The Time has Come to Have a Conversation at the U.N. on Self-Defence

A year ago, I wrote an article for Just Security entitled An Insider’s View of the Life-Cycle of Self-Defense Reports by U.N. Member States, in which I explained the lack of transparency in how the United Nations Security Council deals with reports submitted by Members States who invoke the right to self-defence under Article 51 of the U.N. Charter. One of the main problems I identified was that personal relationships and comradery were the most effective avenues for U.N. delegates to get a hold of these reports. This continues to be the case – and the process remains inadequately transparent and detrimental to the international rule of law. However, much has happened since then.

Catching up

Despite the fact that self-defence reports remain very difficult to obtain and are still not circulated to all U.N. Member States, certainly more visibility has been given to this issue. The military exchanges between the United States and Iran in early January regarding the drone strike that killed Gen. Qassem Soleimani helped put this issue again under the spotlight. On that occasion, Iran submitted to the Security Council letters S/2020/16 and S/2020/19 on January 7 and 8, respectively. The United States also submitted a letter S/2020/20 to the Security Council on January 8. (For an analysis of this letter see this Just Security article by Adil Ahmad Haque)

Coincidentally, Viet Nam organized a debate entitled “Maintenance of International Peace and Security: Upholding the United Nations Charter” as part of their Security Council presidency, which took place on January 9. At this event, several States addressed the issue of Article 51 invocations and interpretations. For example, Austria stated that:

All states must refrain from actions that are in violation of Article 2(4) of the Charter prohibiting the threat or use of force against the territorial integrity or political independence of any State. We note with concern the increasing number of cases where armed force is applied unilaterally, invoking the inherent right of self-defence pursuant to Article 51 of the Charter. These cases and the fact that other UN Member States do not publicly express their legal views on each and every case may not be interpreted as a new State practice or opinio iuris that might lead to the erosion of Article 2(4) of the Charter, which the International Law Commission has determined to be a peremptory norm (ius cogens).” (emphasis added)

Mexico also addressed this issue, underscoring the need for the Security Council to review and modify its working methods in order to ensure full compliance with the U.N. Charter, especially when self-defence is invoked. As a result of this debate, the Security Council adopted the President’s Statement S/PRST/2020/1, in which the Security Council:

call[ed] on all Member States to promote and uphold the Charter, including through raising public awareness of the Charter and the importance of compliance with the Charter in the maintenance of international peace and security, further mainstreaming the purposes and principles of the Charter into policy-making and implementation mechanisms and activities pertaining to peace and security, and ensuring that all matters relating to international peace and security are addressed in such a way that reflects full respect for the Charter.

Throughout the past year, academics have recorded and analyzed updates on this front. While an exhaustive review is beyond the scope of this article, three examples of scholarly works which build upon the views expressed by States show the types of analysis put forth. These three examples all focus on actions and statements by Latin American nations at the U.N. in 2018.

First, after reviewing positions taken by Mexico and Brazil, Loraine Sievers and Sam Daws identified widening “cleavages” over self-defence. They observed that:

[i]n light of the widening range of precipitating events cited as reasons for taking action in self-defense, the varying nature and duration of the actions taken in response, differences in the timing and thoroughness of reporting to the Council, and the absence of reporting in instances where it might apply, today’s practice regarding reporting pursuant to Article 51 is marked by extraordinary diversity. (…) In any event, the Security Council has adopted no specific practice for reviewing each instance of reporting pursuant to Article 51, let alone evaluating its legitimacy. It has usually only been when the Council is seized of a matter in an ongoing way that it has sometimes considered actions taken by a State in purported self-defence, but even in such cases this has normally been without reference to a specific communication. Thus, having gone so many decades without an established practice for letters sent pursuant to Article 51, it would seem nearly impossible for the Council to muster the necessary unity to initiate one at this late date. (emphasis added)

