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1 Security Council sanctions governance
The power and limits of rules
The United Nations Security Council increasingly delegates a broad range of decisions to specially created sanctions committees in the context of its sanctions regimes. These committees, which consist of the same 15 Council members, often decide about a large number of vital issues including, for instance, which “humanitarian” goods are exempted from a complete trade embargo or which individuals and entities are subject to assets freezes and travel bans. Remarkably, the early Yugoslavia Sanctions Committee adopted almost 35,000 decisions in just 1 year. Contemporary targeted sanctions committees together took almost 450 listing and delisting decisions in the last 5 years, and a total of almost 620 individuals and 300 entities found themselves on various Council sanctions lists in 2017. All of these decisions resulted from the past and present activities of specifically created sanctions committees, the activities of which often go unnoticed. Sanctions committee decisions can have grave humanitarian consequences or breach the fundamental human rights of sanctioned individuals. These decisions are legally binding and substantially enhance or strain the effectiveness and legitimacy of a key tool for conflict resolution. The question of how the Security Council’s sanctions committees (should) work has triggered a fierce and critical debate over not only the Council’s legal limits, but also the political feasibility of sanctions and their effectiveness among sanctions practitioners and Security Council commentators, as well as human rights activists.
To explore Security Council sanctions’ governance, I present here a theoretical concept to answer a research question relevant to academics and policy practitioners alike: How and with what consequences does the creation of sanctions committees within the Security Council composed of member states’ representatives affect the behavior of Council members and the content of their decisions? This subsumes four aspects: How are the tasks divided between Council and committee? How does delegation affect the Council? How does it change the committees’ work? Additionally, how does this impact on the content of decisions? These questions refer to a fascinating theoretical and empirical puzzle. The delegation of tasks from the Council to its committees seems to affect the decisions taken, despite the fact that the same states are involved in taking all the decisions. Former sanctions committee members have noted that states’ behavior in the committees is different from that in the Council. The sanctions committees often take decisions based on rules or precedents, thus in a more consistent and predictable manner. Looking back, David Malone asserted that:
[t]he evolution of the Security Council’s role on Iraq points to one significant shift – from a mainly politico-military approach to international peace and security to a greater reliance on a legal-regulatory approach. In its legal-regulatory approach, the Council establishes detailed rules governing the behavior of states or other entities and devolves power to implement and monitor those rules to administrative delegates.
(Malone and Chitalkar 2016, p. 557, also Malone 2006)
Paul Conlon further affirmed that “[d]elegates frequently asked the secretariat for information on previous practice, precedents and similar cases in the past. Occasionally delegates consented to decisions they had originally opposed in order not to upset previously established patterns and practices” (Conlon 1996b, p. 280). Former Yugoslavia Committee delegates asserted that “(…) the record (sic.) of the Sanctions Committee’s deliberations are full of references to previous cases which the Committee Members considered to constitute precedent (…)” (Scharf and Dorosin 1993, pp. 823–824). Other Council diplomats and close observers have made similar comments (van Walsum 2004; Koskenniemi 1991). How can we grasp the phenomenon that Security Council sanctions committees tend to take decisions in accordance with rules and precedents, although the same powerful member states are known to follow purely political interests in the Council chamber?
Sanctions form one of the few tools at the Security Council’s disposal to maintain international peace and security below the level of military enforcement action. They are frequently imposed as a substitute for the use of force, alongside enforcement and peacekeeping, or as a first step which may ultimately lead to military intervention. While there were only 2 sanctions regimes during the Cold War, thereafter the Security Council has created almost 30 (Farrall 2007). Over the years, the Council has been most inventive in designing different sanctions measures. While relying on comprehensive trade embargoes as a means of coercing behavioral change in Iraq, Yugoslavia and Haiti, the extreme humanitarian consequences resulting from these types of sanctions subsequently led the Council to impose measures on specific individuals and entities, often referred to as “smart sanctions” because they are supposed to target those directly responsible for transgressions (Brzoska 2003). The Council has applied sanctions in a variety of situations, for instance to prevent Al-Qaida and ISIL terrorist activities as well as nuclear weapons programs in Iran and North Korea, to resolve internal armed conflicts in the Congo, and to avert gross human rights violations in Libya (Biersteker et al. 2016a).
