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Home International Organisations Archive for category "Security Council"

United States’ Missile Strikes in Syria: Should International Law Permit Unilateral Force to Protect Human Rights?

Published on April 18, 2017        Author: 

A bounty of recent blog posts have poured over the legality of the Trump administration’s missile strikes against a Syrian airbase in response to President Bashar al-Assad’s use of chemical weapons (see, e.g, here, here, here, here and here). Possible justifications have recently come to light, but do not provide a sufficient basis for the administration’s actions under international law (which is the focus of this post). Most commentators conclude that, absent UN Security Council authorisation or a justifiable claim of self-defence, international law provides no clear right for states to use force in response to such grave violations of human rights. Therefore, the strikes most likely contravene Article 2(4) UN Charter. With that analysis, I agree. The question that then arises, and which has received much less attention (although, see here and here), is the normative question: should international law permit such unilateral action (either individually or collectively) outside of the UN Charter framework?

The understandable response is that ‘something’ must be done and at least President Trump has acted where the international community has previously failed to do so. This sentiment is reflected in the opinions of a number of world leaders who appear to be supportive of the strikes against the Assad regime. Yet, notably, where countries have expressed support for the United States’ actions, they have not presented a legal justification for it. Regardless of whether we agree that the missile strikes are the right thing to do in response to a criminal regime gassing its own people (and there are serious doubts as to whether these strikes are an adequate or effective response), how should international law respond to such horrors as a general matter? What is the legal framework on which states can rely to do what they think is right? Read the rest of this entry…

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Illegal But Legitimate?

Published on April 10, 2017        Author: 

I have always thought that proponents of humanitarian intervention simply cannot make a persuasive case that it is already an existing rule of international law (even if they can make a case that it should be a rule of international law). I have similarly always thought, on the other hand, that the position that an intervention is legally prohibited but that it can nonetheless be politically legitimate or morally justified in exceptional circumstances is conceptually perfectly coherent. (Maybe – well, certainly – my views on this are coloured by my shamelessly comprehensive adoration of Bruno Simma, but there you go.) If we are operating in a positivist framework, even the mildest forms of positivism by definition mean that something that is lawful is not necessarily just. And since we are endowed with free will, we can choose to break the law for higher-order considerations, morality and justice, if we are willing to pay the price of non-compliance.

Whenever people talk about an act being illegal but legitimate I also always remember this scene from Richard Attenborough’s film Gandhi – in the scene Gandhi is tried, in 1922, for fostering disaffection against the British government of India, thereby causing several major outbreaks of violence. And here is what happens:

Read the rest of this entry…

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The Consequence of the UN Resolution on Israeli Settlements for the EU:  Stop Trade with Settlements

Published on April 4, 2017        Author: 

The recent UN Security Council Resolution 2334 (2016) reaffirmed that the establishment of Israeli settlements in the occupied Palestinian territory has no legal validity and that Israel’s settlement enterprise is a flagrant violation of international law. The resolution also calls upon all States “to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967”. This part of the resolution is of great significance with regard to the question of trading with settlements.

While the content of the resolution might seem novel, Secretary of State John Kerry was right to remind us in his landmark speech on the Israeli-Palestinian conflict at the end of 2016 that:

this resolution simply reaffirms statements made by the Security Council on the legality of settlements over several decades. It does not break new ground”. In 1980 UN Security Council Resolution 465 had called upon all States “not to provide Israel with any assistance to be used specifically in connection with settlements in occupied territories.

Trading with settlements offers an economic lifeline that allows the settlement enterprise to survive and develop. This reality and the aforementioned UN Security Council Resolutions make a good case not to trade with settlements. But is the withholding of such settlement trade truly an obligation under international law?

In an earlier piece I argued that there is indeed such an obligation, and the lack of state compliance does not seriously shake the legal foundations of this argument. Just last year in an open letter, 40 legal experts (myself included) called upon the European Parliament, and the office of the High Representative and the Trade Commissioner to stop trade with settlements in compliance with the EU’s international legal obligations. Signatories included two former UN rapporteurs, a former President of the International Law Commission, a former judge on the ICTY, and dozens of professors in international law.

