Historical background of the security council
The Security Council is one of the principle organs of the United Nation as provided for under Article 7 of the United Nations Charter. Article 23 of the charter provides for the composition of the council which has a total of 15 members, 5 of which are permanent with veto power and the other 10 are elected from the General Assembly on a 2 year basis This is probably due to the nature of its role and the need to act promptly in situations of crisis endangering peace and security. It is charged with the responsibility of maintaining international peace and security and for restoring the peace when conflict arises, and it derives this power from Article 24 of the Charter. In order to achieve this important primary aim, Article 25 provides that the Security Council shall have enforcement powers so that in certain instances, it can make binding resolutions that are to be implemented by the member states.
There are various methods through which the council can maintain international peace and security under the charter. These include:
Investigating any dispute or situation which might lead to international friction;
Recommending methods of adjusting;
Calling on members to apply economic sanctions and other measures not involving the use of force to prevent or stop aggression.
The Security Council is organised in such a way that it is able to function continuously whereby a representative of each member must be present at all times at the United Nations headquarters so that the Council can meet at any time should the need arise.
After the cold war, the Security Council became more active and started to fulfil the functions for which it was established, having lain dormant in the first few decades. This was a result of the political and ideological bilateralism that paralysed the United Nations and especially the Security Council during this time. It also created important opportunities for the council for instance the end of apartheid in South Africa and peace and reconstruction in Cambodia.With this development, many countries began to express their dissatisfaction with the unrepresentative character of the Security Council and its arrogant exercise of power.
In interpreting the relevant Charter provisions on what constitutes a threat to the peace and security, the Security Council has adopted a liberal approach so that a whole lot of issues come under what constitutes. For instance Schrijver argues that the Security Council has started to make general pronouncements without referring to a specific issue such as a threat to the peace arising as a result of large scale human right violation and the spread of diseases such as AIDS. One reason for the Security Council's liberal interpretation of the relevant Charter provision is that each organ within the United Nation determines its own power in accordance with the functions that it is expected to carry out.. Even though the International Court of Justice is the principle judicial organ of the United Nations, it is said to be unsuited to provide the check needed on the Council's exercise of power except for providing advisory opinion.
This dissertation is divided into four chapters. The first chapter contains the introduction which gives a brief historical account of the Security Council. We then move to the aims and objectives of the research. Chapter one also states the limitation of the research that is the scope of the research. This is in order to make the research focused and straight to the point. We will look at the theme of the research that is law making in the Security Council. We pose the question whether the council makes law or it merely interprets the law and finally make a distinction between binding and non binding resolutions and conclude on this chapter.
Having analysed some literature on law making in the Council, Chapter Two will focus on what is presently obtainable in terms of its working methods. We look into the issues of representation, transparency and the influence of Politics in law making.
Chapter 3 further buttress the argument that the council makes law instead of just interpreting them because of the wide reaching implications that its recent resolutions have had on member states.
Finally Chapter 4 focuses on the debates that have been on for over 2 decades about reforming the Security Council. We look at the various proposals over the years and make an evaluation. We also consider the recent recommendations that have been put forward from various angles in view of the failure to come to an agreement about the way forward in reforming the council.
Aims And Objectives
In the course of this research, we hope to establish whether the Security Council actually makes law or it merely interprets the law. If the Council makes law, we examine why it has adopted this recent trend and the consequences that abound from this new path it has taken in the exercise of its powers.
This research paper is not a new area of research because a lot of work has been published. However, it will help to offer an insight into what really takes place in the Security Council. Its working methods have been the topic of ongoing debate and have led to various recommendations for reforming the Council and making it more effective and representative of the entire membership of the United Nations.
We also hope to show that politics has a great influence in the decisions of the Council and has the effect of helping to promote the foreign policy of the permanent members on the Council. This raises the question of whether the Council is maintaining peace and security or it is actually been used for the promotion of the foreign policies of the permanent members and other interests.
Finally after looking at some of the proposals over the years for reform, we make an evaluation of how likely it is that the council will be reformed or that the wishes of the wider members would be met and what might probably achieved in the end.
Scope Of Research
This is research is limited to analysing law making in the Council and constructing argument for possible explanations and showing that although the Council is inadequate as a executive body to make laws, time has necessitated the steps taken by the Security Council in adopting resolutions that are similar to legislation.
Methodology Of Research
The method to be adopted during the course of this research is consulting books, articles, journals as well as other relevant materials that we come across during the course of the research. We also make of the United Nations Charter which is indispensable to this research as well as reports of different working groups. Analyses as well as evaluation would be made based on these sources.
Does The Security Council Make Law?
‘International legislation according to Talmon is a broad term that covers both the process and the product of the conscious effort to make additions to, or changes in, the laws of nations. Going by this definition of what it means to legislate, we look at some literature and conclude as to whether it actually legislates or not.
Although the Council by virtue of Article 25 and 48 (1) of the Charter can adopt decisions that are binding on United Nations members, it usually takes these decisions with respect to particular conflict. Recent resolutions such as resolution 1373(2001) on terrorism have lead to the question as to whether the council has started to legislate.
According to Chesterman, the delegates at the San Francisco during the 1945 conference that brought the United Nations into existence did not intend to bring into existence a world government that would become a legislator as well an adjudicator. The primary role of the Security Council as stated earlier is the maintenance of international peace and security. However, the Charter was drafted in such a general nature that it has given room for additional and dynamic interpretation in light of new needs and changing circumstances. For instance the establishment of the peacekeeping operations (blue helmets) was certainly not anticipated. With this to support the council's law making, it cannot be said that it was not envisaged that the Council would become a global legislator. Perhaps it is the implications of such action by the Council that was not envisaged.
According to Szazs, the Council through its Resolution1373 (2001) on combating terrorism departed from its usual cautious practice of restricting sanctions to a particular event or state and decided that all states shall take particular actions against terrorist activities. This argument could be countered with the argument by Schrijver about the Charter been drafted in a general manner to allow for dynamic interpretation to meet new needs.
