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Disobeying the Security CouncilCountermeasures against Wrongful Sanctions$

Antonios Tzanakopoulos

Print publication date: 2011

Print ISBN-13: 9780199600762

Published to Oxford Scholarship Online: May 2011

DOI: 10.1093/acprof:oso/9780199600762.001.0001

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Responsibility as a Form of Accountability and the UN Legal Order

Responsibility as a Form of Accountability and the UN Legal Order

Chapter:
(p.1) 1 Responsibility as a Form of Accountability and the UN Legal Order
Source:
Disobeying the Security Council
Author(s):

Antonios Tzanakopoulos (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199600762.003.0001

Abstract and Keywords

In introducing the book, this chapter discusses whether it is meaningful to study the question of ‘accountability’ of international organizations in general, and of the United Nations Security Council in particular. It argues that the term ‘accountability’ is too open-ended, and that too many different forms of accountability exist (political, legal, reputational, financial, etc.) for the term to be used without further clarification. The chapter then seeks to determine whether any of the forms of accountability presented can effectively be implemented with respect to Security Council action. It concludes that the focus needs to be on responsibility, i.e., on the legal form of accountability, and sets the scene for the discussion of the international responsibility of the United Nations for Security Council action that will follow.

Keywords:   responsibility, accountability, political accountability, legal accountability, reputational accountability, financial accountability

It is by now almost banal to state that there has been a proliferation of international organizations in the last 60 years, a proliferation, no less, which has arguably led to ‘the gradual emergence of a kind of superstructure over and above the society of States’.1 It is also commonplace to concede the fact that these organizations are constantly expanding the scope of their operations and consequently their impact on international life and on international law.2 One would not be exaggerating in admitting that certain international organizations, among which the WTO, the Bretton Woods Institutions, the EC, and the UN, have to a limited but significant extent replaced States with respect to decisions that have pervasive socioeconomic, political, and legal impact.3 Some have even coined the term ‘functional statehood’ as an appropriate description of these organizations.4 States have conferred on them some of their sovereign powers, which, whereas subject—when exercised at the national level—to a number of constraints, both political and legal,5 seem prima facie to be beyond control when exercised by an international organization. Congruent with the admission of the fact that international organizations are today in possession of significant sovereign powers is the augmentation of calls for the exercise of control over their use of these powers. The far-reaching (governmental) power of certain IOs is today indisputable and in fact by and large undisputed, to the extent that they have been called ‘a fourth branch of government’.6 This ‘power entails accountability, that is the duty to account for its exercise’, as the ILA pointed out in its study on the Accountability of IOs.7

The United Nations, the seminal international organization, has the power, through its Security Council acting under its Chapter VII mandate, not only (p.2) to impose binding sanctions on States and non-State entities,8 but also, as it has increasingly done lately, to impose other non-forcible binding measures, such as the establishment of ad hoc international criminal tribunals,9 as well as a number of international obligations on Member States with respect to the financing of terrorism and the non-proliferation of weapons of mass destruction.10 These broad powers of the Council were first allowed to be exercised and reveal their potential impact after the end of the Cold War and theresolution of an almost 45-year-long deadlock due to the use of the veto. The problem with respect to the operation of the Council was thus recast from one dealing with the abdication of power to one concerned with the potential abuse of power.11 It has been noted, significantly, that recent interest in the accountability of international organizations is ‘owed primarily’ to this extensive activity of the Security Council.12

Before one discusses the ‘accountability’ of the Council—and of the Organization of which it is an organ—for its exercise of powers, one should first attempt to define this rather vague term. Its indeterminacy notwithstanding, ‘accountability’ has come, as of late, to be used extensively, without, however, always being assigned the same (or, sometimes, any) meaning.13 Accordingly the term will be analysed (Section I), before the specific form(s) of accountability applicable to the Council in light of the nature of its function under Chapter VII and specifically under Article 41 UNC is discussed (Section II).

I. Forms of Accountability and the Significance of (Legal) Responsibility

1. Substance of the notion of accountability

The term ‘accountability’ has been characterized as ‘vague’,14 as ‘broad and flexible’,15 as ‘escaping prima facie any clear definition’,16 as ‘multifaceted’,17 and so forth. As Brierly put it more than 80 years ago—admittedly in another (p.3) context—‘an adequate definition of terms is the result of an inquiry and not its starting point’.18 There is thus no point in striving to provide ‘adequate definition’ of the term accountability at this juncture, especially given the rather problematic nature of the term. ‘Yet’, Brierly continues, ‘some preliminary understanding of the meaning in which a term is used is necessary at the outset’.19 It is questionable, however, if even such a ‘preliminary understanding’ of the term ‘accountability’ is possible, given particularly that there are many different understandings and uses of the term in very diverse settings with only marginal convergence.20 Indeed, the term ‘accountability’ has been used to signify the duty of an international organization to account for the impairment of the rights and interests of individuals (but presumably not of States);21 the process of holding individuals personally responsible for human rights abuses they have committed;22 one of the several ways in which power can be constrained;23 whereas in some cases the term is not defined at all and simply treated as self-explanatory.24 In many instances the term is used (or understood) as tantamount to (and interchangeable with) State responsibility, or international responsibility in general,25 while some practitioners seem to find no justifiable use for it in legal discourse, precisely for this reason.26 Others still distinguish accountability of international organizations from the concept of legal remedies in general and from the concepts of liability under domestic law and responsibility under international law in particular,27 while only generally defining the notion as ‘answerability for the performance of an office, a charge, or a duty’.28

