Home International Organisations Archive for category "Security Council" (Page 8)

Comment on Kokott/Sobotta “The Kadi Case – Constitutional Core Values and International Law – Finding the Balance?”

Published on January 14, 2013        Author: 

Nele Yang is a PhD candidate and research fellow at the Max Planck Institute for Comparative and International Law in Heidelberg.

The title of Kokott and Sobotta’s article (available free here) seems to suggest that this is another analysis of whether the 2008 Kadi decision succeeds in balancing core EU constitutional values and the effective implementation of UN anti-terrorist sanctions. Innovatively, however, the authors choose not to venture down this well-trodden path. Instead they ask what can be drawn from the Kadi judgment and the developments it has triggered in order to reduce conflict between the EU legal order and the UN Al-Qaida sanctions regime in general.

Solange – the Importance of Conditions

Kokott and Sobotta assert that the ECJ’s 2008 Kadi decision contains an approach similar to the German Federal Constitutional Court’s famous Solange. The question whether the 2008 Kadi judgment can be read as spelling out a Solange approach or at least leaving this approach open as one alternative for future action is less controversial than the article makes it out to be. Considering how much of the Kadi debate has been conducted around this issue, it is to be regretted that Kokott and Sobotta do not clarify that there is no “either/or” relationship between an approach à la Solange and a dualist approach. Moreover, Solange does not necessarily imply an attenuated form of dualism. To the contrary, depending on the conditions contained in the relative clause starting with “as long as”, the stance that it is this legal order which determines under which circumstances the other legal order will have any bearing on it might even be intensified. This is why we distinguish between Solange II and Solange I. Thus, “solange” in itself only expresses that interaction is made conditional. It does not say anything about the conditions, but the conditions are the crucial part. So the question is not so much whether a Solange approach can be drawn from the 2008 judgment but rather under which conditions the Court might in future cases practice deference.

  Read the rest of this entry…

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Discussion of Kokott and Sobotta, “The Kadi case – Constitutional Core Values and International Law – Finding the Balance?”

Published on January 13, 2013        Author: 

Over the next few days, we shall be hosting a discussion of Juliane Kokott and Christoph Sobotta’s article “The Kadi case – Constitutional Core Values and International Law – Finding the Balance?” which was published in the final issue of volume 23 of the European Journal of International Law (2012).  Juliane is an Advocate General at the Court of Justice of the European Union, and Christoph is a legal secretary in her chambers.  The first commentary on this article is by Nele Yang, who is a PhD candidate and research fellow at the Max Planck Institute for Comparative Public Law and International Law, and the second by Dr Antonios Tzanakopoulos, who is a lecturer in public international law at the University of Oxford and a fellow of St Anne’s College.  The final post in this discussion is a reply to Nele and Antonios’ comments by Juliane and Christoph.  You are invited to join in this conversation.

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Dan Joyner on “What If Iran Withdraws from the Nuclear Non-Proliferation Treaty?”

Published on January 9, 2013        Author: 

My friend, Dan Joyner who is Professor of Law at the University of Alabama School of Law, one of the leading scholars on the Nuclear Non-Proliferation Treaty (NPT) (and who blogs at Arms Control Law) has recently published two “European Society of International Law (ESIL) Reflections (see here) considering whether Iran can  unilaterally withdraw from the NPT, what legal framework would govern such a withdrawal, and what the legal implications of such a withdrawal would be. In those pieces he considers the legal meaning and application of Article X(1) of the NPT, using the conflict between Iran and the West over Iran’s nuclear program as a case study and illustration. These pieces are well worth a read. Quite aside from the political interest in the Iran nuclear issue, the questions he discusses raise some interesting points of general international law, for example the extent to which certain treaty provisions are subject to autointerpretation and the power of the UN Security Council to impose treaty obligations.

Article X(1) is the withdrawal provision of the NPT, and provides that:

“Each Party shall in exercising its national sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country. It shall give notice of such withdrawal to all other Parties to the Treaty and to the United Nations Security Council three months in advance. Such notice shall include a statement of the extraordinary events it regards as having jeopardized its supreme interests.”