According to White, ‘the Council has developed a quasi-judicial capacity despite its express power of determination being limited to Article 39 of the Charter'. He terms it as judicial capacity due to the fact that the determinations are based on international law rather than that of its constituent document. He further contends that such a power is invaluable in a legal system that depends for its continuance on clear and unequivocal condemnation of breaches of international law. Although his opinion holds true, it does not take cognisance of the fact as Schrijver points out that aside the powers that the Council has by virtue of Article 39, an organisation must have all the necessary competence to give effect to its aims and objectives. In light of these it cannot be said that the Council's power is limited to what is expressly provided by Article 39.
Schrijver is of the opinion that with recent practice, there is the chance that the Council is not only interpreting the law, but might be making it. This is as a result of the general pronouncement it makes for instance large scale human right violation constituting a threat to the peace.
Furthermore Talmon is of the belief that ‘the Security Council entered its legislative phase with the adoption of Resolution 1373 and 1540 on the 28th of September 2001 and 28th of April 2004 respectively. This was confirmed by the president of the Council who described it as the first step towards legislating for the rest of the United Nations membership'. He goes further to say that that the council has replaced conventional law making process at the international level. This is true to a great extent considering that whatever obligations states have on the international level come about as a result of treaty agreement entered into voluntarily. The Council has taken away this right and imposed obligation on states, hence replacing the conventional means of law making at the international level.
Harper contends that the Council by answering purely juridical questions to which it is not the rightful organ, has shed its reluctance to create legal obligations, thus acting as a law maker. The legality for its law making powers can be found in the provisions of Article 39 of the Charter, and members of the United Nations have a duty to carry out its determination. States have the duty to implement the resolutions of the Council by virtue of the provisions of Article 25 which requires the members to accept and carry out the decisions of the Council.
Franck is of the opinion that since there is no enforcement mechanism at the international level, the international normative system is not law and as such the decisions of the council cannot be said to be legislative in nature. It is a good point considering that there is no legislature at the international level; however it does not take cognisance of the fact that the Security Council has enforcement powers which it can use to ensure compliance. This is by virtue of Article 41 of the Charter.
It is submitted in line with Chesterman's argument that the Council's decisions even if not previously legislative, have taken a radical turn for imposing obligation on states. This is true of the Resolution 1373 (2001) on terrorism which requires states to pass legislation to give effect to the resolution and report to a committee about progress made on the implementation This is in contradiction with most of its resolutions which usually require states to do a particular thing for instance cooperating with an ad hoc tribunal than using the operative words such as “shall”. This kind of obligation is usually found at the state level where there is a legislature with the requisite power and the necessary checks on its decision or at the international level through multilateral treaties that create obligations on states with their consent.
Binding And Non Binding Resolutions
The Security Council as an organ within the United Nations has the power by virtue of Article 25 and 48(1) of the Charter to adopt binding decisions. The binding nature of the decision is clearer when taken in pursuance of the Council's chapter VII powers after determining a threat to peace and security.
On the other hand the Council has recommendatory powers in accordance with Article 26 of the Charter by formulating plans to be submitted to the members of the United Nations through the General Assembly.
In determining whether a resolution is binding or not, the International Court of Justice in The Advisory opinion over the continued presence of South Africa in Namibia (a question to determine the legal consequences of the continued presence of South Africa despite Security Council Resolution for it to leave the territory) stated that care ought to be taken before a conclusion is reached as to whether a resolution is binding or not. A possible explanation for the approach of the Court might be as Alvarez asserts that distinction between binding resolutions and declarations has become blurred. Alvarez further states that International Organisations in general have blurred the distinction between law making, interpreting the law and adjudicating. This implies a shift of power from Positivist state consent to those making decisions and does away with consent as the basis for all international organisations as a result of development in international norms.
White asserts that the non binding recommendations can help shape customary international law. This is because the distinction between binding and soft law obligation as stated by Alvarez is no longer clear cut. This is because with the demise of the cold war, the activities of the Council have made distinction between enforcement, law making and dispute settlement difficult. At one time or the other, the Council has engaged in all of the above mentioned activities and even though they were not initially meant to be binding, States eventually adopt legislations to that effect.
Following the definition of legislation by Talmon and the write ups that have been analysed in this chapter, we can safely conclude that the Council does make law, however what remains debateable is whether it is within its competence to make such law. This would form one of the main sub-topics in chapter 3 of this dissertation; i.e whether the council has acted Ultravires through these resolutions.
We can say that through the resolution on terrorism the Council has satisfied the requirements of definition of legislation i.e. it has consciously imposed obligations. Talmon further states that it is the hallmark of any international obligation because it comes in abstract character.
The Process Of Law Making In The Security Council
This chapter focuses on what is presently obtainable in the Council's law making process which has been the topic of several debates, hence the question of legitimacy of law making in the council. This chapter focuses on some features such as transparency that is whether people that require information about its working method actually have access to the information and we would look specifically at informal proceedings of the council which are a prelude to the adoption of resolutions. Representation with regard to the membership is also a hot topic in the debate for reform and conformity to Charter provision in law making process of the council which ought to be present in a global legislature that the council has now become.
We would also find out through analysis of various literature, about the influence of politics in the law making of the Council and how the members use the Council in promoting their foreign policies (rephrase).
When talking about representation on the Council, it concerns the composition of the Council in terms of its membership and for those that are not members, how their different interests are taken into consideration by the Council in its law making through the non permanent members that are elected periodically from the various geographical zones.
With the Council becoming more active at the end of the cold war, debates from different angles became more intense about the composition of the Council. There has always been dissatisfaction among the wider members of the United Nations with the composition of the Council because of the permanent members' right of veto. It is further asserted that the dissatisfaction increased when the unrepresentative nature of the Council became more apparent. Hence the agitation for an increase in the membership of the Council. It also formed one of the themes of reform during the September 2005 world summit.
