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University of Otago Law Theses and Dissertations |
Last Updated: 21 September 2023
A Compelling Idea: Jus Cogens and the Power of the United Nations Security Council
Lily Leishman
A dissertation submitted in (partial) fulfilment of the degree of Bachelor of Laws (with Honours) at the University of Otago
October 2019
Acknowledgements
To my supervisor, Stephen Smith, for pushing me to find a topic which I loved and for always helping me when I have needed it. Thank you for allowing me to work through this dissertation in my own way, and guiding me in the right direction.
To my wonderful friends and flatmates who made the last five years the best of my life. To the 142 Cargill girls, thank you for the chocolates, the motivational sticky notes, the “good lucks” on my way to the library, and for ‘the’ study room. You girls are the best.
To my family and to James, for being the best support all year and letting me complain without end. Thank you for looking after me and for reminding me every now and then to go and have some fun.
Finally, to my Dad who would have been so happy to see this now. I would not be writing this without you.
TABLE OF CONTENTS
Chapter II – Norms of Jus Cogens 18
Chapter III - The Security Council’s History of Offences Against Jus Cogens Norms 29
Chapter IV - The Ability to Review the Actions of the Security Council Under Jus Cogens 42
CONCLUSION 53.
Introduction
“The United Nations, whose membership comprises almost all the States in the world... is the nearest thing we have to a representative institution that can address the interests of all states, and all peoples. Through this universal, indispensable instrument of human progress, States can serve the interests of their citizens by recognizing common interests and pursuing them in unity.”1
The United Nations was created as an institution to protect mankind. In the aftermath of two world wars, a shared interest of states emerged in creating and maintaining a peaceful world for all states and individuals to enjoy.2 This interest was underscored by the principle of respecting the sovereignty and equality of all nations.
Recognition of the common interests of states is at the very core of jus cogens, a principle of international law which protects the most important values and interests of the community.3 Otherwise known as ‘compelling law’, jus cogens is binding on all states and is a supreme quality which attaches to a norm making it absolute.4 This means that no derogations from the norms will be accepted, even on grounds of reciprocity. In this dissertation, I seek to demonstrate the true value of jus cogens by outlining how it can operate as a limitation on one of the most powerful institutions in the world; the United Nations Security Council.
The Vienna Convention on the Law of Treaties (VCLT) included jus cogens in its provisions, which clarified the scope and operation of the customary principle somewhat. Under the VCLT, any action or norm which comes into conflict with a norm of jus cogens is legally void ab initio.5 This gives jus cogens some practical force in that no international actor may take any action which could be said to have violated jus cogens. A common criticism of the principle however is that its imprecision hinders its practical application. Any international actor defending a claim that they had violated a norm of jus cogens could challenge siad accusation, on the basis that the norm they breached was not jus cogens. To mitigate this, I propose a clear
Int. Aff. 293 at 295
2015) at 4
force 27 January 1980), art 53
criterion that norms can be determined against to assess whether or not they are jus cogens norms. This criteria focuses on the acceptance of the norm in the international community, whether or not it is non-derogable and whether it is in the interests of the wider community. This last factor requires a substantive analysis, assessing whether the interests of the norm reflects the values important to the community of states.6
Although an exhaustive list of jus cogens norms can not exist, there are several norms which have been clearly established in the community as holding this supreme status. The prohibition of the use of aggressive force, and the right to self-determination of people are both important principles protected by the UN Charter, clearly accepted as jus cogens. Human Rights norms are more complex given there is no consensus between states as to what human rights are. The derogability of each right thus offers strong insight into their ‘supreme’ status. Humanitarian norms are generally accepted as having jus cogens character given the substance of what they protect. Lastly, while international environmental norms have enjoyed sufficient acceptance to be jus cogens, it is likely some environment norms will reach this status soon, reflecting the increasing importance being placed on environmental protection in the international community.
Exploring the concept of jus cogens and its criteria is an interesting theoretical exercise but potentially lacks utility until the principle is applied in practice. Since its inception, there have been a number of instances where the Security Council has made a decision which has led to an outcome inconsistent with jus cogens. In theory, this would invalidate the action but that has not always been enforced. In this dissertation, I argue that the International Court of Justice has jurisdiction to assess the Security Council’s actions in light of these fundamental norms of international law, and can provide direction for states as to their resulting obligations under the Charter. Importantly, it should be noted the power jus cogens has, compared with existing limitations within the UN Charter which overlap substantively with jus cogens. Reliance upon the purposes and principles of the Charter to restrain the actions of the Council has been relatively ineffective so far.7 Even if an action of the Council was found to be ultra vires by the ICJ, it would not necessarily be invalidated. The power of jus cogens is stronger and could
Charter (Swedish Institute of International Law, Uppsala, 1998), at 9
offer a more effective limitation on the Council given any conflicting act is void ab initio. This shifts more power to the Courts and Member States in circumstances of misguided decisions.
No institution which derives its power from the law can be above the law.8 While this principle has not always been applied in practice, laying out the legal groundwork for a check on the Security Council’s power is a starting point towards consistent observation of the rule of law.
Chapter I – the Application of ‘Jus Cogens’ to the United Nations Security Council
The United Nations (UN) was established on 24 October 1945 with the intention of centralising the actions of the global powers and pacifying relations between states.9 The Security Council was established as the political organ of the UN and given primary responsibility for the “maintenance of international peace and security”.10 Institutionalising the response to international crimes and conflicts has played a major role in the development of international relations in the seventy-three years since the Council’s establishment.11
The Security Council has broad, discretionary powers, constrained only by a few provisions within the United Nations Charter (‘the Charter’). Under Article 39, once the existence of a ‘threat to peace’ has been determined, the Council is empowered to take almost any action, including the authorisation of the use of force (under Article 42).12 The ‘Permanent Five’ (‘P5’) states have the right to veto any proposal brought before the Council.13 Any decisions by the Council may translate into a mandatory order on Member States under Article 25.14 The binding nature of Security Council decisions is conditional on decisions according with the purposes and principles of the UN Charter, listed under Articles 1 and 2. This limitation is outlined in Article 24(2) and is recognised as the strongest limitation on the Council that is contained in the Charter.15
The primary purpose of the UN is the maintenance of peace and security.16 Developing friendly relations among states based on respect for the equal status and right to self-determination is
9 Hurd, above n 2, at 295
10 Charter of the United Nations, art 24
11 Pierre Klein “Responsibility for Serious Breaches of Obligations Deriving from Peremptory Norms of International Law and United Nations Law” (2002) 13 EJIL 1241 at 1243
12 Charter of the United Nations, art 39
13 Charter of the United Nations, art 27
14 Devon Whittle “The Limits of Legality and the United Nations Security Council: Applying the Extra-Legal Measures Model to Chapter VII Action” (2015) 26 EJIL 671 at 672
15 Whittle, above n 14, 673
16 Charter of the United Nations, art 1(1)
also an objective of the organisation.17 These objectives are to be achieved in accordance with principles of the equality of all members, the requirement to settle disputes peacefully and obligation to respect sovereignty of states.18
The Security Council is a political organ. However, it is not above the law.19 As discussed by the International Court of Justice (ICJ) in the Admission case, the political character of an organ does not exempt it from observing the legal provisions which constitute limitations on its power.20 The ICJ reaffirmed this in the Lockerbie case, holding that any legal decision derives its power from the law, and is thus constrained by the law.21 The powers of international organisations come from the constitutions upon which they are founded; constitutions agreed upon by their Member States.22 This means international organisations are constitutionally bound to act within the laws of their organisation and as bodies which exist within the international sphere, they are also bound by international law.23 An important aspect of this limitation is the concept of jus cogens and the role it plays in binding the actions of the Security Council.
Jus Cogens is a concept of international law which refers to norms and values that are superior to all other law, and cannot be derogated from.24 It is a legal quality, described as ‘compelling law’ which may attach to a norm if it is found to protect the interests of the international community of states as a whole.25 The concept comes from the need to protect the most important ideas held by the international community.26 Should a law or action be found to offend against a norm of jus cogens, that law or action will be void ab initio.27 It should be
17 Charter of the United Nations, art 1(2)-(4)
18 Charter of the United Nations, art 2(1)-(7)
19 Alexander Orakhelashvili “The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions” (2005) 16 EJIL 59 at 60
20 Conditions of Admission of a State to Membership in the United Nations (Advisory Opinion) [1948] ICJ Rep 57 at 64
21 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America)(Preliminary Objections) (Dissenting Opinion of Judge Jennings) [1998] ICJ Rep 99, at 110
22 Orakhelashvili, above n 19, at 59
23 Orakhelashvili, above n 19, at 59
24 Kolb, above n 3, at 3
25 Kolb, above n 3, at 4
26 Orakhelashvili, above n 19, at 62
27 Kolb, above n 3, at 4
noted that under Black’s Law Dictionary, the term ‘jus cogens norm’ can be used interchangeably with ‘peremptory norm’; I will refer to both terms throughout this dissertation.28
The primary guidance on jus cogens comes from the Vienna Convention on the Law of Treaties 1969 (VCLT) which provides under Article 53 that a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.29 Article 64 of this convention further clarifies that only a new peremptory norm may modify or revoke an existing peremptory norm.30 It is generally accepted that jus cogens is not confined to the scope of treaty law.31 This much was made clear by the International Law Commission (ILC) in their report to the General Assembly on the draft articles of the VCLT, where they stated that “a rule of jus cogens is an overriding rule depriving any act or situation which is in conflict with it of legality”.32 Judge Lauterpacht affirmed this in in his separate opinion in the ICJ’s Bosnia case (1993).33
As both a principle of customary law and provision of positive law, jus cogens applies to the United Nations Security Council.34 This is through the purposes and principles of the UN, the VCLT’s application to the United Nations Charter as a constituent treaty and through direct application of the concept as a supreme form of customary law.35 Under Article 103 of the Charter, if a Member State of the UN has a conflict with a Security Council order and an existing obligation outside of the UN, the Council order will prevail.36 This principle does not apply however to a conflict with a jus cogens norm.
28 Jus Cogens definition, Black’s Law Dictionary (11th ed. 2019), available at Westlaw
29 Vienna Convention on the Law of Treaties 1155 UNTS 331 (Opened for signature 23 May 1969, entered into force 27 January 1980), art 53
30 Vienna Convention on the Law of Treaties, above n 5, art 64
31 NG Onuf and Richard K Birney “Peremptory Norms of International Law: Their Source, Function and Future” (1974) 4 Denv.J.Int’l L.&Pol’y 187 at 195
32 Report of the International Law Commission on the work of its eighteenth session [1966] vol 2, pt 2 YILC 261
33 Alexander Orakhelashvili Perempotry Norms in International Law (Oxford University Press, New York, 2006) at 436
34 John Dugard “Judicial Review of Sanctions” in Vera Gowlland-Debbas (ed) United Nations Sanctions and International Law (Kluwer Law International, The Hague, 2007) at 86
35 Orakhelashvili, above n 33, at 429
36 Charter of the United Nations, art 103
The existence of jus cogens does not depend on an exhaustive list of norms.37 This was a decision in the drafting of the VCLT, despite objections from a few states. In the ILC’s report to the Conference in 1968, they determined that the full content of jus cogens must be worked out through state practice and the jurisprudence of international tribunals.38 The vagueness of the principle does not deprive jus cogens of its legal character; each norm must be examined substantively on a case-by-case basis.39 The absence of this criteria has however become a strong criticism of jus cogens in its practical application.40 While theoretically the principle of jus cogens exists, many have argued that it lacks any ‘flesh and blood’ because there is too much disagreement over the scope and criteria of the norms.41 Some argue this supreme status attaches to only the most fundamental norms of the international order, whereas others argue in favour of jus cogens applying to any norm which is in the interests of the community of states as a whole and is considered non-derogable.42 Without a stronger consensus on what a norm requires in order to be jus cogens, and which norms have been generally accepted in the international community, jus cogens will remain nothing more than an interesting theoretical concept.43
There is a lot of support for the notion that jus cogens is a product of natural law, given traces of the concept can be found in legal and political philosophy throughout history.44 The concept of ‘immutable’ principles of the law of nations played a role in the Nuremberg Trials where convictions were not based upon norms which were consensually binding on states, but on norms whose nature meant they were binding on all of mankind regardless of state consent.45 While there are certainly strong connections between the concept of jus cogens and the features
37 Orakhelashvili, above n 33, at 43
38 Report of the International Law Commission on the work of its eighteenth session, above n 32, 248
39 Orakhelashvili, above n 33, at 43
40 NG Onuf and Birney, above n 31, at 196
41 NG Onuf and Birney, above n 31, at 196
42 Eva M Kornicker Uhlmann “State Community Interests, Jus Cogens and Protection of the Global Environment: Developing Criteria for Peremptory Norms” (1998) 11 Geo. Int’l Envtl. L Rev. 101 at 101 43 Uhlmann, above n 42, at 101
44 Kolb, above n 3, 8; for more information, see Online Library of Liberty (ed) Hugo Grotius, The Enhanced Edition of The Rights of War and Peace (1625) (eBook, Liberty Fund, Indianapolis, 2014); Richard Whatmore
(ed) Emer de Vattel, the Law of Nations (1797)(eBook, Liberty Fund, Indianapolis, 2008)
45 Orakhelashvili, above n 33, at 37
of natural law, it is more likely that jus cogens is actually an expression of the common legal order within the community of states.46 Natural law refers to the creation of foundational laws and ideas, whereas jus cogens is a legal quality which attaches to already existing laws.47 Jus cogens is more flexible as a legal quality because the norms with this quality can change to reflect the values of the contemporary international order.48 This allows for the emergence of new peremptory norms reaching this peremptory status, compared with an approach under natural law which would restrict jus cogens to only those traditionally recognised as ‘foundational’ to international law. Using the example of international environmental law, a field which continues to grow, under natural law there would be no grounds to accept the development of environmental norms as peremptory.
