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Remarks by Patrick Luna

Published online by Cambridge University Press:  22 March 2019

Patrick Luna
Permanent Mission of Brazil to the United Nations.
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Good morning. I would like to start by thanking, of course, Monica for the privilege of participating in this panel. I am certainly willing and hopefully able to present an alternative view to those that have been presented by the speakers before me.

The Use of Force Against Non-State Actors
Copyright © by The American Society of International Law 2019 

Good morning. I would like to start by thanking, of course, Monica for the privilege of participating in this panel. I am certainly willing and hopefully able to present an alternative view to those that have been presented by the speakers before me.

I would like to start by sharing four assumptions that would inform a Brazilian perspective on the subject, and the first one is that for us, the starting point on this debate is a bit further upstream. It is not necessarily Article 51. It is rather Article 2(4) itself. After all, when we state that the general prohibition of the use of force is a centerpiece of modern international law, this is more than a political statement. It has hermeneutic meaning. It points, after all, to an understanding that there is a relationship between these two norms and a relationship of a hierarchical nature.

It is undisputed that Article 51 is an exception to Article 2(4), and this matters because we should not lose sight, from a general principle of law, according to which exceptional rules must be interpreted restrictively. Article 51 has, therefore, to be read in light of Article 2(4), so as not to undermine it, rather to reinforce it. After all, Article 51 exists precisely to allow states to react immediately to violations of Article 2(4), until the Security Council has taken the necessary measures.

When we are examining the wording of Article 51, some have argued that the lack of a reference to the word “state” as the origin of the armed attack could be read as an implicit recognition of the possibility of evoking self-defense against non-state actors. But this is not the conclusion that we reach through a joint reading of Articles 2(4) and 51. Since 2(4) does mention state, and 51 has to be read in conjunction with this, it leads us to understand that self-defense can only be a response to an armed attack, either undertaken directly by a state or somehow attributed to the state.

The second assumption that informs the Brazilian perspective on this is the existence of International Court of Justice (ICJ) jurisprudence on this matter. The Court has repeatedly stated that self-defense cannot be applied against non-state actors unless they act on behalf or under control of another state, and, of course, the first case in point to be mentioned here is the Nicaragua case, in which the ICJ underscored that only attacks by a state or attributed to one could trigger the right of force in self-defense. The Court understood that a territorial state would have to be either sending or have substantive involvement for this right to emerge. And the Court further clarified that some kinds of assistance through regular forces might amount to legal intervention or legal use of force, but not to an armed attack for the purposes of self-defense.

Of course, a second step in the ICJ's construction on this is evidently the Wall advisory opinion, in which the Court stated, “Article 51 of the Charter recognizes the existence of an inherent right of self-defense in the case of an armed attack by one state against another state.” And this sentence—it is important to put it in context—reflects the Court's rejection of Israel's invocation of Resolutions 1368 and 1373.

A third step in the ICJ's construction of its jurisprudence is, of course, also the case Armed Activities, Congo v. Uganda, in which the factual situation surrounding the case actually made it unnecessary for the Court to judge whether self-defense against non-state actors is permitted or not. So, therefore, the judgment there did not affect the state-centric approach to self-defense that was constructed by the court in the previous cases.

A third assumption, from our perspective, is that nothing of the Charter supports the view according to which acts by non-state armed actors could be the basis for the measures first seen in Article 51. It is actually quite the contrary. The use of force framework was a direct response to World War II, and therefore enshrined rules that were conceived for interstate conflict. It is of course well known that the origins of self-defense lie in customary international law, but at some point, in 1945, these norms made their way into treaty law and to the UN Charter. And the fact that the law of self-defense has been incorporated into a treaty, of course, does not mean that it is necessarily frozen forever.

Then I come to my fourth assumption. It is, of course, possible that a new interpretation of the rule be accepted and recognized by the international community or be the object of an agreement between the parties, a subsequent agreement between the parties, in terms of Articles 31 and 53 of the Vienna Convention on the Law of Treaties. But given the fundamental importance of the norms involved—and I would like to stress that Article 2(4) is a peremptory norm of international law—the conditions for the recognition of any significant reinterpretation of Article 51 are very strict. And this threshold is distant from being met.

