Interpretation of UN Resolutions

part 1
The Law and Practice of the United Nations
∵
chapter 1
The Interpretation of Security Council

Resolutions, Revisited
Michael Wood*
Abstract
This article first considers whether there is any general theory of interpretation in
international law. After revisiting the way in which Security Council resolutions are
drafted, it reviews developments in regard to the interpretation of Security Council
resolutions, including controversies, case-law, and writings. Also considered is the rele-
vance to the subject of the Dutch and United Kingdom Iraq inquiries. The conclusions
re-examine, and largely confirm, the approach taken in an article published in 1998.
Keywords
Security Council – Interpretation – Resolutions – Vienna Convention – Kosovo

Opinion – Iraq
...
While the rules on treaty interpretation embodied in Articles 31 to 33 of
the Vienna Convention on the Law of Treaties may provide guidance, dif-
ferences between Security Council resolutions and treaties mean that
the interpretation of Security Council resolutions also require that other
factors be taken into account. Security Council resolutions are issued by
a single, collective body and are drafted through a process that is very dif-
ferent from that used for the conclusion of a treaty.1
∵
* Sir Michael Wood, kcmg, member of the United Nations International Law Commission;
barrister, 20 Essex Street, London.
1 Accordance with International Law of the Unilateral Declaration of Independence in Respect of
Kosovo (Advisory Opinion) [2010] icj Rep 403 at 442, para. 94.
© koninklijke brill nv, leiden, ��7 | doi 10.1163/13894633_02001002

4 Wood
i Introduction
In a celebrated opinion of the uk Privy Council, from the 1930s, their Lordships
were ‘almost tempted to say that a little common sense is a valuable quality in
the interpretation of international law.’2 This is certainly the case with Security
Council resolutions. But, at least when matters come under the scrutiny of a
court, or a detailed public inquiry, common sense cannot be the end of the
story. Something more rigorous is needed if the process is to be convincing.
This article seeks to update a piece on the interpretation of Security Coun-
cil resolutions that appeared in this Yearbook nearly twenty years ago.3 De-
velopments since then include the icj’s Kosovo Advisory Opinion of 22 July
2010, and decisions of other courts and tribunals, such as the 16 February 2011
Interlocutory Decision of the Appeals Chamber of the Special Tribunal for
Lebanon, and various decisions of the European Court of Human Rights, in-
cluding the Al-Dulimi judgment of 21 June 2016. There have also been many
controversies over the interpretation of particular resolutions, including those
over resolution 1441 (2002) and the invasion of Iraq; the scope of resolution
1973 (2011) on Libya; and the effect of resolution 2249 (2015) on the use of force
against Da’esh.
The 1998 article highlighted the need, when interpreting Security Council
resolutions, for an understanding of the role of the Security Council under the
un Charter, as well as its working methods and the way resolutions are drafted.
It also emphasized the need to have particular regard to the background of a
Security Council resolution, both the overall political landscape and related
Council action. The following ‘tentative’ conclusions were suggested:
(a) The aim of interpretation should be […] to give effect to the intention
of the Council as expressed by the words used by the Council in the light
of the surrounding circumstances.
(b) The interpreter will, even if this is not expressly stated, seek to apply
the general principles of interpretation as they have been elaborated in
relation to treaties […].
(c) But caution is required. scrs are not treaties: indeed the differences
are very great. Nor are scrs necessarily all of the same nature. scrs must
be interpreted in the context of the United Nations Charter. It becomes
2 Re Piracy Jure Gentium [1934] ac 586; jcpc [1934] ukpc 54 (26 July 1934) at 6.
3 M. Wood, ‘The Interpretation of Security Council Resolutions’ in J.A. Frowein and R. Wolfrum
(eds), Max Planck Yearbook of United Nations Law vol. 2 (Kluwer Law International 1998) 73.
The Interpretation of Security Council Resolutions, Rev. 5
highly artificial, and indeed to some extent is simply not possible, to seek
to apply all the Vienna Convention rules mutatis mutandis to scrs.
(d) In the case of scrs, given their essentially political nature and the way
they are drafted, the circumstances of the adoption of the resolution and
such preparatory work as exists may often be of greater significance than
in the case of treaties. The Vienna Convention distinction between the
general rule and supplementary means has even less significance than
in the case of treaties. In general, less importance should attach to the
minutiae of language. And there is considerable scope for authentic in-
terpretation by the Council itself.4
The structure of the present article is as follows. Section i asks whether there
is any general theory of interpretation in international law. Section ii revisits
the way in which Security Council resolutions are drafted. Section iii reviews
some developments in regard to the interpretation of Security Council resolu-
tions, including certain controversies, recent case-law, and writings. Section iv
considers the relevance to the subject of the Dutch and United Kingdom Iraq
inquiries. Section v largely confirms the approach in the 1998 article.
Security Council resolutions continue to play an important part in inter-
national affairs. Increasing attention is paid to the many important legal and
political issues raised by the action (and inaction) of the Security Council.5
These include questions of legality and ‘legitimacy’;6 the place of resolutions
among the sources of international law;7 the powers of the Security Council,
in particular its power to take binding decisions, and how to know when it has
4 Wood, ‘The Interpretation of Security Council Resolutions’ 95.

5 See D.M. Malone (ed.), The un Security Council: From Cold War to the 21st Century (Lynne
Rienner Publishers 2004); L. Sievers and S. Daws, The Procedure of the un Security Council
(oup 2014), and the updates at http://www.scprocedure.org (accessed 9 April 2017); S. von
Einsiedel, D.M. Malone and B. Stagno Ugarte (eds), The un Security Council in the 21st Century
(Lynne Rienner Publishers 2016).
6 Legitimacy and legality are sometimes (deliberately) blurred. They should not be. See the
exchange between Sir Lawrence Freedman and Elizabeth Wilmshurst at the uk Iraq Inquiry:
Iraq Inquiry, Transcript Wilmhurst (26 January 2010) 12 (line 5) – 13 (line 13), at http://www
.iraqinquiry.org.uk/media/95214/2010-01-26-Transcript-Wilmshurst-S3.pdf (accessed 9 April
2017). See also A.E. Roberts, ‘Legitimacy vs Legality: Can Uses of Force be Illegal but Justi-
fied?’ in P. Alston and E. MacDonald (eds), Human Rights, Intervention, and the Use of Force
(oup 2008) 179.
7 H. Thirlway, The Sources of International Law (oup 2014) 21–23; A. Pellet, ‘Art. 38’ in A. Zim-
mermann et al., The Statute of the International Court of Justice. A Commentary (oup 2012)
767.
6 Wood
done so;8 the scope of the term ‘threat to the peace’ in Art. 39 of the Charter;
the ‘quasi-judicial’ and ‘legislative’ roles that some believe the Council has as-
serted; possible limits on the powers of the Council; the hierarchy between
Council decisions and other rules of international law, including the effect of
Art. 103 of the Charter and ius cogens; and the question of the possible judicial
review of Council decisions. Many of these issues are related to interpretation,
but have been dealt with elsewhere.9 The present article, like its predecessor, is
confined to the identification of rules for the interpretation of Security Coun-
cil resolutions.
ii Is There a General Approach to Interpretation in

International Law?
Questions of interpretation of Security Council resolutions arise increasingly

frequently, and in important contexts. The legal controversy over the invasion
of Iraq in March 2003 turned essentially on the interpretation of a series of
Security Council resolutions, culminating in resolution 1441 (2002). The inter-
pretation of resolution 1244 (1999) played a central role in the Kosovo Advi-
sory Opinion.10 These are high-profile examples, but nowadays international
lawyers and others, including domestic courts in many jurisdictions, are rou-
tinely called upon to interpret and apply resolutions of the Security Council,
for example when considering the application of the many United Nations,
European Union and national sanctions regimes.
The importance of interpretation for the practising lawyer is clear.11 A great
deal of time is devoted to interpreting treaties, diplomatic correspondence,
8 Sievers and Daws, The Procedure of the un Security Council at 380–393.

9 M. Wood, ‘The un Security Council and International Law’ (2006), available at http://
www.lcil.cam.ac.uk/events/lauterpacht-lectures-2006-united-nations-security-council-
and-international-law-sir-michael-w (accessed 9 April 2017). It is intended to publish an
updated version of these lectures in the Hersch Lauterpacht Memorial Lectures Series
(cup).
10 S. Murphy, ‘Reflections on the icj Opinion on Kosovo: Interpreting Security Council Reso-
lution 1244 (1999)’ in M. Milanović and M. Wood (eds), The Law and Politics of the Kosovo
Advisory Opinion (oup 2015) 134.
11 As Elihu Lauterpacht has put it, ‘interpretation is perhaps the central process in the ap-
plication of international law. As such, it is not limited to the interpretation of treaties
by judicial bodies. It extends, as regards actors, to States in the determination of their
individual positions and to organs of international organizations; it extends, as regards
subject matter, to resolutions adopted in international organizations and unilateral
government statements, and resolutions of international organizations and

conferences. Practitioners may do so consciously, particularly when a provi-
sion or statement is obscure, or when a matter comes before a court or tribu-
nal. More often, especially when things are urgent or seem obvious, they are
hardly conscious of the process of interpretation.
The question is sometimes asked whether there are generally applicable
rules of interpretation in international law, and if so what they are.12 It seems
likely that there are not, beyond the basic injunction that interpretation
must be carried out in good faith. What that implies in any particular case is
not always easy to say. But, at a minimum, the interpreter should approach
the task honestly, and not distort the interpretation to reach a predetermined
result.
Addressing Security Council resolutions, the icj made clear, in the K osovo
Advisory Opinion, that the rules on treaty interpretation embodied in the
Vienna Conventions on the Law of Treaties13 may provide guidance, but
that other factors have to be taken into account.14 The rules in the Vienna
declarations of States. It embraces also the attribution of specific content in particular

