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Tuesday, 2 August 2016

Is the UN Security Council Resolution number 2303 - on deployment of a UN Police Force to Burundi - of July 29th, 2016 legally binding or Resolution 2303 is subject to the Government of Burundi's discretion ?

Mulamba Jean Paul
Rwandan American lawyer and former National University of Rwanda professor Dr. Charles Kambanda

France sponsored the UNC Resolution 2303. The Draft came to the UNSC under Chapter 6 Article 36 of the UN Charter.The Resolution passed with 11 countries voting in favor of sending 286 police officers to Burundi. Four ( 4) countries abstained; China, Angola, Venezuela and Egypt. Russia voted for Resolution 2303 after the UNSC agreed to include an explicit phrase; "... in cooperation with the government of Burundi". The government of Burundi is categorical; they will not allow more than 50 unarmed UN police officers.

Resolution 2303 has caused a lot of excitement among regime change campaign quarters. The thinking among Burundi regime change campaign quarters is that the UNSC sanctioned Police Force will probably "cooperate" in bringing down President Nkurunziza's government. The EU and the US, the major Burundi regime change campaign supporters, are expected to pick the bill for the UNS proposed police force. With Resolution 2303 on the table, the question is whather or not the government of Burundi is under legal obligation to let in the 286 UNSC police officers. I answer in the negative.

There is a big difference between UN Charter Chapters 6 and 7. Both UN Charter Chapters touch and concern Dispute Resolution. However, while Chapter 7 Resolutions are legally binding, Chapter 6 UNSC Resolutions are advisory and/or voluntary. Chapter 7 resolutions authorize forceful methods such as economic sanctions and humanitarian intervention ( military attacks) while Chapter 6 resolutions are UNSC proposals. Chapter 6 UN Resolutions/proposals are necessarily subject to the concerned government's consent. There is what is famously known as Chapter 6 and half resolutions. Chapter 6 and half UNSC Resolution cannot go beyond authorizing a UN Peacekeeping force, again subject to the concerned country's explicit consent.

The International Court of Justice ( ICJ), in Namibia case, made it clear that the only legally binding UNSC Resolutions are those taken under Chapter 7 of the UN Charter. There is good policy reason for the ICJ's legal reasoning; the UNSC does not replace the Sovereign and, the UN or any organ thereof is not a Sovereign.

France sponsored Resolution 2303 under Chapter 6 Article 36 of the UN Charter. Because Resolution 2303 came to the UNSC under Chapter 6, Resolution 2303, Resolution 2303 explicit language notwithstanding, Burundi government consent to deployment of the 286 UN Police contingent is imperative. The government of Burundi is at liberty to accept the UN force with modification or object the entire UNSC Resolution Police Force deployment proposal.

Mulamba Jean Paul / Author & Editor

Has laoreet percipitur ad. Vide interesset in mei, no his legimus verterem. Et nostrum imperdiet appellantur usu, mnesarchum referrentur id vim.

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