The state practice so far has been erratic and ambiguous. Actually, a few member states of the UN have been invoking a new interpretation of Article 51, and there is not even agreement among coalition members themselves as to the legal basis as to which they are operating, as you, Monica, highlighted in your introduction. And as happens in any treaty, every state party is obliged to respect it as long as it has not been changed, either formally, through an amendment, or informally, through an informal but established agreement between the parties.

This set of four conclusions leads me to understand that the current state of positive international law on this matter is that a state that has been a victim of an armed attack by a non-state actor, or is under imminent threat of such an attack, needs to identify if the attack can be attributed to a state under the Council's norms of attribution in the domain of terrorism. If not, the victim state then needs to secure the territorial state's consent to carry out defensive action or seek Security Council authorization through a Chapter 7 resolution.

Of course, when I was hearing the previous speakers, I hear different perspectives on this, and there, of course, can be a debate from a defend perspective whether or not the current system of self-defense is adequate to deal with the challenges. As we engage in this kind of conversation, I would like to share maybe three concerns that a country like Brazil would have in approaching these attempts to overstretch the concept of armed attack as originally envisaged, meaning originally just by a state.

Our first concern is that while all of us here are talking about terrorism, we have, nonetheless, been using the expression “non-state actors.” And I can understand the origin of this is that there is some legal uncertainty surrounding the whole notion of terrorism, given the absence of an internationally agreed-upon definition of terrorism as we all know. But the shift from terrorism to non-state actors does not solve this problem. Actually, it aggravates this, since non-state actors is actually a concept that encompasses much more than terrorists. It is actually a concept defined in the negative. It is everyone who is not a state. This can even include, for instance, piracy. This can include, for instance, transnational organized crime. Are we ready to face the policy conclusions in bringing these kinds of legal narratives into these other scenarios?

A second concern that we would have, of course, is a temporal dimension of self-defense, and here Paul mentioned to the notion of immediacy, and that is, of course, another reason of concern, from our perspective. And there are, of course, challenges still in operationalizing the concepts of necessity and proportionality in the context of these asymmetric threats.

But a third, and maybe more important concern that we still have is the evident risk for multilateralism that stems from such interpretations, because if you assume that each state, when faced with a threat by a non-state actor can resort to self-defense, according to Article 51, he might not then need to search for multilateral solutions to deal with a hostile non-state actor and, therefore, we would be maybe opening the gates for unilateralism, unraveling the collective security system, and maybe even eroding the authority of the Charter.

That is all of my comments. Thanks.

Monica Hakimi

Great. We have some material to debate here.

I view myself as a neutral arbiter who is going to be tough on all of you. I want to give Katrina, Paul, and Asif an opportunity to respond to Patrick, and then Patrick an opportunity to reply. Let us focus initially on the articulation of the legal standard. And so for the three to my immediate left, I would ask how you respond to Patrick's point, in particular, about Article 51 being a carve-out from Article 2(4), having been interpreted by the ICJ in a way that suggests that it does not apply to armed attacks committed by non-state actors—in other words, that Article 51 is not triggered in those circumstances—and his further claim that although the practice might evolve from what the ICJ determined in the Armed Activities case, there is not sufficient evidence of collective support for a change from that ICJ position.

And then for Patrick, I would like to ask how your position maps onto the situation with respect to ISIS in Syria. One response is to say, well, the defensive campaign against ISIS in Syria is just unlawful because there is no indication that ISIS is acting on behalf of any state. That might be your position, and if it is, I think we would want to know. But then the follow-up question would be, okay, but does that mean that the law is irrelevant because there is so much support for what is happening against ISIS, and there does not seem to be much condemnation of it?

Katrina Cooper

Thanks very much, Monica. In terms of the relationship between Article 2(4) and 51, I do not think there will be much light between—well, certainly not between Australia and Brazil, certainly. You know, Article 2(4) is a prohibition against the use of force, so I think we all agree with that. I think we can all agree, too, that Article 51 is one of the very few exceptions to the use of force, the others being consent from the state on whose territory the act of force is taking place, and the other being authorization by the Security Council. There are very narrow and limited exceptions.