For an organization steeped in great power politics and dealing with often contested issues of preserving world peace, Security Council sanctions regimes exhibit a remarkable design for implementing a variety of sanctions measures. Since the first sanctions regime, committees have been created that mirror Council membership and decide on the implementation of sanctions by consensus. It was intended that the Council should be relieved of dealing with all questions considered too detailed and technical, while at the same time having a machinery ready to take on these issues at a later stage (Sievers and Daws 2014, pp. 519–543). Hence, sanctions regimes, although they are temporary arrangements, require significant regulatory decision-making, often over extended periods of time. Effectively, the Council detached broader political questions on why, when, how, how long and when to lift sanctions on a target state or target group from many small, technical follow-up questions: Who should be added to a sanctions list? Who should be removed from such a list and under which circumstances? Can a sanctioned individual travel to receive medical treatment? Which items have “dual-use” potential for a nuclear weapons program? What will be the response to a reported sanctions violation? Notably, such issues were already being faced in the first post-Cold War sanctions case on Iraq: “Were beer or cigarettes foodstuffs? Could surgical clamps be deemed supplies intended strictly for medical purposes? Could an Iraqi diplomat sell his car before returning home?” (Conlon 2000, p. 45). In essence, the overall impact of Council sanctions regimes depends on a plethora of small decisions taken in committees, while each such decision in isolation has quite limited impact. However, in high politics, member states, particularly the powerful permanent members, bargain hard over these decisions, which are politically sensitive and often controversial.
Despite the frequently observed implications of committee governance, the scholarly literature lacks a convincing account dealing with its effects in the Security Council. Accordingly, in this book I present a theoretical argument that explains why and how the transfer of decisions from Council to committee systematically pushes states toward a form of rule-based governance, even though the same group of states takes all relevant decisions. I explore why states are incentivized to align their decision proposals with pre-defined rules, and investigate the effects of committee governance with empirical evidence from the Council’s Iraq, Al-Qaida/Taliban, Democratic Republic of the Congo, Sudan and Iran sanctions regimes. Using in-depth case studies, I highlight the consequences of delegating tasks to a committee, even among the same group of states. While each of the case studies is revealing in its own right, a structured comparison facilitates the drawing of conclusions beyond each case’s particularities.
The Security Council presents a demanding case for a theory of committee governance in international organizations (IO). It is an almost purely intergovernmental organization whose secretariat has little or no influence over its decisions. Dominating the Council are the five great powers that serve as permanent members with rights of veto and often conflicting agendas. These great powers are well-resourced and hold comparatively high stakes in security matters. The Council’s purview of maintaining international peace and security is often regarded as being least prone to institutionalized cooperation. Hence, the member states seek to remain in full control of all its decisions (including those taken in committees). Furthermore, the scholarly literature presents rather statist, obvious, and widely-shared alternative explanations for Council decision-making (Bosco 2009). Accordingly, finding that sanctions committee members use rules and precedents to guide their behavior would strongly support the theoretical claim, even though these members have strong incentives to avoid the implications of such rules and precedents.
