UNESCO Approves Palestinian Membership Bid: A Case for US Countermeasures Against the Organization?

 Posted by: Ahlborn Christiane

Cross-posted from EJIL:Talk!

On 31 October 2011, the UN Educational, Scientific and Cultural Organizations (UNESCO) approved the bid of Palestine for full membership with the necessary two-thirds majority. Although 107 UNESCO States voted in favor of Palestinian membership, the approval also faced notable opposition by 14 States. The overall number of 173 votes cast included 52 abstentions. Among the States voting against the bid were the United States, Canada and several EU member States, including Germany and the Netherlands. While the diverging positions of EU member States thus reveals once again the lack of unanimity in EU external relations policy, the US disapproval of the Palestinian UNESCO membership may have more serious consequences at the level of US-UNESCO relations. For after the approval of Palestine’s membership bid, the US immediately announced that it would cut off its funds to UNESCO, which amount to 60 million USD annually. This decision is based on several US laws that prohibit the US government to provide funds to any United Nations agency or affiliated organization that “accords the Palestine Liberation Organization the same standing as member states” (see P.L. 101-246, Title IV [1990] and P.L. 103-236, Title IV [1994]).

 

International Responsibility for Withholding Membership Dues

Since the US is the largest contributor to the UNESCO budget with a share of 22 percent, its decision to withhold its contributions will most likely impede the effective functioning of the organization. As the Director-General of UNESCO stated on 2 November 2011, the continued withholding of dues may severely affect UNESCO’s activities in a variety of areas. UNESCO already felt the repercussions of the lack of US funding after 1984 when the United States withdrew from UNESCO due to the increasing politicization of the Organization, rejoining only in 2003 (for a discussion of the reasons for the withdrawal see Hans N. Weiler, ‘Withdrawing from UNESCO: A Decision in Search of an Argument’ (1986) Comparative Education Review 132).

Considering the potentially detrimental effects of US withholdings, this contribution seeks to examine whether the US could be held internationally responsible for its acts under the law of international responsibility. After all, Article IX of the constituent instrument of UNESCO (the UNESCO Constitution) states that member States of the organization have a “financial responsibility” towards the Organization, i.e. an obligation to provide the Organization with the necessary financial resources, as decided by the General Conference of UNESCO. Although this obligation arguably could have been formulated in more concrete terms, it is suggested that the United States would breach its obligations under the UNESCO Constitution by withholding its membership dues, and accordingly be under a secondary obligation to make reparation either in kind and/or by means of compensation.

 

Countermeasures against UNESCO?

The wrongfulness of the acts by the US would, however, be precluded if these acts could be characterized as countermeasures under international law, i.e. reactions to a prior internationally wrongful act by another subject of international law. Indeed, some scholars have argued that the withholding of membership dues could be seen as a countermeasure against an international organization, for instance, in the wake of the application for membership in the World Health Organization submitted by the Palestine Liberation Organization in 1989. The Palestinian membership bid was ultimately unsuccessful but led to one of the numerous past instances in which the United States has threatened to withhold or actually withheld dues to the United Nations or its specialized agencies or organizations (see Frederic L. Kirgis, ‘Admission of “Palestine” as a Member of a Specialized Agency and Withholding the Payment of Assessments in Response’ (1990) 84 AJIL 218, examining inter alia whether the US withholdings could be seen as ‘reprisals’ against the organization; and also Antonios Tzanakopoulos’ recent discussion of the topic in Disobeying the Security Council: Countermeasures against Wrongful Sanctions (OUP 2011)).

The possibility of countermeasures by the United States presupposes that UNESCO has actually breached an international obligation owed to its member States. According to the draft Articles on the Responsibility of International Organizations (DARIO), as recently adopted by the International Law Commission on second reading (http://www.un.org/law/ilc/), members may take countermeasures against an international organization in reaction to a breach of two different kinds of primary obligations. As Article 52 of the DARIO on “Conditions for taking countermeasures by members of an international organization” stipulates:

1. Subject to paragraph 2, an injured State or international organization which is a member of a responsible international organization may not take countermeasures against that organization unless:

(a) the conditions referred to in article 51 are met;

(b) the countermeasures are not inconsistent with the rules of the organization; and

(c) no appropriate means are available for otherwise inducing compliance with the obligations of the responsible international organization concerning cessation of the breach and reparation.