I think where we disagree is with what Patrick described as an overstretch of the interpretation. We do not think it is an overstretch at all. The use of force against non-state actors, as Paul pointed out, is not at all a new concept, and it does go back to the Caroline incident in 1837. And it is important that we recognize that that is 1837, because a lot has happened between 1837 and 2018, that I think was not anticipated at that time, and that is, of course, the nature of conflict, but also the nature of participants in conflict, in this case, in non-international armed conflicts. We do go back to the Caroline incident as the basis for our position on the use of force against non-state actors and developments since then.

I think we also need to recognize that ISIS is a very different actor to those that we have dealt with before. Terrorism is not new and non-state actors are not new, but ISIL and the way it acts and mimics a state, in many ways, is very new. And that, I think, is a significant game-changer and one of the reasons that states are thinking very deeply about how we deal with attacks from organizations like ISIS.

I think a starting point, in terms of where 51 and 2(4) sit, is probably not that far apart, and neither is the position about use of force needing to be really constrained, and Article 51 being an exception to 2(4). Well, that is very, very important, but our assessment there is different, that this is, in fact, an exception. And we have already talked about the facts in the case of Iraq and Syria and the combination of those series of facts that we laid out before, the identification of where the threats were coming from, the request of Iraq to the international community for us was sufficient to make the test for the use of force as an act of collective self-defense.

Monica Hakimi

Would it be your view that Patrick is misinterpreting the ICJ opinions, that the ICJ opinions are not finally authoritative on this question, or that they were finally authoritative but the law has changed? I am wondering if you could just dig into that a little bit.

Paul McKell

Okay. Let me first just add one exception to the list that Katrina had, and which Asif has also mentioned. There are limited exceptions—self-defense, authorization by the Security Council consent. We are also in the group with Denmark of states that believe there is a limited right to use force under humanitarian intervention legal basis. But I think Katrina has hit the nail on the head already in terms of our approach to this. We do not disagree with Patrick that, of course, you have the prohibition in Article 2(4), and that is fundamental, and indeed I said that in my initial remarks.

At the same time, it is clear that Article 51 was not intended to create a new right of self-defense that was somehow different from the right of self-defense that existed already, that refers to the inherent right of self-defense. It did not place limits. It did not alter by referring to states in Article 2(4) the customary international law position in relation to the use of force that existed. It is in that context that we look at it and do not think there is a limit that is placed in Article 51 which means that non-state actors are within the parameters of the exceptions to the prohibition on the use of force.

In terms of the ICJ jurisprudence, I think our position is that there is nothing there which basically prohibits states taking the action that they have, and I think it is worth just briefly going through a list of states that have made notifications under Article 51 in the context of the use or the exercise of the right of self-defense against Daesh: the United States, the UK, Turkey, Canada, France, Australia, Germany, Denmark, Norway, Belgium. It is not the three states that are sitting here. There is a sort of wider group of states. And I think it is also worth analyzing the reaction of the international community to the resolutions that were passed, that we have referred to already, 1368 and 1373, in the aftermath of 9/11.

In our view there is a weighted acceptance across the international community. It is not a small, narrow group of states pushing at the boundaries or trying to create new customary international law. This is the legal position as we see it already.

Asif Amin

I could just echo what is already been said, but I think the beauty about international law, and why we are all sitting here, is that international law changes, and it is a reflection of state practice. And we actually are able to shape the law because we cannot sit around 193 countries in the UN sometimes and agree about something. If you look at Security Council Resolution 2249, it talks about the UN Charter, and even though it might not authorize—and it is not a Chapter 7 resolution—it just generally refers to the UN Charter, what has a right of collective self-defense.

Regarding the interpretation, yes, of course, there is a risk of eroding the system, and we are quite aware of that, and that is also why I agree with the rest of my colleagues here that the exceptions need to be interpreted in a narrow way. But at the same time, we have also seen things in the last thirty years—Rwanda, Yugoslavia, Bosnia—where you could say that you need sometimes to develop law in order to face the new threats, the new realities that we have. I mean, that is why UK and Demark are part of the humanitarian intervention doctrine. You could also say, what about new chemical weapons used by Assad? I mean, what is the legal basis there?

