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Home International Organisations Archive for category "Security Council" (Page 4)

Grand Chamber Judgment in Al-Dulimi v. Switzerland

Published on June 23, 2016        Author: 

This week the Grand Chamber of the European Court of Human Rights delivered a major judgment in Al-Dulimi and Montana Managment Inc. v. Switzerland, no. 5809/08. This is the latest in a long and complex line of cases dealing with the negative human rights impact of sanctions mandated by the UN Security Council, raising inter alia the legal effects of the supremacy clause in Article 103 of the UN Charter. For background, see these two earlier posts on the Al-Jedda and Nada cases, and Anne Peters’ excellent post on the Chamber judgment in Al-Dulimi.

By 15 votes to 2 (judges Ziemele and Nussberger dissenting), the Grand Chamber found a violation of Article 6(1) ECHR, because Swiss courts did not provide meaningful judicial review of the applicants’ listing by the Sanctions Committee of the Security Council. The size of the majority belies the amount of disagreement among the judges; of the 15 judges in the majority, 6 concurred in the result but not in the reasoning – in other words, the line of reasoning that the Court ultimately followed was in fact adopted by the barest of majorities, 9 votes to 8.

So what did the Court decide? It essentially pushed to its very limits the presumption it established in Al-Jedda, para. 102, ‘that the Security Council does not intend to impose any obligation on member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a United Nations Security Council resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law.

The Court held in Al-Dulimi that because the relevant SC resolutions did not exclude domestic judicial review expressis verbis, the resolutions, when properly interpreted, left the door open for such review, which was required by Article 6 of the Convention. However, that review would be relatively minimal, ensuring that the listing of the person in question was not arbitrary. In so doing, the Court avoided (yet again!) ruling on whether Article 103 of the Charter is capable of displacing the Convention in the first place, in case there is a genuine norm conflict. Here are the key paragraphs of the Court’s reasoning:

Read the rest of this entry…

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Austria and the Fight Against the “Islamic State”: Whither Neutrality?

Published on February 3, 2016        Author: 

The most recent escalation of the conflict in Syria and the Paris attacks have once again led to intense debates over the still unresolved question of self-defence against non-state actors, the role of UN Security Council resolution 2249 in this regard, and the EU’s mutual defence clause enshrined in Article 42(7) of the Treaty on European Union. While these issues are of particular importance for those states that recently joined the military efforts against the “Islamic State’s” safe haven in Syria , i.e. the UK or Germany, they also affect one of the most delicate topics in Austria: its permanent neutrality.

In September 2015 foreign minister Sebastian Kurz declared that Austria had joined the alliance against the “Islamic State”, albeit without any military consequences. After France invoked the EU’s mutual defence clause, however, Austrian Defence minister Gerald Klug – emphasizing that he was voicing his personal opinion – openly stated that “there cannot be neutrality against terrorism.” From this point of view, measures typically deemed as being incompatible with neutrality, particularly flight permits for military aircraft on their way to Syria, do not pose a problem. Upon closer inspection, however, things are less clear.

Austria’s status as a permanently neutral state is a product of the negotiations with its four occupying powers – the US, the UK, France, and the Soviet Union – following the Second World War. According to Article I of the “Federal Constitutional Law on the Neutrality of Austria”, Austria “is resolved to maintain and defend its [permanent] neutrality with all the means at her disposal” and “will never in the future accede to any military alliances nor permit the establishment of military bases of foreign States on her territory.” Back in 1955, Austria notified all 63 states it entertained diplomatic relations with at that time of this law and asked for recognition of its status as a permanently neutral state. Hence, it is not only bound internally but also under international law to this very day (although it could, in the opinion of the Austrian Ministry for Foreign Affairs, unilaterally revoke this status regardless of whether other states take note or agree). Read the rest of this entry…

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“Legitimized Self-Defense” – Quo Vadis Security Council?

Published on December 10, 2015        Author: 

I submit that United Nations Security Council (UNSC) resolution 2249 (2015) is – at least de facto – another step towards a reconfiguration of the UN collective security system. The call upon UN members to take “all necessary measures” has to be seen in the context of the self-defense narrative employed by most states forming the “Global Coalition to Counter ISIL” to justify their operations. Irrespective of the resolution’s ambiguity, it is hardly doubtful that it de facto yields a legitimizing effect for this narrative, inevitably endorsing it – even if the term “self-defense” is not mentioned once. Against this background, it seems that the UNSC actually assists in installing self-defense measures as a substitute for collective action under Chapter VII of the UN Charter (UNC). This recalibration of the UNSC’s role in the context of the use of force deserves a second thought. Self-defense is – irrespective of the legality of its invocation in specific cases de lege lata – hardly the right tool to deal with the global and permanent threat of terrorism.

