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A Comment on Disobeying the Security Council

Published on May 26, 2011        Author: 

Antonios Tzanakopoulos has written a powerful book in Disobeying the Security Council. It is a rich – at times very rich – piece of scholarship, covering a range of complex issues. The book makes two important arguments (and at that ones I agree with!). First (a point of course already made before), that it is states themselves which are the ultimate judges of the legality of the Security Council’s decisions. In a decentralized system lacking any compulsory and systematic means of judicial control and dispute resolution, self-help may turn out to be the only game in town. It is by choosing to openly disobey (or more frequently, very narrowly interpret) decisions of the Security Council that they regard as unlawful that states act as a check against the Security Council abusing its powers. Second (and relatedly), that much of the scholarly discussion regarding the legality of Security Council action tends to adopt a domestic public law mindset, whether quite consciously or at times uncritically, a mindset which is inappropriate when some of the underpinnings of domestic public law, such as compulsory adjudication, are lacking

In order to advance these arguments, and to offer a solution that would both provide a meaningful check on the UNSC’s powers and yet not suffer from the perils of domestic law-thinking, Antonios makes several crucial conceptual and doctrinal moves. It is with some of these that I have to part ways. Most importantly, he changes the focus from the validity of the decisions of the UNSC to the UN’s responsibility for illegal UNSC decisions as internationally wrongful acts, measured against the law binding on the organization. As always in the decentralized international system, states have the right of auto-determination, i.e. of deciding for themselves that the organization is responsible, and then have the right to take countermeasures against it, including disobeying its decisions and refusing to pay their allocated dues to it. In doing so, of course, states as always assume the risk that they might be wrong in their own assessment, and if they are they must suffer the consequences.

In essence, Antonios’ approach is very much one of classical international law, relying on established legal institutions and methods of this decentralized system such as responsibility and countermeasures, and avoiding the pitfalls of constitutionalization or domestic law-thinking generally. This critical effort is certainly a laudable one – but whether it ultimately succeeds is not as clear.

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Debating Disobeying the Security Council – is it a matter of ‘a rose by any other name would smell as sweet’?

Published on May 25, 2011        Author: 

Erika de Wet is Co-Director and Professor of International Law, Institute for International and Comparative Law in Africa, University of Pretoria (South Africa); Professor of International Constitutional Law, University of Amsterdam (The Netherlands). The author’s critique is based on views developed in Chapters 4 and 10 of her monograph entitled The Chapter VII Powers of the United Nations Security Council (Hart Publishing, 2004).

The book by Antonions Tzanakopoulos examines how and by whom the responsibility of the United Nations for unlawful Security Council sanctions can be determined. Its central thesis is that States can respond to unlawful sanctions imposed by the Security Council by disobeying the Security Council’s command in a manner that constitutes countermeasures to the Security Council’s unlawful action. The book is very well written, creative and  intellectually challenging in the way it attempts to align the law of State responsibility with the Law of the United Nations Charter.

However, like with other theories developed in an attempt to curb illegal action by the United Nations Security Council, closer scrutiny reveals that the arguments presented are not water-tight and may require further motivation. The subsequent paragraphs will focus on two such issues. The first concerns the reason why Antonios resorts to the concept of countermeasures in the first place, whereas the second relates to the analogy that he draws between Security Council sanctions and countermeasures.

A cornerstone of Antonios’ argument centres around his submission (pp 164-166) that all member States remain bound to decisions under article 25 of the United Nations Charter, which determines that ‘[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter’. This article remains controversial due to the question whether the phrase ‘in accordance with the present Charter’ refers only to the member States or the organisation as well. If it referred only to the member States they would be obliged to carry out decisions of the Security Council under all circumstances. If, however, the phrase referred to the organisation as well, it is arguable that the member States would only be obliged to carry out those decisions that were adopted in accordance with the Charter, i.e. intra vires.

Antonios does not accept that the controversial phrase ‘in accordance with the present Charter’ should be interpreted as meaning that member States are only bound by those Security Council decisions that remain within the competencies of the Council (i.e. intra vires decisions). He rejects this position on the basis of two arguments. First, he claims (with rather cursory arguments) that the ambivalence surrounding the meaning of this phrase cannot be resolved through interpretation. His second and perhaps more intriguing argument is that no constitutional system can operate unless there is some final instance that promulgates acts with which all the addressees must comply, irrespective of their lawfulness. In the subsequent paragraph he acknowledges that the term constitutionalization is problematic (without attempting to suggest a definition of his own) and doubts whether the Charter was meant to be a constitution. Even so, he seems to adhere to the argument that the Charter system, in order to operate, requires States to remain bound to all Security Council decisions, regardless of their legality (until such a time as they are revoked by the Security Council itself).

