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1 Introduction
The UN Security Council and individuals are primarily âdistancedâ by the presence of member states that intermediate between the international commands and those individuals subject to member statesâ domestic law. Nevertheless, this âdistanceâ has been modified from the early stage of the UN and especially since the 1990s. This book analyses how the change in distance over time alters the role of domestic law and ultimately modifies international normative standards regulating the UN Security Councilâs exercise of authority. This introductory chapter aims at visually presenting three groups of the practices which guide the reminder of the book.
At every moment of its life, law may be placed in non-identical social settings in which facts and values undergo constant alterations in one way or another. Many of those daily vicissitudes do not seriously disturb law or institutions that apply it, as both the legal terms and the discretion accorded to those institutions are often broad enough to allow the law to be adapted to the altered settings. As a result of incremental accommodation of new settings into their own sphere of application, however, law and institutions may be situated in a context in which they claim authority against not only those who were originally envisaged by the drafters, but a variety of new categories of actors which would likely invoke new agendas about how the law ought to be designed and applied against them. Lawâs encounter with the demands of new constituencies often necessitates legal reforms in order not to lose the lawâs regulatory relevance within the context in which it resides.1
Constituent instruments of international organisations2 are agreements between states concluded with a view to achieving the purposes with which the states are commonly concerned but for which they themselves are not best qualified to serve. The maintenance of international peace and security is one of such purposes, for the achievement of which states concluded the Charter of the United Nations (UN) and constituted the organisation with its peace and security arm which was expected to exert unique political weight and legal authority. Just as with any other laws and institutions, the facts and values which constitute international peace and security undergo constant alterations. Studying how the UNâs peace and security organ has applied the UN Charter and absorbed new settings into its own sphere of work highlights how the laws and institutions which maintain international peace and security sustain themselves in a constantly evolving international society.
With the utmost concern âto save succeeding generations from the scourge of warâ,3 the UN Security Council was created in 1945 by the inter-state treaty of the UN Charter which was drafted and signed by some 50 states called upon to gather in San Francisco from April to June of that year with the predominant assumption that they would this time create a robust international peace and security organ against aggressor governments. The draftersâ assumption was shaped by the historical genesis of the UN as an outcome of World War II, which epitomises the bitter past of the first collective security institution established under the Covenant of the League of Nations. The original draftersâ historically embedded preoccupation is best captured by the above-quoted first paragraph of the preamble to the Charter, namely, âto save succeeding generations from the scourge of warâ.4 After many decades since the Charter was created, and in a world in which non-inter-state armed conflicts are commonplace, it is not an easy task for us to imagine the state-centric assumption that shaped the wording of the UN Charter. Yet it is still important to remember that the term âwarâ here was predominantly understood to refer to âinter-stateâ war (as opposed to intra-state war), which was then considered serious enough to threaten âinternationalâ peace and security and to bestow upon the UN Security Council the unprecedented authority to take measures which collectively coerce aggressor governments with the powers accorded under Chapter VII of the UN Charter.
Under the UN Charter, the UN Security Councilâs authority is constituted by the organâs âfunctions and powersâ as laid down in Articles 24â26 of the UN Charter. The Councilâs âfunctionâ is the maintenance of international peace and security, and its specific âpowersâ are provided in Chapters VI, VII, VIII, and XII of the UN Charter. Due to the historical preoccupation of the drafters, it is not surprising that the UN Security Councilâs functions and powers were designed in relation to the rights and interests of states â and not those of individuals. Nevertheless, from the early stage of its life, the Security Councilâs exercise of authority for the purpose of maintaining international peace and security has impacted on the rights of individuals not only in an indirect and consequential manner but also in a way that allows member states to have little discretion over individuals under their jurisdiction. Especially since the 1990s, the UN Security Councilâs exercise of authority has had significant impact on the rights of individuals; illustrative are the practices of targeted sanctions, territorial administrations, and ad hoc international criminal tribunals.
This book is guided by these intriguing phenomena â that the UN Security Council and its subsidiary organs have been exercising their authority over individuals by restricting, or effectively removing, the discretion of member states over such individuals. This is intriguing, precisely because, on the one hand, the rights, obligations, and interests of those individuals are primarily safeguarded by domestic law, while, on the other hand, the Security Councilâs exercise of authority is governed by international law. This has led me to examine how the UN Security Councilâs exercise of authority has been received at the domestic level, and what would be the international implications of the Security Councilâs extensive encounter for the actors which primarily reside in a domestic legal order.
In analysing both domestic and international implications of the Security Councilâs exercise of authority, this book employs the concept of âdistanceâ in order to capture the changes in the Security Councilâs exercise of authority and in the normative frameworks governing it. The distance analysed in this book concerns the one between the UN Security Councilâs exercise of authority to maintain âinternationalâ peace and security on the one hand, and affected individuals which are primarily governed by domestic law on the other hand.
Traditionally, the UN Security Council and those individuals had been âdistancedâ by the presence of member states that âintermediateâ between the Security Councilâs international commands and those individuals that are subject to their domestic law. If the decisions of the Security Council have implications over domestic actors, the Councilâs authority and domestic actors were âintermediatedâ by member states, which would translate the organâs international commands into their domestic law that should determine the rights and obligations of their subjects. In other words, the presence of member states was to connect the international and domestic legal orders, and thereby the residents in these two different legal orders. (I indicated this traditional model as [1] in Figure 1 regarding the distance between the Council and domestic actors.)
