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Home International Organisations Archive for category "Security Council" (Page 6)

Targeted Sanctions after Affaire Al-Dulimi et Montana Management Inc. c. Suisse: Is There a Way Out of the Catch-22 for UN Members?

Published on December 4, 2013        Author: 

SanctionsUN member states remain caught between the obligation to carry out Security Council decisions under Art. 25 of the UN Charter and the obligation to respect international or regional human rights guarantees. The chamber judgment of 26 November 2013 in Al-Dulimi, No. 5809/08, is the second decision of the European Court of Human rights (ECtHR) on targeted sanctions after Nada (ECtHR (Grand Chamber), Nada v. Switzerland, No. 10593/08, judgment of 12 Sept. 2012). In contrast to the constellation in Nada, the UN member states (here Switzerland) had no leeway at all to implement the Iraq sanctions imposed by UN SC Res. 1483. However, because the UN sanctions regime did not guarantee “equivalent protection”, the Bosphorus-presumption that the states’ implementing measures are in conformity with the European Convention of Human rights (ECHR) did not apply – in other words, it did not help the state that it had no leeway. Strasbourg examined in full whether Art 6 ECHR had been lawfully restricted by Switzerland and found that this was not the case. On the contrary, the Swiss Federal Tribunal’s refusal to scrutinize the merits of Al-Dulimi’s complaint (with a view to Art. 103 UN Charter), had undermined the very essence of Art. 6 ECHR and therefore Switzerland violated the Convention.

By insisting on full responsibility of ECHR members for violations of the Convention, independently of their “strict” obligations under Security Council resolutions, Strasbourg has in Al-Dulimi stabilized the catch-22-situation. This blog post argues that member states should not be left off the hook, but also calls for responsibilizing the United Nations. Read the rest of this entry…

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The New Deal Between the P5+1 and Iran

Published on November 26, 2013        Author: 

Dan Joyner is Professor of Law at the University of Alabama School of Law in the U.S.  He is the author of two books on nuclear non-proliferation law, and of a monograph currently under contract with Oxford University Press, entitled Iran’s Nuclear Program and International Law. He blogs regularly at www.armscontrollaw.com

Like many, I stayed up late Saturday night following the Twitter updates of what was developing in the Geneva negotiations between Iran and the P5+1.  And like most, I was thrilled to hear that an initial accord had been reached. A historic agreement that potentially signals a thawing in relations between Iran and the West – the best such indication since 1979. It was a night of high drama.

I’ve now had a chance to read over the product of this agreement – a four page document entitled Simply “Joint Plan of Action.”

I would observe first of all that I agree with Duncan Hollis in his assessment over at Opinio Juris that this agreement is intended by the parties to be non-legally-binding. Duncan provides a review of the reasons for this conclusion. As I noted in a comment to his post, I think the diplomats in Geneva had enough trouble reaching agreement on a text in this politically binding form, and would have shuddered at the thought of having to get it approved by their respective legislatures.

However, legally non-binding international agreements can still have significant legal, as well as political, implications.

The document lays out in detail Iran’s commitments under the accord. They comprise a very significant list of concessions, cumulatively limiting Iran’s nuclear program and preventing any further development of the program for the six month duration of the agreement. I think it is worth noting that all of these steps together comprise a more significant list of concessions than was expected by most observers. Nevertheless, it is also important to note that none of them, and not even their sum, is beyond what Iran had already offered in past negotiations, going back at least to 2005. Read the rest of this entry…

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Syria and the Law of Humanitarian Intervention (Part II: International Law and the Way Forward)

Published on October 4, 2013        Author: 

Editor’s Note: This piece was originally published on Just Security.

My first post for Just Security explained why, despite some bungled politics, President Obama’s proposed military action in Syria could have been lawful under U.S. domestic law.  This post discusses why President Obama did not violate international law by threatening to use force in Syria in the face of a persistent Russian veto, and how the Syria crisis might best evolve from here.

Obviously, we cannot fully evaluate the lawfulness of any state’s use of force until we know the precise factual circumstances under which it chooses to take action.  But let’s start by distinguishing the legal question—is the option of military force available under domestic or international law?—from the policy question: would it be wise to use military force in Syria for the limited purpose of discouraging a repeat use of chemical weapons?  No one denies that the policy question presents a vexing judgment call, even if the intended use were very limited and even if a decision-maker like President Obama had far more information than that available to the general public. As Nick Kristof rightly cautioned, “[l]et’s be humble enough to acknowledge we can’t be sure of the answer and that Syria will be bloody whatever we do.”  The shifting balance of power in the Syrian civil war; the proliferation of questionable armed groups on both sides, the risk of mission creep, and the uncertainty of follow-on consequences from any military strike all demand caution, particularly if one starts from the premise, “first, do no harm.”

