Disobeying the Security Council

Abstract

This book examines how the United Nations Security Council, in exercising its power to impose binding non-forcible measures (‘sanctions’) under Article 41 of the UN Charter, may violate international law, i.e., limits on its power imposed by the UN Charter itself and by general international law, including human rights guarantees. Such acts may engage the international responsibility of the United Nations, the organization of which the Security Council is an organ. The book then proceeds to examine how (and by whom) the engagement of this responsibility can be determined, i.e., who it is that can find the Council to have acted unlawfully. Most importantly, the book discusses how (and by whom) the responsibility of the UN for unlawful Security Council sanctions can be implemented, i.e., how (and by whom) the UN can be held to account for Security Council excesses. The central thesis is that States can react to unlawful sanctions imposed by the Security Council in a decentralized manner by disobeying the Security Council's command. In international law, this disobedience can be justified as being a countermeasure to the Security Council's unlawful act. Recent practice of States, whether undertaken by executives or, increasingly, by domestic courts, evidences an augmenting tendency to disobey sanctions that are perceived as unlawful. After discussing other possible qualifications of disobedience under international law, the book concludes that this practice can (and should) be qualified as a countermeasure.

covid-19 Claims and the Law of International Responsibility

“…85 Internationally wrongful suspension or refusal to pay dues to international organizations 86 has been sometimes conceptualised as countermeasures, memorably by Antonios Tzanakopolous. 87 Beyond general questions on conceptual framing, normative desirability, and applicability to international organizations in general 88 and those within the United Nations system in particular, 89 the same general standards accepted by the US would need to be complied with --an anterior wrongful act by the WHO, 'prior demand' by the US, necessity and proportionality, compliance not punishment. These criteria are not easy to satisfy in a cumulative manner, even without considering compliance with the seemingly more extensive standards in the 2001 ILC Articles.…”

Interpreting the Convention on the Rights of Persons with Disabilities in Domestic Courts

“…He claims that domestic judges are required 'to consider decisions of domestic courts of other states, to the extent that such foreign judicial decisions on international law may constitute either subsequent practice with respect to treaties, thus impacting on their proper interpretation ….'. 284 Moreover, he argues that certain international treaties are particularly likely to prompt judicial dialogue, including human rights treaties that 'impose inward-looking obligations on states'. 285 In spite of the great potential for domestic courts to engage in transnational judicial dialogue revealed by Waters, and the obligation to engage in such dialogue claimed by Tzanakopoulos, there is very little evidence of this happening in the jurisdictions and case law studied for this book.…”

The Dual Legality of the Rules of International Organizations

“…169 Following this approach, the rules are seen as internal law of the UN, and the regime of reference is constituted by its lex specialis, which provides the limits of the Security Council's powers. 170 Following this path, the problem is to reconcile the UN's purpose to promote and encourage the respect of human rights by its member states with the existence of a legal obligation binding the UN itself. 171 The second criterion of legality derives from general international law.…”