Disobeying the Security Council: Countermeasures against Wrongful Sanctions

276 Pages·2011·2.25 MB·English

by  Antonios Tzanakopoulos

OXFORD MONOGRAPHS IN
INTERNATIONAL LAW
General Editors
PROFESSOR VAUGHAN LOWE QC
Chichele Professor of Public International Law in the University of Oxford and
Fellow of All Souls College, Oxford
PROFESSOR DAN SAROOSHI
Professor of Public International Law in the University of Oxford and
Fellow of Th e Queen’s College, Oxford
PROFESSOR STEFAN TALMON
Professor of Public International Law in the University of Oxford and
Fellow of St. Anne’s College, Oxford
Disobeying the Security Council
OXFORD MONOGRAPHS IN
INTERNATIONAL LAW
Th e aim of this series is to publish important and original pieces of research on
all aspects of international law. Topics that are given particular prominence
are those which, while of interest to the academic lawyer, also have important
bearing on issues which touch the actual conduct of international relations.
Nonetheless, the series is wide in scope and includes monographs on the
history and philosophical foundations of international law.
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Disobeying the
Security Council
Countermeasures against Wrongful Sanctions
ANTONIOS TZANAKOPOULOS
1
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General Editors’ Preface
Multilateralism and the United Nations are, in the liberal canon, regarded as good
things. But there is an increasing realization that there is an associated danger
arising from the propensity of States to defl ect legal challenges to their actions by
claiming that they were only obeying orders—the orders of the Security Council.
What may begin as a socially- and politically-responsible desire to act collectively
in the face of international threats may result in the shifting of responsibility onto
the shoulders of a body that is, for practical purposes, beyond legal and political
accountability to the individuals whose lives it touches.
Few would seek to argue against the proposition that the United Nations
must itself be subject to at least some legal constraints upon its powers; but the
implementation of that view is a matter of considerable complexity and diffi culty.
Th is incisive study by Dr Tzanakopoulos is a very signifi cant contribution to the
debate, combining intellectual acuity with a clear-eyed perception that—as the
fi nal clause of the Greek Constitution bravely insists—the ultimate guarantee of
the maintenance of the Rule of Law lies in the hands of the citizen and in the right
and duty to resist its subversion.
AVL
Oxford, 29 October 2010
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Preface and Acknowledgements
Th e measures taken and the obligations imposed by the United Nations Security
Council on Member States of the organization under Article 41 of the UN Charter
are one of the few, but increasingly signifi cant, instances where an international
organization may exercise ‘sovereign’ or ‘governmental’ powers. Reading about it
as a graduate student, I could not help but notice the amount of attention paid in
scholarly writings to the ‘limits’ of the powers exercised by the Security Council or
to the power of ‘judicial review’ of the International Court of Justice over Security
Council decisions. Still there was no comprehensive debate of what happens if the
Security Council goes beyond the alleged limits to its powers, or of who can actually
fi nd the Council to have gone beyond those limits if—as is to be expected—the
International Court does not become involved. In that realization I had found an
interesting—if challenging—project.
Th is book, which is an updated version of the DPhil thesis I defended at the
University of Oxford in October 2009, aims to tackle the imposition of non-
forcible measures under Article 41 of the UN Charter in a comprehensive manner,
approaching the issue from the perspective of international responsibility.
It thus deals not only with how the imposition of ‘sanctions’ may engage the
responsibility of the UN (Part I), but also with how—and by whom—this
engagement is determined to have taken place (Part II). Most importantly,
however, it discusses at length the possibilities for implementation of the UN’s
international responsibility for wrongful sanctions. It argues that the ultima
ratio—the right of ‘last resort’—of disobedience to the Security Council’s
order is a response provided for by law, and can be qualifi ed as a countermeasure
taken against the international organization (Part III). I have sought to bring the
manuscript up to date with the cut-off set at 1 June 2010.
In the long process of completing my DPhil thesis and the manuscript for this
book, I have incurred many debts. Acknowledging all the people and institutions
