The Security Council as Global Legislator

Vesselin Popovski, Trudy Fraser, Vesselin Popovski, Trudy Fraser

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317802242
• Edition: 1
• Topic: Politica e relazioni internazionali
• Subtopic: Politica

Security Council resolutions have undergone an important evolution over the last two decades. While continuing its traditional role of determining state-specific threats to peace and engaging accordingly in various peaceful or coercive measures, the Security Council has also adopted resolutions that have effectively imposed legal obligations on all United Nations member states.

This book seeks to move away from the discussions of whether the Security Council – in the current composition and working methods – is representative, capable or productive. Rather it assesses whether legislative activity by the Security Council can be beneficial to international peace and security. The authors examine and critique the capacities of the Security Council to address thematic international threats - such as terrorism, weapons proliferations, targeting of civilians, recruitment of child soldiers, piracy – as an alternative to the traditional model of addressing country-specific situations on a case-by-case basis. Ultimately, the book seeks to assess the efficacy of the Security Council as global legislator in terms of complementing the Security Council's mandate for the maintenance of international peace and security with a preventative and norm-setting capacity.

The book presents views from a diverse range of Security Council stakeholders including academic scholars, political analysts, and international lawyers. This resource will be of great interest to students of international relations, international organizations and international security studies alike.

1 The legislative role of the Security Council's thematic resolutions

Vesselin Popovski

DOI: 10.4324/9781315813677-1

• Security Council resolutions and international law
• Constitutional roles and the limits of Security Council powers
• Summing up

Since the end of the Cold War the number of resolutions produced by the Security Council has skyrocketed. When Iraq invaded Kuwait on 2 August 1990 the Security Council adopted its 660th resolution since its inception in 1945. Over the next decade (1990–2000), the number of Security Council resolutions doubled to 1,320, and then tripled to 2,000 resolutions by July 2011. A non-permanent member of the Security Council from 1 January 1993 till 31 December 1994 would have played a role in writing 170 resolutions—a number that would have previously accounted for a decade’s worth of UN resolution activity. In addition to an increased volume of resolutions, the Security Council has also made a qualitative shift towards addressing generic threats to international peace and security. Though the Council continues to address and respond to many country-specific situations it has also, in parallel, begun to consider major global problems—such as terrorism, proliferation of weapons of mass destruction (WMD), protection of civilians, recruitment of child soldiers, illegal arms smuggling—that compel behavioral changes beyond the specific actors to a crisis. In addition to country-specific resolutions, the Security Council introduced thematic resolutions addressing these global problems and imposing obligations on all UN member states.

The first examples of this evolution are evident in resolution 1261 on the protection of children in armed conflict, resolution 1265 on the protection of civilians, and resolution 1269 on counter-terrorism, adopted in 1999. These resolutions were precedent-setting insomuch as they shifted focus away from addressing country-specific threats towards approaching global problems in their entirety. For example, in resolution 1269 the Security Council, expressed deep concern “by the increase in acts of international terrorism which endangers the lives and well-being of individuals worldwide as well as the peace and security of all States” and condemned “all acts of terrorism, irrespective of motive, wherever and by whomever committed.” This marked a definitive shift away from country specifism. The resolution called upon all member states “to cooperate with each other through bilateral and multilateral agreements and arrangements, to prevent and suppress terrorist acts, protect their nationals and other persons against terrorist attacks, bring to justice the perpetrators of such acts and prevent and suppress in their territories through all lawful means the preparation and financing of any acts of terrorism.”

