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Home International Organisations Archive for category "Security Council" (Page 7)

Kadi Showdown: Substantive Review of (UN) Sanctions by the ECJ

Published on July 19, 2013        Author: 

I. Introduction

After more than a decade on the UN 1267 sanctions list, Yassin Abdullah Kadi was delisted by the UN 1267 Committee on 5 October 2012, following review of a delisting request he had submitted through the Office of Ombudsperson: a mechanism established by Security Council Resolution 1904 (2009) and enhanced by Security Council Resolution 1989 (2011)—and a mechanism which the Kadi cases before the European Union courts (along with some others in domestic courts, such as Nada, Abdelrazik, Hay, Ahmed, etc) pushed to create.

Kadi’s delisting came at a time when the European Commission, the Council of the EU, and the UK were pursuing an appeal against the General Court’s decision in Kadi II. This was the decision striking down Kadi’s re-listing by the EU following the annulment of the Regulation listing him for the first time by the ECJ in Kadi I (for comment see here). And yet the appellants did not give up their appeal. It was not just that the delisting came shortly after oral argument before the ECJ had been concluded; they also wanted a decision on the serious issues raised in Kadi II, in particular the question of the standard of review that EU courts will apply in reviewing UN-imposed terrorist sanctions against named individuals and legal entities. The importance of this jurisprudence for future cases is obvious.

The Grand Chamber of the ECJ delivered its decision on the Kadi II appeal on 18 July 2013. It upheld the decision of the GC striking down the Regulation relisting Kadi, even if it did overturn part of the GC reasoning. Most notably, it affirmed that it will continue to review EU listings implementing strict Security Council obligations in the face of lack of equivalent control at UN level, it insisted on a rather strict standard of review of such listings, and it undertook—for the first time—substantive review of the reasons for listing offered by the EU (which were in fact merely those offered in the terse ‘narrative summary of reasons for listing’ that the Security Council released). Read the rest of this entry…

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The Security Council and the ICC

Published on July 3, 2013        Author: 

The University of California Irvine Law School’s International Justice Clinic recently issued an important report examining the relationship between the UN Security Council and the International Criminal Court.   The report, authored by UCI Irvine Prof David Kaye, is the culmination of a project on the Council and the Court run by UC Irvine, in collaboration with the University of California Los Angeles (UCLA) Burkle Center for International Relations.  The purpose of the project was to examine the relationship between the Security Council and the ICC and to seek concrete ways in which the Council can improve its support to the ICC. At the end of November last year, I attended a closed workshop, held as part of the project, which was attended by a small but diverse and impressive group of scholars and practitioners. Participants included academics, members of civil society, current or former officials from governments, including each of the P5, as well as representatives from the ICC bench, office of the prosecutor and the registry. Over two days, we discussed a number of stumbling blocks in the relationship between the Council and the Court, in particular the difficulties in securing referrals by the Council to the Court, problems regarding the framing of referrals, issues of funding and cooperation etc.

The report makes a couple of institutional or structural recommendations for improving the dialogue between the Council and the Court and for building support within the Council for the work of the Court. It also makes a number of specific policy recommendations regarding matters which should be addressed in Council resolutions relating to the ICC. The recommendations are as follows:

1. Extension of the obligations of cooperation with the Court to all states, not just the situation countries themselves, especially in referral situations but also possibly in those circumstances where the Council has expressed support for the work of the Court in non-referral situations;

 2. Provision of timely substantive responses to Court findings of non-cooperation that are communicated to the Council, as the Court has done on several occasions;

3. Extension of key Rome Statute protections of privileges and immunities in referral and other situations, thereby allowing Court officials to conduct their work safely and without interference from local actors;

4. Regular and streamlined imposition of financial, travel, and diplomatic sanctions on those accused by the ICC, helping to dry up the accused’s resources and highlight the importance of state cooperation in transferring such individuals to ICC custody;

 5. Promotion of UN and outside funding in referral situations, eliminating the language from referral resolutions purporting to disallow UN funding;

 6. Elimination of jurisdictional restrictions related to non-parties in referral resolutions, enabling the Court to exercise independence in identifying those most responsible for the most serious crimes in situation countries; and

7. Initiation of a transparent conversation about the factors relevant to Council referral of situations to the Court, recognizing that the Council is highly unlikely to identify specific criteria to guide future referrals.

