International Civil Individual Responsibility and the Security Council: Building the Foundations of a General Regime
89 Pages Posted: 6 Apr 2019
Date Written: April 5, 2019
This Article articulates the foundations of a general regime to govern individual civil responsibility in international law, covering all manner of non-state actors. It aims to palliate the normative and enforcement gaps created by the U.S. courts’ narrowing interpretation of the Alien Tort Claims Act and the European Court of Human Rights’ recent rejection of universal civil jurisdiction. Drawing from state responsibility logic and the broader framework of international responsibility, I advocate a limited role for the UN Security Council in implementing and developing individual responsibility for non-state actors’ wrongful conduct. I critically analyze that organ’s promulgation of relevant substantive norms, primarily but not exclusively in the counter terrorism area, and its attribution of illegal conduct and responsibility to individuals and non-state entities. Indeed, invoking international responsibility’s primary-secondary mechanics provides the Council with the powerful language (and notions) of attribution, responsibility, cessation, reparation, and return to legality. Moreover, it bolsters its findings of illegality with sanctions in appropriate cases, which can become robust and complementary implementation mechanisms, should the Council’s formulated obligations of cessation and non-repetition fail to generate the desired compliance pull. The Article espouses a transnational approach geared towards better understanding international individual responsibility regimes, exploring relevant regime interaction between international human rights, humanitarian law, international criminal law, state-to-state dispute settlement, international sanctions, domestic civil liability schemes, and transnational human rights litigation. This approach highlights the networks of multi-leveled relationships of responsibility and the multi-actor processes that might serve as incubators for actuating individual responsibility in international law.
Keywords: United Nations, Security Council, sanctions, universal civil jurisdiction, Alien Torts Claims Act, remedies, civil responsibility, transnational human rights litigation, human rights, individual civil responsibility, counterterrorism, nonstate actors and individuals, international responsibility
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