This is a difficulty that stems from the fact that ‘accountability’ is used differently in different fields, such as social studies and international relations theory, international law, domestic constitutional and administrative law, and so on.29 Within each such discipline, there may be some convergence on what the term is supposed to mean.30 However, the ‘interdisciplinarity’ of the notion of (p.4) accountability, combined with the stunning observation that ‘it is not an entirely legal concept’,31 creates problems with respect to understanding how this term can be employed in international law, especially when dealing with the limitations and control of Security Council action under Chapter VII of the Charter, and in particular with binding non-forcible action under Article 41.

A standard starting point would be to fall back to ‘an essentially commonsense understanding of “accountability”, meaning that those who exercise power on behalf of others can be held accountable if that power is misused or abused’.32 However, besides being open to the objection that common sense is not always that common, this definition (and other similar definitions, such as the one by the ILA in its Report or that by Schlemmer-Schulte)33 leaves much to be desired. It does not answer who should be accountable to whom, through what modalities, for compliance with what rules, and so forth. Furthermore, it disregards a feature of this term that is often overlooked in Anglo-Saxon literature, and that is that it finds no corresponding term in other major languages.34

Be that as it may, one could perhaps accept the term as an ‘umbrella term’,35 which simply stipulates that an organ exercising power must account, that is, be subjected to control, for the exercise of that power. An attempt to look into the different forms of accountability may help to clarify the issue.

2. Forms of accountability

The very vague notion of accountability is usually broken down into several different ‘forms’. These distinctions may correspond to the differing nature of commitments which lie at the basis of the various forms,36 to the different modalities of holding power to account or the sanctions involved,37 to different accountability-holders or beneficiaries,38 etc. The standard (and most meaningful) distinction is between political and legal accountability, as the two extreme points of a spectrum, with several other possible forms posited along that spectrum and designated here as ‘others’:39 these include financial accountability, administrative accountability, hierarchical accountability, market accountability, (public) (p.5) reputational accountability, and so forth.40 One could further proceed to break down accountability into different distinctions and sub-distinctions ad nauseam, for example distinguishing political accountability into parliamentary accountability, democratic accountability, electoral and non-electoral forms of democratic accountability, and so forth.41

The concept of ‘political accountability’ may be subject to many sub-distinctions, as apparent immediately before, but it is effectively distinguished from ‘legal accountability’ in that it can be entirely or relatively arbitrary.42 At least in its electoral forms, voters are not required to give any reasons for their decision,43 whereas in its non-electoral forms control will in general be politically motivated.44 In the last instance, the political challenges mounted will be on policy, on which reasonable people may reasonably disagree, and in that challenges based on political preferences or positions will be quasi-arbitrary. Legal accountability on the other hand demands that the decision-maker have an objectively convincing reason for the decision made, usually compliance with a legal rule.45 Upon closer examination, political accountability refers to evaluating the personnel of the organ exercising power (to this correspond democratic and electoral forms of political accountability) and the policies put forward by that organ (to which correspond forms of parliamentary accountability), whereas legal accountability refers to reviewing the legality of the organ’s action (or inaction).46

It is common that legal accountability be equated with judicial review within the context of both municipal,47 and international law.48 It is, however, submitted that, with respect to international law, responsibility for internationally wrongful acts (within the meaning of the work of the International Law Commission)49 is what should be understood under the term ‘legal accountability’,50 although the latter concept is broader in some respects. Responsibility is an in rem ex post facto control mechanism. This means that subjects are held accountable for specific actions or omissions (in short: acts, or: conduct)51 after these have occurred, and which constitute violations of international law. The law of responsibility (p.6) is traditionally thought of as a ‘tough’ branch of international law52—even ‘the heart and lungs’ of international law one might venture to say—not least because, in the words of Ian Brownlie, it ‘put[s] a harder edge on legal rights and duties’.53 In international law, responsibility is implemented in the first instance by those subjects of the law to which the international obligation breached is owed.54 As such, it does not require a court, although a finding of responsibility by a disinterested third party will in most cases be the ideal circumstance. Thus ‘legal accountability’ of international organizations can be said to correspond to their responsibility for internationally wrongful acts. A lot of water has flowed under the bridge since the ILC pointed out that ‘it must not be forgotten that, by their very nature, International Organizations normally behave in such a manner as not to commit internationally wrongful acts’:55 the Commission has now adopted on first reading a set of draft Articles on the Responsibility of International Organizations.56

