Monthly Archives: October 2013

What the UN Drone Report Means for Sanctions Regimes

One long-controversial issue relating to the use of economic and financial sanctions has been the human rights obligations owed by a sanctioning State to a target State’s civilian population. For long, opinion has been split: some believing that, thanks to the extra-territorial nature of economic sanctions, the sanctioning State owes no human rights obligations to those it targets, while others take the sensible position that the spirit of human rights treaties is upset if a State is permitted to do outside its territory what it would be prevented from doing within its territory.

I’ve written about this topic elsewhere and take the position that both the drafting history and the spirit of the two major human rights treaties (the ICCPR and ICESCR) suggest that a sanctioning State owes the same human rights obligations towards a target State’s population as it would to its own population, even though the State lacks traditional bases of jurisdiction. In other words, to make the real-life example, the United States and the European Union would each owe Iran’s civilian population the obligations bestowed upon it by the ICCPR, the ICESCR, and whatever customary human rights norms flow from those treaties’ ancestor, the UDHR. The US/EU could not escape the rights owed to Iran’s civilian population by claiming that it did not have territorial jurisdiction over the target population (as is the US wont). (These rights would include the right to life, the right to work, the right to an adequate standard of living, including adequate food and health; the right to physical and mental health, the right to education, etc.)

Thanks to the new UN Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions report on drones, this take has received added credence. That is because, not unlike the use of economic sanctions targeting a foreign State, the use of drones likewise implicates the question concerning the extra-territorial reach of human rights law. As the UN report admits:

“Drones enable a State to perform targeted killing without exercising effective control over territory and without having the individual in custody, however. Accordingly, it must be asked whether such targeting can result in violations of the right to life under the applicable [human rights] treaties.”

Reviewing the existing case law, as found in the International Court of Justice, the Inter-American Commission on Human Rights, and the European Court of Human Rights (not to mention the findings of the UN Human Rights Committee), the UN report concludes that “any positive action by a State, on its own territory or that of another State, must be carried out in compliance with its human rights obligations under all applicable rules of international law.” That is to say, the United States cannot escape the purview of human rights law by arguing that the jurisdictional scope of human rights treaties does not capture its drone strikes in Pakistan, Yemen, or Somalia. The fact is, by undertaking ‘positive action’ that indelibly affects the rights of persons targeted, the U.S. exhibits the kind of ‘effective control’ under which its human rights obligations are triggered.

The UN report does not mention it, but this view is totally consistent with the drafting history of the ICCPR. What confuses the issue is the precise language of ICCPR Article 2(1), which establishes the jurisdictional scope of the treaty:

“Each State-party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant…”

The plain-reading of Article 2(1) is that the jurisdictional predicate is two-fold: a State is bound to respect the rights contained within the Covenant provided a person is both ‘within its territory and subject to its jurisdiction.’ If one of these predicates to jurisdiction is absent in a specific case, a State would be freed from its human rights obligations under the ICCPR.

However, this plain-reading is anathema to the drafting history (i.e., to what the drafters of the ICCPR intended). In Manfred Nowak’s treatise on the ICCPR, he reviews this history, finding that the Covenant’s drafters were committed to creating a human rights instrument of broad application. As Nowak details, the language of Article 2(1) was actually a compromise between the United States and France, both of whom had problems with some of the earlier drafts of the treaties’ jurisdictional scope. The concern for each State was that State-parties not be held responsible “for violations of the Covenant by persons who are on their territory but not subject to their jurisdiction,” nor “for violations against persons over whom they have personal jurisdiction…, when such violations take place on foreign territory and are attributable to some other sovereign.” In both instances, the U.S. and France were worried about being held responsible for human rights violations over which they exercised little to no control. With this in mind, Article 2(1) was drafted in such a way as to mitigate the concern that States would be held liable for the violations of others.

But, as Nowak and others have pointed out, this compromise by no means excluded the possibility that a State be held liable for the injuries it itself causes – even if such injuries occur on the territory of a foreign sovereign. Thus, as Nowak notes, “[w]hen State parties…take actions on foreign territory that violate the rights of persons subject to their sovereign authority, it would be contrary to the purpose of the Covenant if they could not be held responsible.” Such liability would, in no way, supersede the concerns of the U.S. and France during Article 2(1)’s drafting. In fact, such liability would meet both parties’ concerns, as in the instance cited the culpable State would be both responsible and liable for the human rights violation.

