The Rule of Law in the United Nations Security Council Decision-Making Process

Turning the Focus Inwards

Sherif Elgebeily

• Publisher: Routledge
• Year: 2017
• Topic: Law
• eBook ISBN:
  9781315413433
• Subtopic: International Law
• Index: Law

The UN Security Council is entrusted under the UN Charter with primary responsibility for the maintenance and restoration of the international peace; it is the only body with the power to authorise military intervention legally and impose international sanctions where it decides. However, its decision-making process has hitherto been obscure and allegations of political bias have been made against the Security Council in its responses to potential international threats. Despite the rule of law featuring on the Security Council's agenda for over a decade and a UN General Assembly declaration in 2012 establishing that the rule of law should apply internally to the UN, the Security Council has yet to formulate or incorporate a rule of law framework that would govern its decision-making process.

This book explains the necessity of a rule of law framework for the Security Council before analysing existing literature and UN documents on the domestic and international rule of law in search of concepts suitable for transposition to the arena of the Security Council. It emerges with eight core components, which form a bespoke rule of law framework for the Security Council. Against this framework, the Security Council's decision-making process since the end of the Cold War is meticulously evaluated, illustrating explicitly where and how the rule of law has been undermined or neglected in its behaviour. Ultimately, the book concludes that the Security Council and other bodies are unwilling or unable adequately to regulate the decision-making process against a suitable rule of law framework, and argues that there exists a need for the external regulation of Council practice and judicial review of its decisions.

Part I
Defining the rule of law for the Security Council: how, why and what?

1
Yoking the giant Pantagruel: why the Security Council needs a rule of law

[V]oicy sorty Pantagruel, tout velu comme un ours, dont dict une d’elles en esprit prophétique: ‘Il est né à tout le poils, il fera des merveilleuses, et, s’il vit, il aura de l’eage’.¹

Introduction

Why should the Security Council be subject to a rule of law? Why should the Security Council – a political body – even be held subject to the rule of law? To what extent should it be held accountable for its actions? This chapter examines these research questions and focuses on four core reasons why the establishment of such a framework for the Council’s work is essential. The notion that the Council ‘cannot be subject to the rule of law in any meaningful way’² is antiquated; such a theory predates the 2012 declaration bringing the Council under the scrutiny of rule of law elements. This declaration by the General Assembly has made it clear that the rule of law can and must form part of the working practices of the Security Council; the existence and need for implementation of an international rule of law for the Security Council is no longer debatable nor, indeed, is it necessary intricately to examine the reasons and arguments for and against such a rule of law. Nonetheless, it would be prudent to identify four clear arguments favouring a rule of law for the Security Council to determine objectively the importance of this book’s scope and content.

Why is the rule of law necessary for the Security Council?

We remain convinced that the best way for the Security Council to promote international law and the rule of law is to lead by example. We challenge the view—and, to some extent, the conventional wisdom—that regards the Council as a purely political body. Its authority is based on the world’s supreme international treaty, the United Nations Charter. The Council is legally bound by the applicable rules of the Charter and of international law. Those rules leave the Council much room to take decisions based on political, legal and other considerations—but that room is not without limits. It is both a legal necessity and a wise policy choice for the Council to respect and promote international law and the rule of law.³

The limited composition of the Security Council

Although the Council consists of only 15 members,⁴ originally 11, it is tasked with acting on behalf of them all⁵ – these members represent 193 states, each with its own respective government, political agenda and interests. Without doubt, frequently the interests of states are aligned and cooperation is assured; however, the Security Council was created as maintainer of international peace and security. Given that the UN Charter provides that ‘[t]he Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America shall be permanent members of the Security Council’⁶ (P5), one can infer that their interests and the interests of those aligned to them will be perpetually represented on the Council. But selected interests and topics of discussion and debate will not suffice for a body that purports to truly represent all states; the question then arises-how does the Security Council ensure that it is truly representative as it was created to be? Given the low ratio of Council members to UN member states, a rule of law would ensure that its procedures and decisions are more representative of the general will of the UN member states, as it was arguably envisioned in the Charter.⁷

The decision-making process and use of the veto

The manner, too, in which decisions are reached should also be noted: ‘[d]ecisions of the Security Council on [non-procedural] matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members’.⁸ This is the clause upon which the power of veto,⁹ held by the P5 members, is built; in essence, all non-procedural matters are conditioned on the non-opposition¹⁰ of all P5 members. Thus, no Chapter VII resolution emerges from the Security Council without at least P5 acquiescence, and it is not difficult to imagine, given this power, how self-serving political agendas can rapidly colour the decision-making process in order to protect the P5 members and their allies from the far-reaching jurisdiction of the Council. This was an issue raised by both the Ecuadorian and Venezuelan delegates at San Francisco in 1945, who were concerned that the Charter ‘contains such a broad delegation of the powers of the [United Nations] to the Security Council that it appears practically inacceptable …’.¹¹ Stretching beyond the previous point on the representative nature of the Council, and taking into consideration the inherent bias attributed to the veto power given to the P5, the question here, then, is how does the Security Council ensure that its decisions are free of improperly biased agenda?¹²

