Symposium Paper 3: Legislator of Last Resort: The Security Council’s Emerging Role in WMD Proliferation Crises
The questions asked by the organizers of this symposium on recent challenges facing public international law—whether international law is “too weak to make a difference” or whether its institutions are “invasive to the point of being undemocratic”— and the specific challenges mentioned by way of example (“terrorism, hegemony, illegitimacy”) all converge in the topic of this paper: an inquiry into the proper role of the Security Council in addressing ongoing nuclear, biological, and chemical proliferation crises. Put simply, the challenge of bringing WMD proliferation under control is complicated by the on-going task of bringing the Security Council itself under the rule of law. In this paper, I will contrast two conceptions of the Security Council’s role in non-proliferation, referred to here as “enforcement” and “legislation.” I ask which approach increases the legitimacy and capacity of the Security Council, and conclude that although the Security Council is more assured in its legitimacy as a law-governed “enforcer” than as a “legislator,” two arguments urge Security Council to pursue non-proliferation as an the appropriate subject of general legislation: (1) non-proliferation is a carefully defined and delimited area of legislation closely linked to the peace and security mandate. (2) that uniformity is consistent with the demand of states is sensitivity to formal equality a principled general obligations non-proliferation. Even so, insofar as the Security Council’s legislation entails legal effects and justifications, and promotes respect for general rules of international law, it should also be bound to respect UN Charter norms general principles of international law (e.g., jus cogens and the principle of ultra vires) as applied to international organizations.