At the time of the missile test announcement, we ran a series of posts that explored the nature of UN Security Council powers and options (particularly here). These issues were germane because the North Koreans claimed that they had a right to launch under the Outer Space Treaty and because they did not acknowledge the legality of UNSC Resolutions aimed at curbing the country’s missile and nuclear activity; to the contrary, we traced their hostile reaction to these resolutions, which often attempted an alternative legal justification. We also reproduced a conversation with Jared Genser, an adjunct professor at Georgetown, who took a pretty expansive view of the UNSC legal capabilities.
Even though the resolution of nuclear issues on the Korean peninsula is ultimately a political issue, it is important that we continue to advance the case for abiding by international legal obligations.
Daniel H. Joyner, a professor at the University of Alabama School of Law, has taken a somewhat contrarian view on these questions, and with respect to the appropriate institutional arrangements for censuring governments involved in violations of non-proliferation norms. Here, we reproduce a conversation with Joyner on these issues.
Jared Genser has taken a very expansive view of the UN Security Council’s powers; you take a somewhat different view.
I’ve read over Genser’s comments and I think he is about 95 percent right. On most points, he provides the widely accepted view of the law. I disagree, however, with his interpretation of the scope of the authority of the UNSC, and on the question of whether there is an institutional check on this authority.
In my 2009 book, International Law and the Proliferation of Weapons of Mass Destruction (Oxford University Press, 2009), I argued that it is indeed possible for the UNSC to act beyond the scope (ultra vires) of its authority, and I made a detailed argument that UNSC Resolution 1540 is an example of such an ultra vires action.
In UNSC 1540 the UNSC decided that all states must adopt in their national laws quite broadly prescribed legal frameworks regulating exports of single and duel use WMD-sensitive goods. States must also provide for criminal penalties for non-state actors in violation of WMD trafficking-related laws. This decision was proactive, forward-looking, and meant to be generalized and of indefinite duration. Basically it was a piece of international legislation enacted by a 15 member international organization, five of whose members enjoy anachronistic proprietary voting rights.
In that case the UNSC ignored the textual prescription in the U.N. Charter for how rules of international law on the subject of arms control are to be produced through the U.N. institutional system. In particular, Articles 11 and 26 of the Charter spells out the procedure for generating law on the subject of arms control: it is to begin in the General Assembly; then go to the UNSC for the generation of a specific plan; which is lastly submitted to all U.N. member states for their actual adoption into law.
Having acted outside of the prescribed limits of their authority, I argued that the resulting resolution was void from the beginning (ab initio).
A pressing question for those interested in Iran and North Korea is whether any other UNSC resolutions–including country-specific ones regarding missile or nuclear tests–would also constitute action that you deem ultra vires. Even if you think that these resolutions—including UNSC 1695, 1718, 1874–are permitted it could be interesting to state why they differ from the concerns you have with respect to 1540.
Resolution 1540 could be determined to be ultra vires because there was an actual prescription of how such rules were to be made in the Charter. The same could not be said, for example, of Resolution 1373 on terrorism, which closely resembled Resolution 1540 in its legislative characteristics. Without that clear prescription of an approved process that the UNSC didn’t follow, it is difficult to show that there is a justiciable limit to the UNSC’s broad and vaguely worded authority in Article 39 of the Charter.
Thus, it is difficult to argue that any of the UNSC’s resolutions that are adopted responsively, on an ad hoc basis, on a country or situation-specific issue, are ultra vires. However, as I recently argued in an article published in the Georgetown Journal of International Law (“The Security Council as Legal Hegemon,” 43, 2 (2012)) while perhaps not justiciably ultra vires, many of the Security Council’s decisions in the area of nuclear nonproliferation can be shown to trample upon fundamental principles of international law. At least in this issue area, the UNSC has shown itself most clearly to perceive of its authority as that of a legal hegemon, unbound by basic principles of international law.
Examples I discuss in the article include Resolutions 1718 and 1874, in which inter alia the UNSC commands the DPRK to re-accede to the NPT, from which it had withdrawn pursuant to Article X of the Treaty. The Security Council in this resolution determined that it has the authority to contravene a state’s decision to withdraw from the obligations of treaties, according to those treaties’ explicitly stated rights of withdrawal. It further determined that, regardless of the will or contrary actions of a state, it has the authority to impose permanent, substantive obligations on a state with regard to its military capabilities.
