Symposium: Discussion of Kanwar’s “Security Council as Legislator of Last Resort”

Symposium: Discussion of Kanwar’s “Security Council as Legislator of Last Resort”

[Sean Murphy is Professor of Law at George Washington University Law School and a discussant in the Opinio Juris On-Line Symposium]

For decades now, the global community has recognized that the proliferation of weapons of mass destruction (WMD) and their delivery systems constitutes a major threat to international peace and security. Since the attacks of 9/11, there is broad recognition that the threat is compounded by the possibility of terrorists acquiring and using WMD. If one contemplates the extraordinary events that were unleashed by the attacks of 9/11—wars, detentions without trial, reorganization of national governments and laws—and then considers that such attacks might someday occur using WMD, it takes little imagination to see that the entire foundation of international law and order might be shaken in a flash, accelerating change in directions that may or may not be optimal.

International lawyers must play a role in avoiding any such Armageddon, by assisting policy-makers in identifying effective strategies for preventing proliferation of WMD. In his paper “The Legislator of Last Resort,” Vik Kanwar tackles this problem by focusing on the role of the Security Council in handling the proliferation of WMD, a topic most salient given last week’s Security Council Resolution 1747 (Mar. 24, 2007) on Iran.

About half of the paper is devoted to explaining the sources of the Security Council’s power in this area, which arise not just from the express and implied powers anchored in the U.N. Charter, but also from multilateral treaty regimes relating to WMD that envisage a role for the Council in monitoring and enforcing compliance with the regime. Another third of the paper sets forth the principal course of action typically taken by the Council when confronting proliferation threats, which Kanwar breaks down into a four-level process: (1) referral/provisional measures; (2) promotion of negotiation/declaration/censure; (3) economic sanctions; and (4) the use of force. There is value in these sections of the paper in that Kanwar is exclusively focused on the nexus of WMD and the Security Council, and those unfamiliar with that nexus will benefit from his overview and insights. Thus, Kanwar usefully reminds us of important interplay among the relevant actors, such as having the IAEA as a relatively “neutral” organization for identifying a threat, which can then be referred to the “less-neutral” but more powerful Security Council to address it (pp. 17-18).

For those familiar with the Security Council and its conduct relating to WMD, however, the first part of the paper will not be new, and there are several statements that would likely elicit objection. Thus, most commentators would not characterize Chapter VI of the Charter as containing provisions on collective security (p. 3), nor view the Security Council as having “exclusive” powers (as opposed to “primary responsibility”) in determining violations of international peace and security (p. 4), nor accept that legal disputes over the meaning of the U.N. Charter should generally be referred to the International Court of Justice (p. 13), since non-adjudicatory dispute resolution is (and should be) the far more dominant approach. Likewise, the characterization of “censure” or “provisional measures” as being within the province of Chapter VI, while economic sanctions and the use of force are the province of Chapter VII (p. 20), does not comport with the terms of, or practice, under the Charter. Perhaps most striking is the assertion that Chapter VII sanctions have never been applied to a non-proliferation crisis(p. 21), since most observers would likely view Security Council Resolution 687 (imposing economic sanctions on Iraq pending the destruction, removal or rendering harmless of WMD) as just that. And though the organization and writing of the paper are fairly clear, some parts are hard to follow, such as: “Key findings failures and breaches will oblige the board triggering sending the matter referral to the UN Security Council; this provides objective architecture based on breach of obligations.” (p. 10).

The most intriguing part of the paper comes at the end, where Kanwar argues that the current “unidirectional strategy of censure, sanctions and force” is inadequate. Instead, Kanwar favors more “lateral strategies,” by which is meant Security Council action that seeks to impose constraints broadly upon all states rather than targeting one or miscreants. He lauds various proposals advanced by Mohamed El Baradei, Pierre Goldschmidt, and George Perkovich that would move away from a reactive posture on the part of the Security Council and toward more “creative and durable resolutions aimed at developing long term legal and operational capacity, and supporting the non-proliferation framework” (p. 27). While others have lamented the recent trend by the Security Council to engage in “legislation”—meaning enactment of norms that bind states broadly for broad purposes, rather than targeting a specific threat—Kanwar celebrates the possibilities for getting ahead of the non-proliferation curve and of bolstering existing WMD treaty regimes. Indeed, he sees the possibilities for synergy between the Security Council and multilateral treaty regimes as one means for countering concerns about the legitimacy of Security Council “legislation.”

Perhaps in his future work, Kanwar will wrestle more deeply with problems attendant to this approach. He recognizes that by ramping up Security Council involvement in these multilateral treaty regimes, we should not undercut them (p. 28), but does not explain how that is to be done. If the door is opened, why wouldn’t the major powers use the Security Council to advance their security objectives in situations where multilateral negotiations would be lengthy and perhaps unsuccessful? He recognizes that a “lateral” strategy might end up imposing obligations on states that have always been good citizens, while the rogue states remain recalcitrant, calling into question the utility of the lateral approach (p.29). If so, then why is a lateral strategy superior to a reactive strategy? And if the contemporary problem of proliferation of WMD has been especially aggravated by the threat posed by non-state actors, does a lateral strategy do anything special for addressing that threat? If our concerns on certain weapons (e.g., nuclear weapons) is really focused on just a few states (Iran, North Korea, Pakistan), is a lateral strategy really what is needed or will it distract us from the real threats, or from the real long-term solutions (Mideast Peace, regime change, promotion of democracy)?

These are not easy issues. Vik Kanwar has boldly plunged into an area that is extremely important and should be thought and re-thought by international lawyers in the years to come. As such, his contribution is very welcome.

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