Just a short anecdote here. You mentioned the Caroline doctrine. The Danish constitution was written one year after. In there is says that the king can send troops abroad. Now we have a queen, and we will get a king when she passes away, but we interpret it now as the Parliament needs to approve it and not the king. So, yes, we do actually have interpretation based on realities, and we need to try to join and try to get together. I know it is difficult sometimes to converge these views, but that is where we are.

Patrick Luna

If you allow me, Monica, I will start replying to the question that you made, but maybe also touch on one or two points that have been mentioned.

First, regarding the situation specifically in Syria. Of course, addressing the legal statute of the situation in Syria we cannot overlook Resolution 2249. This is, of course, important to take a look at that very interesting exercise of diplomatic ambiguity that was constructed into that document. It is not a Chapter 7 resolution but it does use Chapter 7 language, or familiar to Chapter 7 language. It does not authorize the use of force. It has been argued by some that it might be endorsing the military operations conducted in Iraq and in Syria.

It does have one important limitation that I would like to stress. It narrows the applicability of whatever is put into that resolution in the territory of Syria and Iraq, which is occupied by ISIL. It does not have a systemic repercussion so it is basically pretty much circumscribed to ISIL in Iraq and in Syria. And it has even been mentioned by some as “like ISIL,” in the sense that it is a very special approach taken by the Security Council.

And another point that also has to be made is that Resolution 2249 does not, as you pointed out, mention self-defense. We might be talking about military use of force by other justification which is not self-defense, but there is not necessarily a relationship between one and the other.

On your second point, you said, Monica, there has been so much support for what is happening, and I would like to qualify that statement. Of course, fighting terrorism, and in this specific case fighting ISIS, is a priority of international community as a whole and it is one of the few things that has been putting the Security Council into movement over the last year, so there is definitely a convergence on this and we all share this goal.

But there is not necessarily so much support for each of the legal narratives that has been constructed into this avenue, and it is telling, for instance, that Security Council Resolution 2249 neither endorses nor rejects any of the legal basis that has been presented, so we cannot careful navigate in between them.

While you say that there is so much support for what is happening, I also would like to touch on something that has been mentioned by Asif. International law changes, and there is a process for updating international law according to the current challenges, but there is also an established process by which you change international law. And Paul mentioned that there is a considerable number of states that have submitted letters under Article 51 to the Council, but when you take a look and confront it with the broader membership of the UN, this is still, numerically, a small number.

It has been argued, also, that the rest of the membership has been silent and maybe that this silence could be interpreted as acquiescence, and this is also not a fair point for two reasons. One, it is not true that the rest of the membership has remained silent. You will find, for instance, a non-aligned movement statement that has been reiterating the position that Article 51 is not to be rewritten or reinterpreted, and, of course, the NAM compromises more than 120 member states. You would find some Latin American countries, like Brazil and Mexico, stating on the record, in the General Assembly, and in the Security Council, that they have problems with, for instance, the unwilling and unable doctrine. And even in academia you will find this kind of divergence, and I would like to point to the plea against the abusive invocation of self-defense as a response to terrorism that was initiated by Professor Olivier Corten and signed by more than 240 international lawyers and academics from thirty-six different countries.

There is no silence there, and even if it were, silence in international law can only be used as a basis for changing customary international law if you have previously attributed a meaning to this, and we have not on this. What we are trying to say here is that there is not yet sufficient basis for us to assume that we can have subsequent practice that reaches the threshold of something as crucial as Article 2(4) and Article 51.

Monica Hakimi

Great. Patrick, maybe I could just follow up with what you just said, because one area of difference that I am hearing is that you, Patrick, are starting from the understanding that as of, let us say, 2005, or let us say as of the Nicaragua case, the Charter prohibited defensive force against non-state actors, and the ICJ has sort of solidified that. You are, therefore, looking for evidence of change. And what I am hearing from the other side of the table is, no, we start from the understanding that Article 51 applies in the context of non-state actors so we do not need to find evidence of change. All we need to find is evidence of continued support or action, and we have that in this context and especially for the campaign against ISIS. A number of states have supported it.