Jus cogens as an expression of the interests of the international community of states as a whole means that identifying a norm as jus cogens requires a substantive assessment.49 Jus cogens status can be determined from any norm of international law which reflects the wider interests of the community of states.50 This approach aligns with the ILC’s report to the Vienna Conference in 1968 which determined that it is the substantive nature of the norm which determines its peremptory status.51
It must be qualified that more than a mere alignment with the interests of the community of states is required to recognise peremptory status.52 Given jus cogens limits international actors’ actions with or without their consent, only the most important norms reflecting the community’s interests can be given this supreme status.53 Looking back to Article 53 of the VCLT, a clear requirement of jus cogens status is that a norm must be non-derogable.54 The prohibition of derogation provides the strongest evidence of peremptoriness given non- derogability is reserved for only the most important norms existing in the current international
46 Orakhelashvili, above n 33, at 38
47 Orakhelashvili, above n 33, at 38
48 Orakhelashvili, above n 33, at 46
49 Kolb, above n 3, 8
50 Lauri Hannikainen Peremptory Norms (Jus Cogens) in International Law: Historical Development, Criteria, Present Status (Finnish Lawyer’s Publishing Co., Helsinki, 1988) at 207
51 Report of the International Law Commission on the work of its eighteenth session, above n 32, 248
52 Orakhelashvili, above n 33, at 47
53 Orakhelashvili, above n 33, at 47
54 Orakhelashvili, above n 33, at 43
order.55 In terms of developing a criteria for jus cogens, the prohibition of derogation is both a feature and a consequence of a norm being supreme.56 It is the substance of a norm which gives it the character so important (in a moral sense) that it must not be derogated against. This consequence (of non-derogation) then provides strong evidence of the moral character of the norm.57 In this way, the substance (nature) and form (non-derogability requirements) work together to provide a criteria for determining which norms are peremptory and which are not.
In light of the source and scope of jus cogens discussed, I propose the following criterion for determining whether a norm has peremptory character. This criterion comes primarily from the guidance of Article 53 of the VCLT but also from the recognition of jus cogens requiring a substantive assessment. The aim of this criteria is to allow the application of jus cogens to a variety of norms across international law, without expanding the concept too far so that it loses its supreme character.
A norm is peremptory if the norm is (1) of general international law; and (2) accepted and recognised as peremptory by the international community of states as a whole; and (3) one from which no derogation is permitted; except for (4) modification by another conflicting peremptory norm; and (5) must protect the overriding interests of the international community of states. Each of these elements require further consideration.
(a) A norm of general international law
The first requirement of jus cogens is that the norm must be about general international law, instead of regional or domestic laws.58 This means a norm whose substance has ‘general applicability’, creating obligations or rights for the great majority of states in the international system.59 The term ‘general’ as opposed to ‘universal’ implies it must be applicable to the majority of states, but not all.60 Customary law is the primary source of norms of jus cogens
55 Orakhelashvili, above n 33, at 46
56 NG Onuf and Birney, above n 31, at 189
57 Orakhelashvili, above n 33, at 44
58 Hannikainen, above n 50, at 208
59 Hannikainen, above n 50, at 208
60 Hannikainen, above n 50, at 209
because of the general nature inherent in this form of law.61 There are very few peremptory norms which contain specific provisions because such specificity often does not work when applying a rule to the whole community.62
(b) Accepted and recognised as peremptory by the international community of states as a whole
Although jus cogens is an exception to the general principle that no law binds a state without its consent, the acceptance of the majority of states is still required to hold a norm as peremptory.63 At the Vienna Convention, the Chairman of the Drafting Committee Mr Yaseen stated that the words “as a whole” (in Article 53) were included to clarify that a peremptory norm does not require every state to have accepted its status, provided that the dissenting states only constitute a small minority.64 To hold otherwise would allow an individual or small group of states to veto a norm accepted by a large number of states to be in the interests of the global community.65 It is thus in the interests of the international community of states to impose the will of the overwhelming majority on the small minority who do not respect the protection of the common good.66
To determine whether a norm has been accepted as peremptory, there must be a high level of consistency between states in the application and observance of a norm.67 Furthermore, this must have been due to a belief in the relevant norm being peremptory.68 Acceptance can be inferred from the silence of a state if it can be demonstrated that the state was aware of the norm and the peremptory status being awarded to it by other states.69 Where acceptance of a norm is not overwhelmingly clear, the existence of the norm in international instruments and bilateral treaties as non-derogable can provide useful evidence. This finding links back to the ILC’s comment at the Vienna Convention that the full content of jus cogens must be discerned from state practice and jurisprudence.70
61 NG Onuf and Birney, above n 31, at 191 62 NG Onuf and Birney, above n 31, at 191 63 Hannikainen, above n 50, at 211
64 Hannikainen, above n 50, at 210
65 Hannikainen, above n 50, at 211
66 Hannikainen, above n 50, at 213
67 Hannikainen, above n 50, at 237
68 Hannikainen, above n 50, at 237
69 Hannikainen, above n 50, at 239
70 Kolb, above n 3, 8
(c) A norm from which no derogation is permitted
For ordinary principles of international law, jus dispositivum allows parties to contract out or modify their obligations in bilateral agreements.71 When a principle is peremptory, the stronger interests of the international community outweigh the individual interests of states to alter their obligations.72 A principle restricting derogation is thus strong evidence of peremptory status.73
Evidence of non-derogability can be found in treaties and statements from both international organisations and states regarding the operation of the norm.74 Treaties may refer to an inability to suspend a norm in emergency circumstances, or prohibit reprisals.75 As a general rule, if derogation of the norm can be justified, then any prohibition on derogation is not absolute. Any norm which permits reprisals will not be a jus cogens norm because jus cogens only extends to the most important norms whose violation amounts to an offence against the international community. The concept of reprisal focuses on an offence committed in a bilateral relationship between states, whereas jus cogens norms have an erga omnes character.76 A reprisal against a violation of a peremptory norm would thus amount to a second offence against the wider community, going against the function of jus cogens.77
A heavily debated question is whether the partial derogation of a norm can occur without affecting the non-derogable integrity of the entire norm. This depends on whether the violation of the norm can be considered to be within the ambit of the norm or not. If a norm provides for exceptions, then carrying out this exception when the circumstances arise does not constitute a derogation (because one is acting within the ambit of the principle). If no such exceptions are provided for, then derogation disrupts the continuing operation of the norm in the international community. Testing whether a norm is non-derogable thus depends on the ambit of exceptions provided for within the principle, and whether or not the norm permits reprisals. The clearest guidance on this will come from international instruments and state practices.
71 Kolb, above n 3, 2
72 Kolb, above n 3, 2
73 Hannikainen, above n 50, at 263
74 Hannikainen, above n 50, at 263
75 Uhlmann, above n 42, at 111
76 Orakhelashvili, above n 33, at 64
77 Hannikainen, above n 50, at 255
(e) Norm only modifiable by conflicting peremptory norm
Peremptory norms may only be modified by those of equal character; a requirement which stems from the general requirement of non-derogability.78 Modification may range from specification to a substantial alteration, and must be accepted and recognised by the international community of states as a whole.79 Where a substantial alteration to a peremptory norm is proposed, it must be done through a collective expression of the will of the international community. This is a reasonably high threshold only likely satisfied by a resolution of the General Assembly of the UN or Global Conference representative of all member states, expressly declaring the normative terms of the modification.80
An issue with this rule is raised by Onuf and Birney in ‘Peremptory Norms Of International Law’, who argue modification would be impossible as any conflicting norm would be void ab initio before it could obtain jus cogens status.81 This is on the basis that norms have ordinary status first, until sufficient recognition by all states warrants qualification of jus cogens.82 To resolve this, modification would have to come from a norm contained in a general, multilateral treaty or from norms promulgated by the UN General Assembly which were introduced as peremptory.83 This could happen with the introduction of a new peremptory norm in relation to the protection of the international environment. With increasing numbers of global conferences being convened to tackle climate change, such a move could happen if states were to agree.
(f) Norm protects the overriding interests of the international community of states
“An essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State...by their nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.”84
78 Hannikainen, above n 50, at 266
79 Hannikainen, above n 50, at 266
80 Hannikainen, above n 50, at 266
81 NG Onuf and Birney, above n 31, at 192 82 NG Onuf and Birney, above n 31, at 192 83 NG Onuf and Birney, above n 31, at 193
84 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Second Phase) [1962] ICJ Reports 3 at 32
Globalisation meant that the international order shifted from co-existence to community. This shift has been necessary to accommodate for the increasing number of transnational threats such as terrorism and climate change.85 Acknowledging shared community interests also means acknowledging shared obligations.86 This idea was discussed in Barcelona Traction where the court determined states have common interests, and rights to protect those interests.87 This principle of obligations erga omnes was also affirmed in the Nuclear Tests case wherein the ICJ acknowledged states’ common rights to the environment.88 These rights translate into an ability of individual states to vindicate a breach committed by another actor against the community’s interest.89
Two types of community interests exist in international law: a narrow interest aimed at the direct benefit of the entire community, and a broader interest aimed at the protection of individuals. The former includes the common interests of international peace, preservation of the natural environment and the use of the ‘global commons’, among others.90 The latter takes a humanitarian approach, with a common interest in protecting the values important to mankind. This broader interest shows itself in norms which prohibit atrocities like genocide, slavery or torture.91 Declarations and global actions plans of the UN world conferences, resolutions of the General Assembly and multilateral treaties are all sources of evidence of what the interests of the international community are.92
Jus cogens plays an important role in protecting the interests of the international community of states, recognising their superior status over ordinary laws and principles. A substantive assessment must be made to determine whether a norm is in the interests of the wider community.
85 Uhlmann, above n 42, at 105
86 Uhlmann, above n 42, at 105
87 Uhlmann, above n 42, at 104
88 Hannikainen, above n 50, at 274
89 Navia, above n 36, at 53
90 Uhlmann, above n 42, at 108
91 Uhlmann, above n 42, at 108
92 Uhlmann, above n 42, at 108
Chapter II – Norms of Jus Cogens
“In order to qualify as peremptory, a norm... must safeguard interests transcending those of individual States, have a moral or humanitarian connotation, because its breach would involve a result so morally deplorable as to be considered absolutely unacceptable by the international community as a whole, and consequently not [permit] division of those interests into bilateral legal relations.”93
There is no definitive list of peremptory norms. Critics argue that this takes away from the practical force of the concept while proponents argue it makes jus cogens flexible. In this chapter, I argue that while there is no definitive list, there are a number of norms of international law which can clearly be identified as jus cogens. The rest of this Chapter will focus on which norms these are.