In the quest to determine whether ‘accountability’ is a terminus technicus ‘with a semblance of fixed meaning’ or just a catch-all or umbrella term, many have come out on the side of generality.57 Given the haphazard way in which the concept is sometimes used, its open-ended definition and its multifaceted nature, it is hard for one to disagree with the following statement by Hafner:

It is … suggested to put aside the claims raised under the heading of accountability, which purport to subject the performance of IOs to standards which are neither rooted in hard law nor can be generalized, and to start the further discussion from the original objectives of the claims of accountability, namely to limit activities of IOs by the applicable law and to hold them answerable for violations of this law … What remains under this heading of accountability is that IOs are bound to comply with applicable rules of international law in the widest sense, and that they are answerable for their activities by assuming international responsibility. But so understood, no separate label such as ‘accountability’ would be required, since both aspects, the duty of compliance and responsibility, are traditional concepts of international law. IOs in their quality as subjects of international law would automatically become subject to these concepts.58

Before finally subscribing to this view and exploring its consequences, it is useful to review possible ‘forms’ of accountability that may be applicable in the specific case of the United Nations Security Council imposing non-forcible measures under Chapter VII of the UN Charter. (p.7)

II. Accountability for the Exercise of Non-Forcible Powers by the Security Council

1. The nature of Council powers under Chapter VII of the Charter

It has been contended that accountability for the exercise of public power is best served when several forms of it (political, financial, administrative, legal, and so forth) are put in operation simultaneously.59 However, in order to identify the most appropriate forms of accountability in a realistic manner, one must first attempt to determine the nature of the functions and powers of the organ one seeks to hold to account. In this respect, the Security Council presents a particular problem, especially when acting under Chapter VII UNC. This is because, according to some, it hardly makes sense to attempt to draw meaningful parallels between the Council and domestic institutions exercising legislative, judicial, or executive power.60 The Council hardly ever distinguishes between these three heads of power when it is acting, not less so because, as the Appeals Chamber stated in Tadić,

the legislative, executive and judicial division of powers which is largely followed in municipal systems does not apply to the international setting nor, more specifically, to the setting of an international organization such as the United Nations.61

There is indeed no clear separation of powers in the United Nations, but rather ‘distribution’ of powers among the organs.62 UN organs thus cannot be qualified as ‘executive’ or ‘legislative’, notwithstanding the fact that the ICJ is the ‘principal judicial organ’ of the Organization,63 and that the Council has been called the ‘de facto executive organ’ of the UN.64 Furthermore, it must not be forgotten that the Organization was ‘neither designed nor equipped’ to accommodate any legislative function and thus does not feature any corresponding organ.65 This has led some scholars to argue in favour of a ‘functional’ separation of powers for the Council, (p.8) according to which each Council action or decision shall be determined as falling within the scope of one of the three powers and evaluated accordingly.66 What is customarily overlooked, however, is the extreme difficulty in defining ‘executive’ power. While legislative and judicial power are relatively easier to define, even national constitutions usually fail to provide an adequate and formal definition of executive power.67

The UN Charter does not include any reference to executive or legislative functions. Much like in the case of the European Communities, or any other international organization for that matter, there are only provisions in the constituent instrument that deal with the organs of the UN and their competences. Thus there is nothing in the Charter that can help define ‘executive power’ and identify the organ(s) that exercise it. However, a core set of tasks undertaken by the executive branch of national governments can and has been identified, and this can prove useful in the discussion: the executive usually sets the overall priorities and the agenda for legislation, has the responsibility for the effective implementation of the legislation, and has a significant role in the structure and allocation of the budget.68

Within the UN framework, it seems obvious that what might be called ‘the agenda for legislation and the overall priorities’ may be set by both the GA and the SC, in different ways: whereas the Assembly can call upon States to hold a diplomatic conference with a view to negotiating an international convention, or adopt an international convention in the course of its operation, the Council may impose on States, in the face of a threat to international peace and security, certain general measures, without a limitation in time, which correspond to general international legal obligations, as it has done with Resolutions 1373 (2001) and 1540 (2004). The responsibility for the effective implementation of the law can be seen to fall upon the Council, to the extent that it has the power to respond to threats to the peace, which can be created, among other things, by non-compliance with certain fundamental obligations under international law and the Charter. Finally, the approval of the budget of the Organization falls squarely within the powers of the Assembly under Article 17 UNC.69

From this discussion it is evident that—in general terms—executive power within the UN framework is both de jure and de facto shared between at least the Assembly and the Council.70 In the same way, it could be said that ‘legislative’ power is also shared, in that the Assembly may ‘legislate’ by adopting resolutions and declarations by consensus—which may subsequently evolve to become customary norms of international law.71 The Assembly also has a mandate, under Article 13(1)(a) of the Charter, to ‘encourag[e] the progressive development of international law and its codification’.72 The Council, on the other hand, may impose non-forcible measures, acting under Chapter VII, of such generality so as (p.9) to qualify as ‘legislative’ measures.73 This conclusion does nothing but reiterate the assertion that the Council acts under all three heads of power without distinction74 (including the judicial power, as it did for example already in Resolution 95 (1951) where the Council determined the existence of a violation of the Armistice Agreement between Egypt and Israel,75 or as it does when it makes findings such as the one with respect to the delimitation of the boundary between Iraq and Kuwait being governed by the 1963 agreement76), and thus presents ‘an accountability problem’.77 Such an approach, however, does little to advance the discussion, while at the same time disregarding the fact that, in most States, the executive power always tends to undertake both legislative and judicial functions to some extent, the limits of which are anything but clear.78