Our main argument was that the EU has the obligation to end trade with Israeli settlements based on the duties of non-recognition and non-assistance. This post will describe the legal argumentation underlying these duties. Read the rest of this entry…

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The Security Council’s Response to the Ebola Crisis: A Step Forward or Backwards in the Realization of the Right to Health?

Published on March 2, 2017        Author: 

This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.

The fight against Ebola has brought into stark focus the global threat emanating from viral diseases. In response to the outbreak of the deadly virus in Africa, in 2014 the UN Security Council adopted Resolution 2177 characterizing the epidemic as a threat to international peace and security and calling in its operative paragraphs on all Member States to provide international assistance and co-operation.

While the resolution has been widely applauded as a landmark for global public health (see e.g. here and here) this post questions whether the peace and security approach taken by the Council risks undermining the normative force of the right to health and the associated obligations of international co-operation. To better appreciate the challenges posed by the Security Council’s response to Ebola, the post will first briefly look at the content of Resolution 2177 before reflecting on what the resolution omits. Against this background the final part discusses what consequences flow from this (sin of) omission.

Governing in situation of crisis: UN SC Resolution 2177 

After convening an emergency meeting on 18 September 2014, the Security Council adopted Resolution 2177 entitled “Peace and security in Africa”. The resolution, sponsored by a record number of 130 countries and adopted unanimously by all Council members, characterized “the unprecedented extent of the Ebola outbreak in Africa” as a “threat to international peace and security”. After having underlined that:

“the outbreak is undermining the stability of the most affected countries concerned and, unless contained, may lead to further instances of civil unrest, social tensions and a deterioration of the political and security climate…”.

While the link between the virus and regional instability – let alone international stability –  is not made entirely clear in the resolution, the reference to international peace and security in a non-military context hardly constitutes a novelty in the Council’s history. Ever since the end of the Cold War the significance given to “non-military sources of instability in the economic, social, humanitarian and ecological fields” (see Presidential Statement S/23500, 31 January 1992), has meant a widening of the Security Council’s traditional area of competence beyond the limited sphere of inter-state military conflict. Read the rest of this entry…

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Post-Election Crisis in The Gambia, the Security Council and the Threat of the Use of Force

Published on February 17, 2017        Author: 

The Gambian post-election crisis is a gem amongst cases relevant to the law on ius ad bellum – not only because it is a crisis that has been resolved with almost no bloodshed, but also because it offers valuable insights into the interaction between Security Council authorization, the doctrine of intervention by invitation, and the prohibition on the threat to use of force (see for some analysis here, here, here, or here).

Professor Hallo de Wolf has concluded that “the legality of the ECOWAS’ military intervention is dubious”. His analysis primarily focuses on the question of legality of the ECOWAS’ intervention after the inauguration of The Gambia’s new president, Adama Barrow. However, his conclusion may be challenged if one is to read Security Council resolution 2337 (2017) as a non-prohibitive non-authorization, which indirectly opens and strengthens the alternative avenue of the doctrine of intervention by invitation . Elsewhere, I have evaluated this interpretation against State practice and the Council’s resolutions in the Syrian and Yemeni incidents and concluded that the consent of the new president, Barrow, may suffice to justify the military intervention in The Gambia.

If one is ready to follow this line of thought, a question arises as to the effect of the consent; what conduct is justified by the invitation? The post-election crisis in The Gambia, for which the course of events may be recalled here or here, entails temporal complications in this respect. The crisis can be divided in three phases: (1) pre- inauguration (Jammeh’s clinging to power up until the inauguration, and end of the ECOWAS’ ultimatum, 19 January 2017); (2) the time between passage of the ultimatum and official inauguration; (3) post- inauguration. Read the rest of this entry…

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The Use of Force to (Re-)Establish Democracies: Lessons from The Gambia

Published on February 16, 2017        Author: 

It has been almost a month since predominantly Senegalese troops entered The Gambia as part of an ECOWAS intervention after long-term president Yahya Jammeh had refused to accept the results of the December 2016 elections. ECOWAS troops remain in the country until this day in order to support newly-elected president, Adama Barrow, in establishing and maintaining public order.