In the first piece, Dan, concludes that

“if Iran wishes to withdraw from the NPT because of the concerns it has expressed about its membership therein no longer being in its national interest, it can do so upon its own subjective determination of the criteria in Article X(1), and there should be no basis for other states, or for the U.N. Security Council, to determine that such withdrawal is ineffective on either substantive or procedural grounds.

And although objective justification of the determinations that Iran must make according to the terms of Article X(1) is not required, the case of the U.S. withdrawal from the ABM treaty in 2002, and its stated reasons for withdrawal in that case, which received acquiescence from Russia, would appear to demonstrate that the reasons Iran could state in its declaration of withdrawal under current circumstances, are at least as compelling and as related to the criteria stipulated in the relevant treaty withdrawal clause, as were those cited by the U.S. in 2002.”

In short, in Dan’s view Art. X of the NPT is similar to provisions like Art. XXI of the General Agreement on Tariffs and Trade (GATT) (the essential security clause) which provide for the state to make its own determination of when it’s security interests have been imperilled. Readers will know that there have been cases before international investment arbiral tribunals considering similar clauses in Bilateral Investment Treaties. Also the ICJ considered similar clauses in Friendship, Commerce and Navigation Treaties in the Nicaragua and Oil Platform cases. In general, arbitral tribunals and the ICJ in those cases, have considered those clauses in BITs and FCNs not to be self-judging. But it is important to note that those clauses are worded differently from Art. X of the NPT or Art. XXI of the GATT, and in fact the ICJ hinted at this in the Nicaragua case suggesting that a clause worded like Art. XXI of the GATT would be self judging. And Art. X of the NPT is like the GATT clause because of the “if it decides” phrase. In short, I agree with Dan that all that is required is a good faith determination. [In 2003, Sope Williams and I published a piece in 43 Virginia Journal of International Law on “International Adjudication on National Security Issues” looking at how international tribunals have dealt with national security clauses in treaties].

In his second piece, Dan states that:

” No IAEA safeguards obligations would survive the NPT withdrawal, and there would be no general international legal obligation on Iran to dismantle or return to the IAEA or to other states, nuclear materials and technologies Iran received from them by virtue of its prior NPT membership.”

He goes on to consider whether:

“If Iran were to withdraw from the NPT, could the U.N. Security Council order Iran to rejoin the NPT, and to re-accede to its CSA  [Comprehensive Safeguards Agreement] with the IAEA?  My considered opinion is that such an order would be ultra vires, or beyond the authority, of the Security Council.”

This second point, relating to the Security Council, might well be correct in its own terms but does not consider whether the UN SC could impose the same terms on Iran as the NPT and the Safeguards agreement. The council would not need to order Iran to rejoin those treaties, it could just say that Iran has the same obligations as is contained in those treaties. Now, would that be unlawful or ultra vires? When Lebanon was unable to sign the treaty which was to create the Special Tribunal for Lebanon, the SC simply adoped a resolution containing the same text, thus imposing the same treaty terms on Lebanon but this time as an SC resolution, rather than as a treaty obligation. This was upheld by the Special Tribunal for Lebanon. Could the SC not do the same for Iran?

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Slouching towards the Cool War

Published on December 19, 2012        Author: 

This post is part of an editorial that will appear in the issue of EJIL (Vol. 23/4) that will be published tomorrow.

It was a feature of the Cold War that the Security Council was essentially immobilized in its principal functions under Chapter VII and at times Chapter VI. Since most conflicts were refracted through the dichotomous politics of the Super Powers and at times protagonists were little more than clients of the antagonists of the Cold War, both holding the veto, the Security Council was at best a place to hear canned ideological speeches before washing such down in one of NYC’s more salubrious eateries surrounding the Shoebox.

The year 1989 ushered in a different politics and a different paradigm. Suddenly, though far from perfect, the Security Council was no longer that dead letter of the past, with important initiatives carried out under its auspices and with its authority. The difference between Iraq I and Iraq II was telling: Iraq II was not a regress to the Cold War, a sign of failure and irrelevance. Iraq II was a functioning Security Council exercising its authority to say – at best or worst – a muted No.