As has already been excellently illustrated by Dapo Akande and Marko Milanovic, the resolution’s main characteristic is its ambiguity (see EJIL talk! Blog). Its vagueness is obviously the result of political necessities and compromise. In my view, however, interpreting the resolution from the perspective of an objective observer, it is clear that the UNSC did not authorize measures based on Art. 39 et seq. of the UNC. It is true that the term “necessary measures” is generally connoted with the authorization of force. It is likewise true that the preamble of the resolution which classifies “terrorism in all forms and manifestations” as “threats to international peace and security” alludes to the wording of Art. 39 UNC. But any “authorizing” tenor is neutralized by the clauses “calls upon” and “in compliance with international law, in particular with the United Nations Charter […].” The UNSC neither authorizes nor decides. It is generally acknowledged that an authorization within Chapter VII of the UNC requires explicit wording – a requirement the resolution (deliberately) does not meet. The call upon the members to “eradicate” ISIL safe havens, however, implies the use of force. Since the UNC establishes a comprehensive ban on the use of force, only self-defense or consent remain as justifications for military operations against ISIL within Iraq and Syria outside of a UNSC authorization.

So to put the resolution’s message in a nutshell: States are called upon to use force against ISIL by exercising their right to self-defense if its prerequisites are given or to urge states hosting ISIL to give their consent to armed operations on their territory if self-defense cannot be invoked. To this extent it could be argued that the resolution says nothing, but merely refers to the law as it stands. Neither does it authorize the use of force nor does it give the self-defense narrative of the “Global Coalition” unequivocal blessing. But this is only true if the context of the resolution is not also taken into account. Read the rest of this entry…

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How the Ambiguity of Resolution 2249 Does Its Work

Published on December 3, 2015        Author: 

Yesterday, after 10 hours of debate, the UK Parliament approved the use of UK armed forces against ISIS on the territory of Syria; the German Bundestag also debated the use of force and will vote on the involvement of Germany in the coalition operation tomorrow. I found it particularly interesting to observe how the constructive ambiguity of the Security Council’s resolution 2249 (2015), that Dapo and I extensively addressed in our previous post, was used by the MPs during their debate.

When it comes to the UK Government’s official legal position on the use of force in Syria, they have been very careful not to rely on the resolution as a separate source of authority, but as a (unanimous) reaffirmation of the legal authority they already thought they had. That position is articulated most clearly in this memorandum from the Prime Minister to Parliament’s Foreign Affairs Committee, at pp. 15-17, and the legal bases for the use of force set out there are (1) the collective self-defence of Iraq and (2) the individual self-defence of the UK against ISIS, both pursuant to Article 51 of the Charter. The resolution is used to buttress these two claims, for example with the memorandum stating that: “Resolution 2249 (2015) both condemns the ISIL’s horrendous attacks that have taken place and notes ISIL’s intent and capability to carry out further attacks. It then calls upon States to take lawful action to prevent such attacks.”

Similarly, in his statement to the House of Commons on 26 November regarding that memorandum, the Prime Minister stated that:

It is a long-standing constitutional convention that we don’t publish our formal legal advice. But the document I have published today shows in some detail the clear legal basis for military action against ISIL in Syria. It is founded on the right of self-defence as recognised in Article 51 of the UN Charter. The right of self‑defence may be exercised individually where it is necessary to the UK’s own defence… …and of course collectively in the defence of our friends and allies. Mr Speaker, the main basis of the global coalition’s actions against ISIL in Syria is the collective self-defence of Iraq. Iraq has a legitimate government, one that we support and help. There is a solid basis of evidence on which to conclude, firstly, that there is a direct link between the presence and activities of ISIL in Syria, and their ongoing attack in Iraq… ….and, secondly, that the Assad regime is unwilling and/or unable to take action necessary to prevent ISIL’s continuing attack on Iraq – or indeed attacks on us. It is also clear that ISIL’s campaign against the UK and our allies has reached the level of an ‘armed attack’ such that force may lawfully be used in self-defence to prevent further atrocities being committed by ISIL.

And this is further underscored by the unanimous adoption of UN Security Council Resolution 2249. We should be clear about what this resolution means and what it says. The whole world came together – including all 5 members of the Security Council – to agree this resolution unanimously. The resolution states that ISIL, and I quote: “constitutes a global and unprecedented threat to international peace and security.” It calls for member states, and again I quote: to take “all necessary measures” to prevent and suppress terrorist acts committed specifically by ISIL… …and crucially is says that we should, and again I quote: “eradicate the safe haven they have established over significant parts of Iraq and Syria.”

