Security Council Resolutions and the Double Function of Explanation of Votes.

• Author: Klamberg, Mark

TABLE OF CONTENTS I. INTRODUCTION 922 II. EXPLANATION OF VOTES WITHIN THE LEGAL FRAMEWORK OF THE UN CHARTER 923 A. Conceptualizing Security Council 923 924 III. CONSTRUCTING THE MEANING OF SECURITY COUNCIL RESOLUTIONS 927 A. The Engagement of the Security Council in the Legal Discourse 927 B. The Applicability of the Vienna Convention on the Law of Treaties (VCLT) to Security Council Resolutions 929 IV. CONTESTATION AND CHANGE 936 A. The Evolution of Norms as a Social Phenomenon 936 B. Contribution to the Formation of Customary International Law 938 V. TRAJECTORIES OF CONVERSATIONS IN THE SECURITY COUNCIL 943 A. Conversation Where States Seek Change 944 B. Conversation with Concurring Positions Rejecting Change 949 C. Conversation Oscillating between Conflicting Positions and Convergence 951 VI. CONCLUSIONS 954 I. INTRODUCTION

The UN Security Council has within the UN system the "primary responsibility for the maintenance of international peace and security." (1) The Council adopts resolutions, which are the decisions with the greatest potential consequences. Security Council resolutions are not always clear and need to be interpreted. Members of the Council may make statements in connection with their votes, and these are termed explanation of votes. This Article addresses the double function that explanation of votes may have: they may be used as means for interpreting Security Council resolutions in relation to a specific situation or dispute or as contributions to the formation of customary international law. As a result, states may face the tension between the common enterprise of developing the meaning of the resolution at hand and the individual enterprise of contributing to (or most probably, impeding) a change of a rule of customary international law. (2) When debating a particular resolution, a state may be torn between these functions. Explanation of votes may provide a means to resolve this dilemma.

A related way of phrasing this dilemma is to describe the Security Council as engaged in a conversation about the meaning of a resolution and the content of a rule of custom (i.e., whether it should be changed or remain intact). Thus, this Article offers an account of three ongoing conversations in the Security Council, representing when the Council supports change or preservation of status quo. The three conversations will show that there is often little disagreement in the explanation of votes on how to interpret the resolution in relation to a specific situation, but considerable disagreement on the broader impact on the development of international law. Conversation refers to the inter subjective enterprise that the Security Council is engaged in: adopting, interpreting resolutions, and possibly also creating general norms. (3)

The Article examines explanation of votes both with traditional approaches to sources and interpretation within the discourse of public international law, as well as with an external perspective to understand explanation of votes as a social phenomenon. Part II places explanation of votes within the legal framework of the UN Charter and Security Council Provisional Rules of Procedure. Part III explains how the Security Council engages in the legal discourse (i.e., how to understand and interpret a norm). Considering that the Security Council in its engagement with the legal discourse not only deals with specific situations or disputes, Part IV explores how the Security Council may also contribute to change and development of general norms. Part V describes three different modes of conversation in the Council in order to elucidate how explanation of votes perform their double function of interpreting resolutions and contributing to the development of public international law. Part VI concludes my findings with how norms are socially constructed and subjected to change.

2. EXPLANATION OF VOTES WITHIN THE LEGAL FRAMEWORK OF THE UN CHARTER

   1. Conceptualizing Security Council Resolutions

      The Security Council may adopt resolutions that are binding. (4) Article 25 of the UN Charter provides that UN members shall carry out the decisions of the Security Council. As noted by Michael C. Wood, Security Council resolutions "are not legislation, nor are they judgments or 'quasi-judgments', nor are they treaties." (5) States may adopt resolutions for different reasons, including the negotiation of shared expectations of mutuality. (6)

