Antonios Tzanakopoulos is Lecturer in International Law at UCL Laws and the University of Glasgow.

On Monday, the International Court of Justice delivered its judgment in the curious case between ‘the former Yugoslav Republic of Macedonia’ (hereinafter: ‘fYR Macedonia’) and the ‘Hellenic Republic’ (hereinafter: ‘Greece’). In this case, fYR Macedonia (appearing before the ICJ for the first time) complained that Greece, in objecting to fYR Macedonia being invited to join NATO in 2008, had violated its obligation under the Interim Accord of 13 September 1995 ‘not to object’ to fYR Macedonia joining any international organizations, as long as it applied under its ‘provisional designation’ provided for in Security Council Resolution 817 (1993). The judgment brings up many interesting questions. Apart from matters of jurisdiction and admissibility, perhaps the most interesting issues in the Court’s judgment are (i) its approach to treaty conflicts; (ii) the relationship between the grounds for termination of treaties under the law of treaties and defences available under the law of state responsibility; and (iii) its elucidation of the obligation to negotiate in good faith. Some of these points are taken up after a brief introduction to the dispute.

I. Background to the Dispute

The background to the case before the ICJ is a much older, long-running dispute between the two States as to fYR Macedonia’s name. It is a dispute in which national(istic) sentiment runs high on both sides, and this has caused it to be blown out of all proportion and to have lingered for way too long. ‘Macedonia’ is the name of a historical and geographical region that extends mainly between Greece, Bulgaria, and fYR Macedonia (the precise percentages, if there can be such a thing, depend on who you ask—historical Macedonia was never precisely delimited, as one would no doubt expect). It is also the name of an administrative region in northern Greece, and it was the name of a constituent republic of the Socialist Federal Republic of Yugoslavia, which, upon the SFRY’s dissolution, hoped to continue using the name it had as a constituent entity.

Greece took exception to the use of the name of one of its administrative regions and the irredentist claims made in the fYR Macedonian constitution and by the fYR Macedonian authorities in an attempt to galvanize national solidarity in the midst of a civil war. It responded with several forceful (if non-forcible) measures on the international level, blocking the small country’s accession to international organizations and imposing economic sanctions (for more details see here). Attempts were made to normalize the relationship between the two States in the autumn of 1995, with the adoption of an Interim Accord. The 1995 Interim Accord, besides its unique language (it refers to Greece and fYR Macedonia as the ‘party of the first part’ and the ‘party of second part’ respectively, following which the Court refers to the two States as the ‘respondent’ and ‘applicant’ throughout the judgment), established a number of obligations for the two States: fYR Macedonia had to cease using a symbol that Greece considered part of its cultural patrimony, for example, and undertook that nothing in its constitution could be interpreted as an irredentist claim (Arts 7(2) and 6); both parties had to cease any propaganda, etc, and to negotiate in good faith as to fYR Macedonia’s definitive name (Arts 7(1) and 5(1)); and Greece, for its part, agreed not to object to fYR Macedonia’s applications to join international organizations, as long as the latter applied under the provisional designation stated in para 2 of Security Council Resolution 817 (1993), namely as ‘the former Yugoslav Republic of Macedonia’ (Art 11(1)). The ‘artist formerly known as Prince’, who also changed his name in 1993, did not bother commenting on this development—as an aside it is worth noting that Prince did resolve the issues with himself about his name in 2000.

It is this last provision that led to fYR Macedonia’s application to the ICJ. fYR Macedonia had been hoping to be invited to accede to NATO during the 2008 Bucharest Summit—under its provisional designation (fYR Macedonia) as envisaged in the Interim Accord, just as it had joined a number of other international organizations previously. Such invitation was not extended, however, and fYR Macedonia accused Greece of objecting to its accession to NATO. It filed an application with the ICJ, alleging that Greece had violated its obligation not to object under Art 11(1) of the Interim Accord, given that fYR Macedonia had sought to accede to NATO under its provisional designation.

II. Preliminary Objections: Mootness

The question of the Court’s jurisdiction seemed quite straightforward at the outset, rather despite the parties’ convoluted drafting of the relevant clause: under Art 21(2) of the Interim Accord ‘[a]ny difference that arises between the Parties concerning the interpretation or implementation of [the] Interim Accord may be submitted by either of them to the International Court of Justice, except for the difference referred to in Article 5, paragraph 1’ (=the difference described in [Security Council Resolution 845 (1993)] and in Security Council Resolution 817 (1993)) (=the difference over the name of the State [provisionally designated as ‘the former Yugoslav Republic of Macedonia’]).

Greece did however raise objections as to the Court’s jurisdiction and the admissibility of the case, although it chose to do so along with the merits. The jurisdictional objection maintained that the dispute before the Court concerned the difference over the name of fYR Macedonia within the meaning of Art 5(1) of the Interim Accord, and was thus excluded from the Court’s jurisdiction. This was based on a rather broad reading of the relevant provision, which the Court did not accept (paras 34 et seq). It interpreted Art 5(1) narrowly, as referring only to the difference about the ‘definitive name’ of the State, whereas Art 11(1) referred not to the ‘definitive name’ issue, but rather imposed an obligation on Greece not to object to fYR Macedonia’s admission to international organizations as long as the latter applied under the provisional designation.

Greece further argued that the conduct complained of on the part of fYR Macedonia was conduct attributable to NATO (or its member States) rather than Greece. This was based on the fact that under the North Atlantic Treaty, NATO members ‘may, by unanimous agreement, invite…’ (Art 10). So the decision not to extend an invitation was a collective decision by NATO members in their function as a NATO organ, rather than conduct attributable to Greece. The Court found that the conduct complained of was not the decision of NATO not to invite fYR Macedonia, but rather the conduct of Greek organs in the run-up to the Bucharest Summit. Similarly, the Court rejected a Greek Monetary Gold-type objection that any decision would involve deciding on the responsibility of NATO and/or its member States, who were indispensable third parties but outside the jurisdiction of the Court. Finding that Greece had violated its obligations under a bilateral treaty through actions attributable to it would not in any way involve the position of NATO or of any of its member States (para 43).

The most potent objection raised by Greece was one of mootness, along the lines of Northern Cameroons. Greece argued that the (real) objective of fYR Macedonia was to reverse the NATO decision and get itself invited to join; but even if the Court did find a violation on the part of Greece, this could not have any effect on the NATO decision. The NATO decision in Bucharest was that an invitation ‘will be extended as soon as a mutually acceptable solution to the name issue has been reached’ (Bucharest Summit Declaration at para 20). As such, any decision of the Court on the merits of the dispute would be devoid on any practical application: there was nothing that Greece could be made to do to change NATO’s decision. The Court was thus invited to preserve the integrity of its judicial function and to refuse to exercise jurisdiction in the instance. fYR Macedonia on the other hand claimed that Greece was misrepresenting the object of the application before the Court.

The Court distinguished between Northern Cameroons and the case at hand; in Northern Cameroons, the application related to a treaty that had already been terminated by the time the Court got around to deciding the relevant case—by contrast the Interim Agreement was still in force and fYR Macedonia’s NATO application remained in place. Hence the decision of the Court would be of continuing applicability, as the Interim Accord could be interpreted and applied in the future in accordance with the Court’s decision (para 51); fYR Macedonia was seeking a declaratory judgment that Greece had violated its obligations, and not a reversal of NATO’s decision (paras 49-50). However, as Judge Xue noted in her dissent (under II ‘Judicial Propriety’) ‘[f]rom the proceedings, it is evident that [fYR Macedonia]’s major concern relates to NATO’s decision of “no settlement, no invitation” … the Court’s declaratory Judgment is apparently intended to eschew [a reversal of NATO’s decision].’ This further becomes clear in fYR Macedonia’s remedies prayer: it asks the Court to declare a violation of Art 11(1) on the part of Greece, but also ‘to order that the Respondent immediately take all necessary steps to comply with its obligation [under Art 11(1)], and to cease and desist from objecting in any way, whether directly or indirectly, to the Applicant’s membership of the North Atlantic Treaty Organization and/or of any other “international, multilateral and regional organizations and institutions” of which the Respondent is a member …’ (emphasis added).

Indeed there is little doubt that fYR Macedonia would like to be admitted to NATO, and that (at least) part of the motivation for its application was a hope to bring about the reversal of the NATO decision. There is even less doubt that this could not be the outcome of the proceedings before the Court, but also that this could not even be precipitated by the Court ordering specific conduct on the part of Greece: the decision is one of NATO, and can only be taken in accordance with the constitutional provisions in that Organization. The Court seems cognizant of this when it rejects the second prayer of relief by fYR Macedonia (see section V, below). Moreover, NATO has responded to the Court’s Judgment by confirming the Bucharest Summit decision (see section V, below). However, the Court’s decision does maintain (formally) the possibility of future practical application, and thus the Court was right not to refuse to exercise jurisdiction: it is possible, with the Interim Accord still in force, that fYR Macedonia will apply to other international organizations under its provisional designation (as it has done, its accession negotiations with the EU currently pending), or that NATO for some reason will undertake a reconsideration of its position on fYR Macedonian membership (which however it does note seem intent on doing, at the moment). In such a case, the decision of the Court as to the interpretation of the Greek obligation ‘not to object’ would claim practical application.

III. The Obligation ‘Not to Object’

Jurisdictional and admissibility issues aside, the question remained whether Greece had actually violated the 1995 Interim Accord. In accordance with Art 11(1) of the latter, Greece was under an obligation ‘not to object’ to fYR Macedonia’s application to or membership in an international organization, unless the latter was to be referred in the organization by a name other than its ‘provisional designation’. First of all, and theoretically, Greece could have easily hidden behind the ‘institutional veil’ of NATO: given that decision to invite new members is to be taken unanimously, and given that there is no open voting, there need not have been any identifiable conduct attributable to Greece. Whether Greece had lobbied other members one way or another would be extremely hard to prove for lack of any public statements or acts clearly attributable to Greece and demonstrating its objection. And yet the argument that it did not object to fYR Macedonia’s invitation was by and large foreclosed to Greece, as—in the heated political climate obtaining between the two States—it had made sure to advertise left, right, and centre that it had ‘vetoed’ fYR Macedonia’s accession to NATO, and at the highest level of Government at that. Public statements by the Prime Minister, the Foreign Minister, and others, as well as letters sent by the Permanent Mission of Greece to the members of the Security Council were submitted to the Court as evidence of Greek conduct in violation of the obligation not to object (see paras 73 seq). So one thing was rather clear at the outset: Greece had indeed objected to fYR Macedonia’s accession, and it was irrelevant whether and to what extent that objection caused fYR Macedonia not to be invited (cf para 70).

One possible argument, to some extent pursued by Greece, was that Art 11(1) allows Greece to object to the admission of fYR Macedonia to an international organization on grounds unrelated to the difference over the name, ie because the latter does not fulfil the relevant admission criteria (in the case of NATO stipulated in Art 10 in conjunction with Art 2 of the North Atlantic Treaty). The Court did not need to decide whether that was the case, as Greece ‘did not take the position that any objection by it at the Bucharest Summit was based on grounds unrelated to the difference over the name’ (para 71). What Greece did try to argue was that it did not really ‘object’ but rather it ‘expressed its views’ on whether fYR Macedonia fulfilled NATO’s eligibility requirements. But the Court would have none of it: ‘The record makes abundantly clear that the Respondent went beyond such observations to oppose the Applicant’s admission to NATO on the ground that the difference over the name had not been resolved’ (para 82, emphasis added).

Greece further pursued this line of argument in another incarnation by claiming it was subject to a duty, under the North Atlantic Treaty, to ‘raise its concerns if it believes that an applicant does not fulfill the organization’s criteria’ (para 107). Under Art 22 of the Interim Accord, the latter ‘does not infringe on the rights and duties resulting from bilateral or multilateral agreements already in force that the Parties have concluded with other States or international organizations’ (emphasis added). Indeed, it could be argued that evaluation by a member of an international organization of a prospective member’s fulfillment of admission criteria is a duty to the other members or to the organization itself: if members are under an obligation not to condition admission on criteria other than those in the organization’s constitution (and/or secondary law), then as a corollary they are also under an obligation to condition admission on criteria established in the constitution (and/or secondary law) (cf Conditions of Admission at 62-63 and 64-65; see also here with further references).

The Court sought to establish whether the North Atlantic Treaty imposed on Greece a duty with which it could not comply without breaching its obligation not to object (para 110), but found that NATO’s constitutive instrument imposed no such duty. Effectively the Court sought to establish a genuine (ie irresolvable) conflict between Greek obligations under the North Atlantic Treaty and the Interim Accord: if there were such a conflict, Art 22 of the Interim Accord would have meant that Greece’s obligation under the North Atlantic Treaty prevail. The North Atlantic Treaty, however, merely allowed, according to the Court, a general ‘right’ to take a position on membership decisions, which Greece sought to convert into a ‘duty’ to exercise judgment (para 111).

Given the comments above, as well as the fact that Art 22 also refers to ‘rights’ and not just ‘duties’, the Court’s interpretation may leave something to be desired in this case. It is interesting however that the Court seems to have taken the position that a right may not conflict with an obligation so as to allow operation of a clause subordinating the provisions of one agreement to the provisions of another. It thus adopted a strict approach to normative conflict, according to which there is only truly a conflict when an obligation from one source cannot be complied with without breaching an obligation from another source. This invites one to draw a parallel with the ECtHR Grand Chamber’s recent decision in Al-Jedda (at para 109). It is a point of general contention in the literature and it is the first time that the ICJ has taken a position as to the concept of irresolvable normative conflict, as far as I know (the situation in Lockerbie Provisional Measures was rather simpler and the Court’s position was not definitive due to the procedural posture).

IV. The ‘Subsidiary Defences’

Greece invoked three ‘subsidiary defences’ for its violation of the obligation not to object: one under ‘general principles of international law’, one under the Vienna Convention on the Law of Treaties 1969 (which was directly applicable in this case), and one under the law of State responsibility. The first it labeled as an ‘exceptio non adimpleti contractus’. This would allow a State suffering a breach of a treaty commitment by another State to respond by unilaterally suspending its own corresponding obligations, and it would be conditional upon the synallagmatic nature of the obligations breached on either side (ie the relevant obligations would need to constitute a strictly reciprocal exchange) (para 115). This was arguably an attempt to free Greece from the much more stringent requirements attached to invoking the other two defences, namely Art 60 VCLT (material breach), and countermeasures.

The Court did not address each defence separately, nor did it indicate the relationship between them, much to the disillusion of Judge Simma, who treated the matter in detail in a separate opinion that reads more like a brief academic study. Rather, the Court just grouped the defences together and identified ‘certain minimum conditions that are common to all three arguments’, namely (i) the existence of prior breach of the Interim Accord on the part of fYR Macedonia; and (ii) a connection between that breach and the objection of Greece to fYR Macedonia’s NATO accession in violation of Art 11(1) of the Interim Accord (para 123).

