For at least twelve years, Security Council reformers have proposed many ways to enlarge the size and diversify the composition of that body

Alvarez, Jose E.

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U.S. POLICIES TOWARDS AND IN THE U.N.SECURITY COUNCILJos E. Alvarez*REMARKSFor at least twelve years, Security Council reformers have proposed manyways to enlarge the size and diversify the composition of that body. The goalsof these proposals, two of which were endorsed in the Secretary-General's 2004Report on High LevelPanel on Threats, Challenges and Change,' were to makethe Council more representative of the broader membership, especially of thedeveloping world, while at the same time not impairing the decision-makingabilities of the Council. Everyone recognizes that the trick is how to bestbalance those two competing goals.The next President of the United States (U.S.) should take another look atthe Council reform proposals contained in the High Level Panel report. Thatreport outlined two models for Council reform, A and B, and any newadministration should re-examine whether a serious diplomatic effort to pushthese is worthwhile. Under both proposals, the Council's membership wouldexpand to twenty-four states, consisting of six states each from the regions ofAfrica, Asia/Pacific, Europe, and the Americas; neither proposal would modifynor expand the number of veto-holding states.2 The only difference between Aand B consists of the proportions of new seats that would be permanent,renewable, or non-renewable. The new President should also take seriously thePanel Reports' recommendations on how to better institutionalize Art. 23 of theUnited Nations (U.N.) Charter-which suggests that the Council's membershipshould recognize states who contribute the most to the U.N. financially,militarily, and diplomatically.' At the same time, there is no reason to assumethat political realities have shifted to make enlargement of the Council anymore likely now than before. It may be that enlarging the Council in the currentclimate among the P-5 may aggravate the Council's paralysis. For this reason,I will not dwell further on the prospects of reforming the Council which requireamending the U.N. Charter.* Hamilton Fish Professor of Law & Diplomacy, Columbia Law School; Visiting Professor, NewYork University Law School.1. UNITED NATIONS, A MORE SECURE WORLD: OUR SHARED RESPONSIBILITY, REPORT OF THESECRETARY-GENERAL'S HIGH-LEVEL PANEL ON THREATS, CHALLENGES AND CHANGE (2004).2. Id. at 80-81.3. Id. at 82.ILSA Journal of International & Comparative LawBut even if the Council's membership is not enlarged, the next U.S.Administration should continue to push for having those elected non-permanentmembers of the Council be, in their respective regions, among the top threefinancial contributors to the regular budget, the top three voluntary contributors,or the top three troop contributors to U.N. peacekeeping. Other proposals in theSecretary-General's High-level Report are also worth supporting for the sakeof greater accountability-such as its proposal for the introduction of a schemefor "indicative voting" whereby Council members can call for public indicationof positions on proposed action, but where indicative "no" votes would nothave veto effect.4At the same time, the next Administration needs to go beyond these well-worn reform proposals. The United States needs to address the credibility/legitimacy concerns faced by the Council both when it fails to act and when itacts pursuant to Chapter VII and purports to enact global legislation. Most ofthe attention has rightly been on finding ways to overcome Council paralysis.This is understandable, given the Council's many failures to act throughout theCold War and its more recent failings. The Council has undermined itslegitimacy when it has failed to take action to respond to clear threats to thepeace or breaches of the peace, most notably with respect to Kosovo andDarfur, but some might add other notable cases of the Council's passivity-aswith respect to Iran.While some would propose remedying the problem of Council inaction byestablishing a new legal principle-the Responsibility to Protect-I am not surethat we really need new law as far as the Council is concerned. I think that theCouncil's failure to act in the case of Darfur, for example, is a failure ofpolitical will, not law. Determining what constitutes a "threat to the inter-national peace" (a term subject to no pre-established definition under pre-Charter international law) is a matter for the Council to determine. No onewould suggest that it is barred from responding to humanitarian crises, even byauthorizing force pursuant to such a determination. Legal problems ariseprecisely when the Council fails to act and some