Article 23 of the Charter distinguishes between permanent and elected members of the Council. There are 5 permanent members on the Council who are often referred to as the great powers in 1963, there was an amendment of the Charter and the non permanent members were increased from 6 to 10 so as to make the council more effective in discharging its obligation.
According to Caron, there is allegation of dominance by some of the permanent members. However this tends to focus on the United States, France and the United Kingdom. Although representatives of other countries have all voted in favour of its recent resolutions, it is still possible that if motivated by political reasons, these members can get a resolution adopted. Hence the composition of the Council is not representative because of the domination. This is an early sign of the limitations of making the council more representative through increasing the membership. This might not necessarily make it more effective.
Article 23 further provides that the non permanent members be elected based firstly on their contribution to the maintenance of international peace and security and then equitable geographical distribution. Going by the above criteria, it will take a long time for every member of the United Nations to get to the Security Council as a non permanent member, thus the chance of taking part in the discussions leading to the adoption of resolutions is very minimal.
It has been argued by Schrijver that in view of its important function, the Council should be an organ with few members in order for it to be effective. This is of utmost importance if the council is to fulfil its emerging responsibility entrusted to it at the September 2005 world summit.Even though the members of the United Nations have more than doubled from when it was created in 1945, it is not logically possible for all regions to be adequately represented on the Council.
However it is to be noted that this particular criteria is not given much weight compared to the second criteria based on geographical distribution. It involves division among the five regional groups. Problems sometimes arises in filling a vacancy at the Council as happened in 1979 when Cuba and Columbia competed for the seat of non permanent member from the region of South America.
Caron argues that the permanent members are the most developed countries of the world and have the staffing capabilities within the Council which allows them to disproportionately influence proceedings in the Council.This situation is further aggravated by informal consultation among the permanent members where most of the decisions have been worked out. This clearly shows domination of the Council by the permanent members and the Council cannot be said to be representative of the members of the United Nations. However, because of the resources, and influence of the permanent members, Increase in the membership of the Council might not necessarily make it more representative.
Harper argues that it may be posited that since the Council has over half the world's population represented among its permanent members, it is actually more representative than even the General Assembly. There is consensus in decision making of the members and this can be in the interest of the entire members of the United Nations. Although this is a good argument, it fails to mention the fact that the members in the Council are not of equal standing, while some are permanent, others are not and the permanent members can always use the veto which is not available to the non permanent members.
Based on the arguments above, it is submitted that the council in light of its functions, is not meant to be for every member of the United Nations, hence it cannot be said to be unrepresentative. In reality the Council cannot have a representative of each sub group or regions within the United Nations. The most important consideration is the role of the Council and how well it performs that role and not the number of members that make the decisions.
Role Of Politics In Law Making
The Security Council is by its very nature, a political organ. From its inception in 1945, the drafters of the Charter of which the United States played a great role were very conscious of what they were doing. They equipped the permanent members with the power to veto a decision despite the non permanent members on the Council.From the onset, there were debates with regard to the veto with Internationalists opposing it as a superpower obstacle to a truly functioning United Nations while Realists viewed agreement of each of the major powers as politically wise and necessary to the undertaking of actions by the Council.
To date, the view of the realists prevails as can be seen in practice. Political tactics are used to achieve general policies in the Council. A good example is the resolution on the disarmament of Iraq. The Council as a whole was not in support of the use of force but the United States held a contrary view that Iraq had breached its obligations under the relevant resolution 1441(2002) and there was the need to resort to force. In order to avoid accusations, the United States argued that military action was necessary in order to eliminate the threat posed by Iraq to international peace and security.
Some members of the Council such as the United States had played a dominant role in designing the Security Council. There was the need to avoid the mistake of the League of Nations which required unanimity in making decisions; hence room had to be made for majority to be able to take decisions. The economic power of these members usually makes it possible for them to influence the other members into voting for a resolution proposed by a few.
We now move on to address the question as to how and in what way politics comes to play a role in law making in the Council. After the cold war, powerful states have increasingly turned to international organisations when using force. The Security Council has come to play an important role in this respect. States such as the United States and the other members of the Council can usually act unilaterally because they have the power to do so. However, they usually conduct coercion through a formal standing organisation, and in this instance it happens to be the Security Council. This was evident in Britain pushing hard for a resolution authorising the Iraqi war in 2003 and Russia seeking cover for intervention in the near abroad.
Voeten is of the opinion that the legitimacy of the Security Council authorization can attract domestic support for decisions to intervene in the internal affairs of a state that poses a threat to international peace and security. He further stated that it has been asserted that this was the main reason for a multilateral approach to the Gulf War. Political benefit accrues from using the Security Council for the purposes of authorization.
Another reason for using the Security Council to legitimize the use of force is that as an organ of the United Nations which has a near universal membership, it can be used to achieve broad goals of their foreign policies. Dennett further asserts that these policies of the members might not be completely selfish in that a member can be convinced that the policies which it advocates can possibly contribute to the development of a more stable and secure world. This perception might have been true at some point in time. However, there has been a lot of changes in world affairs so that a policy advocated by a member might turn out to be selfish and not in the general interest of all the members.
Even though most of the permanent members have also used the Council to their advantage, the United States stands out as a conspicuous example. An example of where the United States has successfully used the Council as a medium to implement a specific policy is the case concerning the disarmament of Iraq. It claimed self defence as the basis for its actions as well as existing obligations of Iraq under Resolution 678 and 687. Resolution 678 (2000) authorised states to use all necessary means in ensuring that Iraq complies with its obligations under previous resolutions. Resolution 687 on the other hand further imposes obligations on Iraq. The resolution imposes liability for any loss or damage to foreign territory as a result of Iraq's occupation of Kuwaiti territory. With this argument it appeared that the United States was upholding the principle objective of the Council which the maintenance of international peace and security but there was more to it, because the intention of the United States was to assert the coalitions over Iraq and make all decisions in relation to Iraq's political and economic future without interference.