The Court went on to reject almost all Greek allegations of breach of the Interim Accord on the part of fYR Macedonia, offering in the process an interesting summary of the content of the obligation to negotiate in good faith (para 132). It only acknowledged a breach of Art 7(2) of the Interim Accord (the use of a prohibited symbol) which had taken place four years prior to the Bucharest Summit and which had ceased almost immediately upon Greek protest (para 160). Further, the Court rejected the factual connection between that breach and the Greek reaction four years later. This led to the rejection of all three ‘subsidiary defences’, the Court in the meantime reserving its position as to the existence in international law of a defence of exceptio non adimpleti contractus (paras 161, 163, 164)—which Judge Simma laid to rest in his separate opinion.

V. Remedies and Outlook

The Court granted the declaratory relief sought by fYR Macedonia, but refused to order Greece to refrain from any future conduct that violates its obligation not to object under the Interim Accord (para 168). This was because Greece’s good faith was to be presumed—there was no reason to suppose that a State will repeat conduct found to have been wrongful. The rejection of this specific remedy requested by fYR Macedonia very much relates to the question of mootness raised above. If fYR Macedonia’s objective—apart from declaratory relief as satisfaction—was in some way to use the Court’s decision in order to obtain a reversal of the NATO Bucharest Summit decision of ‘no settlement—no invitation’ (which it seems to have been, to a large extent), mere declaratory relief will do little to help its cause. The Foreign Minister of fYR Macedonia stated after the delivery of the Judgemnt that ‘[t]he decision of the Court marks a further step down the road to membership [in NATO and the EU]. Again, I look forward to Greece allowing our membership in NATO, in accordance with its obligations under international law, and with the support of the other NATO members’. However, NATO has also reacted to the Judgment, as stated above, its Secretary-General tersely noting that ‘[t]he ruling does not affect the decision taken by NATO Allies at the Bucharest summit in 2008. We agreed that an invitation will be extended to the former Yugoslav Republic of Macedonia as soon as a mutually acceptable solution to the name issue has been reached. This decision was reiterated at subsequent summit and ministerial meetings.’ Greece stated that it was reviewing the decision ‘with full respect for the International Court of Justice as the principal judicial organ of the United Nations’, but also focused on the Court’s refusal to order any specific conduct on the part of Greece.

It remains to be seen whether the decision of the Court will help along the way of a final settlement of the wider, bizarre and sorry, dispute between the two neighbours as to the name of one of them, or whether it will lead to a hardening of positions, intransigency, and further nationalistic outbursts, to which both have succumbed more often than not. One would hope that the two States will focus on more important matters for the benefit of their people, and that the Court’s decision will go some way towards convincing them to do so. The judgment does, in any event, make for some interesting academic reading. This is because the Greek Government, having handled its relations with its neighbour very poorly indeed, and having scored a number of own goals in the process, furnished its legal team with an almost impossibly tough set of facts. The team had to engage in creative legal argument, and—given the legal talent on both sides—this led to interesting points of law being raised and debated. This may just be the only positive side to this sad story so far.

Many thanks to Dapo Akande for inviting me to comment on the decision and to Dapo and Christian Tams for helpful comments on the draft.

I shall start with what seems—perhaps expectedly—one of the most controversial arguments in the book, ie that decisions of the Security Council may be illegal, in the sense that they are in violation of the UN Charter (‘UNC’) in some way, yet they retain their validity and thus produce legal effect, binding states to comply with them. On this argument hinges the characterization of disobedience of Security Council decisions as illegal, which then allows for countermeasures to be brought in as a justification for the (prima facie illegal) act of disobedience.

The first point of interest is the interpretation of that infamous phrase, ‘in accordance with the present Charter’, in Article 25 UNC. To recall, Article 25 provides in full:

The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

Erika de Wet notes that I dismiss the interpretation of the provision with cursory arguments; I accept that, and the only reason I did it is because I thought the various interpretative positions have been argued to death, and reasonable minds can (and will) continue to differ on this. But to take the matter up briefly:

(interpretative position 1): ‘in accordance with the present Charter’ describes the way in which member states (‘MS’) are to comply with Security Council decisions. This interpretation makes the phrase redundant—in what other way could MS be asked to carry out decisions of the Council? In violation of the Charter? That would be rather nonsensical.

(interpretative position 2): ‘in accordance with the present Charter’ describes the decisions of the Security Council that MS agree to carry out: only those taken in accordance with the Charter will be carried out; those in violation will not. This interpretation would give a license to disobey, but it seems to me to go against the wording of the provision. Why not state ‘…agree to accept and carry out those decisions of the Security Council that have been taken in accordance with the Charter’? Except for stating the (prima facie) obvious, this would have been simple enough for the drafters to do, if that’s what they wanted to say.

(interpretative position 3): ‘in accordance with the present Charter’ indeed describes the decisions of the Security Council that MS agree to carry out, but not in the sense of distinguishing them between those taken ‘in accordance with’ and those taken ‘in violation of’ the Charter. Rather, it means those ‘decisions’ of the Security Council that other Charter provisions vest with binding force—as opposed to ‘decisions’ of the Council that constitute mere recommendations. I briefly state this position on p. 165 of the book (penultimate para.), and I maintain that the travaux and Namibia actually lend support to this more circumscribed interpretation. (As to Article 2(5) UNC, it can be interpreted in much the same manner: the only ‘action’ in accordance with the Charter which requires the assistance of MS as a matter of obligation is that action which the UNC otherwise makes binding: ie, enforcement action.)

My position then is that Article 25 UNC does not resolve the matter of the legal effects of a Security Council decision that is in violation of the Charter. Only through a strained interpretation can this provision be seen as offering a license to disobey Security Council binding decisions. I think that denying decisions allegedly ‘in violation of’ the Charter any legal effect (by arguing that MS have no obligation to comply under Article 25) imposes on the provision a burden that it cannot reasonably carry.

This is then confirmed, in my view, by the discussion of the concepts of ‘validity’ and ‘legality’ in the following section of the book (pp. 166 seq). Here again I accept, as per both Matthew and Marko, that my approach is based on ‘doctrine’, ‘exegesis’, and an interpretation of ICJ decisions that were not actually seeking to advance any systematic theory of nullity or anything remotely similar. In fact I see these two comments as complementary: ICJ decisions, over different periods of time and over different make-ups of the bench, and taking into consideration the haphazard manner in which the ICJ comes to deal with such questions (given the lack of compulsory jurisdiction and mere incidental nature of any ‘review’) could hardly be expected to advance any systematic account. Rather it is up to us, as students of international law, to try to compile a systematic account through doctrinal exegesis, while not obviously contradicting a dictum of the Court. Whether this then manages to convince anyone else is, I suppose, a different matter altogether.

Back to issues of substance, a second crucial point, also echoed across all three commentators, refers to the usefulness of the framework of international responsibility and the doctrine of countermeasures in dealing with MS disobedience of Security Council decisions. Erika de Wet argues that the adoption of this ‘analytical perspective’, as it were, offers no substantive advantage over the one treating illegal Council decisions as invalid: it is an equally decentralized response (very much so, I readily concede) and it is open to the same fear of pretextual arguments of illegality advanced by recalcitrant states. Similarly, Matthew Happold invokes Occam’s razor and argues that the approach which advocates a lack of obligation to comply on the part of MS would be simpler, and thus the countermeasures approach not only does not add anything, but rather unnecessarily complicates matters.

I respectfully disagree. While both approaches are highly decentralized (like international law in general) and while the ‘lack of obligation’ approach might perhaps be simpler, it is also entirely unregulated. While there are no prerequisites or conditions attached to putting forward an allegation that a Council decision is in violation of the Charter and thus has no binding force, the application of countermeasures comes with significant limitations and conditions under general international law, both substantive and arguably procedural. Briefly, we may consider that requirements of prior notice and invitation to negotiate are attached to the deployment of countermeasures. Substantively, countermeasures are limited by proportionality requirements: arguably, any violation of the Charter would render a decision of the Council without binding force and thus allow disobedience; on the contrary, for a MS to disobey a decision as a response to the decision’s perceived wrongfulness, a proportionality requirement would apply. A minor violation of the Charter would render a decision ‘not in accordance with the Charter’ yet it may not justify the countermeasure of disobedience.

The central point here is precisely that the application of countermeasures is a much more heavily regulated process as opposed to the mere allegation of lack of binding force, which seems to give MS by-and-large carte blanche to disobey. So there is perhaps some added value to the approach, especially if one considers that this way, disobedience is not left entirely to be decided on the basis of political considerations and pretextual arguments, but falls to be assessed legally against more-or-less well established conditions (those for lawfully resorting to countermeasures).

On a more formalist note, it is in my view of some importance that no actor has been given by the UNC the power to make a finding as to the (lack of) legal effect of Security Council decisions with binding force. In that, the argument that it is ‘simpler’ to consider that MS merely find that there is no obligation on them to comply does not really carry us forward. Conversely, the power to make a finding that an actor bound by international law has acted illegally and has thus become responsible rests with the other actors in the system as a matter of general international law: states, for example, may make a finding that another state or an international organization has acted in violation of its obligations, and has thus become responsible, but they do so at their own risk: the risk that they may themselves be found to have been in the wrong in the end—if an ‘end’ ever comes indeed (eg through the binding decision of a disinterested third party or through a negotiated solution).

Further, as far as added value is concerned, treating Article 25 UNC as a licence for disobedience—simpler as it may be—does not actually explain how are states to react if a Security Council decision is not in violation of the Charter, but of some other rule of general international law that is binding on the UN. Indeed in that case we would either have to accept that states are bound to comply with that decision, despite one being reached in violation of UN obligations, or we would have to somehow find the decision as being in violation of the Charter. This leads to the attempt to interpret every relevant obligation under general international law, notably those referring to the protection of certain fundamental human rights, into the Charter by way of Articles 1 and 24(2) UNC. To me this is a very far-fetched interpretation of extremely broad provisions, and things don’t seem that simple anymore. By contrast, a reaction to a decision in accordance with the Charter but in violation of some other rule of general international law could be admitted as a countermeasure, irrespective of Article 25 UNC.

Finally, with respect to the OAU (re-)action in the Libyan case, I should note that the characterization of that action, at least in the way I approach it in the book, does not solely depend on what the OAU MS did or did not say—much to the contrary, I accord much more weight to what they actually did: they offered to negotiate, they called for reconsideration, they notified of their intended non-compliance, and they did so clearly responding to what they perceived as a violation of the Charter. I describe that process in the book (at pp. 186-7 and189) and I reiterate here that this seems to me like an impeccable process of applying countermeasures. (As to third party countermeasures, I happily align myself with Tams’ and Sicilianos’ positions, both based on an extensive consideration of state practice.)

With respect to the gigantic ‘can of worms’, in the words of Marko, that is attribution of conduct to international organizations, I again readily concede that the issue definitely warrants monograph-length treatment in and of itself. I should also note that I clearly do not exclude dual attribution in my treatment of normative control (see p. 52) and Marko thankfully notes that. I understand that by looking only at the international organization side of things, I have left questions unanswered (as to concurrent attribution to the state, exculpation, and the like)—but these were not questions that I had set myself to answer, and neither could I in this book, lest I detract from my main point, this being the legal qualification of disobedience.

Yet I should like to add one final comment as to why I argue in favour of normative control, despite ‘control’ being a ‘factual criterion’ in both the ILC’s and the ICJ’s mind. While states have no power to impose obligations on other states, international organizations, and in particular the UN through the Council in Chapter VII mode, operate precisely through the imposition of obligations, which sometimes leave states no ‘wiggle-room’ as to their implementation. Precisely because compliance with these obligations is usually expected, and precisely because disobedience is so exceptional, the organization can be seen as controlling MS conduct in this instance, and MS acts should (at least also) be attributable to the organization. This important difference justifies, in my view, the differential treatment of the notion of ‘control’ not merely as factual, but also as normative, in the case of international organizations. This is particularly so because of the concept of ‘double evasion’ that I discuss on pp. 50-52: states are able to ‘hide behind’ the international organization, arguing that they were bound to comply, while the organization can argue that state organs took the impugned conduct, which was not factually controlled in any way. Attribution being a preliminary question, and far off finally deciding whether responsibility has been engaged, it makes sense to me that conduct taken by both actors should be attributable to both of them; this conduct can then be judged against their respective international obligations, possible excuses, and the like, in order to finally find whether responsibility has been engaged.

Once again, I thank the three commentators for their challenging and thoughtful comments, as well as EJIL: Talk!, and OUP, for making this discussion possible. It is a great experience—even if a difficult endeavour—engaging in such discussions with experts, and I hope that we will continue to discuss these and other points.

Disobedience of an illegal or unjust command has long been a source of inspiration and scholarly excitement for lawyers, philosophers, and even dramatists, among many others. One of the best known tragedies of Sophocles, Antigone, sees the heroine defy the edict of Creon, the ruler of Thebes, in order to comply with the superior (in her view) rule that requires that she bury her dead brother in accordance with holy rites. How to qualify and/or justify disobedience in extreme cases has ever since featured as one of the most hotly debated jurisprudential issues. The book that will be discussed here deals with the legal qualification of disobedience of binding Security Council sanctions resolutions that are perceived by States as being in violation of the UN’s obligations.

At the outset I should like to thank EJIL:Talk! for hosting a debate on Disobeying the Security Council. I am in particular grateful to the editors-in-chief and to OUP for so kindly and diligently organizing this, as well as to the commentators who took the time to read and engage with the book (at least now I can plausibly argue it has been read by more than the proverbial average of two people who read most academic monographs: the author, and their mother). The book is an updated version of my DPhil thesis at the University of Oxford, which was submitted under the rather uninviting title ‘Responsibility of the United Nations for Wrongful Security Council Non-forcible Measures’ (ie Article 41 measures or simply ‘sanctions’).

The first move is to explain why I am focusing on the international responsibility of the United Nations rather than discuss its ‘accountability’. The term has attracted a lot of attention in the scholarship dealing with the question of limits on the ever-augmenting powers and impact of international organizations, despite its less-than-obvious ambit. The opening chapter of the book is devoted to discussing the definition and substance of the term, and to showing that international (legal) responsibility is the most pertinent (and the ‘hardest’) form of accountability that can be employed in the case of the United Nations when the latter is acting through the Security Council. This leads into the discussion of the specifics of UN responsibility for Council sanctions that follows. The discussion is structured in three parts, which follow by-and-large the structure of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts (‘ASR’), as well as the Draft Articles on the Responsibility of International Organizations (‘DARIO’): the first part deals with the ‘engagement of responsibility’, ie the requirements for the UN to become responsible under international law (II). The second part proceeds to question who is to determine the engagement of UN responsibility, ie who is to decide whether the UN has become responsible under international law for Security Council ‘sanctions’ (III). The final part deals with the consequences of the UN having engaged its responsibility (IV).

II. Engagement

The requirements for an international organization (or a State for that matter) to become responsible under international law are well-known: (i) the non-performance of an international obligation through (ii) conduct attributable to the relevant actor. The two chapters that make up this part deal with these two aspects.