3. Was the Proposed Military Action Lawful Under International Law? That said, a prior and distinct legal question remains: would the policy option to use military force ever be available under either domestic or international law? My last post explained the circumstances under which U.S. domestic law allows policymakers that policy option.  But does international law nonetheless bar it? I believe that international law has evolved sufficiently to permit morally legitimate action to prevent atrocities by responding to the deliberate use of chemical weapons.

Among international legal commentators, the emerging party line seems to be that President Obama was threatening blatantly illegal military action in Syria, for the simple reason that the Russians were not on board. The conventional argument, set forth by among others, my Yale friends and colleagues Oona Hathaway and Scott Shapiro, is “per se illegality:” in their view, Article 2(4) of the U.N. Charter permits individual and collective self-defense but bars any and all other forms of intervention without express Security Council authorization. They see the Syrian crisis as a moment to reaffirm that acting without an UN Security Council Resolution is per se illegal.  But is that really what international law requires? Read the rest of this entry…

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Syria, Security Resolution 2118 (2013) and Peace versus Justice: Two Steps Forward, One Step Back?

Published on October 3, 2013        Author: 

Chemical weaponsOn 27 September 2013, the Security Council adopted Resolution 2118 (2013). The resolution broke the diplomatic impasse over Syria in the Security Council. It was celebrated as a diplomatic success and as a ‘precedent-setting’ resolution. It marks fundamental progress, on at least two fronts: (i) It shifted the debate on the use of force from claims of unilateral intervention to collective security action (which is in line with the spirit of the Responsibility to Protect idea under the World Summit Outcome Document); and (ii) it reinforced of the normative regime regarding the ban of the use of chemical weapons. (photo: mustard gas shells, credit)

As has been aptly noted,  the text of resolution has not been expressly adopted under Chapter VII. But this does not detract from its binding force (Article 25 of the UN Charter) and its legal significance. The most immediate consequence of Resolution 2118 (2013) is that averted the threat of unilateral military strikes. The text of the resolution makes it makes it clear that military action to enforce compliance with obligations under the Resolution needs to be channelled through the Security Council. The wording differs from Security Council Resolution 1441 (2002) which afforded Iraq ‘a final opportunity to comply with … disarmament obligations under relevant resolutions of the Council’ (para. 2), and recalled that ‘Iraq […] will face serious consequences as a result of its continued violations of its obligations’ (para. 13). Resolution 2118 (2013) maintains the prerogative of the Council to decide on future action. It states that the Security Council ‘decides’ on measures ‘in the event of non-compliance with’ the resolution (para. 22). This makes it hard to justify unilateral strikes, based on the interpretation of the Resolution, as argued in the context of Iraq, where Resolution 1441 was invoked in conjunction with Resolution 678 (1990) to justify the use of force. The wording of Resolution 2118 adopts a different approach. It suggests that the burden lies on the Council to reach agreement.  It leaves some choice as to the type of measure to be adopted (e.g., sanctions or other measures under Article 41, or coercive measures under Article 42). But the wording (‘The Security Council ‘[d]ecides […] to impose measures under Chapter VII’)  seems to reflect an implied pre-commitment to act which is visibly designed to prevent risks of future inaction by the Council.

Secondly, the resolution marks new ground since it proclaims a ‘new’ norm regarding the universal ban on the use of chemical weapons. It clarifies that ‘the use of chemical weapons anywhere constitutes a threat to international peace and security’ (para. 1).It thus embraces a new commitment by the Security Council to the prohibition of the use of chemical weapons ‘anywhere’, ‘anytime’ and ‘under any circumstances’. As argued by Marko Milanovic, this universal ban bears resemblance with the generic finding in the preamble of Resolution 1373 (2001) that ‘acts, like any act of international terrorism, constitute a threat to international peace and security’. It puts pressure on the Council to deal with such incidents in the future. It coincides with parallel developments in international criminal law, i.e. the extension of the war crime of employing poison, poisonous weapons or prohibited gases, liquids, materials or devices to non-international armed conflicts at Kampala, as discussed by Dapo Akande.

