Some Remarks on Disobeying the Security Council

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Matthew Happold is Professor of Public International Law at the University of Luxembourg.

 I greatly enjoyed Dr Tzanakopoulos’ Disobeying the Security Council.  The book displays a richness of argument backed by a depth of research.  At point after point, I found myself in agreement with the author.  Yet, sympathetic though I am to his approach, I was unable to follow his argument to the end.

In the first two parts of Disobeying the Security Council, Dr Tzanakopoulos examines how the imposition of non-forcible measures under Article 41 of the UN Charter can engage the international responsibility of the United Nations, and how – and by whom – such responsibility is determined.  Some minor points aside, I agree with Dr Tzanakopoulos.  Whatever the situation as regards the implementation of binding resolutions of the Security Council, it seems evident that their promulgation is attributable to the United Nations, of which the Council is one of the principal organs. And absent a few provocateurs, there seems general agreement that the Council’s powers are not unlimited.  Rather, differences exist regarding what the extent of those powers is and who is entitled to determine whether the Council stepped beyond them.  The International Court of Justice seems unable – and has definitely shown itself unwilling – to judicially review Council decisions. Other courts and tribunals apply their own law, whether that is national law or that mandated by their constituent treaty, so in most cases they are not concerned with whether a particular Council resolution is in breach of the United Nations Charter or of general international law.  Indeed, it is usually not the relevant Council resolution that they are reviewing but the act implementing it within their own legal system.  Moreover, only a certain limited class of questions concerning the legal effect of Council resolutions tend to come before national courts, that is, those where resolutions directly affect individual rights.  Hence the concentration of cases on the ‘blacklisting’ of individuals and the freezing of their assets under the sanctions regimes established by Council resolutions 1267 and 1333.

Given this, one can only fall back on the general rule in international law: that States retain the power to auto-determine the legality of measures issued by the Council. It is no more than stating the obvious that UN member States have an entitlement to interpret Security Council decisions.   Interpretation must be undertaken, at least in the first instance, by member States, because it is they who implement Council resolutions and they must ascertain what they are obliged to do in order to do it.  Indeed, to a large extent the distinction between interpretation and determination of one’s legal obligations is a distinction without practical difference. For example, the conclusion of the Organization of the Islamic Conference that paragraph 6 of Security Council resolution 713 (which imposed an arms embargo on the former Yugoslavia) did not ‘legally’ apply to Bosnia-Herzegovina was premised on the view that to interpret the embargo as applicable to Bosnia would render the resolution ultra vires because the Council could not legally prevent a State from seeking to exercise its ‘inherent’ right of self-defence (not un-coincidentally this was the argument put by Bosnia before the ICJ).

However, in the final part of the book Dr Tzanakopoulos argues that when States disobey the Security Council what they are engaging in are countermeasures in response to illegal conduct by the Council. Here the hinge on which matters seem to pivot is Article 25 of the UN Charter, which Dr Tzanokapoulos interprets are making any disobedience of binding Council decisions illegal. Hence, the only way such an illegality can be justified is as a response to another prior illegality, the resolution itself.  I confess to having problems with this characterisation.  It seems intrinsically odd to hold that refusal to comply with an illegal act is a countermeasure to that act.  Applying Occam’s razor, it would seem simpler to posit that in such circumstances member States simply don’t consider that they have a legal obligation to comply. Whether in such a context impugned Council decisions are described as void, unopposable or something else is perhaps secondary.

Indeed, I would argue that such an interpretation rather better fits the sparse practice we have.   With regard to the then Organization of African Unity’s decision on the sanctions against Libya, Dr Tzanakopolous concedes that this was never characterized as a countermeasure but argues that States often are reluctant to characterise their actions as such. This may well be true, but arguments from negatives can never by themselves convince. It might more simply be the case that it was not described as a countermeasure because that was not what it was considered to be.  Although the decision can be conceptualized as a countermeasure, I do not consider that that is the only reasonable interpretation of the OAU’s actions.  The OIC decision on the Bosnian arms embargo (mentioned above) was plainly not described as a countermeasure and it is difficult to describe it as such. And France and the USSR, when refusing to pay the assessments levied on them to pay for the UNEF and ONUC peacekeeping operations, specifically argued that they were under no obligation to comply with ultra vires acts of the Organization.  Dr Tzanakopoulos argues that international law does not recognise that ultra vires or illegal acts of international organizations are void.  However, he does so in reliance on doctrine and through exegesis of the decisions of the International Court of Justice rather than, as would be my preference, attempting to look at what States might consider the consequences of a particular situation to be.