Although the technical pronouncement on Iraq never claimed that it was in further material breach, the United States considered the reports unsatisfactory because it was the main obstacle to convincing the Council to authorise the use of force. This however turned out not to be a problem because on the 22nd of May 2003 after weeks of closed door meeting, Resolution 1483(2003) was adopted.The Council through this Resolution ‘resolved that the United Nations should play a vital role in the restoration and establishment of national and local institutions for representative governance for the people of Iraq'
A possible explanation for why the United States desperately needed a mandate from the Council was as a result of the fact that the use of force was questionable as well as the resulting occupation. The Council in this instance has a unique role to play because it is a neutral agent of the international community that serves to assess and constrain the potential coercing state's policy. It helps in the analysis of the likely outcome when coercion is used. The role of the Council thus falls between giving the members too much freedom and guarding against the interest of the other members. This can serve some good as it restrains the potential coercer. However it is questionable whether the Security Council always constrains the members in using the Council to implement their policies.
Other members of the Council might not seek to implement their foreign policies but rather engage in other form of politics in the Council. Side payment in the form of International Monetary Fund loan is favourable for a member like China or Russia and United States backing guarantees loan approval. With this the United States can easily convince a member like China or Russia to support a policy and possibly vote in its favour. Voeten further asserts that side payments can be used to break deadlocks in the absence of outside options.
According to Voeten, China has been described as the high church of ‘realpolitik' in the post cold war world. This is because it has found a way of maximizing security and economic benefit but minimizing responsibility. For instance China ordinarily doesn't support United Nations interventions because it considers it as an infringement of the sovereignty of States. However because it needs to maintain its image as the Representative of the Non Aligned Movement, it supports intervention in Africa and part of Latin America. This is a good example of having double standards in order to maximize benefits.
Those countries that are advocating for an increase in the membership of the Council might not just be interested in making the Council more effective. It might be due to the fact that even non permanent members stand to gain a lot for their respective countries during their two year tenures. Rotating members could possibly trade their votes for favours of different kinds during the 2 year period on the Council. Kuziemko & Werker have argued that there is evidence that the United States foreign aid tends to increase when these states are on the Council; hence this might explain the agitation of some States to become members of the Council
As far as politics in the Council is concerned, the agitation and debate for increase in the members of the Council because of domination by the permanent members can be said to be ill founded. Perhaps this offers some insight as to why much progress has not been made in terms of reforming the Council. The non permanent members are always willing to accept favours over and as such, much progress cannot be made.
TRANSPARENCY IN THE WORKING METHODS OF THE SECURITY COUNCIL Transparency relates to how the Council carries out its work and the limitation that exist in having access to information of what goes on behind closed doors. The main objection to the working method of the Council is the Informal Consultations that take place behind closed doors prelude to the adoption of resolution.
Informal consultations have been described as ‘the single most important procedural loophole in the functioning of the Council'. They are meetings which are attended by only Council members and certain secretariat staff. These meetings last long and sometimes run into several sessions compared to the formal meeting which are short. Another problem is that these informal meetings don't give non members the opportunity to contribute to the debate before the resolutions are adopted.
Caron argues that informal consultations have become the norm in the working methods of the Council. The decision of the Council are made during these consultations that increasingly involve a sub group of its members and this has the consequences of excluding some members. The Council has further been described as “one of the most conservative institutions in the world today” especially with regard to its working methods. This shows that the details of what goes on behind closed doors are privileged information. Considering the extended activities of the Council, the other members of the Council should have detailed information to help shape their decisions in adopting a resolution.
Talmon has argued that considering the far reaching consequences of Council legislation, member states that wish to express their views and perceptions should be given the opportunity to do so especially those whose interest are specifically affected. A limit to this right of participation backed by Article 31 of the Charter is that a non member's participation might not necessarily influence the final outcome considering that the non member cannot vote.
However Hulton has stated that following scrutiny, from within and outside and in response to suggestions and criticism, the Council has become more open with the wider membership of the United Nations. It has further taken measures to enhance transparency in its working method and improve efficiency. Wood also argues that the changes could be as a result of calls for accountability following change in international relations.
With regard to diplomacy, the Council has engaged more with the parties involved and in some instances it has entered into direct dialogue with the parties involved. For instance the Council had meetings with the political committee for the implementation of the Lusaka Cease Fire Agreement for the Democratic Republic of Congo. This helps create the much needed trust in the activities of the Council since its main objective is the maintenance of international peace and security and not just enhancing the interest of the permanent members. If the Council goes on to improve more on its working methods, there is the possibility that it would divert attention from the debate about increasing the membership of the Council. If its activities are transparent, then the legitimacy of its actions will not be questioned.
Similarly, Hulton has argued that the Council has been more prescriptive in promoting the settlement of disputes. The limits of its imposing solution on the parties under Chapter VI of the Charter have been demonstrated in its consideration of the Western Sahara situation. This would do away with the criticism by Harper that the Council acts not just as a legislature but that it adjudicates as well.
Furthermore the Council has reduced the number of informal consultations and increased its formal meetings since inception. A new hybrid meeting has also been introduced which allows non members to participate without formal invitation. These measures taken by the Council are signs that it recognises the importance of its actions being viewed as legitimate especially by the wider members of the United Nations and other non state actors. These steps taken by the Council will help gather information needed to make it more efficient and increase its transparency.
Having looked at what is presently obtainable in the Council in terms of its composition and its working methods, it is not difficult to conclude that the Council is not suited to be a global legislature. Politics plays a very prominent role in the decisions that the Council makes. Despite efforts to improve its working methods, the permanent members will always continue to dominate and determine what happens in the Council because the informal consultations have not been totally excluded from the working methods of the Council; as such politics will always be at the heart of the laws made by the Council.