situations to such general concepts as equity, fairness, proportionality and so on.’: ‘Fore-
word’ in A. Orakhelashvili, The Interpretation of Acts and Rules in Public International Law
(oup 2008) ix.
12 S. Sur, L’interprétation en droit international public (Librairie générale de droit et de juris-
prudence 1974); R. Kolb, Interprétation et création du droit international (Bruylant 2006);
‘Dossier: Les techniques interprétatives de la norme internationale’ (2011) 115 rgdip 291.
13 The rules set forth in Arts. 31 and 32 of the Vienna Convention on the Law of Treaties
(concluded 23 May 1969, entered into force 27 January 1980) 1155 unts 331 and the Vienna
Convention on the Law of Treaties between States and International Organizations or
between International Organizations (adopted 20 March 1986, not yet entered into force)
(1986) 25 ilm 543 (the Vienna Convention rules) are widely acknowledged to be rules of
customary international law. See R. Gardiner, Treaty Interpretation (oup 2015) at 12–17.
The icj has so held on many occasions, as have other international courts and tribunals.
See also Draft Conclusion 2 [1], para. 1 (with commentary) of the Draft Conclusions on
Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of
Treaties, as adopted on first reading by the International Law Commission, un ilc ‘Re-
port of the International Law Commission: 68th Session’ (2 May–10 June and 4 July–12
August 2016) gaor 71st Session, para. 76.
14 Accordance with International Law of the Unilateral Declaration of Independence in Respect
of Kosovo, Advisory Opinion [2010] icj Rep 403, at 442, para. 94. Cf. M. Wood, ‘Iraq Inquiry,
[First] Statement by Sir Michael Wood’ (15 January 2010) para. 18 (http://www.iraqinquiry.
org.uk/media/43477/wood-statement.pdf (accessed 9 April 2017)): ‘While international
law has developed rules for the interpretation of treaties (codified in the Vienna Con-
vention on the Law of Treaties of 1969), there are no similarly authoritative rules for the
8 Wood
onvention do not apply directly to the interpretation of other non-treaty in-

C
struments, and they cannot all be applied by analogy. Indeed, even in the case
of treaties, special rules of interpretation may apply to different categories of
treaties, such as the constituent instruments of international organizations.
Other instruments where different approaches to interpretation may be
appropriate include declarations accepting the compulsory jurisdiction of
the icj (under the Optional Clause), as the icj explained in the Fisheries Ju-
risdiction case;15 other unilateral acts, a matter dealt with by the ilc in 2006;16
the interpretation of reservations to treaties, considered by the ilc in its
Guide to Practice of 2011;17 the interpretation of judicial, arbitral and other
third-party decisions;18 the interpretation of the internal law of international
organizations, such as rules of procedure, staff regulations and rules, and fi-
nancial regulations; and the interpretation of resolutions adopted by the or-
gans of universal and regional international organizations.19 There are great
interpretation of scrs. Some guidance may be found in the Vienna Convention rules, but
account needs to be taken of the differences between scrs and treaties. Given the way
scrs emerge, and that for the most part they are intended to be political documents, one
should not expect them to be drafted with the same attention to legal detail and consis-
tency as is usual in the case of a treaty or Act of Parliament.’
15 Fisheries Jurisdiction (Spain v. Canada) ( Jurisdiction of the Court) [1998] icj Rep 432, at
452–456, paras. 42–56. ‘The regime relating to the interpretation of declarations made un-
der Article 36 of the Statute is not identical with that established for the interpretation of
treaties by the Vienna Convention on the Law of Treaties […]. The Court observes that the
provisions of that Convention may only apply analogously to the extent compatible with
the sui generis character of the unilateral acceptance of the Court’s jurisdiction’ (ibid. 453,
para. 46).
16 un ilc ‘Guiding Principles Applicable to Unilateral Declarations of States Capable of
Creating Legal Obligations’ Yearbook of the International Law Commission [2006] vol. ii
Part ii, 164, Principle 7 (with commentary).
17 ‘Guide to Practice on Reservations to Treaties’ guideline 4.2.6 (with commentary) in un
ilc ‘Report of the International Law Commission: 63rd Session’ (26 April-3 June and 4
July-12 August 2011) gaor 66th Session, Supp 10, Addendum un Doc. A/66/10, Add.1,
467–472. Guideline 4.2.6 reads: ‘A reservation is to be interpreted in good faith, taking
into account the intention of its author as reflected primarily in the text of the reserva-
tion, as well as the object and purpose of the treaty and the circumstances in which the
reservation was formulated.’
18 K.H. Kaikobad, Interpretation and Revision of International Boundary Decisions (cup
2007) at 175.
19 See H.G. Schermers and N.M. Blokker, International Institutional Law (Nijhoff 2011) paras.
1346–1350A.
variations among this last category. One can hardly compare the way in which
secondary legislation of the European Union is interpreted by the Court of Jus-
tice of the European Union to the approach of the icj to resolutions of the
General Assembly or Security Council.
In its 2011 Advisory Opinion, the Seabed Disputes Chamber of the Interna-
tional Tribunal for the Law of the Sea was called upon to interpret regulations
adopted by the Council of the International Seabed Authority (the ‘Mining
Code’). The Chamber stated that:
The fact that these instruments are binding texts negotiated by States
and adopted through a procedure similar to that used in multilateral con-
ferences permits the Chamber to consider that the interpretation rules
set out in the Vienna Convention may, by analogy, provide guidance as to
their interpretation.20
Thus the Seabed Disputes Chamber, like the icj in the Kosovo Advisory
Opinion, stated that the provisions of the Vienna Convention may ‘provide
guidance.’ It did not suggest that they were applicable as such. However, the
Chamber further noted that:
In the specific case before the Chamber, the analogy is strengthened be-
cause of the close connection between these texts and the Convention.21
The ilc, in its 2006 Guiding Principles Applicable to Unilateral Declarations,

said that
[i]n the case of doubt as to the scope of the obligations resulting from
such a declaration, such obligations must be interpreted in a restrictive
manner. In interpreting the content of such obligations, weight shall be
given first and foremost to the text of the declaration, together with the
context and the circumstances in which it was formulated.22
20 Responsibilities and Obligations of States with Respect to Activities in the Area (Advisory
Opinion) (1 February 2011) (2011) itlos Reports 10, 29, para. 60.
21 Ibid.
22 Principle 7 of the un ilc ‘Guiding Principles Applicable to Unilateral Declarations of
States Capable of Creating Legal Obligations’ Yearbook of the International Law Commis-
sion [2006] vol. ii Part ii 164.
10 Wood
The commentary to this Principle23 cites the case-law of the icj, including Nu-
clear Tests,24 drc v. Rwanda,25 Burkina Faso v. Mali,26 and Fisheries Jurisdiction
(Spain v. Canada).27 This is a very different approach from that set out in Arts.
31 to 33 of the Vienna Convention on the Law of Treaties.
So, as a first conclusion, it would seem unhelpful to seek to place the in-
terpretation of Security Council resolutions within the context of some over-
arching theory of interpretation in international law, though guidance may be
found in interpretation in other contexts, including treaty interpretation.
It may even be that one should not look for a single approach to interpreta-
tion for all Security Council resolutions, given their variety. They range from
the purely political (and indeed ephemeral), such as the condemnation of a
particular terrorist attack, through rather solemn but sometimes vacuous ‘dec-
larations’ on thematic issues (akin to certain General Assembly declarations);
through essentially operational instruments, such as those authorizing the use
of force, dealing with the mandates of peace-keeping operations, or imposing
economic and other measures in particular situations or more generally; to
what look very much like treaties, such as the Statutes of the ad hoc crimi-
nal tribunals. In its Decision of 8 November 2001 in the Milošević case, a Trial
Chamber of the International Criminal Tribunal for the former Yugoslavia in-
deed affirmed that ‘the Statute of the International Tribunal is interpreted as
a treaty.’28 The Statute (like that of the Rwanda Tribunal) is an unusual kind of
text to find incorporated directly or by reference into a Security Council reso-
lution, to which the treaty approach might be appropriate. This may go some
way to explaining the approach of the Special Tribunal for Lebanon referred to
below. So any general approach to the interpretation of Security Council reso-
lutions will have to give way to particular considerations (but then the same is
23 Paragraph (2) of the commentary to Principle 7 of the un ilc ‘Guiding Principles Appli-
cable to Unilateral Declarations of States Capable of Creating Legal Obligations’ Yearbook
of the International Law Commission [2006] vol. ii Part ii 165. See C. Eckart, Promises of
States under International Law (Hart 2012) at 211–228.
24 Nuclear Tests (Australia v. France) [1974] icj Rep 253, 267, para. 44; Nuclear Tests (New
Zealand v. France) [1974] icj Rep 457, 472–473, para. 47.
25 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Repub-
lic of the Congo v. Rwanda) ( Jurisdiction of the Court and Admissibility of the Application)
[2006] icj Rep 6, 26–27, paras. 50 and 52.
26 Frontier Dispute (Burkina Faso/Republic of Mali) [1986] icj Rep 554, 574, para. 39.
27 Fisheries Jurisdiction (Spain v. Canada) (Merits, Judgment of 4 December 1998) [1998] icj
Rep 432, 453, para. 46.
28 Prosecutor v. Slobodan Milošević (Decision on Preliminary Motions) IT-02-54 (8 November
2001) para. 47.
true in respect of the interpretation of treaties in accordance with Arts. 31 to 33

of the Vienna Conventions.)29
iii The Drafting of Security Council Resolutions
It is likewise difficult to generalize about the drafting of Security Council reso-

lutions. While most are drafted by Permanent Missions in New York (with close
involvement of at least some capitals), some are prepared under quite differ-
ent circumstances.30 For example,
the negotiation of scr 1441 was wholly exceptional, with Washington

