Editor’s note: The following is the draft text of Professor Naz K. Modirzadeh’s briefing to United Nations Security Council Open “Arria-Formula” Meeting convened by Mexico on February 24th, 2021 on “Upholding the collective security system of the UN Charter: the use of force in international law, non-state actors and legitimate self-defense.”

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[Draft — check against delivery]

Excellencies, distinguished representatives, ladies and gentlemen, 

I am grateful to the Permanent Mission of Mexico for inviting me to brief this timely Arria-formula meeting on a vitally important topic. Over the next fifteen minutes, I will seek to shed light on the implications of State silence concerning the right of self-defense in counterterrorism contexts.

My core message is that, despite the significant stakes in this debate for all members of the international community, the law governing self-defense is being shaped and applied in counterterrorism contexts without the active and routine participation of the vast majority of States. From my perspective, this situation is unsatisfactory. To effectively maintain international peace and security, all States should address it as a matter of priority.

Not participating in these debates comes with a cost. Intentional or otherwise, State silence contributes to normative uncertainty. Further, in practice, silence might function, legitimately or not, as a kind of tacit support for particular claims in the law of self-defense. All Member States — all of you in the room and those not participating in today’s meeting — should be aware of the potential effects of silence as you deliberate on whether to weigh in or remain on the sidelines.

Let me explain. 

Over the last several decades, numerous debates concerning the legal regulation of the threat or use of force in international relations have generated volumes upon volumes of wide-ranging arguments. These debates, which often entail life-and-death stakes on an enormous scale, go to the heart of the collective-security regime.

One of the issues that has rightly generated extensive commentary relates to military action by a State against a non-state actor in foreign territory without the territorial-host State’s consent or the Security Council’s authorization. Numerous strands of the debate and the practice underlying it can be traced back several decades, if not longer. That practice includes an evidently growing number of purported exercises of the right of self-defense against those non-state groups. This part of the self-defense debate has gained particular attention and heightened relevance as more of the States taking military action against these groups characterize the situations as counterterrorism contexts. Many of these specific claims to self-defense assert that the territorial-host State is “unable or unwilling” to obviate the threat posed by the non-state group.

Undoubtedly, these questions involve core matters of State sovereignty, not least for territorial integrity and security. Some international actors believe that the States engaging in these types of military action should be heard most loudly in this conversation and that the law should, first and foremost, take account of those States’ concerns. Yet, from my perspective, the prohibition on the threat or use of force in international relations and the collective-security system ought to be safeguarded by all States for the interests of all States. Indeed, in designing the Charter system, States put the principle of sovereign equality front and center. Moreover, States are the primary international actors responsible for forming, identifying, modifying, and terminating legal rules.

Despite this primary responsibility, it seems that today, in practice, a handful of scholars who invoke perceived silence in this area may be exerting more significant influence than many States in shaping this part of the self-defense debate. Scholarly discourse certainly has a vital role to play here. Yet I believe that this discussion needs to move from the pages of academic volumes to the Chamber of the Security Council and the Hall of the General Assembly.

Bear in mind that today’s specific debate is not the first, nor will it be the last, topic concerning the prohibition on the use of force where State silence might be accorded legal effects. For example, at least for certain international actors, State silence may also play a role in debates over so-called “anticipatory self-defense,” “humanitarian intervention,” and rescue of nationals abroad.

In a 2019 report for the Harvard Law School Program on International Law and Armed Conflict titled “Quantum of Silence: Inaction and Jus ad Bellum,” my co-authors, Professor Gabriella Blum and Dustin Lewis, and I sought to help raise awareness of the consequences of silence as an international-law argumentative technique in the law governing the use of force. In the report, we take no position on the substantive merits of the various, and often opposing, legal views elaborated in the contemporary debates. Nor do we take a position on whether there is any reasonable room for such debate at all. Instead, we take the existence of these debates as a given and focus on how international actors have sought to use State silence as purported proof of tacit support for their respective positions. From our perspective, the questions of what silence means as a matter of international law and under what conditions it may and should be relied upon merit closer attention and discussion. That is especially the case, in my view, concerning the scope of the contemporary right of self-defense.

