias, and further demands that all Congolese parties and all States in the region actively prevent the supply of such support’; UNSC Res 1540 (28 April 2004) UN Doc S/RES/1540, op 1.

68  See eg UNSC Res 54 (15 July 1948) UN Doc S/RES/54, op 4 (on the Palestine Question); UNSC Res 82 (25 June 1950) UN Doc S/RES/82 para III (on the Korean crisis): ‘calls upon all Member States…to refrain from giving assistance to the North Korean authorities’; UNSC Res 232 (16 December 1966) UN Doc S/RES/232, op 5: ‘calls upon all States not to render financial or other economic aid to the illegal racist regime in Southern Rhodesia’; UNSC Res 591 (28 November 1986) UN Doc S/RES/591, op 9 (on South Africa); UNSC Res 713 (25 September 1991) UN Doc S/RES/713, op 7 (on Yugoslavia).

69  UNSC Res 1803 (3 March 2008) UN Doc S/RES/1803, op 9.

70  UNSC Res 253 (29 May 1968) UN Doc S/RES/253, op 12.

71  See UNSC Res 1874 (12 June 2009) UN Doc S/RES/1874, op 7, 10–13, 18–20, 28.

72  See UNGA Res 31/154 B (20 December 1976) UN Doc A/RES/31/154, op 1 and 2; UNGA Res 32/116 B (16 December 1977) UN Doc A/RES/32/116, preamble and op 1 and 2; UNGA Res 33/38 B (13 December 1978) UN Doc A/RES/33/38, preamble and op 1 and 2.

73  See eg UNGA Res 63/99 (5 December 2008) UN Doc A/RES/63/99, op 6.

74  UNGA Res ES-7/4 (28 April 1982) UN Doc A/RES/ES-7/4, para 9b; UNGA Res 38/180 A (19 December 1983) UN Doc A/RES/38/180, paras 9, 13, 14, pt D, para 11, pt E, paras 2, 3; UNGA Res 39/146 A (14 December 1984) UN Doc A/RES/39/146[A], para 11, UNGA Res 39/146 B (14 December 1984) UN Doc A/RES/39/146[B], paras 13–14; UNGA Res 40/168 A (16 December 1985) UN Doc A/RES/40/168[A], para 11, UNGA Res 40/168 (16 December 1985) UN Doc A/RES/40/168[B] paras 9, 13–14; UNGA Res 41/162 A (4 December 1986) UN Doc A/RES/41/162, para 11; pt B, paras 9, 13–14.

75  UNGA Res 55/174 A (23 December 2000) UN Doc A/RES/55/174, op 16.

76  See already GHS, 58.

77  cf K Schmalenbach, ‘International Organizations or Institutions, General Aspects’ MPEPIL (online edn) MN 106.

78  See SC Neff, War and the Law of Nations (CUP 2005) 325; M Gavouneli, ‘Neutrality—A Survivor?’ (2012) 23 EJIL 267, 270.

79  Zemanek (n 49) 21.

80  C Greenwood, ‘Scope of Application of Humanitarian Law’ in D Fleck (ed), The Handbok of International Humanitarian Law (2nd edn, OUP 2008) 45f.

81  Y Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2nd edn, CUP 2010) 29.

82  W Heintschel von Heinegg, ‘Wider die Mär vom Tode des Neutralitätsrechts’ in H Fischer and others (eds), Krisensicherung und Humanitärer Schutz—Crisis Management and Humanitarian Protection. Festschrift für Dieter Fleck (BWV 2004) 221, 232.

83  RH Jackson, ‘Address to the Inter-American Bar Association, Havana, Cuba, 27 March 1941’ (1941) 35 AJIL 348, 357–58; for the background paper inspiring this doctrine see H Lauterpacht, ‘Memorandum on the Principles of International Law Governing the Question of Aid to the Allies by the United States, 15 January 1941’ in E Lauterpacht (ed), International Law Being the Collected Papers of Hersch Lauterpacht, vol 5 (CUP 2004) 645.

84  See Y Dinstein, War, Aggression and Self-Defence (5th edn, CUP 2011) 180; for early critique see EM Borchard, ‘War, Neutrality and Non-Belligerency’ (1941) 35 AJIL 618; HW Briggs, ‘Neglected Aspects of the Destroyer Deal’ (1940) 34 AJIL 569 as well as, for a contemporary view, N Ronzitti, ‘Italy’s Non-Belligerency During the Iraq War’ in M Ragazzi (ed), International Responsibility Today—Essays in Memory of Oscar Schachter (Nijhoff 2005) 197.

85  A Gioa, ‘Neutrality and Non-Belligerency’ in HHG Post (ed), International Economic Law and Armed Conflict (Nijhoff 1994) 51, 75; Dinstein (n 84) 177; P Daillier, M Forteau, and A Pellet, Droit international public (8th edn, LGDJ 2009) para 584.

86  See Krisch on Art. 42 MN 5–7.

87  See also MN Schmitt, ‘Iraq-Kuwait War (1990–91)’ in MPEPIL (online edn) MN 38.

88  Art. 16 of the Articles on the Responsibility of States for Internationally Wrongful Acts, annexed to UNGA Res 56/83 (12 December 2001) UN Doc A/RES/56/83; identified by the ICJ as an expression of customary international law in the Genocide Convention Case (n 38) para 419; see on this provision HP Aust, Complicity and the Law of State Responsibility (CUP 2011); V Lowe, ‘Responsibility for the Conduct of Other States’ (2002) 101 Kokusaiho Gaiko Zassi (The Journal of International Law and Diplomacy) 1.

89  ibid.

90  ILC Commentary to Art. 16 MN 2, reprinted in James Crawford (ed), The International Law Commission’s Articles on State Responsibility—Introduction, Text and Commentaries (CUP 2002); A Felder, Die Beihilfe im Recht der völkerrechtlichen Staatenverantwortlichkeit (Schulthess 2007) 158–61.

91  G Nolte, ‘The Limits of the Security Council’s Powers and its Functions in the International Legal System’ in M Byers (ed), The Role of Law in International Politics (OUP 2000) 315, 322–23; for a different view see V Gowlland-Debbas, ‘Security Council Enforcement Action and Issues of State Responsibility’ (1994) 43 ICLQ 55.

92  See also J Quigley, ‘Complicity in International Law: A New Direction in the Law of State Responsibility’ (1986) 57 BYIL 77, 88.

93  Aust (n 88) 249; see also G Nolte and HP Aust, ‘Equivocal Helpers—Complicit States, Mixed Messages and International Law’ (2009) 58 ICLQ 1, 13–15.

94  cf Combacau (n 56) 191.

95  B Graefrath, ‘Complicity in the Law of International Responsibility’ (1996) 29 RBDI 370, 376.

96  See further Aust (n 88) 32–34.

97  Aust (n 88) 341.

98  ILC Commentary (n 90) Art. 41, para 11.

99  Nolte and Aust (n 93) 16; S Szurek, ‘Responsabilité de protéger, nature de l’obligation et responsabilité internationale’ in Société française pour le droit international (ed), La responsabilité de protéger (Pedone 2008) 91, 113.