I have asked this side of the table the question of where the evidence of change is, so I want to ask you why we need evidence of change instead of just taking as our starting point the idea from Caroline that the use of force is permitted against non-state actors. In that event, we would not need to find collective support for any change. We would just need to find a continuation of that practice. I know you want to cite the ICJ, but the ICJ decisions are ambiguous on this point and can be interpreted in either way, so please do not hook into them as your saving grace.

Patrick Luna

I find it a bit difficult for me to be in the position in which I have to reverse the argument for the sense that for me the starting point is not with the ICJ jurisprudence. For me the starting point is the Charter. And as I mentioned in the introduction how we interpret the Charter and Article 51 as an exception to Article 2(4) and, therefore, Article 2(4) with a role as jus cogens makes it difficult for me. This is the starting point. I should not start from the starting point that the Charter does not exist as originally envisaged and now I have to come back to the way of how it was actually drafted in 1945. That is where, for me, the difficulty lies.

One question that I would like maybe, if I can also share and present to the members of the panel, because one comment that I did hear from many of the presenters, when we were talking about the unwilling and unable test. Katrina, for instance, mentioned that Australia did an objective assessment as to whether or not the Syrian government was unwilling and unable, and this is a notion that I got from the others as well.

The difficulty that I have with the unwilling and unable test is that it is unrevealable. We are assuming that the state itself, alone, has the capacity of articulating an assessment whether or not a member state is unwilling or unable, and this seems to be, for me, in contradiction with the notion of a collective security system. For instance, can it be said that the Syrian regime is unwilling to fight an international terrorist group if it has invited another powerful country to exercise force in its own territory in suppression of that said terrorist group? I would like maybe also to seize this opportunity to come back with a question.

Monica Hakimi

I will move onto the others, to give you a break, Patrick. Maybe you could answer that question and just to add a little to it: when the Obama administration announced that it was going to use force in Syria on Iraq's behalf, and, to some extent, on the United States’ own behalf, the Assad regime seemed to suggest that it was willing to cooperate with the United States. The United States said, “Yeah, but we are not working with the Assad regime,” for a variety of reasons. But that is a scenario in which, if you take Patrick's line of argument you might say, “Look, Assad was willing to work with the United States so it was not unwilling. It was willing. And the United States, in leading the coalition, and other states that participated with it chose not to work with Assad, for reasons that were external to its willingness to actually confront the problem in its territory.” So, even if you accept the unable or unwilling standard, this might not be a context in which it properly applies—or so the argument would go.

Asif Amin

I would say the unable or unwilling concept is something that we did not mention in our Article 51 letter. It was about collective self-defense. But I would say that we have also had developments in our legal interpretation, and if you asked us now, we have not stated this in public but I think if you asked us in public we will say we also look at the unable or unwilling doctrine right now in Syria. And I think it is interesting to see—you could also reverse it and say, I mean, we had F-16s flying around together with Australia and UK and others, and we could say that was consent by the Syrian government. I mean, they did not shoot us down. Syria did not start doing a lot of military action against it.

But I think if you look at it and you just look at ISIL, there is a lot of evidence that is showing that ISIL is still a threat to Iraq, even though there is not a geographical territory of ISIL maybe now, there is still a threat emanating from Syria into Iraq, and we do not see anyone else fighting that. Of course, we have to make that assessment all the time. Is the Syrian government able and willing to fight ISIS? We have not seen that. And I am not quite sure if you go back to Assad and listen to what he really said about the United States, if he really meant that he wanted to work with the United States, but some P5 members might know about that than me.

Monica Hakimi

Great. Paul. The question for you, I guess, is about the outer bounds of the unable or unwilling standard, particularly as applied in conjunction with anticipatory self-defense. One position might be that a state is unable or unwilling to deal with the non-state threat in its territory if it does not control that space. In the case of ISIS, ISIS occupied large portions of Syrian territory. It was not evident that the Syrian government actually had any capacity to control that area, and so it was unable, even if it were willing.

You might say, okay, in that context it is fine. But now fast-forward to 2018. I must admit that I have a hard time figuring out exactly what the U.S. position on this is: let us say the United States takes the position that ISIS has largely been defeated in Syria, that the military campaign against ISIS in Syria is largely over. But we are going to stay there for purposes of preventing future attacks from ISIS. We do not know when they will be. We know that ISIS has bad intentions with respect to us and other states, and so we are just going to stay in Syria, even though it is our view that we have largely incapacitated it militarily, for present purposes. Would that be consistent with the unable or unwilling standard as applied in conjunction with some assessment of imminence?

