NYU/Government of Austria Issue “The UN Security Council and the Rule of Law”

Simon Chesterman of NYU passed along the following summary and link to the report prepared by NYU Law School’s Institute for International Law and Justice in collaboration with the Austrian Government titled, “The UN Security Council and the Rule of Law: The Role of the Security Council in Strengthening a Rule-based International System.” It looks to be a useful contribution to the growing literature on the UNSC as law maker and norm elaborator. The executive summary states:

(i) The UN Security Council is the most powerful multilateral political institution. It has grown well beyond its initial function as a political forum and serves important legal functions. Traditionally, this included determining that a threat to the peace, breach of the peace, or act of aggression had occurred and prescribing specific, legally binding obligations on Member States under Chapter VII of the UN Charter. Today it embraces establishing complex regimes to enforce its decisions and passing resolutions of general rather than specific application. These expanded powers can facilitate swift and decisive action, but have raised questions about the legal context within which the Council operates and the extent to which the Council itself adheres to the rule of law.

(ii) The “rule of law” is widely embraced at the national and international levels without much precision as to what the term means. At the national level, it requires a government of laws, the supremacy of the law, and equality before the law. Strengthening a rules-based international system by applying these principles at the international level would increase predictability of behaviour, prevent arbitrariness, and ensure basic fairness. For the Council, greater use of existing law and greater emphasis on its own grounding in the law will ensure greater respect for its decisions.

(iii) In addition to post-conflict peacebuilding, the rule of law is now also seen as a tool for preventing or resolving conflicts. The preparedness of Member States to take collective action, through the Council, was endorsed, in limited circumstances, at the 2005 World Summit by the adoption of the Responsibility to Protect. It should be supported by firm opposition to impunity and greater efforts to establish or re-establish the rule of law in fragile States. The rule of law must also apply to those who intervene.

(iv) The Council is a creature of law but there is no formal process for reviewing its decisions; the ultimate sanctions on its authority are political. These include challenges to the Council’s authority through the General Assembly, or individual or collective refusal to comply with its decisions. It is in no one’s interest to push these political limits. For its part, the Council should limit itself to using its extraordinary powers for extraordinary purposes. When it is necessary to pass resolutions of a legislative character, respect for them will be enhanced by a process that ensures transparency, participation, and accountability. When the Council contemplates judicial functions, it should draw on existing institutions of international law.

(v) Sanctions targeted at individuals have presented a challenge to the authority of the Council: legal proceedings have been commenced in various jurisdictions and there is evidence that sanctions are not always applied rigorously. The Council should be proactive in further improving “fair and clear procedures” to protect the rights of individuals affected by its decisions, complying with minimum standards and providing on its own for periodic review.

(vi) The Security Council is most legitimate and most effective when it submits itself to the rule of law. Though the Council does not operate free of legal limits, the most important limit on the Council is self-restraint. Member States’ preparedness to recognize the authority of the Council depends in significant part on how responsible and accountable it is — and is seen to be — in the use of its extraordinary powers. All Member States and the Security Council itself thus have an interest in promoting the rule of law and strengthening a rules-based international system.