2. Countermeasures may not be taken by an injured State or international organization which is a member of a responsible international organization against that organization in response to a breach of an international obligation under the rules of the organization unless such countermeasures are provided for by those rules.

Paragraph 1 pertains to the situation in which an injured member reacts to a prior violation of an obligation under international law, whereas paragraph 2 applies in particular to countermeasures in reaction to a breach of a rule of the organization. If one follows this two-fold distinction made by the ILC, the question is hence whether UNESCO committed an internationally wrongful act under general international law (paragraph 1) or under its own rules (paragraph 2) by granting Palestine full membership rights, which would preclude the wrongfulness of the US withholdings.

This question evidently raises many issues regarding the controversial debate on the criteria for Statehood. For the purposes of this short contribution on the law of responsibility, it shall suffice to note that it is difficult to construe an argument that UNESCO has breached one of its international obligations under the terms of Article 52 (1) of the DARIO, i.e. an obligation owed to the United States either on the basis of customary international law or an international agreement. Since the relations between an international organization and its members are mostly governed by the constituent instruments of the respective organization, the more plausible scenario seems to be that of Article 52 (2) of the DARIO, which conditions the taking of countermeasures in reaction to a breach of a “rule of the organization”. The ILC defines these rules of the organization in Article 2 (b) of the DARIO “as in particular, the constituent instruments, decisions, resolutions and other acts of the international organization adopted in accordance with those instruments, and established practice of the organization”. Notwithstanding the strict condition stipulated under Article 52 (2) of the DARIO, the US withholdings could be justified as a countermeasure against UNESCO if the Organization had breached an obligation under its own rules.

Contrary to what is suggested by the ILC, however, it is argued here that a breach of the rules of the organization on the part of an international organization cannot give rise to countermeasures against that organization. Although the ILC has decided not to take a “clear-cut view” on the legal nature of the rules of the organization as either international law or internal law of the organization for purposes of international responsibility, it remains questionable how an international organization can be internationally responsible for a breach of its own rules. For an international organization is not a party to its own constituent instruments, as the source of these rules, under the law of treaties. In other words, since UNESCO itself is not a party to its constituent instrument, the Organization cannot incur international responsibility for a breach of its own rules in the first place, as a necessary precondition for the taking of countermeasures by the US. Even if UNESCO had committed a violation of its own rules, it is therefore submitted that such a breach would not give the United States the faculty to take countermeasures against the Organization under the law of international responsibility.

This is not to say States can never take countermeasures against an international organization of which they are members. However, they will not do so in their capacity as member States but in their capacity as States in international law on the basis of violations of customary international law or international agreements with the organization. In proposing that the “rules of the organization” could condition these international relations between an international organization and its (member) States, Article 52 of the DARIO bespeaks the lack of distinction between the internal constitutional sphere of an international organization and the external contractual relations between the contracting parties to its constituent instruments that characterizes the DARIO generally. While the constituent instrument of UNESCO is certainly a contract between the States that have founded the Organization, the same instrument functions as a constitution in the internal relationship between UNESCO and its members (see Christiane Ahlborn, ‘The Rules of International Organizations and the Law of International Responsibility’, ACIL Research Paper No 2011-03 (SHARES Series)).