The prohibition of the use of aggressive force, outlined under Article 2(4) of the Charter is undoubtedly a peremptory norm.94 Aggressive force is force which has not been authorised by the Security Council nor utilised in self-defence under Article 51 of the Charter.95 Almost every state is a member of the UN, meaning this prohibition applies to the majority of states and has been accepted by the entire community of states.
The ILC determined this prohibition to be the most credible example of jus cogens in international law because it forms the very cornerstone of the contemporary legal order and the effort to promote international peace.96 As a fundamental norm of the international legal order, it is non-derogable. The prohibition of aggressive force is of fundamental importance to the community of states as it ensures the survival and independent existence of states. As a norm
93 Orakhelashvili, above n 33, at 50
94 Charter of the United Nations, art 2(4) 95 Charter of the United Nations, art 51 96 Orakhelashvili, above n 33, at 50
of general international law, universally accepted and in the interests of the wider community, this prohibition can be conclusively considered peremptory.97
States may not acquire territory through the unlawful exercise of force; a principle implicit in the broader prohibition of aggressive force. It would be unacceptable to gain from the violation of a peremptory norm.98 This prohibition is peremptory given it stems from another principle which is peremptory.99 The UN condemnation and non-recognition of the Israeli-Occupied Territories of Palestine, taken during the Six-Day War (1967) is evidence of the wider acceptance of this principle as peremptory.100 The General Assembly, representing the entire community of states, has stated that no territorial acquisition resulting from the use of force shall be recognised as legal.101
The right to self-determination is one of the purposes of the UN, under Article 1(2).102 This right became important in the era of decolonisation, and was initially recognised as applying only to non-self-governing territories.103 This focus was clear in ‘The Declaration of the Granting of Independence to Colonial Countries and Peoples’ from the General Assembly, which affirmed the UN obligation to assist non-self-governing territories in their fight for independence.104
The right to self-determination has since broadened beyond the colonial context to have general applicability on all states, as is demonstrated in the International Covenant on Civil and Political Rights 1976 (‘ICCPR’) which entrenched the principle that all peoples have the right
97 Orakhelashvili, above n 33, at 50
98 John Dugard Recognition and the United Nations (Cambridge University Press, Cambridge, 1987) at 55
99 Dugard, above n 98, at 55
100 See SC Res 2334 (2016) for most recent Resolution passed regarding the conflict
101 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations GA Res 2625 (1970)
102 Charter of the United Nations, art 1(2)
103 Navia, above n 36, at 57
104The Declaration of the Granting of Independence to Colonial Countries and Peoples GA Res 1514(1960)
to self-determination.105 The violation of this right was at issue in Resolutions 418 and 554 which condemned South Africa’s Apartheid regime.106 The Council ordered an arms embargo as a response to the violation of the right to self-determination against the non-white majority of South Africa. This demonstrated the applicability of the right in self-governing territories. The right of self-determination has clearly been accepted by the community of states given its position in the UN Charter, resolutions of both the General Assembly and Security Council, and recognition in international legal instruments. Given its general applicability, this right is clearly in the community interests (above individual states’).
Some have argued that the ability of states to conclude agreements, relinquish control of natural resources and other national decisions constitutes a derogation from the principle thus excluding the right of self-determination from peremptory status.107 Orakhelashvili in ‘Peremptory Norms of International Law’ disagrees with this point however, arguing that the essence of sovereignty is the ability of a state to freely dispose of their natural resources in contracts with other states.108 Provided agreements are exercised out of the free will of sovereign representatives, such activities do not constitute a violation of this right, rather they are within the ambit of the right to exercise such decision-making.109
As a norm with general applicability to all states, accepted by the international community as one from which no derogation is permitted, the right of self-determination can be considered as a norm of jus cogens.
Human Rights are rooted in morality and are fundamentally important to the interests of mankind. Determining which human rights are peremptory is a matter of contention in international law. In general terms, respect for human rights is an obligation under Articles
105 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 19 December 1966, entered into force 23 March 1976), art 1(1)
106 SC Res 554 (1984)
107 Orakhelashvili, above n 33, at 52; For further details, see Jerzy Sztucki Jus Cogens and the Viena Convention on the Law of Treaties: a critical appraisal (Springer-Verlag, New York, 1974); Nico Schrijer,
Sovereignty Over Natural Resources: Balancing Rights and Duties (Cambridge University Press, Amsterdam, 1997)
108 Orakhelashvili, above n 33, at 53
1(3) and 55 of the Charter, thus binding on all states.110 These articles in conjunction with Article 103 make the obligation of acting in accordance the principle of ‘respect for human rights’ an obligation which trumps any other conflicting obligations existing outside of the Charter.111 The establishment of the UN Human Rights Council (UNHRC) (formerly known as the UN Commission of Human Rights) demonstrates the importance human rights has been given by the community of states.112
States have different conceptions of human rights meaning not every right recognised in the Universal Declaration on Human Rights (UDHR) will be recognised as jus cogens.113 It can be assumed that every human right is in the interests of the international community in a broad sense, thus the ‘supreme’ status of a norm will be indicated by its derogability. Article 4(2) of the ICCPR offers guidance on the derogability of human rights, stating that even under emergency circumstances, the prohibition of torture, genocide and slavery, recognition of people before the law and right to life and freedom of thought and consciousness remain non- derogable.114 Similar provisions are found in the American Convention on Human Rights (ACHR) and European Convention of Human Rights (ECHR) in relation to most of these rights.115
(a) Prohibition of torture, genocide and systematic racial discrimination
The International Criminal Tribunal for the Former Yugoslavia (ICTY) determined the prohibition of torture, genocide, slavery, racial discrimination, aggression, and forcible suppression of peoples’ right to self-determination have all acquired high status in the international normative system.116
110 Navia, above n 36, at 59
111 Hidayat Ur Rehman, Syed Raza Shah Gilani and Mumammad Haroon Khan “A Critical Assessment of Jus Cogens Nature of International Human Rights Law” (2014) Dialogue 404 at 406
112 Navia, above n 36, at 59
113 Orakhelashvili, above n 33, at 56
114 International Covenant on Civil and Political Rights, above n 101, art 4(2)
115 Navia, above n 36, at 60
116 Prosecutor v Furundžija (Judgement) ICTY Trial Chamber IT-95-17/I-T, 10 December 1998 at [147]
The prohibitions against torture, genocide and systematic racial discrimination have all been firmly accepted by the community of states as norms which are binding states regardless of consent.117 The prohibition of torture is affirmed under Article 7 of the ICCPR, Article 5 of the American Convention on Human Rights (ACHR), and Article 3 of the European Convention on Human Rights (ECHR).118 The crime of genocide was introduced with General Assembly Resolution 96 (1946), the Convention on the Prevention and Punishment of the Crime of Genocide 1951 and prohibited in Article 6 of the ICCPR .119 The prohibition of systematic racial discrimination can be read in to the Articles 2, 4(1) and 26 of the ICCPR which prohibit discrimination on the basis of race. This prohibition was also the foundation of the Convention on the Elimination of All Forms of Racial Discrimination and the reason for the embargo imposed on South Africa when the Apartheid regime was still in place120 It is clear that each norm has been firmly accepted by the international community of states.
Under Article 4 of the ICCPR, no derogation from any of these norms may be made under any circumstances, including in the event of an emergency. This is because no circumstances could ever justify the violation of such important norms. The ICJ made a point in Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) that the purpose of the genocide convention was to safeguard the existence of human groups and endorse elementary principles of morality.121 The ICTY also linked the absolute prohibition of derogation of a norm to its nature, explaining how this acts as strong evidence for the fundamental value of the norms and their supreme importance to mankind.122 As norms applicable to all states, which are absolutely non-derogable and of fundamental importance to humankind, it is clear these prohibitions are peremptory.
117 Navia, above n 36, at 64
118 International Covenant on Civil and Political Rights, above n 101, art 7; American Convention on Human Rights “Pact of San José, Costa Rica” 1144 UNTS 123 (signed 22 November 1969, entered into force 18 July 1978), art 5; European Convention on Human Rights 213 UNTS 221 (signed 4 November 1950, entered
into force 3 September 1953), art 3
119 Convention on the Prevention and Punishment of the Crime of Genocide 78 UNTS 277 (open for signature 9 December 1948, entered into force 12 January 1951)
120 Dugard, above n 98, at 57; SC Res 418 (1977)
121 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [1951] ICJ Reports 15, 23
122 Prosecutor v Furundžija (Judgement) ICTY Trial Chamber IT-95-17/I-T, 10 December 1998 at [144]
An important point is raised in Peremptory Norms in International Law that some ‘formally derogable’ rights can still be peremptory if non-derogable in a bilateral context.123 It has been established that determining peremptoriness involves a substantive assessment given the substance of a norm is what makes it ‘compelling law’. Non-derogability is a consequence of the substance. While non-derogability is strong evidence of a norm being peremptory, there is room to argue that in a few instances, a norm may be considered peremptory without the consequence of ‘absolute’ non-derogability.124
A distinction must be drawn between the right to derogate from a norm under the VCLT and the right to derogate from it under human right instruments, as they have different consequences. Derogation under the VCLT means attempting to nullify a norm inter se., disrupting the continued operation of the norm internationally. If the norm is erga omnes, then the derogation would offend against the entire community.125 This is different to derogation under a human rights instrument which is limited to national emergencies.126 This is because in these emergency circumstances, derogation is made within the system and the operation of the right in the community of states is unaffected. The fact that a right is formally derogable in a human rights instrument does not exclude the same right from being non-derogable on states in a bilateral context, a point confirmed by the UN Human Rights Committee (UNHRC) in their General Comment No. 29.127 The applicable criteria for determining peremptory status would thus be whether the substance of the norm protects the interests of the community of states, and whether the norm is non-derogable in a bilateral context. Such a determination can only be made through an individual examination of rights.128
(a) Rights of due process
This argument can be applied in an assessment of due process rights. The term ‘due process’ covers a range of civic rights, including the right to access a court, the right to a fair,
123 Orakhelashvili, above n 33, at 58
124 Orakhelashvili, above n 33, at 58
125 Orakhelashvili, above n 33, at 59
126 Orakhelashvili, above n 33, at 59
127 UNHCR International Covenant on Civil and Political Rights: General Comment No. 29: Article 4: Derogations during a State of Emergency (31 August 2001), at 11
128 Orakhelashvili, above n 33, at 59
independent and impartial hearing, the right to a public hearing, the right to hearing within a reasonable time and the right to a reasoned judgement.129 Article 8 UDHR provides for the right to an effective remedy after the violation of ones rights, and Articles 10 and 11 provide for the right to a fair trial, the latter outlining the minimum standards of justice.130 Elements of the right to a fair trial include the presumption of innocence, the right to be tried exclusively by a court of law in relation to a criminal offence, and the right to take proceedings before a court to address the violation of a non-derogable right.131 The European Convention for the Protection of Human Rights (1953), the ICCPR, ACHR, African Charter on Human and People’s Rights and the Arab Charter on Human Rights all set out these rights out in similar detail.132 There is clearly a strong body of international law affirming due process rights.