But like the preceding discourse on intervention, the resolution contains a fundamental contradiction. Read the rest of this entry…

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A Few Thoughts on Resolution 2118 (2013)

Published on October 1, 2013        Author: 

The official final text of Security Council resolution 2118 (2013) on Syria is now available, as is the full proces-verbal of the Council’s discussion after the adoption of the resolution (text available here; ODS search strangely still showing it as under embargo; S/PV.7038). The main points of the resolution have of course received much attention from the press, and there is also commentary by John Bellinger on Lawfare and Ryan Goodman on Just Security, here and here). There are a couple of features of the resolution that I find particularly interesting.

First, there’s the fact that in its last preambular paragraph the Council unanimously endorsed the view that all Council decisions, and not just Chapter VII resolutions, are legally binding. This was of course due to careful diplomacy between the US and Russia, with the former wanting a legally binding instrument and the latter refusing to agree to a Chapter VII resolution. The compromise between the two is reflected in the preambular paragraph when the Council is ‘underscoring that Member States are obligated under Article 25 of the Charter of the United Nations to accept and carry out the Council’s decisions’ and then in a number of operative paragraphs which use the verb ‘decides’ to impose legally binding obligations.

In other words, while decisions under Chapter VII are legally binding (even though resolutions under this chapter will frequently include non-binding recommendations as well), they are not the only decisions with binding force. This is I think the first time that the Council so openly adopted this view, which was endorsed before it by the ICJ in the 1971 Namibia advisory opinion. Doctrinally of course the issue was not settled and continued to be debated; for an overview see John Bellinger’s post as well as this excellent report linked to by Ryan. But now the matter does seem to be finally settled, with the ICJ’s interpretation of the Charter garnering unanimous support of the Council.

The PV of the meeting, at which many delegations stressed the legally binding nature of the resolution, only supports the resolution’s text. I think Ryan is wrong when he argues that Russian Foreign Minister Lavrov ‘took a swing at the legal strength of the Resolution’ when he stated that it was not passed under Chapter VII. As I see it, Russia is in full agreement with the US and the UK that the resolution did create binding obligations – this is at least implicit in his following statement on p. 4 of the PV:

Particular responsibility lies with those who back and sponsor the opposition; they have to ensure that chemical weapons do not fall into the hands of extremists. We draw attention to the fact that the resolution contains requirements set by the Security Council that apply to all countries, especially Syria’s neighbours. They must report to the Council any attempts by non-State actors to obtain chemical weapons. It would be even more unacceptable for them to support such attempts. All similar cases will be immediately considered by the Security Council with the objective of taking the necessary measures. (emphasis mine)
What Chapter VII brings to the table is not necessarily the binding nature of the measures enacted, but telling us what the measures can substantively be under the Charter, e.g. the authorization to use force. And this is what the Russians are (rightly) concerned about; they don’t want there to be any plausible argument that the Council has implicitly authorized force, and this is what they achieved. But that does not mean that they do not consider the decisions made within the resolution, e.g. for Syria not to use chemical weapons, to cooperate with the OPCW, etc., to be non-legally binding.

The second striking thing about the resolution is its determination in the first operative paragraph ‘that the use of chemical weapons anywhere constitutes a threat to international peace and security.’ In other words, any use of chemical weapons by anyone anywhere is ipso facto a threat of international peace and security, and justifies the Council’s intervention. The Council has previously made such determinations only rarely, as e.g. in resolution 1368 (2001) in which it found that any act of international terrorism was a threat to international peace and security.

Also of note is op. para. 19, in which the Council ‘demands that non-State actors not develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery, and calls upon all Member States, in particular Member States neighbouring the Syrian Arab Republic, to report any actions inconsistent with this paragraph to the Security Council immediately.’ Note how the demand is addressed to non-state actors directly and is very precise in scope; this of course raises the issue whether the Council can create legally binding obligations for non-state actors, and whether it has done so in this particular instance (cf. the ICJ’s Kosovo advisory opinion). The Council buttressed this ‘demand’ (but not a ‘decision’?) by deciding in op. para. 20 that ‘all Member States shall prohibit the procurement of chemical weapons, related equipment, goods and technology or assistance from the Syrian Arab Republic by their nationals, or using their flagged vessels or aircraft, whether or not originating in the territory of the Syrian Arab Republic.’