This book provides a rare systematic and comparative analysis of decision-making within Council sanctions regimes that exceeds the prevailing case studies of single sanctions regimes. I find substantial evidence that delegation to committees commits even the great powers to a form of rule-based sanctions governance, while the Sudan sanctions regime demonstrates its limitations. Although findings from the five case studies cannot be broadly generalized, the theoretical concept explicates the fundamental sources of a development that practitioners have suspected since the first post-Cold War sanctions regime. This book also contributes to intellectual debate about International Relations (IR). Despite contention regarding Council sanctions, member states have developed a remarkable governance system that may produce consistent and rule-based decisions founded on abstract criteria and evidence that one would not expect to witness in a “high politics” setting. Such delegation of regulatory tasks to consensus-based “committees of the whole” is a prevalent feature in international politics. Should these effects hold true for the Security Council, this institutional design would be a means of credibly committing IOs’ member states to rule-based decision-making without losing their discretion to adopt explicit political decisions or even delegate decisions to an autonomous secretariat, court or regulatory network.
The argument: How committee governance triggers rule-based politics
I look at committee governance within the Security Council by exploring how divided labor among different member state bodies, the Council, and its committee affects their decision-making. Drawing from existing rational institutionalist accounts of international organizations in IR, I develop a theory that explains why, how and under which conditions the transfer of decisions to sanctions committees might drive the same member states toward rule-based governance. I regard rule-based politics as decision-making on separate implementation issues that follow formal rules, informal rules or precedents, even when those outcomes contradict the interests of powerful committee members. At the outset, I outline a concept of IOs that identifies their most basic function by continually adopting collective decisions for their members. IOs, including the Security Council, affect collective decision-making insofar as they structure negotiations. A group of self-interested states in the Security Council, which refers tasks to a committee, will, therefore, create an entirely different setting in both the Council and the committee, even if the same group of states decides on all issues.
The core argument developed throughout this book revolves around the idea that Council members profoundly affect decision-making if they separate broader political questions from many follow-up decisions of a similar nature. Typically, the Council splits a sanctions regime into two stages. In a first the Council defines certain criteria; for instance, what kind of behavior merits sanctions. In a subsequent stage the committee then decides about many follow-up issues, which may for instance concern specific individuals to be added to a sanctions list in view of these criteria. This form of regulatory politics is quite different from the usual Council decision-making, where its members link many different issues into complex Council resolutions.
I argue that Council members create an incomplete contract if they entrust implementation decisions to a committee. In such a case the Council members are immediately relieved from taking all necessary decisions and postpone technical implementation to a later committee stage. Instead, Council members define a broader framework according to which follow-up sanctions decisions are taken in committee. This might include a more or less specific committee mandate, together with decision criteria or procedures. However, negotiating an incomplete contract submits the Council members to certain constraints. Whereas a complete contract allows for trading-off different issues, Council members now focus on negotiating rules that promise to ensure acceptable outcomes on many future follow-up decisions at committee stage. Even though Council members might favor certain committee decisions over others, each member has to aggregate interests on a whole range of potential future request into a general rule. I argue that states take interest in adopting rules that promise to result in widely acceptable solutions on many follow-up decisions across time. Designing general rules will be particularly constraining when states prefer different cases and moreover are uncertain about their nature in the future.
Why should Security Council members tend toward rule-based politics and accept certain unfavorable decisions when deciding within a committee? At committee stage, the same group of Council members decides about many small, separate and technical implementation decisions, for instance about concrete proposals for adding individuals to a sanctions list. While Council members would certainly prefer to uphold the division of labor between Council and committee, they have established to relieve the Council from taking all these decisions, member state compliance with rules can hardly be enforced. If committee members deal with many such decisions at different points in time, they cannot be linked to package deals. Yet, states will not always agree on substance. A committee member clearly cannot simply reject every unfavorable request because other committee members would do the same. Committee members have to consider each proposal in ways that are acceptable even for those who dislike the outcome. In other words, some committee members must compromise, while others will prevail. By contrast, arm-twisting over single implementation requests in a consensus-based committee almost inevitably leads to a deadlock. This resembles a situation in which states advocate different solutions but prefer coordination in principle because non-coordination presents an unattractive alternative, given that without implementation sanctions can obviously not take effect. These situations create the demand for focal points (Schelling 1960).