firmly in the lead and key negotiations taking place directly between
foreign ministers, and often on the telephone. The negotiating process
was quite different from that for other scrs, such as scrs 1154, 1205, the
‘second’ resolution in early 2003, and subsequent resolutions on Iraq ad-
opted in 2003/04.31
In 2010, the Security Council described some measures concerning the prepa-
ration of its resolutions (and Presidential statements) in a Note by the Presi-
dent of the Council (‘Note 507’).32 This stated, inter alia, that ‘all members of
the Security Council should be allowed to participate fully in the preparation
of […] all resolutions, presidential statements and press statements of the
Council’ and ‘reaffirm[ed] that the drafting of all documents such as resolu-
tions and presidential statements as well as press statements should be carried
out in a manner that will allow adequate participation of all members of the
29 See, for example, Art. 5 of the Vienna Convention on the Law of Treaties.
31 M. Wood, ‘Iraq Inquiry: Third Written Statement by Sir Michael Wood’ (15 March 2011)
1, available at http://www.iraqinquiry.org.uk/media/96182/2011-03-15-Statement-Wood-3.
pdf (accessed 9 April 2017). On the negotiation of unsc resolution 1441 (2002) see the
Chilcot Report, Section 3.5 ‘Development of uk Strategy and Options, September to
November 2002 – the Negotiation of Resolution 1441,’ available at http://www.iraqinquiry
.org.uk/media/248176/the-report-of-the-iraq-inquiry_section-35.pdf (accessed 9 April
2017). For one New York insider’s view of the negotiation, see J. Greenstock, Iraq. The Cost
of War (William Heinemann 2016) Chapter 7 (at 121–122, ‘the trickiest textual negotiation
of my time in New York’).
32 unsc ‘Note by the President of the Security Council’ (26 July 2010) un Doc. S/2010/507,
reproduced in The Security Council. Working Methods Handbook (United Nations 2012).
12 Wood
Council.’33 Note 507 goes on to say that the members of the Council ‘intend to
informally consult with the broader United Nations membership […], as well
as with regional organizations and Groups of Friends, when drafting, inter alia,
resolutions, presidential statements and press statements.’34 How far these
measures apply in practice is open to question.
There is no equivalent, within the United Nations, of the legislative drafts-
men to be found in national systems; nor is there any legal-linguistic review
such as happens within the institutions of the European Union. Lawyers from
the United Nations Secretariat are rarely involved in the drafting. Legal input
is left to the members of the Council, in particular those with lawyers on their
delegations, to do the best they can, often under severe time and political pres-
sure. Security Council resolutions may be drafted in a matter of hours, without
going through lengthy scrutiny like most treaties and national legislation. And
on those occasions when they are subject to detailed consideration (and that
can last weeks or even months), this may lead to the ambiguities inherent in
political compromise and consensus, not to clarity.
Given the haste with which resolutions are ultimately adopted (even where
negotiations may stretch over weeks), it can happen that the language versions
do not correspond. If, as is often the case, the text is negotiated primarily in
English, who prepares the other five language versions? Is it the un transla-
tors, or the delegations speaking the language concerned? And does anyone
check the translations? It was suggested in the 1998 article that ‘it would be
even more unrealistic in the case of a scr than in the case of a treaty to ignore
the fact that some versions are mere translations […] of the version or ver-
sions in which the draft was negotiated.’35 Significant discrepancies are not
infrequent. For example, the crucial term ‘material breach’ in resolution 1441
(2002), a term of art taken from Art. 60 of the Vienna Convention on the Law of
Treaties, appears as ‘violation patente’ in the French text, which is not the term
in the French text of the Vienna Convention (‘violation substantielle’).
The drafting of Security Council resolutions is often a highly politicized
process,36 with a desire for consensus being more important than legal
precision. Clarity may not be possible on every occasion, but every effort
33 Ibid., para. 42.

34 Ibid., para. 43.
35 Wood, ‘The Interpretation of Security Council Resolutions’ 88.
36 For personal accounts of the drafting of unsc resolution 1441 (2002), see J. Straw, Last
Man Standing: Memoirs of a Political Survivor (Pan 2012) at 377–381; J. Greenstock, Iraq.
The Cost of War (William Heinemann 2016) at Chapter 7. unsc resolution 1244 (1999) (on
Kosovo) was negotiated largely among eight foreign ministers at a two-day contact group
meeting in Bonn and Cologne.
should be made to avoid ambiguities that may prolong the problem rather
than solve it.
There is rarely any direct evidence of the drafting process on the public re-
cord, though occasionally the records of Security Council meetings may shed
important light on individual drafting points. The memoirs of those involved
can be interesting (though, as with any recollections of negotiators, they may
give a partial view). In his 2008 book, New Disorder, David Hannay, uk Perma-
nent Representative in New York from 1990 to 1995, describes the negotiation
of Security Council resolution 672 (1990). This was adopted unanimously in the
aftermath of the 8 October 1990 shootings at the Haram Al-Sharif in Jerusalem.
In paragraph 2 of the resolution, the Security Council ‘[c]ondemns especially
the acts of violence committed by the Israeli security forces resulting in inju-
ries and loss of human life.’ In the next paragraph, the Council referred to the
Fourth Geneva Convention, ‘which is applicable to all the territories occupied
by Israel since 1967.’ Hannay, who was Council President at the time, recounts
how the Americans insisted that the Council should also condemn Palestinian
use of violence, but eventually settled for the word ‘especially’ in paragraph 2
of the resolution. And he further describes American opposition to referring
expressly to East Jerusalem as part of the occupied Palestinian territories. The
solution here was not to refer to East Jerusalem in the text of the resolution,
but for Hannay, as Council President, to respond, at the meeting of the Council
at which the resolution was adopted, to a question by stating that it was indeed
the Council’s view that East Jerusalem was part of the territories occupied by
Israel in 1967. This example illustrates the importance of understanding the
negotiating dynamics leading to the text of a particular resolution, and of
statements made during Council meetings.
There are no agreed rules or practices for the drafting of Security Council
resolutions. While some general drafting practices are apparent, they are not
adhered to with absolute uniformity, and may change over time, not least be-
cause the individuals involved change. An important example is how, if at all,
the Council states the legal basis for its action. In recent years it has sometimes
reverted to the earlier practice of indicating the article or articles of the Char-
ter under which it is acting. More often there is a general reference to Chapter
vii. And frequently (though not usually when acting under Chapter vii) noth-
ing is said at all.
Whether provisions of a Security Council resolution are legally binding on
Member States is one of the more important questions of interpretation that
arises in practice.37 Until the Kosovo Opinion this was the only question of

14 Wood
interpretation of Security Council resolutions for which the icj had provided
any real guidance.
It should be relatively simple to work out whether a provision in a Security
Council resolution is legally-binding. But that is not always the case, largely
because of political considerations that impact on the negotiating process. It
has been suggested that one has to look for three elements in order to deter-
mine whether a resolution is binding under Chapter vii of the Charter.38 First,
a determination by the Council, under Art. 39 of the Charter, of the existence of
a threat to the peace, breach of the peace, or act of aggression. Second, evidence
that the Council is indeed acting under Chapter vii. And third, evidence that
the Council has taken a decision within the meaning of Art. 25 of the Charter.
Yet, at the end of the day, there are no hard and fast rules. There are only ele-
ments that provide greater or lesser clarity. But clarity is important, especially
when legal obligations are at issue, and when courts may be involved. Building
up a consistent and transparent practice is desirable in principle, even if abso-
lute consistency may well be unrealistic in practice. As a 2008 study by Security
Council Report concluded:
As a matter of policy, the clearer the language adopted, the better the
prospects for effectiveness and credibility of Council decisions.39
iv Developments in Regard to the Interpretation of Security

Council Resolutions
There are no rules in the un Charter on the interpretation of Security Council

resolutions. The rules in the 1969 and 1986 Vienna Conventions on the Law of
Treaties in terms apply only to treaties between States, between States and in-
ternational organizations or between international organizations. The icj was
clear in the Kosovo Opinion that the Vienna Convention rules could not be
applied to Security Council resolutions tout court.40
38 Wood, ‘The un Security Council and International Law’ (2006). I leave aside, as beyond
the scope of this article, the controversial question whether the Security Council may
adopt binding decisions other than under Chapter vii, on which see the Namibia Advi-
sory Opinion and the reactions of States thereto: Sievers and Daws, The Procedure of the
un Security Council at 383–385.
39 Security Council Report ‘Special Research Report: Security Council Action under Chapter
vii: Myths and Realities’ (23 June 2008) 36.
40 See below.
Many of the differences of view that emerge over the interpretation of Se-
curity Council resolutions are resolved behind closed doors, and so are not
easy to study.41 Anecdotal evidence is hardly reliable. The un Legal Office may
occasionally give advice on the subject, but this too is rarely published. States
seldom explain, publicly or in depth, their approach to the interpretation of
Security Council resolutions, though the debate over the meaning of resolu-
tion 1441 (2002), including in the course of the Dutch and uk Inquiries, was
something of an exception. Case-law is potentially a more fruitful field. The
judgments of both domestic and international courts shed useful light on the
matter, but are rarely explicit in the methods employed. Not much is to be
gleaned from writings.
This section begins with a couple of selected differences of view on the in-
terpretation of particular resolutions: resolution 1509 (2003) on Liberia; and
resolution 2249 (2105) on the use of force against Da’esh in Syria.
In resolution 1509 (2003) the Security Council seems to have intended to
authorize the un Mission in Liberia to use force in carrying out its mandate,
but did not include the term ‘all necessary means/measures.’ The un Office of
Legal Affairs advised that it did not follow from the fact that no such express
wording appears in the resolution that the Security Council has not exercised
that power and granted such authorization. Whether it had done so depended
upon the interpretation of the resolution, specifically, on the ordinary and nat-
ural meaning which is to be given to its terms when read in the context of the
resolution as a whole and in the light of its object and purpose, and against the
background of the discussions leading to, and the circumstances of, its adop-
tion, in particular the report that the Secretary-General submitted pursuant to
resolution 1497 (2003).42
Resolution 2249 (2015) was adopted unanimously on 20 November 2015,
and was followed closely by the decisions of the United Kingdom and
41 For a public difference of view, between France and Russia, over the application of the
arms embargo on Libya imposed by paragraph 9 of unsc resolution 1970 (2011) in light of
the ‘all necessary measures’ authorization in paragraph 4 of unsc resolution 1973 (2011),
see P. Weckel, ‘Libye, la question de la légalité de la livraison directe d’armes par la France
à la résistence’ (2011) Bulletin Hebdomadaire Sentinelle No. 273.
42 ‘United Nations Mission in Liberia (unmil) – Authorization by the Security Council
to Use Armed Force in Situations Other than Self-Defence – Interpretation of Security
Council Resolution 1509 (2003) of 19 September 2003 – Ordinary and Natural Meaning
Given to Terms When They Are Read in the Context of a Resolution as a Whole and in
Light of Its Object and Purpose – History and Circumstances of the Adoption of a Resolu-
tion’ (2003) United Nations Juridical Yearbook 538–539.
16 Wood
Germany – and others, including Denmark, Norway and Belgium – to step up

