lunes, julio 13, 2020

An Overview of Disobeying the Security Council

An Overview of Disobeying the Security Council

I. Introduction

Disobedience of an illegal or unjust command has long been a source of inspiration and scholarly excitement for lawyers, philosophers, and even dramatists, among many others. One of the best known tragedies of Sophocles, Antigone, sees the heroine defy the edict of Creon, the ruler of Thebes, in order to comply with the superior (in her view) rule that requires that she bury her dead brother in accordance with holy rites. How to qualify and/or justify disobedience in extreme cases has ever since featured as one of the most hotly debated jurisprudential issues. The book that will be discussed here deals with the legal qualification of disobedience of binding Security Council sanctions resolutions that are perceived by States as being in violation of the UN’s obligations.

At the outset I should like to thank EJIL:Talk! for hosting a debate on Disobeying the Security Council. I am in particular grateful to the editors-in-chief and to OUP for so kindly and diligently organizing this, as well as to the commentators who took the time to read and engage with the book (at least now I can plausibly argue it has been read by more than the proverbial average of two people who read most academic monographs: the author, and their mother). The book is an updated version of my DPhil thesis at the University of Oxford, which was submitted under the rather uninviting title ‘Responsibility of the United Nations for Wrongful Security Council Non-forcible Measures’ (ie Article 41 measures or simply ‘sanctions’).

The first move is to explain why I am focusing on the international responsibility of the United Nations rather than discuss its ‘accountability’. The term has attracted a lot of attention in the scholarship dealing with the question of limits on the ever-augmenting powers and impact of international organizations, despite its less-than-obvious ambit. The opening chapter of the book is devoted to discussing the definition and substance of the term, and to showing that international (legal) responsibility is the most pertinent (and the ‘hardest’) form of accountability that can be employed in the case of the United Nations when the latter is acting through the Security Council. This leads into the discussion of the specifics of UN responsibility for Council sanctions that follows. The discussion is structured in three parts, which follow by-and-large the structure of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts (‘ASR’), as well as the Draft Articles on the Responsibility of International Organizations (‘DARIO’): the first part deals with the ‘engagement of responsibility’, ie the requirements for the UN to become responsible under international law (II). The second part proceeds to question who is to determine the engagement of UN responsibility, ie who is to decide whether the UN has become responsible under international law for Security Council ‘sanctions’ (III). The final part deals with the consequences of the UN having engaged its responsibility (IV).

II. Engagement

The requirements for an international organization (or a State for that matter) to become responsible under international law are well-known: (i) the non-performance of an international obligation through (ii) conduct attributable to the relevant actor. The two chapters that make up this part deal with these two aspects.

As far as attribution is concerned, there is no doubt that Council conduct is attributable to the UN, the Security Council being a UN organ. What ‘counts’ as Security Council conduct however is rather less obvious: the Council having no operational capacity of any kind, its conduct is exhausted in promulgating decisions. What then of the conduct taken by States in implementation of these decisions? For example when a State organ imposes an asset freeze on an individual identified in the 1267 blacklist, is that conduct only attributable to that State (under Article 4 ASR) or could it also be attributable to the UN? The main problem for such an attribution would be that the UN exercises in fact no effective control on the State organ, as the DARIO would have it. The only kind of control exercised is normative control on the conduct of the State; but why should this type of control not lead to attribution of said conduct to the UN? This would avoid the convoluted solution of derivative responsibility, ie attribution of responsibility (rather than conduct) to the UN for the wrongful acts of Member States in implementation of Security Council sanctions (the solution that DARIO has opted for). The chapter argues in part that attribution to the UN due to its exercise of normative control over the conduct of States should be allowed, without excluding concurrent attribution to the acting States. This is because, unlike States—who do not usually exercise any normative control over other States—international organizations function almost exclusively through the exercise of normative control over States.

If certain conduct has been found to be attributable to the UN, it would still have to be in violation of the UN’s international obligations in order to constitute an internationally wrongful act. So the other chapter in this part seeks to identify the sources of international obligations that are binding on the UN with respect to the Security Council acting under Article 41. The UN Charter is an obvious source of international obligations binding on the Organization that it constitutes, and thus on the Security Council. The chapter fleshes out the content of the obligation to determine the existence of a threat to the peace, the obligations relating to the selection and content of the measures that are imposed under Article 41 (notably proportionality) and so forth. However, to the extent that the Charter does not abrogate general international law (or does not give organs the power to abrogate), general international law still applies and is a valid source of obligations incumbent on the UN, beyond those (few) obligations that can be identified as part of the jus cogens. There are then also obligations under general international law that limit the Security Council’s discretion when imposing sanctions. The argument here is that, if sanctions are functionally analogous to countermeasures—a collective response to an illegality as opposed to a decentralized response to an illegality, but still functionally similar—then the limitations on the form and content of countermeasures identified in ASR (notably compliance with human rights obligations even if not jus cogens) apply.