As far as attribution is concerned, there is no doubt that Council conduct is attributable to the UN, the Security Council being a UN organ. What ‘counts’ as Security Council conduct however is rather less obvious: the Council having no operational capacity of any kind, its conduct is exhausted in promulgating decisions. What then of the conduct taken by States in implementation of these decisions? For example when a State organ imposes an asset freeze on an individual identified in the 1267 blacklist, is that conduct only attributable to that State (under Article 4 ASR) or could it also be attributable to the UN? The main problem for such an attribution would be that the UN exercises in fact no effective control on the State organ, as the DARIO would have it. The only kind of control exercised is normative control on the conduct of the State; but why should this type of control not lead to attribution of said conduct to the UN? This would avoid the convoluted solution of derivative responsibility, ie attribution of responsibility (rather than conduct) to the UN for the wrongful acts of Member States in implementation of Security Council sanctions (the solution that DARIO has opted for). The chapter argues in part that attribution to the UN due to its exercise of normative control over the conduct of States should be allowed, without excluding concurrent attribution to the acting States. This is because, unlike States—who do not usually exercise any normative control over other States—international organizations function almost exclusively through the exercise of normative control over States.

If certain conduct has been found to be attributable to the UN, it would still have to be in violation of the UN’s international obligations in order to constitute an internationally wrongful act. So the other chapter in this part seeks to identify the sources of international obligations that are binding on the UN with respect to the Security Council acting under Article 41. The UN Charter is an obvious source of international obligations binding on the Organization that it constitutes, and thus on the Security Council. The chapter fleshes out the content of the obligation to determine the existence of a threat to the peace, the obligations relating to the selection and content of the measures that are imposed under Article 41 (notably proportionality) and so forth. However, to the extent that the Charter does not abrogate general international law (or does not give organs the power to abrogate), general international law still applies and is a valid source of obligations incumbent on the UN, beyond those (few) obligations that can be identified as part of the jus cogens. There are then also obligations under general international law that limit the Security Council’s discretion when imposing sanctions. The argument here is that, if sanctions are functionally analogous to countermeasures—a collective response to an illegality as opposed to a decentralized response to an illegality, but still functionally similar—then the limitations on the form and content of countermeasures identified in ASR (notably compliance with human rights obligations even if not jus cogens) apply.

III. Determination

Part two deals with the much thornier question of the entity or actor that will determine whether the requirements for engagement of UN responsibility have been fulfilled. The first chapter in this part discusses the possibilities for judicial determination of the UN’s responsibility. The aim is to shift the discussion from the question of judicial review of Security Council action. The chapter discusses the concept of ‘judicial review’ and argues that all potential utterances of all possible courts on the legality of Security Council action are not ‘judicial review’ in any technical or meaningful sense, but rather decentralized claims as to the Council having acted legally or illegally in a particular case.

The next chapter pursues this point further, and argues that it is States who determine whether the Security Council has acted in violation of UN obligations and has engaged the UN’s international responsibility, along the traditional paradigms of auto-interpretation and auto-determination. While this may sound extremely anarchical, it is mitigated by a number of considerations. In auto-determining the responsibility of the UN for Council sanctions, States of course act at their own risk. But, what is more, they have to overcome the collective power of the Organization: a State auto-determining the responsibility of the Organization in isolation will have little luck in making an impact. Also, States have to overcome a strong presumption of legality of UN action, which means that they will have to put forward a strong legal argument in order to be taken seriously.

IV. Consequences

If it is States that determine whether the UN has engaged its responsibility, what is it that they can ask of the UN, and how can they make sure to get it? The last two chapters of the book deal with the content and the implementation of the UN’s responsibility for Council sanctions. As far as content is concerned, the basic secondary obligations incumbent on the UN (and the corresponding secondary rights of [directly or indirectly] injured States) are cessation and reparation. The chapter explores these options, and argues that States will mostly focus on one particular form of reparation, namely restitution, but in its ‘juridical’ incarnation: juridical restitution requires the withdrawal or amendment of the offending normative act.

The last (and longest) chapter in the book deals with the implementation of responsibility: how are States to induce the Organization to comply with its secondary obligations of cessation and reparation? The usual response in the literature argues that States have the ultimum refugium of disobeying the Security Council when they perceive it to have acted illegally. The chapter seeks to legally qualify this disobedience. It discusses the concept of ‘civil disobedience’ and claims that this category will only become relevant if it is confirmed that disobeying the Security Council is always and finally an illegal act. Then, it explores the argument that disobeying an illegal Security Council resolution is not an illegal act, because it is allowed under Article 25 of the UN Charter. In Article 25 UN Member States agree to accept and carry out the decisions of the Security Council ‘in accordance with the … Charter’. The literature is divided as to whether this is an open licence for States to disobey Council decisions not in accordance with the Charter. The argument put forward in this section is that it is not: non-conformity of a decision with the Charter may make it illegal, but it does not make it invalid, so as to remove the obligation to comply. Further, reliance on Article 25 or on the invalidity of Security Council resolutions in order to justify disobedience would not allow a reaction when a decision is not in violation of the Charter, but in violation of an applicable rule of general international law.

Disobedience of the Security Council is then always a breach of Article 25 of the UN Charter. Yet this breach may be justifiable (ie its wrongfulness may be precluded) as a countermeasure, as a response to the Council’s illegal act on the part of injured States. Such a qualification of disobedience has not been seriously proposed and discussed in literature before, yet it not only stands up to doctrinal scrutiny: it is also useful, as it provides a framework against which to legally assess State disobedience of Security Council binding measures that is more nuanced than the black-or-white matrix heretofore available.

The remainder of the chapter seeks to establish which States may invoke the responsibility of the Council as injured States, and which requirements they must fulfil in order to qualify their disobedience as a countermeasure. In doing this, it draws from practice, notably the OAU’s decision to disobey Council sanctions against Libya in 1998, as well as recent practice of domestic courts that is forcing States to disobey aspects of the 1267 sanctions regime.

V. Conclusion

The book is not an attempt to advocate disobeying the Security Council. It aims to confirm that disobedience (or the threat of disobedience), like all countermeasures, is indeed a last resort, one that comes with stringent requirements and high costs. But it is also the only potentially effective way, in the current stage of development of international law, in which States can induce the UN and its Security Council to comply with their international obligations. It is instructive, for example, that the most significant amendments to the 1267 sanctions regime have been ‘forced’ upon the Security Council by threatened or actual disobedience of its commands. In any legal system, decentralized reaction and disobedience is a dangerous but effective way to bring powerful actors to account. In the decentralized international legal system, this dangerous and effective way is actually allowed by the law in certain circumstances. Yet, disobedience cannot be left entirely to the political process, but can and should be assessed legally.

Antonios Tzanakopoulos is Lecturer in Public International Law at the University of Glasgow.

In this post I analyse the legal basis for the current use of force by the UN and France in Côte d’Ivoire, examining how that use of force impacts the status and exceptions of the prohibition of the use of force in Article 2(4) of the Charter and in customary law. In particular, I want to discuss the scope of the authorizations by the UN Security Council to use force, comparing the situation in Côte d’Ivoire with the on-going situation in Libya. The similarity between the two cases is more obvious than has been observed, as in both cases the UN has authorized the use of force in order to protect civilians, and in both cases those authorised by the Security Council to use force have directed that force against one side in an ongoing civil war, including targeting buildings belonging to the leader of that side who claims to be head of State (Col. Gaddafi & Laurent Gbagbo, see here and here). In both cases, questions have arisen as to the scope of the mandate and to whether recent uses of force overstep that mandate (see here with regard to Côte d’Ivoire).

I. The History of the Conflict in Côte d’Ivoire

Côte d’Ivoire has been in a state of turmoil since an attempted coup led to the country being split into southern areas, controlled by the government, and northern areas, controlled by rebels, in 2002. At the time, France used force in Côte d’Ivoire, allegedly to protect its nationals in the country, but was accused by both the government and the insurgents as taking sides (BBC). An eventual cease-fire in 2003 proved to be fragile, with the rebels refusing to disarm, and the French intervening in response to government attacks on French troops stationed in Côte d’Ivoire in 2004. ECOWAS, AU, and UN efforts facilitated an agreement between the factions, and elections were scheduled to take place in 2005 (see SCRs 1464 [2003] and 1479 [2003]). These kept being postponed due to the precarious security, but were finally held in November 2010.

Ouattara, Gbagbo’s rival, won the very close election, the results of which were certified by the UN (see SCR 1765 [2007] para 6), and accepted by the EU, the AU, ECOWAS, and most States that cared to form an opinion (with the notable exception of Angola and Lebanon). However, Gbagbo refused to accept defeat (see for further background Jean d’Aspremont’s excellent post). In the aftermath of the election, both leaders were inaugurated in separate ceremonies, and claimed to be the President of Côte d’Ivoire. Since there seemed to be no forthcoming solution in the impasse, the AU gave Gbagbo an ultimatum, inviting him to hand over power to Ouattara by 24 March, while the EU, the US, and ECOWAS imposed sanctions on Côte d’Ivoire, a move welcomed by the UN Security Council (see SCR 1962 [2010] preamble). When the ultimatum expired with Gbagbo still refusing to leave, pro-Ouattara forces marched from their strongholds in the north towards Abidjan to seize power by force. They are now in Abidjan, having taken over most of the rest of the country, and are laying siege to the Presidential compound, where Gbagbo has taken refuge.

II. The Legal Framework

The UN Operation in Côte d’Ivoire (UNOCI) was established under Chapter VII of the UN Charter by SCR 1528 (2004) as of 4 April 2004. It took over from the UN political mission (MINUCI) and the ECOWAS forces (ECOMICI) that were in the area since conflict broke out.

The Security Council has authorized UNOCI to use ‘all necessary means’ to carry out its mandate (ibid para 8; SCR 1739 [2007] para 5) which includes (ibid para 2[f], amended by SCR 1933 [2010] para 16[b]; see also para 17 for authorization) ‘protection of civilians under threat of imminent physical violence, within its capabilities and its areas of deployment’ (which include Abidjan).

The SC has also authorized French forces stationed in Côte d’Ivoire (the ‘Unicorn force’) to use ‘all necessary means’ in order to support UNOCI, in accordance with the agreement between UNOCI and French authorities, and in particular, inter alia, to intervene at the request of UNOCI in support of UNOCI elements whose security is threatened; to intervene, in consultation with UNOCI, against belligerent actions, if security condition so require, outside UNOCI’s areas of deployment; and to help protect civilians in the deployment areas of their units (SCR 1528 [2004] para 16, as amended by SCR 1739 [2007] para 8, subsequently consistently renewed, lastly by SCR 1962 [2010] para 17 until 30 June 2011).

During 2010 and 2011, as the situation in Côte d’Ivoire progressively—if slowly—deteriorated, the Security Council constantly reinforced UNOCI, eg in SCRs 1962 (2010), 1967 (2011), 1968 (2011), including through re-deployments of infantry divisions and helicopters (utility and armed) from UNMIL.

In the last weeks there has been rapid deterioration of the situation in Côte d’Ivoire, with heavy fighting between rival Gbagbo and Ouattara forces. On 30 March 2011, the Security Council adopted SCR 1975, in which it urged Gbagbo to hand over to Ouattara in accordance with the election result (paras 1-4) and in which it recalled its Chapter VII authorization to UNOCI to use all necessary means to carry out its mandate to protect civilians under imminent threat of physical violence, within its capabilities and its areas of deployment, including to prevent the use of heavy weapons against the civilian population, while it requested the UN Secretary-General to keep the Council informed of the measures taken in this regard (para 6).

III. The First Week of April 2011

On the first days of April there were reports of heavy fighting in Abidjan, with attacks directed also against UN personnel and civilians; Ouattara forces reportedly fired on a UN helicopter and Gbagbo forces used heavy artillery against civilians, resulting in significant civilian casualties (UN News Service). Gbagbo forces also targeted the UNOCI HQ as well as UNOCI patrols dispatched to protect civilians and convoys transporting wounded in Abidjan, resulting in many peacekeepers being wounded.

The UN Secretary-General, acting under para 6 of SCR 1975 (2011), instructed the UN mission to take the necessary measures ‘to prevent use of heavy weapons against the civilian population, with the support of French forces pursuant to para 17 of SCR 1962 (2010)’ (UN Doc SG/SM/13494 of 4 April 2011). On 4 April, UNOCI undertook the military operation to prevent such use of heavy weapons threatening the civilian population in Abidjan, and so informed the Security Council. The S-G argues that UNOCI did not take part in the conflict, but only acted in accordance with its mandate, taking action in self-defence to protect civilians (see ibid). The UN and French forces fired at the compound where Gbagbo is hiding, allegedly because this is a ‘powder keg’, where weapons are held and from where most Gbagbo attacks are launched (Le Monde). There is little chance that there was no coordination with Ouattara forces in the April 4 attack. This could arguably be based on paras 1-4 of SCR 1975, which plainly call for Gbagbo to hand over to Ouattara and leave.

On 5 April 2011, Gbagbo forces’ chiefs informed UNOCI that they had instructed their soldiers to stop fighting and hand over their weapons to UNOCI. UNOCI personnel were instructed to receive such weapons and to offer protection to disarming troops (UN News Service). By the end of the day, reports claimed that pro-Gbagbo forces were ‘a few thousand troops’ or ‘less than a thousand’, with approximately 200 loyalists defending the presidential compound.

On 6 April 2011, during the day, Ouattara forces launched an all-out assault against the Presidential compound, trying to end the stalemate for good. Gbagbo sought to negotiate his departure with the UN, but negotiations collapsed, and Gbagbo is still in his compound and is refusing to leave. During the night of 6 April, the French ‘Unicorn force’ stationed in Abidjan struck the Presidential compound again, a few hours after Ouattara’s forces’ failed attempt to storm it. The French argued that these attacks took place during the evacuation by French troops of the Japanese ambassador, in response to the evacuation force taking heavy fire from within and around the Presidential compound. Fire was also directed against the French embassy (the Presidential compound is within the ‘diplomatic quartier’ and is surrounded by embassies and ambassadorial residences) (Le Monde). Japan welcomed the French action, while Israel has approached France with requests to help in the evacuation of its own diplomats (ibid).

Expectedly, the Gbagbo camp denounced the attacks on the Presidential compound, and has accused both the UN and the French forces of taking sides (BBC). As already mentioned, the UN S-G has stated that UN and French action on April 4 was not in favour of either party, but rather was taken in self-defence in order to protect civilians. Similarly, French Defence Minister Longuet said in the aftermath of the April 6 French attacks that France will not intervene on the side of Ouattara in order to permanently remove Gbagbo (Le Monde). At the same time, the humanitarian situation in the country is described as ‘dramatic’. The situation continues to escalate, with Gbagbo forces attacking the French embassy in Abidjan and the Unicorn force engaging in retaliatory fire on April 8, while hundreds of bodies are discovered in the west of the country (Le Monde).

IV. Evaluation

What is the legal basis for the current use of force by the UN and France in Côte d’Ivoire, and how does it impact the status and exceptions of the prohibition of the use of force in Article 2(4) of the Charter and in customary law? Jean d’Aspremont foreshadowed the relevant discussion in his earlier post on the situation in Côte d’Ivoire. There, he recalled that no exception from the prohibition has emerged with respect to so-called ‘pro-democratic’ intervention. Similarly, no exception exists with respect to ‘humanitarian intervention’. The only exceptions to the prohibition of the use of force continue to be self-defence, under Article 51 of the Charter, and authorization by the Security Council under Chapter VII.

