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Institutionalizing State ResponsibilityGlobal Security and UN Organs$

Vincent-Joël Proulx

Print publication date: 2016

Print ISBN-13: 9780199680399

Published to Oxford Scholarship Online: August 2016

DOI: 10.1093/acprof:oso/9780199680399.001.0001

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Conclusion

Conclusion

Chapter:
(p.347) Conclusion
Source:
Institutionalizing State Responsibility
Author(s):

Vincent-Joël Proulx

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199680399.003.0015

Abstract and Keywords

This conclusion summarizes all the major arguments and themes explored in the book. It recalls that although they appear suited to address violations of global security obligations, UN organs remain fettered by serious intrinsic or political limitations that may prevent them from being reliable implementers of State responsibility in global security contexts. However, the conclusion reiterates that the Security Council can implement State responsibility in certain circumstances, particularly as regards counterterrorism matters, which present a sui generis character and straddle Chapter VII terrain. Ultimately, this conclusion frames the possible institutionalization of State responsibility as a welcome alternative to unchecked unilateralism, self-judging, and autoqualification.

Keywords:   State responsibility, secondary norms, Security Council, International Court of Justice, General Assembly, counterterrorism, ILC Articles, lex specialis, self-defence, global security

One overarching conclusion emerges after canvassing United Nations (UN) institutions’ potential input in implementing State responsibility (SR) in global security contexts: whilst these organs seem suited, upon first glance, to contribute to some extent to the development of SR law, there is considerable reluctance to do so, both motivated by political factors and informed by the relevant institutional frameworks’ limitations. For instance, the International Court of Justice (ICJ) frequently sidestepped the application of SR norms when it could have made some stand-alone determinations on internationally wrongful acts or international responsibility, a posture at least partially informed by concerns of political appeasement and/or expediency, but largely driven by its jurisdictional constraints. For its part, the SC’s mandate is not primarily couched in international legal language but rather focuses on the maintenance/restoration of international peace and security. Whether a specific situation involving transnational terrorism or another global security breach can be subsumed within that remit for SR purposes remains a question contingent on factual and legal appreciation, always subject to case-by-case assessments. This monograph has argued that in some cases, the Council can decidedly pronounce on SR matters, although the scope of that function remains limited.

Whilst States’ international responsibility for failing to prevent terrorism, or for supporting terrorism, has been invoked in a few cases, a model premised on the institutional implementation of the resulting legal accountability is by no means a hard and fast rule. As a corollary, certain international disputes also prompted both the ICJ and SC to apply classical SR norms without, nonetheless, invoking the concept of ‘terrorism’ when such a determination could arguably have been made. This reality ties into a crucial observation that may be gleaned from the foregoing considerations. The SC is reticent, understandably so, to issue doctrinal formulations of relevant principles on SR matters, instead framing its reasoning within the mission of maintaining international peace and security, and resolving each situation on an individual basis.1 For this project’s purposes, this (p.348) argument has been presented in tandem with the functional equivalent of that reluctance within the ICJ’s own decision-making, namely its reticence to qualify internationally wrongful acts as ‘terrorism’ in cases involving the responsibility of territorial or supporting States. Not to mention the ICJ’s own general reluctance to brand States as violators of international law. Setting aside the fact that certain important SR disputes have been resolved outside international judicial channels (eg Lockerbie, Rainbow Warrior), whilst the ICJ has sometimes set in motion international responsibility rules, no causal nexus was ever formally established by it between State-supported terrorism and SR repertoire.2

Moreover, the SC will not usually issue formal declarations of unlawful behaviour and correspondingly attribute acts of private actors to States. Instead, it frames its reasoning within the scope of international peace and security, as opposed to assigning blame and applying attribution under SR repertoire.3 Moving away from this rigid dichotomy, this book has argued that counterterrorism policy epitomizes a sui generis character and, in certain cases, its objectives straddle Chapter VII terrain. Given that the Council has sometimes expressly handed down findings of illegality and established SR,4 it logically follows that SR law (particularly attribution principles) should guide the Council’s assessment of the connection between non-State actors and their territorial States. One commentator aptly summarized the position: ‘it may well be argued that the nature and function of the acts of the Security Council are closely related to the function of the law of state responsibility … in many cases the Council will respond to an act that is in violation of international law’.5 It must be recalled that the SC has sometimes ventured very far upon SR terrain, both under Chapter VII and outside that framework. Its treatment of Iraq’s invasion of Kuwait remains a striking example. Indeed, the SC’s implementation of Iraq’s responsibility undoubtedly consecrated that body’s ability to impose secondary obligations upon responsible States flowing from the violation of primary global security legal norms. Amongst particularly severe secondary obligations imposed by the Council in this context were the institution of an indemnification fund and the delimitation of an international border.6 Similarly, the adoption of Resolution 1368 by the Council in the wake of 9/11 suggested further incursions into SR repertoire by that body. This led some interlocutors to ponder whether the Council’s resolution operated on (p.349) the premise that sufficient connections were ascertained between Al-Qaeda and Afghanistan to impute the attacks to that State.7

