Home Archive for category "International Organisations" (Page 29)

Can UNSC Presidential Statements be Legally Binding?

Published on April 15, 2009        Author: 

The United States government now apparently thinks so. A couple of days ago the Security Council adopted a presidential statement condemning the recent missile launch by North Korea (press release here; text here). In response to reporters questioning why the Council was unable to adopt a formal resolution, and whether this meant that the presidential statement was merely imposing political, rather than legal obligations on the DPRK, Susan Rice, the US Ambassador to the UN, said the following:

First of all the United States views presidential statements, broadly speaking, as binding. In this instance, it is more than binding in that it adds to an existing Chapter 7 sanctions regime. So in our view, there is no doubt that the measures that will be imposed as a consequence of this presidential statement by the 24 or 30 of April will occur and will be binding.

Source: US Mission to the UN; see also this CNN report. According to another report, Ambassador Rice also said that the presidential statement “is a strong and legally binding outcome of the Security Council which meets all of the objectives that we have.” Her remarks were echoed by British Ambassador John Sawers, who called the proposed draft “a formal and binding position of the council.” (source: AP).

So, it appears that at least two of the P-5 now take the position that presidential statements can qualify as binding decisions of the Council. This is news – maybe not terribly big news, but news nonetheless. Readers are of course aware that many scholars (and states) have historically been of the view that only formal Chapter VII resolutions of the UNSC can be legally binding. The ICJ disagreed with that proposition in its Namibia advisory opinion, holding that Article 25 of the Charter’s notion of Council ‘decisions’, which are binding in nature, are not confined merely to Chapter VII resolutions, and are subject to no particular requirement of form.

The Council’s practice, which is quite deliberately full of ambiguity, on the whole seems to be supportive of the broader view (for an excellent and succinct primer on UNSC decisions, see this research report). But even within this broader view the orthodoxy has so far been that presidential statements impose only political, not legal obligations – see generally S. Talmon, ‘The Statements by the President of the Security Council’, (2003) 2 Chinese JIL 419, at 447 et seq. The importance of the issue (though it should by no means be overstated) is that a broader notion of binding decisions allows for greater diplomatic flexibility in decision-making within the UNSC.

The UNSC’s treatment of nuclear proliferation and North Korea is indeed an excellent example of how such flexibility can be of practical use. Russia and China in particular have consistently attempted to prevent what they saw as overreaction by the other permanent members. They have especially seemed keen on precluding any possible use of force against the DPRK, particularly through an implied UNSC authorization argument a la Iraq 2003. Thus, the UNSC first adopted Resolution 1695 (2006), which in its chapeau did not reference Chapter VII, nor made an Article 39 determination, but rather invoked the language of Article 24 of the Charter. That it was not a Chapter VII resolution does not necessarily mean, however, that it imposed no legal obligations on the DPRK. Later Resolution 1718 (2006) was explicitly a Chapter VII resolution, with op. paras. 15 & 16 seemingly deliberately designed to prevent an implied authorization argument.

And now we have this presidential statement, the most recent product of negotiations between the P-5. It remains to be seen whether the UNSC’s practice (and the member states) will accept the possibility of legally binding decision-making through presidential statements, which are after all adopted by consensus – a more rigid requirement than for a resolution.

In other news, the DPRK has decided to withdraw from the six-party talks, restart its nuclear program, and expel IAEA inspectors. Oh well…

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The Security Council and Human Rights: What is the role of Art. 103 of the Charter?