In the present case, both of the actors using force in Côte d’Ivoire (other than the Ivorian parties to the conflict) have been explicitly authorized to do so by the Security Council in resolutions passed under Chapter VII. The only question seems to be whether—on the facts—both actors have actually used force within the scope of the authorization granted to them. While a reasonable argument can be made (and both the UN and France actually make it) that the use of force has been limited to protecting civilians, and that there has been no intention of forcing the departure or removing besieged Gbagbo from his hideout in the Presidential compound and from the country, there is little doubt that the outcome of the airstrikes against the compound was the en masse surrender and defection of many pro-Gbagbo generals and a substantial contribution to Ouattara’s forces’ attempts to forcibly remove Gbagbo from power.

The situation is similar—but in no way identical—to that currently unfolding in Libya, and a comparison between the two seems appropriate. In the Libyan case we have yet again a Chapter VII authorization of UN member states to use force in order to protect civilians ‘under threat of attack’; but the authorization also extends to ‘civilian populated areas under threat of attack’ (see SCR 1973 [2011] para 4), which—it has been argued inter alia by Dapo in this post (see also here)—actually allows targeting the leaders of the recalcitrant regime, as it shows the authorization to really be about ‘stopping Gaddafi’s forces from winning the civil war in Libya’.

The crucial question in this connection is whether the words ‘under threat of attack’ are broad enough to encompass targeting those who pose the threat, and how remote the connection between the actual threat of attack and those posing it may be. Surely troops about to storm a city suburb put a ‘civilian populated area under threat of attack’ and may be targeted. But also Gaddafi’s (or Gbagbo’s) recalcitrance can be argued to put civilians under threat of attack—may Gaddafi (and Gbagbo) be targeted?

In Côte d’Ivoire, the authorization extends only to protecting civilians (not civilian populated areas) and then only when these are ‘under imminent threat of physical violence’ (emphasis added). This seems much more circumscribed than the authorization in SCR 1973, and the a contrario argument from the comparison of the two texts seems to vindicate Dapo’s argument, namely that authorization to use ‘all necessary means’ is just shorthand for the use of force, and the only limitation imposed on the actors authorized to use force as to whether and when to resort to force is the objective identified in the resolution. The objective set in SCR 1973 is clearly broader than that set in SCR 1975. Questions of targeting then would be subject to the provisions of the jus in bello.

The situation is further complicated when we consider the question of the UN taking (or allowing states to take) sides in an internal conflict. The US and the UK have indicated that they consider SCR 1973 as having amended the previously imposed arms embargo (in SCR 1970 [2011]), allowing direct support to the rebels through the provision of weapons (see this recent post by Marko). Marko identifies one of the problematic aspects of this argument as having the Security Council take sides in a conflict without it explicitly saying so. Indeed, by virtue of Article 2(7) UN Charter, the Security Council may take sides in an internal conflict that constitutes a threat to the peace and invites action under Chapter VII. But it does not have to, and unless it does so, its authorization to use force may arguably not be interpreted as allowing the direct support of either side.

The response to this in the Libyan case is that SCR 1973 is ‘really about stopping Gaddafi’s forces from winning the civil war’ and thus the Council has taken sides, but in a manner limited by its authorization (see Dapo’s relevant post here, but note that in his analysis, it may be assumed that the Council has actually authorized the use of force in order to stop anyone from winning the civil war in Libya, if this would put civilians and civilian populated areas under threat of attack; indeed it is hard to see how any war can ever be won without civilians at least coming under threat). In SCR 1975, the Security Council explicitly calls upon Gbagbo to relinquish power in favour of Ouattara (paras 1-4), clearly taking sides in the conflict; yet this is arguably not reflected in the authorization to use force, and it seems that the resolution’s opening paragraphs cannot justify a broad reading of the authorization given the latter’s strict wording. Indeed both the UN S-G and France were at pains to underline that they were not taking sides, and France explicitly ruled out an intervention in support of Ouattara (all the while having Le Monde argue that this is what France is actually doing).

In the final analysis, it seems that once the Security Council has authorized the use of force under Chapter VII of the Charter, the ‘margin of appreciation’ left to those authorized is considerable, even if it finds its outer limits in the objective set by the Security Council. But what must also be given significance is the relevant actors’ insistence on arguing that they are remaining strictly within the boundaries set by the Security Council.

Many thanks are due to Professor Vaughan Lowe QC, as well as to James Upcher, Marko Milanović, Dapo Akande, and Professor Christian J Tams.

Antonios Tzanakopoulos is Lecturer in Public International Law at the University of Glasgow.

On 12 January 2011, the Greek Government announced its decision to apply to the International Court of Justice for permission to intervene in the sovereign immunity dispute brought by Germany against Italy (see here for Dapo’s comment when the case was first brought). The Greek decision to intervene has received some coverage in the Greek and German media, but has gone relatively unnoticed in the English-speaking world. Even though the Government had been under some pressure, both by opposition parties and by public opinion (see eg here [in Greek]), to intervene in the dispute, its decision does come as a relative surprise. Greece is already engaged in one case before the ICJ, where fYR Macedonia has complained of the alleged breach of the 1995 Interim Accord between the two States with reference to Greece’s conduct in response to fYR Macedonia’s bid to join NATO (see here for brief comment), and is also in dire economic straits. Still, the Greek Government elected to open a new front, primarily, it seems, for ‘symbolic’ reasons (see the Greek PM’s statement reported here [in Greek]). Needless to say, Germany was less than impressed by the Greek decision (see the comments by Foreign Minister Westerwelle here; the standard AP report as relayed by the Jerusalem Post here; and the German press here and here [in German]; but see also here for a German position in favour of Athens’s intervention, which however confuses individual criminal responsibility with state responsibility [in German]).

The Greek Prime Minister noted the ‘symbolism’ of Greece’s decision to apply for intervention in the sovereign immunity dispute. This is arguably because the dispute between Germany and Italy originated in Italian court decisions, which—inter alia—permitted the enforcement in Italy of Greek court decisions that had allowed civil claims in damages against Germany for grave violations of international humanitarian law perpetrated by its troops in Greece (in particular in Distomo village) during World War II (cf paras 10 and 14(3) of Germany’s Application Instituting Proceedings [pdf]). These decisions were denied enforcement in Greece: execution of a judgment against a sovereign State is subject to the prior consent of the Minister of Justice, and this was not given in the instance (Art 923 of the Greek Code of Civil Procedure). The creditors of the Greek judgments did not manage to get relief at the European Court of Human Rights, where their claim that Art 923 CCP was in violation of Art 6(1) ECHR was rejected (see Kalogeropoulou v Greece and Germany, App No 59021/00). Around the same time, the Greek Special Supreme Court (No 6/2002) found that, under general international law, there is no accepted exception from sovereign immunity for acts that amount to war crimes or other violations of jus cogens (see 56 RHDI 199 (2003) and ILDC 87 (GR 2002)  for the decision and comment). The creditors then took advantage of the liberal approach of Italian courts after Ferrini (see ILDC 19 (IT 2004) and 99 AJIL 242 (2005) for further comment), and had the relevant Greek decisions recognized and declared enforceable in Italy.

The Greek decision to intervene is notable for two reasons. First of all, Greece’s timing of the intervention is not deprived of a certain feeling of suspense and drama: arguably the time-limit for applying for permission to intervene would run out on 14 January 2011, the time-limit the ICJ had fixed for the submission of the Italian rejoinder (see Art 81 ICJ ROP; Order of 6 July 2010 [pdf]; the ICJ has not yet issued a press release as to the Greek application for intervention). During the preceding weeks, calls to the Government to intervene had augmented, and the intervention was finally announced by the Greek Prime Minister himself just two days before the deadline. This seems to have given the Greek Government a bump in its domestic political capital at a crucial time when its popularity is not its strongest point: the economy is quite obviously in pretty bad shape and Germany is widely perceived by Greeks as not having helped during the crisis as much as they would have wanted or expected.

In terms of substance, Greece may be seeking—understandably—to support the judicially recognized rights of the victims of the Distomo massacre and their successors (see the Greek MFA Press Release at para 2). If so, it has chosen a particularly roundabout way of showing this support: it is intervening not only against the decision of its own Special Supreme Court of 2002 (cited above), but also against the Government’s own decision to refuse its consent to the execution of the domestic judgments against Germany ten years ago. In view also of the drama surrounding the eventual intervention, speculation is easily invited as to whether Greece really believes it has any chance of putting forward a strong case for the exception from sovereign immunity of acta jure imperii in violation of jus cogens, or whether it has merely launched into a publicity stunt in an effort to appease the Greek public and, at the same time, put an end to a case that has been going on for more than 15 years (the first Distomo civil action was lodged in 1995; if the ICJ decides on the side of Germany, the Greek Government will be able to point to the International Court for having put the case to rest, while arguing that it did ‘all it could’ by intervening). It remains to be seen whether the ICJ will allow Greece’s intervention, what arguments Greece will put before the Court, and what the political cost of this intervention will be.

Antonios Tzanakopoulos is Lecturer in Public International Law at the University of Glasgow. Many thanks are due to Christian Tams, Marko Milanović, and Dapo Akande for their comments. The usual disclaimer applies.

In the aftermath of the ECJ’s Kadi decision, which annulled the EC Regulation implementing the 1267 sanctions regime against Mr Kadi and the Al Barakaat Foundation, Kadi was almost immediately relisted by the Council of the EU in a new Regulation. This subjected him afresh to the restrictive regime of SCRs 1267 (1999) et seq, most recently SCR 1904 (2009). And, as Devika Hovell reported on this blog, almost immediately Kadi brought a fresh challenge against that Regulation before the CFI, now renamed as the ‘General Court of the EU’ after the entry into force of the Lisbon Treaty. On 30 September, the General Court rendered its decision in Kadi II.

EJIL:Talk! regular readers will know that we have consistently reported on challenges to the 1267 regime before national and regional courts on this blog (see eg here, here, here, here, here, and here). In Kadi II, the General Court grudgingly follows the ECJ’s reasoning in Kadi I and confirms a trend of defiance of Security Council sanctions. In this post I will try to situate the Kadi II decision in the context of challenges to Security Council restrictive measures under Article 41 of the UN Charter.

I. The Story So Far

In SCR 1267 (1999) the Security Council imposed targeted sanctions on individuals and legal entities associated with bin Laden, Al-Qaida, and the Taliban. After the fall of the Taliban in Afghanistan in 2001, the sanctions remained in place, evolving into a general anti-terrorist sanctions regime, complemented by the regime imposed under SCR 1373 (2001). One of the main differences between the two regimes is that under 1267 those to be sanctioned are determined by the Security Council itself (through its Sanctions Committee which maintains a Consolidated List to that effect), while under 1373 it is UN member states that draw up lists of those who are to be subjected to the sanctions, notably (in both cases) asset freezes and travel bans.

The 1267 sanctions regime, in its original incarnation, imposed very far-reaching restrictions on individuals and legal entities, and allowed for no humanitarian exemptions. Further, those listed had no way of challenging the restrictive measures imposed against them, except through requesting diplomatic protection and having representations made on their behalf by their State of nationality or residence before the Security Council. This was in part justified by the allegedly ‘temporary’ and ‘preventive’ nature of the restrictions. Following some early reactions to the 1267 regime, which led to challenges being raised against it before domestic (see Nada) and regional courts (see Kadi I), even with some success (see Othman [2001] EWHC Admin 1022 before the English High Court), the Security Council decided to introduce some humanitarian exemptions for basic expenses and subsistence (SCR 1452 (2002)), and then also to introduce a Focal Point, where those targeted by the sanctions regime could petition the Security Council, in their own name and not through their State of residence or nationality, to be removed from the list (SCR 1730 (2006)).

However, this did little to appease both domestic constituencies and domestic and regional courts, which were faced with a sanctions regime over which the Security Council had full control and seemingly unlimited discretion, be it with respect of who was to be listed, the reasons for such listing, whether exemptions would be granted, and what one had to do to be removed from the list. A new wave of attacks against the measures in domestic courts led to annulments of domestic measures implementing the 1267 sanctions (see comments on Hay) or to innovative interpretations stretching the language of the relevant Security Council resolutions (see comments on Abdelrazik).

In response, the Security Council adopted, at the very end of 2009, Resolution 1904. This was clearly an attempt to thwart the ‘challenges, both legal and otherwise, to the measures implemented by Member States’ under the 1267 sanctions regime, as well as to make procedures for listing and delisting by the competent Sanctions Committee ‘fair and clear’, an ongoing effort (at preamb 9). However, the establishment of an Office of the Ombudsperson by SCR 1904 (2009) still did not satisfy domestic and regional courts, which keep pushing for judicial guarantees in the imposition of asset freezes and travel bans on persons identified by the Security Council as being ‘associated with’ the Taliban or Al-Qaida (see comments on the UK Supreme Court decision in HM Treasury v Ahmed and ors). In Kadi II, the General Court remains unconvinced that the procedure at UN level offers the appropriate guarantees, and annuls the new Regulation subjecting Kadi to the restrictive regime.

II. Applying ECJ Kadi (I)

In Kadi II the General Court grudgingly applies the ECJ’s Kadi. In following the language of Tim Stahlberg in this post over at the ECJBlog.com, I say ‘grudgingly’, because it is apparent throughout the judgment that the General Court is not completely comfortable with the ECJ’s reasoning in Kadi I. For example, while the General Court acknowledges the different scope of the international obligations imposed on member states of the UN under the 1267 and 1373 sanctions regime respectively (at paras 32-33), it accepts the ECJ’s obliteration of this distinction later on (at paras 138-139). That it does so without being fully convinced is evident both as implicit in the language used by the Court (eg para 41: ‘Notwithstanding Articles 25 and 103 of the Charter of the United Nations …, and although it observed … that observance [sic] of the undertakings given in the context of the United Nations was required when the Community gave effect to resolutions adopted by the Security Council under Chapter VII of the Charter, the Court of Justice asserted …’) and explicit when the General Court lists the significant criticisms leveled by scholarship with respect to ECJ Kadi (paras 113-120). The Court goes on to acknowledge ‘that those criticisms are not entirely without foundation’ (para 121). But given that Kadi I was rendered by the ECJ in Grand Chamber formation, ie with the intent of setting down certain principles (ibid), ‘in principle it falls not to [the General Court] but to the Court of Justice to reverse the precedent’ (para 123).

Even if it merely—and grudgingly—follows ECJ Kadi, Kadi II is still an important decision rather than a mere application of precedent, and this not just because it confirms a trend while simultaneously leaving its eventual reversal open. Rather, it is important because it elaborates on two points that were detectable as an undercurrent in both ECJ Kadi, and in other decisions of national courts on 1267 sanctions. The first one refers to the adoption of a ‘Solange argument’, and the other to the overlap between certain rights guaranteed both by domestic constitutions and under (general) international law. In this connection, it raises anew a number of issues which I have tried to systematize. In what follows, I will discuss Kadi II from the perspective of attribution of acts to a state implementing the binding decision of an international organization (section III); from the perspective of the relationship between legal orders and the methods for the regulation of their interaction (section IV); and finally from the perspective of the implications of decisions that rely on domestic law to effectively disobey international obligations for the normative hierarchy of rules in international law—if any (section V); all this with apologies for the long post.