 

Countermeasures against the other Contracting Parties to UNESCO’s Constituent Instruments

By taking into account into account the dual nature of the constituent instruments of international organizations, the ILC could have recognized that acts under the “rules of the organization” such as the withholding of membership dues do not qualify as countermeasures against an international organization. Although the United States has an obligation under the UNESCO Constitution to pay its dues to the Organization, this obligation is of a purely internal legal nature in relation to the Organization. In contrast, the United States does have an international obligation towards the other contracting parties to the constituent instrument of UNESCO to provide the Organization with the necessary financial resources, as assessed on the basis of Article IX of that instrument. Consequently, the question posed above should not be whether UNESCO breached one its obligations towards the US. Instead it should be asked whether the other contracting parties to the constituent instrument of UNESCO jointly committed an internationally wrongful act by granting Palestine full membership rights under UNESCO’s constituent instrument, which would justify the taking of countermeasures by the US.

The question whether the other contracting parties to the constituent instrument of UNESCO have breached their international obligations poses similar challenges as establishing a breach by the organization itself. Nonetheless, it is significant that the contracting parties – unlike UNESCO – are also bound by the UNESCO Constitution under international law. As a result, it could be contended that the States approving Palestine’s membership have breached their obligations under the UNESCO Constitution since Palestine did not fulfill the criteria for Statehood in the intended meaning of Article II of the UNESCO Constitution. However, this argument may be countered by the fact that two-thirds of the other contracting parties agreed to the admission of Palestine as a full member among their ranks, thus fulfilling the procedural requirements of the UNESCO Constitution for the admission of new members. In addition, it could be suggested that the other contracting parties have committed a violation of their obligations under other international agreements to which the US is equally a party. By admitting Palestine as a full member into UNESCO, these States may have obstructed the outcome of the on-going UN admission procedure under Article 4 of the UN Charter. Yet, despite close cooperation between UNESCO and the UN under Article 57 of the UN Charter, Article X of the UNESCO Constitution explicitly acknowledges the autonomy of the organization and its correlative legal order from that of the general UN system. The granting of UN membership is accordingly not a precondition for UNESCO membership and vice versa.  As a result, the outcome of the UN admission procedure, which gives the US a right to veto at the level of the Security Council, is unlikely to be affected by the UNESCO membership of Palestine. Last but not least, the other contracting parties to the UNESCO Constitution could also be accused of having breached their obligations under the UN Charter by hampering the peace process in the Middle East, which goes to the core of the problem of Palestinian UNESCO membership. However, although numerous Security Council and General Assembly resolutions have addressed the efforts to bring peace to the Middle East over the past decades, these resolutions do generally not lay down a duty of non-recognition of a “Palestinian State” on the part of UN member States.

 

Concluding Remarks: Withdrawal as a Possible Solution?

By withholding its membership contributions to UNESCO, the United States would accordingly incur international responsibility for a breach of its obligations under the constituent instrument of UNESCO towards the other contracting parties. Once again, it is to be reiterated that this international responsibility is not to be conflated with the internal responsibility that the United States incurs towards UNESCO itself, and which the Organization may address by imposing internal institutional sanctions.

In order to end this situation of illegality under international law, the United States may consider withdrawing from UNESCO altogether as it did in 1984. In fact, at least one Republican US Senator has so far announced his intention to introduce a Senate resolution to formally withdraw US membership in UNESCO. Article II (6) of the UNESCO Constitution allows for the possibility of withdrawal, which becomes effective on 31 December of the year following the year during which the notice of withdrawal was given, i.e. 31 December 2012 at the earliest. But even a withdrawal will not relief the US of its debts incurred until that date. As Article II (6) of the UNESCO Constitution provides, “[n]o such withdrawal shall affect the financial obligations owed to the Organization on the date the withdrawal takes effect.” In deciding to take further steps in reacting to the approval of the Palestinian UNESCO membership, the US may thus want to factor in the possible consequences of its acts under the law of international responsibility.

Dublin and Beyond: ‘Each According to Its Abilities’?

 Posted by: Swerissen Isabelle

Refugees are legally and morally entitled to some form of protection. This is generally undisputed. The disagreement begins when we ask the question which state will be called upon to provide that protection? David Miller discusses a comparable question in a situation where a person collapses on the street. In his article Distributing Responsibilities, Miller argues that the collapsed person is more likely to receive assistance if there is a single person, rather than several persons, passing by. This is true for several reasons, the most important of which, according to Miller, is that if there are several persons passing by, there is no clear allocation of responsibility.