The case has been widely discussed as it raises a number of questions concerning the use of force in general, the right to intervention by invitation and authorizations by regional organizations (see here, here, or here). In particular, it shows that, if the circumstances admit it, the international community is more than willing to accept the use of force to establish or re-establish democracies. The following post will focus on this debate and briefly describe how it evolved until this very day. Read the rest of this entry…

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Security Council Resolution 2334 (2016) and its Legal Repercussions Revisited

Published on January 20, 2017        Author: 

Security Council 2334 (2016), adopted by the Security Council on December 23, 2016 with 14:0:1 votes, the United States abstaining, and dealing with the issue of Israel’s settlement policy in the occupied Palestinian territory, and the broader issue of the international legal status of the West Bank and East Jerusalem will, just like Security Council resolution 242 (1967) beforehand, probably become one of those seminal Security Council resolutions every international law professor will have to deal as part of his or her international law class since, apart from its immediate context and its political repercussions, it by the same token raises, and relates to, fundamental issues of international law.

While various of those issues, and namely the question of its binding effect have already been dealt with here, there still remain quite a number of open issues that require further clarification, some of which will be discussed hereinafter.

  1. Relationship of Security Council resolution 2334 (2016) with prior Security Council resolutions, in particular Security Council resolution 242 (1967)

The claim has been made that Security Council resolution 2334 (2016), as adopted, is incompatible with the content of Security Council resolution 242 (1967) (see here) given that Security Council resolution 2334 (2016) in its preambular paragraph 5, as well as in its operative paragraph 3, takes as a starting point for any final territorial arrangements between the parties to the conflict the 4 June 1967 lines, i.e. the so-called ‘Green line’, any changes to which would require a negotiated agreement between the two sides. Read the rest of this entry…

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A Trio of Blockbuster Judgments from the UK Supreme Court

Published on January 17, 2017        Author: 

This morning the UK Supreme Court delivered three important judgments dealing with various claims alleging wrongful acts by the UK when fighting international terrorism (UK Supreme Court page; Guardian news report). In Belhaj and Rahmatullah No. 1 the Court unanimously dismissed the Government’s appeal, and found that the claim against the UK for its alleged complicity in torture and mistreatment of the claimants was not barred by rules of state immunity and the foreign act of state doctrine (press release; judgment). In Rahmatullah No. 1 and Mohammed the Court unanimously allowed the Government’s appeals, holding that, insofar as the respondents’ tort claims are based on acts of an inherently governmental nature in the conduct of foreign military operations by the Crown, these were Crown acts of state for which the Government cannot be liable in tort (press release; judgment). Finally, and perhaps of greatest interest to most of our readers, in Al-Waheed and Serdar Mohammed the Court, by 7 votes to 2 in a set of very complex judgments, held that British forces had power to take
and detain prisoners for periods exceeding 96 hours if this was necessary for imperative reasons of security, but that its procedures for doing so did not comply with ECHR article 5(4) because they did not afford prisoners an effective right to challenge their detention (press release; judgment). We will be covering these judgments in more detail soon.

I have only had the time to read Serdar Mohammed, which I am yet fully to digest, but here are some initial thoughts (we have of course extensively covered this case on the blog before). The two key judgments are those of Lord Sumption for the majority and Lord Reed for the minority; I must say that by and large I incline towards the latter. I am also troubled by some of the ipse dixit, rather casual references in the judgments of the majority justices to the lex specialis principle; the supposedly restrictive original intentions of the drafters of the ECHR with regard to its application extraterritorially and in armed conflict, which are in reality completely unknowable; similarly casual constructions of coherent narratives of a very messy field that confirm one’s own predispositions (e.g. that in Al-Skeini the Strasbourg Court unprecedentedly expanded the reach of the Convention to extraterritorial armed conflicts, when one could just as easily say that in Bankovic the Court unprecedentedly restricted the Convention’s reach); or the supposed unavailability of extraterritorial derogations, on which see more here.  That said, the judgments are thoughtful and rigorous even when one might disagree with them, which brings me to the Court’s main findings.