It seemed to me, from the discussions at the workshop, that recommendations 5 and 6 are achievable in the short term. The relevant provisions in Council referral resolutions are added in order to meet the concerns of the US. Read the rest of this entry…

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Iran’s (Non-)Compliance with its Non-Proliferation Obligations Revisited

Published on June 22, 2013        Author: 

A recent statement issued by the EU entitled ‘Common messages regarding EU sanctions against the Iranian nuclear programme’, posted on the websites of various EU embassies in Tehran (and translated into Farsi), attempts to sum up the reasons which have allegedly justified not only the sanctions on Iran decided by the UN Security Council, but also those adopted by the EU itself, which, as the document make clear, are ‘autonomous sanctions, beyond the ones imposed on Iran by UNSC Resolutions’. However, the recent EU statement, like others making allegations against Iran with respect to its nuclear programme, is vague and imprecise in terms of content of the obligations allegedly breached by Iran. It states that ‘[s]anctions are a response to Iran’s violations of its international obligations’, but it fails to give a precise indication of exactly what obligations would have been breached. In fact, it is noteworthy that the statement limits itself to pointing to the violation by Iran ‘of several resolutions of the United Nations Security Council and IAEA Board of Governors resolutions’, and does not state explicitly that Iran would have breached either its Safeguards agreement with the IAEA, or the NPT itself (which mandates in its Article III the implementation of such safeguards). I have shown previously (here and here on EJIL:Talk!) that it is very dubious that EU sanctions on Iran agreed in 2012, including the comprehensive oil and gas embargo and the freezing of assets of the Iranian central bank, actually comply with both procedural and substantive conditions applicable to countermeasures under the 2001 ILC Articles on State Responsibility.

The purpose of this post is to make two further points. First, the IAEA, in making findings (in Sept 2005) of non-compliance by Iran, has not applied properly applicable rules (both procedural and substantive) in its assessment of Iran’s conduct with respect to its obligations under Iran’s NPT Safeguards Agreement’ (CSA). This implies that the legal validity of such finding is, to say the least, very doubtful.

Second, an authoritative legal determination of the issue of Iranian compliance (or non-compliance) with the obligations assumed under the CSA, or a pronouncement on the existence and the materiality of a breach by Iran (in the meaning of ‘material breach’ under Article 60 of the Vienna Conventions) of the latter, has not yet been made and would indeed require the involvement of the ICJ or of an arbitral tribunal. Read the rest of this entry…

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The Law Applicable to Peacekeepers Deployed in Situations where there is No Armed Conflict

Published on April 10, 2013        Author: 

Siobhán Wills  is Professor of Law at the University of Ulster, Northern Ireland.

I have been researching the peacekeeping operation in Haiti, MINUSTAH, and in doing so coming up against a problem that I would appreciate the  thoughts of EJIL:Talk! readers on. There have been a number of incidents that have raised complaints of excessive use of force and counter arguments that the force was not excessive.  My query is simply ‘what law applies’ to the peacekeeping mission (in particular in the context of the use of force) given that there is not, and never was, an armed conflict in Haiti. When the Security Council authorises use of force (whether in an enforcement action against a State or in a peacekeeping operation) I assume that the coalitions of the willing or UN troops undertaking the action must exercise their authority to use force in accordance with international law. But if there is no armed conflict what law governs peacekeepers’ use of force under Chapter VII?

Reports and commentaries by MINUSTAH personnel suggest that the commanders of MINUSTAH, and their political advisors at the UN, and advisors from the US, France and Canada, believe that since MINUSTAH has a Chapter VII mandate they can use whatever force they deem necessary to carry out that mandate so long as they comply with their Rules of Engagement (ROE). However, presumably the ROE must be drafted to fit within the constraints of the applicable international law framework. MINUSTAH’s ROE are not publicly available but the language used in MINUSTAH reports and commentaries suggests that International Humanitarian Law (IHL) is the overall governing framework within which the mission believes it ought to be operating. (Certainly mission personnel do not appear to be thinking within a Law Enforcement framework and frequent references to ‘collateral damage’ suggest an IHL framework). This would not be surprising since IHL is the law in which peacekeepers are primarily trained ie when peacekeepers initiate use of force they do so within a legal framework (they don’t make up their own rules just because they have a Chapter VII mandate) and that framework is normally IHL.