In addition to applying secondary rules, the SC has also dabbled in the promulgation of primary global security obligations, which has a direct incidence on SR mechanics. Resolution 1373, which was discussed in Parts I and II, was particularly relevant because it marked the first time that the Council set general and far-reaching obligations upon all States, not limited to any geographical area or specific timeframe. Thus, the Council’s pre- and post-9/11 pronouncements on terrorism, along with similar advances by the General Assembly (GA), confirmed that ‘[n]‌umerous other resolutions from both the United Nations General Assembly and the United Nations Security Council leave no doubt that harboring or supporting terrorist groups violates a state’s responsibility under international law’.8 However, it remains unclear whether the 9/11 attacks were incontrovertibly attributed to Afghanistan on the basis of direct responsibility, even when relying on precedents hinging on the institutional implementation of responsibility by UN organs. The basis for SR, therefore, must stem from elsewhere, namely from the failure to prevent the excursions—a separate duty falling short of casting terrorist attacks as ‘acts of state’—and an obligation actuated through the indirect responsibility paradigm discussed in Sections 2.2 and 5.4.9

However, the legal landscape resulting from the adoption of the groundbreaking Resolution 1373 has fomented heightened transnational cooperation on counterterrorism issues between States, and has been characterized by continuing SC involvement in counterterrorism matters. Outside the targeted sanctions regime, transnational cooperation has been primarily geared towards implementing Resolution 1373, whereas the Council’s involvement has predominantly focused on the management of counterterrorism initiatives and reaffirmation of primary obligations.10 Undoubtedly, the SC has arrogated vast and extended powers since 9/11, which presumably extend beyond the mere promulgation of primary (p.350) norms;11 indeed, that UN organ has also been active in applying secondary SR norms. Various examples of such practice were canvassed and analysed in Part II.

In aggregate, whilst the Council’s application of international law remains predominantly arbitrary, selective, strategic, or instrumentalist, it has nevertheless delivered a significant set of rules and precedents, whether by promulgating primary counterterrorism norms or by applying specific secondary rules to global security breaches flowing from SR repertoire. However, whilst the input of UN institutions in the development of SR and the SC’s contribution, more specifically, are important on a normative level, the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) operate on a preferred model of inter-State implementation of responsibility without ostensibly relying on the intercession of international organizations at any stage of the process. Therefore, any proposed reform of SR for failing to prevent terrorism or other similar global security violations will have to grapple with the inherent limitations associated with the Council’s infrequent and idiosyncratic treatment of that normative scheme.

That said, institutionalizing the implementation of SR could generate fruitful results, primarily by striving to eliminate unilateralism, self-judging, and autoqualification.12 However, short of creating a third-party independent institution mandated with applying SR norms to global security breaches, so as to assuage the inevitable political pitfalls associated with the Council’s decision-making—a proposal itself ripe for considerable political resistance—international law must contend with the dominant inter-State implementation model in most circumstances.13 Part III heeded these reservations and proceeded to canvass more controversial responses to global security violations, particularly forcible countermeasures. It became clear that the law on these issues is far from settled; relevant State and institutional practice arises fairly frequently and the international community’s responses to certain threats, such as terrorism offences carried out by Islamic State of Iraq and the Levant (ISIL), Al-Shabaab, Boko Haram, and other similar groups, nuclear non-proliferation, environmental degradation and climate change, the spread of infectious diseases, cybercrime, aggression, etc, will shape the application of SR norms in the years to come. There is every indication that lex specialis exceptions have begun to crystallize in the field of counterterrorism; the extent to which SR repertoire serves as the principal predicate for justifying self-defence against irresponsible territorial States remains to be clarified.

