African Human Rights Law Journal
On-line version ISSN 1609-073X
TLADI, Dire. Strict positivism, moral arguments, human rights and the Security Council: South Africa and the Myanmar vote. Afr. hum. rights law j. [online]. 2008, vol.8, n.1, pp. 23-36. ISSN 1609-073X.
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.