I have not spoken to anyone from MINUSTAH but I have spoken to commanders that have served in UN peacekeeping missions in other countries where there is no armed conflict (UNMIL in particular) and their view is that, regardless of whether or not there is an armed conflict in the country to which they are deployed, if the mission has a Chapter VII mandate it may use whatever force is necessary to carry out that mandate; and when the mission does use force for this purpose IHL becomes applicable to that particular operation.

I have sympathy for commanders trying to carry out their tasks under a Chapter VII mandate in a violent and volatile situation; but I do not understand how (or on what basis) IHL can be applicable where there is no armed conflict. Read the rest of this entry…

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Sharing Responsibility for UN Targeted Sanctions

Published on February 14, 2013        Author: 

Cross-posted from the SHARES Blog

UN targeted sanctions, especially those related to terrorism, have had their fair share of the limelight lately, particularly in view of important decisions by the ECJ, the ECtHR, the UK Supreme Court and others in cases such as KadiNada, and Ahmed. Here, I try to look at this jurisprudence through the lens of the project on shared responsibility (SHARES). After introducing the relevant sanctions regime, I argue that the complex conduct of the UN and its member-states in designing, imposing, and implementing the sanctions leads to them sharing international responsibility for the resulting breach of aspects of the internationally protected right to a fair trial. This is so because states are ‘held responsible’ in their own domestic courts or in regional international courts, which then forces them to turn to the UN and seek to implement the organisation’s international responsibility. In this manner, the international responsibility for what is in effect ‘shared’ conduct is itself shared, in practice. Read the rest of this entry…

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French Military Intervention in Mali: It’s Legal but… Why? Part II: Consent and UNSC Authorisation

Published on January 25, 2013        Author: 

In the First Part of this comment we have seen that reference to article 51 of the UN Chapter in order to justify Operation Serval, is problematic. We will now discuss the two other legal arguments used by France.

 Consent of the Malian Authorities

The argument according to which the authorities of Mali had the sovereign right to request external military intervention against the Islamist rebels and that France had the right to intervene on the basis of this invitation seems a priori powerful. Indeed, in her comments to the press just before the start of Operation Serval, Susan Rice, the U.S. Permanent Representative to the United Nations, argued that any State “can support and encourage the Malian government’s sovereign request for assistance from friends and partners in the region and beyond’ and that “there was clear-cut consensus about the gravity of the situation and the right of the Malian authorities to seek what assistance they can receive”.

This should nonetheless not lead to the conclusion that third States have an unlimited right to military intervention on the basis of the request or the consent of the legitimate authorities of the State where the intervention takes place. External intervention by invitation should be deemed in principle unlawful when the objective of this intervention is to settle an exclusively internal political strife in favor of the established government which launched the invitation (see T. Christakis & K. Bannelier, “Volenti non fit injuria? Les effets du consentement à l’intervention militaire”, Annuaire Français de Droit International, 2004, at 102-138). Such a military intervention will not be in principle in violation of art. 2(4) of the UN Charter, which is inoperative in such a situation because there is no use of force of one State against another (see art. 2 §4: “in their international relations”) but two States cooperating together. Such a military intervention could however constitute a violation of the principles of non-intervention and non-interference in domestic affairs and the principle of self-determination of peoples. The resolutions adopted within the UN General Assembly and State practice in this field confirm this conclusion which was also shared by authors such as M. Bennouna, L. Doswald-Beck or by the Institute of International Law in its 1975 Wiesbaden Resolution on The Principle of Non-Intervention in Civil Wars (esp. art. 2) or the 2011 Rhodes Resolution on Military Assistance on Request. ” Read the rest of this entry…

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French Military Intervention in Mali: It’s Legal but… Why? Part I

Published on January 24, 2013        Author: 

Part 1: The Argument of Collective Self-Defense

Dr. Theodore Christakis is Professor of International Law at the University Grenoble-Alpes (France). He is Director of the Centre for International Security and European Studies (CESICE) and chairman of the ESIL Interest Group on Peace and Security.

Dr. Karine Bannelier is Assistant Professor of International Law at the University Grenoble-Alpes (France). She is Director of the Master’s Degree in International Security and Defense.