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An Overview of Disobeying the Security Council

Published on May 24, 2011        Author: 

I. Introduction

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).

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The International Law Commission Embarks on the Second Reading of Draft Articles on the Responsibility of International Organizations

Published on April 30, 2011        Author: 

Jean d’Aspremont and Christiane Ahlborn  are both at the Amsterdam Centre for International Law

On 26 April 2011 the UN International Law Commission (hereafter ILC) began its second reading of the draft Articles on the Responsibility of International Organizations for Internationally Wrongful Acts (hereafter DARIO). It is well-known that the ILC has been continuously confronted with a lack of clear practice since it began its study on the law of the responsibility of international organizations in 2002. As a result thereof, the Special Rapporteur has often been – mistakenly in our view – accused of yielding to the temptation to proceed on the basis of analogies with the 2001 Articles on the Responsibility of States for International Wrongful Act (hereafter ASR) [see for example, previous EJIL:Talk! Commentary here]. International organizations in particular have been among the most virulent protesters, as they have continuously emphasized the necessity to resist any overgeneralization informed by the ASR and the need to recognize the institutional diversity of the international society. Navigating amid these criticisms, the ILC, under the wise guidance of its Special Rapporteur, has nonetheless managed to adopt a first set of draft articles on first reading in 2009 which strikes a reasonably astute balance between institutional heterogeneity and the need for overarching secondary rules governing the responsibility of all institutional subjects of international law.

The DARIO and the ASR

It is our impression that the DARIO, as adopted on first reading, only partly mirror the ASR; in fact, the differences between the DARIO and ASR are too often underestimated.  The ILC did not only omit or add specific provisions from and to the DARIO (examples are the missing Article 3 of the ASR and the new Articles 16 and 60 of the DARIO, respectively) but also included more subtle changes in the text and structure of the DARIO. In light of the continuing critique during the drafting process, it is interesting – if not paradoxical – that the comments made by international organizations and States in reaction to the whole set of DARIO on first reading especially zero in on those draft provisions that do not or only party resemble the ASR(see here). Read the rest of this entry…

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Misadventures in Subjecthood

Published on September 29, 2010        Author: 

Professor José Alvarez is Herbert and Rose Rubin Professor of International Law at New York University School of Law and Special Adviser on Public International Law, Office of the Prosecutor, International Criminal Court. He is the immediate past President of the American Society of International Law

Editor’s Note: This piece is cross posted from http://opiniojuris.org/ where Professor Alvarez is guest blogging this week. We are delighted to have Professor Alvarez on EJIL:Talk! and would recommend that readers view his other posts on Opinio Juris

As a member of the U.S. State Department’s Advisory Committee on International Law, I was asked to give my reactions to the International Law Commission’s release, on first reading, of a set of proposed articles on the Responsibility of International Organizations. (For the ILC’s report containing these draft articles and commentaries, see here). I was probably asked to undertake this task given my prior interest in these matters (see my 2006 speech to the Canadian Council of International Law, “International Organizations: Accountability or Responsibility?”).

As my memorandum produced for the Advisory Committee meeting on June 21st indicates (see my memo on the “ILC’s Draft Articles on the Responsibility of International Organizations”), time has not ameliorated my concerns about the direction of the ILC’s work. On the contrary the newly completed set of 66 articles heightens my worries that, on this occasion, the ILC’s experts have opted to alter their normal ratio of codification vs. progressive development. In this case, the latter has vastly overtaken the former. In my view, the ILC’s latest effort is likely to encounter considerable resistance where it matters the most, among states. (Of course, my memo reflects my own views and do not necessarily reflect those of the rest of the Advisory Committee or of the U.S. State Department.)