A closer look into the nature of Council Chapter VII powers reveals that these are very close to the powers of the executive branch in domestic jurisdictions. In order for Chapter VII to come into play, the Council has to find, in accordance with Article 39 of the Charter, that there exists at least a threat to the peace, or a breach of the peace or act of aggression.79 Once such a finding has been made, the Council can then impose far-reaching binding measures on the membership of the Organization under Article 41 UNC. This type of determination that certain findings of fact respond to a notion used in the law (here the Charter) to allow for the exercise of power is highly reminiscent of the classical way in which municipal laws will provide for the exercise of power by the executive to be contingent on the finding that a certain heading of jurisdiction exists.80 The problem that arises in this respect is that the notions used in laws to provide for a heading of jurisdiction of the executive are usually (if not always) ‘vague to a great extent, because of their prognostic or valuing content’.81 This is most certainly the case with respect to the notion of a ‘threat to the peace’, which triggers Council Chapter VII powers, a fact which is reiterated by the telling example employed by Schmidt-Aßmann and Möllers to demonstrate such a ‘greatly vague notion’, namely the finding by the (p.10) (German) executive that a situation constitutes a ‘danger to public security and order’.82

Within municipal legal orders, this type of executive power is primarily held to account through legal means, in particular through judicial review.83 It is useful, however, to determine what other forms of accountability may be operable, appropriate, and effective with respect to controlling the actions of the Council under Article 41—and Chapter VII in general—of the UN Charter.

2. Appropriate and effective forms of accountability for Council action

In the first instance, one must go through the several sub-forms of political accountability, in order to determine whether any of them may operate with respect to Council action under Chapter VII. ‘Democratic’ accountability, especially in its electoral forms, refers to personnel,84 or to replacing the holders of office through elections.85 Such methods of political control do exist in international organizations, and they include for example the exercise of voting rights in such a way as to prevent reappointment of officials, as was the case with US opposition to the re-election of Secretary-General Boutros Boutros-Ghali.86 With particular reference to the Council, however, it is crucial that, while ten of its members stand to be voted for or against, the prohibition on re-election already significantly limits the meaningful applicability of such a form of accountability,87 a form by default fatally weakened by the assignment of five permanent seats in the Council. Furthermore, any such form of accountability does not relate specifically to the exercise of Chapter VII powers by the Council, and, like most forms of political accountability, does not require any objective—or even substantive—justification.88 Finally, it is hardly worthy of the designation ‘democratic’, as it actually simply constitutes a form of internal electoral political accountability, in the sense that MS of the Organization may express their discontent with the Council through the exercise of their voting rights—but not to any avail, given the permanent seats and the prohibition on re-election. (p.11)

Parliamentary sub-forms of political accountability refer to policy.89 However, since in the UN there is no ‘governmental’ organ that is responsible to an ‘elected’ organ, accounting for the exercise of power in terms of any sort of ‘parliamentary’ accountability does not appear possible.90 The fact is that the GA could be seen as having been given a general power under the Charter to control the Council with respect to its policy choices:91 Article 24(3) stipulates that the Council ‘shall submit annual and, when necessary, special reports to the General Assembly for its consideration’.92 Indeed, even the Appeals Chamber in Tadić hinted to this provision as envisaging some sort of control on Council powers, given that it mentioned it in passing while discussing the limits on Council power imposed by the UNC.93 The submission of periodic reports by a non-plenary to a plenary can serve as a useful accountability tool,94 but in the specific case the reports are not qualitative and receive no substantive consideration; they have rather taken the form of a ‘documentary compendium’.95 In any event, the Council’s ‘terms of reference’ under Chapter VII in particular are far too broad to allow for any meaningful control by another political organ. Vested with primary responsibility to maintain or restore international peace and security,96 the Council has admittedly very extensive discretion in this respect.97

A limited financial or, more broadly, political accountability mechanism relates to the exclusive power of the Assembly to approve the budget of the Organization. While it is true that it is the Council that creates mandates, it is the Fifth Committee of the Assembly that allocates the resources for their implementation, and this has been characterized as a ‘key restraint’ on Council powers, since MS are using it as a mechanism of exerting influence on the implementation of Council decisions.98 It is generally accepted that the approval of the budget by one organ of an international organization can serve as an internal accountability mechanism, in the sense of exercising some control over the actions of another organ.99 This has also been conceded specifically with respect to the Assembly exerting some control over other principal organs of the UN, particularly the Council.100 However, neither non-forcible ‘legislative’ or ‘atypical’ measures, nor any other measures (sanctions) under Article 41 do usually require any sort of funding: approval of the budget does not come into play. This mechanism of accountability could only prove effective, or at least operational, with respect to such ‘atypical’ Article 41 measures as the establishment of ad hoc international criminal tribunals or other subsidiary organs.101 (p.12)