Second, in 2019 the Max Planck Institute for Comparative Public Law and International Law published a book entitled, Self-Defence against Non-State Actors, in which Mary Ellen O’Connell, Christian J. Tams and Dire Tladi present their individual views on the subject. In particular, Dire Tladi wrote:

a number of States, including the thirty-three States making up the Community of Latin American and Carribean [sic] States, have questioned the consistency with international law of the various letters sent to the President of the Security Council in support of the use of force in Syria. This suggests that this large group of States does not share the interpretation that Article 51 permits the use of force against terrorists (non-State actors) in the territory of innocent non-consenting States. Indeed, in 2012 the NAM [Non-Aligned Movement] confirmed that ‘consistent with the practice of the United Nations and international law, as pronounced by the ICJ [International Court of Justice], Article 51 of the UN Charter is restrictive and should not be re-written or re-interpreted.’ The views of such a large majority of parties to the UN Charter, expressed subsequent to the operations in Syria, can surely not be ignored in determining whether those operations reflect the agreement of the parties to the Charter as to its interpretation.” (emphasis added)

Third, a July 2019 paper entitled “Quantum of Silence: Inaction and Jus ad Bellum,” by Harvard’s Dustin A. Lewis, Naz K. Modirzadeh and Gabriella Blum, examines:

the actual and potential roles of silence as an element of jus ad bellum treaty law and customary international law. By silence, we mean a lack of a publicly discernible response either to conduct reflective of a legal position or to the explicit communication of a legal position. We focus here on the silence of States and the United Nations Security Council as the primary actors who are positioned to shape, interpret, and apply jus ad bellum. We evaluate how silence has been employed by various scholars in making legal arguments in this field, and how silence may have the potential to affect the formation, identification, modification, and termination of various doctrines. … We complement our analysis with an Annex that offers the most comprehensive catalogue to date of communications made by U.N. Member States to the Security Council of measures taken in purported exercise of the right of self-defense. The catalogue records over 400 communications made since the founding of the United Nations in late October 1945 through 2018. These communications reflect the views of the submitting State(s) on the scope of the right to employ force on the purported basis of self-defense.

This study, which benefited from the discussions and feedback by participants in the 2017–2019 informal “International Law Lunches” hosted in collaboration with the Permanent Missions to the U.N. in New York of Belgium, Liechtenstein, Mexico, Norway, and Switzerland, offers great insight on the way in which the Security Council and Member States have behaved when dealing with Article 51 reports, especially in assessing how silence should be added to the equation given the particular context and circumstances in which these reports are submitted. It also offers a very useful repository of Article 51 reports, given the current backlog in the publication of the Repertoire of the Practice of the Security Council.

On this note, it is important to underscore the efforts of the Security Council Practices and Charter Research Branch of the Department of Political and Peacebuilding Affairs of the U.N. in updating the Repertoire given its limited resources. To date, the advance version of the 21st supplement (2018) of the Repertoire is already available online (currently English only).

Not There Yet

Undoubtedly, more visibility has been given to the recourse by States of their right to self-defence, particularly when invoked against non-State actors. And certainly, more States are becoming increasingly aware of the legal questions that arise from this practice. However, these are still very challenging waters to navigate in order to get a fully adequate understanding of the issue at hand, its dimension, immediate implications and longer-term consequences.

First, since Article 51 letters are still not circulated to all U.N. Member States, it continues to be very hard for delegations to know if and when these documents are issued. Many of these documents are therefore “missed” by many delegations. On the other hand, the continued rotation of diplomats at the U.N. makes it difficult to follow up on the developments and build on small achievements that are accomplished to shed more light on this issue. What’s more, the fact that there is no U.N. forum where the issue of the current interpretation and application of Article 51 can be addressed makes it more difficult for delegations who want to avoid the political difficulties of specific situations to express their views on the matter. This lack of a forum also makes it harder for academics to track the positions of States on the issue given that their diplomats’ interventions end up scattered in random debates.

It is also worth noting that even the consideration by the Security Council of Article 51 letters has been a limited one. At least five communications addressed to the Council in 2018 in relation to Article 51 of the U.N. Charter are explicitly referred to under Part V of the Report of the Security Council to the General Assembly for 2018, tellingly entitled “Matters brought to the attention of the Security Council but not discussed at meetings of the Council during the period covered” (emphasis added).

The Time has Come for a Conversation

In my previous article on this matter, I signaled that Mexico had proposed an agenda item to tackle the question of self-defence invocations at the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization (referred to colloquially as “the Charter Committee”), in an attempt to open up a forum for all States to engage in a public and transparent debate.