The wars and bloodshed that trouble us most now are no longer the surrogate conflicts of the Cold War, internal or international. One is most concerned with dreadful and savage internal conflict, which can no longer with any credibility come under the gruesome legitimacy of ‘self-determination’, with its ‘hands off’ legal implication. Darfur in the past, and Syria – 25,000 senseless dead, 250,000 homeless and displaced and even larger numbers of external refugees – right now bracket a whole range of humanitarian catastrophes, mostly man made.

Responsibility to Protect (R2P) has featured in these pages with some fanfare, but somehow has not translated into an operational duty of action on the body at the centre of such potentialities, the Security Council. There was a moment when one thought that the locus of R2P would shift to the regional – after all, the humanitarian action surrounding Kosovo was NATO driven – circumventing, with questionable legality, the Security Council, but at least lending it the legitimacy that comes from collective and deliberative process rather than from unilateral cowboyism. But recent events in the South China Sea, and the inability of ASEAN to produce even a common communiqué, are just one of the signs that we may be entering a Cool War. No, we do not find this or that super power facing each other with arsenals at the ready, and the talk is very different. And yet, from one point of tension and global threat to another, whether Africa, the Mid East (Syria, Iran), South East Asia, the Koreas, Japan and China, the Security Council or regional bodies seem to be regularly thwarted by veto, by talk of veto, or by some other lack of consensus. The rhetoric is typically non-Cold War, but the actions begin to evoke memories. The voice is Jacob’s, but the hands are Esau’s. And suddenly we are back to the usual suspects. The Cool War upon us. Not very cool.

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Nada v. Switzerland: The Continuing Problem of Attribution of Conduct Taken Pursuant to Security Council Resolutions.

Published on September 25, 2012        Author: 

Dr Arman Sarvarian, Lecturer in Law at the University of Surrey specialising in public international law particularly ethical standards for counsel appearing before international courts and tribunals.

Editors’ Note: This post was originally a comment on the post by Marko but we have decided to move it up

One of the many interesting issues raised by the recent judgment of the European Court of Human Rights in Nada v. Switzerland is attribution of responsibility (point 2 in Marko’s earlier post on this decision). I would like to offer a few tentative thoughts on the handling of attribution of responsibility by the Court. In my view, the judgment appears to have continued a muddled and inconsistent line of cases dealing with the attribution to Member States and/or international organisations concerning conduct pursuant to UN Security Council resolutions or other joint operations under the aegis of an international organisation such as NATO or the EU (e.g. – Bosphorus v. Ireland, Behrami and Saramati v. France and others, Beric v. Bosnia and Herzegovina, Al-Jedda v. United Kingdom, Al-Skeini v. United Kingdom, Bankovic v. Belgium and others).  Of course, the rules of attribution for international organisations remain nebulous and a delicate work in progress but the Court’s handling could be improved. I should emphasise that I am working on a draft conference paper on the potential consequences of EU accession to the ECHR for the law of international responsibility focusing on Common Foreign and Security Policy operations pursuant to UN Security Council resolutions, so my comments here are jejune and tentative.

The respondent argued that the application was inadmissible ratione personae and ratione materiae because the impugned measures had been based upon Security Council Resolutions 1267 (1999) et seq. which, per Articles 25 and 103 of the UN Charter, were binding and prevailed over any international agreement. This argument, and even more so that of France as intervener, used both ‘hierarchy of norms’ and ‘attribution’ language. On the one hand, obligations emanating from Security Council resolutions displace obligations arising under the Convention by virtue of Articles 25(2) and 103 of the Charter (cf. Lockerbie). On this approach, there could have been no infringement of Convention rights because those rights were displaced with respect to this applicant. On the other hand, the same obligations arising out of the resolutions rendered the alleged infringement of the applicant’s Convention rights attributable to the UN and thus, per the ‘Monetary Gold principle’, inadmissible ratione personae before the Court. This was the outcome of the much-criticised Behrami and Saramati decision.