(p.351) Ultimately, this monograph attempted to dispel the commonly held notion that the SC does not deal with SR matters, which also entailed the examination of several other related legal and political questions. If the international community wishes to ascribe ‘super-norm’ status to some global security areas—counterterrorism being one of the likeliest contenders—it will invariably run up against jurisdictional obstacles if it upholds a rigid belief that SR implementation remains the exclusive dominion of diplomatic relations or, as a second best, of the ICJ. SR implementation for global security violations in the diplomatic context is often subject to power imbalance, whereas jurisdictional constraints and political self-awareness will likely hamper any meaningful contribution on the part of the ICJ. In many ways, therefore, this monograph’s central argument attempted to remedy two shortcomings in the global legal order. First, it aimed to devise a model geared towards enhancing accountability for preventable wrongs and, as a corollary, fighting impunity (even if at the State level, as opposed to promoting individual responsibility). Secondly, given often prevalent asymmetric power dynamics between States in international relations, and potential overreactions by injured States in response to global security breaches, the present study advocated a more proactive role for the SC in implementing SR.

Consequently, the advantages and benefits of this approach have cropped up throughout the analysis. First, the SC’s application of SR principles has yielded effective results in the real world, despite the political overtones that pervade its handling of any dispute. For instance, its treatment of both Iraq’s liability for its unlawful invasion of Kuwait and Libya’s responsibility for its involvement in the Lockerbie affair ultimately resulted in both States formally acknowledging their responsibility, an eventuality that also materialized in several other precedents analysed in this volume.14 Secondly, the SC’s reliance on SR norms when making a determination can enable injured States to claim an effective remedy when they would otherwise not have access to a viable platform to present their grievances because of power politics or other impediments. In its treatment of the Iraq–Kuwait scenario, the SC effectively excised the legal guesswork as to the eventual successful establishment of Iraq’s responsibility and, in many ways, subrogated itself for the would-be claimants in respect of that State’s wrongful conduct, at least at the stage of invoking SR. This precedent, along with many others, demonstrate that the SC is willing to extend the boundaries of its competence and devise novel and creative solutions that seek inspiration from SR repertoire.

Thirdly, many past SC incursions into SR terrain have strengthened the nexus between that body’s core mandate and international legal norms, including by shedding light on the benefits that may be derived from connecting the two. Indeed, reliance on SR principles which includes the powerful language of responsibility, determinations of violations, attribution, reparation, and the essence of a return to legality, can have a legitimizing effect on the SC’s primarily political (p.352) decisions. In an intuitive—and perhaps empirically unprovable—way, there is undoubtedly something inherently legitimate, if not comforting or politically palatable, in backing up any decision with some kind of normative argument. In many ways, therefore, the SC’s reliance on the well-established corpus of SR norms and the powerful language of law can lend additional firepower to its decisions, particularly in fields notorious for their politically volatile and sometimes culturally divisive nature such as counterterrorism. Finally, this institutional practice confirms that the SC can indeed implement legal consequences to violations of international law, having done so very plainly in many instances. The role of implementer of legal obligations serves as a logical and useful complement to the broad-reaching legislative role the SC has carved out for itself in the field of counterterrorism.

More importantly, this line of argument sought to suggest that seizing the Council of SR matters, which might intersect with Chapter VII objectives in some circumstances, would constitute a welcome alternative to unchecked unilateralism. Moreover, it would help palliate the lack of compulsory jurisdictional mechanisms to deal with violations of the most serious international legal norms. What is certain, despite the uncertainty surrounding the direction in which relevant State and institutional practice will evolve in the coming years, is that enhancing State accountability for the violation of communitarian norms can only be achieved through flexible and forward-looking legal (re)constructions. It appears that one important step in this quest is to recast the potential contributions of SR repertoire, along with the role of UN organs in its implementation.

Notes:

(1) See also A Nollkaemper, ‘Attribution of Forcible Acts to States: Connections Between the Law on the Use of Force and the Law of State Responsibility’ in N Blokker and N Schrijver (eds), The Security Council and the Use of Force: Theory and Reality—A Need for Change? (Nijhoff 2005) 133, 168; C Gray, International Law and the Use of Force (2nd edn, OUP 2004) 95–101; TM Franck, Recourse to Force: State Action against Threats and Armed Attacks (CUP 2002) 53–68.