From February 18-20, the Charter Committee held its 2020 session (Committee report available here). Following up on what had been expressed in the previous session, Mexico formally submitted a written proposal, entitled “Working paper submitted by Mexico on an analysis of the application of Articles 2(4) and 51 of the Charter of the United Nations,” which became Annex I of the Committee’s Report. As it was explained in the introduction delivered by Mexico during the last session, there are two main objectives behind this initiative.

First, Mexico’s proposal seeks to open a space to discuss amongst all U.N. Member States, in general terms, the implementation and interpretation given to Article 51 in light of its relationship with Article 2(4) of the Charter. The creation of this space is aimed at getting more clarity on the legal perspectives of the Membership regarding the operation, scope and limits to the right of self-defence, especially in cases against non-State actors, including how to understand the lack of responses to such reports or the absence of reports, and the precedents these cases might set for the future.

Second, Mexico’s proposal seeks to create more transparency and publicity for those reports that are submitted in accordance with Article 51, and to their follow-up by the Security Council or by individual Member States, if any, in order to bring more clarity to the implementation and interpretation of the right to self-defence.

The reasons why this proposal was brought specifically to the Charter Committee are threefold: i) the Committee has the competence and mandate to address this issue; ii) the Committee does not duplicate the work of other U.N. bodies, and; iii) the proposed discussion certainly offers an added value to the work of the Committee since it is an eminently practical, legal topic to discuss.

Regarding the mandate and competence, the Charter Committee was established by the General Assembly through resolution 3499(XXX) to examine, inter alia, strengthening the role of the U.N. with regard to the maintenance and consolidation of international peace and security. Furthermore, in resolution 74/190 adopted in December 2019, the General Assembly reiterated the mandate of the Charter Committee to “continue its consideration of all proposals concerning the question of strengthen the role of the United Nations and, in this context, to consider other proposals relating to the maintenance of international peace and security already submitted or which may be submitted to the Special Committee at its session in 2020” (emphasis added).

Regarding duplication of work, as has been mentioned before, it goes without saying that the Security Council is and will continue to be the competent organ to receive Article 51 reports and to take any measures it deems necessary. However, there is currently no universal U.N. body that is considering this issue from a broader perspective of how the U.N. system works, without having to respond or react to a particular situation. Hence, the discussions in the Charter Committee would not clash with any other organ.

Finally, regarding its practical added value, as demonstrated by the high number of reports that have been submitted under Article 51 in recent years, the interpretation and implementation of this central provision of the U.N. collective security system is not an abstract theme. On the contrary, it is very much a practical and challenging question that States must tackle fairly regularly. Furthermore, informing the Security Council that a State has decided to invoke self-defence is not a political decision; it is a legal obligation expressly mandated by the Charter. Therefore, given the legal nature of the matter, the opinio juris of States regarding the interpretation given to Article 51 is fundamental. All of this becomes even more relevant given the persistent lack of transparency in relation to the submission and consideration of these reports.

A summary of the discussions held in the last session of the Charter Committee is reflected in paragraphs 84 to 86 of the Committee Report, under the heading “identification of new subjects.” So far, many States have expressed their support of this initiative, agreeing that a conversation must be had at the U.N. Others have expressed doubts concerning whether the Charter Committee is the appropriate forum to have this conversation. Informal consultations will need to take place during this intersessional period with a view to making a decision whether to include this proposal in the substantive agenda of the Charter Committee in its 2021 session early next year, under the item “maintenance of international peace and security.”

In sum, the Mexican proposal is limited to having an open and informed exchange of views amongst all Member States on a highly topical issue which has a direct impact on the development of contemporary international law through the interpretation of the U.N. Charter. The proposal seeks to have a guided discussion based on a questionnaire covering substantive, procedural and transparency aspects, and it does not seek to obtain a particular “product” (i.e. specific recommendations to the Security Council or the adoption of guidelines by the Committee). In this sense, supporting such a proposal is equivalent to opening the door to dialogue, which is precisely the spirit of the General Assembly and of the U.N. in general.

Editor’s Note: The author would like to express his deepest gratitude to Naz K. Modirzadeh, Director of the Harvard Law School Program on International Law and Armed Conflict. The views expressed, however, are solely the author’s and in his personal capacity.

Image: Getty

 

About the Author(s)

Pablo Arrocha Olabuenaga

Legal Adviser of Mexico to the United Nations.