One week after France launched its military intervention (“Operation Serval”) in Mali, there seems to be a general consensus concerning the legality of this intervention. Indeed, as the French Minister of Foreign Affairs Laurent Fabius rightly emphasized, France has not received a single protest concerning this intervention. On the contrary, the number of expressions of support is overwhelming: many individual States, regional organizations (including ECOWAS), the UN Secretary General and the members of the UN Security Council themselves have expressed their support and understanding. Even the rare States who expressed their opposition to this intervention did not challenge its legality. This contrasts with various military interventions in the past which were met with strong criticism and seems to indicate that no State doubts the legality of the French intervention in Mali.

But what is the precise legal basis authorizing it?

Read the rest of this entry…

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France Intervenes in Mali Invoking both SC Resolution 2085 and the Invitation of the Malian Government – Redundancy or Legal Necessity?

Published on January 23, 2013        Author: 

Vidan Hadzi-Vidanovic is a lawyer in the Registry of the European Court of Human Rights. The views expressed in this contribution are those of the author and do not necessarily represent the views of the European Court of Human Rights and the Council of Europe.

On 11 January France commenced air-strikes against Malian rebel forces which are controlling two thirds of the Malian territory. It also commenced ground operations several days later. The French Foreign Ministry explained that it is acting upon the invitation of the Malian government. Nevertheless, it emphasized that the action is conducted “strictly in the framework of the United Nations Security Council resolutions”. The intervention came a day after the Security Council called for a “rapid deployment of the African-led International Support Mission in Mali (AFISMA)” which was authorized by Resolution 2085 (2012) to “take all necessary measures” for supporting Malian authorities in “recovering the areas in the north of its territory under the control of terrorist, extremist and armed groups and in reducing the threat posed by terrorist organizations”.

Looking at the position of the French government and the formulation of the relevant provisions of Resolution 2085, one may rightfully wonder what the legal basis for the French intervention and the announced deployment of the Nigerian-led intervention forces actually is. Is it an intervention based on the invitation of the legitimate government of Mali, or an intervention based on the authorization of the Security Council, or are the two separate legal grounds mutually reinforcing?

Read the rest of this entry…

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The Kadi case: Response by Juliane Kokott and Christoph Sobotta

Published on January 16, 2013        Author: 

We are grateful to EJIL that our article in the latest issue of the journal has been chosen for discussion in this forum. The commentaries by Yang and Tzanakopoulos help us to put our position into perspective and frame it more precisely.

 Tzanakopoulos develops the Solange argument for judicial control in multilevel systems in the way that implicitly underlies our understanding in the first part of our contribution. His argument is almost binary in its nature. Either the standards of judicial control on the other level are adequate or our level will control measures from the other level.

However, Yang provides a more nuanced image: Solange or not Solange – that is not the question. The conditions of a Solange rule are what is important. And we would add that also the consequences of the conditions are of interest. Read the rest of this entry…

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Kadi and the Solange Argument in International Law

Published on January 15, 2013        Author: 

Antonios Tzanakopoulos is University Lecturer in Public International Law at the University of Oxford and Fellow of St Anne’s College, Oxford.

It is a pleasure to have been invited to contribute to the discussion of the article by Juliane Kokott and Christoph Sobotta on balancing constitutional core values and international law against the background of the Kadi case. At the outset I must state that I find myself in broad agreement with what I understand to be the authors’ central argument: ie that the CJEU (or ECJ) employed a variant of the Solange argument, if implicitly, in its Kadi judgment of 2008. I have in fact also argued this in a paper I presented in Oslo in 2009, which appeared in print in January 2012 (here) and indeed on this blog (here and here). I would kindly ask readers (if any) to also read the latter blog posts, as the present comment builds on the premises there laid out.

I will proceed with the discussion of three major issues that arise from the authors’ discussion of Kadi as a balancing exercise between constitutional core values and international law. The first issue refers to the perceived ‘dualism’ of Kadi and consequently of any attempt to employ a Solange argument. The second issue deals with the content of the Solange argument, in particular with the rules it seeks to establish and / or safeguard. And the final issue deals with the justification of the Solange argument in (international) law and the ‘battle for the analogy’. Read the rest of this entry…

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