These actions of the Security Council would seem to carry serious implications with regard to the consensual nature of all of the sources of international law, which is in turn intimately linked to the sovereign character of states in the international legal system. If the Security Council can order a state to enter into, or at least maintain legal obligations against the will of the state concerned, what indeed can the Security Council not do?
There is one other UNSC resolution in this area that I do think could, at least in part, be determined to be justiciably ultra vires the UNSC’s authority in the same fashion that UNSC Resolution 1540 is. In Operative Paragraph 5 of Resolution 1929, the Security Council considered what is essentially a legal question – i.e. the obligations of Iran under its Safeguards agreement and subsidiary arrangements with the IAEA – and whether those obligations include either the original or the modified Code 3.1 formulation with regard to the disclosure of the existence of new nuclear facilities. (Find an op-ed I wrote on this issue here)
In Resolution 1929, the Council made what can only be described as a judicial decision, accepting one legal argument or interpretation as more persuasive than another. In unmistakably judicial form, the Council then ruled on the legal question by issuing an order that the party in the dock before it must abide by its determination of the law.
The U.N. Charter is quite clear on the question of which forum, or organ within the institutional structure, is to decide legal disputes and perform judicial functions. Hint: it’s not the Security Council. Rather, in Article 92, the Charter provides that the International Court of Justice “shall be the principal judicial organ of the United Nations.” And even more specifically, in Article 36 it provides this explicit directive and reminder to the Security Council itself:
“In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court.”
As discussed above the Security Council does have broad authority to act under the Articles of Chapter VII when it determines the existence of a threat to international peace and security. But this authority is not without bounds. The Security Council itself is bound by Article 25 to act in accordance with the Charter. The Council is in this way bound to observe the order and delegations of roles provided for by the instrument from which it draws its own authority. Where, as in Articles 36 and 92, the Charter clearly delegates a role and type of authority to a separate U.N. organ, the Security Council cannot legally usurp the authority so delegated, and arrogate it to its own use.
I argue that in passing Resolution 1929, the Council did just that. It usurped the role of the International Court of Justice in settling a legal dispute among U.N. member states, and in exercising an essentially judicial interpretive/determinative function to do so. This is a role that was never intended by the Charter framers for the Security Council to fulfill. The Council has neither the mandate nor the qualifications to act as an international judicial body. In passing Resolution 1929, therefore, the Council acted in contravention of Article 25 of the Charter. The operative paragraphs in Resolution 1929 which express the determinations of the Council acting in this judicial role, notably paragraph 5, are therefore ultra vires the Council’s authority and, like Resolution 1540, are as a result void ab initio
If your analysis is correct, is there any institutional check on the authority of the Security Council – any process whereby the Council’s resolutions can be declared ultra vires? Genser argues that there essentially is no such institutional check and that as a result North Korea’s complaints in this regard are without legal foundation.
I disagree with Genser’s reading of case law and secondary sources on the question of whether there is a possible institutional check on the UNSC’s power. In Chapter 5 of my 2009 book I argue that the International Court of Justice has the authority to exercise that role in binding fashion through incidental review of UNSC decisions, though they have so far declined to do so. This analysis is fairly involved, and I can’t do it credit in this space; those interested can consult Chapter 5 of my 2009 book.
The court of course also has the authority to render a highly persuasive advisory opinion on any matter of international law, including the legality of a UNSC decision. Such a matter could be referred to the ICJ by the U.N. General Assembly, though it has not chosen to do so yet.
Any sense of why the ICJ has declined to take on this role? I assume that the Court is concerned about P5 objections.
The court up till now has tried to exercise judicial restraint in extending its jurisdiction to the review of the lawfulness of UNSC decisions. It’s probably not an institutional fight that many of the ICJ judges would relish having. But at some point I think the ICJ will need to exercise this jurisdiction in order to protect states from the legal overreaching of the UNSC, and in the area of nuclear nonproliferation in particular as that seems to be the issue area in which the UNSC is most clearly pushing the limits of its role and authority.
As I note above regarding Resolution 1929 on Iran, the UNSC made an authority grab at the expense of the ICJ itself, in abrogating the ICJ’s judicial function. That is the kind of UNSC action, more than any other, that I think may eventually force the court’s hand. No court likes to have its authority and jurisdiction usurped.