whose help has proved invaluable over the last fi ve years would make for a much
longer note. Still, there are some whose help was absolutely crucial, a sine qua non,
for this project to come to fruition.
My doctoral research at the University of Oxford was supervised by Professor
Stefan Talmon. To Professor Talmon I owe enormous gratitude—his guidance
is much more than any graduate student could ever wish for; his friendship more
than what one could hope for. He was there in good and bad times, pushing me
to my limits but also supporting me and encouraging me when I needed a helping
hand. I only wish that I will be as good a supervisor to my students as Stefan was to
me. Th ank you.
Professor Vaughan Lowe QC, the Chichele Professor of International Law at the
University of Oxford, is so much more than a sharp lawyer. He is a true teacher and
a fascinating thinker. I hope that I will continue to live up to his expectations. His
viii Preface and Acknowledgements
(and Sally’s) hospitality, and the company of Meg and Triggs, provided me with
some of the most relaxing and refreshing moments during my time in Oxford, and
afterwards.
At the University of Oxford I should also like to thank Professor Dan Sarooshi,
Professor Guy Goodwin-Gill, and Dapo Akande. Th eir input—at diff erent times
and on diff erent issues—was extremely helpful and I feel my work is better for it.
My teachers at the University of Athens, my alma mater, merit special mention.
In particular I wish to thank Professors Emmanuel Roucounas, Angelos Yiokaris,
Antonios Bredimas, Linos-Alexander Sicilianos, Photini Pazartzis, Lena Divani,
Maria Gavouneli, Lina Kouskouna, and Achilles Skordas (now at the University
of Bristol), as well as Aspasia Zirou and the team at the International Studies
Department of the School of Law.
At the NYU School of Law, where the idea for this project was born while I
was reading towards an LLM degree, I am indebted to the late Professor Tom
Franck who taught me ‘Constitutional Law of the UN’, together with Professor
Simon Chesterman, who also supervised my LLM thesis on an early version of
the subject that was to become this book; but also to Professors Joseph Weiler,
Benedict Kingsbury, and Philip Alston. Many thanks are due to Professor Giorgio
Gaja, whose assistant I was during the 2005 session of the International Law
Commission, an internship that was made possible by NYU’s generous funding.
Professors Erika de Wet and August Reinisch helped in diff erent but equally
important ways, and for this I thank them. Professor Christian J Tams at the
University of Glasgow was a great help and a great friend during the last stages
of preparation of the manuscript, as were Drs Akbar Rasulov and James Sloan.
Everyone should be so lucky to work among such a talented and friendly team of
colleagues.
Th e DPhil thesis that has become this book could not have been completed
without the generous support of IKY, the Hellenic State Scholarship Foundation,
which granted me a scholarship for doctoral studies between 2006 and 2009. Th e
Arts and Humanities Research Council in the UK complemented this support
through a fees-only grant for doctoral studies. My College, St Anne’s, and the
University of Oxford have provided me with various small grants, as well as with
many opportunities for research. To all of them, many thanks are due. I should
also thank Ruth Bird and the staff at the Bodleian Law Library, which was my
second—if not my fi rst—home during my years in Oxford, as well as the porters
of the St Cross Building who shared the occasional smoke and chatted with me
during breaks.
Special thanks are of course due to Oxford University Press and its Delegates,
as well as personally to John Louth, Merel Alstein, Lucy Page, and Joy Ruskin-
Tompkins for their careful work and their help and support in turning the
manuscript into a book.
My friends in Oxford, New York, Athens, and elsewhere, helped me in various
ways. I will take the liberty of singling out Gleider Hernández, Markos Karavias,
Mehmet Karlı, Mārtiņš Paparinskis, James Upcher, Lema Uyar, Farid Ahmadov,
Omer Bekerman, and Keren Michaeli, as well as Loukas and Christina Moutsiana,
Preface and Acknowledgements ix
Abigael Baldoumas, Samir Bhatt, Nabil and Rachel Hamdi, Eugenia Balamoti,
and Stella Sarma.
Last but certainly not least, I would like to thank my family, and in particular
my dad Moschos, my siblings Dimitris and Maria, and aunt Tassia, for their
unwavering love and support throughout the years; as well as Lily, who has
endured much of the burden that I was during the various phases of completing
my doctorate. Th is book is dedicated to them, and to the loving memory of my
mom Lopa.
AT
University of Glasgow
June 2010