Friday, April 11, 2008

New policy report - "The UN Security Council and the Rule of Law "

Just a quick post to flag the release of a new policy report, with recommendations for reform, entitled "The UN Security Council and the Rule of Law", the result of a 4 year initiative of the Austrian Government, supported by the Institute of International Law and Justice at NYU. The report was written by Simon Chesterman, professor of law at both NYU and the National University of Singapore.

Here's a brief blurb:

[T]he report recognizes that the Security Council has grown beyond its initial function as a political forum and frequently serves important legal functions. At the same time, there is a widely perceived need for the Council to ground these new functions in a normative framework that is both legitimate and effective. This report maps out how it might go about doing so, building on four years of meetings with experts and practitioners.

The report is available here (including a preface by the Austrian Minister for European and International Affairs). Chesterman has another, more general reflection on the notion of the rule of law and its application to the international sphere available here. Below, for those interested, I have reproduced the executive summary of the report in full:

Executive Summary

(i) The UN Security Council is the most powerful multilateral political institution. It has grown well beyond its initial function as a political forum and serves important legal functions. Traditionally, this included determining that a threat to the peace, breach of the peace, or act of aggression had occurred and prescribing specific, legally binding obligations on Member States under Chapter VII of the UN Charter. Today it embraces establishing complex regimes to enforce its decisions and passing resolutions of general rather than specific application. These expanded powers can facilitate swift and decisive action, but have raised questions about the legal context within which the Council operates and the extent to which the Council itself adheres to the rule of law.

(ii) The "rule of law" is widely embraced at the national and international levels without much precision as to what the term means. At the national level, it requires a government of laws, the supremacy of the law, and equality before the law. Strengthening a rules-based international system by applying these principles at the international level would increase predictability of behaviour, prevent arbitrariness, and ensure basic fairness. For the Council, greater use of existing law and greater emphasis on its own grounding in the law will ensure greater respect for its decisions.

(iii) In addition to post-conflict peacebuilding, the rule of law is now also seen as a tool for preventing or resolving conflicts. The preparedness of Member States to take collective action, through the Council, was endorsed, in limited circumstances, at the 2005 World Summit by the adoption of the Responsibility to Protect. It should be supported by firm opposition to impunity and greater efforts to establish or re-establish the rule of law in fragile States. The rule of law must also apply to those who intervene.

(iv) The Council is a creature of law but there is no formal process for reviewing its decisions; the ultimate sanctions on its authority are political. These include challenges to the Council's authority through the General Assembly, or individual or collective refusal to comply with its decisions. It is in no one's interest to push these political limits. For its part, the Council should limit itself to using its extraordinary powers for extraordinary purposes. When it is necessary to pass resolutions of a legislative character, respect for them will be enhanced by a process that ensures transparency, participation, and accountability. When the Council contemplates judicial functions, it should draw on existing institutions of international law.

(v) Sanctions targeted at individuals have presented a challenge to the authority of the Council: legal proceedings have been commenced in various jurisdictions and there is evidence that sanctions are not always applied rigorously. The Council should be proactive in further improving "fair and clear procedures" to protect the rights of individuals affected by its decisions, complying with minimum standards and providing on its own for periodic review.

(vi) The Security Council is most legitimate and most effective when it submits itself to the rule of law. Though the Council does not operate free of legal limits, the most important limit on the Council is self-restraint. Member States' preparedness to recognize the authority of the Council depends in significant part on how responsible and accountable it is -- and is seen to be -- in the use of its extraordinary powers. All Member States and the Security Council itself thus have an interest in promoting the rule of law and strengthening a rules-based international system.


The Speeker said...

This seems like quite a remarkable statement. There are many, at least in the US who believe firmly in limiting the United Nations' abilty to compel the behavior of anyone.

The argument is a self-fulfilling one. They talk with scorn about the ineffectiveness of the United Nations and at the same time strongly distrust efforts to make it a stronger, more accountable, more transparent and less political body.

This paper seems like it makes claims far removed from the viewpoint shared by many (at least in the United States). Even many in the current US administration are both skeptical of the United Nations and hostile to any ability to compel action in all states equally. What is the role this paper will play in the debate to reform the Security Council and the United Nations? Will opponents of a more rule-of-law based Security Council be able to just sweep it aside?

Euan MacDonald said...

Thanks for the comment, and apologies for the delay in responding.

Of course, there are grounds for huge skepticism regarding the political will in the US (and in other permanent members) for introducing real and effective change into the way the Security Council operates. Although I think it would be to misread the situation to suggest (not that you did so) that the US in general believes in "limiting the United Nations' abilty to compel the behavior of anyone." On the contrary, as the work of the Sanctions Committee shows, there are times when the Council is viewed as very useful indeed.

As to the potential role of the paper in policy reform, it will be unable to do more than persuade as to the force of the arguments it makes. It may be, of course, that this will amount to little more than preaching to the converted; however, even documents that are in no sense at all "binding" can play an important role in establishing the rhetorical "conditions of possibility" for the introduction of genuine change...