Note how despite saying that “we should be clear about what this resolution means and what it says” the Prime Minister only proceeds to quote the resolution’s language, without explaining in any way whatsover (let alone clearly so) what it means and what it says. (By the way, isn’t that just wonderful howe he did that?)

Read the rest of this entry…

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Permanent Imminence of Armed Attacks: Resolution 2249 (2015) and the Right to Self Defence Against Designated Terrorist Groups

Published on November 25, 2015        Author: 

On 14 November, a day after the terrorist atrocity in Paris, a number of key states, including the US and Russia, met in Vienna. The delegates assembled there committed themselves to work towards a comprehensive cease-fire in Syria by the New Year. However, even if peace can be made between government and opposition in Syria, the meeting was united in its determination to carry on the fight against ISIL in Syria until the end.

Mixed Message

This determination was carried over into the adoption of Resolution 2249 (2015) by the UN Security Council the following week. Indeed, in the Resolution the Council called upon member states that have the capacity to do so to take ‘all necessary measures’ to redouble and coordinate their efforts to eradicate the safe haven established by ISIL in significant parts of Iraq and Syria.

The resolution employs language that would ordinarily be UN code for a collective security authorization to use force (‘all necessary measures’). It also determines that situations involving terrorism, and this one in particular, constitute ‘a global and unprecedented threat to international peace and security’. This finding according to Article 39 of the Charter would ordinarily open up the way towards Chapter VII enforcement action.

But confusingly, despite the wording used in the text, Resolution 2249 (2015) does not purport to add to the legal authority already claimed by the states using force in Iraq (see the previous post by Dapo and Marko).

Effect of non-binding Resolutions

That might have been the end of the matter, it being understood that this is not a Chapter VII resolution. While it is true to say that, under the rationale in the Namibia Advisory Opinion, a resolution adopted outside of Chapter VII can be binding, it is equally true that such a resolution cannot authorize the use of force beyond that which is already permitted by virtue of general international law. Yet, if a resolution adopted outside of Chapter VII cannot generate authority for the use of force on its own, it can have an important function in relation to general international law as it applies to the issue at hand. In particular, a resolution of this kind can clarify the underlying position in general international law.

This phenomenon may apply also in relation to factual determinations of relevance for the application of the right to self-defence. Read the rest of this entry…

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The Constructive Ambiguity of the Security Council’s ISIS Resolution

Published on November 21, 2015        Author: 
Security Council Adopts Resolution on Fighting ISIL

UN Photo/Loey Felipe

On Friday, the UN Security Council unanimously adopted resolution 2249 (2015), condemning a series of recent terrorist attacks by Islamic State (IS, ISIS or ISIL). The text of the resolution, together with statements of Council members, is available here. This resolution was proposed by France and superseded two competing earlier drafts by Russia. The resolution determines that IS constitutes “a global and unprecedented threat to international peace and security.”

But the resolution itself is, perhaps, an equally unprecedented measure by the Security Council. The resolution is clearly designed to provide legitimacy for the measures being taken, and to be taken, against IS by giving the Council’s imprimatur to such measures. In particular, the resolution is worded so as to suggest there is Security Council support for the use of force against IS. However, though the resolution, and the unanimity with which it was adopted, might confer a degree of legitimacy on actions against IS, the resolution does not actually authorize any actions against IS, nor does it provide a legal basis for the use of force against IS either in Syria or in Iraq.

The main operative paragraph of the resolution is para 5, in which the Council:

“5.   Calls 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, as well as international human rights, refugee and humanitarian law, on the territory under the control of ISIL also known as Da’esh, in Syria and Iraq, to redouble and coordinate their efforts to prevent and suppress terrorist acts committed specifically by ISIL also known as Da’esh as well as ANF, and all other individuals, groups, undertakings, and entities associated with Al-Qaida, and other terrorist groups, as designated by the United Nations Security Council, and as may further be agreed by the International Syria Support Group (ISSG) and endorsed by the UN Security Council, pursuant to the statement of the International Syria Support Group (ISSG) of 14 November, and to eradicate the safe haven they have established over significant parts of Iraq and Syria;”

Before we attempt to decipher what this paragraph actually means, it is important to note that the resolution was not adopted under Chapter VII of the Charter. Or rather, the resolution does not use the “acting under Chapter VII” formula that is usually used to signal that the Security Council intends to take binding action, despite a couple of determinations in the preambular paragraphs about the existence of a threat to international peace and security, which (determinations) presumably are made under Article 39 of the Charter. In op. para. 1 of the resolution, the Council similarly “regards all such acts of [IS] terrorism as a threat to peace and security,” which again implicitly invokes Article 39. As the ICJ’s Namibia Advisory Opinion makes clear, the lack of reference to Chapter VII in a resolution does not mean that it is not to be regarded as binding nor does it mean that the resolution does not have operative legal effect. However, for the resolution to have those effects the Council must actually decide to do something or to authorize something.