With resolution 1373, the Security Council created a comprehensive global counter-terrorism regime, reinforced with the establishment of a committee (later to become institutionalized as a UN body) to monitor states’ compliance and to assist states in their implementation of the resolution. Interestingly in this case, the Security Council not only developed the implementation of international law, but also urged states to undertake domestic legislative changes in order to be in full compliance with the counter-terrorist resolutions. Resolution 1373 was strongly impacted by the terrorist attacks against the United States on 11 September 2001 (9/11). However, there has been a move towards thematic resolutions being written without any specific reference to a trigger event or crisis. Resolution 1540 not only developed the implementation of international law, but also legislated a new global legal regime on non-proliferation and non-state actors, requiring all states— regardless of their status under the Non-Proliferation Treaty (NPT)— to comply with the resolution, undertaking where necessary domestic legislative changes. Resolution 1540 also established a committee—a subsidiary body of the Security Council, composed of the fifteen members of the Council—to monitor the implementation and in the process to engage in various types of outreach and assistance activities to facilitate states’ implementation of the resolution.

Country-specific resolutions can set the ground for an eventual global regime that grows beyond the initial country-specific parameters established in the founding resolution. For instance, resolution 687, known as the ‘mother of all resolutions’, was initially established against one country—Iraq—but essentially also laid the foundations of a comprehensive disarmament, sanctions, and inspections regime that was later developed as a model for other situations.

The emergence of legislative behavior by the Security Council represents a significant shift in the Security Council’s strategy to maintain international peace and security. The Security Council’s role has traditionally been limited to addressing only country-specific situations that threatened international peace and security, and consequently the council largely imposed mitigating measures towards specific government or governments, or other non-state actors, that so endangered international peace and security. In comparison, the newly developed thematic resolutions address global generic threats to international peace and security and urge all countries to adopt measures to combat those threats, no matter where in the world these threats emerge from or currently exist.

It is still to be seen whether and how the accumulation in volume of thematic resolutions may affect international peace and security. For example, does the existence of a volume of thematic resolutions build a strong foundation for the Security Council or member states to build a case towards addressing particular country situations? There are signals that such a synergy might already exist—indeed, there are already numerous cases where country-specific resolutions make reference to thematic resolutions in their preambulatory clauses—but questions remain as to the benefit of such in allowing robust and timely action in country-specific cases. It is surely harder to impose a veto, arguing against country-specific behavior constituting a threat to international peace and security when there is ready a volume of thematic resolutions condemning the same practice as a threat to international peace and security. In situations where the veto paralyses Security Council action on a country-specific threat to international peace and security, is there the potential that the development of a generic thematic body of law and the practice of dealing with generic threats will result in an accumulated generic authority on the part of the Security Council? To illustrate, the Security Council has already developed thematic counter-terrorist machinery under resolution 1373, which leads to the question that if another major terrorist attack happened, would there be the potential for this existing machinery to be re-mobilized in a country-specific situation without adopting a country-specific resolution? To illustrate further, the Security Council is empowered by the Rome Statute to refer cases to the International Criminal Court (ICC), superseding the necessity for the Council to create further ad hoc tribunals as it did with the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). If another genocide were to happen such as that in Rwanda, the Security Council could utilize the ICC referral option instead of creating a new tribunal. It is hard to imagine that a permanent member would find it politically and strategically viable to veto a country-specific resolution that builds upon an accumulated volume of 10 or 20, for example on such consensual issues as protection of civilians, or children in armed conflict, that have already established specific practices in response to threats to international peace and security. Looking to the future, can we expect that the accumulation of resolutions—such as on the protection of civilians—would be utilized in a country situation where civilians are at deadly risk? In other words, can the significant volume of thematic resolutions compel Security Council members to produce country-specific resolutions that pertain to existent thematic resolution material? Permanent members never veto thematic resolutions, understandably, as it does not make a good image to ignore, for example, the suffering of civilians or children in armed conflict generally. However, permanent members veto country-specific resolutions—on Syria for example—even if civilians and children suffer in that country and need protection. The hope is that thematic resolutions should not be simply ignored in future country-specific situations, as these resolutions are building up norms and rules. As a result of the proactive legislative activity of the Security Council in the last two decades one can witness an unprecedented coexistence of two types of international legal regimes: those established by traditional law-making wherein states agree, sign, and ratify international conventions; and those created by the power of the Security Council under Chapter VII. The Security Council acts not only as a global ‘policeman’, but also as a global ‘legislator’.

