Debating Disobeying the Security Council – is it a matter of ‘a rose by any other name would smell as sweet’?

Erika de Wet is Co-Director and Professor of International Law, Institute for International and Comparative Law in Africa, University of Pretoria (South Africa); Professor of International Constitutional Law, University of Amsterdam (The Netherlands). The author’s critique is based on views developed in Chapters 4 and 10 of her monograph entitled The Chapter VII Powers of the United Nations Security Council (Hart Publishing, 2004).

The book by Antonions Tzanakopoulos examines how and by whom the responsibility of the United Nations for unlawful Security Council sanctions can be determined. Its central thesis is that States can respond to unlawful sanctions imposed by the Security Council by disobeying the Security Council’s command in a manner that constitutes countermeasures to the Security Council’s unlawful action. The book is very well written, creative and  intellectually challenging in the way it attempts to align the law of State responsibility with the Law of the United Nations Charter.

However, like with other theories developed in an attempt to curb illegal action by the United Nations Security Council, closer scrutiny reveals that the arguments presented are not water-tight and may require further motivation. The subsequent paragraphs will focus on two such issues. The first concerns the reason why Antonios resorts to the concept of countermeasures in the first place, whereas the second relates to the analogy that he draws between Security Council sanctions and countermeasures.

A cornerstone of Antonios’ argument centres around his submission (pp 164-166) that all member States remain bound to decisions under article 25 of the United Nations Charter, which determines that ‘[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter’. This article remains controversial due to the question whether the phrase ‘in accordance with the present Charter’ refers only to the member States or the organisation as well. If it referred only to the member States they would be obliged to carry out decisions of the Security Council under all circumstances. If, however, the phrase referred to the organisation as well, it is arguable that the member States would only be obliged to carry out those decisions that were adopted in accordance with the Charter, i.e. intra vires.

Antonios does not accept that the controversial phrase ‘in accordance with the present Charter’ should be interpreted as meaning that member States are only bound by those Security Council decisions that remain within the competencies of the Council (i.e. intra vires decisions). He rejects this position on the basis of two arguments. First, he claims (with rather cursory arguments) that the ambivalence surrounding the meaning of this phrase cannot be resolved through interpretation. His second and perhaps more intriguing argument is that no constitutional system can operate unless there is some final instance that promulgates acts with which all the addressees must comply, irrespective of their lawfulness. In the subsequent paragraph he acknowledges that the term constitutionalization is problematic (without attempting to suggest a definition of his own) and doubts whether the Charter was meant to be a constitution. Even so, he seems to adhere to the argument that the Charter system, in order to operate, requires States to remain bound to all Security Council decisions, regardless of their legality (until such a time as they are revoked by the Security Council itself).

In order to overcome this dilemma of giving effect to illegal (but nonetheless valid) Security Council decisions, Antonios presents the highly sophisticated and creative solution of regarding disobedience in the form of non-compliance as counter-measures in response to violations of primary obligations under international law by the Security Council. However, creative though this argument may be, it is confronted with some of the same counter-arguments than the submission that article 25 of the Charter only obliges States to execute those Security Council decisions that are intra vires. The opponents of this view are reluctant to grant member States any discretion in determining whether the Security Council decisions with which they have to comply have been adopted in accordance with the Charter. They fear that this would undermine the efficiency of the Charter system as it would open the door for States to evade their Charter obligations by forwarding pre-textual arguments of illegality. To prevent this from happening, States would be obliged to implement Security Council resolutions, regardless of whether they were taken in accordance with the limits flowing from the Charter.

Antonios alludes to this need for efficiency of the Charter system when suggesting that in order to operate, Security Council decisions are to be regarded as ‘final’ and binding on all member States. However, a regime of counter-measures implies a highly decentralized mechanism whereby each respective member State can determine for itself whether it would be entitled to resort to counter-measures in the form of non-implementation of a Security Council decision. It is difficult to see how the impact of the ensuing lack of uniformity and coherence on the effective implementation of Security Council decisions would be any less disruptive (or potentially pre-textual) than an instance of outright rejection of the bindingness of a Security Council decision on the basis of its illegality. Stated differently, whether Security Council decisions are not implemented because they were rejected by States as illegal and therefore invalid from the start, or whether one describes the non-implementation as a counter-measure against an illegal (but valid) act, the outcome remains the same.