Thus, the ICCPR’s travaux is critical to intelligent appreciation of the text of Article 2(1) and gives added weight to the UN Special Rapporteur’s argument that the U.S. might well owe those it targets via drones the obligations outlined in human rights treaties. In the same way, both provide an arsenal of argumentation for why the U.S. and European sanctions on Iran implicate serious human rights concerns, as Iran’s civilian population endures price shocks to food markets, increasing hardships procuring critical medicines, and sagging employment figures.

I’m a big believer that human rights advocates have paid too little attention to the critical harms exhaustive economic and financial sanctions impose on a target State’s civilian population (e.g., in Iran). I think part of this has to do with the lack of clarity concerning the substantive law applicable in the case of a particular sanctions regime. No doubt, this has to do, to a large extent, with the extra-territorial nature of sanctions regimes. That’s why the UN Special Rapporteur’s report on the substantive law attached to U.S. drone strikes should provide impetus for rights advocates to reconsider their general refusal to more closely interrogate sanctions regimes and to judge the legality of these regimes against the human rights yardstick. In this way, the UN report is important for more reasons than one.

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Credible Threat Is An Unlawful Threat

Every week, the U.S. seems to invite a new UN Charter Article 2(4) controversy. This weekend, U.S. Special Forces undertook raids in Libya and Somalia that – at least in the former case – might well have run afoul of Article 2(4)’s prohibition on the use of force. Last week at this time, legal scholars were still debating whether a strike on Syria could have been justified under the doctrine of humanitarian intervention or whether it, too, would have constituted an unlawful use of force. And, of course, we’ve been discussing whether U.S. drone strikes in Pakistan – if not undertaken with the consent of the Pakistani government – violate Article 2(4)’s prohibition for awhile now. In short, there is no seeming end to the legal debate the U.S. is willing to stir over the breadth and scope of UN Charter Article 2(4).

But one particular threat of force that has not received due attention is the U.S.’s threat to use force on Iran should the Islamic Republic cross ‘red lines’ that the U.S. itself has set on its nuclear program. In the White House’s terminology, this is presenting to Iran a ‘credible threat’ of force so as to procure Iran’s compliance with U.S. demands during negotiations and keep Iran’s nuclear program within defined limits. If Iran should bypass these limits and ignore Washington’s ‘red lines’, then the implication is that the U.S. will not hesitate to engage in military strikes on Iran’s nuclear facilities.

The question is, though, whether a ‘credible’ threat of force is also an unlawful threat of force. UN Charter Article 2(4) states, quite clearly, that “all Members [of the United Nations] shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’ That is, Article 2(4) is not just a blanket prohibition on the use of force (with one exception provided in UN Charter Article 51), but also a prohibition on the threat to use force as well.

While there has been little adjudication on what constitutes an unlawful threat to use force, and no instances in which a State has been held to account for such a threat, we do have a pretty clear idea on the broad contours of the Article 2(4) prohibition – thanks to an Advisory Opinion rendered by the International Court of Justice. In that opinion, the Court set out a rule of construction for Article 2(4)’s prohibition on the threat and use of force, stating in relevant part:

“Whether a signaled intention to use force if certain events occur is or is not a ‘threat’ within Article 2(4) of the Charter depends upon various factors. If the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2(4). Thus it would be illegal to threaten force to secure territory from another State, or to cause it to follow or not follow certain political or economic paths. The notions of ‘threat’ and ‘use’ of force under Article 2(4) of the Charter stand together in the sense that if the use of force itself in a given case is illegal, for whatever reason, the threat to use such force will likewise be illegal. In short, if it is to be lawful, the declared readiness of a State to use force must be a use of force that is in conformity with the Charter. For the rest, no State, whether or not it defended the policy of deterrence, suggested to the Court that it would be lawful to threaten to use force if the use of force contemplated would be illegal.”

