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Anothercontentiousaspectof theBonn sanctionmachineryisthat themeasure of boycotting of a delinquent State would not only affect the interests of the speci.c State that was violating the obligations speci.ed in the Declaration, but also of thoseStateswhichappliedoragreedtoapplysuchsanctions andthird party States.
There is strong feeling among some jurists who consider that the imposition of sanctions against offending States fall exclusivelywithin the domain of the Security Councilof the United Nations, and thus, any independent convention or declaration permitting the use of sanctions by party States themselves wouldviolate the United Nations Charter. In support of this argument, Articles 39 and 41 of the Charter of the United Nations have been cited.
Article 39 of the Charter provides:
622ICAO Doc 9050-LC/169-1 at 41.
The Security Council shall determine the existence of any threat to peace, breach of peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42 to maintain or restore international peace and security.
Article 41 provides:
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio and other means of communications and the severance of diplomatic relations.
It is customarily accepted therefore that States cannot take joint sanctions against another State unless such action was authorized by the Security Council of the United Nations.
The above view had also been voiced in the ICAO Legal Committee where delegates of France and U.S.S.R. expressed the opinion that to apply sanctions against States in the form of interruption of full or partial air services was within the exclusive jurisdiction of the Security Council. The French delegate observed:
The sanctions approach had been very thoroughly discussed in the Special Sub-Committee and some rather serious objections to it had been raised. The .rst was whether the machinery for consideration of sanctions was compatible with Article 41 of the United Nations Charter, which empowered the Security Council to decide upon measures in the nature of sanctions, including the complete or partial interruption of air services, and called upon members of the United Nations to apply them.623
Asimilar opinion is voiced by the delegate of SovietUnion who argued that joint action in a form of suspension of .ight, if implemented, would be in contradiction with the competence of the Security Council:
Indeed, according to Article 41 of the United Nations Charter, one of the measures that the Security Council of the United Nations was empowered to apply included the suspension of air communications. The imposition of collective sanctions against States, outside the framework of the United Nations, would be precluded by U.N. Charter.624
Another approach which indicates the incompatibility of the measures adopted by the Bonn Declaration with international law is re.ected in Article 2(3) and Chapter VII of the United Nations Charter. Under Article 2(3), all members of the United Nations pledge themselves to settle their international disputes by peaceful means in such manner that international peace and security, and justice are not endangered. Article 33 then enumerates various procedures for the settlement of such disputes, notably “negotiation, inquiry, mediation, arbitration, judicial settle-ment, resort to regional agencies or arrangements or other peaceful means (chosen by parties to the dispute).”
It has been observed by Brosche that:
623ICAO Doc 9050-LC/169-1 at 10. 624ICAO Doc 9050-LC/169-1 at 41.
F. The Bonn Declaration
even if this list is not considered to be exhaustive, it is quite clear that embargo, boycott, blockade, reprisal or other kinds of economic pressure do not constitute procedures of paci.c settlement. They are not peaceful means and not appropriate for the solution of disputes. The use or imposition of such measures would constitute a violation of the obligation to settle international disputes by peaceful means. Due to these facts, it becomes evident that the use of any kind of [economic] pressure is contrary to the [Charter] principles of peaceful settlement of disputes.625
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