III. Normative Control, Discretion, and ‘Judicial Review’

When a binding decision of an international organization leaves to its member states—as the ‘agents of execution’—no margin of discretion as to its implementation, ie when it imposes a strict obligation, member states are under the effective normative control of the organization. Notwithstanding any arguments for direct attribution of such implementing acts to the organization promulgating the decision (and thus controlling the conduct of member states), it remains a possibility that these implementing acts will be concurrently attributed to the member states (Art 4 of the Articles on State Responsibility). This has been accepted in practice by courts (eg the ECtHR in a number of cases such as Bosphorus, the CFI and ECJ in Kadi I, the Canadian Federal Court in Abdelrazik, the UK courts in Hay and HM Treasury v Ahmed and ors, and others) (see further on normative control and attribution chapter 2.II in Disobeying the Security Council [forthcoming]).

However, the fact remains that in such circumstances state conduct is conditioned by the decision of the international organization, so that any review of state conduct will uno actu also constitute review of the conduct of the organization. There are many ways in which courts have purported to deal with this situation: the ECtHR has established a doctrine of equivalence, whereby if the international organization promulgating the act requiring strict compliance protects human rights on a level equivalent to that under the ECHR, the legality of state conduct taken in implementation is presumed. While the presumption can theoretically be rebutted, this has not happened so far. The CFI in Kadi I acknowledged the predicament of having to review Security Council conduct when reviewing member state or Community conduct in implementation, and opted for reviewing against the lowest common denominator, ie law binding both on the Community and on the UN when acting through the Security Council in Chapter VII mode, which it famously considered to be only that part of international law which has reached the status of jus cogens. The ECJ in Kadi I, on the other hand, along with the UK Supreme Court, radically rejected the connection between the international and the domestic/regional implementing measure, and went ahead to fully review the domestic measure for compliance with domestic law (see here for further comment).

In Kadi II, the Community institutions and the intervening states tried to re-invoke the argument that there was nothing they could do except blacklist Kadi, since their conduct was effectively conditioned by the binding Security Council measure, and they had no margin of discretion in the measure’s implementation. This time, they tried to present this as an argument in favour of marginal review of the impugned Regulation. The argument developed along the following lines (paras 82-111): the ECJ says it can review the Regulation implementing 1267 sanctions; but there’s nothing we can do if the Security Council wants Kadi blacklisted, except communicate to him the summary of the reasons for the listing (generalities and allegations for the most part), give him an opportunity to be heard (of no consequence, as the attempt to question generalities is unlikely to yield results anyway), and then go on and blacklist him as per the Security Council’s command. If EU courts are going to review this, they have yet to establish a standard of review; we argue for the most marginal review to account for our lack of discretion (manifest error or abuse of power).

The General Court does acknowledge that the 1267 regime imposes strict obligations, as opposed to the 1373 regime, which does not (paras 32-33), a distinction it had drawn already in OMPI (at paras 100-102) and other cases. But it then concedes that accepting the arguments of the institutions would be tantamount to reiterating its own (CFI) finding in Kadi I, which has already been reversed by the ECJ (paras 121, 123). It then follows the ECJ in rejecting the argument for marginal review, disassociating the international from the domestic measure, and engaging in ‘full review’ as required by ECJ Kadi (paras 126 seq).

IV. Relationship between Legal Orders, Multi-level Governance and Solange

In situations where strictly binding (‘sovereign’ or ‘governmental’) decisions can be made at various levels of governance (international, regional, domestic), there is significant potential for conflict between those various levels (and the partial legal orders they represent). This is the case, in particular, when the power to impose certain restrictive measures on individuals has been conferred (whether delegated or transferred—see generally Dan Sarooshi’s International Organizations and their Exercise of Sovereign Powers) from one level to another, without similar safeguards being put on the exercise of the conferred power.

When a relevant case comes before the court of the legal order that has conferred the relevant power, a reaction is to be expected. This has so far generally taken the shape of the ‘Solange argument’, enunciated by the German Federal Constitutional Court when attempting to define the relationship between German constitutional law and acts of the European (Economic as it then was) Community, first in the 1970s (Solange I) and then modified in the 1980s (Solange II). A (much simplified) version of the argument runs thus: for as long as the exercise of the conferred powers on the (different or higher) level of governance takes place without safeguards similar to those to which it was subject before the conferral, when it was still exercised at the (lower) level, the court of the (lower) level will review the act of the (higher) level for compliance with the safeguards at the (lower) level (Solange I). When such safeguards are adopted at the (higher) level, the court at the (lower) level will desist, presuming conformity (Solange II).

The Solange argument has been adopted by the ECtHR in its Solange II incarnation (through the immediate acceptance of existence of equivalent protection; in this respect one should be cautious and mention that the Solange argument cuts both ways, as it may serve not as a tool for resistance-as Solange I, but also as a method to water down human rights protection-as Solange II. Also, the Solange argument presumes autonomous (if only so self-proclaimed) legal orders, while the ECtHR has not proclaimed the ECHR to constitute such an autonomous legal order. On these points see this paper by Marko). Its impact, this time as Solange I, was also clear both in the UK Supreme Court’s HM Treasury v Ahmed and ors and in the ECJ’s Kadi (see here for further comment). In Kadi II the General Court is as explicit as it could be: it states that it must ensure the ‘full review’ of the domestic implementing measure for compliance with fundamental rights (guaranteed under Community law), ‘without affording [the measure] any immunity from jurisdiction on the ground that it gives effect to resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations’ (para 126). ‘That must remain the case’, the Court continues, ‘at the very least, so long as (=solange) the re-examination procedure operated by the Sanctions Committee clearly fails to offer guarantees of effective judicial protection’ (para 127).

The Court further engages with the regulation of multi-level governance in paras 186-187. In response to the institutions’ argument that they have adopted with respect to Kadi the very same safeguards that the Community courts have found adequate in the OMPI line of cases (para 185), the General Court draws a distinction between the two regimes of multi-level governance: the OMPI regime (ie the 1373 sanctions regime) is structured in two tiers, one national and one regional (Community): the provision of safeguards at the national levels relieves Community institutions from the obligation to impose fresh safeguards relating to the same subject-matter on Community level (para 186). Conversely, the Kadi regime (ie the 1267 sanctions regime) is structured in two tiers as well, but here one is international (UN) and the other regional (Community): for so long as there are no safeguards on the UN level, the Community will have to provide them (para 187).

There is surely something to be said about the General Court accepting—however half-heartedly—the obliteration of the distinction between 1267 and 1373 when it comes to the standard of review (see section III above), and then re-introducing it, albeit in another guise, when considering the merits of the claim for the violation of the right to effective judicial protection. Obviously the only reason that safeguards can be adopted at any level under the 1373 regime is because the identification of those to be subjected to restrictive measures is left to the discretion of UN member states, unlike in the case of the 1267 regime, where the targets of the measures are designated by the Security Council, leaving UN member states no room for maneuver.

Be that as it may, Kadi II confirms that the EU courts have adopted the medicine they were served by the Bundesverfassungsgericht in Solange I in their relationships towards the United Nations. And it also confirms the ability of the Solange argument to furnish a powerful tool of resistance, and potentially a powerful incentive, for the regulation of the relationship between different levels of governance. However, the most important aspect from an international law perspective, that of the qualification and the implications of the reaction, remains to be broached.

V. Disobedience and Implications for Normative Hierarchy

From the perspective of international law, the annulment of the domestic implementing measures (in casu the Regulation) clearly results in the breach of the international obligation of member states under Article 25 of the UN Charter. This is in fact raised by the EU institutions and the intervening member states in Kadi II (paras 92-93, 100, 109) and implicitly recognized by the General Court (paras 41, 115, 119). The annulment forces member states to disobey the Security Council decision, lest they disobey the decision of their own court(s).

The Solange argument, in and of itself, cannot provide any justification for this disobedience under international law. This is in particular because the decision to disobey is based on domestic law considerations: here on primary EU law on fundamental rights, otherwise (eg in the UK Supreme Court’s Ahmed and ors) on constitutionally protected fundamental rights. However, it can be argued that the fundamental rights customarily relied upon in Solange-type argumentation (leading to disobedience) are not solely guaranteed under domestic law, but are homonymous to internationally protected human rights. This is the case in particular for the right to effective judicial review, otherwise cast as an aspect of the right to a fair trial.

It would be impossible to fully set out all the possible ramifications of this argument here. In Disobeying the Security Council (chapter 7), I argue in part that court-imposed disobedience could qualify as a countermeasure against the Security Council’s (ie the UN’s) wrongful imposition of sanctions. In a paper on normative hierarchy in international law I consider whether this court-imposed practice of disobedience could constitute practice and opinio juris for either considering certain rights heretofore not considered jus cogens as having reached that status, or alternatively as having the potential of introducing a new hierarchical level in the rudimentary hierarchical structure of international law.

For either of these two arguments to have any hope, it must be shown that there is some correspondence between the rules (rights) claimed under domestic law and those existing under international law. And while the argument can be made in abstracto, the General Court in Kadi II puts it in no uncertain terms, even if rather implicitly. At para 150, when discussing the impact of Security Council sanctions on targeted individuals, the Court refers to the UN High Commissioner for Human Rights, who in UN Doc A/HRC/12/22 (2009) at 15 para 42 qualifies these as punitive, requiring either imposition by a judicial decision or judicial review. At paras 176-177 the Court adopts the criteria elaborated by the ECtHR on the application of Article 5(4) ECHR and proceeds to apply them. While this is not groundbreaking with respect to the way EU courts understand fundamental rights under primary EU law, it is worth noting that Article 9(4) ICCPR is virtually identical to Article 5(4) ECHR. In this, the General Court exemplifies the correspondence in substance between (some) human rights that are both domestically protected and internationally guaranteed.

VI. (Interim) Conclusion

Kadi II then further supports the argument that domestic and regional court reactions to Security Council sanctions are not necessarily motivated by (or need not necessarily be understood as being motivated by) some sort of delusion of grandeur or ‘constitutional hegemonic aspirations’ (see this paper by Tridimas and Gutierrez-Fons). Rather, they can also be cast as crucial elements of practice and opinio juris for the further development of international law, so long as (pun intended) one draws the requisite parallelism between the domestic law relied on and the homonymous international law. It remains to be seen how the Security Council will respond to this new challenge; although it has been slow to do so, it has always sought to find a way to accommodate member state concerns, eg by establishing the Focal Point, or more recently the Office of the Ombudsperson. Perhaps it will now be forced by the strong decentralized reactions to establish a judicial process for the determination of designations under the 1267 sanctions regime, or decide to allow decentralized determinations by the member states as in the case of 1373.

I. Partial Confirmation of Hay

In its decision, HM Treasury v Mohammed Jabar Ahmed and ors (FC); HM Treasury v Mohammed al-Ghabra (FC); R (on the application of Hani El Sayed Sabaei Youssef) v HM Treasury [2010] UKSC 2, the UK Supreme Court largely confirms the High Court’s approach in Hay, and quashes in part the UK’s ‘Al Qaida Order’ (‘AQO’) because it removes the right of access to an effective remedy (see paras 81-82). The AQO is the implementing measure adopted by the UK Executive to give effect to 1267 sanctions. It is subject to the UN Act 1946, which the Court found not to allow the Executive to remove individual rights. The Court also reverses the decision of the Court of Appeal in A, K, M, Q & G, quashing in part the ‘Terrorism Order’, adopted to implement the 1373 regime. The Law Lords clearly distinguished between the two sanctions regimes, one imposing ‘strict’ obligations, and the other allowing for a margin of appreciation (see paras 64, 148, 196 seq and cf the CFI in OMPI at paras 100-102). What is particularly important in the Supreme Court’s decision is that most of the Law Lords fully accept that the domestic implementing measure of the 1267 regime, the AQO, is strictly conditioned by the relevant Security Council Resolutions. The Court clearly finds that subjecting implementation measures to parliamentary scrutiny could lead to the UK breaching its international obligations under the Charter if the implementing measure was defeated in Parliament (paras 47-49). Lord Brown, dissenting, implies that the Court, in quashing the AQO, would force the UK to flagrantly violate the UN Charter (para 204).

II. The Article 103 UN Charter Issue

Still, even though (implicitly) accepting that they would be forcing the UK to breach its international obligations, the Law Lords quashed in part the AQO. They were able to avoid the overriding effect of Article 103 of the UN Charter, confirmed by the House of Lords in Al-Jedda, by clearly stating that the rights sought to be protected by the applicants in the instant case were invoked on the basis of UK domestic, rather than international, law . It can be said that counsel for the applicants had clearly adopted from the beginning a strategy of basing their arguments on domestic law only, in order to anticipate the Treasury’s reliance on Art. 103. In fact this is clear both in counsel’s argument in Hay before the High Court, and in the fact that the only counsel that argued (in the alternative) under the ECHR before the Supreme Court flat-out conceded that Al-Jedda was against him but invited the Court to reconsider! (paras 66 seq). The Court confirmed Al-Jedda, but went on to state that this does not clarify the position with respect to rights enjoyed under domestic law (see para 75). Lord Rodger, at para 174, made it clear that he was concerned with domestic law rights because rights under the ECHR would be caught by Article 103 UNC. It was indeed by relying on the domestic law right of access to a court that the Court finally quashed the AQO.

III. Dualism—Solange—SC Res 1904: Pressure Leads to Concessions

This reasoning of the Court will have many up in arms with respect to its striclty—even radically—dualist approach. However, that ‘radical dualism’ seems in fact to be ill-disguised exasperation of the English courts with the 1267 regime (see eg para 45). Many epithets have been used by English judges to characterize the regime, and none of them are particularly kind or approving. Their most important complaint—like that of many other domestic courts—is the complete lack of access to an effective remedy and the complete lack of any guarantees of judicial protection. Here, much more than about a domestic right, we are talking about a right guaranteed under international treaties and customary law (even if, to avoid Art. 103, the parallel is not drawn by the Court explicitly; still it is implicit in some of the Law Lords’ opinions). In fact, there seems to be a Solange I undercurrent in the Supreme Court’s decision, much as there was one in the ECJ’s Kadi: when stating that the problem with the 1267 regime is the lack of access to a court at a national or international level, the Court could be seen as leaving the door open to future deference to decisions of the Council, should an adequate mechanism for rights protection be established at the UN level.

On 17 December 2009, the Security Council adopted Resolution 1904 (2009), which can be seen as a direct response to the challenges of designations under the 1267 regime in domestic courts, and as an attempt by the Council to anticipate further challenges. After ‘[t]aking note of challenges, both legal and otherwise, to the measures implemented by Member States under [the 1267 regime]’ (at 9th pre-amb), the Council establishes an ‘Office of the Ombudsperson’ (at para 20). In accordance with its mandate, detailed in Annex II of the Resolution, the Office of the Ombudsperson will receive de-listing requests by individuals subject to the 1267 regime and assist the 1267 Committee through information gathering, engaging in dialogue with the interested parties, and presenting a comprehensive report to the Committee, which will be taking the decision on the de-listing request. The Council notes that ‘the Ombudsperson shall perform these tasks in an independent and impartial manner and shall neither seek nor receive instructions from any government’ (at para 20).