Whether or not due process rights are peremptory comes down to their bilateral derogability. While due process rights are formally derogable under Article 4(1) ICCPR, there are grounds to argue the rights are absolute in relations between states and international organisations.133 In Tadíc, the ICTY considered that the right to fair trial was an unconditional limitation on the powers of the Security Council, whose observance was sine qua non for the validity of Security Council resolutions.134 Further, the UNHRC found the right to fair trial was non-derogable even in emergency circumstances, despite the ICCPR.135 Firstly, the Committee determined the Article 4(2) list was not intended to conclusively determine which rights were peremptory (on the basis of ‘absolute derogability’) as some rights were only included in it on the basis that derogation would be unnecessary in an emergency situation, here referring to Articles 11 and 18. Secondly, certain elements of the right to a fair trial are explicitly guaranteed under international humanitarian law during armed conflicts, thus there is no justification for a derogation during other emergency situations.136 Thirdly, the right to a fair trial underlies the enforcement of other peremptory norms. Without the protection of such a right, the rule of law as the foundation of every legal system, is weakened.137
129 Grant L Willis “Security Council Targeted Sanctions, Due Process and the 1267 Ombudsperson” (2011) 42 Geo Int’l LJ 673 at 735
130 Willis, above n 129, at 733
131 UNHRC, above n 123, at 16
132 Willis, above n 129, at 733
133 Orakhelashvili, above n 33, at 427
134 Prosecutor v Dusko Tadíc (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) ICTY Appeals Chamber IT-94-1, 2 October 1995, at [41]-[42]
135UNHRC, above n 123, at 11
136 UNHRC, above n 123, at 16
137 UNHRC, above n 123, at 16
Reconciling the position of the HRC with Article 4(1) ICCPR, the right to a fair trial may be derogable in some rare instances, but is clearly non-derogable in a bilateral context, a prohibition which the HRC persuasively argues extends to the actions of the Security Council. The character of the right to a fair trial as binding upon the Security Council and Member States leads to the conclusion that it is above the treaty-making capacity of states, which supports a finding of peremptoriness.138
Humanitarian law is an important area of international law which serves to protect the interests of mankind. Humanitarian norms have been broadly accepted because they speak to the essential components of humanity.139 The norms originate from The Hague Conventions (1899 and 1907) and the Geneva Conventions (1949)140 These conventions established war crimes, crimes against humanity, and the rights of civilians and combatants in warfare. Not all norms within these conventions can be considered peremptory given some can be derogated from by states in a bilateral context.141
Some humanitarian norms are clearly peremptory, such as the principle of distinction, the prohibition on weapons causing disproportionate suffering, and the humane treatment of sick or captured enemy combatants.142 These norms have general applicability to all states, regardless of whether that state has ratified the relevant conventions.143 This applicability extends to both internal and external conflicts given the violation of these norms offends the moral character of the international community.144 As a distinctive feature of jus cogens’, the binding nature indicates that these norms are peremptory.
Peremptory humanitarian norms have come into conflict with the Security Council’s use of economic sanction regimes. It is well established that the making and implementation of any
138 Orakhelashvili, above n 33, at 427
139 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion)[1996] ICJ Reports 226, at 257
140 Navia, above n 36, at 65
141 Navia, above n 36, at 68
142 Navia, above n 36, at 68
143 Navia, above n 36, at 69
144 Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America (Merits)[1986] ICJ Rep 14, 114
decisions by the Council must observe basic human right obligations and applicable norms of international law.145 A general peremptory principle can be ascertained from humanitarian law that the starvation of a population cannot be used as a weapon of warfare.146 With reference to economic sanctions, this means considering the impact of any decision on the civilian population and their rights to access food, water, shelter and medical care.147
The peremptory status of humanitarian norms is supported by their non-reciprocal nature as discussed in Chapter I. Agreements which violate humanitarian norms will be outlawed under Common Articles 66/6/6/7 and 7/7/7/8 and Article 47 Fourth Geneva Convention. Each of these articles works to renounce individual state’s rights in favour of obligations to the international community, obligations which are ‘higher norms’ of international law.148 The Geneva Conventions are theoretically non-derogable in their entirety, due to their substance.149 No derogation could thus be justified in any circumstances, even in an emergency, because the humanitarian conventions are framed for situations of international conflict; the gravest of situations a state could face.150
There is a common interest in having absolute norms which safeguard the fairness, orderliness, civilisation and humanity of warfare.151 When it comes to the violation of norms prohibiting international aggression or war crimes, the offence is not directed at particular states or governments, but rather at the very foundations on which the international community rests, “endangering the peaceful coexistence of nations”.152
International Environmental Law is a relatively new field of law, largely emerging over the last forty years following the UN Conference on the Human Environment (Stockholm Conference) in 1972.153 For this reason, it remains unclear whether any norms of environmental
145 Orakhelashvili, above n 33, at 428
146 Anna Segall “Economic sanctions: legal and policy constraints” (1999) 836 Int’ R. Red Cross. 763
147 Orakhelashvili, above n 33, at 429
148 Orakhelashvili, above n 33, at62
149 Orakhelashvili, above n 33, at 63
150 Orakhelashvili, above n 33, at 64
151 Navia, above n 36, at 65
152 Marjorie M Whiteman “Jus Cogens in International Law, with a Projected List” (1977) 7 GA. J. INT’L & COMP. L. 609 at 610
153 Uhlmann, above n 42, at 116
law have been generally accepted as peremptory by the community of states. There is clearly a growing relationship between international environmental law and jus cogens, given the protection and restoration of the environment is in the direct interests of international community. Climate Change has emerged as one of the most important issues for the current global community, the recent UN Climate Action Summit on 21 September 2019 affirming this. As environmental law grows in importance, more norms may be considered peremptory on the basis that jus cogens is an expression of the interests of the international community.154
Some jurists argue the prohibition against wilful serious damage to the environment during armed conflict may have reached the jus cogens status.
This norm refers to the prohibition against severe damage to the environment when it is a foreseeable consequence of military action. The substance of the interest this prohibition protects provides a strong argument in favour of peremptory status. This prohibition is geared towards the protection of the earth, something all states are universally reliant upon. The norm is therefore clearly in the interests of the entire community.155 The source of this prohibition comes from the laws of armed conflict which also forbid the attack of the natural environment by way of reprisal. This absolute prohibition of derogation offers strong evidence of the ‘supreme’ status of the prohibition, however it is not enough persuasively demonstrate absolute character of the prohibition. There is a major hurdle to a finding of peremptoriness of this norm.
The requirement of general acceptance by the international community has not been satisfied. Under Articles 35 and 55 of the Additional Protocol I to the Geneva Convention, the infliction of widespread, long-term and severe damage to the natural environment during armed conflict is prohibited.156 This is considered an international crime under Article 8(2)9b)(iv) of the ICC Statute.157 The International Committee of the Red Cross (ICRC) published a lengthy guide on Customary International Humanitarian Laws, which included this prohibition.158 This
154 Report of the International Law Commission on the work of its eighteenth session, above n 32, 248
155 Uhlmann, above n 42, at 117
156 Elizabeth Mrema, Carl Bruch and Jordan Diamond Protecting the Environment During Armed Conflict: An Inventory and Analysis of International Law (United Nations Environment Programme, Nairobi, 2009) at 4
157 Jean-Marie Henckaerts and Louise Doswald-Beck Customary International Humanitarian Law (Cambridge
University Press, New York, 2005) at 153
158 Henckaerts and Doswald-Beck, above n 157, at 153
prohibition is not settled customary law however, with the ICRC noting in their report that both France, the United States (US), and the Court itself in the Nuclear Weapons case determined that this prohibition was not customary, and not binding on those who did not ratify the Additional Protocol I. These states had issue with this prohibition because it would effectively make the use of nuclear weapons a crime under the Geneva Conventions. While there has generally been widespread, representative and virtually uniform acceptance of the prohibitions in state practice, these statements from two Permanent Members of the Security Council about its derogability mean there has not been universal acceptance of peremptory status. As a result, this prohibition can not yet be considered peremptory.
This norm refers to the prohibition of environmental damage as a military objective, a norm which is broadly accepted by states.159 During a debate in the UN General Assembly, Sweden held that the destruction of oil wells in Kuwait by Iraq forces was an unacceptable form of warfare in the future. Canada supported this, arguing the environment should never form the object of an attack. Article 1 of the Environmental Modification Convention (ENMOD) prohibits this form of warfare. There are however a number of national military manuals which imply that compliance with ENMOD is down to the will of states.160 While there has been widespread, representative and uniform practice to support the existence of this prohibition in customary law, there is insufficient evidence of its non-derogable nature in bilateral contexts. While this prohibition can thus be considered an important norm of international law, until a violation of it is considered inconceivable, it will fall short of acquiring jus cogens status.
The norms discussed in this chapter are the most commonly cited in discussions around jus cogens however they are not the only ones. Notable mentions not included in this dissertation are the prohibition against piracy, the hijacking of an aircraft, and the dispersion of germs with the intent to cause harm to human life. Given jus cogens acts as an expression of the interests of the community of states, there can never be a definitive list of norms as they are ever evolving. Having a clear criterion and a history of state and judicial recognition of peremptory norms will make the future identification of jus cogens norms clearer and stronger.
159 Henckaerts and Doswald-Beck, above n 157, at 155
160 Henckaerts and Doswald-Beck, above n 157, at 155
Chapter III – The Security Council’s History of Offences Against Jus Cogens Norms
A normative conflict between a peremptory norm and a norm underpinning an action will result in a violation of jus cogens.161 A normative conflict requires a deeper substantive assessment of what interests the relevant norms protect, and what the goals and outcomes of Council action are.162 A determination must be made, looking to the wording, stated intention and necessary results of Council actions to ascertain whether the outcomes of a resolution are likely to lead to some form of jus cogens violation.163 This assessment is objective. While the intentions of the Council will be a relevant factor, the attitudes of the Council regarding the lawfulness of their actions within jus cogens will be irrelevant.164 This means a violation of jus cogens can be well-intentioned and simply err in its execution.
For the Security Council, this conflict may arise through the validation of an action of another which violated jus cogens or through the Council’s own offending actions.165
Ascertaining the intentions of the Council regarding the implementation and outcome of a resolution is crucial to understanding a resolution’s substance, and whether this substance violates jus cogens.166 Evidence of intention comes from the text of a resolution and circumstances of its drafting.167 The intention behind Security Council Resolution 1260, welcoming the Sierra Leone Peace Agreement signing, can be informed by the UN Secretary- General’s statement that the Council would not provide amnesty for perpetrators of international crimes. Although not explicit in the Resolution, the Council’s absence of
161 Orakhelashvili, above n 33, at 439
162 Orakhelashvili, above n 33, at 439
163 Orakhelashvili, above n 33, at 440
164 Orakhelashvili, above n 14, 77
165 Orakhelashvili, above n 33, at 439
statements to the contrary means it can be assumed that such a position was accepted by the Council, thus forming part of the Council’s intentions. 168
If it is difficult to ascertain the intention of the Council, resolutions should be interpreted in accordance with the purposes and principles of the Charter, given they are binding on the Council.169 As established, these purposes and principles are jus cogens norms. Under the normative hierarchy, the task of interpretation must mean ensuring an interpretation in accordance with jus cogens. This is supported by the Judge Lauterpacht (ICJ) in his separate reasoning in Bosnia where he held the Council would not intend to adopt a norm which conflicts with jus cogens, and if they did, the contradiction must have been unforeseen.170 If the Council demonstrates a very clear intention to violate jus cogens without room for interpreting in accordance with jus cogens, the issue of invalidity must be raised.
The issue of interpretation has been raised in a few instances.
(a) Resolution 242 (1967)
Resolution 242, passed in response to the Six-Day War, provided for the ‘just settlement’ of the refugee problem in Palestine without further explanation.171 Given the vague nature of this provision, an interpretation must be taken which accords with norms of jus cogens. The Security Council must therefore be insisting upon the right of Palestinians to return to the Occupied Territories. Any other interpretation of ‘just settlement’ would constitute a violation of jus cogens as it would be validating the deportation and mass displacement of a civilisation, a war crime under Article 8(2)(e)(vii) Rome Statute.172
168 SC Res 242 (1967); Orakhelashvili, above n 33, at 465
169 Orakhelashvili, above n 33, at 462
170 Case Concerning Application of The Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia And Herzegovina V. Yugoslavia (Serbia And Montenegro) (Separate Opinion Lauterpacht)[1993] ICJ Reports 407, at 440
171 Orakhelashvili, above n 33, at 462
172 Orakhelashvili, above n 33, at 462
(b) Resolution 1483 (2003)
Resolution 1483 provided for the settlement of post-invasion Iraq, establishing the obligations of the occupying powers, the rights of the Iraqi people, and the need for the UN to play a humanitarian role in the rebuilding of the state.173 An important provision referred to the establishment of a ‘properly constituted, internationally recognised, representative government of Iraq’, without further clarification.174 ‘Proper’ is subjective and likely to differ between states with different styles of government.175 The requirement of ‘internationally recognised’ does not specify who this recognition must come from and how broad it must be. Finally, the term ‘representative’, while likely indicating a requirement for a democratic government, could include an elected body whose members each represent one sector of the community.176 It is unclear how these factors were intended to operate together, raising the question of whether a narrow interpretation of one may justify a more liberal interpretation of another.177 Considering the normative hierarchy, the requirements had to be recognised in accordance with jus cogens norms, especially the right to self-determination.178 Given this government would have control over Iraqi natural resources, the principle of self-determination dictated the requirement for a democratic government so as to give power to will of the people over their resources.179
Circumstances surrounding a resolution can change to make a lawful decision of the Council have an outcome which violates jus cogens.180 In these instances, the concept of ‘functional non-compliance’ and the need for an evolving interpretation arise.