All these sub-forms of political accountability of the Council are only available to the other organs of the Organization, and thus to the MS constituted as these (plenary) organs. The MS constituted as a plenary organ (the GA) are the only actors nominally able to hold the Council to account in this respect, the apparent lack of effectiveness notwithstanding. In that, these forms of accountability are internal in nature.102 In discussing the potential of any other form of political or democratic accountability of the Organization and the Council to the public at large, we need to keep in mind that there is a lack of a distinct polity in world politics and thus also in international law.103 This lack of demos, in the words of Joseph Weiler,104 necessarily means there can be neither democracy nor any sort of democratic or political accountability in that sense. Public reputational accountability could serve as an external control and compensate to some extent (or even disprove) the lack of a demos. However, the Security Council rarely gets its 15 minutes of fame, mainstream media reporting being usually limited to domestic executive action (even though this may be mandated by the Council), or generally uncritical. Consequently, public reaction to Council action has also been limited, while the Council does not seem to be particularly concerned with its reputation with the public. Notwithstanding publicity moves,105 when it comes to Article 41 measures the Council will not easily relent. The Lockerbie incident furnishes a striking example. Certain media grew increasingly doubtful of whether Libya had any involvement with the bombing of the airliner over Lockerbie in Scotland—and more than twenty years after the incident significant doubts persist.106 However, the Council sanctions on Libya remained in place, and were only suspended when the (then) OAU decided on mass disobedience of the sanctions.107

If the SC is by definition undemocratic, this does not mean that it is necessarily unaccountable at the same time.108 Lack of accountability as a result of the existence of a democratic deficit is a deterministic concession imposed by a participatory conception of accountability, according to which the accountability-holder is the public at large, that is, the individuals affected by the exercise of power by the Council.109 Rather, when accepting the predominance, in the case of an undemocratic organ with extensive discretion, of a delegation-based conception of accountability, according to which the accountability-holder is the one who has delegated certain powers to the acting organ for a specific purpose, and which is most prominently served by international (legal) responsibility in the given case, it (p.13) appears clear that the democratic deficit does not block accountability to the entity (or entities, in this case States) empowering the organ.110

In this connection, the following statement by Zimbabwe in the Council is instructive:

this 15-member Council acts on behalf of a total of 175 States Members of the United Nations. This means that 160 States have placed their security, and possibly their very survival, in the hands of the 15. … It is therefore of crucial importance that every decision taken by the Security Council be able to withstand the careful scrutiny of the 160 Member States on whose behalf the Council is expected to act. This is only possible if the Council insists on being guided in its decisions and actions by the Charter and other international conventions.111

This passage reveals two important aspects: first of all that the predominant accountability-holder in the case of the SC acting under Chapter VII is neither the membership of the Organization constituted as a plenary organ, nor the public at large or the individuals affected by its exercise of power, but rather each and every MS of the Organization which has placed its ‘security … in the hands of the [Council]’. Furthermore, the quote highlights the predominance of the Council’s legal accountability to the States, or its international responsibility.

Indeed, legal accountability—or more specifically in this case international responsibility—is the only form of accountability that refers specifically to action (and not to personnel or policy).112 Council action under Chapter VII to maintain international peace and security is the only meaningful object of any type of control. The control of such action’s legality thus presents itself as a meaningful bar to this oligarchic organ’s broad powers. Furthermore, over and above accountability, which in its ‘commonsensical’ definition deals with control over power exercised on behalf of someone else,113 that is, over power that has been conferred, international responsibility also allows third States (non-members of the Organization) to challenge the Council for breaches of international law.

There are a number of complex issues that arise with respect to the control of legality of Council action under Chapter VII UNC and the subsequent engagement of the international responsibility of the United Nations. First of all, there are the preliminary questions regarding the possibility of engagement of UN responsibility under international law through Council non-forcible action, namely the issues of attribution and breach of an international obligation, dealt with in Part I of this work. Then there is the issue of the possibility of (authoritative) determination that the international responsibility of the Organization has been engaged by a competent court or tribunal, or in a decentralized manner. This question is dealt with in Part II. Finally, there is the question over the content and, most importantly, the implementation of UN responsibility for wrongful SC non-forcible action, which is the subject of Part III.

Notes:

(1) H Mosler (1974) 140 RdC 189.

(2) eg K Wellens (1999) 1 ILF 107; T Broude and Y Shany in eidem (eds), The Shifting Allocation of Authority in International Law (2008) 4. Significantly also already S Bastid in Festschrift Spiropoulos (1957) 35.

