Matthew Happold is Professor of Public International Law at the University of Luxembourg.
I greatly enjoyed Dr Tzanakopoulos’ Disobeying the Security Council. The book displays a richness of argument backed by a depth of research. At point after point, I found myself in agreement with the author. Yet, sympathetic though I am to his approach, I was unable to follow his argument to the end.
In the first two parts of Disobeying the Security Council, Dr Tzanakopoulos examines how the imposition of non-forcible measures under Article 41 of the UN Charter can engage the international responsibility of the United Nations, and how – and by whom – such responsibility is determined. Some minor points aside, I agree with Dr Tzanakopoulos. Whatever the situation as regards the implementation of binding resolutions of the Security Council, it seems evident that their promulgation is attributable to the United Nations, of which the Council is one of the principal organs. And absent a few provocateurs, there seems general agreement that the Council’s powers are not unlimited. Rather, differences exist regarding what the extent of those powers is and who is entitled to determine whether the Council stepped beyond them. The International Court of Justice seems unable – and has definitely shown itself unwilling – to judicially review Council decisions. Other courts and tribunals apply their own law, whether that is national law or that mandated by their constituent treaty, so in most cases they are not concerned with whether a particular Council resolution is in breach of the United Nations Charter or of general international law. Indeed, it is usually not the relevant Council resolution that they are reviewing but the act implementing it within their own legal system. Moreover, only a certain limited class of questions concerning the legal effect of Council resolutions tend to come before national courts, that is, those where resolutions directly affect individual rights. Hence the concentration of cases on the ‘blacklisting’ of individuals and the freezing of their assets under the sanctions regimes established by Council resolutions 1267 and 1333.
Given this, one can only fall back on the general rule in international law: that States retain the power to auto-determine the legality of measures issued by the Council. It is no more than stating the obvious that UN member States have an entitlement to interpret Security Council decisions. Interpretation must be undertaken, at least in the first instance, by member States, because it is they who implement Council resolutions and they must ascertain what they are obliged to do in order to do it. Indeed, to a large extent the distinction between interpretation and determination of one’s legal obligations is a distinction without practical difference. For example, the conclusion of the Organization of the Islamic Conference that paragraph 6 of Security Council resolution 713 (which imposed an arms embargo on the former Yugoslavia) did not ‘legally’ apply to Bosnia-Herzegovina was premised on the view that to interpret the embargo as applicable to Bosnia would render the resolution ultra vires because the Council could not legally prevent a State from seeking to exercise its ‘inherent’ right of self-defence (not un-coincidentally this was the argument put by Bosnia before the ICJ).
However, in the final part of the book Dr Tzanakopoulos argues that when States disobey the Security Council what they are engaging in are countermeasures in response to illegal conduct by the Council. Here the hinge on which matters seem to pivot is Article 25 of the UN Charter, which Dr Tzanokapoulos interprets are making any disobedience of binding Council decisions illegal. Hence, the only way such an illegality can be justified is as a response to another prior illegality, the resolution itself. I confess to having problems with this characterisation. Read the rest of this entry…