States cannot be bound by a resolution which violates jus cogens on the basis any violation makes that resolution void ab initio. It can thus be presumed that had the Council foreseen the change of circumstances, and had knowledge that their actions would constitute a violation of
173 SC Res 1483 (2003)
174 Alexander Orakhelashvili “The Post-War Settlement in Iraq: The UN Security Council Resolution 1483 (2003) and General International Law” (2003) 8 J.C.&S.L. 307 at 312
175 Orakhelashvili, above n 174, at 312
176 Orakhelashvili, above n 174, at 312
177 Orakhelashvili, above n 174, at 312
178 Orakhelashvili, above n 174, at 308
179 Orakhelashvili, above n 33, at 464
180 Orakhelashvili, above n 33, at 464
jus cogens, they would not have authorised them.181 In these instances, Member States should refuse to comply with any offending obligation knowing it was not the Council’s intention for them to do so.182 This refusal to comply is legally justified on this ‘functional non-compliance’ basis.
Another option, where the text of a resolution allows for it, is for Member States to reinterpret a resolution in a way that accords with jus cogens. This would be an ‘evolving interpretation’ allowing for the continuance of Council ordered action, but within the confines of the most important norms of international law.183 This was the approach adopted by some Member States at the crux of the Bosnian War with Resolution 713 (1991) which had placed an arms embargo over all of the Former Yugoslavia. Developments in the conflict meant the arms embargo would work to deprive Bosnia of the right to self-defence.184 Several states argued for a new interpretation which excluded Bosnia from the embargo in order to sustain lawfulness of Council actions.185If there is no room for an alternative interpretation which is consistent with all relevant norms of jus cogens, then a resolution of the Security Council which violates jus cogens will be void ab initio.
The Security Council has been the principal architect of the global response to terrorism. A significant part of this response has been through the use of sanctions. In Resolution 1267 (1999), the Security Council determined that the Taliban in Afghanistan constituted a threat to peace (under Article 39 of the Charter) due to their affiliation with Al-Qaeda.186 The Security Council authorised Member States to take coercive measures against the Taliban and associated networks. One of these measures was the establishment of the UN Sanctions Committee. This committee has since branched into sub-committees, each made up with the members of the Security Council and each given the authority to implement and make decisions within the
181 Orakhelashvili, above n 33, at 464
182 Orakhelashvili, above n 33, at 464
183 Orakhelashvili, above n 33, at 464
184 Orakhelashvili, above n 33, at 464; see SC Res 713 (1991)
185 Orakhelashvili, above n 33, at 464
186 Andrew Hudson “Not a Great Asset: the UN Security Council’s Counter-Terrorism Regime: Violating Human Rights” (2007) 25 Berkeley J. Int’l Law 203 at 205
bounds of their empowering resolutions.187 Committees are now established to manage operations in relation to the Taliban, Al-Qaeda, and ISIL. When I refer to the use of sanctions, I will refer to the ‘1267 Sanctions Regime’ with the intention that this reference includes all related resolutions passed since the Sanction Committees establishment in 1999.
(a) Targeted sanctions
The use of targeted sanctions represented a shift away from state-wide sanctions regimes which had caused high levels of suffering in the civilian populations of the states. This new focus also reflected a shift in international relations from the focus on states to the growing focus on transnational actors and threats.188 Social media, trade and international mobility of populations has meant the challenge of fighting terrorism has gone beyond the capacity of individual states.189 It is thus no longer feasible to single out one state to sanction, nor would it be effective, given states may not have the means to deliver on the demands of the Council.
Targeted sanctions operate so that any individual recognised as an affiliate of a listed terrorist organisation will be added to the 1267 Sanctions Regime List, and immediately lose financial rights, privacy rights and the right to seek or maintain employment.190 The financial sanction means all of an individual’s assets are frozen, with the goal of preventing the laundering of any money to terrorist organisations.191 This freeze includes funds, personal assets, and economic resources owned or controlled by the individual. The freezing of assets is usually limited to one year, but it may be extended by the Council.192 Since the establishment of the 1267 regime, an embargo on the right to travel and right to carry a weapon has also been included.193
b. Listing and De-Listing Process
The manner in which individuals are listed and de-listed should be examined.194 States may nominate an individual to the Committee who they have reason to suspect has terrorist
187 Hudson, above n 186, at 206
188 Annalisa Ciampi “Security Council Targeted Sanctions and Human Rights” in Bardo Fassbender (ed) Securing Human Rights: Achievements and Challenges of the UN Security Council (eBook ed, Oxford Scholarship Online, 2011) at 101
189 Ciampi, above n 188, at 101
190 Ciampi, above n 188, at 103
191 Ciampi, above n 188, at 101
192 Ciampi, above n 188, at 103
193 Hudson, above n 186, at 206
194 Hudson, above n 186, at 206
affiliations.195 Prior to 2002, these proposals required only minimal levels of personal information about the individual and their connection to a terrorist network.196 Now, states must provide some evidence of a connection but there is no burden of proof to overcome so the persuasiveness of this evidence is not crucial. Listing is done on a ‘no-objection’ basis; an individual will be listed unless a committee member makes an objection within the five days allotted.197
Where there are few obstacles towards the ‘listing’ of an individual, there are a number of near- insurmountable obstacles for individuals who proclaim their innocence and apply for a review. The review of any listing is subject to the individual’s national government agreeing to support their case.198 If the listing proposal was made by another state, and the individual’s government agrees to support their request for review, this government must approach the other government which made the proposal about the individual and convince them to propose de-listing to the Committee.199 The government representing the individual is able to propose de-listing themselves but they will face tougher procedural hurdles this way, including the ability of any committee member to veto the review proposal without providing a reason.200
A number of states have raised concerns around the listing procedures within the 1267 Sanctions Regime, with regard to potential violations of individuals’ due process rights.201 The right to a fair trial before an independent and impartial tribunal has been established as peremptory, meaning that such a finding could invalidate the listing of individuals.202
(a) The case of ‘Yusuf’ (ECFI)
The violation of due process rights was considered by the European Court of First Instance (ECFI) in Ahmed Ali Yusuf and Al Bakaraat International Foundation v. Council of the
195 Hudson, above n 186, at 207
196 Hudson, above n 186, at 207
197 Hudson, above n 186, at 207
198 Hudson, above n 186, at 208
199 Hudson, above n 186, at 208
200 Hudson, above n 186, at 208
201 Hudson, above n 186, at 218
202 Hudson, above n 186, at 217
European Union and Commission of European Communities (‘Yusuf’). The court found they had jurisdiction to review the implementation of mandatory Security Council orders within their own regional jurisdiction.203 Ahmed Yusuf, made an appeal to the European Court after being listed, along with two associates, to the 1267 Sanctions Regime. Yusuf contested the implementation of the sanctions on the basis of a human rights violation. The ECFI accepted jus cogens as a limitation on the power of the council, and acknowledged the right to a fair hearing as peremptory.204 They found no violation however, on the basis that a de-listing procedure existed, despite being onerous.205
(b) Lack of opportunity to dispute listing
In his article ‘Not a Great Asset: the UN Security Council’s Counter-Terrorism Regime’, Hudson argues the ECFI erred in this conclusion.206 Although the de-listing mechanism does exist, Hudson argues it is so onerous and insurmountable that it does not amount to a ‘fair’ hearing.207
(i) Reliance upon government support
Firstly, Hudson argues that an individual having to rely on their state to support the review puts them at the mercy of their state’s political interests. A state may be hesitant to support the review if it would be perceived as supporting terrorism.208 Further, if a government is corrupt or incompetent, an individual’s legal right to a hearing may be ignored. Most individuals on the list are from Afghanistan, which is generally recognised in the international community as a failed state.209 The other nations which feature heavily are Yemen, Egypt, Algeria, Syria and Saudi Arabia; none of which are renowned for having an open, accountable government.210
203 Hudson, above n 186, at 214
204 Hudson, above n 186, at 214
205 Case T-306/01 Ahmed Ali Yusuf and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2005] ECR II- 03533, [312]
206 Hudson, above n 186, at 217
207 Hudson, above n 186, at 219
208 Hudson, above n 186, at 219
209 John F Sopko Quarterly Report to the United States Congress (Special Inspector General for Afghanistan Reconstruction, Jan 2017) at 58
210 Hudson, above n 186, at 219
Most likely, it would be extremely difficult for an individual within these states to successfully petition their government for de-listing.211
(ii) Consensus of the Committee
Secondly, Hudson notes that even if a state accepts an individual’s request for review, they must still convince all the 1267 Committee members, and the government which proposed their listing.212The political nature of the de-listing process indicates that cases will not be determined exclusively on the merits of the evidence.213
(iii) Mistaken perception that de-listing procedure sees fair results
Thirdly, Hudson contends the court misunderstood some of the material facts. Yusuf’s associates had been cleared of any incriminating association before the official listing but the Court mistook this as the Yusuf’s associates going through the de-listing process outlined. The Court relied upon this mistaken fact as evidence that the de-listing procedure did work.214 In essence, Hudson argues the procedure for review exists in theory, but not in substance. 215
(c) Breach of core elements of the right to a fair hearing
Even if the de-listing process does constitute an opportunity for a hearing, the process violates some of the core elements of the right to a fair hearing. At minimum, grounds must be proven to find someone guilty of an offence.216 The 1267 Sanctions Regime sets no burden of proof, nor specific evidentiary requirements, apart from a description of the alleged incriminating activities. Further, almost any activity can be captured by the guidelines making evidence easy to manipulate.217 At no stage is the individual given the chance to be heard from, violating individuals’ rights to self-defence. Finally, the same body responsible for listing the individual conducts the review. This breaches the fundamental right to an independent, impartial
211 Hudson, above n 186, at 219
212 Hudson, above n 186, at 219
213 Ciampi, above n 188, at 108
214 Hudson, above n 186, at 220
215 Hudson, above n 186, at 220
216 Ciampi, above n 188, at 107
217Ciampi, above n 188, at 107
tribunal.218 Given the severity of the embargo imposed on the individuals, this de-listing procedure constitutes a gross violation on individuals’ rights to have a fair hearing.
(d) Maintenance of International Peace
The strongest justification for these violations of due process is the goal of the regime, to fight terrorism. Arguably, this goal could be undermined if there was a fair trial, acknowledging that ‘innocent before proven guilty’ does allow guilty people to be acquitted.219 This argument attempts to legitimise violations of human rights with an appeal to the basic foundational purpose of the UN; maintaining peace and security. Such an argument may have been entertained if the question was whether the Regime was ultra vires, having breached Article 25 of the Charter as voidability is discretionary. It can not be entertained however in the face of a jus cogens breach where a violation is void ab initio. If a breach of jus cogens were accepted on a purposive argument, then the principle of respecting human rights would be devoid of all normative and practical value.220 Such an argument could be utilised to justify any breach against the interests of the international community as a whole. Jus cogens status is reserved for only to the most important norms in the international legal order meaning no reason could ever justify a violation (bilaterally).221
There have been instances where the Security Council has adopted a decision which supports a Member State’s action, knowing that action is a violation of a peremptory norm.