their military activities in relation to Da’esh in Syria.43
The resolution was the subject of much instant comment in legal blogs and
articles (and by politicians), which described it as ambiguous, a hybrid, confus-
ing etc. It has even been suggested that it ‘might also portend a new blurring of
the long-standing bright line between Chapter vii resolutions that authorize
force and those that do not.’44 On the other hand, it has been viewed as a wel-
come development in Security Council practice.45
Resolution 2249 (2015) was a French-driven text adopted seven days after
the atrocities in Paris on the evening of 13 November 2015. It was adopted
unanimously. In it, the Security Council reaffirmed ‘that terrorism in all forms
and manifestations constitutes one of the most serious threats to international
peace and security.’ It determined that Da’esh ‘constitutes a global and unprec-
edented threat to international peace and security.’ It noted letters from the
Iraqi authorities ‘which state that Da’esh has established a safe haven outside
Iraq’s borders that is a direct threat to the security of the Iraqi people and ter-
ritory.’ It unequivocally condemned the terrorist attacks perpetrated by isis in
Sousse, in Ankara, over Sinaï, in Beirut and in Paris, among others, and said it
has the capability and intention to carry out further attacks. In its key provi-
sion, paragraph 5, the Security Council:
Calls upon Member States that have the capacity to do so to take all neces-
sary measures, in compliance with international law, […], on the t erritory
under the control of […] Da’esh, in Syria and Iraq, to redouble and co-
ordinate their efforts to prevent and suppress terrorist acts c ommitted
43 M. Wood, ‘The Use of Force in 2015 with Particular Reference to Syria’ (5 January 2016)
Hebrew University of Jerusalem Legal Studies Research Paper Series No. 16–05, available
at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2714064 (accessed 9 April 2017);
M. Wood, ‘The Use of Force against Da’esh and the Jus ad bellum’ (2017) 1 Asian Yearbook
of Human Rights and Humanitarian Law.
44 A. Deeks, ‘Threading the Needle in Security Council Resolution 2249’ (25 November 2015)
Lawfare, available at https://www.lawfareblog.com/threading-needle-security-council-
resolution-2249 (accessed 9 April 2017); P. Hilpold, ‘The Fight against Terrorism and sc
Resolution 2249 (2015): towards a More Hobbesian or a More Kantian International So-
ciety?’ (2015) 55 Indian Journal of International Law 535; P. Hilpold, ‘The Evolving Right
of Counter-Terrorism: an Analysis of sc Resolution 2249 (2015) in View of Some Basic
Contributions in International Law Literature’ (2016) 24 Questions of International Law
(qil) Zoom-out 15.
45 M. Wood, ‘The Use of Force against Da’esh and the Jus ad bellum’ (2017) 1 Asian Yearbook
of Human Rights and Humanitarian Law.
s pecifically by […] Da’esh as well as [others], and to eradicate the safe

haven they have established over significant parts of Iraq and Syria.
It will be seen that the Security Council did not authorize the use of force with
resolution 2249. It did not purport to do so. Instead, it ‘call[ed] upon’ States to
take ‘all necessary measures’ (which include the use of force) ‘in compliance
with international law’ on the territory under the control of Da’esh in Syria and
Iraq, to prevent and suppress terrorist acts and, most importantly to eradicate
isis’s safe haven.46 This call was reiterated one month later in Security Council
resolution 2254 (2015),47 and yet again a year later in Security Council resolu-
tion 2332 (2016).48
The adoption of resolution 2249 led to some rather transparent ‘straw-man’
arguments. It has been asserted that the resolution was not adopted under
Chapter vii of the Charter, and that consequently it did not authorize the use
of force. But no State suggested that it did. It has been pointed out that al-
though resolution 2249 uses ‘Chapter vii language’ the Council did not state
46 For the French view of unsc resolution 2249 (2015), see F Alabrune, ‘Fondements ju-
ridiques de l’ intervention militaire française contre Daech en Irak et en Syrie’ (2016) 120
Revue générale de droit international public (2016) 41: ‘La résolution n’est cependant pas
placée explicitement sous chapitre vii de la Charte. Par ailleurs, le Conseil ‘demande’
aux Etats de prendre les mesures nécessaires. La résolution ne précise pas que le Conseil
‘autorise’ ces mesures, ni n’en ‘décide,’ selon les formules traditionnellement employées
par le Conseil de sécurité pour autoriser le recours à la force. Il n’en demeure pas moins
que, par la résolution 2249, le Conseil formule, de manière unanime, une demande claire
portant sur le recours à la force contre Daech sur le territoire contrôlé par cette organ-
isation en Irak et en Syrie. Ceci manifeste le soutien du Conseil de sécurité aux actions
entreprises, y compris par la France, sans pour autant écarter leur base juridique antéri-
eurement invoquée’ (note omitted).
47 Paragraph 8 of unsc resolution 2254 (2015) ‘Middle East (Syria)’ (18 December 2015) reit-
erated the call in unsc resolution 2249 (2015) ‘Threats to International Peace and Security
Caused by Terrorist Acts’ (20 November 2015).
48 In the sixth preambular paragraph of unsc resolution 2332 (2016) ‘The Situation in the
Middle East (Syria)’ (21 December 2016), the Security Council, while noting ‘the progress
made during 2016 in taking back areas of Syria from the Islamic State in Iraq and the
Levant (isil, also known as Daesh), and Al-Nusrah Front (anf),’ expressed its grave con-
cern ‘that areas remain under their control and about the negative impact of their pres-
ence, violent extremist ideology and actions on stability in Syria and the region, including
the devastating humanitarian impact on the civilian populations which has led to the
displacement of hundreds of thousands of people’ and called for ‘the full implementation
of Security Council resolutions 2170 (2014), 2178 (2014), 2199 (2015), 2249 (2015) and 2253
(2015).’
18 Wood
that it was ‘acting under Chapter vii.’ Yet to say that resolution 2249 was not
adopted under Chapter vii is probably wrong. There was, for example, a clear
determination of a threat to international peace and security, as required by
Art. 39. But the question whether it was adopted under Chapter vii is a false
issue. ‘Call upon’ (although it is the language in Art. 42 of the Charter) is not
generally intended to indicate a legally binding decision. It has more the sense
of strongly urging. There is no hint in resolution 2249 of an authorization by
the Council. On the contrary, the call is to act in conformity with international
law. All this is no doubt rather clear to Governments, and is presumably what
was intended. It was certainly clear to the uk Government. The uk Perma-
nent Representative’s statement upon the adoption of resolution 2249 under-
lined that the resolution was a powerful international recognition of the threat
Da’esh poses and a call for lawful action and all necessary measures to counter
Da’esh.49
There was a ‘quasi-judicial’ consideration of the interpretation of Secu-
rity Council resolutions in a matter that came before the Human Rights
Committee in 2008. In its views on the Communication Sayadi v. Belgium,
given on 22 O ctober 2008, the Committee considered a challenge on human
rights grounds to Belgium’s domestic implementation of sanctions imposed by
Security Council resolution 1267 (1999). The British member of the Committee,
Sir Nigel Rodley, made some interesting remarks about the interpretation of
Security Council resolutions in the light of human rights. These remarks were
obiter and apparently lex ferenda. Rodley accepted that if there were a con-
flict between a State’s obligations under the International Covenant on Civil
and Political Rights and its obligation to give effect to decisions of the Security
Council under Art. 25 of the Charter, Art. 103 of the Charter would deal with
the conflict in favour of the Security Council decisions.50 But he went on to
suggest four criteria that should be applied for interpreting Security Council
resolutions to determine whether indeed there was a conflict. While not going
so far as to say that the Council ‘cannot act in a way that requires disrespect for
[human rights and fundamental freedoms],’ Rodley did say that the Charter
wording strongly s uggests ‘that the first interpretation criterion is that there
49 unsc ‘Threats to International Peace and Security Caused by Terrorist Acts’ (20 N ovember
2015) un Doc. S/PV.7565, 9.
50 Art. 103 of the un Charter reads: ‘In 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 Charter shall prevail.’
should be a presumption that the Security Council did not intend that actions
taken pursuant to its resolutions should violate human rights.’ A second cri-
terion was that there should be a presumption that, in any event, there was
no intention that a norm of ius cogens should be violated. Third, there should
be a presumption that the Council does not intend to violate rights that are
not derogable under human rights treaties in times of grave emergency. And
fourth, even in the case of derogable rights any departures should be condi-
tioned by the principles of necessity and proportionality.
This was an original attempt to reconcile the need for an effective collective
security system (as recognised, for example, by the European Court of Human
Rights in its Behrami and Saramati decision51) and the importance of uphold-
ing human rights even in times of grave public emergency. But not all of Rod-
ley’s presumptions are entirely convincing. And he gave no indication as to
what it would take to rebut his presumptions. The first criterion, in particular,
‘that there should be a presumption that the Security Council did not intend
that actions taken pursuant to its resolutions should violate human rights’ goes
too far. It ignores the fact that, by definition, the Council is acting in an emer-
gency situation, where there is a threat to the peace, a breach of the peace, or
an act of aggression. And, depending what it takes to rebut it, this first pre-
sumption could deprive Art. 103, a cornerstone of the Charter, of virtually all
practical effect in this context.
51 Behrami and Behrami v. France and Saramati v. France, Germany and Norway (Decision
on Admissibility) (2 July 2007) (ECtHR) App No. 71412/02 and 78166/01, para. 149: ‘Since
operations established by unsc Resolutions under Chapter vii of the un Charter are fun-
damental to the mission of the un to secure international peace and security and since
they rely for their effectiveness on support from member states, the Convention cannot
be interpreted in a manner which would subject the acts and omissions of Contracting
Parties which are covered by unsc Resolutions and occur prior to or in the course of such
missions, to the scrutiny of the Court. To do so would be to interfere with the fulfilment
of the un’s key mission in this field including, as argued by certain parties, with the ef-
fective conduct of its operations. It would also be tantamount to imposing conditions on
the implementation of a unsc Resolution which were not provided for in the text of the
Resolution itself. This reasoning equally applies to voluntary acts of the respondent States
such as the vote of a permanent member of the unsc in favour of the relevant Chapter
vii Resolution and the contribution of troops to the security mission: such acts may not
have amounted to obligations flowing from membership of the un but they remained
crucial to the effective fulfilment by the unsc of its Chapter vii mandate and, conse-
quently, by the un of its imperative peace and security aim.’
20 Wood
In the Kosovo Advisory Opinion,52 it fell to the icj to interpret Security