In other words, a threat is illegal if the use of force that it contemplates would likewise be illegal. Thus, if the U.S. maintains a ‘credible threat’ of force towards Iran should the Islamic Republic cross the ‘red lines’ the U.S. has set for it, then the force that is threatened must be a lawful use of force. Unfortunately, for the U.S., I don’t think there is much doubt that a unilateral U.S. strike on Iran’s nuclear facilities would be contrary to both the letter and spirit of Article 2(4), and would thus constitute an unlawful use of force. If that is true, then the U.S.’s threat to use force (which was repeated by President Obama during his press conference with Israeli Prime Minister Benjamin Netanyahu last week) would be likewise unlawful. The bluster that we hear from both the U.S. and Israel would be a stark violation of Article 2(4)’s prohibition on a threat to use force, and Iran could pursue remedies as it sees fit.

UN Charter Article 2(4) is often viewed as a foundational principle of the international order the Charter’s drafters hoped to construct. The fact that the U.S. exhibits such callous concern for upholding the principle tells us a great deal about the nature of U.S. action overseas, intended not to buttress international law (as was claimed in the aftermath of the Syria CW attacks) but rather to undermine it at every turn. We see that as clearly in the case of Iran, where the U.S. threatens force and renders that threat actionable at a moment’s notice, as in the cases of Libya and Somalia today.

Update: During his Sunday morning appearance on ABC’s This Week with George Stephanopoulos, Iran Foreign Minister Javad Zarif made a side comment in which he noted that he had been arguing against the possession of nuclear weapons for close to two decades, including oral argument before the International Court of Justice. I picked up on it and looked for his name in the Court’s opinion, and I found it. Because the Court was rendering an advisory opinion, foreign dignitaries were permitted time to present argument on why the Court should rule one way or another. Javad Zarif represented Iran before the Court and argued in favor of the proposition that the mere possession of nuclear weapons constituted an unlawful threat to use force. His argument did not win the day, but it does show consistency in regards to Iran’s insistence that nuclear disarmament take place — not just non-proliferation.

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Conceding the Point

In the last post, I argued that, contrary to the common narrative, U.S. sanctions policy towards Iran has been an utter failure – at least if the objective was to ensure Iran’s capitulation to U.S. demands. There, I noted that the U.S. will receive a worse deal in the upcoming talks than Iran itself offered the U.S. and EU3 in March 2005 and May 2010. In both cases, the U.S. rejected Iran’s offer and chose to go the punitive route to extract further concessions. Those decisions were very bad ones, as Iran’s nuclear program accelerated at such a rate as to make it nigh impossible for the U.S. to get the deal it was offered on those earlier occasions, much less force Iran into capitulation.

The Israelis agree with me – at least according to the New York Times’ reporting. Discussing the gulf that has opened up between Washington and Tel Aviv regarding the upcoming talks with Iran, Jodi Rudoren and David E. Sanger cite a U.S. official involved in meetings with the Israelis this past week who noted that ‘the Israelis want to go back to where the Iranians were a decade ago.’ The senior U.S. official continued, ‘No one in the U.S. disagrees with that as a goal. The question is whether it’s achievable…’

In other words, Israel wants Iran’s nuclear program to revert back to a period of time in which Iran had yet to master the fuel cycle, had yet to start up large-scale enrichment at Natanz, and had yet to contemplate the building of additional enrichment facilities (such as that at Fordow). Moreover, Israel wants to freeze things there. But the U.S. regards this as unfeasible, as Iran’s nuclear program has advanced far beyond and shows little sign of turning back. Instead, the U.S. believes that it can cap enrichment, limit the number of spinning centrifuges, and verify non-diversion of nuclear material. That is an ‘achievable’ goal.

But, to the Israelis, this is the law of diminished expectations. From 2003-05, the U.S. and EU3 had an opportunity to, in effect, freeze Iran’s nuclear program – perhaps permitting a small amount of nuclear enrichment, but also ensuring no reprocessing, immediate shipment out of all enriched uranium, and complete verification. Iran would have had little more than a trivial mastery of the nuclear fuel cycle. The U.S. and EU3 rejected the deal.

