The Security Council as a legal hegemon.

Author:Joyner, Daniel H.

TABLE OF CONTENTS INTRODUCTION I. RESOLUTION 1540 A. The UN Charter and WMD Nonproliferation Law B. The Limits of Chapter VII II. IRAN A. Resolution 1737 B. Resolution 1929 C. Legal Analysis 1. Resolution 1737 2. Resolution 1929 III. NORTH KOREA IV. How CAN INTERNATIONAL LAW PROTECT STATES FROM THE SECURITY COUNCIL? INTRODUCTION

In this Article I will discuss the United Nations Security Council's efforts to implement, preserve, and universalize the obligations of the 1968 Nuclear Nonproliferation Treaty (NPT). This discussion will lead to questions regarding the Security Council's role and authority in the international legal system, and ultimately to a consideration of how the international legal system can better guarantee that the Security Council does not exercise an unwarranted degree of legal power at the expense of the member states of the United Nations.

The Security Council currently sees itself at the apex of authority in international security law, with essentially unlimited power to address situations that its controlling permanent members determine to be a threat to international peace and security, and to fashion whatever compulsory remedy it deems appropriate to this end. This is in fact a fairly recent development. For the first fifty-six years of its existence, the Security Council's own understanding of its role and authority under Chapter VII of the United Nations Charter was much more modest; analogous to that of an executive body, entrusted by all UN members with the responsibility and authority to maintain and restore international peace and security, primarily in cases where the generalized obligations of the UN Charter or other rules of international law had been breached. It understood that it was to use its powers under Chapter VII to authorize effective collective measures on a case by case basis, responding to the dynamics of international relations as they occurred, and through the passage of resolutions which authorized forceful or non-forceful measures, to be applied for a temporary duration as against the specific authors of threats to international peace. (1)

This more recent understanding by the Security Council of the scope of its authority is that the Council is empowered not only to act as an executive body, but rather also to act as a legislative body crafting proactive and permanent legal edicts covering important areas of international relations including terrorism (UNSC Resolution 1373 (2)) and weapons of mass destruction proliferation (UNSC Resolution 1540 (3)), and even further to act as a judicial body determining the legal rights and obligations of UN members (UNSC Resolutions 1874 (4) and 1929 (5)). This more recent understanding can be seen in embryonic form in the activity of the Security Council through the 1990s, for example in the creation of two ad hoc international criminal tribunals. (6) However, it began to be most obviously demonstrated after the attacks on September 11, 2001, with the passage of Security Council Resolution 1373. (7)

Indeed, as we will see in the case studies below in the issue area of nuclear nonproliferation and the NPT, the Security Council appears now to consider itself to possess ultimate and essentially unlimited legal authority--i.e. to represent something of a legal hegemon--by virtue of its UN Charter mandate to maintain and restore international peace and security. Authority, for example, to command a state to re-accede to a treaty from which that state has duly withdrawn, according to the treaty's terms. Authority to command a state not to take action that is recognized by a broadly subscribed treaty to be that state's "inalienable right." Indeed, the Security Council has for the past few years been so bullish in its attitude toward its own authority, and has ostensibly used that authority to trample on so many of the most important underlying principles of the international legal system, that we may need to begin seriously considering how the international legal system can protect states from the authoritarian Security Council, which the end of the Cold War, and the beginning of the War on Terror, have unleashed.

This paper will proceed with three case studies of Security Council activity in the nuclear weapons proliferation issue area, in which the Security Council will be argued to have demonstrated an understanding of its own unlimited legal authority, by acting in disharmony with fundamental principles of the international legal system. These case studies will include the passage of Security Council Resolution 1540 in 2004, as well as the respective state-specific cases of the nuclear programs of Iran and North Korea. The paper will then conclude with a consideration of how international law should respond to the Security Council's demonstrated claim to being essentially legibus solutus (unbound by law) in its exercise of its Chapter VII authority to maintain and restore international peace and security.

  1. RESOLUTION 1540

    The first case study to be considered is that of the passage of UN Security Council Resolution 1540, which was adopted by the Security Council on April 28, 2004. This resolution was passed, not coincidentally, shortly after the revelation in February 2004 of the existence of a long-standing clandestine nuclear materials smuggling ring headed by the father of Pakistan's gas centrifuge program, Dr. Abdul Qadeer Khan. (8) In Resolution 1540, the Security Council undertook to address a number of fundamental limitations of the existing weapons of mass destruction (WMD) nonproliferation treaties and regimes system. (9)

    In the Security Council meetings leading up to the passage of Resolution 1540, some of which were opened to comment from non-Council members, many states noted the need for such a resolution to close "gaps" in the coverage of existing nonproliferation treaty instruments. (10) One such gap identified by states during these meetings was the problem of the non-universality of the system, a result of the fact that nonproliferation treaties, as all treaties, are adopted only voluntarily by states, and that for a variety of reasons many states, including some of significant proliferation concern, have remained outside the nonproliferation legal and organizational system. (11)

    A second major challenge to the nonproliferation treaties and regimes system is the fact that all existing restrictions within the regimes upon manufacture, possession, and trafficking in weapons-related technologies are addressed to states themselves. (12) Thus, at the international level there is no substantive restriction on private parties, including business entities as well as other non-state actors, engaging in any of these activities. The utility of Resolution 1540 in addressing this non-state actor gap in the nonproliferation treaties and regimes system was noted by numerous states, particularly in the context of international efforts to combat the phenomenon of terrorism. (13)

    The resolution addresses the non-state actor problem described above in operative paragraph 1, in which it provides that "all States shall refrain from providing any form of support to non-state actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery." (14) Furthermore, operative paragraph 2 provides that "all States, in accordance with their national procedures, shall adopt and enforce appropriate effective laws which prohibit any non-State actor to manufacture, acquire, possess, develop, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery, in particular for terrorist purposes, as well as attempts to engage in any of the foregoing activities, participate in them as an accomplice, assist or finance them." (15)

    It then addresses in operative paragraph 3 the problem of nonuniversality of nonproliferation law by directly imposing an obligation upon states to establish and maintain effective export control laws and regulations at the national level, "including appropriate laws and regulations to control export, transit, trans-shipment and re-export and controls on providing funds and services related to such export and transshipment such as financing ... as well as establishing end-user controls; and establishing and enforcing appropriate criminal or civil penalties for violations of such export control laws and regulations." (16)

    As in Resolution 1373 on international terrorism, passed in 2002, Resolution 1540 in operative paragraph 4 establishes a Committee of the Security Council to monitor the implementation by states of the obligations imposed by the resolution. (17) Although Resolution 1373 and Resolution 1540 were adopted in very different contexts and are meant to cover quite different, although of course related, areas of law, they share important similarities in structure as well as in legal import. These two resolutions have been claimed by some commentators to have ushered in a new age of Security Council jurisprudence and to have signaled an intent by the Council to act as a legislative body, in supplementation of its executive functions. (18)

    There had before the passage of Resolution 1373 been other controversial acts of the Security Council which had caused debate on the topic of the proper role and powers of the Council. (19) Notable in this regard were the actions before the International Court of Justice stemming from the explosion of Pan Am flight 103 over Lockerbie, Scotland in 1988. However, although in the Lockerbie cases there was an allegation that the Council had overstepped its prerogatives under the Charter, there was no hint of legislative aspirations in the Council's actions. (20) The resolutions involved were clearly targeted against the acts and omissions of one state, Libya, and they set clear demands which, if met, would bring about the end of the mandate for...

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