The UK Supreme Court rejected this introduction of an Ombudsperson as a radical step towards creating a regime that would deserve its deference. While the move ‘is to be welcomed’ (see para 78), the Law Lords still considered that the 1267 regime does not offer any access to effective judicial remedies (see paras 78, 80, 239). More must obviously be done on the part of the Council to address the courts’ concerns.

Antonios Tzanakopoulos, D.Phil. cand. (Oxford), LL.M. (NYU) (Athens), is Lecturer in Public International Law at the University of Glasgow. A relevant paper presented at the University of Vienna in September 2009 can be found here in draft form.

I. Introduction: the 1267 Regime and Domestic Courts

For quite some time now there has been significant discontent about the fundamental rights implications of Security Council sanctions, in particular individual sanctions under the regime established by Resolution 1267 (1999) and subsequent Resolutions (see eg this blog here and here). The 1267 regime obligates UN Member States to freeze the assets of persons designated by the relevant Sanctions Committee as being ‘associated with’ Al-Qaida and the Taliban. But those identified by the Committee have no recourse against their designation, and no other remedy except the possibility to petition the Committee for delisting. Decisions on such petitions are taken in camera and no justification is required (see the Committee’s Guidelines).

Since Security Council decisions are not directly enforceable in most municipal legal orders, Member States of the UN have had to transpose the relevant measures imposed by the Council. This was done through the adoption of domestic implementing acts, usually of administrative character, in order to comply with their obligations under Article 25 of the UN Charter. The fact however that sanctions were imposed ‘on the ground’, as it were, by domestic administrative decisions, combined with the lack of any other recourse, has led affected individuals to attack the domestic implementing measures in the courts of various Member States (see here for the Monitoring Team reports, detailing challenges in the Annex).

II. Domestic Courts Have Teeth

The ECJ, in a decision controversial in its reasoning, if not in its outcome, was the first  court to finally annul such ‘domestic’ implementing measures (in this case adopted on the EC level) acceding to the claim of two listed persons, Kadi and the Al Barakaat Foundation. That decision would have effectively forced the 27 Member States of the Community in breach of their international obligations under the Resolutions and Article 25 of the Charter. The ECJ, however, suspended the effect of the annulment for three months, by which time the Community had adopted new implementing measures.

Still, the ECJ may just have provided the impetus that other domestic courts needed in order to embark upon their own ‘decentralized resistance’ against Security Council sanctions under the 1267 regime. The CFI annulled the domestic implementing measures with respect to Othman, another listed person, without even granting the grace period that the ECJ provided for in Kadi. But most importantly, a month after Othman, on 10 July 2009, the Queen’s Bench of the English High Court quashed the Al-Qaida and Taliban (United Nations Measures) Order 2006 (‘AQO’) in Hay v HM Treasury ([2009] EWHC 1167 (Admin)).

It is certainly not the first time that a domestic court does so in recent times. In 2007 the 10^th Division of the Turkish Council of State did so in Al Qadi (see UN Doc S/2007/132 at 39-40 [8]), but its decision was reversed on appeal by the Board of Administrative Cases (see UN Doc S/2007/677 at 41 [6] and shortly on ILDC). The Queen’s Bench also quashed the AQO in A, K, M, Q & G v HM Treasury ([2008] EWHC 869 (Admin)) but this was again reversed on appeal ([2008] EWCA Civ 1187). That case is one of the first cases to be heard by the new United Supreme Court.

In all these cases where a domestic (or quasi-domestic, in the case of the EC) court has annulled or quashed measures implementing UN sanctions in the municipal legal order (ie in Kadi, Othman, Al Qadi, A, K, M, Q & G, and Hay), the reasoning has been that the domestic measures were in violation of fundamental rights guarantees under domestic law. Even in cases that did not finally result in a quashing of the domestic measure, like the appeal decision in A, K, M, Q & G, the domestic court has taken small but bold steps of resistance against the 1267 regime’s draconian effects. In that latter case, the Court of Appeal only let the domestic implementing measure (the AQO) stand, because it was able to read it as not depriving a listed person of access to a court. In order to do that, the court understood the AQO as allowing full merits-based review of a designation under the Order, even though this designation is automatic as a result of being listed by the 1267 Committee. This was possible in the particular case, because G (the claimant) was listed by the Sanctions Committee on UK recommendation. This meant that the FCO was privy to the record that led to G’s designation. If the domestic court, upon review, found this record not to be sufficient in justifying the severe restrictions resulting from the designation, the UK would be bound to support delisting, with reasonable prospects of success (the court thought), as the UK was indeed the designating State at UN level.  

Hay is not an exception as to domestic law reasoning: the AQO is quashed because, in the case of Hay, it results in the designated person being deprived of its access to a court, something which the sovereign Parliament did not permit in s 1 of the United Nations Act 1946. Like G, Hay had been automatically subjected to the AQO as a result of his listing by the 1267 Committee. Unlike G, however, Hay was not listed by the UN on UK recommendation. The FCO (by its own admission) was not privy to the record that led the designating State to recommend the 1267 listing. So the merits-based review provided for in A, K, M, Q & G was impossible in the instance-the full record could not come before the court and be evaluated. As such, the AQO resulted in unlawful denial of a fundamental right and was quashed.

III. Dualism or Disengagement from Security Council Conditioning?

Annulment of a domestic implementing measure leads necessarily to the State being in breach of its international obligations under the relevant Security Council Resolution and Article 25 of the Charter. Justifying the annulment of the domestic measure on the basis of it being in violation of domestic law, even of constitutional ranking, is of no help: domestic law cannot be relied upon to justify the breach of an international obligation in international law. Still, as has become evident, when courts have annulled domestic implementing measures, they have done so relying on the implementing measure’s incompatibility with other domestic rules. Obviously this invokes a dualist understanding of the relationship between the international and the domestic (or EC) legal orders.

Much has been said about the dualist approach of the ECJ in Kadi, in particular. The ECJ did indeed stress the ‘autonomy’ of the EC legal order and went on to assert that all EC legal acts must fully comply with EC primary law, including respect for fundamental rights. Similarly the English courts in A, K, M, Q & G and Hay argued that an Order in Council in implementation of Council sanctions (the AQO in the instance) can only remove fundamental rights protection if the Parliament has clearly vested the Executive with such power under the UN Act 1946, which it was found not to have done.

However, it may be questioned whether the monist/dualist divide sufficiently explains the domestic courts’ arguments in these cases. In particular in Kadi, the ECJ makes a very crucial point in the midst of its dualist argument. At paras 286 and 288, the ECJ claims that review of the domestic measure does not also subject the international measure to review, neither does it challenge its primacy in international law. This is justified by the court not on the basis that the two legal orders are separate, but rather on the basis that ‘the Charter of the United Nations does not impose the choice of a particular model for the implementation of resolutions [of] the Security Council under Chapter VII [...], since they are to be given effect in accordance with the procedure applicable in that respect in the domestic legal order of each Member [...]‘ (at para 298 [emphasis added]). Effectively the court disengages the domestic from the international measure. It claims: we have an international obligation, but we have freedom to comply with that obligation in the fashion that our domestic law prescribes. We are reviewing here the manner in which we complied (and find it lacking). This softens the dualist argument considerably.

There would be no problem with the ECJ’s approach, if the court had taken into consideration that the international obligation imposed under 1267 is one of result, as it were. The obligation is to freeze the assets of Kadi. If, in the end, Kadi’s assets are not frozen, for whatever reason under domestic law, the international obligation is breached. The CFI had previously clearly drawn that distinction in OMPI (at paras 100-102). There it said that unlike the 1267 regime, which imposed the obligation to take measures against specific persons designated by the UN, the 1373 regime (which was being discussed in that case) imposed an obligation to take measures against a category of persons, who were however not individually designated. Thus, the 1373 regime allows the Member States discretion as to how to comply (ie discretion as to whom to designate). On the contrary the 1267 regime allows none. In circumstances when Member States retain a measure of discretion as to compliance, the domestic court can review the exercise of that discretion under domestic law. When there is no discretion, there is no such possibility: review of the domestic measure means ‘review’ of the international measure at the same time.

The ECJ in Kadi obliterated that distinction between international obligations allowing for no discretion as to the manner of compliance, and those allowing some. As such, it was able to ‘separate’ the domestic from the international sphere and claim that, effectively, the EC Member States have still (after annulment) the possibility to comply with the international obligation in a manner compliant with EC primary law. That is highly doubtful. What if Kadi was allowed to contest his designation before a court (that is what EC primary law requires) and convince it that he should not have been listed? How then will compliance with the obligation to blacklist Kadi under the 1267 regime be forthcoming?

The problem is exemplified further in A, K, M, Q & G. The Court of Appeal, faced with challenges to measures implementing both the 1373 and the 1267 regimes, draws a distinction between the two that is similar to the one drawn by the CFI in OMPI: challenges to designations under the former regime are permitted, because the designation is made independently by the State and can be reviewed by the court. Challenges under the latter however are not possible, because the designation is automatic as a result of a 1267 listing (at paras 107-110); still the court immediately obliterates this distinction by claiming that if someone can challenge a measure implementing the 1373 regime through judicial review, then ‘it would [...] be very strange if he could not do so in the case of’ a measure implementing the 1267 regime. The court thus allows review of the AQO to go ahead. In the course of that review (paras 119-21) it finds the order lawful, G (the claimant) however being entitled to merits-based review of his designation: the outcome of that review will determine if the State is bound to pursue delisting.

But, as Hay demonstrates, this merits-based review that A, K, M, Q & G read in the domestic implanting act is not always available, nor is it guaranteed to lead to delisting by the UN Sanctions Committee. As such, the AQO is found, in the instance, to have removed-without parliamentary permission under the UN Act 1946-a fundamental right. In effect, the disengagement from the Security Council measure that took place in A, K, M, Q & G, but was then mitigated by allowing the implementing measure to stand on the basis of a rather imaginative interpretative fine-tuning of the Order, was adopted by the High Court in Hay and carried through to its logical conclusion: the AQO stands because it allows a challenge to the designation and the imposition of an obligation to pursue delisting. But when such challenge is impossible, and when the obligation to pursue delisting would be illusory, then the AQO has to be quashed. And the UK is forced in breach of its obligations under the Security Council Resolution and the Charter.

Unlike the ECJ however, the High Court in Hay is correct when it claims (at para 46) that it is still open to the UK to comply with its international obligation to freeze the assets of Hay: it is, if the Parliament passes legislation which allows the Government to remove the fundamental right of access to a court. This is possible under UK law. It is impossible under primary EC law (and under most constitutions of most States).

IV. Concluding Remarks

Domestic courts, no doubt emboldened by the stance of the ECJ in Kadi, have stepped up their resistance to UN sanctions under the 1267 regime. The draconian effects of the regime and the severe fundamental rights issues raised by it are now coming before domestic courts in different ways: either through direct challenges, as in the cases discussed above, or as a defence on the part of the Government, as in Abdelrazik (discussed here). It is questionable whether blaming the courts of dualism adequately explains their position. It seems that courts are able to claim to be reviewing the domestic acts while not affecting the Member States’ international obligations under the Charter, because they consider that there is enough ‘space’ for the State to comply with the international obligation while still complying with domestic law.

There is one thing that is for sure: domestic courts, in one way or another, are forcing the Member States to breach their obligations under the Charter, and at the same time they are sending a clear message to the Council to reconsider sanctions regimes with significant fundamental rights implications, such as that under 1267. A situation whereby domestic courts will constantly-if indirectly-challenge Security Council decisions is obviously not viable in the long term; a modus vivendi will have to be found. Domestic courts are setting out one of the requirements of a future stable relationship (since State Executives did not): adequate protection of fundamental rights in the imposition of severe restrictions on individuals.

Antonios Tzanakopoulos is a DPhil Candidate at St Anne’s College, Oxford. In 2005, he was research assistant to Professor Giorgio Gaja, the International Law Commission’s Special Rapporteur on the Responsibility of International Organizations. His Oxford thesis is on the responsibility of the United Nations for wrongful non-forcible measures by the Security Council. Many thanks are due to Dapo Akande, Gleider Hernández & Devika Hovell. The usual disclaimer applies.

I. Introduction

Municipal and regional courts are increasingly engaged by individuals and legal entities in questions relating to UN Security Council measures adopted under Article 41 of the Charter. Most prominent among these are the ‘targeted sanctions’ imposed by Security Council Resolutions (SCR) 1267 (1999) seq, which provide for asset freezes, travel bans and arms embargoes against persons listed by the Committee established pursuant to SCR 1267 (the 1267 Committee). Usually the relevant SCRs are attacked indirectly before the domestic court, the direct attack being on the domestic implementing measures. In the recent case of Abousfian Abdelrazik v The Minister of Foreign Affairs and the Attorney General of Canada (Federal Court of Canada; currently available here but also to be made available here shortly), the impugned conduct on the part of Canada which gave rise to a claim for the violation of Canadian constitutional rights began long before any listing by the 1267 Committee. The listing only served to complicate matters and to offer an excuse to Canada with respect to a pattern of conduct that pre-dated the listing. The facts provided the opportunity for the Canadian judge to express what has been on the mind of many with respect to the 1267 regime of ‘targeted sanctions’: if you happen to get listed, it is much like being Josef K in Franz Kafka’s The Trial. In this case though-and possibly for the first time-Josef K got an effective remedy.

The Canadian Federal Court held that Canada had violated the constitutional right of Mr Abdelrazik (a dual Sudanese and Canadian national) to enter Canada, even though he was subject to UN sanctions. The court interpreted the SCRs such that the travel ban and asset freeze imposed by the Security Council would not prevent Canada from assisting Mr Abdelrazik’s return to Canada. In so doing, the Canadian court effectively forced upon the Executive its own interpretation of Canada’s obligations under the UN Charter, and required that Canada comply with the court decision. The Court’s interpretation risks a breach by Canada of the SCR and the UN Charter,, should the Security Council interpret its own Resolution differently. The situation is not unlike the one forced upon the European Community and its Member-States following the ECJ’s decision in Kadi: either breach the obligation stemming from the Security Council decision (by removing Kadi’s asset freeze) or disobey the ECJ (by maintaining the freeze). In Abdelrazik, the Court was prepared to go a step further than the ECJ as it asserted that the sanctions regime imposed by SCRs 1267-1822 was unlawful under international human rights law. The case marks yet another step in a new era that sees domestic and regional courts asserting with confidence their (indirect) jurisdiction over UN sanctions regimes.