Instead, the U.S. and EU3 believed that a better deal was forthcoming. The Israelis accepted this argument. Now, the White House is talking about ‘achievable goals’ and is unwilling to even press publicly for Iran to dismantle its nuclear facilities, demanding only that Iran instill confidence that its program is for peaceful purposes alone. To the Israelis, that is far from the long-held demands the U.S. has made of Iran’s nuclear program. It is, one might say, a concession.

In that regard, too, I agree with the Israelis. I think it is a concession. But unlike the Israelis, I think it is a concession borne of a failed sanctions policy. To think that punitive sanctions would motivate Iran to capitulate, and to have total capitulation as the sole acceptable goal, the U.S. and Israel showed both stunning incompetence and imperial arrogance. That tragic mixture is now being forced to pay up, in ways that should have been completely expected.

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Sanctions Fail

This morning, Vali Nasr pushes back against a narrative building in Washington that views U.S. sanctions policy as being responsible for the sudden change of pace in nuclear negotiations with Iran. To Nasr, this not only misreads the situation badly, but also threatens to derail the talks (as the U.S. might well expect inordinate compromises from the Iranians that will not be forthcoming).

I think Nasr’s right; and I think he understates the case.

He understates the case because, as far as I can see, Iran will get a better deal from the U.S. and Europe than it itself offered to both parties in March 2005 and May 2010. Instead of extracting concessions from Iran over time, then, U.S. sanctions have allowed Iran to establish facts-on-the-ground in regards to its nuclear program and thus to place itself in a stronger bargaining position that it previously had. This is not a sign of a successful policy – this is, at least from Washington’s perspective, a catastrophic failure.

To understand this, you need to step back in time to March 2005. At that time, Iran presented an informal proposal to the EU3, in which the Islamic Republic promised to adopt the Additional Protocol (then signed but not yet ratified by Iran’s parliament), to limit expansion of its enrichment program and to forgo reprocessing, to convert all enriched uranium into fuel rods immediately, and to permit a permanent on-site IAEA inspector presence at Natanz. In return, Iran expected the EU3 to refuse to go along with the U.S. in referring Iran’s nuclear program to the UN Security Council, to recognize Iran’s right to enrich for peaceful purposes, to provide Iran access to advanced nuclear technology, and to support Iran’s bid for membership in key international institutions, such as the World Trade Organization. The Europeans rejected this offer, apparently because of U.S. disfavor.

But in March 2005, where was Iran’s nuclear program? Fordow, the underground site near Qom, was not yet built (and perhaps not even hypothesized by Iran’s Atomic Energy Organization at that time). Nor had Iran begun large-scale enrichment at all – Iran’s proposed offer was for the ‘assembly, installation, and testing’ of 3,000 centrifuges at Natanz as a confidence-building measure for both parties. Iran was far from deciding to pursue enrichment at higher levels (~20%) – a move that would not arrive until February 2010 – and, in fact, had not even mastered the fuel cycle at all by this point. In short, Iran’s nuclear program was at its beginning stages, and the U.S. and EU3 had a prime opportunity to freeze it there, allowing limited enrichment to 4 or 5% levels along with intrusive IAEA inspections.

The same is true in May 2010, when Iran agreed to accept the White House’s August 2009 proposal. That proposal, which was confidence-building and not final, would have had Iran send out close to 80% of its LEU (low-enriched uranium) in exchange for fuel rods to power the Tehran Research Reactor and thus would have undercut the rationale for Iran’s February 2010 decision to enrich at higher levels (as Iran would no longer need to indigenously produce fuel rods). The White House, which had offered the deal and had urged Brazil and Turkey to win Iran’s approval, rejected the proposal following Iran’s acceptance. Instead of pursuing this diplomatic course, the White House chose instead to go the way of the UN Security Council, which issued a further round of punitive sanctions on the Islamic Republic. This, too, was bad policy whose impetus was punishing Iran, not limiting and circumscribing Iran’s nuclear program.

In both cases, I would argue, the U.S. rejected a deal which was better than what it can expect in upcoming negotiations. In fact, I think both offers were a lot better than what is coming.