The Court’s analysis (at paras 117-123) appears to skirt the problem of attribution. Read the rest of this entry…

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Countermeasures vs. Collective Security? The EU Sanctions Against Iran

Published on June 22, 2012        Author: 

 Pierre-Emmanuel Dupont, is a lawyer based in Paris,France. His practice is centered on public international law and international investment. His article “Countermeasures and Collective Security: The Case of the EU Sanctions Against Iran” will appear shortly in (2012) 17 Journal of Conflict and Security Law but is now available here

The additional sanctions agreed in early 2012 by the European Union against Iran in relation to its nuclear program (see Council Decision 2012/35/CFSP of  23 January 2012, and Council Regulation 267/2012 of 23 March 2012), including an embargo on imports of Iranian oil and the freeze of assets of the Iranian Central Bank, go well beyond those mandated by the successive UN Security Council resolutions (Res. 1737 (2006); 1747 (2007); 1803 (2008) and 1929 (2010); for a comprehensive analysis of Res. 1737 and Res. 1929, see e.g. D H Joyner, ‘The Security Council as a Legal Hegemon’, (2012) 43 Georgetown Journal of International Law 225-257, at 238-248.). Given their unprecedented extent, they raise various specific issues regarding their lawfulness under international law. I have written an article (a prepublication version of which is available here) in the forthcoming issue of the Journal of Conflict and Security Law, which aims at characterizing these measures. In this piece I argue that the EU measures cannot be characterised as measures of retorsion or as sanctions. Rather they are to be regarded as countermeasures. However, characterising these measures as such raises the question whether it is open to States or regional organizations to take countermeasures in circumstances where the UN Security Council has already adopted measures under Chapter VII of the Charter.

According to the ILC, a retorsion  is ‘unfriendly’ conduct ‘which is not inconsistent with any international obligation of the State engaging in it even though it may be a response to an internationally wrongful act’ (see Commentaries on the Draft articles on Responsibility of States for Internationally Wrongful Acts, in 2001 ILC Yearbook II(2), at 128). While it is true that measures restricting or impeding trade relations (in general or in specific areas), such as an embargo, are a typical example, often quoted, of retorsion (see ILC Commentaries on State Responsibility Articles at 128), it remains that, as it has been rightly noted, measures of the kind of those enacted by the EU in January 2012 ‘go beyond mere expressions of disapproval and involve the suspension of the performance of international legal obligations otherwise owed to Iran’ (N. Jansen Calamita, Sanctions, Countermeasures, and the Iranian Nuclear Issue, (2009) 42 Vanderbilt Journal of Transnational Law 1393-1442, at 1397). Indeed, in this case, the EU measures actually imply non-performance of various international legal obligations owed to Iran, for instance treaty commitments under BITs (see e.g. Iran-Germany BIT, 1965, Iran-France BIT, 2003). It may also be considered that the oil embargo, and in particular the mandatory termination of existing contracts related to import, purchase and transport of petrochemical products, raises prima facie an issue of compliance with a customary standard of investment protection. Read the rest of this entry…

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‘Crowing’ About Iran Sanctions Should Stop

Published on May 25, 2012        Author: 

Daniel Joyner is Professor of Law at the University of Alabama School of Law. His research interests are focused in nuclear weapons nonproliferation law and civilian nuclear energy law. He has also written extensively on international use of force law, and on the UN Security Council. He is the author of International Law and the Proliferation of Weapons of Mass Destruction (Oxford University Press, 2009) and Interpreting the Nuclear Nonproliferation Treaty (Oxford University Press, 2011).

There is a good bit of “crowing” going on at the moment by US officials, particularly about the role of Western financial sanctions in “bringing Iran to the table” for negotiations with the International Atomic Energy Agency (IAEA) and the West about its nuclear program. For example, US Treasury Under-Secretary for Terrorism and Financial Intelligence David Cohen said regarding these sanctions:

“They [Iran] are increasingly isolated — diplomatically, financially and economically … I don’t think there is any question that the impact of this pressure played a role in Iran’s decision to come to the table.”

This assessment, however, reflects a good deal of peripheral blindness: both about the past and about the future of the Western sanctions program.

If the question is: has the policy of institutional escalation at the IAEA and the UN Security Council (UNSC), and the imposition of sanctions on Iran by the UN, the US and the European Union (EU), had an influence on Iran’s actions and the development of a crisis between Iran and the West over its nuclear program, the answer is definitely yes. But not in the way these crowing US officials think.