Council resolution 1244 (1999), which had established the international civil
and security presences in Kosovo following the nato intervention in 1999. The
Court affirmed in the clearest terms its competence to interpret Security Coun-
cil resolutions.53 In addition to shedding light on the addressees of binding Se-
curity Council resolutions, the Court offered guidance on the general question
of their interpretation. A key passage of the Opinion reads:
Before continuing further, the Court must recall several factors relevant in
the interpretation of resolutions of the Security Council. While the rules
on treaty interpretation embodied in Articles 31 and 32 of the Vienna
Convention on the Law of Treaties may provide guidance, differences be-
tween Security Council resolutions and treaties mean that the interpreta-
tion of Security Council resolutions also require[s] that other factors be
taken into account. Security Council resolutions are issued by a single,
collective body and are drafted through a very different process than that
used for the conclusion of a treaty. Security Council resolutions are the
product of a voting process as provided for in Article 27 of the Charter,
and the final text of such resolutions represents the view of the Security
Council as a body. Moreover, Security Council resolutions can be bind-
ing on all Member States (Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970), Advisory Opinion, i.c.j. Reports 1971,
p. 54, para. 116), irrespective of whether they played any part in their for-
mulation. The interpretation of Security Council resolutions may require
the Court to analyse statements by representatives of members of the
Security Council made at the time of their adoption, other resolutions of
the Security Council on the same issue, as well as the subsequent practice
of relevant United Nations organs and of States affected by those given
resolutions.

of Kosovo, Advisory Opinion [2010] icj Rep 403. Much has been written about the Opinion;
see, for example, M. Milanović and M. Wood (eds), The Law and Politics of the Kosovo Ad-
visory Opinion (oup 2015), with bibliography.
of Kosovo, Advisory Opinion [2010] icj Rep 403, at 422, para. 46 (‘While the interpretation
and application of a decision of one of the political organs of the United Nations is, in the
first place, the responsibility of the organ which took that decision, the Court, as the prin-
cipal judicial organ of the United Nations, has also frequently been required to consider
the interpretation and legal effects of such decisions’).
The Court first turned its attention to ‘certain questions concerning the lawful-
ness of declarations of independence under general international law, against
the background of which the question posed falls to be considered, and Se-
curity Council resolution 1244 (1999) is to be understood and applied.’ It pro-
ceeded with the passage just cited, and then went on to examine resolution
1244 (1999) in some detail.54 It first noted that the resolution had to be read in
conjunction with the general principles set out in its annexes 1 and 2 (princi-
ples and elements seeking to defuse the Kosovo crisis, and envisaging a longer-
term solution). It also noted that the tenth preambular paragraph recalled the
sovereignty and political independence of the Federal Republic of Yugoslavia.
It then sought to discern the object and purpose of the resolution, noting its
relevant features and concluding ‘that the object and purpose of resolution
1244 (1999) was to establish a temporary, exceptional legal regime which, save
to the extent that it expressly preserved it, suspended the Serbian legal order
and which aimed at the stabilization of Kosovo, and that it was designed to do
so on an interim basis.’
The Court next turned to the question whether the resolution, or the mea-
sures adopted thereunder, introduced ‘a specific prohibition on issuing a dec-
laration of independence, applicable to those who adopted the declaration of
independence.’ The Court first considered whether the declaration of inde-
pendence was an act of the ‘Assembly of Kosovo,’ one of the Provisional In-
stitutions of Self-Government, or whether those who adopted the declaration
were acting in a different capacity, and concluded that the authors of the dec-
laration ‘did not act as one of the Provisional Institutions of Self-Government
within the Constitutional Framework, but rather as persons who acted to-
gether in their capacity as representatives of the people of Kosovo outside the
framework of the interim administration.’
The Court then considered whether the promulgation of the declaration by
the authors of the declaration was contrary to any prohibition contained in the
resolution or the Constitutional Framework, and after a ‘careful reading’ of the
54 P. Pachetti, ‘L’interprétation des résolutions du Conseil de sécurité à la lumière de l’avis

de la Cour internationale de Justice sur le Kosovo’ in M. Arcari and L. Balmond (eds),
Questions de droit international autour de l’avis consultatif de la Cour internationale de jus-
tice sur le Kosovo (Giuffrè Editore 2011) at 155; S. Murphy, ‘Reflections on the icj Advisory
Opinion on Kosovo: Interpreting Security Council Resolution 1244’ in M. Milanović and
M. Wood (eds), The Law and Politics of the Kosovo Advisory Opinion (oup 2015) at 134; for
a critique of the icj’s approach to the interpretation of unsc resolution 1244 (1999), see
R. Tricot, B. Sander, ‘Recent Developments: The Broader Consequences of the Interna-
tional Court of Justice’s Advisory Opinion on the Unilateral Declaration of Independence
in Respect of Kosovo’ (2011) 49 (2) Columbia Journal of Transnational Law at 321.
22 Wood
resolution, concluded that it was not. It first noted that the resolution ‘was es-
sentially designed to create an interim regime for Kosovo, with a view to chan-
neling the long-term political process to establish its final status,’ and ‘did not
contain any provision dealing with the final status of Kosovo or with the con-
ditions for its achievement.’ In reaching this conclusion the Court compared
resolution 1244 (1999) with ‘contemporaneous practice of the Security Coun-
cil,’ for example, that relating to Cyprus, saying that ‘by contrast […] the Secu-
rity Council did not reserve for itself the final determination of the situation in
Kosovo.’ Second, it concluded that ‘[t]here is no indication, in the text [of the
resolution], that the Security Council intended to impose […] a specific obliga-
tion to act, or a prohibition from acting, addressed to such other actors.’ After
once again considering the Council’s practice, the Court said that, ‘[w]hen in-
terpreting Security Council resolutions, the Court must establish, on a case-
by-case basis, considering all relevant circumstances, for whom the S ecurity
Council intended to create binding obligations.’ It considered relevant, citing
the Namibia Opinion, its approach with regard to the binding effect of Security
Council resolutions in general.
The Interlocutory Decision of the Appeals Chamber of the Special Tribunal
for Lebanon of 16 February 2011 contains an extended section entitled ‘Princi-
ples on the Interpretation of the Provisions of the Statute.’ The Chamber, citing
what it said was the practice of other international criminal tribunals, essen-
tially said it would apply ‘international law on the interpretation of treaties’55
(that is, the rules set forth in the Vienna Convention on the Law of Treaties). In
its view these rules applied ‘whether the Statute is held to be part of an inter-
national agreement between Lebanon and the United Nations or is regarded
instead as part of a binding resolution adopted by the Security Council under
Chapter viii of the un Charter.’ This approach was to some degree mitigated
by the Chamber’s citation and application of the passage from the Kosovo Ad-
visory Opinion set out above,56 which according to the Chamber suggested
a ‘caveat’ to the application of what it referred to as ‘the general principle of
construction enshrined in Article 31 (1) of the Vienna Convention.’57
In its Al-Jedda judgment of 7 July 2011, the European Court of Human Rights
set out its approach to the interpretation of Security Council resolutions as
follows:
55 Special Tribunal for Lebanon, Appeals Chamber, Interlocutory Decision on the Applicable
Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging STL-11-01/1 (16
February 2011), para. 26.
56 Ibid., paras. 27–28
57 Ibid., para. 28.
76. When examining whether the applicant’s detention was attributable

to the United Kingdom or, as the Government submit, the United Na-
tions, it is necessary to examine the particular facts of the case. These in-
clude the terms of the United Nations Security Council resolutions which
formed the framework for the security regime in Iraq during the period in
question. In performing this exercise, the Court is mindful of the fact that
it is not its role to seek to define authoritatively the meaning of provi-
sions of the Charter of the United Nations and other international instru-
ments. It must nevertheless examine whether there was a plausible basis
in such instruments for the matters impugned before it (see Behrami and
Saramati, cited above, § 122). The principles underlying the Convention
cannot be interpreted and applied in a vacuum and the Court must take
into account relevant rules of international law (ibid.). It relies for guid-
ance in this exercise on the statement of the International Court of Justice
in paragraph 114 of its Advisory Opinion Legal Consequences for States of
the Continued Presence of South Africa in Namibia, notwithstanding Secu-
rity Council Resolution 276 (1970) (hereinafter ‘Namibia’) (see paragraph
49 above), indicating that a United Nations Security Council resolution
should be interpreted in the light not only of the language used but also
the context in which it was adopted.58
The Court then proceeded to lay down what has been described as ‘a very, very
strong’59 interpretative presumption:
102. In its approach to the interpretation of Resolution 1546, the Court

has reference to the considerations set out in paragraph 76 above. In ad-
dition, the Court must have regard to the purposes for which the United
Nations was created. As well as the purpose of maintaining international
peace and security, set out in the first subparagraph of Article 1 of the
United Nations Charter, the third subparagraph provides that the Unit-
ed Nations was established to ‘achieve international cooperation in […]
promoting and encouraging respect for human rights and fundamental
freedoms.’ Article 24 (2) of the Charter requires the Security Council, in
discharging its duties with respect to its primary responsibility for the
maintenance of international peace and security, to ‘act in accordance
with the Purposes and Principles of the United Nations.’ Against this
58 Al-Jedda v. the United Kingdom (Judgment) (7 July 2011) (ECtHR) App No. 27021/08,
para. 76.
59 M. Milanovic, ‘Al-Skeini and Al-Jedda in Strasbourg’ (2012) 23 ejil 121.
24 Wood
background, the Court considers that, in interpreting its resolutions,

there must be a presumption that the Security Council does not intend
to impose any obligation on Member States to breach fundamental prin-
ciples of human rights. In the event of any ambiguity in the terms of a
Security Council Resolution, the Court must therefore choose the inter-
pretation which is most in harmony with the requirements of the Con-
vention and which avoids any conflict of obligations. In the light of the
United Nations’ important role in promoting and encouraging respect for
human rights, it is to be expected that clear and explicit language would
be used were the Security Council to intend States to take particular mea-
sures which would conflict with their obligations under international
human rights law.60
The Court followed similar reasoning in the recent Al-Dulimi case, adding that
‘where a Security Council resolution does not contain any clear or explicit
wording excluding or limiting respect for human rights in the context of the
implementation of sanctions against individuals or entities at national level,
the Court must always presume that those measures are compatible with the
Convention.’61 The Court concluded that:
As a result, in view of the seriousness of the consequences for the Con-

vention rights of those persons, where a resolution such as that in the
present case, namely Resolution 1483, does not contain any clear or ex-
plicit wording excluding the possibility of judicial supervision of the
measures taken for its implementation, it must always be understood as
authorising the courts of the respondent State to exercise sufficient scru-
tiny so that any arbitrariness can be avoided.62
In 2014, a Pre-Trial Chamber of the International Criminal Court (icc) was

called upon to decide whether the Democratic Republic of the Congo had
failed to cooperate with the icc by upholding the immunity of and refusing to
arrest and surrender Omar Al Bashir, the Head of State of Sudan. To decide on
the case, the Chamber had to interpret Security Council resolution 1593 (2005),
where the Council decided, inter alia, that the ‘Government of Sudan […] shall
cooperate fully with and provide any necessary assistance to the Court and the
60 Al-Jedda v. the United Kingdom, para. 102.