Paul Mckell

Well, two things. One, I would never purport to speak for the United States of America.

Monica Hakimi

Neither would I.

Paul Mckell

And the second thing is international law practitioners who work for governments really do not like to get involved in hypothetical situations.

It is something we do not like to do internally either, when our colleagues ask us, “Hypothetically, if this was the case what would the answer be?” It is always much better to deal with these things in the context of specific facts and circumstances.

I mean, we have done our own assessment of unable and unwilling, like Australia has, and other states will have done that. That is been part of our assessment. I mean, you have identified one of the key parts of that equation in the context of Syria, is the lack of any control, in a governmental sense, over parts of the territory from which ISIL was operating and able to use it to basically do the cross-border sort of operations in the context of their actions against Iraq.

That is not answering directly your question, but I guess there will always come, at some point in a conflict, a point where the conflict is over, because one side or the other has won. And I am not suggesting that is the case in relation to ISIL yet, but the day will come when that is the case, and then if one was going to stay in a country one would need a legal basis for staying there. If that was no longer justifiable on the basis of the self-defense of Iraq, there would have to be another legal basis in order to do so.

Monica Hakimi

Law professors love using hypotheticals.

Okay. Katrina, a question for you would go to Resolution 2249 and its relevance in this context. If one takes what I understand to be your position, which is the states have a right to use defensive force regardless of what the Security Council did in 2249, what work do you think that resolution is doing in this context? Is it doing any legal work at all? Is it just a political statement? Then, a related question is: if Article 51 covers you here, why does 2249 not invoke Article 51 and address the operation in terms of self-defense.

Katrina Cooper

Thanks, Monica. I would just go back in talking about Article 51 to pick up the very important point that Paul made earlier in about the inherent right of self-defense. That is encapsulated in Article 51, so I do not think we should forget that. If we go back to the Charter, as a beginning article, what is encapsulated in Article 51 pre-dates the Charter, so I think that is important to remember.

In terms of your specific question on 2249, as I said we had already made an assessment and come to a decision on the legal basis for our actions in Syria before 2249. What 2249, I think, does unequivocally is confirmed that the Security Council viewed, and views, the use of force against ISIL as permissible. I think that strengthens the argument for the use of force against a non-state actor. How far you might want to interpret that is open to discussion, but certainly you can say that it states quite clearly that use of force against ISIL is permissible. Therefore, use of force against ISIL as a non-state actor is permissible, so there is the beginning of an argument there.

Why Article 51 was not referred to and self-defense was not referred to? I think you would have to be in the room to know the answer to that, and I remember, as a law student, spending what I now know to be many wasted days, weeks, months interpreting treaties and Security Council resolutions, only to then become a practitioner and have that aha moment where I realized that these words actually do not mean anything except they were the only words that the countries in the room could agree on. I think we have to be really careful of overinterpreting statements.

You know, these four are tricky. We know the members of the Security Council have different views, so to get 2249 out of Security Council to say that use of force against ISIL is permissible is not insignificant. It should not be read as meaning that what is not mentioned there is not supported by maybe a number of people in the room, if not the majority or all. I do not know. I was not in the room. But I just caution against trying to read the tea leaves too much, because it is often not what you think it is. But what I think we can say about 2249 is it is quite clear in terms of its, no, not giving states but encouraging states to use all necessary measures. I think it is a really important resolution.

I just wanted to add another couple of comments on state practice. We are focusing here on Iraq and Syria, and that is fine. It is appropriate. Paul has read a number of countries who put in letters under Article 51. They are, of course, the countries that are going to use force, so by necessity we are not looking at the whole pool of countries. We are looking at the countries who are contemplating using force, so that is already a narrow subset. You cannot then take from that list that these are the only countries that agree with that interpretation, because all of the countries that are not using force have no obligation or requirement to put in an Article 51 letter, so that is important.