Sitting here in October 2013, Iran has clearly mastered the nuclear fuel cycle, bringing itself to the brink of breakout capacity (though all signs are that Iran has zero intention of ‘breaking-out’). Iran has more than 5,000 centrifuges operational at Natanz alone (and 12,700 centrifuges now installed), as well as close to 700 centrifuges at Fordow specifically involved in ~20% enrichment. Early next year, Iran’s heavy-water reactor at Arak will become operational – at which point a U.S.-Israeli attack becomes virtually unfeasible on the plant. Finally, Iran has demonstrated itself more than capable of supplying its own fuel rods to power the Tehran Research Reactor, thus no longer reliant on international suppliers.

There is no doubt that the U.S. sanctions have had significant cost on Iran’s economic well-being, and continue to do so at a chronic pace. But these developments in Iran’s nuclear program signal just as well that Iran has acquired the technical know-how and structural capacity to indigenously produce nuclear energy on a large-scale – all without the need for international aid and support. To think that Iran will be willing to sacrifice large elements of this program without significant concessions from the U.S. and Europe is foolhardy and completely misreads how Iran views upcoming negotiations.

In March 2005 and May 2010, Iran was willing to accept limited concessions from the US and EU3, in exchange for both parties accepting a small-scale nuclear enrichment program in Iran. That will no longer be the case. Thanks to progress on the nuclear front, Iran can now go big-for-big and still retain significantly more to its program than it had promised to give away on these earlier dates. That will not be a sign of policy success for Washington – that will be putting an end to a policy disaster that has been in place for far too long.

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Dubious Legality of SC Resolutions

Critics tend to point to the series of UN Security Council resolutions as evidence that Iran is in violation of its international obligations, insofar as Iran has failed to halt all enrichment activities as mandated. That would be true, provided that the UNSC resolutions were valid. But I think they are not and here’s why.

Under the UN Charter, the Security Council is tasked with ensuring international peace and security. To fulfill its obligations, the Council is empowered to take a wide range of both coercive and non-coercive measures, up to and including the use of force, which are spelled out in Articles 40-42. While originally viewed as an ‘executive’ body, tasked with undertaking the ‘preliminary measures’ outlined in Chapter VII to persuade disputing parties towards settlement, the Council has sharply extended the breadth of its substantive powers – most especially over the past two decades – by taking on what appear to be clearly legislative and judicial roles. In short, as one legal scholar has put it, the Council exists at the ‘apex of authority in international security law, with essentially unlimited powers…’

However, the fact that the Council has virtually unlimited substantive power says little about the procedural constraints under which it operates. One of those constraints is located in Article 39 of the UN Charter, often regarded as the ‘trigger’ (or ‘gateway’) of Chapter VII enforcement action.

Under Article 39, the Council is required to first make a finding that the situation to which it responds constitutes a ‘threat to the peace,’ a ‘breach of the peace,’ or an ‘act of aggression,’ before triggering its substantive Chapter VII powers. By virtue of the Council’s own practice, the Council is not required to actually invoke Article 39 per se in its Chapter VII resolutions, but rather just to use the ‘magic words’ – that a situation constitutes a ‘threat to…or breach of the peace’ – in order to trigger the enforcement powers located in Articles 41 and 42. In nearly every instance, the Council has properly invoked the ‘magic words’ and thus triggered its own substantive powers. This is, in lawyerly terms, a controlling interpretation of the procedural requirements contained in Article 39 and Chapter VII more generally.

This is also where things get a little interesting. Because if the predicate to the Council’s Chapter VII  powers is a finding that a particular situation constitutes a ‘threat to…or breach of the peace,’ then the UNSC resolutions targeting Iran’s nuclear program are ultra vires (that is, beyond the powers of the Council and thus null and void). That is because no finding of the kind required by Article 39 was ever made explicit in UNSC Res. 1696, 1737, 1747, 1803, or 1929. Instead, the Council wholly elided the question of whether Iran’s nuclear program constituted a ‘threat to…or breach of the peace,’ and simply invoked Chapter VII to sanction Iran and demand of it certain measures (including a halt to all enrichment).

Is this unprecedented? Yes and no.

No, because the Council has taken enforcement action under Chapter VII without making the requisite Article 39 finding in a few prior cases. Those include, in chronological order, SC Res. 820, SC Res. 1160, SC Res. 1422, and SC Res. 1970. In each of these cases, the Council invoked Chapter VII but did not find the situation to which it was responding constituted a ‘threat to…or breach of the peace.’