The purpose of this book is threefold. First, the book seeks to locate these new thematic developments in the context of international law. Second, the book seeks to investigate the “thematic shift” in the agenda of the Council—from being that of, primarily, a global executive to also being that of a global legislator. Third, the book seeks to examine critically the impact of this new behavior on international peace and security in general.

There are significant constitutional implications when the Security Council is shifting from law implementation to law setting. The Security Council has the authority, under Chapter VII of the UN Charter, to override the principle of non-interference articulated in Article 2(7) that stipulates: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.” Therefore, the obligations articulated in the counter-terrorism and counter-proliferation resolutions for member states to strengthen their domestic laws regarding terrorism suppression and non-proliferation can be viewed as drastic—almost extreme— interference into states’ domestic jurisdiction, going beyond the “application of enforcement measures” permitted under Chapter VII. Resolutions 1373 and 1540 not only demand compliance with resolutions that may affect the course of domestic affairs, but also demands changes in states’ domestic laws, if necessary, to ensure implementation of the resolutions.

The criticism levied against the sanctioning of UN intrusion into member states’ domestic affairs written into resolution 1373 resulted in a slight change of tactic in subsequent thematic resolutions. Responding to concerns that the Security Council was stepping beyond its Chartered mandate, resolution 1540 on non-proliferation acknowledged that states should adopt and enforce the respective laws “in accordance with their national legal authorities.” Indeed, the drafting process for resolution 1540—led by the United Kingdom and the United States as main co-sponsors—included various opportunities for member states to express opinions on and to make commendations in keeping with the UN Charter’s requirement that the Security Council “act on behalf of the member states.” In contrast to the fast adoption of 1373, negotiations leading to resolution 1540 lasted several months and even included non-Council members. Remarkably, the Security Council convened two open meetings in the final stage of the negotiations during which 30 member state representatives were invited to contribute opinions. Clearly, the shift from law implementation to law setting followed a steep learning curve for the Security Council.

The introduction of thematic resolutions by the Security Council has resulted in an unprecedented co-existence of state obligations with regard to international law compliance. Not only are states voluntarily subject to traditionally adopted treaties and conventions between states, but they are now also subject to mandatory legal obligations arising from Chapter VII thematic resolutions by the Security Council. Thematic resolutions may fulfill a legislative function in three ways: 1) a resolution may seek to strengthen existing treaties and conventions by writing states’ compliance with existing obligations into the resolution; 2) a resolution may compel singular case-specific activity that in turn triggers member states to enter into new treaty-based obligations to address the existing threat on a more general level; or 3) a resolution might articulate entirely new thematic obligations that do not otherwise exist in traditional treaties or conventions. For instance, in the 1990s the Security Council established ad hoc international criminal tribunals following the massacres and crimes against humanity that occurred in the former Yugoslavia (resolutions 808 and 827) and Rwanda (resolution 955), to investigate and prosecute the responsible individuals. Such behavior by the Security Council was justified in terms of force majeure and in part because of the lack of a permanent international criminal court. The tribunals were created by the Security Council under Chapter VII and obligated the entire UN membership to comply with the courts’ requests for cooperation in accordance with Articles 25 and 48 of the UN Charter. The developing jurisdiction and practice of the two ad hoc tribunals for the former Yugoslavia and Rwanda created the necessary momentum for the General Assembly to return to discussions about the establishment of a permanent international criminal court. The discussions in the General Assembly eventually gathered enough support to convene the Rome Conference for an International Criminal Court in July 1998, which resulted in the adoption of the 1998 Rome Statute for the International Criminal Court—a global treaty, which led to the establishment of the ICC on 1 July 2002. The legal mechanism employed for the creation of the ICC was traditional insomuch as the resultant treaty created obligations only on those states that ratified the 1998 Rome Statute. However, it is hard to imagine the creation of the ICC without the prior creation of the ad hoc tribunals by the Security Council. In this sense, we can acknowledge the legislative influence of the Security Council even when the resultant legislative activity of states leads to the establishment of a judicial mechanism—the ICC—which is independent from the United Nations.