61 Al-Dulimi and Montana Management Inc. v. Switzerland ( Judgment) (21 July 2016) (ECtHR)
App No. 5809/08, paras. 139–140.
62 Ibid., para. 146.
Prosecutor pursuant to this resolution.’ The Chamber interpreted the resolu-

tion as follows:
Since immunities attached to Omar Al Bashir are a procedural bar from

prosecution before the Court, the cooperation envisaged in said resolu-
tion was meant to eliminate any impediment to the proceedings before
the Court, including the lifting of immunities. Any other interpretation
would render the sc decision requiring that Sudan ‘cooperate fully’ and
‘provide any necessary assistance to the Court’ senseless. Accordingly, the
‘cooperation of that third State [Sudan] for the waiver of the immunity,’
as required under the last sentence of article 98 (1) of the Statute, was al-
ready ensured by the language used in paragraph 2 of sc Resolution 1593
(2005). By virtue of said paragraph, the sc implicitly waived the immuni-
ties granted to Omar Al Bashir under international law and attached to
his position as a Head of State. Consequently, there also exists no impedi-
ment at the horizontal level between the drc and Sudan as regards the
execution of the 2009 and 2010 Requests.63
In defending the position adopted by the Chamber, Boschiero has suggested

that:
It follows that to give a purposive interpretation to Resolution 1593, the

better view is to interpret the intent of the sc as already having lifted any
immunity in respect of Sudan. It is generally undisputed that the sc, in
the exercise of its power under Chapter vii of the un Chapter, has the
power to remove explicitly or implicitly immunity ratione personae if it
deems it necessary for the maintenance of peace and security […].
[T]here is no need for an express removal of Al-Bashir’s immunity in
the text of the Resolution. Since the Court must proceed within its own
Statute, as a whole, including Article 27 (2), an express provision in the
text of Resolution 1593 that Article 27 (2) was to be considered applica-
ble to the Court’s exercise of jurisdiction in respect of Sudan would have
been redundant […].
It seems thus easy to infer from Resolution 1593 that the inherent intent
of the Council, consistent with the object and purpose of the R esolution,
63 The Prosecutor v. Omar Hassan Ahmad Al Bashir (Decision on the Cooperation of the Demo-
cratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court)
ICC-02/05-01/09-195 (9 April 2014), para. 29 (footnotes omitted). See now ICC Trial Cham-
ber II’s decision of 6 July 2017 (including Judge Marc Perrin de Brichambaut’s separate
opinion), which came too late to be taken into account in this article.
26 Wood
was to integrate the exercise of the sc’s power into the pre-established
system of the icc.64
In the 2008 Study referred to earlier, Security Council Report said:
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 circum-
stances at the adoption, but also the possibility that this assessment may
be conclusively determined only from subsequent Council deliberations.
In some cases, then, the possibility of the evolution in the Council’s un-
derstanding of its own decisions is critical.65
Alain Pellet has summed up the position well:
Bien que les règles applicables à l’interprétation des traités ne soient pas
en tous les points transposables à celle des actes unilatéraux, y compris
lorsqu’ils émanent d’organisations internationales, il paraît légitime de
se fonder sur le sens ordinaire à attribuer aux termes d’une résolution
envisagés dans leur contexte – y compris son préambule – pour en déter-
miner le sens, les travaux préparatoires et la pratique subséquente pou-
vant venir renforcer ou compléter cette opération.66
In a book based on his 2008 Sir Hersch Lauterpacht Memorial Lectures, Ralph
Zacklin, former Deputy Legal Counsel to the United Nations, addressing the
interpretation of the safe area provisions of Security Council resolution 836
(1993), referred to ‘employing interpretative techniques borrowed from trea-
ty law’ for the interpretation of Security Council resolutions; and suggested
that ‘the teleological method of interpretation’ can be an invaluable tool for
resolving issues of creative ambiguity.67
64 N. Boschiero, ‘The icc Judicial Finding on Non-cooperation against the drc and No. Im-
munity for Al-Bashir Based on unsc Resolution 1593’ (2015) 13 Journal of International
Criminal Justice 625, at 642–644.
65 Security Council Report ‘Special Research Report: Security Council Action under Chapter
vii: Myths and Realities’ (23 June 2008) 36.
66 A. Pellet, ‘668 (1991): Iraq’ in M. Albaret et al. (eds), Les grandes résolutions du Conseil de
sécurité des Nations unies (Dalloz 2012) 137, at 140.
67 R. Zacklin, The United Nations Secretariat and the Use of Force in a Unipolar World: Power
v. Principle (cup 2010) at 61.
There are many other writings touching on the interpretation of

resolutions.68
v The Dutch and United Kingdom Iraq Inquiries
The use of force against Iraq in 2003 was an occasion where the interpretation
of Security Council resolutions assumed great importance, and was examined
in some detail; it was also a rare occasion when the documents relating to the
drafting of a resolution were made public. Among others, the uk, us and Aus-
tralian Governments,69 as well as the Russian Government,70 published their
official views on the legal position arising from the Security Council resolu-
tions. In the case of the uk, detailed internal legal advice later became pub-
lic. The fullest statement was the British Attorney General’s advice of 7 March
68 Such writings include R Sonnenfeld, Resolutions of the United Nations Security Council
(Nijhoff 1988) at 127–129, which suggests a rather open-textured ‘contextual’ approach;
J.A. Frowein, ‘Unilateral Interpretation of Security Council Resolutions: a Threat to
Collective Security’ in V. Götz et al. (eds), Liber amicorum Günther Jaenicke – zum 85.
Geburtstag (Springer 1998) 97; S. Kadelbach, ‘Interpretation’ in B. Simma et al. (eds),
The Charter of the United Nations. A Commentary (oup 2012) 91, at 96, mn 66; N. Krisch,
‘Introduction to Chapter vii: The General Framework’ in B. Simma et al. (eds), The Charter
of the United Nations. A Commentary (oup 2012) 1237, at 1264–1266; A. Orakhelashvili, The
Interpretation of Acts and Rules in Public International Law; M. Forteau, ‘Organisations
internationales et sources du droit’ in E. Lagrange et al. (eds), Droit des Organisations
Internationales (lgdj 2013) at para. 525. For an analysis of a number of Security Council
resolutions, see M. Albaret et al. (eds), Les grandes résolutions du Conseil de sécurité des
Nations unies (Dalloz 2012).
69 See the uk, us and Australian letters to the President of the Security Council: unsc ‘Let-
ter Dated 20 March 2003 from the Permanent Representative of the United Kingdom of
Great Britain and Northern Ireland to the United Nations Addressed to the President of
the Security Council’ un Doc. S/2003/350; unsc ‘Letter Dated 20 March 2003 from the Per-
manent Representative of the United States of America to the United Nations Addressed
to the President of the Security Council’ un Doc. S/2003/351; and unsc ‘Letter Dated 20
March 2003 from the Permanent Representative of Australia to the United Nations Ad-
dressed to the Secretary-General’ un Doc. S/2003/352. For the Spanish Legal Advisor’s
position, see J.A. Yáñez-Barnuevo, ‘A Chronicle of Frustration and Final Vindication: In-
ternational Legal Advice in Spain and the Iraq War (2002–2003)’, in Spanish Yearbook of
International Law, N° 19, 2015, pp. 297–303.
70 The Legal Department of the Ministry of Foreign Affairs of the Russian Federation, ‘Legal
Assessment of the Use of Force against Iraq’ (2003) 52 (4) International and Comparative
Law Quarterly 1059.
28 Wood
2003,71 though this was revised a week or so later.72 The us Government’s posi-
tion was given in an authoritative article published by the then Legal Adviser
to the State Department.73 The Australian position was also published.74
The legality or otherwise of the invasion of Iraq in 2003 turned on the inter-
pretation of a series of Security Council resolutions, culminating in resolution
1441 (2002), adopted unanimously on 8 November 2002.75
A great deal has been written about the questions of interpretation that
arose.76 But I will focus on the Dutch and United Kingdom Iraq Inquiries.
These two inquiries, and in particular the United Kingdom one, heard much
about the interpretation of Security Council resolutions.
The Report of the Dutch Committee to Investigate Decision-making con-
cerning Iraq (the ‘Davids’ Inquiry)77 was submitted to the Dutch Prime Minister
71 The advice was classified ‘Secret’ but in the end was published in full by the British Gov-
ernment: ‘Attorney General’s Advice on the Iraq War: Iraq: Resolution 1441’ (2005) 54 (3)
International and Comparative Law Quarterly 767; (2006) 77 British Year Book of Interna-
tional Law 819.
72 ‘Attorney General’s Written Answer to a Parliamentary Question’ (17 March 2003) Han-
sard, 646 hl Debs., wa 2; fco Paper ‘Iraq: Legal Basis for the Use of Force’ (2003) 74 British
Yearbook of International Law 792; (2003) 52 International and Comparative Law Quar-
terly 811.
73 W. Taft and T. Buchwald, ‘Preemption, Iraq, and International Law’ (2003) 97 American
Journal of International Law 557 (without the usual disclaimer). See also M. Scharf and
P. Williams, Shaping Foreign Policy in Times of Crisis. The Role of International Law and the
State Department Legal Adviser (cup 2010) at 127–134.
74 The advice in Australia was tabled in the Australian Parliament (House Votes and
Proceedings, 18 March 2003, Iraq): ‘Memorandum of Advice to the Commonwealth
Government on the Use of Force against Iraq, 18 March 2003’ (2003) 4 Melbourne Journal
of International Law 178.
75 One might recall in this connection the words of Sir Robert Jennings who, over 50 years
ago, wrote that ‘[t]he lawfulness or otherwise of the use of force may depend upon such
matters as the interpretation of ambiguous Resolutions of organs of the United Nations.’
R.Y. Jennings, The Acquisition of Territory in International Law (Manchester University
Press 1963) at 56.
76 See for a full and balanced account of the issues, S. Murphy, ‘Assessing the Legality of
Invading Iraq’ (2004) 92 Georgetown Law Journal 173.
77 Report of the Dutch Committee of Inquiry on the War in Iraq (12 January 2010), available
at https://www.rijksoverheid.nl/documenten/rapporten/2010/01/12/rapport-commissie
-davids (accessed 9 April 2017). The report is some 550 pages long. It includes an English
translation of the Introduction and Conclusions. For an English translation of Chapter
8 of the Report (‘The Basis in International Law for the Military Intervention in Iraq’),
with an introduction by the Board of Editors, see (2010) 57 Netherlands International
Law Review 81–137. See also A. Nollkaemper, ‘Na de Commissie Davids: Nederland, Irak
en het Volkenrecht’ (2010) 85 (3) Nederlands Juristenblad 144; T.E. Aalberts, ‘Forging
and Parliament on 12 January 2010, just ten months after the Committee was
established by the Prime Minister. Section 8.6 of the Report examines the in-
terpretation of resolution 1441 (2002).78 It has many interesting things to say,
including on the subject of ambiguity:
It is not unusual in both politics and diplomacy to choose carefully con-

