A Comment on Disobeying the Security Council

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.

One problem with Antonios’ overarching argument is that he needs to cover so much ground, and in doing so raise issues which are extremely divisive and controversial even when taken individually, let alone as a part of a broader framework. For example, because responsibility equals attribution of conduct to an international legal subject plus a breach of an obligation owed by that subject to someone else, Antonios needs to cover (in chapter 2 of the book) the enormously complex topic of the responsibility of international organization, currently the object of work by the ILC (which Antonios exposes to much criticism). The discussion of this topic is excellent and vigorous, but almost every other page raises an issue so difficult and unsettled that it is deserving of article-length treatment.

For instance, Antonios articulates a notion of effective normative control as a ground for attribution of conduct to an IO: when the UNSC passes a resolution requiring a state to do X, and the state legally has no discretion in the matter, then X is attributable to the UN, because the state is under the UN’s effective control (p. 39 ff). (A good example of such a situation would be 1267 terrorist sanctions regime, which requires states to implement measures against individuals listed by the UNSC sanctions committee). Now, while I might agree with the end result, I personally (and this is just me!) find the entire idea of effective normative control to be wholly unpalatable, as it mixes or conflates the existence of a legal obligation with factual criteria such as control. States can always choose to disobey the Council – indeed, that’s the whole point of Antonios’ book! Their relationship is simply not comparable to situations that inspired the ICJ’s Nicaragua effective control test and Art. 8 ASR. States certainly might find themselves in the position of having to choose between an obligation imposed by the Council and an obligation imposed by some other binding instrument (e.g. a human rights treaty, EU law, or their own constitutions), but that is then a matter of conflict of norms, Article 103 of the Charter, and all that. But the states’ political freedom to act is still their own.

In advocating this notion of normative control, Antonios takes issue with the ILC’s work on the draft articles on the responsibility of international organizations (DARIO), particularly its Articles 14 and 16. His criticism may be warranted, or not. But, rather than engaging in a somewhat abstract doctrinal debate on a number of points, I wonder whether his main, overarching argument might have benefited from a more pragmatic, and less ambitious, approach. Why not just say, for example, that:

1)     An international organization generally cannot act on its own; it makes a decision, but that decision is implemented by organs of member states;

2)     Under the general rule in Art. 4 ASR, acts of their organs are attributable to states; therefore the implementation of the decision is prima facie attributable to the state;

3)     The first further question is whether the organization is also responsible for the implementing act, or only for the decision; is, for example, issuing a binding decision or a non-binding recommendation to the state a distinct ground for attribution of either conduct or responsibility; if so, then attribution would be dual, i.e. both the state and the organization would be responsible;

4)     The second additional question is whether the ground for attributing conduct also to the organization, and not just to the state, would be such to exculpate the state; is there, in other words, some good reason for not applying the general rule of attribution in Art. 4 ASR.

To use current examples, when the Irish police impounded the aircraft at issue in Bosphorus pursuant to UNSC sanctions, that specific act may have been attributable to the UN. But I see no reason why it should not have been attributable to Ireland. Similarly, an asset freeze under UNSCR 1267, like the one at issue in Kadi, is certainly attributable to the state whose authorities are actually doing the freeze, is most probably also attributable to the EU, and might also be attributable to the UN. Multiple attribution might be messy, but there’s nothing wrong with it as a matter of principle, a point Antonios himself acknowledges on p. 52 – and a point that he might have made a bit more clearly and more often.

My basic criticism is this: by opening the gigantic can of worms that is the attribution of conduct to international organizations, and in doing so at less length than a comprehensive treatment of such a topic requires, the book’s overall persuasiveness might be undermined rather than advanced. And again this is not the only such issue – while, for example, the discussion of the pitfalls of the domestic law-inspired judicial review approach to checking the Council is useful and productive, it also gets bogged down in taxonomical debates about what counts as judicial review proper, and about why the judicial review on offer in the international system is not proper enough, or is only ‘judicial review’ (e.g. at 107 and 110).

Back to Antonios’ overarching argument: I find myself in agreement with much of Erika’s remarks, so I won’t belabour the same points here. What I ultimately find unpersuasive is the wholesale move from the validity of UNSC decisions (a topic favour by the judicial review crowd) to that of responsibility for wrongful decisions (as e.g. on p. 89). The two approaches do not necessarily exclude one another. It might also not necessarily be true that the passing of an ultra vires or otherwise unlawful normative act by the UNSC will always engage the UN’s international responsibility towards some other subject of international law – at the very least, that’s one more can of worms (e.g. on p. 179 ff).

Similarly, while Antonios’ point is well taken that is not obvious that ultra vires decisions of the Council can produce no legal effects, and that even in domestic public law there are a number of competing approaches to that question, with different answers possibly applying to different kinds of illegality even within a single system (p. 166 ff), Antonios’ approach raises at least as many questions. For example, I am not sure that a careful reading of ICJ jurisprudence (even if that is accepted as being Scriptural in authority) demonstrates what Antonios thinks it does on p. 169 – elaborate distinctions between validity and legality, presumptions thereof, and legal consequences thereof. The ICJ has never really given a systematic account of these matters. While there may be something in the distinction between validity and legality – a UNSC decision might be in accordance with the Charter, but violate some external obligation of the Organization which does not have the invalidating character of jus cogens – I see no reason why the notion of validity should be reduced to procedural regularity, coupled with a virtually or (actually) irrebuttable presumption of such validity when it is affirmed by the organ’s presiding officer, as Antonios argues. Why then, in some cases at least, not rely on a validity, quasi-judicial review approach?

To make this discussion less abstract, consider, for example, the Al-Jedda case decided by the House of Lords a few years back and now pending before the Grand Chamber of the European Court. The issue in that case is whether a UNSC resolution authorizing preventive detention can by virtue of Art. 103 of the Charter prevail over the prohibition on such detention in Art. 5 ECHR. The House of Lords said it could; the European Court might not be so inclined. But whatever the Court might do in that case, it will not be deciding on the responsibility of the UN for an internationally wrongful act – the resolution. It might, for example, say that this is an ultra vires decision producing no legal effects and is thus incapable of prevailing over the ECHR by virtue of Art. 103 (not going to happen). But if it did so, this would be solely an issue of incidental review of the validity of UNSC decisions and the legal effects thereof. I don’t see how casting this scenario in terms of responsibility or countermeasures would contribute anything practically useful.

This is not to say that thinking about the decisions of the UNSC in terms of responsibility for internationally wrongful acts and permissible countermeasures would never be useful. I think there is equally room for Antonios’ approach and the more orthodox, domestic public law-inspired one. They both have something useful to teach us. Also, while the differences between the two approaches are at times terminological, at times conceptual, and at times profound, my impression is that in practical terms the outcome of applying either approach would in most cases be the same. But they still help us think of the same problem from different angles, and that is enormously helpful.