218 Hudson, above n 186, at 221
219 Ciampi, above n 188, at 104
220 Ciampi, above n 188, at 104
221 Ciampi, above n 188, at 104
(a) Resolution 1203
In October 1998, the Socialist Federal Republic of Yugoslavia (SFY) signed a peace agreement providing for the return of refugees to Kosovo.222 This agreement had been induced by NATO through an unauthorised military threat; a clear violation of the prohibition on the use of aggressive force.223 Following the conclusion of these agreements, the Security Council passed Resolution 1203 which approved the terms of the peace settlement. The Resolution went so far as to endorse the agreement, demanding the “full and prompt implementation of [the] agreement” which, in effect, amounts to an endorsement of the violation of jus cogens which induced the agreement.224 The only conclusion can be that the validation of a violation of jus cogens is void ab initio.225
(b) Resolution 731 and 748
In December 1998, an American aircraft was destroyed mid-flight by a suspected Libyan terrorist group, killing 270 people total. The US and United Kingdom (UK) made threats to Libya to coerce them into extraditing the suspects who had returned home after the attack.226 These threats were made despite being unauthorised by the Council.227 The Security Council passed two resolutions in the aftermath, endorsing the demands of the US and the UK.228 The second resolution ordered coercive action against Libya for failing to comply with demands to extradite.229 The resolutions were intrinsically tied to the unlawful threats made by the US and the UK, endorsing the violation of the peremptory prohibition on threatening the use of aggressive force.230
222 Orakhelashvili, above n 33, at 449
223 Orakhelashvili, above n 33, at 450
224 Orakhelashvili, above n 33, at 451
225 Orakhelashvili, above n 33, at 451
226 Orakhelashvili, above n 33, at 450
227 Orakhelashvili, above n 19, 71
228 Vera Gowlland-Debbas “The Relationship Between the International Court of Justice and the Security Council in the Light of the Lockerbie Case” (1994) 88 AJIL 643 at 644; see SC Res 731 (1992); SC Res 748
(1992)
229 Gowlland-Debbas, above n 228, at 645; see SC Res 731 (1992)
230 Orakhelashvili, above n 19, 71
A Security Council resolution may also directly approve the violation of jus cogens. Such a violation occurred in relation to the High Representative of Bosnia and Herzegovina, who had been established to manage and supervise the civilian implementation of the Dayton Agreement in 1995. Under Article 2 of Annex 10 of the agreement, the power to ‘manage and supervise’ meant the power to monitor, consult, coordinate and be conciliatory.231 This did not include making binding decisions as a public authority. Despite this, the High Representative began to use his powers to dismiss a lot of high-level officials including presidents, and adopt laws affecting the ombudsman, state border protection, and criminal procedures.232 The use of power beyond the scope of the Dayton Agreement had the effect of depriving the people of Boznia and Herzegovina of their right to self-determination.233 Despite this violation, the Council expressly declared their support for the High Representative, and his ability to make binding decisions in Resolution 1305, adopting an expansionist view of his limitations.234 This amounted to explicit support for a breach of the jus cogens right to self-determination.
On top of validating the breach of jus cogens norms by other actors, the Security Council has also made orders for certain actions themselves which have amounted to breaches of jus cogens.235
(a) Sanctioning regime breaching peremptory humanitarian norms
The most prominent example of a Security Council order amounting to a violation of jus cogens was the economic sanction regime in Resolution 661 implemented against Iraq following its invasion of Kuwait in the 1990s.236 The sanctions amounted to a near total-ban on trade and finance and are widely believed to have caused a humanitarian crisis for the civilian population.237 During the sanction years, Iraq’s infant and child mortality rates increased,
231 Orakhelashvili, above n 33, at 453
232 Orakhelashvili, above n 33, at 453
233 Orakhelashvili, above n 33, at 454
234 Orakhelashvili, above n 33, at 454
235 Orakhelashvili, above n 33, at 455
236 Orakhelashvili, above n 33, at 455
237 Orakhelashvili, above n 33, at 455
while corresponding rates of those with access to food and medicine decreased.238 Children were taken out of school in order to get jobs, resulting in a decline in primary and secondary educated people.239 Even after the implementation of humanitarian exceptions which allowed the flow of certain goods into the country, the sanctions still had a devastating effect on the community.240
Sanction regimes operate on the basis that the government will concede to demands in order to protect their civilian population.241 The Iraqi leadership, however made very few concessions, meaning the hardship inflicted had no positive outcome.242 Depriving civilians of their basic needs (leading to high malnutrition rates) was clearly a violation of humanitarian peremptory norms.
Notably, the Council also implemented these sanctions to similar effect against Haiti (1993) and Former Yugoslavia (1990s and early 2000s), thus there was a pattern of violations.243 There is no force or context which can justify the breaching of humanitarian law, thus in hindsight the resolutions imposing economic sanctions would have been void ab initio had the outcomes been foreseeable.
(b) Arms embargo on Former Yugoslavia breaching peremptory right to self-defence
As previously discussed, the arms embargo implemented over the entire Former Yugoslavian state, established in Resolution 713 (1991) was another example of a violation given its outcome. The resolution deprived Bosnians of their right to organise troops and solicit arms in their self-defence.244 This had the devastating consequence of making Bosnian communities vulnerable, a factor which contributed to the commission of genocide by the Serbian forces in 1995.245
238 Denis J Halliday “The Impact of the UN Sanctions on the People of Iraq” (1999) 28 J. Palest. Stud. 29 at 30
239 Halliday, above n 238, at 32
240 Orakhelashvili, above n 19, 77
241 Orakhelashvili, above n 33, at 455
242 Orakhelashvili, above n 33, at 455
243 Orakhelashvili, above n 33, at 455
244Orakhelashvili, above n 19, 72
245 Orakhelashvili, above n 19, 72
These examples demonstrate the need for an independent tribunal to be able to exercise some check on the Council’s power. Even with good intentions, it is always dangerous to give any body or institution such high levels of broad, unfettered power.
Chapter IV – The Ability to Review the Actions of the Security Council Under Jus Cogens
“No community anywhere suffers from too much rule of law; many do suffer from too little – and the international community is among them. This we must change.”246
- Kofi Annan
One of biggest obstacles in relation to the application of jus cogens to the Security Council is the matter of enforcement. This was discussed in Certain Expenses where Judge Morelli determined the Council enjoyed de facto ‘absolute validity’ on the basis there was no judicial body established to hold them accountable.247 The majority found the existence and application of jus cogens to the Security Council was not dependent on the existence of a judicial organ. Accepting this, I argue it must still be conceded that in practice, the only way to enforce the rule of law upon the Security Council is to establish some form of accountability outside of the Council itself. Relying upon certain political features of the Security Council itself to be legitimate checks and balances is not reasonable, nor has such a position of reliance been proven successful. This raises important questions regarding the jurisdiction of the ICJ and the competency of states to make a unilateral determination of lawfulness.
It is not surprising that the question of enforcement against the Security Council has not been explored in much detail, given the Council only became truly active after the Cold War.248 At its drafting, the UN Charter was framed to include a number of provisions which, when combined, would impose certain limitations on the Council’s exercise of their power.249 Articles 24, 25, and 39 limit when and how the Council makes decisions, however the vague nature of these provisions has enabled very broad interpretations, especially under Article 39 which renders them ineffective.250 The Security Council has become a tool that members use
246 Kofi Annan, Secretary-General of the UN “Address at the Truman Presidential Museum and Library” (Independence, Missouri, USA, 11 December 2006)
247 Certain Expenses of The United Nations (Advisory Opinion) Dissenting Opinion [1962]
248 Dugard, above n 34, at 83
249 Mohamed Sameh M Amr The Role of the International Court of Justice as the Principal Judicial Organ of the United Nations (Kluwer Law International, The Hague, 2003) at 281
250 Österdahl, above n 7, at 9
to pursue their own national interests, as opposed to states being used by the Security Council in the pursuit of international interest of peace and security.251 It is a fair assumption that the drafters of the UN would not have expected the Security Council to exercise power in the way that is has.
The Security Council is still clearly bound by jus cogens. This is important as no liberal interpretation of purposes and principles of the UN will validate the violation of a fundamental norm to the international community. Further, a determination of an offence against jus cogens is objective thus the intentions of the Council to operate within the (broad) confines of the Charter will not justify a breach; if an action violates jus cogens, the justification becomes irrelevant. Jus cogens can only remain a theory unless it is actively utilised as a check on the powers of the Council. Given it would be against the interests of the Council to impose such a limitation on their own power, it follows that the enforcement of jus cogens must happen by someone else.
The binding nature of Security Council resolutions (under Articles 25 and 103) means enforcing compliance with jus cogens has elevated importance.252 If there is no way to enforce legality, then states may be bound to implement Council orders which are unlawful.253 This is clearly an unacceptable conclusion.254
The rule of law requires enforcement, which traditionally comes from the operation of the judicial branch of government.255 In the international sphere, the ICJ is the primary judicial organ of the international community; the ‘guardian of the legality of the UN’.256
251 Österdahl, above n 7, at 12
252 Karl Doehring “Unlawful Resolutions of the Security Council and their Legal Consequences” (1997) 1 MaxPlanckUNYB 91 at 98
253 Doehring, above n 252, at 98
254 Salvatore Zappalà “Reviewing Security Council Measures in the Light of International Human Rights Principles” in Bardo Fassbender (ed) Securing Human Rights: Achievements and Challenges of the UN Security Council (eBook ed, Oxford Scholarship Online, 2011) at 176
255 Sameh, above n 249, at 305
256 Sameh, above n 249, at 305
Ideally, there should be a centralised approach to review as the ICJ could provide clearer guidance on Member States’ obligations and promote uniformity of state compliance.257 The reasons which support the ICJ as the primary check on the Security Council are likely to gather more momentum as the Security Council adopts more resolutions which raise legality concerns.258 This is because ‘questionable’ resolutions will highlight the increasing need for enforcement of international law.259
(a) Judicial review within the scope of the ICJ Statute
Under Article 36(3)(b) of the ICJ’s statue, the court has authority to decide any questions of international law.260 If a state argues an action is unlawful under international law, the ICJ should have jurisdiction to make a judicial determination of its legality.261 It is the role of the ICJ to determine the constitutional and legal boundaries of the Security Council’s autonomy.262 The ICJ touched on these reasons in Lockerbie when they referred to the ‘procedural and substantive limitations’ of the Council requiring some mechanism of review.263 In his separate opinion, Judge Rezek recognised the emergence of jus cogens as an indisputable limitation on the Council’s powers and concluded that the Court has full jurisdiction to interpret and apply the law in contentious cases, even where this would require scrutiny of a Security Council action. Rezek stated:
“it would be surprising indeed if the Security Council of the United Nations were to enjoy absolute and unchallengeable power in respect of the rule of law.”264
There is no provision contained within the ICJ statute, nor the UN Charter which prohibits the ICJ from judicially reviewing the actions of the Security Council.265 This is notable given that Article 12 of the UN Charter precludes any similar determination of the Council’s actions by
257 Orakhelashvili, above n 33, at 480
258 Dugard, above n 34, at 85
259 Dugard, above n 34, at 85
260 Statute of the International Court of Justice, Art 36(3)(b)
261 Sameh, above n 249, at 324
262 Orakhelashvili, above n 33, at 483
263 Gowlland-Debbas, above n 228, at 656
264 Lockerbie, above n 8, at 154
the General Assembly.266 Jurisdiction to review the Council would be a natural extension of their power to interpret the UN Charter within which scope the Council operates.267
This argument comes down to a consideration of the overarching function of the Security Council. The fact that the ICJ statute does not prohibit Security Council review is not enough to establish legal grounds for this jurisdiction.268 However, in adopting a purposive approach to the interpretation of the ICJ Statute, this absence of a prohibition becomes more meaningful. The exercise of power by the Security Council has not always been consistent with the goals of the UN drafters; a fact exacerbated by the lack of accountability. The absence of a body to review the Council is likely a result of the drafters not foreseeing how the Council would go on to interpret the Charter and exercise their power. The interest in having this body to prevent the gravest violations of the very norms which the UN was established to protect, may justify a liberal reading of Article 36(3)(b) of the ICJ statute. The fact it is not banned by the Charter thus makes the proposition more tenable.
