Wednesday, June 22, 2011
Certain Expenses Concerning U.S. Military Operations Against Libya
In its canonical Certain Expenses advisory opinion of 1962, the International Court of Justice made clear that military activity carried out by member states in the context of peace keeping operations in the Congo and along the Suez authorized by the General Assembly amounted to United Nations activities, which were therefore to be treated as expenses of the United Nations, funded from member contributions. France and the Soviet Union objected to U.N. involvement in peacekeeping in the Middle East and Congo, but they could not legally withhold their required contributions to the United Nations on account of those objections. United Nations skeptics might retort that even though the I.C.J. is the judicial arm of the United Nations, the U.N. has no concrete power to enforce an advisory opinion, and even I.C.J. judgments cannot be enforced against a recalcitrant state absent a Security Council Resolution authorizing sanctions against that non-complying state. And yet both France and the Soviet Union eventually paid the money they had withheld from the U.N. in protest against U.N. action in the Suez and Congo, much as the United States finally paid its assessed contributions after much protest against U.N. policies in the late 1970s, the 1980s, 1990s and 2000s.
Since member states are obligated to fund United Nations activities including peacekeeping by member states authorized by the General Assembly even though the text of the U.N. Charter does not plainly convey the power to authorize peacekeeping on the General Assembly, it seems to me that United Nations enforcement actions authorized by the Security Council pursuant to its unambiguous authority under Chapter VII of the Charter are, a fortiori, expenses of the United Nations to be funded by member states. This would make the military activity of certain U.N. member states, including the United States, against the government of the Libyan Arab Jamahiriya authorized in Security Council Resolution 1973 of March 17, 2011 United Nations activity to be funded as United Nations expenses from member contributions. Unless I am missing something, the United States should be able to seek reimbursement from the U.N. for its military activity against the Libyan government. The U.S. share of the United Nations budget is now approximately 22%, so approximately 78% of the costs of U.S. operations in Libya should be funded from the contributions of other member states. Of course, ultimately the U.S. should have to contribute U.N. funds totaling 22% of the costs borne by other U.N. member states in the U.N. authorized operations against the Libyan government. Perhaps the U.S. “refund” and the U.S. contributions to other member states’ operating costs will even out. But I am mystified as to why public discussion of the costs of the operations against Libya does not (as far as I know) make any reference to the Certain Expenses case and the character of the operations against the Libyan government as United Nations activities. Am I missing something obvious? If not, it strikes me as worth public notice that one material difference between U.S. participation in illegal wars of aggression violating Article 2(4) of the U.N. Charter and U.S. participation in United Nations authorized enforcement actions pursuant to Chapter VII of the Charter is that the U.S. will be required to bear the full costs on its own respecting the former, while in the case of the latter, U.S. military action comes at a 78% discount.
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There is a simple reason why the Certain Expenses approach does not apply: The Certain Expenses decision relates to Peacekeeping Operations that are carried out under the auspices of the United Nations (usually the Security Council and the Secretariat, in the exceptional case underlying the ICJ advisiory opinion the General Assembly). Those are operations that - although not explicitly mentioned in the UN Charter - follow the concept of the UN Charter in that they are carried out by the United Nations themselves (albeit with national troops contributed by the member states). In this sort of operation, the Security Council has significant control over the operation, and the troops are under the command of the Secretary-General (and the Department of Peacekeeping Operations).
This form of peacekeeping has to be clearly distinguished from what we see in Libya under S.C. Resolution 1973. In the case of Libya, the Security Council did not install a United Nations Peacekeeping Operation but it rather authorized the use of force by UN member states. This is the same approach that was taken in 1990 in the case of Iraq (S.C. Res. 678). Under this approach there is no United Nations mission, the cost of which should be borne by the UN member states.
So there is a distinction between peacekeeping operations by the United Nations (paid for by all UN member states, with the UN General Assembly deciding on the budget) and decentralized military operations by "willing" member states on the basis of an authorization by the Security Council. In the latter case, the member states have to bear their own expenses.