sidered ambiguous formulations in order to satisfy as many directly
involved parties as possible and keep them on board. This and several
other ambiguities in the resolution (such as explicitly recalling resolu-
tion 678 in the preamble) do not, however, delegate to individual states
the authority of the Security Council to make an assessment of any vio-
lation nor to take any subsequent action. An objective interpretation of
the text of resolution 1441 in the context of the Iraq debate in the au-
tumn of 2002 and in the light of its object and purpose can only lead
to the conclusion that this resolution did not give any authority to in-
dividual member states to use force without further deliberation by the
Council.79
The ‘final conclusion’ on the law is as follows:
Although it can be stated that the Security Council dealt quite ambigu-
ously on several points with the question of the use of force against Iraq,
particularly in resolution 1441, the only conclusion possible is that there
was no adequate international law mandate for the unilateral military
force used against Iraq by the us and uk. Despite the lack of a solid legal
basis in international law, the Dutch government repeatedly argued that
‘a second resolution was politically desirable but legally not necessary.’
In the judgement of the Committee, the Cabinet did itself no favours by
basing its policy on an international law standpoint that could hardly be
defended, particularly not after the adoption of resolution 1441 by the
Security Council on 8 November 2002.80
Conclusions 18 to 22 concern legal matters.81 Conclusion 18 reads:
International Order: Inquiring the Dutch Support of the Iraq Invasion’ (2011) 42
Netherlands Yearbook of International Law 139.
78 (2010) 57 Netherlands International Law Review at 103–106.
79 Ibid., 105.
80 Ibid., 136–137 (footnotes omitted).
81 Report of the Dutch Committee of Inquiry on the War in Iraq (12 January 2010) at 530–531
(in English).
30 Wood
The Security Council resolutions on Iraq passed during the 1990s did not
constitute a mandate for the us–British military intervention in 2003.
Despite the existence of certain ambiguities, the wording of Resolution
1441 cannot reasonably be interpreted (as the government did) as au-
thorizing individual Member States to use military force to compel Iraq
to comply with the Security Council resolutions, without authorization
from the Security Council.
The Report of the (uk) Iraq Inquiry (July 2009–July 2016, the ‘Chilcot Report’)
was published on 6 July 2016,82 some seven years after the establishment of
the Inquiry. In addition to the report, the Chairman of the Inquiry, Sir John
Chilcot, made a public statement immediately prior to publication,83 and was
questioned about the report by the Liaison Committee of the House of Com-
mons on 2 November 2016.84 There was a debate in the House of Lords on 12
July 201685 and a two-day debate in the House of Commons on 13 and 14 July
2016.86 There has so far been limited public discussion on the legal aspects
of the Report, which sheds little direct light on the interpretation of Security
Council resolutions.87
82 Report of the Iraq Inquiry (6 July 2016) (hc 689), available at http://www.iraqinquiry.org.
uk/the-report (accessed 9 April 2017). For full documentation see www.iraqinquiry.org.uk.
83 Available at http://www.iraqinquiry.org.uk/the-inquiry/sir-john-chilcots-public-state
ment (accessed 9 April 2017).
84 Sir John Chilcot’s oral evidence to the Liaison Committee: Follow up to the Chilcot Report
(2 November 2016), at http://www.parliament.uk/documents/commons-committees/li-
aison/John-Chilcot-oral-evidence.pdf (accessed 9 April 2017).
85 See https://hansard.parliament.uk/lords/2016-07-12/debates/16071260000386/IraqInquiry
(accessed 9 April 2017).
86 See https://hansard.parliament.uk/commons/2016-07-13/debates/16071333000001/Report
OfTheIraqInquiry and https://hansard.parliament.uk/commons/2016-07-14/debates/
16071433000002/ReportOfTheIraqInquiry (accessed 9 April 2017).
87 For discussion before publication of the Report, see, among others, M. Weller, Iraq and
the Use of Force in International Law (oup 2010); C. Peevers, The Politics of Justifying Force.
The Suez Crisis, the Iraq War, and International Law (oup 2013). For a discussion of both
the Davids and Chilcot Inquiries, see K.M. Matsusama, ‘Between a Rock and a Hard Place:
Providing Legal Advice on Military Action against Iraq’ (2011) 42 Netherlands Yearbook of
International Law 95. For discussion of the Report of the Chilcot Inquiry as published, see
among others E. Wilmshurst, ‘Comment’ (7 July 2016) The Guardian; P. Sands, ‘A Grand
and Disastrous Deceit’ (2016) 38 (5) London Review of Books 9, available at http://www
.lrb.co.uk/v38/n15/philippe-sands/a-grand-and-disastrous-deceit (accessed 9 April 2017);
S. Bouwhuis, ‘What the Inquiry by the United Kingdom into Its Decision to Intervene in
Iraq Tells Us about International Legal Advice and Decision Making in Times of Crisis,’
Unlike the Dutch Report, in the end the uk Report did not expand on the
interpretation of the Security Council resolutions concerned, including resolu-
tion 1441 (2002). It did not reach a conclusion on the lawfulness or otherwise of
the invasion of Iraq in 2003. Instead it focused on the manner in which advice
was given. Nevertheless, there is much in the uk Report that is of interest to
lawyers, and some of the assessments contain pretty clear pointers on legal
issues.
The Inquiry has published a great deal in its Report and on its website. Those
witnesses who dealt with the interpretation of Security Council resolutions in-
cluded the present author and Elizabeth Wilmshurst. In addition, the Inquiry
issued an open invitation to international lawyers to submit their views. Some
30 did, and their views are available on the website.88
The Report includes a number of references, by Foreign Secretary Straw and
Prime Minister Blair, to the ‘Kosovo route.’89 They seem to have had in mind
the absence of Security Council authorization in the case of the attack on Ser-
bia in 1999; given the virtual certainty of a Russian veto, no authorizing resolu-
tion had been put forward. Such references to the ‘Kosovo route’ have no legal
significance. The casting or anticipated casting of an ‘unreasonable veto’ pre-
vents the adoption of a resolution, nothing more, nothing less. The legal jus-
tification given for the Kosovo attack was not Security Council authorization
but an exceptional right to intervene to avert an overwhelming humanitarian
catastrophe. It was not seriously argued that the invasion of Iraq in 2003 was
based on any right of humanitarian intervention. The sole basis given was Se-
curity Council authorization.90 In his public statement of 6 July 2016, Sir John
Chilcot said:
esil Conference Paper No. 7/2016, esil Annual Conference, Riga, 8–10 September 2016,
available at https://ssrn.com/abstract=2911979 (accessed 9 April 2017).
88 The following made ‘International Law Submissions,’ available at http://www.iraqinquiry
.org.uk/other-material/submissions-international-law (accessed 9 April 2017): M. Abdel-
Moneim; D. Akande, M. Milanović and others; N. Al-Dosari; P. Allot; A. Aust; R. Barnidge;
F. Berman; M. Bowman; H. Brollowski; The Campaign to Make Wars History; T. Gazzini;
Grief and others; C. Henderson; M. Janki; justice; Y. Khiar; P. Klein; D. Kritsiotis; P-Y.
Lo; V. Lowe; M. Mendelson; A. Mills and K. Trapp; R. O’Keefe; A. Orakhelashvili; Oxford
Pro Bono Publico; Public Interest Lawyers; N. Rodley; P. Sands; G. Simpson; Solicitors’
International Human Rights Group; Surrey International Law Centre; C. Warbrick;
M. Weller; A. Westhead; N. White; P. Willetts; R. Zacklin.
89 See, for example, Executive Summary, para. 243.
90 The us made a passing reference to self-defence in its Art. 51 letter to the Security Coun-
cil (unsc ‘Letter Dated 20 March 2003 from the Permanent Representative of the Unit-
ed States of America to the United Nations Addressed to the President of the Security
32 Wood
Without evidence of major new Iraqi violations or reports from the in-
spectors that Iraq was failing to co-operate and they could not carry out
their tasks, most members of the Security Council could not be con-
vinced that peaceful options to disarm Iraq had been exhausted and that
military action was therefore justified.
Mr Blair and Mr Straw blamed France for the ‘impasse’ in the un and
claimed that the uk Government was acting on behalf of the interna-
tional community ‘to uphold the authority of the Security Council.’
In the absence of a majority in support of military action, we consider
that the uk was, in fact, undermining the Security Council’s authority.
[T]he Inquiry has not expressed a view on whether military action was
legal. […]
The military and the civil service both asked for more clarity on wheth-
er force would be legal. Lord Goldsmith then advised that the ‘better
view’ was that there was, on balance, a secure legal basis for military ac-
tion without a further Security Council resolution. On 14 March, he asked
Mr Blair to confirm that Iraq had committed further material breaches as
specified in resolution 1441. Mr Blair did so the next day.
However, the precise basis on which Mr Blair made that decision is
not clear.
Given the gravity of the decision, Lord Goldsmith should have been
asked to provide written advice explaining how, in the absence of a ma-
jority in the Security Council, Mr Blair could take that decision.91
Sir John Chilcot’s oral evidence to the Liaison Committee also contains inter-
esting passages. In response to Question 72 (Q72) he said:
We wrestled, if I may say so, quite long and hard with the legal aspects
of Iraq. You will, I am sure, be familiar with the conclusion that we were
forced to come to. Because we were not a judge-led inquiry, let alone an
internationally recognised court of law, we could not give a determinative
conclusion about legality, or the rightness or not of the legal advice from
the Attorney General. What we did do was analyse in depth and in detail
how that advice evolved – that is a polite way of putting it; another word
would be ‘changed’ – and was eventually taken into account, operated
Council’ un Doc. S/2003/351 (21 March 2003)), but this does not seem to have been a
serious point.
91 Available at http://www.iraqinquiry.org.uk/the-inquiry/sir-john-chilcots-public-state
ment (accessed 9 April 2017).
and communicated to Parliament. We thought that all of that was open