(3) G Hafner in RSJ Macdonald and DM Johnston (eds), Towards World Constitutionalism (2005) 593. See generally the contributions in A von Bogandy et al (eds), The Exercise of Public Authority by International Institutions (2010); and D Sarooshi, IOs and their Exercise of Sovereign Powers (2005) with respect to the degree of such ‘replacement’, depending on the nature of the conferral of powers that has taken place. On the effect of globalization in removing public responsibilities from traditional governments see S Chesterman (2008) 14 Global Governance 39.

(4) ‘Funktionelle Staatlichkeit’ according to A Reinisch (2007) 42 BDGVR 82.

(5) See Sarooshi (n 3) 14.

(6) E-U Petersmann (1997) 10 LJIL 442.

(7) ILA Report 168.

(8) Art 41 UNC. See eg SCRs 232 (1966) [Southern Rhodesia]; 418 (1977) [South Africa]; 661 (1990) [Iraq]; 713 (1991) [SFRY]; 733 (1992) [Somalia]; 748 (1992) [Libya]; 788 (1992) [Liberia]; 841 (1993) [Haiti]; 864 (1993) [UNITA]; 918 (1994) [Rwanda]; 1054 (1996) [Sudan]; 1132 (1997) [Sierra Leone]; 1267 (1999) [Taliban]; 1298 (2000) [Eritrea and Ethiopia]; 1572 (2004) [Côte d'Ivoire]; 1718 (2006) and 1874 (2009) [DPRK]; 1737 (2006) and 1929 (2010) [Iran].

(9) SCRs 808 and 827 (1993) [ICTY], and 955 (1994) [ICTR]. See briefly for Chapter VII measures related to international and internationalized criminal courts A Tzanakopoulos in A Cassese (ed), The Oxford Companion to International Criminal Justice (2009) 260–1.

(10) SCRs 1373 (2001); 1540 (2004).

(11) cf R Higgins, Problems and Process (1994) 184–5.

(12) A Reinisch (2001) 44 GYIL 275; see also R Hofmann (2007) 42 BDGVR 13.

(13) Reinisch (n 12) 273.

(14) Ibid.

(15) A Gowlland Gualtieri (2001) 72 BYIL 214. Similarly D Curtin and A Nollkaemper (2005) 36 NYIL 4.

(16) Hafner (n 3) 586. cf also idem (2003) 97 ASILProc 236. Similarly J Brunnée (2005) 36 NYIL 22.

(17) ILA Report 168.

(18) JL Brierly in H Lauterpacht and CHM Waldock (eds), The Basis of Obligation in International Law (1958) 2 [emphasis in original].

(19) Ibid.

(20) cf Hafner (n 16) 236–7.

(21) Reinisch (n 12) 271.

(22) SR Ratner in GH Fox and BR Roth (eds), Democratic Governance and International Law (2000) 449. Also K Ambos (2000) 6 International Peacekeeping 67.

(23) RW Grant and RO Keohane (2005) 99 APSR 29.

(24) eg M Pallis (2005) 37 NYUJILP 869.

(25) eg M Scheinin in H-O Sano and G Alfredsson (eds), Human Rights and Good Governance (2002) 31 and passim; H-O Sano in ibid 137, 141; K Wellens (2004) 25 MichJIL 1161; M Zwanenburg, Accountability of Peace Support Operations (2005) passim; S Chesterman, Who Needs Rules? (2005) 5 〈http://www.iilj.org/research/documents/panel_2_report.pdf〉. Significantly, Higgins (n 11) 147 has used the term ‘accountability’ to describe international responsibility as ‘accountability for violations of international law’.

(26) eg LD Johnson in NM Blokker and HG Schermers (eds), Proliferation of IOs (2001) 471.

(27) S Schlemmer-Schulte (1999) 45 RiW 180.

(28) Eadem in Blokker and Schermers (n 26) 508 at n 90. Curtin and Nollkaemper (n 15) 4 define the core of the notion as ‘the process of being called “to account” to some authority for one's actions’.

(29) Significantly, the ILA Report 168 seems to be treating the notion as an ‘autonomous’ one, to borrow the phraseology used in the context of the ECHR by the ECtHR: the term is not considered as corresponding to homonymous terms in use in particular domestic or regional legal systems. For a critique of the ILA's approach in general see Hafner (n 3) 599–601.

(30) eg in Keohane's treatment of the concept there is an implicit acceptance that there exists a standard definition of accountability as being dependent on two conditions: availability of information to accountability-holders, and their ability to sanction power-wielders: (2003) 24 MichJIL 1123. He also notes that there is ‘wide agreement’ on how to define accountability, ibid. Despite this ‘wide agreement’, the author goes on to provide no less than four different definitions, ibid 1124. cf also Grant and Keohane (n 23) 30.

(31) Schlemmer-Schulte (n 27) 180 and fn 39; eadem (n 28) 508 at fn 90. Others have characterized it as an ‘intrinsically non-legal concept’: Curtin and Nollkaemper (n 15) 16.

(32) A-M Slaughter (2001) 8 IJGLS 349; cf N Woods (2001) 77 International Affairs 83.

(33) See nn 7 and 28 and corresponding text.