Read the rest of this entry…

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Security Council Resolution 2231 and the Joint Comprehensive Plan of Action on Iran’s Nuclear Program

Published on July 27, 2015        Author: 

Last week I did a couple of posts elsewhere on the Joint Comprehensive Plan of Action (JCPOA), agreed on July 14 between the P5+1 and Iran regarding Iran’s nuclear program. See here and here. These posts may be of interest in explaining the essential agreement contained in the JCPOA, and in examining some of its key legal implications.

The JCPOA is the culmination of twenty months of negotiations between the P5+1 and Iran, since the initial Joint Plan of Action (JPOA) was agreed by the parties in November 2013. I wrote a post discussing the JPOA here at EJIL:Talk! at the time it was agreed.

I’d like to focus this post on the unanimous passage by the U.N. Security Council on July 20 of Resolution 2231, which can be found here. Resolution 2231 comprises 104 pages of text, inclusive of two annexes, one of which is the entire JCPOA text. I mention this because my primary impression in reading over Resolution 2231 and is annexes for the first time, was frankly astonishment that the parties had been able to agree on such an amazingly complex, thorough and comprehensive diplomatic accord. I was also impressed by the precision of the text of Resolution 2231 itself (apart from a couple of typos) in implementing, in what appears to be a very sophisticated and, as far as I can tell, correct way, the agreement reached by the parties on July 14.

The JCPOA itself and Resolution 2231 appear to represent a major success of international diplomacy, as well as a significant achievement of international law in facilitating the implementation of the diplomatic accord. Again, it is difficult to overstate the complexity of the issues that had to be resolved among the parties to arrive at both the JCPOA and Resolution 2231. And the specificity with which these issues were addressed in both documents – down to weights and measures and dates of implementation – is frankly astonishing, and far exceeds my expectations.  And so I compliment all of the diplomats and lawyers involved. Read the rest of this entry…

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The Shameful Twenty Years of Srebrenica

Published on July 13, 2015        Author: 

In the great catalogue of human misery, the July 1995 Srebrenica genocide merits a special mention. But as horrible as the slaughter of more than 7,000 Bosnian Muslim men and boys was – unquestionably the worst crime of the whole brutal Bosnian conflict – the repeated, ongoing and unrelenting denial of the crime is if not worse, then at least as depressing. Today, twenty years on, that revisionist denial is strongest where it matters – in Republika Srpska and in Serbia – and its strength demonstrates the continued, long-term inability of these communities to come to terms with the past.

The denial is manifold, in forms both hard and soft. It ranges from a complete rejection that any crime took place, to disputing the number of victims or who the victims were, to emphasizing crimes against Serbs around Srebrenica or inflating the numbers of Serbs killed, to disputing the characterization of the crime as genocide as if that makes some actual moral difference. And, it needs to be said, that denial is virtually unaffected by whatever the International Criminal Tribunal for the Former Yugoslavia or the International Court of Justice said on the matter.

To demonstrate the scale of denial in cold, hard numbers, it suffices to take a look at a February 2012 survey of public opinion in Bosnia, sponsored by the Belgrade Centre for Human Rights and the OSCE and conducted by Ipsos Strategic Marketing (detailed results on file with me). The survey found that of the (mostly Serb) population of the Republika Srpska only 59.2% say that they even heard of a massacre in Srebrenica, while only 34.8% of the people who say that they’ve heard of the crime believe that it actually happened. Thus, of the whole RS population 40.8% say they’ve never even heard of any massacre in Srebrenica, 38.6% say that they’ve heard of it but that it never happened, and only 20.6% believe it did. That, dear readers, is what ‘truth and reconciliation’ in today’s Bosnia look like.