To be certain, a State may intend for its silence to have legal effects. But State silence may, alternatively, result from lack of awareness or from diplomatic, political, strategic, or other non-legal considerations. Indeed, it may very well be that States do not mean for their silence to signify support or objection to any particular legal viewpoint. Nevertheless, State silence concerning relevant self-defense claims is being imbued with legal significance by various international actors. And, more often than not, those invocations are made in favor of broad claims to resort to force.

Whether or not silence has or should have legal significance in this area is a complex question. I do not have time this afternoon to elaborate on its various nuances. The short version is that, arguably, State silence may be capable, under strict conditions, of contributing to an interpretive agreement of a Charter provision or the identification of a rule of customary international law. But even those limited forms of qualified silence ought not to be lightly presumed. Instead, we argue, there is a strong, if rebuttable, presumption that silence alone does not constitute acceptance of a self-defense claim. Be that as it may, States and other international actors should be aware that, as a practical matter, their silence might play a role in identifying and developing the legal rules.

States that do want to participate actively in this debate do not currently have reliable access to all relevant information, even self-defense-related information that Member States are obliged to report immediately to the Security Council. Since the advent of the United Nations, a number of avenues have been pursued to make it possible for Member States to obtain information relevant to these “Article 51 self-defense communications.” To date, however, none of these efforts has resulted in a timely and authoritative system to identify and evaluate those communications. For example, the Repertoire of the Practice of the Security Council and subsequent Supplements thereto provide a record of the evolving practice and procedure of the Council. In the 2019–2020 period, for the first time in the Repertoire’s 68-year history, the Secretariat adapted its working methods to enable contemporaneous coverage of the Security Council’s practice. Yet the Repertoire does not necessarily reflect the Security Council’s views regarding what qualifies as an “Article 51 self-defense communication.” Perhaps more to the point, it is far from clear that the Security Council itself determines which communications qualify in the first place. Partly as a result, there remains no single place to turn — whether on the Security Council website or in any Council document — to find all qualifying self-defense communications, let alone responses to them by the Council or Member States.

In light of this situation, alongside the HLS PILAC report on silence, our research team created a catalogue of apparent “Article 51 self-defense communications” from 1945 through 2018. Our researchers identified over 430 apparent self-defense reports made to the Council in that period. The researchers also recorded whether or not the Security Council responded — in the sense of a provision in an act of the Council — to those communications. According to our analysis, the Security Council reacted formally to about one-tenth of the identified self-defense communications.

The lack of an accessible, comprehensive catalogue of contemporaneous self-defense reports raises technical burdens and interpretive challenges for Member States attempting to contribute to today’s debate. It seems that a State seeking to be aware of “Article 51 self-defense communications” in real-time needs to consult the full text of all Security Council documents to identify candidate reports. The State then needs to determine whether a particular communication qualifies as an “Article 51 self-defense communication,” and it must do so without authoritative guidance from the Security Council or Member States writ large. In terms of scale, hundreds of communications are made to the Security Council annually. For example, in 2018, over a thousand documents were given an S/ document symbol. In comparison, the HLS PILAC catalogue records that, in 2018, only four apparent “Article 51 self-defense communications” were submitted to the Council. Self-defense reports are effectively needles in a haystack.

In the current context, States are not made aware of which communications count, in the eyes of the Security Council, as “Article 51 self-defense communications.” In these circumstances, it would seem difficult to consider a State’s lack of reaction to the legal claims made or the actions described in those reports as deliberate or even conscious.

With this in mind, I would like to close with three questions for Member States’ consideration as they reflect on these issues. 

First, what are the key legal, political, and strategic issues for Member States in deciding whether or not to take part in the substantive and procedural debates on the contemporary right of self-defense?

Second, should State silence or inaction have a role in identifying and modifying the legal rules on the right of self-defense? 

And third, what steps would be necessary to provide all Member States with systematic and timely access to qualifying “Article 51 self-defense communications”?

Excellencies, in conclusion, Member States ought to consider whether they are comfortable with a cornerstone of the Charter system possibly shifting without their views being taken into account and without reliable access to relevant information. Much hangs in the balance, including whose voices will be heard in developing the law.

I look forward to this critical conversation. 

Thank you.

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