Disobeying the Security Council—Some Responses

Many thanks to Erika de Wet, Marko Milanović, and Matthew Happold, who took the time to read Disobeying the Security Council and write such carefully considered criticisms of what are indeed the central arguments in the book. In what follows I try to respond to some of these criticisms and comments, mainly be reiterating points made in the book, but also trying to take some of them further. Erika de Wet notes, in her review, that the relevant arguments put forward in the book are not ‘watertight’ and require further motivation. No argument there (excuse the pun)—I doubt that any argument (of mine?) could ever be watertight. What I sought to do in Disobeying the Security Council was to offer an interpretation of state practice in response to legally problematic Security Council sanctions, and to legally qualify the admittedly rare instances of principled disobedience of such sanctions that are perceived by states as being wrongful. In that, the book does not really seek to advance a normative argument (‘this is how things should look’) but rather to offer how things actually do look—even if only in its author’s eyes. So much by way of introduction to my responses.

I shall start with what seems—perhaps expectedly—one of the most controversial arguments in the book, ie that decisions of the Security Council may be illegal, in the sense that they are in violation of the UN Charter (‘UNC’) in some way, yet they retain their validity and thus produce legal effect, binding states to comply with them. On this argument hinges the characterization of disobedience of Security Council decisions as illegal, which then allows for countermeasures to be brought in as a justification for the (prima facie illegal) act of disobedience.

The first point of interest is the interpretation of that infamous phrase, ‘in accordance with the present Charter’, in Article 25 UNC. To recall, Article 25 provides in full:

The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

Erika de Wet notes that I dismiss the interpretation of the provision with cursory arguments; I accept that, and the only reason I did it is because I thought the various interpretative positions have been argued to death, and reasonable minds can (and will) continue to differ on this. But to take the matter up briefly:

(interpretative position 1): ‘in accordance with the present Charter’ describes the way in which member states (‘MS’) are to comply with Security Council decisions. This interpretation makes the phrase redundant—in what other way could MS be asked to carry out decisions of the Council? In violation of the Charter? That would be rather nonsensical.

(interpretative position 2): ‘in accordance with the present Charter’ describes the decisions of the Security Council that MS agree to carry out: only those taken in accordance with the Charter will be carried out; those in violation will not. This interpretation would give a license to disobey, but it seems to me to go against the wording of the provision. Why not state ‘…agree to accept and carry out those decisions of the Security Council that have been taken in accordance with the Charter’? Except for stating the (prima facie) obvious, this would have been simple enough for the drafters to do, if that’s what they wanted to say.

(interpretative position 3): ‘in accordance with the present Charter’ indeed describes the decisions of the Security Council that MS agree to carry out, but not in the sense of distinguishing them between those taken ‘in accordance with’ and those taken ‘in violation of’ the Charter. Rather, it means those ‘decisions’ of the Security Council that other Charter provisions vest with binding force—as opposed to ‘decisions’ of the Council that constitute mere recommendations. I briefly state this position on p. 165 of the book (penultimate para.), and I maintain that the travaux and Namibia actually lend support to this more circumscribed interpretation. (As to Article 2(5) UNC, it can be interpreted in much the same manner: the only ‘action’ in accordance with the Charter which requires the assistance of MS as a matter of obligation is that action which the UNC otherwise makes binding: ie, enforcement action.)

My position then is that Article 25 UNC does not resolve the matter of the legal effects of a Security Council decision that is in violation of the Charter. Only through a strained interpretation can this provision be seen as offering a license to disobey Security Council binding decisions. I think that denying decisions allegedly ‘in violation of’ the Charter any legal effect (by arguing that MS have no obligation to comply under Article 25) imposes on the provision a burden that it cannot reasonably carry.

This is then confirmed, in my view, by the discussion of the concepts of ‘validity’ and ‘legality’ in the following section of the book (pp. 166 seq). Here again I accept, as per both Matthew and Marko, that my approach is based on ‘doctrine’, ‘exegesis’, and an interpretation of ICJ decisions that were not actually seeking to advance any systematic theory of nullity or anything remotely similar. In fact I see these two comments as complementary: ICJ decisions, over different periods of time and over different make-ups of the bench, and taking into consideration the haphazard manner in which the ICJ comes to deal with such questions (given the lack of compulsory jurisdiction and mere incidental nature of any ‘review’) could hardly be expected to advance any systematic account. Rather it is up to us, as students of international law, to try to compile a systematic account through doctrinal exegesis, while not obviously contradicting a dictum of the Court. Whether this then manages to convince anyone else is, I suppose, a different matter altogether.

Back to issues of substance, a second crucial point, also echoed across all three commentators, refers to the usefulness of the framework of international responsibility and the doctrine of countermeasures in dealing with MS disobedience of Security Council decisions. Erika de Wet argues that the adoption of this ‘analytical perspective’, as it were, offers no substantive advantage over the one treating illegal Council decisions as invalid: it is an equally decentralized response (very much so, I readily concede) and it is open to the same fear of pretextual arguments of illegality advanced by recalcitrant states. Similarly, Matthew Happold invokes Occam’s razor and argues that the approach which advocates a lack of obligation to comply on the part of MS would be simpler, and thus the countermeasures approach not only does not add anything, but rather unnecessarily complicates matters.