(b) Methods of referral to the ICJ
(i) Direct recourse
States are barred from making a direct complaint to the ICJ regarding Security Council actions because under Article 34 ICJ Statute, only states may be party to contentious proceedings. 269
(ii) Advisory Jurisdiction
Under Article 96 of the UN Charter, the Court may give an advisory opinion if a direct request is made by a political organ of the UN.270 This opinion will constitute an assessment of the constitutionality of an act, either arising out of a direct request about the act’s legality, or as an incidental assessment of an act’s legality when determining another question.271 In the Lockerbie case, Judge Bedjaoui emphasised the potential that advisory opinions have as a
266 Dugard, above n 34, at 85
267 Sameh, above n 249, at 323
268 President Schwebel firmly rejected this argument in Lockerbie (Dissenting Opinion. Schwebel) [1998] ICJ Reports 155, at 166
269 Sameh, above n 249, at 328
270 Charter of the United Nations, art 96
271 Sameh, above n 249, at 329
method of judicial review of the Security Council by the ICJ.272 Bedjaoui was of the opinion that an advisory opinion should be requested by the General Assembly every time the legality of a decision (that is about to be implemented) is in question. The jurisdiction of the court to provide an advisory opinion on request provides an “irrefutable basis of jurisdiction” for the ICJ.273 Advisory opinions are only authorised by a majority vote from a UN political organ meaning reviews would be limited to when the community of states wanted one. Advisory opinions are not binding, thus avoiding any confrontation between branches.
However, the problem with advisory opinions as a check on the Council is that they rely upon this majority vote and no veto being exercised by the Council.274 The Security Council is only likely to allow a referral where they expect that confirmation of a Resolution’s legality will strengthen state support.
That is not to say this avenue is impossible; the Court has made these advisory assessments of UN action in the Reparation case, Second Admission case and Certain Expenses case.275 In Certain Expenses, the ICJ was requested to provide an opinion on whether or not expenses of the General Assembly had been decided on in conformity with the United Nations Charter.276 The Court held that the legality of the finances of each operation are intrinsically linked to the legality of the operation they come from277. This meant that the legality of the operation was incidental to the determination of the legality of the expenses. In the case of Namibia, the Court was called upon by the Security Council to advise on the consequences and implications of Resolution 267. While this did not amount to a review of the substantive content of this resolution, as would occur with a question of jus cogens conflict, the Court did consider itself competent to assess the procedural validity of actions taken by the Security Council.278
272 Sameh, above n 249, at 330
273 Sameh, above n 249, at 330
274 Sameh, above n 249, at 330
275 Sameh, above n 249, at 330
276 Sameh, above n 249, at 310
277 Certain Expenses of The United Nations (Advisory Opinion) [1962] ICJ Reports 151, at 167
278 Legal Consequences For States Of The Continued Presence Of South Africa In Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (Advisory Opinion) [1970] ICJ Reports 16, at [19]–[22]
(iii) Contentious Jurisdiction
States may not bring a direct claim against the Security Council to the ICJ as they are barred from making advisory requests, and only states may be parties to contentious proceedings. Actions taken by the Security Council may, however, become relevant to the dispute between states before the court, meaning an incidental review of the action may take place.279 This review would be limited to reviewing actions of the Council after they had been implemented, (or else they could not be incidental to the legal dispute). An example of what is meant by ‘incidental’ review can be found in Tadíc where the ICTY was challenged on its own jurisdiction to prosecute an individual on the basis that their establishment was invalid.280 The tribunal had to assess the legality of the Security Council resolution which had established the ICTY. The tribunal confirmed their jurisdiction to conduct this review arguing that as long as the case turned on a legal question which could not be answered without an assessment of the Council’s actions, they had the jurisdiction to make this judicial determination.281
The competency of the Court to judicially review actions of the Council (incidentally) was discussed in Lockerbie. Several of the judges determined that the Court might be competent to pass judgement on the legality and validity of Security Council resolutions, given the Court’s position as the ‘guardian of legality’.282 This competency goes back to the Court’s jurisdiction to make judicial determinations on any questions of international law; assessing the legality of the Security Council’s actions when it is relevant to the judicial question before the court is within the ambit of Article 36(2)(b) ICJ Statute.
Key to this approach is that the Security Council is not a party in the proceedings before the Court. This however creates an issue of enforcement because only the parties to a case are bound by the Court’s findings, meaning no effect is had on the continuing operation of the relevant resolution.283 This is also an issue for determinations made within an advisory opinion which are, of course, only advisory. This does not necessarily mean the opinion of the ICJ will not have an effect. A finding of invalidity by the Court will cast doubt upon the relevant
279 Sameh, above n 249, at 331
280 Prosecutor v Dusko Tadíc, above n 134, at [20] 281 Prosecutor v Dusko Tadíc, above n 134, at [24] 282 Sameh, above n 249at 331
283 Sameh, above n 249, at 332
resolution. This may have a prospective effect as any determination would provide guidance for Member States about their obligations under Articles 25 and 103 of the Charter.284
The strongest objection to the ICJ taking on this function of review is the concern that it will hamper the effectiveness of the Council in its effort to maintain international peace and security.285 I argue that the relatively limited instances in which it would have jurisdiction to review mitigates this concern. Review by the Court will only be in circumstances where it is incidental to the main legal issue, or where the General Assembly or Security Council refer the case to the Court. While the former would be outside the control of the Council, it is only possible after an action has been implemented. This means the effectiveness and strength of the Council is less likely to be impeded upon because the results of that action will show clearly whether the action should be lawful or not. It is important to remember that for the purposes of this dissertation, the jurisdiction in question relates to a review of violations of jus cogens. As supreme law, the Council has never had any power to act against jus cogens norms. The strength of the Council’s power does not equate to the right to act unlawfully. If it should not be lawful, then declaring the action void does not take away from the power of the Council because the Council never had that power in the first place. Judicial review is thus merely ensuring that the Council is not acting in excess.
The existing limitations contained within the Charter are also utilised as another reason against the ICJ having this jurisdiction. The limitations concerned, however, are all internal to the Council.286 Under basic principles of the rule of law and separation of powers, the constraints on the powers of the Council should not be exclusively internal; a political organ should not be the body to determine the legality of its own actions.287
284 Sameh, above n 249, at 333
285 Orakhelashvili, above n 33, at 481
286 Sameh, above n 249, at 306
287 Sameh, above n 249, at 321
(a) Invalidity and non-binding determinations
It is generally assumed that judicial review of the Security Council’s actions by the ICJ would constitute an assessment of the legality of a resolution.288 With a focus on judicial review of potential violations of jus cogens norms, the review would constitute an objective, substantive assessment of the validity of a resolution.289 This raises the question of the interaction between violations of jus cogens norms being void ab initio and the inability of the ICJ to decide anything binding on the Security Council.290 With regard to actions which are ultra vires (beyond the scope of the Security Council’s constitutive instrument), the Court has no power to declare a resolution null and void because they cannot make any binding legal determinations on the actions of the Council directly. A violation of a norm of jus cogens has a different outcome, however. As established in Certain Expenses, the ‘void’ nature of violations of jus cogens is not dependent on the existence of a judicial determination. Not needing a judicial determination for invalidity means any declaration of the Court on this matter will only be necessary in so far as it offers guidance to Member States, and helps to coordinate a uniform response to a finding of invalidity. The fact that any determination by the Court is not binding is irrelevant when a binding judicial determination is not required for invalidity.
(b) Severability of impugned provisions
There is no clear guidance as to whether an impugned provision of a resolution can be ‘severed’ from the rest of the resolution.291 Looking to the positivist origins of jus cogens under Articles 44, 52 and 53 VCLT, the entire treaty would be void. There is some practice however suggesting severability is an option where the impugned provision is not integral to the operation of the resolution as a whole.292 Such a determination will be performed on a case- by-case basis. This approach aligns with the desire to avoid undermining the purposes of the Security Council’s actions. While it will never be in the interests of the international community to legitimise the violation of a jus cogens norm, it may go against community
288 Orakhelashvili, above n 33, at 482
289 Orakhelashvili, above n 33, at 481
290 Doehring, above n 252, at 91
291 Orakhelashvili, above n 33, at 470
292 Orakhelashvili, above n 33, at 470
interests to invalidate provisions of a resolution which are legal and are aimed at securing international peace and security.293 The Court would need to balance both of these considerations in making their determination.
The alternative to a finding of invalidity by the ICJ is the unilateral determination of invalidity by Member States, remembering that the ICJ’s jurisdiction is limited to advisory opinions authorised by the Security Council, or incidental reviews which require another cause of action first. The ICJ discussed the need for unilateral determinations of lawfulness in Certain Expenses, implicitly recognising the right of states to make them.294 This right comes from the acknowledgement that states cannot be under a lawful obligation to comply with an unlawful order.295 States are obligated to comply with every Council order made within the accords of the Charter (under Articles 25 and 103), thus they can be individually judged for their failure to comply.296 A state choosing to refuse compliance must have strong grounds to argue that a resolution is invalid.297 This imputes a requirement for states to clearly declare their intention to protest and lay out the grounds upon which their protest is based.298
As a general rule, states do not have the right to terminate the operation of a resolution of the Security Council.299 This rule applies where states consider the goals of the relevant resolution to have been achieved, or where circumstances have changed so as to make the continued operation of the resolution problematic. The exception to this rule is in instances where Council actions are illegal under jus cogens.300 An example of this occurring was in Lockerbie when the League of Arab States adopted decisions which expressed solidarity with Libya and condemned Resolution 748 which had reiterated the unlawful demands being made by the
293 Orakhelashvili, above n 33, at 470
294 Orakhelashvili, above n 33, at 471
295 Doehring, above n 252, at 106
296 Orakhelashvili, above n 33, at 471
297 Orakhelashvili, above n 33, at 471
298 Nicolas Angelet “Protest Against Security Council Decisions” in Eric Suy and Karel Wellens (ed) International Law: Theory and Practice: Essays in Honour of Eric Suy (Kluwer Law International, the Netherlands, 1998) 277 at 279
299 Orakhelashvili, above n 33, at 472
300 Orakhelashvili, above n 33, at 475
West, and authorised coercive measures against Libya for failure to comply.301 The Organisation of the Arab Union called upon the Council to suspend Resolution 748 on the basis it was causing unjustifiable suffering on the civilian population; a violation of jus cogens.302
To be clear, there is no explicit right contained within the Charter empowering states to make this determination, but the condition of legality included in Article 25 (which also applies to Article 103) is evidence of this right. States are not obligated to comply where a resolution is illegal; this equates to a right to refuse to comply with unlawful orders.
To legitimise this non-compliance, the question of the lawfulness of the order could be dealt with through the domestic or regional courts of the relevant state. This national or regional review is to be distinguished from a review which applies to the entire international community, as the domestic jurisdiction review would focus only on the legality of the implementation of orders within the domestic jurisdiction. The case of Yusuf, discussed in Chapter III in relation to the legality of the 1267 Sanctions Regime, was determined by the European Court of First Instance. A similar cause of action was brought to the European Court of Justice in Kadi, which found it did have jurisdiction to review on the basis it was not a member of the UN and had jurisdiction to determine matters of law relevant within the European Union.303 Again, such a review was focused on the implementation of the 1267 Sanctioning Regime within the EU, not the legality of the regime itself in international law.304 A review from a judicial body, as opposed to political organ of a state, would legitimise any justification of non-compliance that was given to the Security Council.
The most important argument against the right of states to make a unilateral determination of validity is the fact that this power could be abused by states for their own national interests. There is of great concern in states making unilateral determinations of the validity of Council
301 Orakhelashvili, above n 33, at 475
302 Orakhelashvili, above n 33, at 475
303 Ciampi, above n 188, at 119
304 Ciampi, above n 188, at 119
actions, as it may take away from the Council’s power to achieve the primary goals of the organ.305 This would destroy the ‘peace-making’ capacity of the Security Council.306
It could be argued however that on equal terms, forcing states to implement unlawful orders is also against the peace-making purposes of the Council. The power of the Council is only weakened where states refuse to implement lawful orders of the Council.307 Unfortunately, in recognising the political reality of the United Nations and Security Council, states refusing to implement lawful orders on the basis of an unreasonable claim of invalidity is a real potentiality. As must be recognised in any discussion of international law, states are primarily motivated by self-interest, and will not always operate within the scope of the law to achieve their goals. Recognising this both bolsters the need for an independent body to enforce any violations of the law (especially when that law is jus cogens), and also acknowledges how this enforcement has the potential to be abused. A possible solution would be to refer any instance where a state voices protest to the General Assembly for a determination. As an organ representing all states, this would centralise a decision and ensure uniformity without being restricted by jurisdictional issues (like the ICJ). The key issue with this approach is Article 12 of the UN Charter which prohibits the General Assembly from making recommendations regarding any dispute before the Council (unless requested).308 Adopting the same purposive argument as utilised under section B(2)(a), it could be said that the General Assembly here would not be making recommendations on the policy or substance of an issue, rather, constitutional legality of the exercise of power in the UN. If this distinction could be made, the General Assembly may be found to have this capacity.