Read the rest of this entry…

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Legal Bindingness of Security Council Resolutions Generally, and Resolution 2334 on the Israeli Settlements in Particular

Published on January 9, 2017        Author: 

As I have read commentary on the recently adopted resolution by the U.N. Security Council (Resolution 2334) addressing Israeli settlements in the occupied territories, I’ve noticed a number of commentators who appear to assume that, since this resolution was not explicitly adopted in exercise of the Council’s Chapter VII powers, therefore all of its operative provisions are per se legally non-binding. Orde Kittrie, writing over at Lawfare, seems to make this assumption clear when he writes:

“Resolution 2334 was not adopted under Chapter VII of the U.N. Charter and is not legally binding. The resolution does not create additional legal requirements on Israel, nor does the resolution require (or even explicitly encourage) U.N. member states to impose sanctions on Israel in response to Israeli settlement activity.”

I thought this would be a good opportunity to write briefly to clarify that the legal obligation for U.N. Charter states parties to comply with the decisions of the Security Council, contained in Article 24 and 25 of the Charter, is not contingent upon the Council’s acting in exercise of its Chapter VII powers. Any decision of the Security Council is legally binding upon all U.N. member states, whether or not the text of the resolution explicitly references Chapter VII.

Rather, the key question for determining whether a particular provision of a Security Council resolution is legally binding on member states (i.e. whether the provision is a “decision” of the Security Council), including the specific addressee of the resolution, is whether the Council has chosen to use words within the provision indicating its intent to create a legally binding obligation.

The International Court of Justice made these points clear in its 1971 Namibia advisory opinion, in Paragraphs 108-114. Read the rest of this entry…

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A Role for the Security Council on Defensive Force?

Published on October 21, 2016        Author: 

Last wMonica Hakimieek, Elena Chachko and Ashley Deeks posted a helpful resource at Lawfare: a compilation of states’ pronouncements on the use of defensive force against nonstate actors. Readers no doubt know that there is an ongoing debate about whether and, if so, under what circumstances a state may use force in self-defense against nonstate actors that operate from another state. The Lawfare post asserts that ten states have expressly endorsed the unable-or-unwilling standard, under which defensive force would be permissible if the “host” state is unable or unwilling to contain the violence. The post then characterizes three states as having implicitly endorsed the unable-or-unwilling standard; eighteen as ambiguous about that standard; and four as expressly objecting to it.

We disagree with some of those characterizations. A few of the “express” endorsements seem to us to be less definitive than Chachko and Deeks claim. Moreover, we don’t think the “implicit” or “ambiguous” endorsements are endorsements at all. In these cases, the acting states seem not to support the unable-or-unwilling standard but rather to articulate a narrower standard -one that is limited either to the host state’s affirmative support for the nonstate group or to that state’s loss of control over portions of its territory. (For a discussion of the various standards that might be in play, see this article.)

cogan-faculty-pageWe want to focus here on a more interesting phenomenon: in the current fight against the Islamic State, six states have invoked in their reports to the Security Council a combination of Resolution 2249 and Article 51 to justify their use of force in Syria. (The six states are Belgium, Denmark, Germany, the Netherlands, Norway, and the United Kingdom.) Resolution 2249 was adopted in November 2015. It “determin[ed]” that the Islamic State “constitutes a global and unprecedented threat to international peace and security” and “not[ed] the letters . . . from the Iraqi authorities which state that Da’esh has established a safe haven outside Iraq’s borders that is a direct threat to the security of the Iraqi people and territory.” The Council also:

“call[ed] upon Member States that have the capacity to do so to take all necessary measures, in compliance with international law, in particular with the United Nations Charter, . . . to prevent and suppress terrorist acts. . . .”

This Resolution nowhere authorized the use of force. And even if it did, it would be unnecessary if Article 51 itself provided a basis for using force in Syria. The point of Article 51 is to permit unilateral force – that is, force without any Council action – in “true” cases of self-defense. As such, the Article 51 reports that reference 2249 are, at the very least, odd. Read the rest of this entry…

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