II. Factual Background

Abousfian Abdelrazik was jailed in Sudan in 1989 after the successful military coup of Omar Al-Bashir. In 1990 he managed to flee to Canada, where he was first granted refugee status and then Canadian citizenship. In March 2003, after some of his acquaintances had been charged or convicted for participating in terrorist attacks, Abdelrazik returned to Sudan, claiming he had been continuously harassed by the Canadian Security Intelligence Service (the CSIS) in the wake of the September 11 attacks (at [9]-[12]). Abdelrazik was detained in Sudan at the request of Canada (id at [66]-[91]) in 2003 and 2005-2006. He spent 11 and 9 months in detention without charge, during which time he was questioned by the CSIS, as well as allegedly tortured by Sudanese authorities. After each detention he undertook several attempts to return to Canada which were thwarted by the Canadian authorities, who seemed to be in no great rush to bring him home (id at [13]-[21]). In July 2006, Abdelrazik was designated as an Al-Qaida associate by US authorities and was subsequently listed by the 1267 Committee (id at [22]-[24]). The listing added another significant layer of complexity to his attempts to return to Canada, as he was now subjected to an asset freeze and a travel ban under the relevant Council Resolutions. Abdelrazik tried to get himself de-listed, but the 1267 Committee denied the request without giving reasons on 21 December 2007 (id at [27]-[29]).

On 29 April 2008, Abdelrazik, fearing that yet another stint in Sudanese detention was looming, sought safe haven in the Canadian Embassy in Khartoum, where he has been living ever since (id at [30]). His repeated attempts to secure a Canadian travel document and safe conduct to Canada were denied by the Canadian Government, despite the latter having expressed (and later reiterated) a commitment to see through his return. In the last instance the Canadian MFA denied Abdelrazik the issuance of the travel document-without giving any reasons-a mere 2 hours before his flight was scheduled to depart, on 3 April 2009 (see id. at [31]-[40]).

III. The Case before the Canadian Federal Court

Abdelrazik brought a case before the Federal Court claiming a violation of his right to return to Canada under the Canadian Charter of Rights and Freedoms (id at [42]). The Court had to decide whether Abdelrazik’s constitutional right to enter Canada had been violated, ie if it had been limited without this being demonstrably justified in a free and democratic society under the Canadian Charter (id at [61]). If this were the only issue at stake, the decision of the Federal Court would present limited interest for international lawyers, save perhaps with respect to the question whether a Security Council Resolution under Chapter VII of the UN Charter is adequate to establish a ‘demonstrably justified limitation’ to a fundamental right (cf eg Case C-84/95 Bosphorus [1996] ECR I-3953 at [21]-[26], in particular [26 in fine]).

However, the Canadian Government argued that it was not Canada, but rather the 1267 Committee that impeded Abdelrazik’s return, having made him subject of a global travel ban and asset freeze (id at [44] and [147]). As a result of this, neither Canada nor anyone within Canada could pay for or provide transportation for Abdelrazik (id at [45]-[46] and [122]-[123]). This was because no one could make available any funds or economic resources for his benefit directly or indirectly (SCR 1822 [2008] at [1(a)]); and further because no one could facilitate his transit through other States’ territories, which includes their airspace, in order to get him back to Canada (id at [1(b)], as interpreted by the Canadian Government in Abdelrazik at [122]-[123]; [147]). If any of these were to happen, Canada would be in breach of its international obligations under the relevant Resolution and Article 25 of the UN Charter.

Mr Justice Zinn was not persuaded by the arguments of the Canadian Government. He found that Canada had violated Abdelrazik’s right to enter Canada under the Canadian Charter (Abdelrazik at [156]), and that the latter was entitled to an effective remedy for the breach (id at [157]). He proceeded to determine that the effective remedy is that Canada must provide an emergency passport to Abdelrazik, as well as the airfare or additional airfare required for him to return to Canada (id at [160]), and an escort to ensure Abdelrazik’s unimpeded return (id at [166]). Finally, Mr Justice Zinn required that Abdelrazik present himself before the Court, so that it be satisfied of his return to Canada, retaining jurisdiction over the case until it is so satisfied (id at [167]-[168]).

IV. The Court’s Engagement with International Law

In the course of delivering its judgment, and despite dealing exclusively with a claim under domestic law, the court engages with international law, and in particular with the 1267 sanctions regime, on a number of levels. These are discussed in turn.

a. Issues of Attribution

Canada put forward a claim that it was not itself, but rather the UN (acting through the Security Council, acting in turn through the 1267 Committee) that impeded Abdelrazik’s return to Canada. Implicit in this claim is the argument that acts of Canadian State organs in implementation of binding Security Council decisions are not attributable to Canada (as they would be under Article 4 of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts [ARSIWA]), but to the United Nations (see Abdelrazik at [3]; [44]; [147]). But according to the ILC, acts of a State organ that is not fully seconded to an international organization (as when the State organ is implementing a binding IO decision) are only attributable to the Organization if the latter effectively controls them (see here with further references). For the Canadian argument to stand, one would have to accept that the acts of the organ of a State are attributable to an international organization when the State organs are acting under the international organization’s effective normative rather than effective factual control.

It seems however that the ILC rejected such an approach in drawing up its Draft Articles on the Responsibility of International Organizations (DARIO) (see Article 5 DARIO and the ILC Report 2004 at 111[3]-[4] and 113[7]). Also, both the European Court of Human Rights (ECtHR) and (implicitly) the European Court of Justice (ECJ) have considered that acts of Member-State organs are attributable to the Member-States even if they are in implementation of a strict international obligation imposed by an international organization (ie when the obligation leaves no margin of appreciation to the Member-State: see eg ECtHR Bosphorus at [153] and cf Case C-402/05 P Kadi ECR I-0000 at [281] respectively).

But even if effective normative control over the conduct of a State organ by an international organization were accepted as leading to attribution of such conduct to the international organization (which it is currently not, rightly or wrongly), this would still not help Canada. The latter would further need to show that attribution of conduct to one entity (eg an international organization) precludes attribution of the same conduct to another entity (eg a State), something which the ILC has refrained from asserting (see ILC Report 2004 at 101[4] and this blog here). Otherwise, it is perfectly possible that the same conduct is attributable to two different entities (eg under Articles 4 ARSIWA and 5 DARIO).

The Canadian judge does not engage with the (admittedly implicit, if anything) argument, save to note that the act of the Canadian Foreign Minister to deny a passport to Abdelrazik on 3 April 2009 is enough to defeat any claim by the Government that it did not deny Abdelrazik entry into the country (Abdelrazik at [148]). In that he can be seen as applying Article 4 ARSIWA. Canada is finally found to have ‘engaged in a course of conduct and specific acts that constitute a breach of [Abdelrazik's] right to enter Canada’ (id at [156]).

b. Interpretation of Security Council Resolutions

As addressees of Security Council Resolutions, States must be expected to interpret these Resolutions in order to apply and implement them. In many occasions the interpretation will be undertaken by the Executive (eg Swedish authorities continued to make welfare payments to listed individuals under the original regime of SCR 1267 [1999], interpreting these as not falling within the ambit of the Resolution, even before the exceptions adopted by SCR 1452 [2002]), but it may well be undertaken by a domestic court (eg the Irish High Court interpreted SCR 820 [1993] as not having intended to penalize, deter, or sanction those peoples or States not having contributed to the tragic events in Former Yugoslavia, and dismissed a Sanctions Committee decision that found a certain aircraft to fall within the terms of the Resolution: Bosphorus Hava v Minister for Transport [1994] 2 ILRM 551 at 557-8).

In the present case, the Canadian judge has to engage, and indeed engages with the interpretation of SCR 1822 [2008] to a considerable extent, as that SCR contains exceptions to the travel ban. This is because Canada presents the Resolution as prohibiting it from allowing Abdelrazik into the country.

In order to counter the Canadian argument that Canada cannot facilitate Abdelrazik’s travel to Canada, lest it be found in breach of SCR 1822, Mr Justice Zinn observes that 1822 (at [1(b)]) explicitly does not oblige a State to deny entry into its territories of its own nationals. Canada’s claim in turn is that in order for Abdelrazik to make it to the border (and be allowed entry), he must transit through the territory (which includes airspace) of other States. Since SCR 1822 also prohibits transit through territory, Canada would be facilitating the breach of the Resolution (Abdelrazik at [122]-[123]). The Canadian judge goes on to interpret the term ‘territory’ in SCR 1822, and finds that it does not include airspace. In doing this he relies, inter alia, on Canada’s own apparent interpretation of the provision in its submissions to the 1267 Committee on Canadian implementation of the relevant obligations. The submissions only deal with entry into and not transit through Canada. In effect, Mr Justice Zinn applies the principle of non venire contra factum proprium (‘it is not allowed to act contrary to one’s own previous conduct’), not allowing Canada to put forward two conflicting interpretations of the same provision (id at [125]-[126]). He further observes that Canada’s interpretation would lead to the following ‘non-sensical’ result: a listed national would be allowed entry if he happened to be standing on the border, but would not be allowed to travel to that border, as she would have to transit through the territory or airspace of other States. The judge rejects such an interpretation, in effect applying the principle of effectiveness (ut res magis valeat quam pereat): the Security Council could not have intended an absurd outcome (id at [127]). As such, the travel ban is not an impediment to Abdelrazik’s return (id at [128]).

Further, the judge anticipates that Canada will object to his order that the Government pay the airfare for Abdelrazik’s return home on the grounds that this will be a violation of Canada’s obligation to respect the asset freeze imposed under SCR 1822. He states that an exception to the travel ban and asset freeze is provided when necessary for the ‘fulfillment of a judicial process’ (id at [162]). This exception is indeed provided by SCR 1822 (at [1(b)]), but only with respect to the travel ban, not the asset freeze. It is unclear whether the judge is interpreting the exception to the travel ban to include an exception to the asset freeze when necessary, or whether he is simply misreading the Council decision.

Be that as it may, what is most interesting is the court’s interpretation of the term ‘judicial process’. Mr Justice Zinn, citing Canadian precedent, gives the term a broad meaning, so as to include measures of execution ordered by the court. As such he finds that a court order to the effect that Abdelrazik must be brought back to Canada cannot cause the Government to breach its international obligations under the Resolution: Canadian assistance to Abdelrazik would not constitute a violation, as it is ‘in fulfillment of the judicial process’ (Abdelrazik at [163]-[165]). Interestingly, while the Canadian judge relies primarily on Canadian case law to reach this interpretation, his finding accords with the position taken by the ECtHR (eg in Hornsby at [40]), that execution of a judgment is an ‘integral part of the trial’ (discussing the right to a fair trial under Article 6 of the European Convention on Human Rights). Even more interestingly, he confirms his broad interpretation of ‘judicial process’ by resorting to the French language version of SCR 1822, which refers to ‘aboutissement d’une procédure judiciaire’: he finds the plain meaning of ‘aboutissement’ to be ‘outcome, result’, which includes measures required to be taken in execution of a court order (Abdelrazik at [164]; cf Article 33[4] of the 1969 Vienna Convention on the Law of Treaties and LaGrand [2001] ICJ Rep 466 at 502 [101]).

c. Effective Remedy

The interpretation by Mr Justice Zinn of the provisions of SCR 1822 allows him to overcome two distinct hurdles: in the first place, the interpretation of the first exception to the travel ban allows him to defeat the Canadian argument that SCR 1822 requires Canada to abstain from facilitating Abdelrazik’s return. As such, Canada is found in breach of the Canadian Charter. The interpretation of the second exception to the travel ban (in combination with the interpretation of the first) allows the judge to order what he considers to be an effective remedy for the breach: namely to order Canada to facilitate Abdelrazik’s return, even through the provision of financial aid (for the airfare).

Of course neither interpretation is determinative of the position in international law. For purposes of international law, the interpretation of a domestic court is no more determinative than the interpretation of a domestic Executive. They both constitute an exercise in auto-interpretation, which is not binding on the UN and its Security Council, or on any other State. The 1267 Committee could thus find that either interpretation (or both) amounts to a breach of SCR 1822 on the part of Canada.

V. The Underlying Rationale: International Illegality of the 1267 Regime

By ordering the Canada to facilitate Abdelrazik’s return, the Canadian court is in effect ‘pushing Canada into a corner’: the Executive must now either comply with what it believes is the correct interpretation of SCR 1822 and disobey its own court; or it must comply with its domestic court’s decision and risk being found in breach of SCR 1822 and thus Article 25 of the UN Charter. But the Canadian judge does not stop there. In execution of his order, and so as to ensure that the remedy is indeed effective, he orders that Abdelrazik attend before the Canadian court at a specified time and date, and reserves the Court’s right to oversee implementation and issue further orders in this respect (Abdelrazik at [167]-[168]). Mr Justice Zinn does not even give Canada a leeway similar to the one the ECJ gave the Community and its Member-States in Kadi (at [373]-[376]). Admittedly, this may have to do with the fact that the judge believes his order not to be in violation of the relevant SCR-but his guess is at least as good as the Government’s in this respect. In any event, one cannot fail to notice the increasing confidence and robustness of domestic courts when faced-one way or another-with the 1267 regime. What can be said to account for the transformation of the considerable deference in the CFI’s Kadi and the Swiss Federal Tribunal’s Nada (ILDC 461 [CH 2007]), as well as the Turkish Council of State‘s Al-Qadi (unpublished in English), to the robust responses in the ECJ’s Kadi and in the Canadian court’s present decision?

The reason why the Canadian judge is willing to take chances, interpreting the relevant SCR and ordering an effective remedy potentially in breach of the SCR (even though he ‘interprets it out’ of the equation), is expressed quite clearly in the section of the judgment dealing with the applicable law. Under the heading ‘Canada’s International Obligations’, Mr Justice Zinn cites Articles 24-25 and 41 of the UN Charter (Abdelrazik at [45]-[46]) and then goes on to describe the 1267 sanctions regime.

He recounts the familiar shortcomings ascribed to the 1267 listing and de-listing procedures: there is no direct hearing, not even in limited form; no independence and impartiality in the consideration of petitions, where the Committee acts as judex in sua propria causa; there are no reasons provided, not even in narrative form, for some of the individuals listed and despite relevant requirements in SCR 1822; finally, the process requires the petitioner to prove a negative (that she is not associated with Al-Qaida), something as easily achievable as proving that ‘fairies and goblins do not exist’ (id at [51]-[53]).

Mr Justice Zinn is unreserved in his qualification of the 1267 regime: he considers it as ‘a denial of basic legal remedies’ (Abdelrazik at [51]) and as ‘a situation, for a listed person, not unlike that of Josef K in Kafka’s The Trial, who awakens one morning and, for reasons never revealed to him or the reader, is arrested and prosecuted for an unspecified crime’ (id at [53]). The literary reference is no doubt powerful and on target-this is what many considered the 1267 regime to be, but Mr Justice Zinn is the first to boldly assert it in writing. As a result, the Canadian judge seems to feel compelled to assert his power to decide the case and order an effective remedy: ‘in light of the shortcomings’, he says, ‘it is disingenuous of [Canada] to submit, as [it] did, that if [Abdelrazik] is wrongly listed the remedy is for [him] to apply to the 1267 Committee for de-listing and not to engage this Court’ (id).

