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.

Structural Outline

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.

Conclusion

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

Introduction

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).

Representation

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