Second, it is arguable that it indeed is possible to clarify the perceived ambivalence of article 25 through interpretation – in a manner supporting the conclusion that States are only bound by intra vires decisions of the Security Council. If one reads article 25 together with the first sentence of article 2(5) of the Charter, it seems clear that the latter approach is to be preferred. It determines that all members shall give the United Nations every assistance in any action it takes ‘in accordance with the Charter’. From this formulation it follows that the organisation have to act in accordance with the Charter (intra vires), especially if one keeps in mind that the ‘action’ that has to be in accordance with the Charter refers to enforcement action under Chapter VII. At first glance article 2(5) seems to convey a general obligation for member states to give assistance to the organisation.  However, since this general obligation is already conveyed by article 2(2), article 2(5) must have a narrower scope of application, if it is not to be regarded as merely repetitive and therefore redundant. The reference to ‘enforcement action’ in the last sub-sentence of article 2(5) indicates that only ‘action’ taken by the Security Council according to Chapter VII could have been envisaged here.

Consequently one can conclude that the obligation to assist the organisation in the first part of the sentence only concerns decisions by the Security Council under Chapter VII in as far as they were taken in accordance with the Charter. Thus, since article 2(5) obliges states to respect Chapter VII resolutions that were adopted in accordance with the Charter, the logical implication is that they are not bound to do so where this is not the case. It then becomes illogical to see how member states can be obliged in terms of article 25 to follow binding resolutions which are not in accordance with the Charter.

Antonios further tries to draw an analogy between sanctions and counter-measures, arguing that the Security Council essentially constitutes a centralized or collective reaction of the international community to an international wrong (pp 77-78). Drawing on Kelsen, he states that the normative content of a rule is based on the prohibition of conduct which is threatened by sanctions: certain behaviour is an illegal act if it is made the condition of a sanction, while certain behaviour is the content of a legal obligation if the contrary behaviour constitutes an illegal act. Since the condition for the imposition of Article 41 sanctions by the Security Council is the existence of a threat to peace in accordance with Article 39, there must be a general obligation incumbent upon Member States not to conduct themselves in a way which constitutes a threat to peace. This general obligation will then be elaborated ad hoc and given specific content by the Security Council in the exercise of its primary responsibility through relevant decisions. In line with this argument, the imposition of sanctions will then virtually always be a response to illegality because it will be addressing the non-compliance of a State with an obligation, imposed by the Council through binding decisions.

However, one  could questions whether this type of straight-jacketing accurately captures the amorphous role of the Security Council when acting in the interest of international peace and security. First, the complexity of international relations and the political delicacies involved when determining that a threat to peace exists are often such that it is difficult to determine who is actually responsible for the threat to peace. For example, it cannot be assumed that the particular threat to peace necessarily emanates from a State, as it can also emanate from non-state actors. For example, in the case of Al Qaida in particular, it is difficult to determine whether its terrorist actions in a particular instance are necessarily also attributable to a particular State or States. The Security Council is not required to first engage in extensive fact-finding in order to determine State responsibility before determining that a threat to peace exists, as this would undermine its efficiency. This also means that enforcement measures in the form of sanctions are not necessarily of a punitive nature, neither are they only directed at States, nor necessarily intended as a response against the violation of international law. Although the situation causing a threat to peace will often entail an illegal act, the upholding of international law is not the Security Council’s primary concern. Instead, it is the maintenance or restoration of international peace and security, which is not necessarily synonymous with the maintenance of international law.

In essence therefore the current author is not yet convinced that the counter-measures perspective developed by Antonios provides a convincing tool for explaining the relationship between the Security Council and the member States of the United Nations. However, this does not detract from the fact that the work is highly creative and reveals remarkable intellectual discipline and technical accomplishment. It constitutes a valuable contribution to the debate about the nature of the Security Council’s powers and exposes once again the limits of the international legal order in constraining the exercise of public power by international organisations.