Implications of law making by the security council
In Chapter 1 we focused on ascertaining whether the Council does make laws or it merely interprets the law to give effect to the provisions of the Charter while Chapter 2 was concerned with what was presently obtainable in the Council, i.e. the problems with it being a global legislature. This Chapter looks at the implications that have arisen as a result of the Council entering into a legislative phase. This chapter therefore is a continuation of the previous ones as consequences that flow from the problems.
Several challenges have been posed by the recent resolutions passed by the Council that seek to impose far reaching obligations on States who are also responsible for implementing these resolutions to give them effect. We would look at the several forms that these implications have taken and try to see whether they were as a result of the problems discussed in Chapter 2
The focus is specifically on the resolutions that have been the centre of the debate about the legislative capabilities of the Council and the different opinions that have come out of these debates. That is Resolution 1373 (2001) on international terrorism and Resolution 1540 (2004) on the proliferation of weapons of Mass Destruction.
Resolution 1373 (2001) was a reactive action taken by the Security Council as a result of the terrorist attacks of 11th September 2001 in which it reaffirmed that such attacks were a threat to international peace and Security. Lavelle has stated that through this resolution the Council used its power for the first time under Chapter VII to specify to all states which actions to carry out and the ones to refrain from without geographical limits. It is further argued that this resolution contained binding norms of abstract character.
The objective of Security Council Resolution 1540 (2004) is meant to prevent individuals and organisations from acquiring and spreading weapons of Mass Destruction as well as their means of delivery. The justification for this resolution was terrorism and the proliferation of weapons of mass destruction. The resolution imposes three major obligations on states as follows:
To refrain from providing any support to non state actors who are attempting to manufacture, possess, transport or use weapons of mass destruction and their means of delivery
To prohibit in their domestic law any such activities by non-state actors particularly for terrorist purposes and to prohibit any assistance or financing of such activities.
To adopt domestic measures to prevent the proliferation of weapons of mass destruction, their means of delivery and related materials...
It is in light of these obligations as imposed by both resolutions that analysis of the various implications as argued through debates will be made.
Imposition Of Unclear Obligations
One of the main criticisms against the resolution on terrorism is that the obligations imposed through it by the Council are not clear cut. They have been set in vague terms which give rise to some problems. That for international legislation to be by way of resolution, it must be clear and unambiguous in order to avoid discrepancy in the implementation of the resolution. The measures imposed by the Council to counter terrorism have been described as very wide.
Most importantly, the Council in drafting the resolution did not define the meaning of terrorism. The resolution was adopted in a sort of framework leaving member states to fill in the gaps i.e. define terrorism as they deem fit. Various states as a result of this defined terrorism to suit their domestic legislation as well as political ideologies For instance, using this latitude; Syria defined terrorism in a way that allows a distinction between terrorism and legitimate struggle against foreign occupation. Here we can see political ideology coming to play in the distinction between terrorism and legitimate struggle. What has been termed by Syria as legitimate struggle against foreign occupation might be seen as terrorism by another State. This would clearly lead to discrepancies in the implementation of the Resolution. Secondly if it was hoped that with time terrorism would develop to become a jus cogen norm, the path is clearly not going to be smooth because presently, there is no universal definition for terrorism and as such it cannot be subject to universal jurisdiction.
Asada has argued that the requirements by the Resolution 1540 (2004) on weapons of mass destruction are ambiguous. It is difficult to determine whether the obligations would be fulfilled. Therefore there might not be a universal enactment of these regulative laws
Furthermore in the operative part of the resolution on terrorism, the resolution had placed a lot of burden on states by setting out mandatory requirements for all states to undertake in combating terrorism.
The Council in adopting these two resolutions established two different committees having the responsibility of not just monitoring the implementation of the resolutions but interpreting the obligations and advising the members states on the implementation of the resolutions. States were required to report to these committees on how far they went with the implementation of the resolutions and the committees were available to provide assistance to the states that needed it for the purposes of implementing the resolution. In fact some States were willing to render assistance to the developing states to help in the implementing of the resolution. The states that have not been parties to other conventions on weapons of mass destruction will face some problems in implementing this resolution.
Did The Council Act Ultravires?
Analysing these two recent resolutions Happold has contended that the Council had acted ultravires especially with regard to Resolution 1373 (2001) by imposing obligations on States which don't have a time limit. This is because the resolution doesn't provide for a review or when it is likely to cease existing. He argues further that the obligations can go indeterminate because any member can use the veto to make the resolution stay in place. This a good argument considering the burden that is already placed on developing states trying to implement the resolution. However, even if it happened that the veto was used to make the resolution perpetual; it would be in the interest of all the members considering the threat posed by terrorism.
The basis for the debate that the Council had acted ultravires is premised on the fact that ‘the Council had a practice of adopting resolutions in light of particular happenings or events. In essence the Council usually takes a reactive action. For instance with regard to some previous resolutions such as Resolution 687 the obligations imposed on Iraq arose out of the particular circumstances giving rise to the Security Council determination to a threat to the peace and were limited to that state'. Following this argument, the Council is only meant to act when it has determined a threat to the peace.
According to Asada, the new approach by the Council makes it possible to have rules that are binding on all members without exception. This new thinking is necessary in light of the great threats posed by terrorism and weapons of mass destruction. There is need to exercise caution and not be too hasty in concluding that the Council had acted ultravires. We need to look at the relevant charter provisions on the power of the Council as well as how it has been making a determination of a threat to the peace.
Under Article 39 of the Charter, the Security Council is empowered to make a determination as the existence of a threat to the peace, breach of the peace or act of aggression. The same Article of the Charter further empowers the Council to decide on the measures to be taken in order to restore or maintain international peace and security. If the Council in pursuance of the above provisions of the Charter has found terrorism or weapons of mass destruction to constitute a threat to the peace, then there is the possibility that the Council has not acted ultravires. Talmon contends that it could possibly be argued that every situation that the Council has identified as a threat to the peace possibly does qualify as a threat. The concept of what constitutes a threat to the peace is constantly evolving. From the 90s the concept has broadened considerably. It has shifted from a formal to a substantive meaning of a threat to the peace.
