The Rule of Law in the United Nations Security Council Decision-Making Process: Turning the Focus Inwards

✍ Scribed by Sherif Elgebeily

• Publisher: Routledge
• Year: 2017
• Tongue: English
• Leaves: 222
• Series: Routledge Research in International Law
• Edition: 1
• Category: Library

✦ Synopsis

The UN Security Council is entrusted under the UN Charter with primary responsibility for the maintenance and restoration of the international peace; it is the only body with the power to authorise military intervention legally and impose international sanctions where it decides. However, its decision-making process has hitherto been obscure and allegations of political bias have been made against the Security Council in its responses to potential international threats. Despite the rule of law featuring on the Security Council’s agenda for over a decade and a UN General Assembly declaration in 2012 establishing that the rule of law should apply internally to the UN, the Security Council has yet to formulate or incorporate a rule of law framework that would govern its decision-making process.

This book explains the necessity of a rule of law framework for the Security Council before analysing existing literature and UN documents on the domestic and international rule of law in search of concepts suitable for transposition to the arena of the Security Council. It emerges with eight core components, which form a bespoke rule of law framework for the Security Council. Against this framework, the Security Council’s decision-making process since the end of the Cold War is meticulously evaluated, illustrating explicitly where and how the rule of law has been undermined or neglected in its behaviour. Ultimately, the book concludes that the Security Council and other bodies are unwilling or unable adequately to regulate the decision-making process against a suitable rule of law framework, and argues that there exists a need for the external regulation of Council practice and judicial review of its decisions.

✦ Table of Contents

Cover
Title
Copyright
Dedication
Contents
Acknowledgements
Definitions and abbreviations
Introduction
PART I Defining the rule of law for the Security Council: how, why and what?
1 Yoking the giant Pantagruel: why the Security Council needs a rule of law
Introduction
Why is the rule of law necessary for the Security Council?
The limited composition of the Security Council
The decision-making process and use of the veto
The extended competence of the Council
The legally binding nature of Council resolutions
2 The shifting sands of the rule of law
Introduction
What do we mean by ‘the rule of law’?
The origins of the rule of law
The domestic rule of law
Searching for a definition of the international rule of law for the Security Council
Direct transposition of domestic norms to the international plane
A more cautious examination
A definition for the UN Security Council
The legitimacy of the UN definition
3 The components of a bespoke Security Council rule of law
Introduction
Clarity of action
Legal certainty
Equality before the law
The predictability paradox
Consistency with international human rights norms and standards
The separation of powers and acting ultra vires
The equitable participation in decision-making processes
Accountability before the law
Chapter conclusions
PART II Exploring the components of the rule of law
4 Clarity of action
Introduction
Council obligations for procedural transparency
Private (informal) meetings
Informal consultations
Council efforts to reform
Discussions on working methods
Documentation
Elections of the Secretary-General
Conclusions
5 Legal certainty
Introduction
Determination of a threat under Article 39
Angola
Somalia
Haiti
Afghanistan
Sudan
Patterns in Council practice
Explicit reference to Chapter VII
The anatomy of a Chapter VII resolution
Dilution or digression?
A clear legal basis
Conclusions
6 Equality before the law
Introduction
Council responses to conflicts
Is Syria about Libya?
Council action in analogous situations
Equality in international standards towards nuclear threats
The case of the Democratic People’s Republic of Korea
India and Pakistan
Conclusions
7 The predictability paradox
Introduction
A clear pattern of action
Respect for national sovereignty
Humanitarian intervention
Civilian nuclear programmes: an arbitrary standard?
Conclusions
8 Consistency with international human rights and humanitarian norms and standards
Introduction
The case for applicability of human rights and humanitarian law to the Council
Applying human rights to Council decisions
Article 41: humanitarian concerns regarding non-military intervention
A lesson learnt?
Article 41: human rights concerns regarding non-military intervention
Conclusions
9 Separation of powers and acting ultra vires
Introduction
Sources of support for the separation of powers
The Council’s norm-setting
The international tribunals: advancement of international law by proxy
The Council as direct legislator
International terrorism
Nuclear non-proliferation
Conclusions
10 The equitable participation in decision-making processes
Introduction
Arguing the expansion of the Council
Wider support for Council enlargement
The logistics of expansion
Consultation of relevant parties to a situation or matter of discussion
The infringement on sovereign rights
The veto
The intended purpose of the veto
The veto record of the Council
The United States
The Russian Federation and China
Efforts to reform the use of the veto
Conclusions
11 Accountability
Introduction
Self-regulation
The accountability, coherence and transparency (ACT) group
The Office of the Ombudsperson
Sibling UN organs
The International Court of Justice
Potential coordination with the ICJ
The General Assembly
Conclusions
Final conclusions
Index