are tempted to act unilaterally.With respect to the Council's inaction problem, our moderator, TomFranck, has characteristically made valuable pragmatic suggestions that areworth considering anew. Back in 2002, in the wake of Kosovo, Tom Francksuggested on the pages of the American Journal of International Law that theCouncil can avoid accusations of being a paper tiger by incorporating pre-authorizations to use force into its Chapter VII resolutions as appropriate.'Under Franck's proposal, the Council would indicate when a material breach4. Id.5. Thomas M. Franck, Inspections and Their Enforcement: A Modest Proposal, 96 AM. J. INT'LL. 899 (2002).320 [Vol. 15:2of its sanctions program would authorize the use of force by a regional groupingor a coalition of the willing. Under his proposal the Council members (or theP-5) would decide by informal arrangement that in such cases, decisions onwhether a subsequent triggering material breach had occurred would be takenby a majority of any nine Council members without exercise of the veto. AsFranck indicated, there is a precedent for such an informal defacto amendmentof the deployment of the veto: long ago the Council decided that proceduralmatters could be decided by nine of its members (without exercise of the veto).6One could imagine other informal agreements by the P-5 not to exercise theveto with respect to other issues as well, but of course, the prospect of suchagreements would turn on relations among the P-5.If Franck's proposal was to be adopted, we could be spared caseswhere-as with respect to Iraq in 2003-a country attempts to auto-interpretprior Council resolutions as a license for war or numerous instances where theCouncil's bark has lacked bite. As we all know, the Council's legitimacy ascollective enforcer of the peace-and the U.N.' s credibility as a whole-sufferswhen either of these occur.The next Administration also needs to concern itself with the legitimacyof the Council when it undertakes binding Chapter VII action. It is especiallyimportant that the next Administration carefully consider when it wants to usethe Council to impose law on the world. As many here know, the Council hassought to impose counter-terrorism legislation on all states through CouncilResolution 1373 and its progeny. It has done similarly with respect to weaponsof mass destruction under Resolution 1540 and related resolutions. It hasimposed financial and travel sanctions on designated organizations andindividuals under resolution 1267 and other related resolutions, and it appearsto have licensed a kind of "transformative occupation law" with respect to Iraqin resolution 1483 and later resolutions.7 All of these have triggered legitimacyconcerns. The Council was never intended to displace the vehicle parexcellence for multilateral cooperation-namely negotiations leading to theconclusion of a treaty. It is a political body and does not have either thebureaucratic apparatus of an administrative agency that engages in rule making,or the democratic credentials of a legislature charged with the making of lawin a liberal state. The potential for the Council to overstep when it engages inglobal law-making was given clear voice recently when a Grand Chamber of theEuropean Court of Justice held, in the Kadi case, that the Council's counter-terrorism sanctions on individuals, as implemented by European law, wereincompatible with the due process and property rights accorded persons under6. Id. at 900.7. For a summary of all of these Council actions, see Jos6 E. Alvarez, Hegemonic InternationalLaw Revisited, 97 AM. J. INT'L L. 873 (2003).A lvarez2009]ILSA Journal of International & Comparative Lawthe European Convention on Human Rights.! Although the ruling sent shockwaves among international lawyers, who had become accustomed to the notionthat the Council is not subject to judicial review by anyone, the Court's findingthat it is not legitimate to brand people as terrorists or terrorist sympathizers andpenalize them by denying them access to bank accounts without showing themthe evidence of their wrongdoing or giving them the benefit to rebut thatevidence, should not, on proper reflection, have surprised anyone.The Court invalidated the European regulation implementing the Council's1267 sanctions, but allowed the European Council three months to find anaccommodation. I would predict that the U.N. Security Council will find a wayto incorporate the procedural rights that the European Court insistedon-perhaps by borrowing from the procedural protections contained in theUnited Kingdom's Prevention of Terrorism Act of 2005 (which uses specialadvocates to represent the interests of affected parties).9The next Administration needs to heed the broader lessons of the Kadidecision. The