Regime Conflicts and the U.N. Security Council: Applying the Law of Responsibility
47 Pages Posted: 25 Aug 2011 Last revised: 12 Oct 2011
Date Written: August 24, 2011
The law of responsibility and the law of collective security are structured as parallel bodies of law. However, the Articles on the Responsibility of States and the controversial new Draft Articles on the Responsibility of International Organizations, are routinely arising in collective security situations. This Article explores how the law of responsibility applies to the Security Council and UN member states, and why it is arising in regime conflicts involving the Security Council. The Article begins by analyzing three common types of regime conflicts confronting the Security Council: those arising from embedded conflicts, strategic inconsistency, and separate legal personality. The Article then examines how the rules of responsibility are applied where human rights and collective security collide, and why the principles of responsibility factor into both the definition of aggression and shared jurisdiction of the Security Council and International Criminal Court over this crime. Finally, this Article discusses the role of the law of responsibility in important recent decisions including the Kadi, Al-Jedda, Behrami, and Saramati cases, and concludes by arguing that the law of responsibility may play a constitution-like function.
Keywords: Security Council, Law of Responsibility, Collective Security, Regime Conflicts
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