(34) ILA Report 168; Hafner (n 3) 516; C Harlow, Accountability in the EU (2002) 14 seq, 23. See by way of example the use of the term in G della Cananea (2003) 53 RTDP 731, where the author notes that the first problem with respect to ‘accountability’ is the lack of a corresponding term in Italian (738). cf also in this respect J Kokott (2004) 64 ZaöRV 528.

(35) cf Slaughter (n 32) 350.

(36) Hafner (n 3) 588.

(37) Keohane (n 30) 1130 seq.

(38) cf ibid 1124.

(39) cf A Tomkins in P Craig and A Tomkins (eds), The Executive and Public Law (2006) 37; Chesterman (n 3) 44.

(40) For a typology see Grant and Keohane (n 23) 35 seq; Keohane (n 30) 1130 seq. The ILA Report 168–9 distinguishes between political, legal, financial, and administrative accountability, without, however, any elaboration; throughout the Report it rather refers to the three ‘levels’ of accountability, the first one of which relates to ‘monitoring and scrutiny’, whereas the other two are concerned with legal liability and responsibility. cf also Reinisch (n 12) 274.

(41) cf T Macdonald and K Macdonald (2006) 17 EJIL 90 seq. cf also Curtin and Nollkaemper (n 15) 11–12.

(42) Chesterman (n 3) 44.

(43) Idem (n 25) 6.

(44) Harlow (n 34) 8.

(45) Chesterman (n 3) 44; idem (n 25) 6.

(46) cf P Craig and A Tomkins in eidem (n 39) 1 [emphasis added].

(47) Ibid; Harlow (n 34) 146.

(48) Chesterman (n 25) 7. Franck notes that judicial review of Council actions for ‘gross abuse of discretion’ would assure the UN membership that these latter remain accountable: TM Franck in C Tomuschat (ed), The UN at Age Fifty (1995) 37 [emphasis added].

(49) See ARSIWA Commentary 32 [1]; UN Doc A/58/10 (2003) 35 [4]–[5].

(50) cf E Suzuki and S Nanwani (2006) 27 MichJIL 178, 180.

(51) cf ARSIWA Commentary 35 [4].

(52) C Brölmann (2001) 70 NJIL 331.

(53) I Brownlie, State Responsibility—Part I (1983) 87.

(54) Accountability is a ‘relational term’, in that someone must always be accountable ‘to someone else’. See Keohane (n 30) 1124. In this sense, the accountability-holders in the case of international responsibility are fairly easily identifiable in that they are the entities to which the international obligation is owed.

(55) (1975) II YILC 87 [3].

(56) (2000) II(2) YILC 131 [729]; UN Doc A/57/10 (2002) 228 [461]; UN Doc A/64/10 (2009) 13 [31] seq; 19 [50].

(57) See Harlow (n 34) 8, 23; cf Slaughter (n 32) 350.

(58) Hafner (n 3) 601.

(59) ILA Report 168; also Keohane (n 30) 1134.

(60) S Chesterman and DA Jordan, The SC as World Executive? (2006) 2 〈http://www.iilj.org/research/documents/panel_4_report.pdf〉. Thus, scholars have referred to the ‘sovereign’ powers conferred by States to IOs, including the full range of executive, legislative, and judicial powers: see Sarooshi (n 3) 1, 10.

(61) Tadić (Appeal on Jurisdiction) IT-94-1-AR72 (2 October 1995) [43]; (1996) 35 ILM 46.

(62) Lockerbie [1992] ICJ Rep 138 (sep op Lachs), 165 (sep op Weeramantry); Nicaragua [1984] ICJ Rep 433 [92]. cf D Sarooshi (1996) 47 BYIL 463 and fn 227; S Lamb in Honour Brownlie (1999) 365; D Schweigman, The Authority of the SC (2001) 381. However, as M Koskenniemi (1995) 6 EJIL 337 notes, the Charter ‘was meant to be based on a separation of functions’, which, it is submitted, should be understood as largely tantamount to a separation of powers. See generally on the lack of separation of powers in international organizations WE Holder (2003) 97 ASILProc 235. But see also TM Franck in Festschrift Eitel (2003) 99.

(63) Tadić (n 61) 47 [43].

(64) Sarooshi (n 62) 463; Wellens (n 25) 1179. Some have even called it the ‘megaphone’ of executives: Schweigman (n 62) 381. cf also T Sato in J-M Coicaud and V Heiskanen (eds), The Legitimacy of IOs (2001) 312. Koskenniemi (n 62) 338–9 terms the Council ‘policeman’, in an analysis assimilating it to an executive and juxtaposing it to the ‘Temple of Justice’.

(65) A Bianchi (2006) 17 EJIL 911.

(66) Sato (n 64) 329–30.

(67) Craig and Tomkins (n 46) 4.

(68) P Craig in idem and Tomkins (n 39) 317–18.

(69) See also Expenses [1962] ICJ Rep 162.

(70) cf Craig (n 68) 317 with respect to the EC.

(71) cf J Alvarez, IOs as Law-makers (2005) 159.

