The UN Security Council resolution backing the Trump plan for Gaza is clearly illegitimate, but there are several ways that states and individuals worldwide can challenge its illegality.
In a now infamous moment in television history, former US President Richard Nixon, three years after leaving office in scandal, was asked by interviewer David Frost if the US President could commit illegal acts. Nixon replied: “If the President does it, that means that it is not illegal.”
With those twelve words, Nixon dismissed the core idea of republican government and the very essence of the rule of law. For Nixon (and far too many today), some people and some institutions are simply above the law. And not only are they not bound by the law that binds the rest of us, but we must follow their orders. Afterall, this is the divine right of kings.
Almost a half century later, Nixonian ideology is alive and well.
In the wake of the Security Council adoption of resolution 2803 last month (a resolution that shocked legal analysts and human rights defenders around the globe for its blatantly colonial content, and about which I have written previously) even critics of the resolution have thrown up their hands to declare “oh well, the Security Council adopted it, so now its law.” In other words, to paraphrase Nixon, “if the Security Council does it, that means it is not illegal.”
Nonsense.
While the Security Council (UNSC) is an immensely powerful institution, is subject to few checks and balances, and does not answer to judicial review, it is not above the law and has no power to declare the unlawful to be lawful.
In fact, the UNSC derives all its powers from the UN Charter. It has no other powers. And the UN Charter, as a treaty, is part of international law- it is not above or outside international law. As such, the UNSC must operate within the boundaries of the Charter, and within the boundaries of the broader body of international law. Any actions that it takes outside those boundaries are necessarily unlawful and ultra vires.
Acts of the Council that are unlawful and ultra vires cannot be said to have the force of law. And, therefore, there can be no legal obligation to cooperate or comply with such acts. Indeed, where such acts are manifestly unlawful, there may be a duty to oppose them. (more...)
How the world can resist the UN Security Council’s rogue colonial mandate in Gaza
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