Figure 1 Distance between the UN Security Council and domestic actors
The âintermediaryâ presence of member states (as illustrated in [1] in Figure 1) is of crucial importance for member states, affected individuals, and the UN Security Council itself. Member states can implement international institutional decisions in such a way that they fit in with their own domestic law and politics. The affected individuals can contest the decisions of the national government which retains discretion. The intermediary presence of member states also protects the UN Security Council from being challenged by states and affected individuals. In other words, the fact that the UN Security Council and individuals are distanced by member statesâ intermediary presence provided governments, individuals, and the UN Security Council with a legal and political safeguard or shield.
Nevertheless, the UN Security Councilâs exercise of authority has incrementally removed the presence of state intermediaries and reduced the Councilâs âdistanceâ from individuals. The Security Council has been directly addressing individuals under its resolutions, including those adopted under Chapter VII. (I indicated this scenario as [2] in Figure 1.) The Security Council has also instigated a number of economic sanctions under Article 41 of the UN Charter against specific individuals and entities, either as the overall strategic target of sanctions regimes, or more often as the specific targets of restrictive measures. (This scenario is indicated as [3] in Figure 1.) Finally, the Security Council, through its subsidiary organs, has directly executed its decisions vis-Ă -vis individuals and entities. UN transitional territorial administrations and ad hoc international criminal tribunals are cases in point. (This scenario is shown as [4] in Figure 1.)
The central argument of the book is that the Security Councilâs exercise of authority against individuals, who are primarily the subjects of domestic law, has situated the Security Councilâs decision making in a new normative context, in which its exercise of authority would have to be justified according to new normative standards. The exercise of authority against individuals has not only tested the Councilâs exercise of authority against legality yardsticks, but also exposed it to wider normative standards developed through interactions with domestic law. Traditionally, the presence of such âstate intermediariesâ served the legitimacy of the UN Security Councilâs exercise of authority. Yet the incremental removal of state intermediaries situated the Security Councilâs exercise of authority in the context in which individuals and domestic law concerning them play a greater role in developing normative standards for the UN Security Councilâs exercise of authority.
The Security Councilâs exercise of authority over individuals has encouraged the affected individuals and entities to contest, directly or indirectly, the UNâs international institutional decisions in the domestic legal order. (This scenario is indicated as [5] in Figure 1.) Domestic contestations, accompanied by other contestations raised by member states and the wider international community, incrementally urged the Security Council and its subsidiary organs to accommodate some of the norms accepted at the national level which have been developed for the regulation of governmental authority. The Security Council and its subsidiary organs increasingly justify their exercise of authority not only in terms of state consent and member statesâ interests but also in terms of the interests and rights of domestic actors affected by international institutional decisions. (This aspect is indicated as [6] in Figure 1.)
While there are a number of actors subject to domestic law, this bookâs main focus is on individuals. To focus on individuals as the primary subjects of domestic law allows us to identify the tension between the national and international legal orders with respect to the Security Councilâs exercise of authority. While individuals still enjoy various international rights, especially those under human rights treaties, this does not alter the fact that the legal order which regulates the individualsâ acts in an immediate sense is domestic law, and not international law.
It is not within the primary focus of this book to analyse, for instance, the UN Security Councilâs exercise of authority against terrorist groups and other non-state armed groups which, almost by definition, refuse to subject themselves to their stateâs domestic law.5 The acts of these groups often justify the Security Councilâs exercise of authority against specific individuals, but separate analysis is required in order to analyse the relationships between the UNâs collective security and non-state armed groups.6 Nor does the book analyse the impact of the UN Security Councilâs decision making on other UN organs and other international organisations. While international organisations have domestic legal personality and are subject to certain domestic laws of the territorial states in which they conduct their activities,7 the legal order which generally governs their acts is international law, notably their constituent instruments, their decisions,8 and the rules of international law commonly applicable to international organisations.9
Extensive studies have already been conducted on Kadi and other judicial contestations at the national and EU levels against the UNâs targeted sanctions.10 This book nevertheless contextualises the case of targeted sanctions in the broader trend of the Security Councilâs exercise of authority over individuals. It does so by comparing the practice of targeting sanctions (illustrated as [3] in Figure 1) with two other groups of practices: namely, the Security Councilâs practices to issue demands to individuals (indicated as [2] in Figure 1) and the practices to directly execute institutional decisions against domestic actors (indicated as [4] in Figure 1). This book analyses how differences in distance among these three scenarios (indicated as [2]â[4] in Figure 1) affect the ways in which domestic actors contest the UN Security Councilâs decisions and ultimately develop international normative standards governing the Security Councilâs exercise of authority.
The rest of the book is structured in seven chapters. It starts by overviewing the historical path leading to the UN Security Councilâs practice by assessing the distance between the League of Nationsâ authority and domestic actors in the area of international peace and security (chapter 2). It then elaborates on the notion of âthreats to the peaceâ as a conceptual vehicle to connect the UN Security Councilâs Chapter VII authority with domestic actors (chapter 3), and analyses how such conceptual proximity has been translated into the concrete measures of the Security Council and its subsidiary organs under Chapter VII of the UN Charter (chapter 4). It moves on to examine international legal frameworks regulating the Security Councilâs exercise of authority vis-Ă -vis domestic actors through the interpretation of treaties and the analysis of practices relating to it (chapters 5â6). The analysis of international legal frameworks leads me to consider the domestic reception of the decisions of the UN Security Council and its subsidiary organs (chapter 7). The study of the domestic reception brings me to consider its international implications by highlighting the roles of domestic actors and domestic law in the process of developing legitimacy standards for the UN Security Councilâs exercise of authority (chapter 8 and conclusion).
1 In this book, a âconstituencyâ is understood as a group of individuals and entities over which law or an institution claims authority.
2 In this book, an âinternational organisationâ means an intergovernmental organisation establish...
