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Cardozo Law Review

Abstract

Until quite recently, individuals were not able to challenge United Nations Security Council (Council) action through international-level mechanisms, and were forced to rely instead on United Nations (UN) member states in their attempts to obtain relief This lack of direct redress held even if no member state intermediary was available, such as when individuals' assets were frozen or they had been detained under Council authority. Within the last decade, however, the Council granted some such individuals administrative standing to challenge its authority. After so many years of denying individuals standing in international security, the Council's about-face is puzzling. It is also puzzling that the Council granted this standing to individuals out of a stated concern for due process and rights, but has gone only so far, stopping short of providing important guarantees, such as the right to a hearing, an appeal, and to a remedy.

This Article fills a gap in the literature about the accountability of international organizations by offering a norm-sensitive, positive political account of the motivations and constraints of some of the relevant players behind the creation of standing for individuals: the Council, UN member states, and individuals. It offers signaling as an analytic framework for understanding the Council's significant shift towards granting individuals standing in two different international security contexts, and examines some of the normative implications of this administrative standing for future efforts to strengthen the Council's accountability to individuals.

Using process-tracing in two case studies, one of the targeted sanctions regimes and the other of the transitional administration in Kosovo, this Article puts forth evidence to support the idea that when the Council exerted these new forms of its power, many member states pressured the Council to offer individual rights protections. The Council in turn faced a dilemma because it relies on member states to implement its binding resolutions. It eventually responded to states' objections by attempting to signal to states that it was acting credibly. It did so by creating weak individual standing mechanisms without significant procedural protections. Using signaling theory makes the absence of important rights guarantees for individuals at the international level no longer appear inconsistent with the Council and member states' rights talk, as we can understand that the primary intended initial beneficiaries of individual standing mechanisms may not be individuals, but may instead be the Council and member states.

However, evidence from the case studies suggests that the Council's and member states' rhetoric about protecting individual rights has proven sticky. These presumptively weak ombudsperson standing mechanisms have been costly, perhaps even more so than Council members expected them to be. The ombudsperson standing mechanisms have increased transparency and offered some individuals relief. In addition, in the targeted sanctions context, executive branches of European governments faced increasing norm-based pressure from national- and regional-level judiciaries hearing rights-based challenges to the implementation of targeted sanctions. Over time, as the Council has faced continued pressure to increase the protections its standing regimes offer, it has done so - to a limited extent.

In conclusion, the Article highlights some normative implications of this signaling analysis for future efforts to hold the Council accountable to individuals. It preliminarily identifies two circumstances under which the Council is more likely to signal and offer standing to individuals: (1) when Council action overlaps with general principles of law that are enforced at the national level; or (2) when Council action affects many member states. This analysis in turn allows for the predictive hypothesis that in the short term, credibility signaling between the Council and member states will foster individual accountability rhetoric and the establishment of mechanisms at the international level, but only up to the point of allowing individual complainants standing to challenge Council authority. Credibility signaling alone will not lead speedily to the Council granting individuals the right to an appeal and a remedy at the international level. Rather, norm enforcement at the national level will need to increase to have collateral effects at the international level. Accordingly, despite the significant development of standing for individuals, the Council's commitment to allowing individuals to hold it accountable for its decisions remains shallow. Therefore, the interaction of national- and regional-level judicial review and international-level pressure by NGOs and legal scholars will be critical to producing reforms that strike a balance between individual dignity and security interests that offer individuals more protection, and that hold the Council accountable to individuals affected by Council action.

Disciplines

International Law | Law

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