(72) cf B Elberling (2005) 2 IOLR 343.

(73) See generally among others S Talmon (2005) 99 AJIL 175; C Denis, Le pouvoir normatif (2004) 19. The latter, despite rejecting the transposition of any sort of doctrine of separation of powers in international law (at 2), employs both the term ‘legislative’ and the term ‘judicial power’ with respect to actions of the Council. See finally J Alvarez in E de Wet and A Nollkaemper (eds), Review of the SC by MS (2003) 121 who finds that in instances such as the adoption of SCR 1373 (2001) the Council has acted ‘in ways that are hard to distinguish from the law-making actions [by] domestic executive branches pursuant to delegated legislative authority’.

(74) Elberling (n 72) 337–8; cf Alvarez (n 73) 122.

(75) In SCR 95 (1951) the Council ‘finds’ that certain practice constitutes a violation of the Armistice Agreement between Egypt and Israel (at [1]), ‘further finds’ that the said practice cannot be justified as necessary for self-defence (at [3]), and finally ‘calls upon’ Egypt to terminate that practice (at [4]).

(76) See Sarooshi (n 62) 466–8. Also I Brownlie in Honour Wang Tieya (1994) 97; cf Denis (n 73) 19.

(77) Chesterman and Jordan (n 60) 2.

(78) See generally Craig and Tomkins (n 46) 5 and the chapters to which they refer. cf also G della Cananea in Craig and Tomkins (n 39) 250, according to whom ‘enacting rules’, for example, is included in the powers of the executive.

(79) See in more detail Chapter 3.I.1 below.

(80) cf E Schmidt-Aßmann and C Möllers in Craig and Tomkins (n 39) 286.

(81) Ibid; similarly with respect to Britain Tomkins (n 39) 43.

(82) Schmidt-Aßmann and Möllers (n 80) 286. ‘Open-ended legal concepts’ such as ‘good morals’ or ‘threat to the peace’ are common and necessary in any legal order that seeks to provide the requisite flexibility that allows for legal interpretation to follow social developments: cf J Pauwelyn, Conflict of Norms in Public International Law (2003) 12 and 267; A Orakhelashvili, Peremptory Norms in International Law (2006) 15. For such an ‘open-ended legal concept’ to be operational, however, it needs to be concretized and qualified as applicable on specific sets of facts. Often, the organ empowered—subject to limits—to make that concretization is an executive organ.

(83) See eg Schmidt-Aßmann and Möllers (n 80) 286; Harlow (n 34) 165. On the availability of judicial review with respect to Council action see Chapter 4.III below.

(84) See n 46 and corresponding text.

(85) Harlow (n 34) 8.

(86) Reinisch (n 12) 286 and fn 73.

(87) Chesterman (n 3) 45.

(88) See nn 42–4 and corresponding text. With respect to the inadequacy of elections in general as a means of securing accountability (in the case of national elections) see N Woods and A Narlikar (2001) 53 ISSJ 574.

(89) See n 46 and corresponding text.

(90) cf della Cananea (n 34) 739 with respect to the WTO.

(91) See R Monaco in Festschrift Schätzel (1960) 332; N Elaraby in Festschrift Eitel (2003) 59–60.

(92) cf also Art 15 UNC.

(93) Tadić (n 61) 42 [28].

(94) K Wellens in Blokker and Schermers (n 26) 450.

(95) Ibid 451; cf also E Suy in H Fox (ed), The Changing Constitution of the UN (1997) 68. But see idem in (2007) 42 BDGVR 115–16.

(96) Art 24(1) UNC.

(97) See in more detail Chapter 3.I.1 below.

(98) Chesterman and Jordan (n 60) 3–4.

(99) cf Wellens (n 94) 448.

(100) Sarooshi (n 62) 474–6.

(102) See eg Holder (n 62) 233.

(103) Grant and Keohane (n 23) 33–4; Keohane (n 30) 1122.

(104) JHH Weiler (2004) 64 ZaöRV 560.

(105) Such as holding the occasional public debate: eg on ‘Women and Peace and Security’ S/PV.5556 (2006); ‘Protection of Civilians in Armed Conflict’ S/PV.6066 (2009).

(106) See for an overview P Foot in J Pilger (ed), Tell Me No Lies (2005) 216–54; B Frederking, The US and the SC (2007) 73–6; and cf BBC News, ‘Lockerbie Evidence Not Disclosed’, 28 August 2008 〈http://news.bbc.co.uk/1/hi/scotland/south_of_scotland/7573244.stm〉. See also J Pilger, ‘Megrahi was Framed’, New Statesman, 7 September 2009, 14.

(107) On which see Chapters 5 and 7 below.

(108) cf Keohane (n 30) 1122, 1136 seq.

(109) cf N Krisch (2006) 17 EJIL 250; Pallis (n 24) 870.

(110) cf Grant and Keohane (n 23) 33.

(111) S/PV.3063 (1992) 54–5 [emphasis added].

(112) See n 46 and corresponding text.

(113) See n 32 and corresponding text. (p.14)