Published on March 30, 2009        Author: 

At last week’s ASIL meeting there was a panel on whether the United Nations Security Council is bound by human rights law. The panelists (Vera Gowlland-Debbas, Graduate Institute of International and Development Studies, Linos-Alexander Sicilianos, University of Athens  & Gráinne de Búrca, Fordham University School of Law) discussed cases such as the Kadi decision of the European Court of Justice, Al Jedda (House of Lords), Sayadi (Human Rights Committee and Behrami (European Court of Human Rights). These cases have been the subject of posts on this blog (for Kadi, see here and here, for Sayadi, see here and for Behrami, see here). One of the things that strikes me about much of this discussion is the use made of Article 103 of the UN Charter. That article provides that:

In the event of of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

Of the four decisions mentioned above, only the Al Jedda decision discusses and applies Art. 103. According to Lord Bingham,

The central questions to be resolved are whether, on the facts of this case, the UK became subject to an obligation (within the meaning of article 103) to detain the appellant and, if so, whether and to what extent such obligation displaced or qualified the appellant’s rights under article 5(1) [of the European Convention on Human Rights]. (para. 26)

The House of Lords held that the Security Council authorisation to detain the appellant did indeed bring Art. 103 into play (on the theory that Art. 103 also extends to authorisations) and that rights under the ECHR were qualified to the extent that they conflicted with that authorisation. Some have criticised the ECJ in Kadi  and the Human Rights Committee in Sayadi for not evening mentioning Art. 103 and for failing to take the Al Jedda approaching (for some more discussion of this issue see here and here).

However, the role of Art. 103 is often overplayed in these debates concerning the conflicts between Security Council obligations and human rights law.  There are 2 overlapping questions here: (i) Is the Security Council bound by human rights norms when it acts (eg in combatting terrorism, imposing sanctions or in authorising action in peacekeeping or peace enforment)?; (ii) are States bound to apply Security Council decisions that may conflict with the human rights obligations of those States?.  Art. 103 does not and cannot answer the first question. Art. 103 should not be regarded as the starting point in answering the second question. Furthermore one may not even reach Art. 103 in answering that latter question. 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?

  Read the rest of this entry…

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Sayadi: The Human Rights Committee’s Kadi (or a pretty poor excuse for one…)

Published on January 29, 2009        Author: 

In October 2008, the Human Rights Committee decided the Sayadi case (CCPR/C/94/D/1472/2006) regarding UN Security Council terrorist blacklists, and the decision has now been made public (h/t to Bill Schabas, who made available the text of the views). As I will now explain, the Committee regrettably failed to do justice to the many complex issues of international law that were raised in the case.

The facts of the case were these: the applicants, a married couple of Belgian nationality living in Belgium, ran the European branch of an American NGO that was put on a Security Council blacklist pursuant to the sanctions regime established in Resolution 1267 (1999) and its progeny. In 2003, after the initiation of a criminal investigation against the applicants in Belgium, the applicants’ names were put on a list drafted by the Sanctions Committee and appended to a UNSC resolution. Pursuant to EU and Belgian implementing legislation, the applicants’ financial assets were frozen, and they were banned from travelling internationally. The applicants were not given the reasons and the relevant information for their listing. In 2005, the applicants asked a Belgian court to order the Belgian government to initiate delisting procedures before the UNSC Sanctions Committee, and obtained such an order. Additionally, the criminal proceedings against them were dismissed. The Belgian government did initiate a delisting procedure, as ordered, but the UNSC Sanctions Committee refused to delist the applicants.

Before the Committee, the applicants raised the violations of several articles of the ICCPR, basically claiming that they were denied any due process in the UNSC sanctions procedure, and that Belgium implemented the outcome of this procedure, with a considerable impact on their life and without providing them with any remedy. As is apparent even from the mere recitation of the facts of the case, the applicants’ claims were certainly warranted on the substance of their complaint (I will not review here the growing literature on the impact of UNSC listing on human rights, and the many different proposals that were made to improve the process).

However justified the applicants’ claim on the merits, the examination of the claim on the merits faced a great impediment, a consequence of the nature of state obligations under the UNSC listing process. Under Article 25 and Chapter VII of the UN Charter, the UNSC can pass resolutions that have binding force on UN member states. Article 103 of the Charter further provides that ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’ These obligations under the Charter include binding UNSC decisions made under the Charter, as confirmed by the ICJ in the Lockerbie case.

Read the rest of this entry…

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