I respectfully disagree. While both approaches are highly decentralized (like international law in general) and while the ‘lack of obligation’ approach might perhaps be simpler, it is also entirely unregulated. While there are no prerequisites or conditions attached to putting forward an allegation that a Council decision is in violation of the Charter and thus has no binding force, the application of countermeasures comes with significant limitations and conditions under general international law, both substantive and arguably procedural. Briefly, we may consider that requirements of prior notice and invitation to negotiate are attached to the deployment of countermeasures. Substantively, countermeasures are limited by proportionality requirements: arguably, any violation of the Charter would render a decision of the Council without binding force and thus allow disobedience; on the contrary, for a MS to disobey a decision as a response to the decision’s perceived wrongfulness, a proportionality requirement would apply. A minor violation of the Charter would render a decision ‘not in accordance with the Charter’ yet it may not justify the countermeasure of disobedience.

The central point here is precisely that the application of countermeasures is a much more heavily regulated process as opposed to the mere allegation of lack of binding force, which seems to give MS by-and-large carte blanche to disobey. So there is perhaps some added value to the approach, especially if one considers that this way, disobedience is not left entirely to be decided on the basis of political considerations and pretextual arguments, but falls to be assessed legally against more-or-less well established conditions (those for lawfully resorting to countermeasures).

On a more formalist note, it is in my view of some importance that no actor has been given by the UNC the power to make a finding as to the (lack of) legal effect of Security Council decisions with binding force. In that, the argument that it is ‘simpler’ to consider that MS merely find that there is no obligation on them to comply does not really carry us forward. Conversely, the power to make a finding that an actor bound by international law has acted illegally and has thus become responsible rests with the other actors in the system as a matter of general international law: states, for example, may make a finding that another state or an international organization has acted in violation of its obligations, and has thus become responsible, but they do so at their own risk: the risk that they may themselves be found to have been in the wrong in the end—if an ‘end’ ever comes indeed (eg through the binding decision of a disinterested third party or through a negotiated solution).

Further, as far as added value is concerned, treating Article 25 UNC as a licence for disobedience—simpler as it may be—does not actually explain how are states to react if a Security Council decision is not in violation of the Charter, but of some other rule of general international law that is binding on the UN. Indeed in that case we would either have to accept that states are bound to comply with that decision, despite one being reached in violation of UN obligations, or we would have to somehow find the decision as being in violation of the Charter. This leads to the attempt to interpret every relevant obligation under general international law, notably those referring to the protection of certain fundamental human rights, into the Charter by way of Articles 1 and 24(2) UNC. To me this is a very far-fetched interpretation of extremely broad provisions, and things don’t seem that simple anymore. By contrast, a reaction to a decision in accordance with the Charter but in violation of some other rule of general international law could be admitted as a countermeasure, irrespective of Article 25 UNC.

Finally, with respect to the OAU (re-)action in the Libyan case, I should note that the characterization of that action, at least in the way I approach it in the book, does not solely depend on what the OAU MS did or did not say—much to the contrary, I accord much more weight to what they actually did: they offered to negotiate, they called for reconsideration, they notified of their intended non-compliance, and they did so clearly responding to what they perceived as a violation of the Charter. I describe that process in the book (at pp. 186-7 and189) and I reiterate here that this seems to me like an impeccable process of applying countermeasures. (As to third party countermeasures, I happily align myself with Tams’ and Sicilianos’ positions, both based on an extensive consideration of state practice.)

With respect to the gigantic ‘can of worms’, in the words of Marko, that is attribution of conduct to international organizations, I again readily concede that the issue definitely warrants monograph-length treatment in and of itself. I should also note that I clearly do not exclude dual attribution in my treatment of normative control (see p. 52) and Marko thankfully notes that. I understand that by looking only at the international organization side of things, I have left questions unanswered (as to concurrent attribution to the state, exculpation, and the like)—but these were not questions that I had set myself to answer, and neither could I in this book, lest I detract from my main point, this being the legal qualification of disobedience.

Yet I should like to add one final comment as to why I argue in favour of normative control, despite ‘control’ being a ‘factual criterion’ in both the ILC’s and the ICJ’s mind. While states have no power to impose obligations on other states, international organizations, and in particular the UN through the Council in Chapter VII mode, operate precisely through the imposition of obligations, which sometimes leave states no ‘wiggle-room’ as to their implementation. Precisely because compliance with these obligations is usually expected, and precisely because disobedience is so exceptional, the organization can be seen as controlling MS conduct in this instance, and MS acts should (at least also) be attributable to the organization. This important difference justifies, in my view, the differential treatment of the notion of ‘control’ not merely as factual, but also as normative, in the case of international organizations. This is particularly so because of the concept of ‘double evasion’ that I discuss on pp. 50-52: states are able to ‘hide behind’ the international organization, arguing that they were bound to comply, while the organization can argue that state organs took the impugned conduct, which was not factually controlled in any way. Attribution being a preliminary question, and far off finally deciding whether responsibility has been engaged, it makes sense to me that conduct taken by both actors should be attributable to both of them; this conduct can then be judged against their respective international obligations, possible excuses, and the like, in order to finally find whether responsibility has been engaged.

Once again, I thank the three commentators for their challenging and thoughtful comments, as well as EJIL: Talk!, and OUP, for making this discussion possible. It is a great experience—even if a difficult endeavour—engaging in such discussions with experts, and I hope that we will continue to discuss these and other points.