In essence, the very same criticism of the 1267 regime has already been leveled by a Court-namely by the ECJ in Kadi (at [322]-[325]). What is different, and particularly significant in the instance, is that Mr Justice Zinn levels the same criticism but on the basis of international law: the 1267 regime is found to be ‘untenable under the principles of international human rights’ (Abdelrazik at [51]) and to flout the presumption of innocence, ‘a fundamental principle of Canadian and international justice’ (id at [53] [emphasis added]). Where the ECJ criticized the 1267 regime on the basis of fundamental rights under EC law, the Canadian court clearly drew the obvious parallel between domestic rights and international rights of the same content. In substance both the ECJ and the Canadian court claim the violation of a hard core of basic (domestic) rights with universal radiance, embodied in almost universally ratified international conventions and in the Universal Declaration (see further here at part V). This universal radiance is what justifies their reaction. But the Canadian court in the present case makes this parallelism between fundamental rights under domestic and international law explicit, where the ECJ seems to prefer a certain ‘splendid isolation’.

VI. Conclusion

The Abdelrazik case before the Canadian Federal Court is not primarily about the 1267 regime, but rather about Canada’s breach of one of its citizen’s fundamental rights which began occurring long before the 1267 Committee came into play. In the event, however, the decision of the Canadian Court boldly engages with the international legal issues raised by the involvement of the 1267 Committee, even if not always convincingly. And in the end it grants Abdelrazik-turned-Josef K his effective remedy.

Antonios Tzanakopoulos is a DPhil Candidate at St Anne’s College, Oxford. He has an LLM from New York University Law School. During the 57th session of the International Law Commission (2005), he was research assistant to Professor Giorgio Gaja, Special Rapporteur on the Responsibility of International Organizations. His Oxford thesis is on the responsibility of United Nations for wrongful non-forcible measures by the Security Council.

A recent article by White and MacLeod in the EJIL (EU Operations and Private Military Contractors: Issues of Corporate and Institutional Responsibility) discusses, in part, the attribution of conduct of Private Military and Security Companies (PMSCs) to an International Organization (IO) in the context of a peacekeeping operation (PKO). The authors take issue with Article 5 of the International Law Commission’s  (ILC) Draft Articles on the Responsibility of International Organizations (DARIO) and the high threshold of “effective control” that this provision requires for attribution of conduct to an IO. However, Article 5 DARIO is specifically adopted to deal with the attribution to an IO of the conduct of a military contingent belonging to a State, and does not apply in the case of attribution of PMSC conduct. It is Article 4 DARIO that applies in such a case. Paragraph 1 of that provision states that:

The conduct of an organ or agent of an international organization in the performance of functions of that organ or agent shall be considered as an act of that organization under international law whatever position the organ or agent holds in respect of the organization.

 This being the case, attribution of conduct by a PMSC hired by an IO to the IO is, ostensibly, automatic and thus much easier than attribution of PMSC conduct to a State. In the latter case one would have to argue basically either that the PMSC exercises elements of governmental authority or that it is directed or (effectively) controlled by that State (see the discussion here, here, here, and here). Could it in fact be so, and how can this difference be explained?

 Both States and international organizations are abstract (fictional) entities, which cannot of course act in the physical world. Rather, conduct always originates in individuals, i.e. natural persons. The ‘normative’ operation of attribution is thus required to bridge the gap between the physical actor and the subject of international law. In the law of State Responsibility, as codified in the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), the conduct of acting individuals is attributed to the State automatically when these individuals are connected to the State through an institutional or organic link (4 ARSIWA, cf 7 ARSIWA). Absent such an institutional or organic link, acts of individuals are only exceptionally attributed to the State when a control link can be established (8 ARSIWA).

 This simplified description of the basic avenues for attribution may disregard certain specific cases of attribution (such as those under 6 or 9 and 11 ARSIWA for example), but it sets out the fundamental distinction, which shall prove to be conceptually useful: if the acting entity is a State organ, the act is automatically attributable. Control over the conduct is not just presumed; it is irrelevant. If the acting entity is not an organ, then the only way in which the conduct can be attributed is on the basis of a showing that the specific conduct in question took place under the control of the State.

 Similar considerations apply to attribution of conduct to international organizations. If an IO organ is acting, attribution is automatic; if not, a control link must be established. While international organizations rarely act in the physical world (in most cases they will be rhetorical organizations, merely passing recommendations, or they will act on the normative level, imposing obligations on States to act), when they do in fact act, that is to say when they do undertake certain operations, they will rarely act through their ‘constitutional’ organs, i.e. the organs identified in the constitutive instrument. The Security Council cannot for example undertake peacekeeping itself; neither can the General Assembly. They both lack any operational capacity of the sort. Peacekeeping must be undertaken by armed forces, and the UN does not possess any.

It is mainly for this reason, namely because of the relative scarcity of IO organs with any operational capacity (or because of the rudimentary organic makeup of IOs), that the general rule of attribution of conduct to IOs does not solely refer to ‘organs’ of the IO, as is the case with the general rule of attribution to States. Rather, it also refers to ‘agents’ of the IO, a term given a special meaning by the ICJ and the ILC. According to the ILC (see here at 104 [2]), the term is to be understood-like the ICJ understands it-’in the most liberal sense’ (citing the Reparation for Injuries at 177). An agent thus is not necessarily an ‘official’ but ‘any person through whom [the organization] acts’ (see the ILC here at 106 [5], and also Reparation for Injuries at 177), i.e. there is no requirement of any official link in this case for automatic attribution to take place. Any conferral of power upon someone to act ‘on behalf’ of the organization would suffice to establish the requisite organic link.

 If this were all, it should be very easy to attribute the acts of a national armed forces contingent participating in a UN-commanded PKO to the UN: if anything, the organization is ‘acting through’ the national contingent, thereby making it its agent. Power to act ‘on behalf’ of the UN will have been granted through the relevant UN decision to establish the PKO, the Status of Forces Agreement, and even on a semantic level by the wearing of a UN ‘blue helmet’. This would mean then that all acts of the contingent, an agent of the UN, in the context of the PKO, are directly and automatically attributable to the UN.

 However, there is an element that causes substantial complication here, or at least the ILC thought so. The national contingent remains an organ of the lending (or home) State, and even more importantly that State retains some jurisdiction (thus: control) over the contingent (most prominently criminal jurisdiction and disciplinary powers). What blocks automatic attribution of its conduct to the IO in such a case is the operation of the general rule of (automatic) attribution in Article 4 ARSIWA: acts of the organ of a State are attributable to that State.

 To respond to this predicament, the ILC adopted Article 5 DARIO. In accordance with that provision, the conduct of an organ of a State that is placed at the disposal of an international organization-but is not fully seconded to it-is only attributable to the organization if the latter exercises ‘effective control’ over that conduct. Otherwise (one would logically assume) it is attributable to the lending State (automatically, as the conduct of its organ). It is to overcome this attribution to the State that effective control over the State organ must be shown to exist. This distinction seems to imply that one has to choose the entity to which the conduct is attributable, i.e. that it can either be the organization or the State, but not both. The European Court of Human Rights (ECtHR) obviously adopted such an approach in Behrami (though implicitly: at [144] and [151], distinguishing Bosphorus) and was much criticized for it.

 However, the ILC itself has not excluded the possibility of dual (or multiple) attribution of conduct to more than one State or international organization at a time (see its 2004 Report at 101 [4]). Why this shouldn’t be the case for a national contingent constituting an ‘agent’ of an international organization and an organ of the lending State at the same time is not entirely clear. But the more troublesome aspect of this provision is that it introduces the perennial debate over the threshold of factual control over an entity for purposes of attribution. It seems that the debate over that threshold will not die down however many times the ICJ confirms it as being that of ‘effective’ control (see Nicaragua at 65 [115 in fine] and Bosnian Genocide at [399]-[407]).  

 The near impossibility of ever proving such a high threshold of control is notorious, whether it is with respect to control of States over private individuals under 8 ARSIWA, or with respect to control of international organizations over ‘not fully seconded State organs’. It has been demonstrated countless times: in the jurisprudence of the ICJ (see Nicaragua at 62-65 [109]-[116] and Bosnian Genocide at [398]-[415]), in Tadić before the ICTY Appeals Chamber, which famously proclaimed the threshold to lie at ‘overall’ control (see here at [131] and [137]), in academic commentary, e.g. in attempts to establish attribution of PMSC conduct to States (see Lehnardt in idem & Chesterman [eds] From Mercenaries to Market [2007] 139; and Hoppe [2008] 19 EJIL 989), and finally in the unfortunate (in this respect at least) Behrami decision of the ECtHR, which did not at all manage to show the requisite level of control but rather re-positioned the threshold to that of ‘ultimate authority and control’ (see for comment Larsen [2008] 19 EJIL 509).

 In their discussion of attribution of PMSC conduct to an international organization in the context of a peacekeeping operation, White and MacLeod struggled with the need of proving that the organization exercises effective control over the PMSC under Article 5 DARIO and advocated a lowering of the threshold of control as well, in-line with UN practice and along the lines of Tadić.

However, when an international organization employs a PMSC in the context of a peacekeeping operation, Article 5 DARIO is not called into operation. Since the PMSC is not an organ of any State, its actions are in the first instance attributable to no one. As such, there is no need to show any sort of control over the conduct to overcome some prima facie attribution, as is the case with the organ of a State employed by an IO.

 Indeed, given that an ‘agent’ is ‘someone through whom the organization acts’, the mere existence of some sort of agreement between the PMSC and the IO should suffice for the establishment of the agency link. It is significant, if only at a semantic level, that recent academic commentary on the possibility of the UN employing PMSCs for PKOs has used the terms ‘agency agreement’ to describe the link between the IO and PMSCs (Patterson [2008] 13 JCSL 215 at 216, 221, 230 [emphasis added]). If this is in fact the case, the PMSC becomes an agent of the international organization without the added complication of anyone else retaining any control over it. Article 5 DARIO does not come into play, and attribution of PMSC conduct within the PKO context to the international organization is rather automatic under Article 4 DARIO. There is no requirement to show that the organization does in fact control effectively each and every instance of conduct.

 This latter statement is important indeed. Attribution of conduct on the basis of an institutional or organic link encompasses all conduct of the organ or agent acting in official capacity (even if in excess of authority or contravention of instructions, unless in purely private capacity). This means that there is almost no need to look into the specific conduct-any conduct is automatically attributable (with the very rare exception of purely private conduct). Conversely, attribution of conduct on the basis of a control link, because exceptional, may take place only on a case-by-case basis, enquiring into the level of control over each and every specific instance.

 In order to attribute the conduct of PMSCs to IOs employing them in the context of PKOs, the mere showing of a contractual link will suffice for the qualification of the PMSC as an IO agent. The attribution of the conduct of the agent (the PMSC) to the IO will then be automatic. There will be no need to show factual control of the IO over PMSC conduct, which in any case would be well-nigh impossible if the threshold is effective control. In this instance, at least, it appears that PMSC conduct is easier (than usual) to attribute to an entity clearly bound by international law.

 There is a caveat here, however. In its 2004 Report (at 109 [13]) the ILC notes that private conduct under the direction or control of the IO will be attributable to the IO under 4 DARIO as the conduct of an agent; if a contractual link suffices to make a person or entity an IO agent, a fortiori effective control should turn them into an agent’ as well. In this way the Commission explains why there is no provision in DARIO corresponding to 8 ARSIWA: because it is simply not needed. What this does, however, is to spoil the neat scheme presented above that goes organic link-automatic attribution of all conduct; control link-ad hoc attribution of specific conduct. Under 4 DARIO, a person or entity may become an ‘agent’ also when the IO exercises effective control over them, in the absence of any contractual link. But then one would have to enquire into the specific conduct to determine whether it was directed or controlled. And it will only be that specific directed or controlled conduct that is attributable. How is thus one to know-in the case of an IO agent-whether all conduct is attributable on the basis of the organic link or only specific conduct may be attributable on the basis of a control link?

 Presumably the ILC offers guidance in the following passage: ‘in exceptional cases, a person or entity would be considered, for the purpose of attribution of conduct, as entrusted with functions of the organization, even if this was not in accordance with the rules of the organization‘ (see here at 109 [13] [emphasis added]). When the person or entity is someone to whom the organization has entrusted functions in accordance with its rules, the link is organic and attribution automatic. If, on the other hand, a person or entity seems to be someone through whom the organization is acting but there has been no overt delegation of functions (even through a contractual arrangement), then specific private conduct may be attributable if the organization directs or controls it. This is considered to be a de facto delegation of functions which may be presumed to be in violation of the rules of the organization. This distinction that must be drawn when applying 4 DARIO opens the door to a whole new set of issues that are not susceptible to abstract answers: what is in accordance with the IO rules and what is not? Would the employment of a PMSC constitute a delegation of functions allowed by the IO rules? If yes, then we’re back to automatic attribution, but if not, we’re exactly in the same situation as when trying to attribute under 8 ARSIWA or 5 DARIO.

 Still it is argued that in most cases, the employment of a PMSC in the context of a PKO, if done formally through a decision of the competent organs of the IO and the conclusion of an agreement between the IO and the PMSC, will establish an organic link and lead to automatic attribution. The question thus remains why attribution of PMSC conduct to IOs should be easier than it is to States. The answer could lie in the fact that organizations are much less comprehensively structured than States. States have a multitude of organs through which they act, and in principle become automatically responsible only for the conduct of these organs belonging to their official structure. They do so not because they control these organs, but because they explicitly selected them in order to act through them with a prospect of permanence. There are very few such organs of IOs, not to mention that they have not been selected by the organization but rather by the States adopting the constituent instrument. The organization will thus need to act through other entities as well (if not mainly), particularly given that few constituent IO organs (if any) have any operational capacity. As such, it makes sense to extend automatic attribution to those entities the organization entrusts with functions and thus explicitly selects to act through, even without the prospect of permanence. Where the organization could not have used any of its organs, it used the PMSC. Where the State could have used its army, it used the PMSC. If it seems that this does nothing but offer States a much larger possibility for evasion of attribution, it is because it is true. But this is arguably a problem and an unfortunate evolution of the law of attribution to States and of the parallel policy preference for privatization. One should not be hasty to extend such a problematic situation to the law of attribution to IOs, which seems to be able to avoid the pitfall in principle.

 One final note; something often forgotten is that attribution of conduct does not necessarily mean engagement of responsibility. However trite, this fact-when ignored-can cause significant confusion. Whether the conduct will constitute a breach of international law depends on the entity to which it will be attributed. E.g. certain conduct attributable to the UN may not be in breach of UN obligations under the Charter or general international law; but if the same conduct is attributable to a State it may be in breach of the State’s international obligations under a specific treaty. Even more importantly, even if conduct is attributable to two or more subjects of international law simultaneously (e.g. if the conduct of a contingent contributed to a PKO is simultaneously attributable to both the IO [4 DARIO] and the lending State [4 ARSIWA]), this does not necessarily mean that the responsibility of both subjects will be engaged so as to lead to joint and several responsibility: what may constitute a breach for the State may not constitute a breach for the IO and vice versa. This will depend on the primary obligations incumbent on the specific subject.

 Further, when there is an international obligation on the State or the international organization to act to prevent certain (private) conduct, it is the omission to act to prevent the conduct that is attributable to the State or the organization (as a State or organization organ’s failure to act) and in breach of the international obligation, rather than the conduct in question itself. In such a case attribution is often self-evident, but a required step nonetheless.