(2) See also J-C Martin, Les Règles Internationales Relatives à la Lutte contre le Terrorisme (Bruylant 2006) 465.

(3) See also Gray (n 1) 96–7; DW Bowett, Self-Defence in International Law (Manchester University Press 1958) 263–5.

(4) See, eg, UNSC Res 687 (3 April 1991) UN Doc S/RES/687 (on Iraq’s invasion of Kuwait); UNSC Res 1304 (16 June 2000) UN Doc S/RES/1304 [14] (on the situation in the DRC). For an exploration of the conformity of such determinations with the UN Charter, see E Lauterpacht, Aspects of the Administration of International Justice (Grotius 1991) 42–3.

(5) Nollkaemper (n 1) 168–9 (observing that the Council engages with secondary rules).

(6) See, eg, SC Res 687 (n 4) [16], [18]. See also generally A Kolliopoulos, La Commission d’Indemnisation des Nations Unies et le Droit de la Responsabilité Internationale (LGDJ 2001); P d’Argent, Les Réparations de Guerre en Droit International Public: Le Droit de la Responsabilité Internationale à l’Épreuve de la Guerre (Bruylant 2002).

(7) See generally ME O’Connell, ‘Evidence of Terror’ (2002) 7 JCSL 19; C Stahn, ‘“Nicaragua is Dead, Long Live Nicaragua”: The Right to Self-Defense under Art. 51 UN Charter and International Terrorism’ in C Walter et al. (eds), Terrorism as a Challenge for National and International Law: Security Versus Liberty? (Springer 2004) 827, 827–77.

(8) G Travalio and J Altenburg, ‘Terrorism, State Responsibility, and the Use of Military Force’ (2003) 4 CJIL 97, 100.

(9) See also Y Arai-Takahashi, ‘Shifting Boundaries of the Right of Self-Defence: Appraising the Impact of the September 11 Attacks on Jus Ad Bellum’ (2002) 36 International Lawyer 1081, 1099 (applying analogous reasoning to Afghanistan’s role in the 9/11 attacks).

(10) On the institutional milestones and pitfalls related to SC involvement in counterterrorism after the adoption of Resolution 1373, along with inter-State cooperation, see KB Youssef, ‘La Coopération Interétatique et la Mise en Oeuvre de la Résolution 1373 (2001) du Conseil de Sécurité’ in M Arcari and L Balmond (eds), La Gouvernance Globale face aux Défis de la Sécurité Collective (Editoriale Scientifica 2012) 137–47; J Kobila, ‘Dixième Anniversaire des Attaques du 11 Septembre 2001: Bilan de la Gestion de la Lutte contre le Terrorisme par le Conseil de Sécurité des Nations Unies’ (2011) 24 Revue Québécoise de Droit International 349–405; S Laghmani, ‘Le Conseil de Sécurité et le Terrorisme International’ in MSB Aïssa (ed.), En hommage à Dali Jazi (Centre de Publications Universitaires de Tunisie 2010) 463–70.

(11) See also P Klein, ‘Le Conseil de Sécurité et la Lutte contre le Terrorisme: Dans l’Exercice de Pouvoirs Toujours plus Grands?’ (2007) 19 Revue Québécoise de Droit International 133–47.

(12) These concerns were addressed at length in Sections 1.2.2 and 3.1.2.

(13) The fact that a dispute is not adjudicated by an international judge or arbitrator does not, in any way, preclude it from pertaining to SR law. See, eg, Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 177–8. Furthermore, mediation and diplomacy can lead to the peaceful settlement of international disputes in the same fashion that judicial settlement of disputes seeks to operate. In fact, the Permanent Court of International Justice construed the judicial settlement of international disputes as ‘an alternative to the direct and friendly settlement of such disputes between the Parties’. See Case of the Free Zones of Upper Savoy and the District of Gex (Switzerland v France) PCIJ Rep Series A No 22, 13.

(14) On Iraq’s acceptance of liability, see Section 4.4.3. On Libya’s acceptance of responsibility, see UNSC Res 1506 (12 September 2003) UN Doc S/RES/1506, preamble.