The reasons that Iran stopped implementing its Additional Protocol safeguards agreement with the IAEA back in 2005, pulled back from meaningful discussions with the IAEA and the West at the same time, have since become entrenched in their determination not to give in to Western pressure, and even threatened to block the straits of Hormuz and send world oil prices skyrocketing, have been explicitly stated by Iran to be the decisions by the IAEA and the UNSC requiring Iran to cease its enrichment of uranium beginning in 2005, and the sanctions that have been imposed by the UNSC, and unilaterally by the US and the EU, since that time.

To put it simply, the West’s sanctions program is the reason that Iran pulled back from the negotiating table in the first place.

To now claim that Western sanctions have had the successful effect of bringing Iran back to the negotiating table is to ignore this broader view of the history of the crisis over Iran’s nuclear program, and the material role that Western sanctions have played in actually creating and intensifying the crisis. Read the rest of this entry…

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On Security Council Reform

Published on April 4, 2012        Author: 

Dapo and Marko both know that I must be one of the worst blog editors ever.  I don’t know how to blog, because I can’t (yet) conceive of something written without shedloads of research and footnotes.   Nor do I know how to post posts, despite it being explained to me, patiently, slowly, and using simple words.  If either of them says a child of four could do it, then all I can do is echo Groucho Marx and ask that someone find me a child of four.  If you are reading this, then one of them has done the computer magic.

Tonight I am in Manhattan, and have just returned to my hotel after eating too many mussels in a rather pleasant bistro.  But as it is New York, and a “boutique” hotel, it is virulently non-smoking, and so I am writing this without benefit of cigars.  There is a small balcony outside my room window but, of course, the window is fixed fast  shut for fear that an open window might interfere with the air conditioning.  It is late March for pete’s sake—who would want air conditioning now?  And who wants to sit in a fridge anyway?

Alan Rickman is appearing in a play a few blocks away.  As I wandered back from the bistro, I was somewhat surprised to see crush barriers and a reasonable crowd outside the stage door.  Never mind a career as a distinguished classical and character actor, as well  the campest Sheriff of Nottingham ever, or even a thoughtful if bleak debut as a film director (The winter guest released in 1997 in case you are wondering—is that nearly a footnote, or merely an aside?), simply play a witch in a blockbuster movie or three and the world is your lobster.

Much as I admire his work, I am not here to collect Alan Rickman’s signature.  I have not read any of the Hairy Potter books nor seen the films.  I was so not part of the demographic awaiting him, clutching autograph books, at the end of his performance.   I am here to participate in a retreat called by the President of the General Assembly, to discuss what seems to be the never-ending search for Security Council reform.

And jeez, I desire to do some inhalation exercises with a cigar.


Read the rest of this entry…

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Iran, The Nuclear Issue & Countermeasures

Published on January 10, 2012        Author: 

Sahib Singh is a Visiting Lecturer of International Law at the University of Vienna, a Visiting Fellow at the British Institute of International & Comparative Law and a PhD candidate at the University of Cambridge. The legal principles and arguments put forward are addressed far more extensively, albeit in the context of a different enquiry, in a forthcoming book chapter on Countermeasures and Non-Proliferation Law (draft here).

Since the publication of the International Atomic Energy Agency’s (IAEA) report on Iran of 8 November 2011, the Iranian nuclear issue has continued to slowly escalate.  This escalation has largely been constrained within its own narrative and of economic sanctions but, at other points, has spilled into diplomatic rows and military threats (see here and here).  In the forthcoming weeks, certainly the US, and possibly the EU, shall significantly broaden existing sanctions, introducing a spate of new sanctions as part of a marked shift in sanctions strategy.  However, despite familiar policy issues arising with such a shift, this post shall examine a foundational legal question: do states, beyond the scope of existing Security Council mandated sanctions, have standing to take unilateral countermeasures against Iran, and if so, upon which particular legal grounding?  In particular, I wish to examine the question of standing, under the law of State responsibility (particularly under Article 42(b)(ii) of the ILC Articles on State Responsibility), to respond to alleged breaches of the collective non-proliferation obligations contained in the Treaty on the Non-Proliferation of Nuclear Weapons (NPT).  The post shall determine that there is a considerable ambiguity in the law, arising from the tension between the law of treaties and the law of state responsibility, and arguably, states undertaking unilateral sanctions as a form of countermeasures against Iran may not have strict legal standing to do so (see here, pp. 10-24 for a more detailed examination).

