“Building a Taxonomy of UN Security Council Decisions: a Biased Compliance with the UN Charter Obligations?”
Rossana Deplano*
ABSTRACT: There is a tendency among scholars and practitioners to assess the role of the UN Security Council from the limited perspective of the actions taken pursuant to its resolutions, irrespective of other significant considerations contributing to the final adoption of those actions. This article seeksto reconstruct the legal mind of the Security Council from an empirical perspective.How does the Security Council deal with the issues covered by its mandate? Which decisions does it adopt in relation to specific subject-matters and what is the rationale behind such decisions? Although the inquiry is restricted toa limited time-frame(2001 - 2012), this article shows that the powers of the Security Council are characterized by an inherent tension between compliance with theterms of its mandate and a degree of discretion related to the selection of the subject-matters, which ultimately amounts to a biased compliance with its UN Charter obligations.
1.Introduction
Scholarship exploring the mandate and the powers of the UN Security Council (SC) abounds. Literature routinely examines various aspects of the functions of the SC stemming from Article 24 of the UN Charter[1] and how they relate to general international law.Certain scholars argue that the SC has gradually developedits legislative competencies beyond the text of the UN Charter and probably in violation of international law.[2]Consequently, other scholars have proposeddifferent approaches to what they perceive as a necessarycurtailment of SC enforcement powers.[3]
Although proposals on the limitation of SC powers show doctrinal and normative insights, there is scant research systematically examining SC practice beyond selected case studies. Moreover, existing scholarship appears to focus onselect individual SC resolutions or, clusters of SC resolutions that are relevant to the theoretical inquiry, to the exclusion of other types of SC decisions. For instance, Henderson and Lubellfocus on the legal effects on state and non-state armed groups of SC resolutions on ceasefire.[4] Similarly, Johnstoneuses SC deliberations on the situation in Kosovo as a case study[5] to analyse the legal argumentsshaping debate on the legitimacy of humanitarian intervention in the absence of explicit SC authorization.
The present study targets these knowledge gaps. It utilises evidence from a substantial and systematic quantitative study designed to examine SC procedures in the exercise of its enforcement powers under the UN Charter.Crucially, the study analysesSCpreferences in the exercise of its enforcement powers based on subject categories. Further, theresearch provides a detailed analysis of the working methods of the SC and of the categories of SC decisions, which include, but are not limited to, resolutions.
This study complements existing studies on the SC by introducing an empirical framework for analysing SC dynamics. Using an original database, which includes 2,712 decisions adopted by the SC from 2001 to 2012,the researchseeksto establisha taxonomy of SC decisions that may help determinesignificant selection preferences in the exercise of SC enforcement powers under the UN Charter. It shows that although individual decisions may appear to comply with the terms of the SC mandate, the selection of subject-matters representing the object of SC decisions – which is dominated by issues concerning Africa and the Middle East,ultimately amounts to a biased compliance with the UN Charter obligations.
Section 2 describes the intellectual background andflags the distinctivefeatures of the empirical legal studies movement, which inspires the research methodology adopted for the present study. Section 3 provides an overview of the normative background of the SC, with a focus on its working methods and procedures and the existent categories of SC decisions. Section 4 introduces the empirical framework for assessing SC practice. The first sub-sectionoutlines the research design while the second one presents the database and provides some descriptive statistics. The thirdone discusses the empirical results and their legal implications.Section 5concludes.
2.Why an Empirical Study?
The methodology adopted for this study falls within the tradition ofempirical legal studies (ELS).[6]This is an innovative approach in international law because by using quantitative techniques, it provides new insights on how UN law actually works in practice.[7]The analysis, however, is meant to complement doctrinal scholarship on SC powers without replacing it.
Quantitative analysis depends on the languageof numbers, which makes the empirical evidence particularly hard to contradict or deny.[8] Thus, the bulk of the analysis is based on simple statistics describing patterns of SC decisions – namely, those that entail some form ofadoption by the SC members.The caution though is that ELS cannot be regarded as an end in itself, because counting for the sake of counting amounts to nothing. This means that any empirical study on law, including the present one, presupposes a background of doctrinal and normative analysis.
As an autonomous research field, ELS possesses its own distinctive features. Generally speaking, two elements characterize the empirical research in social science.The first one is represented by the systematic nature of the process of collecting and analysing the information.[9] The second one consists of the rather descriptive way of presenting the results of empirical legal research, which is followed by a discussion of the implications of the empirical evidence.A corollary of the second rule is that, unlike other empirically oriented fields such as socio-legal studies and law and economics, ELS is limited to the analysis of a strictly legal issue and does not address other extra-legal concerns.[10]In this study, both elements are dealt with in Section 4 below.
The self-contained nature of ELS entails that the empirical analysis is usually preceded by a brief overview of the normative background of research, which also makes the analysis accessible to the non-specialist reader. The following section provides the normative framework regulating the SC decision-making process, followed by a systematic analysis of SC decisions.