Council, especially when it acts as law-giver and not mereenforcer of the peace, cannot afford to be a law onto itself. Kadi tells us thatat a time when all international organizations are under pressure to act pursuantto law and are increasingly expected to be held politically accountable, theCouncil is increasingly likely to be subjected to the political (and legal) checksand balances that other international legal regimes face."0 This is particularlytrue when the Council seeks to bypass the state and act directly on individuals.The Council is increasingly expected to act not only in accord with the vague"principles and purposes" of the U.N. Charter, but also in conformity withfundamental principles of international law, especially human rights. The nextAdministration may need to accept that the Council too is a creature and asubject of law, which cannot simply be used as a tool of hegemonic power sansrestraint. The Kadi case also implies that it would behoove the SecurityCouncil to engage in greater consultation with other bodies-including humanrights experts and the General Assembly-before it engages its all too powerfulChapter VII powers. Michael Reisman's proposal to establish a Chapter VIIConsultation Committee consisting of a designated sub-group of the GeneralAssembly is certainly worth considering in this respect."8. Case C-402/05 P, Kadi v. Council E.U. & Comm'n of the E.C., 2008 ECJ 11-3649, 284,http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62005J0402:EN:HTML (last visited Feb.17, 2009).9. For a description of the operation of the United Kingdom Act, see generally JOINT COMMITTEEON HUMAN RIGHTS-NINETEENTH REPORT, 2006-07, HL 157/HC 790, available at http://www.publications.parliament.uk/pa/jt200607/tselect/jtrights/157/I 5702.htm (last visited Feb. 17, 2009).10. See Case C-402/05, supra note 8.11. See W. Michael Reisman, The Constitutional Crisis in the United Nations, 87 AM. J. INT'L L.83, 99 (1993).[Vol. 15:2AlvarezThe next Administration should also not lose sight of the fact that theSecurity Council plays a singularly significant internal function at the U.N. AsU.N. observers have long recognized, the Council-and particularly the P-5-have in the past effectively determined who will be selected as the U.N.'sSecretary General. Despite what the Charter anticipates, the General Assemblytends to ratify whatever choice emerges from within the Council. As JohnBolton's recent memoir, Surrender is Not an Option, reminds us, in the courseof the bargaining among the P-5 over the selection of U.N. Secretary-General,other deals are struck-such as whether the incoming Secretary-General willreplace all high ranking U.N. officials or which high level secretariat slot willbe accorded to which P-5 member in exchange for their vote. 2 This vote-trading among a select group is not pretty. It does not necessarily elevate meritas the criterion for selection. Even if we accord a discount for its self-servingnature, John Bolton's depressing memoir of the selection of Ban Ki-Moon tellsus that the next Administration can do much to improve how the next U.N.Secretary-General or other high level U.N. officials are selected. Boltonsuggests that Ban Ki-Moon was selected because, among other things, Secretaryof State Rice did not want a "strong" Secretary-General.13 Bolton tells us in nouncertain terms that he pushed for Ban Ki-Moon precisely because he wouldnot be what he calls a 'secular pope' and was the best option given the on-negotiable demand that it was 'Asia's turn.'14 Along the way, Boltondisparages the "High Minded" who are "always exhorting the U.N. to conductan 'open and transparent job search"' and who urge broad consultation.15 Hepraises the side-lining of the General Assembly with respect to such decisions,suggesting that it was a good idea to give that unruly body a 'take-it-or-leave-it' choice with respect to the selection of Secretary-General. 6 While Imean no disrespect to the current Secretary-General, I would hope that the nextAdministration does the opposite of what Bolton suggests. (This would not bea bad idea as a general piece of advice on all matters relating to the U.N., butI digress.) One way that the U.N. can be reformed must surely be to get the bestand the brightest to run it. Given its inordinate power, the United States-andthe U.N. Security Council-can do much to make sure that this occurs.Thank you.12. JoHN BOLTON, SURRENDER ISNOTAN OPTION: DEFENDING AMERICA AT THE UNITEDNATIONSAND ABROAD 273-90 (2007).13. Id. at 279.14. Id. at 278-84.15. Id. at 279-80.16. Id. at 279.2009]

U.S. Policies Towards And In The U.N Security Council

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U.S. Policies Towards And In The U.N Security Council

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