Background & Delineating the Legal Question

Since 2002, when Iran revealed uranium enrichment facilities in Natanz and Arak that had been previously concealed for nearly 18 years, the IAEA and the international community has viewed Iran’s nuclear program with concern for its possible military dimensions.  Iran has continuously sustained its ‘inalienable right’ to peaceful use of nuclear technology (including acceptable levels of uranium enrichment) under Article IV NPT.  Despite mere suspicions and no conclusive evidence of a clandestine nuclear weapons program, and acting in discordance (although not necessarily in breach) with Article XII(c) of its Statute, the IAEA referred the case of Iran to the UN Security Council (UNSC) in February 2006.  Since the passage of UNSC Resolution 1696 (2006), Iran’s rights and obligations in relation to its nuclear program have been severely transformed, and the first of four rounds of UNSC Chapter VII economic sanctions were put in place.  The latest and most extensive of these was UNSC Resolution 1929 (2010), passed on 9 June 2010 (see pp. 39-44 of my paper for a discussion of parts of it). Read the rest of this entry…

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Is Libya Under an Obligation to Surrender Saif Gaddafi to the ICC? (Part II) Has the UN Security Council Imposed Different Obligations of Cooperation from the Rome Statute?

Published on November 29, 2011        Author: 

In a previous post, I dealt with the question whether Libya has an obligation to surrender Saif Al Islam Gaddafi pending any admissibility challenges it may choose to make. To put the question in other terms, if Libya does make an admissibility challenge may it hold on to Saif for the duration of the time it takes for that challenge to be determined by the ICC. The discussion that has taken place on this issue thus far has focussed on the interpretation of the relevant provisions of the Rome Statute.  My previous post also focussed exclusively on the Rome Statute. However, thus far commentators on this question have simply taken it for granted that the Rome Statute provides the applicable law and regime regarding the obligation of Libya to cooperate. The assumption has also been that if the Rome Statute provides a basis on which Libya may suspend its obligation to cooperate with the ICC then Libya is entitled to rely on the Statute’s provisions allowing such suspension. Although this may well be right, it cannot simply be assumed. There is a question as to whether in the case of a Security Council referral, the obligation of cooperation is one which is determined by the Statute or whether that obligation is determined instead by the Security Council’s resolution that makes the referral. In short, can the Security Council modify the obligation of the State to cooperate such that the State has a more (or less) extensive obligation than is provided for in the Rome Statute?

The Rome Statute provides an obligation for States parties to cooperate with the ICC but also provides many exceptions to that general obligation to cooperate, some of which I referred to in my earlier post on Saif Gadaffi. However, in the two cases when the Security Council has referred situations to the ICC, the Council has decided that the relevant States (Sudan and Libya):

 “shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution.” [see para 5 of Security Council Resolution 1970, by which the Security Council referred the Libya to the ICC, the Council].

Does the obligation to “cooperate fully” mean an obligation to cooperate fully as required by, and only in circumstances required by the Statute or does it mean something else? In the particular context of the obligation to surrender Saif Gaddafi, I have argued that the Rome Statute permits a suspension of this obligation where a challenge to admissibility is made. However, it might be argued that what the full cooperation provided for SC Res 1970 requires is that Libya surrender Saif to the Court, as the Court has requested. Libya is not a party to the Rome Statute, and is therefore not bound by that treaty (qua treaty). It also does not have rights as such under the treaty. Any obligations that Libya has with regard to the International Criminal Court must be derived from the Security Council resolution which refers the Libyan situation to the ICC.

The question whether the Security Council may modify the cooperation obligations provided for in the Statute was raised by Goran Sluiter, in 2008, shortly after the Sudan referral in an article entitled “Obtaining Cooperation from Sudan – Where is the Law?” In that article, Professor Sluiter noted that the way in which the Security Council had framed Sudan’s obligation of cooperation with the ICC left it unclear whether Sudan could invoke grounds for refusing cooperation which were provided for in the Statute.

The first question here is whether, in the context of an ICC referral, the Council can impose obligations on States which go beyond what the Rome Statute has imposed. It seems clear to me that the Council can do this. The powers of the Council are not limited by the Rome Statute. The Council’s powers are determined by the Charter and not by the Rome Statute. Read the rest of this entry…

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