But there are many, many other examples of this, and in recent history, including, for example—and I do not have a list here but I know, for example, against FARC by Colombia and Ecuador, against the PKK. That was another example. There have been multiple examples in Africa. Some in the audience might have worked on some of these issues. But there are a number of examples of state practice, of taking action against non-state actors in the territory of a third country.

The final point I wanted to make was to go back on one of Patrick's comments. He posed a question, if a state invites a bigger state in to help it deal with a non-state actor on its territory, how can you say it is unwilling? I think what you can say is that it is unable, because if it were able to deal with the threat, why would it be inviting another larger state in to help it? The test that we are applying is unwilling or unable, so it does not necessarily have to be unwilling. Just at least one of those, sometimes both, but one is sufficient.

Monica Hakimi

Great. Do any of you have any nagging issues that you want to raise?

Paul Mckell

This is not so much a nagging issue, just to come in on top of what is just been said about 2249. I was not in the room when this resolution was negotiated but I spent three and a half years of my life negotiating Security Council resolutions, between March 2011 and August 2014, and a number of those resolutions that I worked on the negotiation of did not come to be resolutions. They remained draft resolutions and they were on the subject of Syria, and they were multiple resolutions that were vetoed, and I remember each and every one of those negotiations and the vetoing of them very clearly, and the sense of frustration across members of the international community, and, in particular, and the states who were very keen. And we were talking not about Chapter 7 resolutions authorizing the use of force but very mild resolutions actually calling for not that much initially, actually, over time.

I think it is worth bearing in mind that political context around this when looking at 2249. I know Patrick referred to it as a sort of diplomatic ambiguity. I actually think it is relatively clear in its drafting. Like Katrina said, every resolution that is passed is a compromise in terms of the language that the members of the Security Council can agree to in order for the resolution to be adopted. I think is notable that the resolution refers in terms to the situation with ISIL, refers in terms to the letter from Iraq that we have talked about, inviting states in, and it is clear in calling on member states with the capacity to sort of take all necessary measures, and the all necessary measures is the Security Council speak to use force. That is understood, I think, across the community of international lawyers.

I think it is a relatively clearly drafted resolution, and it is important, even if it does not necessarily make a Chapter 7 authorization to use force. It is an important resolution and it is quite clear in those terms. I just wanted to sort of underline and reiterate that, because I think what can be lost is you do not spend hours in dark rooms around the Security Council negotiating these things. It is just how difficult sometimes it is to get agreement. I just think that is background.

Monica Hakimi

Anything you want to add?

Asif Amin

One thing to highlight is at least from a Danish point of view we limit ourselves, through Parliament, to Iraq and Syria. That is where we have our mandate. If the threat of ISIS suddenly moved into other territories we would have to go back to Parliament and make a new legal assessment of where we are. But I have to say, also, that we are not there based on individual self-defense, and some countries are there. Going back to the question about the mandate, unable or unwilling, there are other possibilities to stay, and some countries are doing it, like UK has also said before, on its own behalf.

Patrick Luna

Three final points. First on the unwilling and unable test, and also touching on what Katrina mentioned before as a reply to my comment on the Syrian invitation for other countries to engage in its territory. If it means that a country is inviting a foreign government to act in its territory it might mean that it is not unwilling but it might be that it is unable.

If we reverse this argument to the situation in Iraq, and we have Iraq asking for a coalition to operate in its territory to fight ISIS, does it also mean that Iraq is unable to fight it and, therefore, other states could invoke the unwilling and unable test and use force in Iraq against Baghdad's consent, to fight ISIS? That is one of the concerns that we have with the application of the test.

A second one, that has not been addressed, the concept of uncertainty, because we are still talking about the concept of non-state actors, which is broader than the concept of terrorists, and that, for us, poses systemic concern that we still do not know how to address.

And a third and real final question to the panel is, why is it that we are not having this discussion at the UN? There are a number of academic discussions. There are piles of articles being written, lots of books have been prepared, but I still have not seen the countries who are trying to bring a new vision or a new interpretation to the UN Charter bringing up language or proposals and Security Council resolutions, or, as we would like to see it, maybe, in the General Assembly process, to clarifying legal certainty as to where we stand regarding these initiatives.

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Remarks by Patrick Luna
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Remarks by Patrick Luna
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