305 Doehring, above n 252, at 99
306 Doehring, above n 252, at 99
307 Angelet, above n 308, at 278
308 Charter of the United Nations, art 12
Conclusion
Jus cogens is a very powerful principle of international law which, when utilised effectively, ensures the protection of the most important values in the international community of states. Developing a criterion upon which to assess norms is crucial to giving this principle real weight. Accepting jus cogens as a device used to protect the important values and ideas of the international community allows for a criterion which can find any norm across international law peremptory, as long as it has all the required qualities. This avoids the principle being too restrictive in scope, or stuck in positive law.
While the vague nature of jus cogens has been a hallmark of the principle, there has been sufficient jurisprudence to confidently assess several norms of international law as being peremptory. The prohibition on the use of force, and the right to self-determination, are norms which make up of the purposes and principles of the UN Charter, making a finding of jus cogens easy. The same ease extends to the fundamental norms of humanitarian law, which exist in the interests of mankind. Human rights norms are more difficult to determine given the inconsistent recognition of rights across states, and across international law. There are however a number of human rights generally recognised as so important across both indices mentioned that they can be awarded jus cogens status, subject to any declaration from the community of states which says otherwise.
Jus cogens norms have played a subtle role in the history of the Security Council, with certain resolutions intentionally interpreted in a way to ensure compliance with these fundamental principles. Where violations of jus cogens have become apparent, the Security Council has responded inconsistently; sometimes taking active steps to avoid future violations (an example being the humanitarian exemptions to economic sanctions implemented), and other times ignoring protests from states and other international organisations alike.
The limitations provided for within the UN Charter, under Articles 24, 25, and 39 have been interpreted liberally by the Security Council, with the consequence that the Council has become a tool for certain states to advance their national interests within. This is clearly contrary to the intentions of the drafters of the UN, giving rise to the need for an external body of review. The ICJ, being the principal judicial organ of the UN is the natural suggestion. International
Jurisprudence suggests the ICJ does have jurisdiction to review the legality of the Security Council, but only in circumstances where the general assembly has requested an advisory opinion, or in contentious proceedings between states where the question of legality is incidental to another question before the court. Given these limited circumstances, there is an interest in a right being recognised for all Member States to make their own determinations of legality, given they can be bound to implement an action themselves. Whether or not this right can and will be recognised by Member States however is matter yet to be determined.
It is clear that jus cogens has real force. It is powerful in theory, and has great potential to also be powerful in practise. It is of course the nature of international law that what is discussed in theory may not be what results in practise. States, despite globalisation, still operate in their own national interest and do not always accord with established principles of law. This is not to say however that there can be no value in international jurisprudence and theory. Without such groundwork, there can be no progress in practise. The rule of law must be established before it can be followed. From this, I conclude that the concept of jus cogens, which calls to the conscience of states and international organisations, is a compelling idea, not be ignored.
BIBLIOGRAPHY
A. CASES
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Second Phase)
[1962] ICJ Reports 3
Case Concerning Application of The Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia And Herzegovina V. Yugoslavia (Serbia And Montenegro)) (Separate Opinion Lauterpacht)[1993] ICJ Reports 407, at 440
Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua
v. United States of America) (Merits) [1986] ICJ Rep 14
Certain Expenses of The United Nations (Advisory Opinion) (Separate Opinion Morelli)
[1962] ICJ Rep 232
Conditions of Admission of a State to Membership in the United Nations (Advisory Opinion)
[1948] ICJ Rep 57
Legal Consequences For States Of The Continued Presence Of South Africa In Namibia (South West Africa) Notwithstanding Security Council Resolution 276(Advisory Opinion) [1970] ICJ Reports 16
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Reports 226, at 257
Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan v. United States)) [1998] ICJ Rep 110
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [1951] ICJ Reports 15, 23
Western Sahara (Sep. Opinion. Dillard) [1975] ICJ Reports 116
Prosecutor v Dusko Tadíc (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) ICTY Appeals Chamber IT-94-1, 2 October 1995
Prosecutor v Furundžija (Judgement) ICTY Trial Chamber IT-95-17/I-T, 10 December 1998
Case T-306/01 Ahmed Ali Yusuf and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2005] ECR II- 03533
B. CONVENTIONS AND TREATIES
Charter of the United Nations
Statute of the International Court of Justice
Convention on the Prevention and Punishment of the Crime of Genocide 78 UNTS 277 (open for signature 9 December 1948, entered into force 12 January 1951)
International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 19 December 1966, entered into force 23 March 1976), art 1(1)
Vienna Convention on the Law of Treaties 1155 UNTS 331 (Opened for signature 23 May 1969, entered into force 27 January 1980)
C. BOOKS AND CHAPTERS IN BOOKS –
Nicolas Angelet “Protest Against Security Council Decisions” in Eric Suy and Karel Wellens (ed) International Law: Theory and Practice: Essays in Honour of Eric Suy (Kluwer Law International, the Netherlands, 1998) 277
Annalisa Ciampi “Security Council Targeted Sanctions and Human Rights” in Bardo Fassbender (ed) Securing Human Rights: Achievements and Challenges of the UN Security Council (eBook ed, Oxford Scholarship Online, 2011)
Daneil Costelloe Legal Consequences of Peremptory Norms in International Law (Cambridge University Press, Cambridge, 2017)
John Dugard Recognition and the United Nations (Cambridge University Press, Cambridge, 1987)
Jean Dupraz “UNICEF and the Sanctions Committee: lessons learned from Iraq” in Vera Gowlland-Debbas (ed) United Nations Sanctions and International Law (Kluwer Law International, The Hague, 2007)
Bardo Fassbender “The UN Security Council and International Terrorism” in Andrea Bianchi (ed) Enforcing International Law Norms Against Terrorism (Hart Publishing, Orgeon, 2004)
Lauri Hannikainen Peremptory Norms (Jus Cogens) in International Law: Historical Development, Criteria, Present Status (Finnish Lawyer’s Publishing Co., Helsinki, 1988)
Jean-Marie Henckaerts and Louise Doswald-Beck Customary International Humanitarian Law (Cambridge University Press, New York, 2005)
Robert Kolb Peremptory International Law - Jus Cogens: A General Inventory (Hart Publishing, Oxford, 2015)
Elizabeth Mrema, Carl Bruch and Jordan Diamond Protecting the Environment During Armed Conflict: An Inventory and Analysis of International Law (United Nations Environment Programme, Nairobi, 2009)
Rafael Nieto Navia “Are Those Norms Truly Peremptory? With Special Reference to Human Rights Law and International Humanitarian Law” in Giuliana Ziaccardi Capaldo (ed) The Global Community Yearbook of International Law and Jurisprudence (Oxford University Press, New York, 2016), 47
Alexander Orakhelashvili Perempotry Norms in International Law (Oxford University Press, New York, 2006)
Inger Österdahl, Threat to the Peace: the Interpretation by the Security Council of Article 39 of the UN Charter (Swedish Institute of International Law, Uppsala, 1998)
Mohamed Sameh M AMR The Role of the International Court of Justice as the Principal Judicial Organ of the United Nations (Kluwer Law International, The Hague, 2003)
D. JOURNAL ARTICLES
Mark Angehr “The International Court of Justice Advisory Jurisdiction and the Review of Security Council and General Assembly Resolutions” (2009) 103 Nw. U. L. Rev 1007
Kristina Daugirdas “How and Why International Law Binds International Organisations” (2016) 57 Harv. Int’l L.J 325
Karl Doehring “Unlawful Resolutions of the Security Council and their Legal Consequences” (1997) 1 MaxPlanckUNYB 91
Vera Gowlland-Debbas “The Relationship Between the International Court of Justice and the Security Council in the Light of the Lockerbie Case” (1994) 88 AJIL 643
Denis J Halliday “The Impact of the UN Sanctions on the People of Iraq” (1999) 28 J. Palest. Stud. 29
Andrew Hudson “Not a Great Asset: the UN Security Council’s Counter-Terrorism Regime: Violating Human Rights” (2007) 25 Berkeley J. Int’l Law 203
Ian Hurd “Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World” (2011) 25 Ethics. Int. Aff. 293
Pierre Klein “Responsibility for Serious Breaches of Obligations Deriving from Peremptory Norms of International Law and United Nations Law” (2002) 13 EJIL 1241
Eva M Kornicker Uhlmann “State Community Interests, Jus Cogens and Protection of the Global Environment: Developing Criteria for Peremptory Norms” (1998) 11 Geo. Int’l Envtl. L Rev. 101
Maria C Lomeli “Never Again, Again, Again and Again: The International Criminal Court’s Inability to Deter Mass Atrocities and the Security Council’s Failure to Act” (2014) 31 Ariz.
J. Int’l & Comp. L 81
NG Onuf and Richard K Birney “Peremptory Norms of International Law: Their Source, Function and Future” (1974) 4 Denv.J.Int’l L.&Pol’y 187
Alexander Orakhelashvili “The Post-War Settlement in Iraq: The UN Security Council Resolution 1483 (2003) and General International Law” (2003) 8 J.C.&S.L. 307
Alexander Orakhelashvili “The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions” (2005) 16 EJIL 59
Hidayat Ur Rehman, Syed Raza Shah Gilani and Mumammad Haroon Khan “A Critical Assessment of Jus Cogens Nature of International Human Rights Law” (2014) Dialogue 404
Oscar Schachter “The Quasi-Judicial Role of the Security Council and the General Assembly” (1964) 58 AJIL 960
Anna Segall “Economic sanctions: legal and policy constraints” (1999) 836 Int’ R. Red Cross. 763
Marjorie M Whiteman “Jus Cogens in International Law, with a Projected List” (1977) 7 GA.
J. INT’L & COMP. L. 609 at 610
Devon Whittle “The Limits of Legality and the United Nations Security Council: Applying the Extra-Legal Measures Model to Chapter VII Action” (2015) 26 EJIL 671
Grant L Willis “Security Council Targeted Sanctions, Due Process and the 1267 Ombudsperson” (2011) 42 Geo Int’l LJ 673
Salvatore Zappalà “Reviewing Security Council Measures in the Light of International Human Rights Principles” in Bardo Fassbender (ed) Securing Human Rights: Achievements and Challenges of the UN Security Council (eBook ed, Oxford Scholarship Online, 2011)
E. UN MATERIALS
SC RES 242 (1967)
SC RES 418 (1977)
SC RES 713
SC RES 731
SC RES 1483
SC RES 554 (1984)
SC RES 2167
SC RES 2334 (2016)
Declaration on Principles of International Law Concerning Friendly Relations and Co- operation Among States in Accordance with the Charter of the United Nations GA Res 2625 (1970)
The Declaration of the Granting of Independence to Colonial Countries and Peoples GA Res 1514 (1960)
F. REPORTS
Report of the International Law Commission on the work of its eighteenth session [1966] vol 2, pt 2 YILC 261
UNHCR International Covenant on Civil and Political Rights: General Comment No. 29: Article 4: Derogations during a State of Emergency (31 August 2001)
G. OTHER RESOURCES
Black’s Law Dictionary (11th ed, 2019), available at Westlaw.
Kofi Annan, Secretary-General of the UN “Address at the Truman Presidential Museum and Library” (Independence, Missouri, USA, 11 December 2006)
Kofi Annan, Secretary-General of the UN “Nobel Lecture” (Oslo, 2001)
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