ARTICLES

Strict positivism, moral arguments, human rights and the Security Council: South Africa and the Myanmar vote

Dire Tladi

Principal State Law Advisor for International Law, South African Department of Foreign Affairs, Pretoria, South Africa

SUMMARY

Much has been made about the positions adopted by South Africa during its non-permanent tenure on the United Nations Security Council. In particular, much criticism has attached to the position adopted by South Africa with regard to a resolution introduced in the Council relating to human rights violations taking place in Myanmar. South Africa voted against the resolution on the grounds that the situation in Myanmar did not amount to a threat to international peace and security. This position, which relies on the text of article 39 of the UN Charter, has been criticised as representing an unduly restrictive and legalistic (or positivistic) approach. The essence of the critique is that human rights violations per se should be seen as constituting a threat to international peace and security. While undoubtedly the position adopted by South Africa relies on the text of the UN Charter, the question posed by this article is whether this approach is necessarily a positivistic approach. This article does so by reflecting on the limits of the powers of the Security Council. It suggests that understanding the limits of the power of the Security Council and, in particular, the rationale for the limits of the power of the Security Council, is central to determining whether the position is indeed excessively legalistic. Finally, the views contained here are inspired by the need to develop the rule of law as well as the coherence of the international legal system.

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* BLC LLB (Pretoria), LLM (Connecticut), PhD (Erasmus, Rotterdam); tladid@foreign.gov.za. This article was inspired by sometimes heated debates between me and my colleagues, André Stemmet and JoAnn Schneeberger. I also want to express my thanks to Prof John Dugard, whose comments on the paper assisted me significantly. Needless to say, I take full responsibility for the views expressed in the paper. My views do not necessarily reflect the views of the Department of Foreign Affairs or the government of the Republic of South Africa.
1 'The idiocy of SA's foreign policy' Financial Mail 5 October 2007;         [ Links ] P Fabricius 'SA makes u-turn on Myanmar debacle' The Star 5 October 2007;         [ Links ] 'Foreign Affairs irony' Business Day 2 October 2007;         [ Links ] P Fabricius 'UN is the battleground for a new Cold War' The Star 10 August 2007.         [ Links ]
2 See eg J Dugard 'Human rights in South Africa: Past, present and the future', paper presented at the Centre for Human Rights, University of Pretoria, April 2007.         [ Links ]
3 Eg C Jacobson 'Tutu "deeply disappointed" with Myanmar vote', report of 21 January 2007 http://www.iol.co.za/index.php?set_id=14&click_id=68&art_id=iol116937588641B233 (accessed 14 October 2007).         [ Links ]
4 See eg D Tladi & P Dlagnekova 'The will of state, consent and international law: Piercing the veil of positivism' (2006) SA Public Law 111.         [ Links ]
5 The history of Myanmar reflected here is based loosely on various sources, including media reports and the internet. These include 'Myanmar' http://www.infoplease.com/ipa/A0107808.html (accessed 10 October 2007);         [ Links ] 'The Politics of Burma' http://en.wikipedia.org/wiki/Politics_of_Myanmar (accessed 10 October 2007).         [ Links ]
6 The human rights situation is captured in the Congressional Testimony provided by Tom Malinowski on 'Human Rights in Burma' 7 February 2006 http://hrw.org/english/docs/2006/02/10/usint12658_txt.htm (accessed 11 November 2007).
7 G Peck 'Generals aloof from turmoil in their new capital' Pretoria News 4 October 2007 10;         [ Links ] SAPA-AP 'Crackdown on Myanmar Protesters' Pretoria News 4 October 2007 10;         [ Links ] SAPA-AFP and Reuters '"We will send loving kindness to them": Monks plead for peace in face of security forces attack' Pretoria News 27 September 2007 14.         [ Links ]
8 UN Doc S/2007/14.
9 The statement is available at http://www.southafrica-newyork.net (accessed 10 October 2007).
10 'The idiocy of SA's foreign policy' (n 1 above) 12.
11 Eg see Dugard (n 2 above) 6.