Finally, the Council’s decision in op. para. 21 to impose Chapter VII measures in case of non-compliance is also I think a novelty – although it clearly wouldn’t prevent a veto regarding the adoption of a further resolution, it would render that veto even more politically suspect.

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Stepping Back a Moment – The Legal Basis in Favour of a Principle of Humanitarian Intervention

Published on September 12, 2013        Author: 

Sir Daniel Bethlehem KCMG QCsir-daniel-bethlehem is a barrister in practice at the London Bar, Visiting Professor of Law at Columbia Law School and was formerly principal Legal Adviser of the UK Foreign & Commonwealth Office.

The debate on possible intervention in Syria has moved beyond the discussion of whether any such action would be justified by reference to a principle of international law of humanitarian intervention.  Given the importance of, and interest in, this issue to this point, however, it may be useful to step back a little and reflect on the detail of the legal arguments that might be advanced in support of the existence of a principle of humanitarian intervention – not specific to Syria or the use of chemical weapons but for purposes of addressing an unfolding humanitarian catastrophe more generally. 

There are at least two distinct though intersecting strands of legal argument that could support a sustainable conclusion that the use of force in circumstances of dire humanitarian need would be lawful under international law notwithstanding the absence of an authorising Chapter VII resolution of the UN Security Council or other Charter-based justification (such as collective self-defence).  The first strand is purpose-driven, focused on the insufficiency of a narrow, traditionalist view of the law on such matters and the consequential imperative to translate from the existing law to address circumstances of dire humanitarian need.  This approach contends for the rapid crystallisation of a norm of customary international law in favour of a principle of humanitarian intervention – akin to the process that has seen the rapid crystallisation of other principles of customary international law, such as that of maritime straight base-line delimitation, on the basis of only limited (and even contested) State practice (and opinio juris) but compelling reason and need.

The second strand is more rooted in the detail of the law, pulling together threads of practice that in isolation may appear fragile and unreliable but which, when knitted together, are more robust and compelling.  As every litigation lawyer knows, an assessment of the legality of contested conduct is seldom a linear matter, there invariably being another side to the case.  Legality therefore often falls ultimately to be assessed by reference to a circumstantial appreciation of a range of factors rather than resting simply on some apparently trumping proposition of law.  In the case of the law on humanitarian intervention, an analysis that simply relies on the prohibition of the threat or use of force in Article 2(4) of the UN Charter, and its related principles of non-intervention and sovereignty, is overly simplistic.  The law in this area is more complex, even before one gets to any complicating issues of fact and imperatives of policy. Read the rest of this entry…

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Military force against Syria would be a reprisal rather than humanitarian intervention, but that doesn’t make it any more lawful

Published on September 1, 2013        Author: 

Dr Shane Darcy is a lecturer at the Irish Centre for Human Rights, National University of Ireland Galway.

The anticipated use of military force against Syria in reaction to the use of chemical weapons does not meet the permitted exceptions to the prohibition on the use of force under the United Nations Charter. Security Council authorisation has not been forthcoming, while self-defence is obviously not applicable. Although British MPs have blocked a United Kingdom military intervention, the United Kingdom government had relied up on humanitarian intervention as the legal basis to justify the use of force. The doctrine is controversial and as Dapo Akande has shown, it at best has weak legal standing in international law. But the type of limited military intervention envisaged bears all the hallmarks of a reprisal, rather than humanitarian intervention, and this concept is equally problematic in modern international law.

 Reprisals are a traditional means of law-enforcement, involving the unilateral use of force in response to breaches of international law. The Institut de Droit International defined reprisals involving the use of armed force in a resolution passed in 1934:

Reprisals are measures of coercion, derogating from the ordinary rules of international law, decided and taken by a State, in response to wrongful acts committed against it, by another State, and intended to impose on it, by pressure exerted through injury, the return to legality.

 The purpose of military intervention against Syria seems to be both punitive and deterrent; to punish Syria using chemical weapons in breach of international law and to deter any further use.  Such military action would be prima facie unlawful, in that it fails to meet the terms of the United Nations Charter. But might it be lawful as an armed reprisal?

