The Security Council and the rule of law.

Author:Gray, Christine
Position:Proceedings of the One Hundred Third Annual Meeting of the American Society of International Law: International Law as Law

This panel was convened at 10:45 am, Friday, March 27, by its moderator, Simon Chesterman of New York University School of Law, who introduced the panelists: Thomas Franck of New York University School of Law; Christine Gray of the University of Cambridge; Kim Lane Scheppele of Princeton University; and Stefan Talmon of the University of Oxford. *

INTRODUCTION

The United Nations 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, these functions 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, they embrace establishing complex regimes to enforce its decisions and passing resolutions of general, rather than specific, application. These expanded powers can facilitate swirl and decisive action, but they 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.

This panel builds on a four-year series of meetings at United Nations Headquarters in New York (1) and examines the ways in which the Security Council supports, is supported by, and occasionally runs afoul of, the rule of law.

Christine Gray begins by examining the positive and negative relationship between the Council and the rule of law--positive in the sense of promoting the rule of law internationally, negative in the sense of the rule of law constraints (if any) that apply to the Council s exercise of its considerable powers. Stefan Talmon then looks at the evolution in Council practice from quasi-legislative or "law-making" resolutions to "law-changing" resolutions. Kim Lane Scheppele then considers the concrete case of the Council' s counterterrorism resolutions and their impact at the domestic level.

In the "live" version of this panel, Thomas M. Franck responded to these papers and offered his own take on what the Council might do to enhance its legitimacy in the eyes of international law and member states. As Tom has since passed away, we have transcribed his comments below.

* Kim Lane Scheppele did not submit remarks for the Proceedings.

(1) See Simon Chesterman, The UN Security Council and the Rule of Law, U.N. Doc. A/63/69-S/2008/270 (2008), available at .

By Simon Chesterman, Vice Dean (Graduate Studies) and Professor of Law, National University of Singapore; Global Professor and Director of the New York University School of Law Singapore Program.

THE SECURITY COUNCIL AND THE RULE OF LAW: AN OVERVIEW

This topic can be seen from two aspects: positive and negative. Both are covered by Simon Chesterman in his seminal article on the rule of law and international law. (1) The positive aspect concerns the question of what action the Security Council can take to further the rule of law internationally. The negative aspect concerns the question of what constraints on the Security Council, if any, are required by the rule of law.

The focus of my co-speakers is on the latter, more complex set of issues. But I should like to argue that it is the former that is more important in practice. And it is the positive work of the Security Council that is the primary focus of states concerned with the rule of law. This may be seen in the 2006 Security Council debate on "strengthening international law: the rule of law and the maintenance of international peace and security." (2) The debate was based on a Denmark paper discussing how the Security Council could contribute further to strengthening and developing an international order based on the rule of law. Denmark argued that Security Council legitimacy and credibility depend on its explicit commitment to operate within the framework of the rule of law. Its paper covered four main topics: international criminal tribunals and the prevention of impunity; targeted sanctions; peacekeeping and post-conflict peace-building; (3) and the peaceful settlement of disputes. The Security Council Presidential Statement issued after the debate, in asserting its support for the rule of law, made express reference to peace-building, impunity, and targeted sanctions, but there was no reference to limits on the Security Council. (4)

However, some states in the debate also raised concerns about the second, negative form of rule of law. The most important speeches raising these issues were those by Russia, Mexico, and South Africa. There have been growing calls for greater accountability of the Security Council, here and in the debates on the reform of the Security Council. Many states have expressed concern over Security Council determinations under Article 39 of the UN Charter; others, including the Non-Aligned Movement, have challenged the Security Council for exceeding the role assigned to it under the Charter and going beyond its own sphere into that of other UN bodies with regard to terrorism and non-proliferation. But it is doubtful whether there can be any restraints on the Security Council as regards the exercise of its discretion on the use of force. The Security Council cannot be subject to the rule of law in any meaningful way in this context.

This contrasts with its decisions affecting the rights of individuals on the one hand and its legislative resolutions on the other. Security Council decisions affecting individuals are exceptional; the inadequate systems set up under Resolution 1373 and other similar resolutions may be seen as an aberration by the Security Council, adopted in a hurry, and now subject to a tidying process. The arguments in favor of judicial review by national and international courts of Security Council decisions affecting the rights of individuals should not lead to any general conclusions with regard to the powers of courts to review Security Council decisions on the use of force. In addition, special procedures involving transparency and consultation may well be necessary for the Security Council's legislative resolutions, but such constraints do not necessarily apply in decision-making on the use of force.

It has been argued that the Security Council's role under the Charter is to further international peace and security, and not the rule of law. (5) However, in spite of what has been said above, this dichotomy cannot be absolute. If the Security Council is not seen as legitimate, then it will not be effective at furthering international peace and security. As Mexico said, "Those who seek to bestow legitimacy must themselves embody it; and those who invoke international law must themselves submit to it." (6) There are three main problems for Security Council decision-making on the use of force with regard to this question of legitimacy and the rule of law.

First, the composition of the Security Council is currently under negotiation again. (7) The argument by those supporting expansion is that the Security Council as presently constituted lacks legitimacy and does not fulfill the requirements of the rule of law because it is undemocratic and unrepresentative. Thus, South Africa asserted that "if the Security Council is to realize its full potential to ... help instill the rule of law, comprehensive reform would...

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