The extended competence of the Council

The scope of Security Council jurisdiction has expanded far beyond that initially envisioned at the time of its creation-issues that have been deemed to pose a threat to the international peace and security such as the AIDS epidemic in Africa¹³, climate change¹⁴ and women in conflict¹⁵ have slowly crept into the remit of the Security Council’s Chapter VII powers during the last 60 years. While these are all valid issues in their own rights, the question must be whether they were originally envisioned in the minds of drafters when granting the Council such all-pervasive control. As Palau’s Permanent Representative to the UN noted, ‘the Council may employ “such action … as may be necessary to maintain or restore” [international peace and security]. Such constitutional carte blanche, as well as the Council’s increasing invocation of Chapter VII to justify quasi-legislative and quasi-judicial actions, gives cause for concern to detractors wary of an unrepresentative Council whose powers continue to broaden in scope faster than do corresponding guarantors of accountability and legitimacy’.¹⁶ Indeed, as the representative from Brazil argued at the establishment of the ICTY:

[i]t is precisely because the Council exercises a delegated responsibility in a field as politically sensitive as the maintenance of international peace and security that the task of interpreting its competences calls for extreme caution, in particular when invoking language of Chapter VII of the Charter … [T]he definition of such powers must be construed strictly on the basis of the text of the relevant Charter provisions. To go beyond that would be legally inconsistent and politically unwise.

Joyner comments on the expansion of both the scope and quality of the expansion of Security Council powers, stating that the Council now believes that it

is empowered not only to act as an executive body, but rather also to act as a legislative body crafting proactive and permanent legal edicts covering important areas of international relations including terrorism (UNSC Resolution 1373) and weapons of mass destruction proliferation (UNSC Resolution 1540) and even further to act as a judicial body determining the legal rights and obligations of UN members (UNSC Resolutions 1874 and 1929).¹⁷

This is in direct correlation to the fears of Ecuador at San Francisco, who wished to ‘forbid the Council – as the Inter-American Juridical Committee has wisely suggested – to establish or modify principles or rules of law’¹⁸ and which submitted an amendment to this effect,¹⁹ unsuccessful though it may have been.

The legally binding nature of Council resolutions

Membership to the United Nations obliges all states to ‘agree to accept and carry out the decisions of the Security Council in accordance with the [UN] Charter’.²⁰ At times, these decisions are even to be imposed on non-Members, since the UN is also charged with ensuring that ‘states which are not members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security’.²¹ This effectively brings non-member states under the jurisdiction and control of the Security Council and its decisions. The debate over what constitutes a legally-binding decision of the Security Council as opposed to an advisory opinion or non-binding resolution is one that has been entered into by other authors²² and which I will not enter into at length, but which, owing to the integral necessity for a legally binding resolution to exist in order for there to be a rule of law, a brief encounter with arguments for and against the binding nature of Council resolutions is required.

Briefly, the parameters of a legally binding resolution have been argued to be not necessarily analogous with any resolution adopted under Chapter VII of the UN Charter; that is to say, there are some resolutions the obeisance to which is paramount, whereas other resolutions might tolerate less compliant behaviour. There appear to be clear examples of situations where Council action is not legally binding; for example, under article 26 of the UN Charter, the Council has the authority to formulate plans ‘for the establishment of a system for the regulation of armaments’²³ with the goal of ‘the establishment and maintenance of international peace and security with the least diversion for armaments of the world’s human and economic resources’.²⁴ However, both Joyner and Kelsen observed that: ‘[m]embers may … choose either to accept or reject these plans’²⁵ and that such plans ‘are binding upon the members only if accepted by them … Article 26 does not provide expressly for the “adoption” of the plan by the members …’.²⁶ Nonetheless, while both Chapters VI and VII relate to the Council’s responsibilities with respect to international peace and security, some scholars argue that it is only Chapter VII that allows the Council to pass legally binding resolutions.²⁷ In its Namibia,²⁸ the ICJ suggested that Article 25 of the UN Charter²⁹ was an obligation that should be carried through on all Security Council when it stated that,

Article 25 is not confined to decisions in regard to enforcement action but applies to ‘the decisions of the Security Council’ adopted in accordance with the Charter. Moreover, that Article is placed, not in Chapter VII, but immediately after Article 24 in that part of the Charter which deals with the functions and powers of the Security Council. If Article 25 had reference solely to decisions of the Security Council concerning enforcement action under Articles 41 and 42 of the Charter, that is to say, if it were only such decisions which had binding effect, then Article 25 would be superfluous, since this effect is secured by Articles 48 and 49 of the Charter.³⁰

The debate rages on the exact definition of a legally-binding resolution and where obligations of compliance cease for states. However, one point upon which almost all parties appear to agree is that the...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Acknowledgements
• Definitions and abbreviations
• Introduction
• PART I Defining the rule of law for the Security Council: how, why and what?
• PART II Exploring the components of the rule of law
• Final conclusions
• Index