Read the rest of this entry…

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Breaking: UK Government Discloses Legal Rationale for Syria Intervention

Published on August 29, 2013        Author: 

In more breaking news today, the UK government officially endorsed humanitarian intervention as a legal basis for using force against Syria. The full (and quite brief) statement can be found here, and is also reproduced below the fold. While it is not supported by a detailed legal analysis, it sets out three legal conditions for the use of force in a humanitarian intervention without UN Security Council authorization, and finds that Syria fulfils these criteria on the facts. This is as formal an expression of opinio juris by the UK as is possible, and probably the most official endorsement to date of humanitarian intervention (note also the absence of any reference to R2P).

I fully ascribe to Dapo’s analysis from his post yesterday, and have little to add in that regard: humanitarian intervention is not permissible in international law as it stands today, on 29 August 2013. The key issue for me here is how the UK is essentially trying to change international law by asserting a position and waiting to see how other players will react and possibly validate its view; the conceptual problems that Dapo points to aside, this is essentially how customary law works. I’d also refer readers to an excellent 1994 piece by James Crawford and Thomas Viles called ‘International Law on a Given Day’, on custom as ex-post facto rationalization, which is excerpted in part here.

UPDATE 1: The language of the UK guidance with regard to the three criteria reproduces almost verbatim an October 1998 FCO memo in respect of the impending intervention against the FRY, which is itself quoted in this article by Adam Roberts at p. 106.  One key difference between the two memos is that the 1998 uses UNSC resolution 1199 and UN reports as convincing evidence of an impending humanitarian catastrophe, and this is missing with respect to Syria.

UPDATE 2: Dapo and Philippe Sands discuss the problems with the UK government’s rationale in the Guardian here.

The UK statement in full:

Read the rest of this entry…

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The Legality of Military Action in Syria: Humanitarian Intervention and Responsibility to Protect

Published on August 28, 2013        Author: 

It now seems fairly clear that the US and the UK are set to take military action in Syria in the coming days in response to the recent chemical attacks there. The UK Prime Minister, UK Foreign Secretary and the UK Secretary of State for Defence have all asserted that any action taken in Syria will be lawful. But on what grounds will military action in Syria be lawful. As is well known, United Nations Charter prohibits the use of force in Art. 2(4), as does customary international law. The UN Charter provides 2 clear exceptions to the prohibition of the use of force: self defence and authorization by the UN Security Council. It is almost certain that there will be no Security Council authorization. In a previous post, I considered the possibility of a (collective) self defence justification for the use of force in response to a use of chemical weapons. The scenario contemplated then is very different from the situation that has emerged, and the language used, at least by the UK, does not hint at a use of force on the basis of national interest. However,  President Obama in a CNN interview last week did seem to speak of self defence when he said “there is no doubt that when you start seeing chemical weapons used on a large scale  … that starts getting to some core national interests that the United States has, both in terms of us making sure that weapons of mass destruction are not proliferating, as well as needing to protect our allies, our bases in the region.” A justification for force on this basis would sound like preemptive self defence in a way that is very close to the Bush doctrine. I find it hard to see the Obama administration articulating a legal doctrine of preemptive self defence claim in this scenario.

So, absent Security Council authorization and a self defence claim, would the use of force be lawful? This is a question receiving a lot of media attention in the UK and I spent much of yesterday fielding this question in various media interviews (here on Channel 4, on BBC Radio 5 live [around the 1hr 10 min mark] and here on the Syria Deeply website.) In an earlier post I considered the legality of arming rebels in Syria and concluded that there was no strong legal basis for doing so. Well, the same is true of direct military action. It is hard to make the case that international law allows the use of force in this scenario or that the use of chemical weapons makes the case for lawful military action easier. Read the rest of this entry…

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Mr. Kadi and Article 103 (A Poem)

Published on July 29, 2013        Author: 

Professor James Crawford SC FBA is Whewell Professor of International Law at the University of Cambridge

While wandering through a wadi
in the wastes of Saudi
I came across Mr KadiKadi
cracking rather hardy.

I said ‘you must feel blue
at what they’ve done to you’;
he said to me ‘that’s true,
but I’ve got the CJEU,

lacking whose authority
the P5 sorority
are now a small minority,
who’ve lost their old priority.’

And so went Mr Kadi
wandering down his wadi:
‘it’s all because of me;
I killed Article 103!’

_________________

* Editors’ note: We are delighted to publish Professor Crawford’s poem, which he first presented last week during a lecture at The Hague Academy of International Law. Previous posts about Kadi here(Kadi pictured above, credit.)

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