In addition, I think there are specific problems with characterising disobedience to Council decisions as countermeasures arising out of the law of international responsibility.  Countermeasures can generally only be undertaken by an injured States but in most cases where disobedience occurs based on legal claims, it is not only the targeted State, entity or individual which is refusing to comply.  Dr Tzanakopolous argues that obligations incumbent on the UN under the Charter should be treated in the same manner as ‘integral’ or ‘interdependent’ multilateral obligations, permitting any member State to invoke the Organization’s responsibility, on the basis that the wrongful imposition of sanctions can amount to a breach ‘of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation’, not only because all member States are obliged to carry out Council decisions but also because member State acquiescence in decisions of dubious legality may have an effect of consolidating power grabs by the Council.  I remain to be convinced, at least as a matter of lex lata.  As for breaches of general international law by the Council, Dr Tzanokapoulos claims that the obligations coming into play are likely to be obligations under peremptory norms (jus cogens) or customary obligations for the protection of fundamental human rights, which in both cases are owed erga omnes.  It will be recalled that in such situations States other than the injured State are entitled to take ‘lawful measures’, the phrase, however, is entirely question begging and practice, in my view, remains equivocal (even ignoring questions concerning the status of human rights norms under customary international law and the extent to which they impose obligations erga omnes).

Nevertheless, despite these minor disagreements, I am happy to recommend Disobeying the Security Council. It is substantial achievement. It replays careful reading and will without a doubt spark debate. It has certainly sharpened my view on the subjects of which it treats.                 

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Umberto says

June 12, 2011

I'm a student of international politics and international law and I have always been disturbed by the fact that the SC seemed to be immune. However I read that the ICTY, for instance, deemed the Council to be legibus solutus (as you all correctly stated this is true in theory and it still generates a series of issues). This contradiction is certainly generated by the fact that the Council is a peculiar undemocratic political institution which issues legally binding resolutions. Still, I see what Dr Happold calls "disobeying" as a de facto dis-application of illegal or immoral decisions which may have been taken for political reasons by the 5P. The same would be true of collective interventions by states for grave breaches of humanitarian law, war crimes, crimes against humanity and genocide which follow the Council inaction (as it could be the case for Syria if the Council does not act) (some argue that the Unite for Peace procedure would still be a better solution). That said, in municipal systems sometimes Court do not apply immoral laws or laws which go against the constitution (though oftentimes there is a Constitutional Court which decides whether a law is constitutional). By the same token states could dis-apply resolutions which go against the Charter and general principles of international law (also based on morality). Unfortunately there is no "Constitutional Court" in the international arena, nevertheless the community of states may act as such. If many states dis-apply the Council's decisions and an opinio juris emerges, "disobeying" will generate a rule of customary international law (and I do not see why there should be no opinio juris for dissapllying SC's resolutions which go against the Charter and International Law). All the more when SC's decisions go against peremptory norms of international law, i.e. when the Council authorises an intervention (or inversely vetoes a decision which triggers an intervention to put an end to jus cogens violations) which is against jus coges, then States must not only condemn the illegal situation (the ICJ in the AO on the Israeli walls says that States should always condemn manifest illegalities) but also not act. Obviously it is not rare that those who take decisions are acting on behalf of the whole international community (with the mandate of the Council) and yet states should still condemn the illegality (even when there is a SC authorisation). I believe this is also evident from the Nicaragua case. First of all the Court says that breaches of a customary rule do not make it less so. Thus, the fact that the Council may authorise an illegal use of force does not mean that such use of force is legal. Similarly if the US vetoes a resolution which condemns its action in Nicaragua, the illegality is still there. In fact, even when the SC is not directly deliberating against the Charter, there is still customary international law to be respected. Not surprisingly the Court says that the two coexist and complement each other. As complicated as it may be, disobeying illegal decisions by the Council is absolutely consistent with current international law.