Furthermore with regard to resolution 1540 (2004) on weapons of mass destruction, the traditional measures in this field were inadequate to address the new threat. In view of this problem, the Security Council was the proper medium to enforce such a law. This is because a binding Security Council resolution carries more political weight because of the power of the Council as a political organ. Besides, if the problem was not solved through the existing treaties on the Subject matter before the recent proliferation of the weapons, then there is the need to adopt a different measure and in this instance the Security Council was the right forum for such law.
Others argue that the Council has always had legislative competence by virtue of Article 4 and 42 of the Charter which provides that “that Should the Security Council consider the measures in Article 41 would be inadequate...it may take such action.....as maybe necessary to restore or maintain international peace and Security”. Giving this Article a liberal interpretation would give justification for the legislative step taken by the Council. Perhaps the need never arose until now for the Council to legislate.
De Wet argues that although the Council has the discretion of determining when a threat to the peace exists. In order for the Council to be effective, it can only react to situations which have the potential to spark international armed conflict in the short or medium term. She further states that the Council is a reactionary organ that is not equipped to attempt the prevention of all possible long term tension. That the United Nations should rather put in place long term structural element necessary for the realization of positive peace. This is quite a good argument but as stated by the same author, the Security Council has the discretion to determine what constitute a threat to the peace and because of this wide discretion, anything could possibly constitute a threat to the peace provided that the required majority is attained. Taking into consideration the fact that the Security Council is a political organ that bases its findings on facts and political consideration and not law, its decisions cannot be subject to review. The resolution on terrorism can be said to be based on an Article 39 finding because they were based on facts and not law. The nature of weapons of mass destruction required action to be taken fast and therefore it is not a problem that can be solved through the long process of General Assembly recommendation.
It is submitted in line with the argument of Kirgis that the Council has always had legislative power. The Council's responsibility of maintaining international peace and security may require actions not envisaged by the Charter at the time of its drafting. Since there is no prohibition by the Charter, the Council has discretion in what action to take, hence justification for legislating.
Furthermore, because the concept of a threat to the peace is constantly evolving, the Council is justified in attempting to legislate for the international community and imposing obligations that cut across time and border.
Infringement Upon The Sovereignty Of States
Looking at Resolution 1373 (2001) on terrorism and Resolution 1540 (2004) on weapons of mass destruction from the perspective of the Realist School of thought, it can be said that the Council has infringed upon the sovereignty of states. According to the Realist school, the nation state continues to be the dominant figure on the international plane. This means that international organisations are meant for achieving the common objectives of states and not to supersede it. In this context therefore, the Council's action is a clear breach of the sovereignty of states. It is further argued that states do not want to cede their authority to international organisation.
White states a different contention that international organisations usually take on a life of their own after their creation and will no longer be subject to the complete control of the states that brought it into existence. With this, it cannot be said that the Council has infringed upon the sovereignty of states.
According to Alvarez, law making by international organisations is as a result of delegation by states of their powers to make law. This can be interpreted to mean that states by signing the Charter of the United Nations ceded part of their sovereignty to the Security Council to take care of matters pertaining to peace and security.
Bowett on the other hand argues that even if states had signed the Charter, they had not given the Council a blanket cheque to modify their legal rights. This implies that the activities of the Council should be limited to what is expressly stated in the Charter as states had not consented to the recent activities of the Council. The Council would therefore not be able to meet up to new challenges especially the recent threats to the peace and security.
Furthermore, Vikan has argued that these resolutions have great consequences for member states with regard to treaties entered into previously and those that will be entered into subsequently in the future. This is because they will be subject to the obligations that have been imposed by these resolutions by virtue of Article 103 of the Charter. This has the effect of limiting the freedom of a state to freely enter into multilateral agreements. They have shaped both the future obligations of states as well as modifying the previous ones that will be in conflict with the obligations imposed by the resolutions.
It is submitted that the Council in imposing these obligations has not infringed upon the sovereignty of States taking into consideration the provision of Article 25 of the Charter. This provides that member states agree to carry out the decisions of the Security Council. In light of this provision, it can be said that states had consented even if impliedly to the Council taking necessary action to maintain international peace and security. However, it is to be noted that the obligations imposed by the resolutions were far reaching and unprecedented. This could be a possible explanation for the view that the Council has acted ultravires.
Having analysed some literature on the implications of these resolutions, we conclude that some of the views might have been a bit farfetched. This is because cognisance is not taken of the need to interpret the Charter in order to meet up with new challenges in an ever challenging world where peace and security is of paramount importance and has a constantly evolving meaning.
However, most of the views could also be interpreted to mean that the Council, even if it has the authority to impose obligations by virtue of its Charter provisions, it has to do so with caution in order to maintain its legitimacy. This is particularly important as States have the ultimate responsibility by virtue of Article 25 of the Charter to implement the provisions of these resolutions.
Reform Of The Security Council
Having looked at the problems with the Council exercising its legislative capacities and the arising implications, this Chapter will focus on the solution to these problems in the form of proposals for reform. We would analyse some of the proposals from the 1990s and the divergent forms they take. We will try to answer the question why an agreement has not been reached on a formula for increasing the membership of the Council and what could be the way forward. An evaluation of the various proposals will be done and we will try to see what is likely to be achieved in the end.
Why The Need For Reform?
The present day Security Council is reflective of the power structure of 1945 when most of the nation states were still under colonial rule. As at that time, the entire members of the United Nations were not so much compared to now that there are 192 members. For the Council to continue having only 15 members of which 5 are permanent makes the Council undemocratic and ineffective.
Despite the attempts by the Council to improve on some of its working methods, the process has been slow and has not met the expectation of the wider members of the United Nations as a whole. Informal consultations have not been totally eliminated and the process of the adoption of resolutions has not changed much. The Council is said to remain oligarchic, inflexible and out of touch with the world. This shows that improving the working methods alone is not going achieve the needed change in the Council. A more drastic step is needed than the slow process of change through its working methods.