There is scarcely any doubt that the accountability and responsibility of international organizations (henceforth “IOs”) is among the hottest topics in public international law. Scandals involving the UN’s oil-for-food, the actions of UN peacekeepers, the sexual harassment of UN employees, and the (in) actions of the UN Security Council in too many sites of atrocity to mention have kept the issue on the front burner for some time. Accountability concerns also help to explain the proliferation of inspection panels in international financial institutions and have given rise to a number of high profile cases before European courts. Political scientists and legal scholars have repeatedly turned to the question, proposing a variety of solutions, extending from political “checks and balances” among institutional organs to more familiar approaches to control or supervise the discretion of agents drawn from principal-agent theory. (See, e.g., Ruth W. Grant and Robert O. Keohane, “Accountability and Abuses of Power in World Politics,” 99 Am,. Pol. Sc. Rev. 29 (Feb. 2005); Karen Alter, “Agents or Trustees?”)  From a legal standpoint, the difficulties of turning to courts – national or international – to impose liability on an IO such as the UN are familiar. National courts, including those in the United States, usually recognize the immunity of IOs under binding treaties, such as the UN Convention (which grants the UN absolute immunity) or domestic laws. Comparable immunities make it difficult for claimants, even IO employees victimized by their superiors’ sexual harassment, to secure a judicial remedy against IO officials – except within the internal mechanisms provided by the organizations themselves. (See, e.g., Mendaro v. World Bank, 717 F.2d 610 (D.C. Cir. 1983). But see August Reinisch, “The Immunity of International Organizations and the Jurisdiction of their Administrative Tribunals,” 7 Chinese J. In’tl L. 285 (2008) (noting a trend among a small number of national courts to withdraw immunity where needed to avoid a denial of justice).) International courts rarely even have jurisdiction to consider such questions since only states can be parties to contentious cases before the ICJ, and IOs are not even capable of joining instruments such as the European Convention on Human Rights. The rare example where an IO can be regularly sued in court – suits against EU institutions within the European Court of Justice – suggest how rarely the question can come up as the European Union, in the views of most, is probably sui generis, belonging neither to the genus of international organization nor sovereign state.

The prospect of using a court to secure a remedy against members of an IO has come up somewhat more frequently. Some European courts have suggested that such liability might be possible, for example, based on the principle of abuse of right, estoppel or unclean hands. (See, e.g., Waite and Kennedy, Application No. 26083/94, European Court of Human Rights, 18 Feb. 1999, ECHR 13, 116 ILR 121, 134.) Essentially the idea is that states should not be able to undertake action through an organization that would be illegal or wrongful if committed by any of them individually – as under human rights treaties – and that on such occasions courts should pierce the IO veil and render states (or particular members) liable. But these suggestions have been mostly relegated to dicta. For the most part, rendering states liable for their actions as members of a global IO such as the UN have been resisted by scholars and understandably, by states themselves. (See, e.g., Institut de Droit International, The Legal Consequences for Member States of the Non-fulfillment by International Organizations of their Obligations toward Third Parties, Session of Lisbonne (1995).)

What this means is that but for instances involving European institutions, rare cases where IOs have assumed territorial responsibilities (as in Kosovo), and the special case of UN peacekeepers – for whom the UN has accepted responsibility historically – the responsibility of IOs has been a topic for academic speculation but relatively little practice. The combination of organizational immunities (qualified or absolute) and absence of judicial (or other) forum with jurisdiction to hear complaints has made the suggestion — drawn from the ICJ’s affirmation of “legal personality” for the UN in the Reparation Case that like all other subjects of international law, IOs have rights and responsibilities — an intriguing question for scholars but not one that not engaged the attention of many practitioners or judges. This is, of course, very different from the position of the leading subject of international law, states, for whom the enjoyment of privileges and immunities has not been the end of the story. Given their reciprocal needs vis-à-vis each other, states have generally recognized that they are not immune from responsibility for their internationally wrongful acts and that their mutual responsibilities embrace, as was recognized by the ILC’s Articles of State Responsibility, diverse means — from apologies to countermeasures to financial liability. Accordingly, when the ILC turned its attention to that topic, its nearly multi-decade-long effort involved far more codification of the abundant practices of states and courts than progressive development. The last only occurred on the margins of enumerating the black letter rules for which the ILC found real world support.

With respect to the IO responsibility project, the ILC was not hindered by the absence of practice. It bravely (rashly?) undertook to delineate rules with respect to not only IOs, but with respect to states in connection with acts that they commit within IOs. (At a minimum, truth in advertising would suggest that the ILC re-title its effort, “articles on the responsibility of IOs and with respect to states in connection with their acts within IOs.” Such an awkward mouthful has not hindered other ILC efforts in the past.) Read the rest of this entry…

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Attribution of Conduct to International Organizations in Peacekeeping Operations

Published on March 10, 2009        Author: 

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?

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