In order to avoid this situation in the context of immigration, European states have, over the past two decades, created rules on responsibility allocation culminating in the Dublin II regulation. This regulation, often regarded as the flagship of the Common European Asylum System, has been the topic of heated debate following the ECtHR judgment in the case of M.S.S. v. Greece and Belgium and the ECJ Advocate-General’s opinion in joined cases C-411/10 NS and 493/10 ME. Negotiations on a recast Dublin regulation are ongoing, but seem to be gridlocked. Which lessons can the drafters learn from Miller’s discussion on the distribution of responsibilities?

Currently, the Dublin regulation establishes a hierarchy of criteria for identifying the state responsible for processing an asylum claim. In absence of family connections in the country of asylum, this will usually be the state through which the asylum seeker first entered the European Union. Asylum seekers who move to another state as a secondary movement can be sent back to the state of first entry, thereby increasing pressures on the border states of the European Union. This practice may have severe consequences in terms of human rights, as recognized in the M.S.S. case. Acknowledging that the Dublin system must be improved, the European Commission has proposed to introduce a mechanism for the temporary suspension of transfers to member states where the level of protection falls below Union standards. Unfortunately, given the politically sensitive nature of this ‘emergency mechanism’, member states have to this date been unable to reach agreement on this issue. The other changes proposed mainly relate to an expansion of the family-related allocation criteria and the speeding up of the process of identifying the responsible state. However, reconsideration may be needed beyond these modest changes.

A fundamental recast of the Dublin system should not be concerned with mere changes to the rules on responsibility allocation, ‘but with the underlying principles that should guide us …’, as Miller puts it. According to him, there are four principles (i.e. communitarian principle, causal responsibility principle, moral responsibility principle, capacity principle) that can inform a determination on the assignment of responsibility, three of which can, with some imagination, be recognized in the workings of the Dublin regulation.

A consideration that nowadays dominates the answer to the question which state is responsible for the protection of refugees in the Dublin system, but also in the global refugee regime (i.e. 1951 Convention), is geographic proximity. After all, a geographic proximate country is likely to be the first country of entry and, as such, is likely to have responsibility for many asylum seekers who arrive at its borders. The stated rationale behind this policy is to contain asylum seekers in neighboring countries, since those countries tend to have some sort of special solidarity bonds between them. This connects well to Miller’s communitarian principle. Under that principle, he assumes that agents feel a greater sense of responsibility towards those with whom they share communal ties. However, Miller himself recognizes that this principle cannot be used for all responsibility distributing purposes – a statement that also rings true in the context of immigration. Special solidarity bonds do not always exist between neighboring countries and may even exist between geographically distant countries, making geographic proximity not sufficiently morally justifiable to allocate responsibility in all cases.

Specific to the Dublin system is the idea that responsibility for examining an asylum claim should be allocated to the member state that played the most important part in the entry of the person concerned. This so-called ‘Dublin philosophy’ according to which the responsibility for deciding on an asylum claim is made dependent on the responsibility for controlling the external border, could be said to highlight the causal role played by a particular member state in ‘permitting’ a person to enter the territory of the European Union. As such, it conforms to Miller’s causal responsibility principle. Beyond that, this also involves somewhat of ‘an appraisal of the agent’s conduct’ in policing its land and sea frontiers, leaving the member state in question liable to moral blame for not sufficiently having done so. This corresponds well to Miller’s moral responsibility principle. However, the problem with both the causal and the moral responsibility principle is that they look, in the words of Miller, ‘too exclusively to the past’ in assigning responsibility. Forward-looking considerations, such as effective relief from harm in the future, are therefore not part of a determination on the allocation of responsibility. Such relief is, however, the core focus of refugee protection.