Furthermore, reform is needed because the Security Council has played a more prominent role after the cold war and as a result its deficiencies are more evident. There is the need to also preserve the legitimacy of the Council because of its role of promoting peace and defending international law.
Proposals For Reform
‘As the Council became more important, many countries intensely declared their dissatisfaction with what they considered the Council's unrepresentative character and arrogant exercise of power. Germany and Japan started to claim entitlement to permanent seats as well as a large number of states putting forward their demand for a reform of the Council that would better enable representation of the geographical distribution of wider membership of the United Nations'.
The General Assembly has debated Council reform for over a decade but has been unable to reach an agreement that suits everybody. From 1994, the working group on the question of equitable representation on and increase in the membership of the Council and other related matters met several times but with little results. The working group is concerned with two main issues: Increase in the membership of the Council and related matters. Secondly, the working group is looking into the working methods of the Council and the issue of transparency in its work.
Over the years, there have been several proposals with regard to how to increase the membership in the Security Council. First of all, there was the ‘Razali Plan' which proposes a council of 24 members in total. That is to say 9 more m embers will be added to the already existing 15 members.5 of these seats would be permanent while the remaining 4 seats would be for the category of non permanent members. This plan includes Germany and Japan as among the permanent members to be elected as well as 3 other countries from the developing world. This plan does not include any members aside the five permanent members having the right of veto.
In its 2004 report, the high level advisory panel came up with 2 alternative models for expanding the membership of the Council. Both models had the same final outcome of 24 members in sum total just as the ‘Razali plan' had envisioned. While Model A envisages 6 new permanent (without veto) and 3 additional non permanent members, Model B on the other hand envisages 8 new semi permanent members with 4 year renewable terms and only one additional non permanent member. While this looks more promising and would probably appeal more to the existing permanent members, a closer scrutiny would reveal that this is likely to cause problems as the semi permanent members could remain permanent since they can be re-elected. A semi permanent member could therefore remain on the Council for a very long time depending on the influence it is able to yield in order to remain there. This would bring back the problem that is been faced in the Council right now of domination by a few member states.
‘ The group of four (which is an initiative of Brazil, Germany, India and Japan), have also come up with their proposal to suit their own interest and help in promoting their cause in the United Nations as a whole. This is due to the fact that if they occupy important positions such as membership of the Security Council, they would be able to yield greater influence. This proposal has received support from the European countries and not from the African Continent who have also come up with their own proposal for reform of the Security Council'.
The African Countries also came up with an arrangement at the African Summit in Libya in 2005.This proposal is slightly different from all the other proposals; it seeks to give new permanent members the right of veto power. This proposal stands little chance of been considered or adopted. This is because it is the only one so far that has proposed that new permanent members should have the right of veto. The issue of the veto is very sensitive and the present permanent members would not want to share the privileges of the veto with any new member.
The pressure for reform is still on. Recently, Iran has urged that the Council urgently needs to be reformed as its continuation without the necessary changes poses a threat to global peace. This is rather ironic considering that the Council has the responsibility of maintaining international peace and security. If it actually does pose a threat to global peace, then there is a problem with its legitimacy. Iran further claims that the Council often violates human rights with the sanctions it imposes and its determination of threats to the peace and security are sometimes ill founded.
There are also talks within the larger United Nations presently to expand the Council to meet up with today's world. However, the negotiations, like the previous proposals are likely to stretch for a long and a definitive solution is not guaranteed.
Reaction To The Proposals For Reform
With the permanent members, their reactions are varied based on their various interests and what an enlarged Security Council would mean for their role in world affairs. It has been said that their opinions are crucial with regard to the ongoing debate about expanding the Council. This is because any amendment would have to be ratified by the permanent members. The permanent members are unlikely to bow to outside pressure demanding for reform of the veto because they are unwilling to share it with others or see its curtailment.
RUSSIA: at the initial stage of the debate for reform, Russia rejected any form of radical reform. It rather supported that the Council's working methods should be improved instead of increasing its membership. Its view changed with the United States, France and United Kingdom providing a lukewarm support to Germany and Japan becoming permanent members. A possible explanation for its initial reluctance to accept any proposal for reform was due to the fact that it has always used the Security Council to promote its foreign policy. This is evident in its use of the veto during the cold war periods to block western coalition. Secondly owing to the fact that it had some economic and financial crisis, it had lost most of the influence it used to have and its veto power was the only way it could continue to wield influence in world affairs. Even while it had supported that the need for reform, it was in vague terms and without specific proposals like some other groups in the United Nations. This could be so that it doesn't stand out from the other members, there was therefore a need to support talks on reform.
The United States and the United Kingdom have since 1992 supported the idea of Germany and Japan becoming permanent members in the Council. They both believe that the addition of a small number of non permanent seats could possibly satisfy the aspirations of the non aligned states. This thinking by the permanent members has not found favour with the non aligned members as they are not in support of only Japan and Germany becoming permanent members. The explanation for the permanent members supporting these two mentioned Countries is due to the fact that they are taking into consideration the active role played by the members of the Council in the field of global peace and security. Being a member of the Security Council entails a lot responsibility that not every state would be capable of carrying out.
NON ALIGNED MEMBERS: for these group, they hold an entirely different view from what the permanent members think should be done in terms of reforming the Council in order to make it more representative of the entire members of the United Nations as a whole. Although 72 member states of this group support that the Council should be reformed, they support the candidature of Japan and Germany on the condition that some states from the non aligned group are granted permanent membership as well. This could be interpreted to mean that the Council which is already dominated by these states would further be able to collaborate and use it to their advantage. The Non Aligned Members further contend that the admission of these two members only would have the effect of aggravating the imbalance and lead to a failure in acknowledging the increased role played by developing countries in the pursuit of world peace and security. Most of these developing countries that were formerly colonies are now on the path to becoming industrialised. Take India for instance, it could contribute a lot to peace and security. It could do this by contributing troops for peace keeping or other activities.