The role of an executive body is to oversee and direct the behavior of actors within an existing legal system; the role of a legislative body is to create laws to which actors are subject. Any discussion of international law must also address domestic and international constitutionalism and the question of whether or not the idea of a domestic society of individuals is applicable in considering an international society of states. As well known, the modern liberal domestic constitutional systems provide for a separation of powers between the legislature, the executive, and the judiciary.¹ The legislature will make the laws; the government will execute the laws; and the judiciary will adjudicate in the event of legal disputes. The three powers are separated so as to ensure a system of checks and balances and to safeguard against a potential tyranny of government. If we extrapolate these three domestic constitutional roles to the UN system, we can roughly think of the UN General Assembly as representing the views of all member states and as a legislative branch for decision making and rule setting; the UN Security Council as a smaller and more operative executive body, tasked with more emergency powers to respond efficiently to threats to the peace; and the International Court of Justice (ICJ) as a judicial body to adjudicate disputes between states, or deliberate and issue legal opinions. One immediate concern with such separation of powers in the UN is that states, not citizens, are supposed to comply with it, and calling states to account for their obligations is no easy task. States, particularly big ones, may decide to ignore their international obligations and can remain un-punished. The Security Council has moved beyond the role of executive and has assumed the roles of legislature and judiciary. The attempts to expand the powers of the executive were clearly present throughout history— and they formed the very reason that a system of checks and balances was introduced to many domestic constitutions, though not in the UN Charter.

Ironically, the Security Council is both extremely powerful but also extremely weak. On one hand, the Council is empowered under Article 39 to determine any situation as a “threat to international peace and security,” to impose any measure, including military action, against any state (including non-members of the UN) that it deems to be such a threat, and therefore to overrule two major principles in the UN Charter: the non-use of force in Article 2(4) and the non-intervention in domestic affairs in Article 2(7). On the other hand, the Security Council can be extremely weak and can be paralyzed by a single permanent member’s veto.

There are several factors—legal, political, institutional—that determine Security Council powers. The legal limits have been tested in the Lockerbie case. In December 1988, a Pan Am aircraft exploded above the Scottish town of Lockerbie, killing people both in the air and on the ground. The governments of the United Kingdom and the United States—after acquiring evidence suspecting Libyan complicity in the bombing—demanded cooperation from the Libyan government and the extradition of the terrorist suspects from Libya. The demands by the United Kingdom and United States governments were supported by the French, who also suspected Libyan complicity in a previous terrorist bombing on an Air France flight. After failing to achieve their goals via traditional diplomatic means the three permanent members introduced the issue to the Security Council where it was written into resolution 731 (1992) that urged Libya immediately to provide a full and effective response to extradition requests and to contribute to the elimination of international terrorism. Libya declined to extradite, referring to the Montreal Convention and to the Libyan Constitution which does not permit extradition of nationals to another country in the absence of a bilateral extradition treaty with that country. On 3 March 1992, the Libyan government claimed that the pursuit of its citizens represented a violation of its rights under the Montreal Convention, and requested provisional measures of protection from the ICJ under Article 41 of the ICJ Statute. In the meantime, and without waiting for the ICJ opinion, the United Kingdom, the United States, and France moved for a second Security Council resolution, adopted on 31 March 1992, that determined Libya’s failure to comply with extradition requests as a “threat to international peace and security” and imposed sanctions against Libya. On 14 April 1992 the ICJ dismissed Libya’s demand for provisional measures, citing Article 103 of the UN Charter that positions member states’ obligations under the Charter above any other obligations arising from international treaties, including the Montreal Convention. However, the decision was not without dissension and several of the ICJ judges questioned the unlimited powers of the Council in their dissenting opinions. Judge Lachs pronounced that the ICJ should be a “guardian of the legality for the international community.”² Judge Shahabuddeen similarly asked: “Are there any limits to the council’s powers of appreciation? Is there any conc...