      Resolutions that constitute decisions and involve authorisation may represent the will of the states that negotiated the resolution, but differ from treaties in the sense that, pursuant to Article 25 of the UN Charter, they entail obligations for all UN members. (7) A Security Council resolution may be considered an agreement among its members at the same time as it is a legislative or executive act directed against other states. This should be compared with Article 34 of the Vienna Convention on the Law of Treaties (VCLT), which provides that "[a] treaty does not create either obligations or rights for a third State without its consent." (8) Moreover, while a state can choose whether to become a party to a treaty, make reservations, or withdraw, this does not apply to a resolution. However, the analogy to a legislature would also be misleading since the Council is not adopting generally binding norms. When acting under Chapter VII, the Security Council makes recommendations and takes decisions relating to particular situations or disputes. It may impose obligations, reaffirm existing rules, apply existing rules, or depart from or override existing rules in particular cases, but it cannot establish new rules of general application. (9) Thus, any analogies to the process of legislation in a domestic system should be made with caution.

   2. Explanation of Votes

      Members of the Security Council may make statements in connection with their vote on a particular resolution, either before the vote or after. (10) The term "explanation of votes" is not explicitly used in the Security Council Provisional Rules of Procedure--the document refers to "discussion" and that there should be a "record of the discussion." (11) However, as members of the Security Council use the term "explanation of votes" in relation to these statements, (12) and the term is used in scholarship, (13) it is also in the present Article. Statements made in the general debate preceding or following a vote are often the only source of reasons why a resolution has (or has not) been adopted. (14)

      Members of the Council sometimes discuss in advance whether or not statements will be made at adoption meetings. They seldom make statements when a resolution has been adopted by consensus or when the president makes a statement on behalf of the council (a "presidential text"). (15) When a consensus has been reached with great difficulty, some members usually expect that national statements should be avoided in order to preserve the image of consensus. In other instances, Council members may seek to avoid polemic exchanges by agreeing beforehand to skip the opportunity to make statements as a way to discourage other members from requesting to speak. (16) There are some exceptions where statements have been made after the adoption of resolutions by consensus or as a "presidential text." (17)

      An explanation of vote can be used by a permanent member as an alternative to casting a veto in order to express dissatisfaction, (18) thus serving a rhetorical function. (19) It is not an obligation, but under current practice it is usual that permanent members who cast a veto vote afterwards explain the rationale behind their veto. (20) In recent practice, it has become more common that representatives invited to the Council pursuant to Rule 37 (which includes states whose interests are specially affected) take the floor before or after the vote. (21) Even if explanation of votes is perceived as mere rhetoric this does not mean it is irrelevant--Ronald R. Krebs and Patrick Thaddeus Jackson note that state leaders who renege on their public rhetorical commitments may bear a substantial domestic and international cost. (22)

      During the 1990s and early 2000s, unity among the members of the Security Council increased and almost all resolutions were adopted by unanimity. (23) It is not always that easy to reach unity. One example of the major powers diverging is Resolution 1441 (2002) concerning Iraq, where "the governments of China, France, and the Russian Federation took the unusual step of issuing a joint written statement on the interpretation... following its unanimous adoption and their individual explanations of vote." (24) Here, the three powers sought to prevent the United States from using force without further Security Council authorisation, trying to keep the situation under Council control. Resolution 1441 (2002) shows that council members sometimes "[agree] to disagree." (25) While the US representative stated that "in the event of further Iraqi violations, this resolution does not constrain any Member State from... enforc[ing] relevant United Nations resolutions," (26) China, France, and the Russian Federation stated jointly that "[i]n case of failure by Iraq to comply with its obligations... [i]t will be... for the Council to take a position." (27) They could still all agree on the text of the resolution; the disagreement was displayed openly elsewhere, in the explanation of votes.

      Explanation of votes is a way for members of the Council to record potential disagreements which may become gradually more prevalent due to increasing disagreement between the major powers. (28)

3. CONSTRUCTING THE MEANING OF SECURITY COUNCIL RESOLUTIONS

   1. The Engagement of the Security Council in the Legal Discourse

      As argued above, Security Council resolutions cannot mechanically be classified as legislation, judgements, "quasijudgments," or treaties. A key reason for this discussion is that the international legal...