Evaluation Of Proposals For Reform:
The debate on reforming the Council has encountered a lot of problem from the onset. One of such problems is agreeing on the formula to be adopted in increasing the membership of the Council. Every proposal seems to reflect the political ideology of a particular region and what they believe would make the Council more effective.
Eduardo argues that none of the reform problems addresses the issue of how to make the Council function better to realise its main objective. The proposals are all concerned with numbers and not the working methods of the Council aside the working group that addresses the issue, but then it's not the main priority. There has been failure among all the members of the United Nations seeking expansion to note that increasing the membership of the Council would make it only more representative and not effective. There is the possibility that more members would make it harder to negotiate and reach an agreement fast. This would certainly affect its effectiveness in responding swiftly to a crisis.
Dimitris has argued that the Non Aligned Members have been too ambitious in their demands for reform. That satisfying the demand would have the consequence of weakening of the Council. Based on their proposal; those states that do not even meet the Article 23 requirement would become members of the Council and would eventually make it less efficient. He further argues that the Charter was drafted purposely drafted for power to be concentrated in the hands of a few and that they can reject amendment which is or are against their combined interest or wishes. This is because after there has been a vote in the General Assembly, the Council has to ratify the decision before any reform can take place. This possibly explains the agitation for reforming the veto as well because the permanent members can yield a lot of influence with it.
Considering the length of time in which the debates about reforming the Council have been going on, the chances of reforming the Council in the ways proposed through increasing the membership is not likely to come about easily. Most importantly, this is because there has been constant failure to reach a consensus on the formula to be adopted in increasing membership. Every region seems to have a proposal to suit its own interest.
Analysing the proposals put forward by the working group in 2004, assuming the Council is to consider any of them, Plan B would probably stand a better chance of been considered although some modification would have to be made. For practical purposes, the permanent members would hardly ever agree to a Council of 24 members.
It has been argued that the proposals to enlarge the membership of the Council are in line with what is presently obtainable in other organisations similar to the Council. On the other hand it has to be noted that the Council is one of a kind and has an entirely different objective from any other organ within an inter-governmental organisation. Hence there might be problem with trying to make it similar to other international organisations. What might be obtained is perhaps just addition of a few members at most taking into consideration the requirement of Article 23 of the Charter.
In light of the failure from the 1990s to reach an agreed formula, there have been various suggestions/recommendations on how to make the Council more effective and preserve its legitimacy since that is the concern of everyone. There is the need to refocus the attention from adding more members to other alternatives.
Schrijver suggest that alternatives that would increase the effectiveness of the Council should be considered. Other actors such as regional and Islamic organisations should be more involved in the working of the Council than increasing the members. This might well prove to be a better way of enhancing the effectiveness of the Council and in a way making it more accountable considering the role played by non state actors. Although, they won't have a vote in the Council, they can greatly influence the outcome of debates in the Council. There is a better chance of making the Security Council more legitimate in its day to day activities through improving its transparency and accountability. This is because if the members are just increased without looking into the working methods, there might really be much difference with what is presently obtainable as the permanent members can yield a lot of influence within the Council.
Reform should focus on attainable objectives that will make the Council more efficient. Reforming the working methods is more logical and attainable. This is because as stated earlier, the permanent members would have to ratify any accepted proposal before reform can take place. As long as the proposals continue to insist on increasing the membership, not much change would take place.
Others have made quite a radical suggestion on reforming the Council. It has been suggested that the seats held by France and United Kingdom should give way to a European Union seat as well as making South Africa a permanent member. Although it is a bit different from the other suggestions and previous proposals, it doesn't stand any chance of been considered because none of the permanent members would want to be ousted in order to create a European Union seat.
It is submitted that what needs to be done is to come up with a blue print on how to improve the working methods of the Council in order to preserve its effectiveness and restore its legitimacy. It doesn't matter how the legitimacy is restored or effectiveness achieved, the most important thing is the end result. Although this might take a longer time, it would be more acceptable to the permanent members. This can be seen with some of the changes that have already taken place in its working methods. The wider members of the United Nations would have to compromise on their expectations of reforming the Council.
Present day Security Council has undergone a lot of transformation from what was obtainable at the time it was established. During the cause of these decades, the Council had changed to become a global legislature because the meaning of peace and security has gone from the absence of war to encompass some other issues of abstract nature.
In view of the above, the Council had to take on the new role of not just determining when there is a threat to the peace but creating binding legal obligations on states to avert these threats hence the argument in Chapter 1 on whether the Council in this new path it has taken has become a global legislature that creates binding obligations on member states or it merely interprets the relevant Charter provisions relating to its functions. We were able to find out that opinions vary as to whether these resolutions are equivalent to legislation at the state level. These opinions were shaped by political ideologies and perceptions as to why international organisations are created in the first place. However, there is agreement among the majority of writers and scholars, that because of the implications of these resolutions, they are almost like legislation at the State level. Besides, the members of the Council themselves were conscious of what they were doing with the adoption of these resolutions.
In Chapter 2, we looked at what is presently obtainable in the Security Council with regard to its working method (transparency) as well as the composition of the Council. This helped us to identify the loopholes in the Council that makes it unsuitable to be a global legislature. Because of these problems, implications have arisen which we looked at in detail in Chapter 3. The most glaring of these implications been the role of politics and the infringement of sovereignty of member States. Politics has a strong hold in world affairs and would continue to shape decisions in the Council as long as the permanent members have the veto power.
The much debated issue of reform has gone on for years and would probably go on for some more years. This is because there has been too much emphasis on increasing the members of the Council and not reforming the Council through any other process. The permanent members are unlikely to yield to the wishes of the various regional groups and their own different formulas for increasing the membership of the Council. The situation is likely to remain the same for a long time although the Council stands the risk of losing its legitimacy especially because implementation of the resolutions passes by the Council. The permanent members would continue to wield influence and dominate the Council through politics.
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