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The Use of Force Against People Smugglers: Conflicts with Refugee Law and Human Rights Law

Published on June 22, 2015        Author: 

On 18 May, EU ministers agreed on a military operation (EU NAVFOR Med) that could comprise, in its final phase, the boarding, seizure and destruction of suspected migrant smuggling vessels, subject to approval by the UN Security Council. Negotiations before the Security Council appear to have halted until both the Libyan government in Tobruk and the ruling authorities in Tripoli give consent. Meanwhile, a diplomatic source involved in the EU internal talks on the matter stated that a military operation could be decided on 22 June at the Foreign Affairs Council in Luxembourg.

In earlier EJIL talk! posts, Melanie Fink and Sergo Mananashvili argued that a Security Council Resolution would be questionable under the law of the use of force. But a resolution would also raise issues of compliance with refugee and human rights law and thus would produce a norm conflict between a Security Council Resolution and other international law.

The Likely Need to Have Forces Close to the Libyan Shore

Let’s look at the most likely scenarios around the use of force, were the EU move forward and the UN Security Council to approve of the plans.

An earlier EU strategy paper had foreseen ‘intelligence, surveillance and reconnaissance; boarding teams; patrol units (air and maritime); amphibious assets; destruction air, land and sea, including special forces units.’ Since then, the EU’s High Representative for Foreign Affairs and Security Policy, Federica Mogherini, has pointed out that the operation would not include ‘boots on the ground’ in Libya. At the same time, it is clear that EU diplomats seek more than approval to destroy vessels intercepted at sea, and from which all migrants have disembarked. The EU seeks a UN resolution for destroy smuggling vessels before they have departed.

Identifying smuggling vessels before they have departed will be challenging without deploying people on the ground in Libya. Smuggling vessels can clearly be identified as such only at or shortly before the time they are being used for smuggling. Read the rest of this entry…

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The Legal and Political Feasibility of the EU’s Planned ‘War on Smuggling’ in Libya

Published on June 10, 2015        Author: 

Introduction

On 19 April 2015, after a series of deadly shipwrecks, over 800 migrants perished when their smuggling boats, boarded in the Libyan port Zuwara, capsized in the Mediterranean Sea. The response from the EU was immediate. On 20 April, at a joint meeting of EU Foreign and Interior Ministers, the EU Migration Commissioner presented a 10-point action plan, the second point of which foresaw “[a] systematic effort to capture and destroy vessels used by the smugglers. The positive results obtained with the Atalanta operation should inspire us to similar operations against smugglers in the Mediterranean”. At the special meeting of the European Council on 23 April 2015, this was streamlined into the commitment to undertake “systematic efforts to identify, capture and destroy vessels before they are used by traffickers”. These events precipitated the adoption on 18 May of a decision of the EU Foreign Affairs Council, establishing an EU military operation called EUNAVFOR MED with the mission “[to disrupt] the business model of human smuggling and trafficking networks in the Southern Central Mediterranean, achieved by undertaking systematic efforts to identify, capture and dispose of vessels and assets used or suspected of being used by smugglers or traffickers” (Art. 1).

According to Article 2 of the decision, EUNAVFOR MED shall be implemented in three sequential phases. The first phase will be the “lightest”, aiming at the detection and monitoring of migration networks through information gathering and patrolling on the high seas. It is only in the second and third phases that the operation should achieve the aforementioned aspirations. Thus, in the second phase, it is foreseen to board, search, seize and divert suspected vessels, both on the high seas and in the territorial or internal waters of the state concerned whereas for the third phase, the decision speaks of taking all necessary measures against a suspected smuggling or trafficking vessel and related assets, “including through disposing of them or rendering them inoperable in the territory of that State” (Art. 2(b).

The decision makes the implementation of those second- and third-phase measures which need to be conducted in the territorial sea, the internal waters or the land territory of Libya conditional upon “any applicable UN Security Council Resolution or consent by the coastal State concerned” (Art. 2). This is quite logical. As the planned enforcement measures involve a threat or actual use of coercive power, the fundamental international law principles of sovereign equality, territorial sovereignty and non-interference prohibit the EU Member States from exercising enforcement jurisdiction in the territory of Libya (including territorial and internal waters) without: 1) Libya’s permission and/or 2) the authorization of the UNSC under Chapter VII of the UN Charter (on international law implications cf. Gallagher and David, The International Law of Migrant Smuggling, CUP, 2014. p. 222).

Because there are competing authorities claiming to be the government of Libya, and inspired by the previous experience with the UNSC-accepted EU anti-piracy military operation ATALANTA (launched in 2008 in the framework of European Common Security and Defence Policy to combat the piracy off the coast of Somalia), the EU opted from the very beginning for seemingly the easiest and fastest solution, which is to obtain the green light from the UNSC. In the following, I will elaborate on the feasibility of this option. Read the rest of this entry…

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