12 'Foreign affairs irony' (n 1 above). In his report in The Star, Peter Fabricius, who has been one of the most outspoken Journalists on this issue, notes that the position adopted by South Africa as regards Myanmar, is 'widely condemned as excessively legalistic'; Fabricius 'SA makes u-turn on Myanmar debacle' (n 1 above).
13 Tladi & Dlagnekova (n 4 above).
14 D Tladi 'Reflections on the rule of law in international law: The Security Council, international law and the limits of power' (2006) 31 South African Yearbook of International Law 231 243.         [ Links ]
15 Art 24(1) Charter of the United Nations.
16 The 1969 Vienna Convention on the Law of Treaties provides that treaties (and the Charter is a treaty) are to be interpreted 'in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose'.
17 M Koskenniemi 'The police in the temple. Order, justice and the UN: A dialectical view' (1995) 6 European Journal of International Law 325 327.         [ Links ]
18 TM Franck Fairness in international law and institutions (1995) 218.         [ Links ] See also S Wheatley 'The Security Council, democratic legitimacy and regime change in Iraq' (2006) 17 European Journal of International Law 531 532.         [ Links ]
19 Tladi (n 14 above).
20 For a comprehensive study of the limits of the power of the Council, see E de Wet The Chapter VII powers of the United Nations Security Council (2004).
21 De Wet (n 20 above) 138-144.
22 De Wet (n 20 above) 144.
23 As above.
24 Dugard, in disagreement with this position, makes the following observations: 'And now there is new support for [human rights offenders] in the form of arguments raised by South Africa in the Security Council in respect of human rights violations in Myanmar and Zimbabwe. The Security Council is illegitimate by reason of its composition which means that its powers should be restrictively construed.' J Dugard 'The future of international law: A human rights perspective - With some comments on the Leiden School of International Law' (2007) 20 Leiden Journal of International Law 729 733.
25 J Dugard International law: A South African perspective (2005). While I quote only one source, this fact is truly trite and can be confirmed by any textbook on international law or international human rights.
26 De Wet (n 20 above) 142.
27 As above.
28 These include the Middle East conflict, Iran, Darfur and, before the US invasion, Iraq.
29 For a full discussion, see Dugard (n 25 above) 487. Interestingly, Dugard in his lecture (n 2 above), while comparing the Myanmar situation to apartheid, does not highlight these differences which he clearly highlights in the textbook.
30 UN Security Council Resolution 418 of 1977. Resolution 421 of 1977 was adopted pursuant to Resolution 418 and set up mechanisms of implementation.
31 There are numerous examples, but one can mention Resolution 417 of 1977, Resolution 189 of 1964, Resolution 190 of 1964 and Resolution 282 of 1970.
32 Dugard (n 25 above) 487. See B Simma The Charter of the United Nations: A commentary (1994) 610, who says that 'an abstract distinction between the threat to the peace and the mere endangering of peace does not seem possible'.
33 Simma (n 32 above) 555.
34 The second preambular paragraph of the Resolution, eg, states that the Council recognises 'that the military build-up by South Africa and its persistent acts of aggression against neighbouring states seriously disturbs the security of those states'. See also De Wet (n 20 above) 150 151. With regard to this Resolution, De Wet reminds the readers that South Africa had been involved in armed operations against Zambia and Marxist-backed forces in Angola.
35 Simma (n 32 above) 611 states that it now seems 'accepted that extreme violence within a state can generally be qualified as a threat to the peace'. It is clear from the rest of his analysis that some kind of link with a threat to the international peace must be shown.
36 'UN sees progress in Myanmar' published on 8 November 2007 on http://www.thetimes.co.za/News/Article.aspx?id=608685 (accessed 11 November 2007).
37 Res S-5/1: Situation of human rights in Myanmar. It is worth mentioning that the draft UN Security Council Resolution was no stronger in its condemnation than the adopted Human Rights Council Resolution.
38 Para 1 Res S-5/1.
39 Para 2 Res S-5/1.
40 See contributions in n 1.
41 Dugard (n 25 above) 494 (my emphasis).