4 Responses

1. Of course Hosseini is just rehearsing diplomatic noise, but there is a legal basis for his claims, which we might each investigate from our own intellectual perspectives. Here’s the “inalienable right” provision Hosseini is referring to

   Treaty on the Non-proliferation of Nuclear Weapons:
   
   

   NPT Article II prohibits the manufacture or acquisition of nuclear weapons or nuclear explosive devices by non-nuclear weapons states, but in Article IV directs that:
   

   
   Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with Articles I and II of this Treaty.
   

   Put simply Hosseini’s claim is based in a conflation of two overlapping regimes and the meaningful facts examined under these regimes. The two legal questions being conflated here— (1) the provisions of the NPT and (2) the scope of UNSC resolutions under the UN Charter— lean on a couple of empirical characterizations to leverage their force. First the characterization of prohibited “weapons” vs. peaceful “technology,” which forms the legality/ illegality nexus for the NPT and (2) the characterization of this set of facts as “a threat to international peace and security” under the Charter. In the broader non-proliferation discourse, nothing compels these two frameworks to match.

   Remember that similar questions came up in regard to N. Korea’s withdrawal from the NPT and later its nuclear tests. obligations imposed by the Council take precedence over obligations under international treaties. A precondition, however, is that the Council may impose the obligation in the first instance. A decision by the Council that states shall not exercise their right under the Nuclear Non-Proliferation Treaty to withdraw from that treaty would contravene Article 26 of the UN Charter, which gives the Council only recommendatory powers in the area of regulation of armaments.

   A breach or non-breach of treaty obligations (which is not clear in either the case of Iran or N. Korea— and remember the layers: NPT, bi-lateral security provisions, optional and voluntary precausions) is only one factor the Security Council must consider in a totality of circumstances pointing to whether or not there is a threat to security. The Council must take care to respect the non-proliferation framework and balance between not infringing on “inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes” prohibiting “the manufacture or acquisition of nuclear weapons or nuclear explosive devices by non-nuclear weapons states.” Yet, the Security Council’s powers are grounded in the UN Charter, and enter the NPT and other treaty regimes only on the margins. Thus “peace and security” standard which will not always match the texts of the treaties. not In some cases, this might border on finding subjective determinations of intent, but these must be supported by more facts provided by the IAEA and other available intelligence. The Security Council seeks to maintain its own legitimacy by maintaining consensus statements. The Security Council has exclusive powers to make factual determinations, deciding whether international peace and security has been violated. (When it comes to deciding what to do, it is clearly the Security Council, but shares with the ICJ the power to make legal determinations.)

   The principal challenges to the legitimacy of the Security Council in terms of its Charter functions, (critiques of opportunism and non-democratic character) appear in the context of the NPT in more specific forms:

   
   1. Critique of Nuclear Oligopoly of the P-5. Currently the permanent five members are the only nations permitted to possess nuclear weapons under the Nuclear Non-Proliferation Treaty. Though this nuclear status is not the result of their Security Council membership, the P-5’s military supremacy is de fact “ratified” by the NPT.*

   2. Critique of Discriminatory Treatment under the NPT. If the Security Council overtakes and steers the NPT process, selective enforcement is probable. This introduces an element of discrimination in contravention of Article IV of the treaty, which guarantees that states may “develop research, production and use of nuclear energy for peaceful purposes without discrimination.”

   Cite: Treaty on the Non-proliferation of Nuclear Weapons:
   
   

   3.Critique of the Non-Proliferation Agenda as an Evasion of Disarmament Responsibilities. Though the Non-Proliferation Treaty’s also commits nuclear weapons states to move towards nuclear disarmament, this commitment has faded from active agenda of the NPT, and there is little incentive for the P-5 to pursue this agenda. Whether by default or design, an agenda promoting non-proliferation without disarmament simply freezes in place the military-technological gap that allowed the great powers that emerged after WWII to steer the Security Council for the past five decades.

   4. Critique of Insufficiency of Legal Redress against UNSC Resolutions. Even simply the “feeling” of the lack of redress enforceability against UNSC resolutions that might be arguably ultra vires adds to the forcefulness of voices like Hosseini’s from the developing world. Should the Security Council act ultra vires in a resolution against Iran, for example, Iran cannot bring a case before the ICJ against the Security Council. It might try to do that against each Council member, but then we have the second problem. For the court to exercise jurisdiction, the given states must have accepted it. out of the 15 states, chances are that the court will not be able to exercise jurisdiction against most of them. The alternative is a request of an advisory opinion but: a) advisory opinion can be requested only by UN organs. No chance the sc might ask an advisory opinion on the legality of its own actions. Maybe the General Assembly might do that, but it is unlikely.
   

   The last point is key. If, as Hosseini charges, the Security Council violates the institutional restraints set out in the Charter, or oversteps its purpose, it would be acting ultra vires. Nothing suggests that Security Council has unlimited discretion and power under the UN Charter. Whether these legal restraints can be enforced against the Security Council is a separate matter.But remedies are not practically available. So, there’s a lot of theory going on here: legality, legitimacy, Lockerbie “checks and balances”, and the incorporation of principle of ultra vires against international organizations. And all of this is without considering “legislative” resolutions whose application is not limited in time, such as Res. 1540. Again, ultra vires? Who then decides whether the UN charter limits have been overstepped: the Security Council itself, individual states, or the ICJ?

   Again, the Charter equivocates.

   Professors?

   -VK
   
   Loyola New Orleans

   * NOTE: Is it an accident of history that the P-5 is also the N-5? The de facto situation that the five permanent members of the Security Council are also the only states recognized by the NPT: The UN Security Council permanent members were originally the victorious powers after World War II: the Republic of China, France, the Soviet Union, the United Kingdom, and the United States. With the exception of the non-nuclear Republic of China (Taiwan), which was in fact replaced by the nuclear People’s Republic of China in the UN in 1971, the Security Council by the signing of the NPT was de facto composed of the states that together monopolized nuclear weaponry. Then came India, with its 1974 test. in 1991 the world learned that Iraq had an active nuclear weapons program in the 1980s.Then in 1998 India and Pakistan North Korea, India, Pakistan, Israel (allegedly; Israel has never admitted to nuclear weapons possession), and some other countries that are not permanent members of the UN Security Council do possess nuclear weapons outside of the anti-proliferation framework established by the Treaty.

   3.08.2007
   at 1:54 am EST Vik Kanwar

2. Missing link above:

   NPT

   3.08.2007
   at 1:56 am EST Vik Kanwar

3. well, in any event, Art. 103 to the UN Charter provides (in full) that “in the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”

   So it would seem any determination by the Security Council, especially in a specific area of its competence, such as determining breaches of international peace, would trump any “inalienable right” in the NPT.

   3.08.2007
   at 3:36 pm EST n110941

4. oops that was too broad. First sentence of second paragraph should read “any determination of the Security Council, especially in a specific area of its competence, (and where not limited by other Charter provisions or customary international law)”

   In which case I suppose I should state that I am of the view that the UNSC may issue any decision that does not violate the charter or (only) jus cogens norms. That is, I do think the UNSC can trump conventional customary international law when deciding amongst its signatory states. Otherwise, especially given the fluid and interpretive nature of custom, the decision-making power of the UNSC would be restricted in a way contemplated neither by the Charter nor by its very existence as an executive/decision-making body.

   3.08.2007
   at 3:57 pm EST n110941

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