Antonios Tzanakopoulos, lecturer at the University of Glasgow and at UCL, has written a powerful book in Disobeying the Security Council. It is a rich – at times very rich – piece of scholarship covering a range of complex issues, based on the author's DPhil thesis at Oxford. The book provides a valuable contribution to contemporary debates in international law on whether there are legal limits on the powers of the UN Security Council and if so how these legal limits are to be enforced. The traditional focus in this debate has been on the validity of Council decisions as measured against either the UN Charter or some external body of law, and on the legal consequences of any invalidity. Think, for example, of human rights-based challenges to targeted sanctions imposed by the Council on suspected terrorists, pursuant to listing regimes under resolutions 1267 and 1373, examples such as asset freezes and travel bans. In trying to move this debate forward the book makes two important arguments. First, that it is states themselves who are the ultimate judges of the legality of the Security Council's decisions (of course, a point made before). In a decentralised system lacking any compulsory and systematic means of judicial control and dispute resolution, self-help may turn out to be the only possible remedy. It is by choosing to openly disobey (or more frequently, very narrowly interpret) decisions of the Security Council that they regard as unlawful that states act as a check against the Council's abuse of its powers. Second (and relatedly), that much of the scholarly discussion regarding the legality of Security Council action tends to adopt a domestic public law mindset, whether quite consciously or at times uncritically, a mindset which is inappropriate when some of the underpinnings of domestic public law, such as compulsory adjudication, are lacking.
In order to advance these arguments and to offer an original solution that would both provide a meaningful check on the Council's powers and yet not suffer from the perils of domestic law-thinking, Tzanakopoulos makes several crucial conceptual and doctrinal moves. Most importantly, he changes the focus from the validity of the decisions of the Council to the UN's responsibility for illegal Council decisions as internationally wrongful acts, measured against the law binding on the organisation. The real question to ask, he tells us, is not whether a Council resolution violating an individual's human rights...