III. Determination

Part two deals with the much thornier question of the entity or actor that will determine whether the requirements for engagement of UN responsibility have been fulfilled. The first chapter in this part discusses the possibilities for judicial determination of the UN’s responsibility. The aim is to shift the discussion from the question of judicial review of Security Council action. The chapter discusses the concept of ‘judicial review’ and argues that all potential utterances of all possible courts on the legality of Security Council action are not ‘judicial review’ in any technical or meaningful sense, but rather decentralized claims as to the Council having acted legally or illegally in a particular case.

The next chapter pursues this point further, and argues that it is States who determine whether the Security Council has acted in violation of UN obligations and has engaged the UN’s international responsibility, along the traditional paradigms of auto-interpretation and auto-determination. While this may sound extremely anarchical, it is mitigated by a number of considerations. In auto-determining the responsibility of the UN for Council sanctions, States of course act at their own risk. But, what is more, they have to overcome the collective power of the Organization: a State auto-determining the responsibility of the Organization in isolation will have little luck in making an impact. Also, States have to overcome a strong presumption of legality of UN action, which means that they will have to put forward a strong legal argument in order to be taken seriously.


IV. Consequences

If it is States that determine whether the UN has engaged its responsibility, what is it that they can ask of the UN, and how can they make sure to get it? The last two chapters of the book deal with the content and the implementation of the UN’s responsibility for Council sanctions. As far as content is concerned, the basic secondary obligations incumbent on the UN (and the corresponding secondary rights of [directly or indirectly] injured States) are cessation and reparation. The chapter explores these options, and argues that States will mostly focus on one particular form of reparation, namely restitution, but in its ‘juridical’ incarnation: juridical restitution requires the withdrawal or amendment of the offending normative act.

The last (and longest) chapter in the book deals with the implementation of responsibility: how are States to induce the Organization to comply with its secondary obligations of cessation and reparation? The usual response in the literature argues that States have the ultimum refugium of disobeying the Security Council when they perceive it to have acted illegally. The chapter seeks to legally qualify this disobedience. It discusses the concept of ‘civil disobedience’ and claims that this category will only become relevant if it is confirmed that disobeying the Security Council is always and finally an illegal act. Then, it explores the argument that disobeying an illegal Security Council resolution is not an illegal act, because it is allowed under Article 25 of the UN Charter. In Article 25 UN Member States agree to accept and carry out the decisions of the Security Council ‘in accordance with the … Charter’. The literature is divided as to whether this is an open licence for States to disobey Council decisions not in accordance with the Charter. The argument put forward in this section is that it is not: non-conformity of a decision with the Charter may make it illegal, but it does not make it invalid, so as to remove the obligation to comply. Further, reliance on Article 25 or on the invalidity of Security Council resolutions in order to justify disobedience would not allow a reaction when a decision is not in violation of the Charter, but in violation of an applicable rule of general international law.

Disobedience of the Security Council is then always a breach of Article 25 of the UN Charter. Yet this breach may be justifiable (ie its wrongfulness may be precluded) as a countermeasure, as a response to the Council’s illegal act on the part of injured States. Such a qualification of disobedience has not been seriously proposed and discussed in literature before, yet it not only stands up to doctrinal scrutiny: it is also useful, as it provides a framework against which to legally assess State disobedience of Security Council binding measures that is more nuanced than the black-or-white matrix heretofore available.

The remainder of the chapter seeks to establish which States may invoke the responsibility of the Council as injured States, and which requirements they must fulfil in order to qualify their disobedience as a countermeasure. In doing this, it draws from practice, notably the OAU’s decision to disobey Council sanctions against Libya in 1998, as well as recent practice of domestic courts that is forcing States to disobey aspects of the 1267 sanctions regime.


V. Conclusion

The book is not an attempt to advocate disobeying the Security Council. It aims to confirm that disobedience (or the threat of disobedience), like all countermeasures, is indeed a last resort, one that comes with stringent requirements and high costs. But it is also the only potentially effective way, in the current stage of development of international law, in which States can induce the UN and its Security Council to comply with their international obligations. It is instructive, for example, that the most significant amendments to the 1267 sanctions regime have been ‘forced’ upon the Security Council by threatened or actual disobedience of its commands. In any legal system, decentralized reaction and disobedience is a dangerous but effective way to bring powerful actors to account. In the decentralized international legal system, this dangerous and effective way is actually allowed by the law in certain circumstances. Yet, disobedience cannot be left entirely to the political process, but can and should be assessed legally.


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