Taking their cue from the previous paragraphs and treating the provision of protection as of overriding concern, the drafters of the amended Dublin regulation may want to consider allocating responsibility on the basis of the fourth principle identified by Miller, the capacity principle. On the basis of this forward-looking principle, responsibility for ending a morally concerning situation should be assigned to the agent that can best bring it to an end. When applied to refugee situations, responsibility would thus fall on the member state that, in view of its absorption capacities, is best placed to offer protection. Besides the fact that the capacity principle, understood in this manner, is likely to be unpopular from a political point of view, it is also complex and problematic in the way that is creates incentives for member states to raise protection standards. Measures to help raise those standards in order to increase the ability of member states to offer protection seem to represent a more feasible interpretation of the capacity principle.

Having said that, the latest proposal by the Polish presidency concerning the introduction of an ‘evaluation mechanism’ should be welcomed. This mechanism, meant as a tool to address protection deficiencies before to grow into full-fledged crises, would be used as a preventive step before triggering the operation of the ‘emergency mechanism’ and will hopefully move negotiations on the Dublin regulation forward.

The Responsibility to Protect Temporarily Stranded in Syria

 Posted by: Have Nienke van der

On 14 October , High Commissioner for Human Rights Navi Pillay publicly stated that the ‘onus to take protective action’ for the benefit of the Syrian people now lies with the international community. This reference to the international community is a moderate formulation of what seem to be forceful intentions. In concrete terms, the statement can be seen as a call for action by the international community of states under a mandate of the United Nations Security Council (UNSC) based on the responsibility to protect (R2P). Pillay describes the continuing reports of assaults on and killings of civilians by the Syrian government as strong evidence that crimes against humanity are taking place. This is one of the four categories of violations for which operationalization of the R2P is warranted.

The R2P is not yet fully considered to be lex lata. Introduced by the ICISS in 2001, it has been a vehicle for the gradual acceptance of intervention in grave humanitarian crises. Where the notion of humanitarian intervention always remained controversial, the novelty of rephrasing sovereignty to responsibility and adding the focus on prevention and rebuilding seemed to slowly bend the will of the international community of states in favor of concerted action. In 2005, after numerous reports and debates on its shape and content, the concept was accepted in non-binding form in the World Summit Outcome Document. In 2007, pressure by the international community and a mediation process under the skilled leadership of former Secretary-General Kofi Annan helped halt post-election violence in Kenya. Despite it only being labeled as an R2P situation in retrospect, it is still widely seen as a model for implementation of the norm in practice.

Recently, supporters of the R2P have eagerly acclaimed the intervention in Libya as a new sign of the norm’s progressive acceptance. From the start, commentators referred to the crack-down in Libya as a clear-cut case fitting the model of the R2P. However, the precedent set in Libya has become a rather questionable point of reference now that the next crisis calling for operationalization of the R2P is discounted based on a political deadlock in the UNSC. Is this indecision perhaps proof of the fact that the R2P is merely a legal concept justifying politically motivated executive action which would be undertaken regardless?[1] Or is there hope that former Secretary-General Dag Hammarsjköl’s vision of neutral and impartial executive action by the UN will one day be realized? In any case, the hypocrisy of the current situation can hardly be ignored. The UNSC will not easily discard its stigma of acting arbitrarily and being driven by neocolonialism.

It seems that the only manner in which the much needed neutral basis for operationalization of the R2P could be strengthened is reforming the decision making process. A multitude of ideas to this effect, have already been forwarded, one more feasible than the other. An example is imposing an obligation to give reasons for a veto on the permanent members of the UNSC and the possibility of overriding a veto in certain cases.[2] Erecting an independent advisory body to determine when measures based on the R2P should be taken could also be of great added value. However, such drastic acts of reform are unlikely to take place without being inspired by a new grand twist in the history of mankind. It looks like it might take a crisis beyond Syria to bring the R2P back into fashion.

[1]    Orford, Anne, International Authority and the Responsibility to Protect (Cambridge UP, 2011).

[2]    Peters, Anne, ‘The Responsibility to Protect and the Permanent Five – The Obligation to give reasons for a veto’ in Nollkaemper, André and Julia Hoffman (eds), The Responsibility to Protect (awaiting publication, 2011).