to very serious, critical questioning.
When asked (at Q78), whether, in his own view, the invasion of Iraq was legal
under international law, Sir John responded in the following terms:
We crafted a carefully thought through form of words about that. The

process by which the view was reached by the British Government and its
principal legal adviser, the Attorney General, we thought was unsatisfac-
tory and deficient in more than a few respects. That did not enable us to
come to the conclusion that the war was not lawful; but neither did we
say that we endorsed that advice or the way in which it was evolved and
shared with Government. That is as far as I can take it.92
When asked how she saw the position adopted by the Attorney General in his
advice of 7 March 2003, Elizabeth Wilmshurst said that there were two things
that struck her:
First, that he had relied, and he said he had relied, on the views of the
negotiators of the resolution to change the provisional view that he had
previously had, and the issue really is: how do you interpret a resolution
or a treaty in international law and is it sufficient to go to individual ne-
gotiators, but not all negotiators, and ask them for their perceptions of
private conversations, or does an international resolution or treaty have
to be accessible to everyone so that you can take an objective view from
the wording itself and from published records of the preparatory work? I
mean, it must be the second. The means of interpretation has to be acces-
sible to all. But the Attorney had relied on private conversations of what
the uk negotiators or the us had said that the French had said. Of course,
he hadn’t asked the French of their perception of those conversations.
That was one point that I thought actually was unfortunate in the way
that he had reached his decision, and the other point that struck me was
that he did say that the safest route was to ask for a second resolution. We
were talking about the massive invasion of another country, changing the
92 Liaison Committee ‘Oral Evidence: Follow up to the Chilcot Report; Witness: Sir John
Chilcot, Chair, Iraq War Inquiry’ (2 November 2016), available at http://www.parliament
.uk/documents/commons-committees/liaison/John-Chilcot-oral-evidence.pdf (accessed
9 April 2017).
34 Wood
government and the occupation of that country, and, in those circum-

stances, it did seem to me that we ought to follow the safest route.93
vi Conclusion
The 1998 article94 referred to a number of differences between Security Coun-

cil resolutions and treaties. These included the following:
a. Given the way that Security Council resolutions are drafted, less reliance
can be placed upon the preambular language of resolutions as a tool for
the interpretation of the operative part.
b. Security Council resolutions are often not self-contained, but refer to,
and incorporate by reference, other documents (reports of the Secretary-
General, for example).
c. Security Council resolutions are often part of a series, and can only be
understood as such.
d. There are no ‘parties’ to a resolution, only the Council, and the various
references in the Vienna rules to the ‘parties’ to a treaty are not easy to
apply in the context of a Security Council resolution.
e. Given the way they emerge, and that for the most part Security Council
resolutions are intended to be political documents, one should not ex-
pect them to be drafted with the same attention to legal detail and con-
sistency as is usual in the case of a treaty.
f. Under the Vienna Convention rules, there shall be taken into account, to-
gether with the context, any relevant rules of international law applicable
in the relations between the parties. Quite apart from the fact that there
are no parties to Security Council resolutions, the impact of other rules of
international law is likely to be less in light of Art. 103 of the Charter.
g. The Vienna Convention’s distinction between the general rule in Art. 31
and supplementary means of interpretation in Art. 32 is likely to be even
less significant in practice in the case of scrs than in the case of treaties,
given the importance of the historical background for the interpretation
93 Iraq Inquiry, Transcript Wilmshurst (26 January 2010) 17 (line 15) – 18 (line 15), at http://
www.iraqinquiry.org.uk/media/95214/2010-01-26-Transcript-Wilmshurst-S3.pdf (accessed
9 April 2017); M. Wood, ‘The International Law on the Use of Force. What Happens in
Practice?’ (2013) 53 Indian Journal of International Law 345, at 348–349.
94 Wood, ‘The Interpretation of Security Council Resolutions.’
of Security Council resolutions. Any serious effort at interpreting a reso-

lution will need to have regard to all the available travaux préparatoires,
as well as the circumstances of the resolution’s adoption.95
With a very active yet often divided Security Council, questions of interpre-
tation have become more important and more frequent. There is perhaps a
greater awareness of the need to bear in mind, when interpreting Security
Council resolutions, the differences between treaties and resolutions, and in-
deed the differences between various kinds of resolutions. As has been shown
above, there is considerably more authority, especially case-law and writings,
than in 1998. In 1998 there was still no authoritative statement of the appli-
cable rules of interpretation. Now we have important guidance from the icj
in the Kosovo Opinion. Particularly in light of that Opinion, I would now be
prepared to remove the word ‘tentative’ from my 1998 conclusions.
95 ‘[I]t is impossible properly to understand the text of any Security Council resolution with-
out reference to the debates which preceded it’, C. Greenwood, ‘New World Order or Old?
The Invasion of Iraq and the Rule of Law’ (1992) 55 Modern Law Review 153, reproduced
in C. Greenwood, Essays on War in International Law (Cameron May 2006) 517, at 536. In
a footnote, Greenwood says: ‘This is particularly the case with a complex resolution like
242,’ referring to S. Bailey, The Making of Resolution 242 (Nijhoff 1985). At the same time,
caution is needed as little is published; individual reports of informal consultations may
be subjective or even self-serving.

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part 1

The Law and Practice of the United Nations

The Interpretation of Security Council

Security Council – Interpretation – Resolutions – Vienna Convention – Kosovo

© koninklijke brill nv, leiden, ���7 | doi 10.1163/13894633_02001002

4 Wood, ‘The Interpretation of Security Council Resolutions’ 95.

ii Is There a General Approach to Interpretation in

Questions of interpretation of Security Council resolutions arise increasingly

8 Sievers and Daws, The Procedure of the un Security Council at 380–393.

government statements, and resolutions of international organizations and

declarations of States. It embraces also the attribution of specific content in particular

­ onvention do not apply directly to the interpretation of other non-treaty in-

The ilc, in its 2006 Guiding Principles Applicable to Unilateral Declarations,

true in respect of the interpretation of treaties in accordance with Arts. 31 to 33

iii The Drafting of Security Council Resolutions

It is likewise difficult to generalize about the drafting of Security Council reso-

the negotiation of scr 1441 was wholly exceptional, with Washington

33 Ibid., para. 42.

37 Sievers and Daws, The Procedure of the un Security Council at 382–393.

iv Developments in Regard to the Interpretation of Security

There are no rules in the un Charter on the interpretation of Security Council

Germany – and others, including Denmark, Norway and Belgium – to step up

s­ pecifically by […] Da’esh as well as [others], and to eradicate the safe

In the Kosovo Advisory Opinion,52 it fell to the icj to interpret Security

52 Accordance with International Law of the Unilateral Declaration of Independence in Respect

54 P. Pachetti, ‘L’interprétation des résolutions du Conseil de sécurité à la lumière de l’avis

76. When examining whether the applicant’s detention was attributable

102. In its approach to the interpretation of Resolution 1546, the Court

background, the Court considers that, in interpreting its resolutions,

As a result, in view of the seriousness of the consequences for the Con-

In 2014, a Pre-Trial Chamber of the International Criminal Court (icc) was

60 Al-Jedda v. the United Kingdom, para. 102.

Prosecutor pursuant to this resolution.’ The Chamber interpreted the resolu-

Since immunities attached to Omar Al Bashir are a procedural bar from

In defending the position adopted by the Chamber, Boschiero has suggested

It follows that to give a purposive interpretation to Resolution 1593, the

In the 2008 Study referred to earlier, Security Council Report said:

Alain Pellet has summed up the position well:

There are many other writings touching on the interpretation of

v The Dutch and United Kingdom Iraq Inquiries

It is not unusual in both politics and diplomacy to choose carefully con-

The ‘final conclusion’ on the law is as follows:

Conclusions 18 to 22 concern legal matters.81 Conclusion 18 reads:

and communicated to Parliament. We thought that all of that was open

We crafted a carefully thought through form of words about that. The

government and the occupation of that country, and, in those circum-

The 1998 article94 referred to a number of differences between Security Coun-

of Security Council resolutions. Any serious effort at interpreting a reso-

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© koninklijke brill nv, leiden, ��7 | doi 10.1163/13894633_02001002

onvention do not apply directly to the interpretation of other non-treaty in-

s pecifically by […] Da’esh as well as [others], and to eradicate the safe