Yes, because the Council either remedied the fault in later resolutions (see, e.g., how SC Res. 1160 was remedied in SC Res. 1199, 1203, and 1244, as well as how SC Res. 1970 was remedied with SC Res. 1973), explained away its failure by reference to earlier resolutions that did make such an Article 39 finding (see, e.g., how SC Res. 820 was preceded by SC Res. 713 and 757), or seriously questioned the legality of its own decision when no Article 39 determination was made (see, e.g., both Canada and Germany’s reaction to the passage of SC Res. 1422). By justifying its failure to make explicit the basis by which it triggered Chapter VII on these particular occasions, the Council reinforced the fact that an Article 39 determination was required for the Council to take action under Articles 41 and 42. These were, in short, exceptions that proved the rule.

In the case of the UNSC resolutions targeting Iran’s nuclear program, however, the Council failed, on each subsequent occasion, to remedy its initial failure. Never did the Council establish the basis on which it proceeded to take enforcement action against the Islamic Republic. Instead, the Council simply continued to invoke Chapter VII without regard to Article 39. This makes the UNSC resolutions unique in the Council’s history – and perhaps void.

What arguments could be made to justify the UNSC action in this case? I’ve seen just two good-faith arguments – both being deficient for separate reasons.

The first is that, simply by invoking Chapter VII in its resolutions, the Council implicitly makes a finding that the situation to which it responds constitutes a ‘threat to…or breach of the peace.’ In other words, the Council is absolved from stating the ‘magic words’ so long as it explicitly invokes Chapter VII in its resolution. This argument was advanced forcefully by the United Kingdom following passage of SC Res. 1160, where the UK delegate stated that, ‘by acting under Chapter VII of the Charter, the Council considers that the situation…constitutes a threat to international peace…’ That is, the mere invocation of Chapter VII in SC Res. 1160 had the same effect as an express determination that the situation posed a threat to the peace.

But this is an odd argument, especially considering the fact that the specific reason the Council did not make explicit the finding required by Article 39 is because Russia and China threatened to veto the resolution if such language was included. In other words, the UK wants us to believe that SC Res. 1160 implicitly includes the kind of finding required by Article 39, despite the fact that such a finding was explicitly rejected during Council debate by two veto-carrying members of the Security Council. That betrays the principle of good-faith legal interpretation, I think.

The second argument is that the Council is in the midst of adopting a practice in which certain kinds of enforcement action will be made without the finding required by Article 39. This argument, advanced by legal scholar Nico Krisch, sees the Iraq War as triggering increased skepticism by parts of the Council towards Chapter VII resolutions that could be used as a stepping stone for a use of force. That is, because the U.S. undertook such loose interpretation of UNSC resolutions to justify the invasion of Iraq, Russia and China have refused to agree to an Article 39 finding for Chapter VII resolutions that do not provide for a use of force. In this way, there has been a bifurcation in the way the Council treats Article 41 and Article 42 resolutions. In the former, Russia and China will refuse to agree to include the ‘magic words’ in UNSC resolutions for fear that the U.S. will use them to justify a use of force, while for Article 42 resolutions, the kind of finding required under Article 39 can be made explicit (as a use of force is being agreed to).

This is, no doubt, a clever argument, but one that I think fails in the end. For one, it is wholly unclear whether the Council can unilaterally bifurcate the way it handles Chapter VII resolutions under Article 41 and Article 42. While the Council can set the bounds of its own practice, it must do so within the limits prescribed by the UN Charter. In this case, the UN Charter is pretty clear that both action taken under Articles 41 and 42 must include a determination that a specific situation constitutes a ‘threat to…or breach of the peace.’ To hold otherwise would permit the Council to, in fact, rewrite the UN Charter according to its own prescriptions.

Moreover, even if we granted the Council the power to rewrite the Charter’s procedural constraints, the Council has been far from consistent in bifurcating the way it treats Articles 41 and 42. It is only in regards to the UNSC resolutions targeting Iran’s nuclear program, after all, that the Council has treated a Chapter VII action involving Article 41 differently. That severely undercuts Krisch’s idea that the Council has adopted a new practice. If the Council has done so, it has thus far been a well-kept secret.

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