Posted by: Mehrdad | Jun 23, 2011 1:04:06 PM
Thanks for the very thoughtful, informed, and informative post Mehrdad. The distinction between Blue Helmets on a peacekeeping mission and soldiers in full national ragalia carrying out peace enforcement or another mission authorized by the Security Council under Chapter VII makes sense in practical terms, but it strikes me as "under theorized" in the sense that I do not see how it follows directly from the Charter or ICJ opinions such as Certain Expenses. The distinction may reflect settled U.N. practice similar to the convention that Secretaries General not be nationals of permanent members of the Security Council or the understanding that an abstention by a permanent member does not amount to a veto, but I don't see how it follows from the I.C.J.'s logic in Certain Expenses. In Certain Expenses, there was a non-frivolous argument that General Assembly authorized peacekeeping was ultra vires the Organization, which the Court deemed a question outside its subject matter jurisdiction. And yet the Court still made clear that General Assembly authorized peacekeeping constiutues United Nations activity. If so, surely there are even stronger reasons to believe that Security Council enforcement action clearly within the terms of Chapter VII also constiutes United Nations operations, and hence should be financed by member contributions. Of course S.C. Resolution 1973 passed with two abstentions by permanent members, so one can't reach the point of classifying the military intervention in Libya as United Nations operations without recourse to unwritten U.N. conventions either. The distinction you point to would make more sense to me on a theoretical level if the United Nations had access to a permanent force to carry out Chapter VII enforcement under its own aegis. One could then clearly differentiate between U.N. actions and actions by member states. But since such a force does not (yet) exist, we are left with national contingents to carry out Chapter VII missions. Since these reflect the core purposes of the U.N. at least as clearly as General Assembly authorized peacekeeping, it seems to me that logic and theory if not convention require Chapter VII action to be clasified as U.N. operations. I would not label self defense or collective self defense under Article 51 U.N. operations. I'm not sure how I would classify defensive action by regional organizations under Chapter VIII, but that would probably depend on whether there was clear prior or after the fact Security Council auhtorization.
Posted by: Bill Merkel | Jun 23, 2011 3:03:34 PM
You have a very interesting point there. In international law, we are used to quite clearly distinguish the two forms of UN peacekeeping/peace enforcement action conceptually. But with developments such as "robust peacekeeping" and with peacekeeping/peace enforcement being used simultaneously or at least in an overlapping manner in some cases (peacekeeping operations following peace enforcement action or peace enforcement action to support peacekeeping missions), the distinction has become difficult and somewhat blurry. Also, public perception has changed, with some press reports characterizing the military intervention in Libya as a "UN military action" (which it is not). And you are of course right, the distinction does not follow from the Charter, both forms of Security Council action are based on a rather flexible, dynamic interpretation of the open-textured Charter provisions. And international lawyers disagree over what the right legal basis for these instruments is.
I still do not thing that Chapter VII authorizations such as Iraq 1990 and now Libya are United Nations operations. Peacekeeping operations clearly are, they are carried out under the command of the UN, even if they consist of national troops. In the case of Libya, on the other hand, there is nothing more than the Security Council authorization to use force. Neither the Security Council nor any other UN organ are involved in the military intervention (beside some NATO reports to the SC and the SG). In fact, international lawyers have argued (in earlier cases, and even in 1990 in the case of Iraq) that such authorizations are nothing more than the Security Council determining that there is a collective self-defense situation under Article 51. While I do not agree with this assertion, I think that structurally military intervention on the basis of a Chapter VII mandate is quite close to military intervention based on self-defense which, as you rightly point out, cannot be understood as UN operations. Both are examples of decentralized enforcement action with single states and coalition of states acting on their own, while Blue Helmets are centralized enforcement under the auspices of the United Nations and with the envolvement of the Security Council, the Secretariat and the General Assembly.
This is, of course, to a large extend based on UN practice, and while it makes sense to me, I understand why you find it under theorized.
Posted by: Mehrdad | Jun 23, 2011 4:43:16 PM
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