Committee members have two potential sources of focal points to arrive at a coordinated solution in the committee stage. Primarily, existing Council rules present themselves as a solution. In the event of the Council determining a particular set of criteria, rules, and procedures, states in the committee stage take an interest in adopting these as a benchmark for their decision-making. Instead of a choice between solutions favored by different member states, members now have a choice between following or violating existing rules. Hence, rules favor those preferring a rule-conforming solution. Even powerful members are likely to follow existing rules, therefore, despite some who might dislike one specific decision, because above all rule adherence is better than stalemate. Accordingly, committee members are likely to follow existing rules not because they are unbiased, just or equally preferred by all members, but due to such rules providing solutions to regulatory problems. However, committee members can also adopt their own self-regulating rules under the same constraints of making generalized rules applicable to many future cases.
Alternatively, should there be no suitable rules, committee members can resort to informal rules in the form of precedents. Basing decisions on similar but earlier accepted or rejected proposals offers convenient solutions to coordination issues that would otherwise lead to stalemate. An earlier decision – regardless of how it came about – will inevitably provide a benchmark for later decisions of a similar kind because it reflects a collective choice having been made. Its members will find difficulty in selecting a more widely acceptable alternative over the precedent. Repeatedly accepted precedents are likely to create a committee practice. As with rules, an established precedent creates collective expectations in differentiating between acceptable and unacceptable proposals. The mechanism is quite powerful, as those members who have sacrificed their preferred solutions in favor of committee compromise will insist that others, who face unfavorable choices, should also adhere to accepted practice.
This logic explains why Council members, who delegate decisions to themselves in a later committee stage, will tend to follow rule-based governance in committee. With an alternative to committee deadlock in mind, member states may instead favor unwanted outcomes, because this preserves the sanctions regime’s functioning. Overall, the concept of committee governance reveals that delegating decisions to a committee generates fundamentally different incentives for a group of states. In fact, egoistic states can accept a rule-conforming decision, even if it is not their preferred solution, as long as they prefer agreement over stalemate. The logic of committee governance also accounts for why states pursue rule-based sanctions governance, even though they initially might prefer individual flexibility over binding rules.
Let me extend the limits of this argument. My claim is not that committee governance is dissociated from power. To the contrary, sanctions regimes are a result of great power interests, which is reflected in the design of a sanctions regime. Neither are Council rules devoid of power nor necessarily fair or justifiable. Instead, my claim is that committee governance comes with constraints that even powerful members cannot escape if they delegate tasks to a committee. In reality, rules become a means of power. Hence, the Council and committee framework’s institutional constraints shape, but do not rule out the exercise of power in single cases. Additionally, I focus on instances where streams of decisions, for instance the listing of individuals subjected to targeted sanctions, are referred to a committee because the committee governance thesis is to do with rules that apply to a broader range of cases. While these implementation decisions take up a large share of committees’ workloads, I would also expect to find that the great powers completely dominate larger, important and less-regularized decisions, such as appointing Panels of Experts which advise the sanctions committees.
I compare my concept of committee governance with a traditional model of power politics (Voeten 2005), where Council members negotiate about all relevant aspects of a sanctions regime without recourse to a committee stage. In this model, Council members would negotiate a complete contract. In the absence of a committee system, I expect them to trade-off certain elements of a sanctions regime against each other, for instance different sanctions measures together with a list of targets, and bundle them into larger package resolutions. In this case, the Council members are likely to use all available means of institutional and material power (Schneider 2011) to achieve a political compromise closest to their preferred policies (Dreher et al. 2015; Carter and Stone 2015). Members allot potential cooperation gains based on how powerful each of them is. In other words, decisions are set to reflect the veto powers’ will. Without a committee stage, I expect to find that Council members will have no interest in decisions that follow abstract rules which run counter to their preferred policies unless they receive something in return from other members. Conversely, adherence to rules would be less relevant for Council members. The Council has been established as a political body wi...