3.Normative background
The rules governingits working methods and procedures enable the SC to execute its mandate and make decisions that ensure prompt and effective action regarding the maintenance of international peace and security.[11]More specifically, SC working methods and procedures serve two functions. Firstly, they enhance the efficiency of the work of the SC while makingits activities more transparent.[12] Second, they improve interaction and dialogue with the wider UN membership.[13]
The UN Charter authorisesthe SC to meet at any time if circumstances so require.[14]By Article 30, the SC is authorised to adopt its own rules of procedure. The SC Provisional Rules of Procedure were adopted in 1946[15] and have been modified several times over the years.[16]They are supplemented by specific working methods adopted by the SC over time to keep up with changing realities. In particular, ‘Note 507’ by the SC President contains consolidated practices of the SC[17] while the ‘Green Book’ (2010) of the Informal Working Group on Documentation and Other Procedural Questions of the SC contains additional working methods and current practices of the SC.[18] In order to perform its functions, the SC can also establish subsidiary organs as it deems necessary.
Twice a year, the SC holds periodic meetings at the seat of the UN.[19] Other meetings may be called by the SC President at any time if necessary, but the interval between meetings cannot exceed fourteen days.[20] Additionally, the SC President shall call a meeting eitherat the request of any SC member[21] or if a dispute or situation which is likely to endanger international peace and security is brought to the attention of the SC by a UN member, by the UN General Assembly or by the UN Secretary-General in accordance with the relevant provisions of the UN Charter.[22]
As a complement to the above-mentioned provisions, ‘Provisional Rule of Procedure No. 5’ establishes that upon request by a member of the SC or theSecretary-General, the SC may hold meetings at places other than the seat of the UN as in its judgment will best facilitate its work while Rule 6 thereof states that the Secretary-General shall immediately bring to the attention of the SC all the communications from States, organs of the UN and the Secretary-General concerning any matter for consideration of the SC. Only such matters may be included in the provisional agenda for meetings of the SC.
The provisional agenda is drawn up by the Secretary-General[23]and any item of the agenda, the consideration of which has not been completed is automatically included in the agenda of the next meeting. Additionally,each week the Secretary-General communicates to the SC members a summary statement of matters of which the SC is seized and of the stage reached in their consideration.[24] To facilitate the work of SC members, Rule 8 of the Provisional Rules of Procedure requires that the provisional agenda for a meeting is circulated to the members of the SC at least three days before the opening of the meeting or, if it is a periodic meeting, twenty-one days before the opening of the meeting. However, in urgent circumstances the provisional agenda may be communicated simultaneously with the notice of the meeting.
3.1SC Decision-MakingProcess
The decision-making process at the SC is governed by a three-tiered set of rules. The first tier comprises relevant provisions of the UN Charter. Article 27 thereof provides that each member of the SC has one vote and that procedural matters are made by affirmative vote of nine members while decisions on all other matters also require the concurring votes of the five permanent members. Subsequent Articles 31 and 32 regulate the participation, without vote, of non-SC and non-UN members. The former establishes that a non-SC member may participate in the discussion of any question brought before the SC whenever the SC considers that the interests of that member are especially affected. The latter provides that either a non-SC member or a non-UN member may be invited to participate in the discussion of the dispute under consideration by the SC if it is a party of that dispute.
The second tier comprises provisions of the Provisional Rules of Procedure. Some of them complement the text of the UN Charter. For instance, Rule 40 establishes that the voting in the SC must be in accordance with the relevant Articles of the UN Charter and of the Statute of the International Court of Justice (ICJ).[25] Others regulate aspects of the SC decision-making process uncovered by the UN Charter provisions. Thus, Rules 41-47 regulate the official and working languages of the SC – which include Arabic, Chinese, English, French, Russian and Spanish – and establish that all SC documents must be published in the languages of the SC.[26] Likewise, Rules 48-57 regulate the conduct of SC meetings while the Appendix contains the provisional rules of procedure for dealing with communications from private individuals and non-governmental bodies.
The third tier is represented by ad hoc documents establishing specific working methods which complement the Provisional Rules of Procedure. Such documents may be both formal documents, such as ‘Note 507’ consolidating and improving existent working methods of the SC,[27] or informal papers, such as the background note on the‘Arria-formula’ meetings prepared by the UN Secretariat in 2002.[28]
For the purpose of this article, the study of the regulation of the SC conduct of business is of particular importance as it offers insights into the level of transparency of the SC decision-making process. In line with the perceived primacy of SC resolutions over other types of decisions, the next sub-section analyses the legal nature of SC decisions separately. Thus, sub-section 2.4.1 examines the procedural and normative character of resolutions while sub-section 2.4.2 evaluates the remaining categories of SC decisions.
3.2SC Decisions
Chapter IX of the Provisional Rules of Procedure regulates the conduct of SC meetings and the record of the documents adopted at such meetings. As a general rule, the SC meets in public, unless it decides otherwise,[29] and the verbatim record of each meeting is made available to the representatives of the SC and to those of any other states which have participated in the meeting.[30] Once it is signed by the SC President, the verbatim record becomes the official record of the SC.[31] Rule 57 further establishes that once a year, the UN Secretary-General submits to the SC a list of the records and documents which up to that time have been considered confidential. Upon receipt of the list, the SC decides which of these documents is to be made available to other UN members, which to the public and which is to be kept confidential.
Some SC documents containaction point decisions. The text of such decisions is negotiated and agreed upon beforehand in a precise manner.[32] Once adopted, access to all SC decisions is made available to UN members and other organizations through correspondence, the UN website, outreach activities and other means.
SC decisions comprise resolutions, statements by the SC President, press statements, notes by the SC President and letters from the SC Presidents. Other documents which are subject to some kind of decision-making, either in the form of adoption or request by the SC cannot be regarded as SC decisions so long as they do not establish a decision of the SCto act.For instance, the Annual Report of the SC to the UN General Assembly is submitted pursuant to Article 15(1) and Article 24(3) of the UN Charter and is drafted in accordance with Section XII of the Annex to ‘Note 507’ (2010).[33] The text of the report must be approved by all current members of the SC and adopted at a public meeting.
Likewise, the reports of the UN Secretary-General to the SC are submitted to the members of the SC on matters under consideration by the SC. The reports are usually requested by the SC through a formal decision and issued as an official document of the SC.[34] Other SC documents entailing some form of acceptance or request by the SC are the work of the SC subsidiary bodies, which is regarded as an inseparable part of the SC’s work,[35] and the letters from the UN Secretary-General or representatives of other UN or non-UN bodies, organs or institutions to the SC President, usually as part of an exchange of letters between them. Each of the above-mentioned documents relies upon existent SC decisions, but none of them contains a new, separate decision to act by the SC.
3.2.1Resolutions
Resolutions are generally regarded as the category of substantive SC decisions endowed with the greatest political importance.[36]All SC members are allowed to participate fully in the preparation of the text of resolutions and may informally consult with UN members as well as with regional organizations and Groups of Friends.[37] In the conduct of SC business draft resolutions have precedence in the order of submissions for consideration,[38] although they can at any time be withdrawn before a vote has been taken.[39]
According to Article 27, paragraph 3, of the UN Charter, resolutions are adopted by an affirmative vote of nine SC members, including the concurrent votes of the five SC permanent members, in a public meeting. Draft resolutions may be proposed by any UN member. However, those proposed by non-SC members may be put to a vote only at the request of a representative on the SC.[40] Once a resolution is adopted, the UN Secretariat ensures its promptest communication to the parties concerned as well as its widest possible dissemination.[41]
Although there is no agreement on the legal effects of resolutions, the ICJ in Certain Expenses[42]established that UN resolutions may contain binding and non-binding provisions, or a combination of both.Thus, binding resolutions are those containing provisions which are capable of creating binding obligations on their addressees. Non-binding resolutions, on the contrary, contain declarations or recommendations.[43]Other classifications include three categories of legal effects. Substantive effects comprise binding, authorizing and empowering effects. Causative effects consist of determinations of fact or of law which are capable of bringing substantive effects into existence. Modal effects refer to the how and when substantive effects come into existence, including retroactive, non-retroactive, immediate, deferred, reversible or irreversible effects.[44]
The main problem associated with the legal effects of SC resolutions is the determinationof which provisions are legally binding and which are not. Regarding this, the ICJin theNamibiaAdvisory Opinion[45] established that the question is to be determined on a case-by-case basis, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provision(s) invoked and, in general, all circumstances that might assist in determining the legal consequences of the SC resolution.
3.2.2Other Types of Decisions
According to established publication practice, written SC decisions other than resolutions comprise presidential statements, press statements, notes by the SC President and letters of the SC President on behalf of the SC.[46] The official records of all SC decisions are collected in the Resolutions and Decisions of the Security Council, a yearly publication which is available to the general public through the UN website.[47]
Presidential statements and letters of the SC Presidentare generally regarded as two categories of substantive decisions.[48] They have different degrees of political importance and require a different adoption procedure.
A presidential statement is a statement by the SC President on behalf of the SC. All SC members are granted adequate participation in the drafting of presidential statements, which are adopted at a formal meeting of the SC.[49] Draft presidential statements are made available, as appropriate, to non-SC members as soon as the statements are introduced within informal consultations on the whole.[50] The adoption of press statements requires consensus in informal consultations or a no-objection procedure.[51]
The letters from the SC President are formal letters by the SC President on behalf of the SC. They are often drafted by the SC President as part of an exchange of letters with Presidents and Chairs of international institutions. They are usually agreed upon in some kind of no-objection procedure, although in exceptional cases they are adopted in a public meeting.[52] Current SC practice shows that they have their greatest practical relevance in the relationship between the SC President and the UN Secretary-General.
Other less official utterances of the SC are the statements made by the SC President to the press on behalf of all fifteen SC members. Theyare issued as a UN press release, both in English and French.[53] Like presidential statements, press statements are drafted by SC members and made available, as appropriate, to non-SC members.[54] Unlike presidential statements, they are adopted only by consensus and are subsequently read out by the SC President to the press.