June 30th, 2015
By Michelle McKenna – Senior Fellow
Reform of the Security Council must undoubtedly include reform of the way in which it works in practice, as well as changes to the membership. This can be broken down into three distinct categories for improvement: changes to the decision making process, a closer working relationship with the General Assembly and increased use of regional bodies. In addition to this, with the Security Council routinely being accused of being illegitimate, one method for solving this would be to have comprehensive judicial review of its decisions.
At the first meeting of the Security Council it adopted provisional rules of procedure to guide how it operates. Despite being amended several times since then, these rules have remained provisional and have never become binding on its members. This means that the Council can essentially choose to ignore what is set out in the rules and exclude relevant stakeholders from being included in decision making. The most prominent example of this is the fact that the provisional rules provide that the Council shall meet in public unless it decides ‘otherwise.’ Indeed, ‘otherwise’ has become the norm and few meetings are held in public. This reduces the Council’s accountability as the reasons for making decisions can be essentially kept secret, even more so because the permanent members often meet in secret subgroups and exclude even the rest of the Council from their decision making. Any reform of the Council must undoubtedly include these rules becoming finalised so as to prevent members from being able to deviate from them, or, indeed, completely redrawn to allow the Council to become more accessible to those whose interests are affected by its decisions.
At the World Summit states agreed that the Security Council needed to improve its working methods to become more accountable to UN member states and more transparent in its decision making process. The ACT group of 22 states hopes to help this reform process along by calling for the Council to increase participation of non-Council members when their interests are affected. States already have this option at present virtue of Article 31 of the Charter, but there are strict rules on when they can participate and often they are denied the opportunity. A right of participation should be established in order that they can make their views known before the Council takes a decision that affects their vital interests.
The Security Council has made efforts in recent years to improve the accessibility and transparency of its decision making process through increased use of public meetings, but this has not gone far enough to increase its accountability. There is still little participation from outside actors, such as NGOs, and this needs to improved in order for their decisions to be fully informed.
Inclusion of troop-contributing countries is particularly important when deciding on new peacekeeping missions. States that regularly contribute the most troops to peacekeeping missions should be consulted before the decision is taken to create a new mission as their vital interests are affected by this and the knowledge that they will bring from past experiences will enhance the Council’s ability to make the mission more effective.
These simple reforms would not require an amendment to the Charter and would not unduly restrict the power of the Council whilst greatly improving the perceived accountability of the Council; therefore they should be at the forefront of reform proposals.
Relationship with the General Assembly
The Uniting for Peace procedure envisaged that the General Assembly could be utilised whenever the Council was unwilling or unable to act in a situation. Unfortunately, this procedure has never been used, but in light of the atrocities in Syria and the desire to further implement R2P, it could be a useful tool in increasing the legitimacy of the UN. If the Assembly was given the power to do this then it would greatly increase the legitimacy of the organisation as decisions would be make that are representative of the world, but would undoubtedly reduce the power of the Security Council and that isn’t necessarily desirable.
Aside from the Assembly taking decisions in place of the Council, there are other ways in which the relationship between the two bodies can be improved. Under Art 24(3) of the Charter, the Council is required to submit annual reports to the Assembly on its work throughout the year. This practice could be made more frequent through submission of special reports on particular pressing situations, followed by a dialogue about it. This would help improve the transparency and accountability of the Council as the Council could explain the reasons for its decisions and the Assembly could express its views, which the Council could take into account when taking such decisions.
As discussed above, a practice could be established where by members of the Council, particularly the permanent members, have to explain the reasons for their negative votes before the Assembly. This would make the Council more accountable to the rest of the UN and its member states and improve the transparency of its decisions.
Relationship with Regional Bodies
Article 53 of the UN Charter allows the Security Council to be able to utilize regional agencies for enforcement action, but doesn’t allow these regional organisations to take enforcement action unless they have explicit authorisation from the Council to do so. This has often hampered the effectiveness of these bodies as they lack authority to take any robust action, leading to calls for the Council to utilise these bodies on a more regular basis. The Council already has a good relationship with NATO, which undertakes many enforcement actions on behalf of the Council. But even NATO is restricted in the action it can take, as was demonstrated by the prima facie illegal intervention in Kosovo.
The S5 group of states, in particular, favoured the approach of the Security Council increasing its reliance on regional organisations. The Security Council itself has even come round to the idea of utilising regional bodies more – in Resolution 2033 (2012), the Council expressed its desire to take effective steps to enhance the relationship between the UN and regional bodies, particularly the African Union. The AU already undertakes most of the substantive contributions to peacekeeping forces on the continent, but lacks the power to take more robust action. On the basis that many modern conflicts take place in Africa, it is appropriate that the Council is re-evaluating its relationship with the AU, hopefully with the thought to giving the organisation more power. No organisation, even the UN, is better equipped than the AU to respond quickly and effectively to situations arising on its home soil.
There are two options available to the Council for improving its use of regional bodies in conflict situations. At present, if regional bodies were to intervene in a situation and use force, it would have to go before the Council to ask for ex post facto authorisation for the action. This is an unsustainable practice to continue as the organisations would live in fear that they wouldn’t get authorisation and then be liable for violating international law, therefore reducing their desire to intervene in the first place. A more desirable solution would be for the Council to delegate power to the regional bodies at the outset to designate a situation in their region a threat to international peace and security and therefore give them the authority to use force accordingly. This type of delegation would be in accordance with Article 53 of the Charter so wouldn’t require an amendment to it. This would give regional organisations, including potentially the European Union as well as the AU, the confidence to take action without fear of it violating international law and would give these organisations to take action in situations that the Security Council would otherwise not be able to do so due to politicisation.
It is important that if the Security Council was to delegate power to regional bodies there are safeguards in place to ensure this power is not abused. There would need to be a clear delegation from the Security Council in unequivocal terms that regional organisations have this power on either a case-by-case basis or, more sensibly, in advance. The regional organisation would only have the power to take action within its region, any action taken outwith the designated area would not be in accordance with the power given to it by the Council and could result in a breach of international law. If this type of regional delegation was to take place, it would be a good idea for the Council to require that the regional body reports to it on any action it has taken, or possibly give advance notice, in order for the Council to monitor implementation.
There is one danger to delegating more powers to regional bodies. If the Council was to delegate too much power and regional bodies came to rely on it and use it frequently, there is the possibility that the power of the Council could be subsumed by the regional organisation. This would be an undesirable situation as the UN as a whole would essentially become redundant in peace and security matters in these areas. Checks would need to be in place to ensure this doesn’t happen and that the Council does not ultimately lose its power.
At present, no body has the power to review decisions of the Security Council, even the International Court of Justice, which is the judicial arm of the United Nations. The closest the ICJ comes to reviewing the Council is through ad hoc advisory opinions if requested by UN member states. The ICJ has the power to hear binding cases between states, but as the Security Council is not a state another state could not bring a case against it in this manner if it felt the Council had violated international law towards them. Even through advisory opinions, the ICJ cannot directly review decisions the Council has taken and its opinions on Charter interpretation or questions of international law are not binding on any of the UN bodies. This is because all UN bodies are formally equal due to there being no hierarchical structure in the Charter therefore, the ICJ’s power does not rank above that of the Security Council.
There have, however, been cases in recent years that have led to calls that decisions of the Security Council should be reviewable. One prominent example of this is the Kadi case before the European Court of Justice. In this case, the applicant had his bank accounts frozen as part of the al Qaeda targeted sanctions regime, but received no notification of this. He complained that the EU had violated his human rights through implementing these sanctions and the ECJ agreed with him. Whilst this wasn’t review of the Security Council sanctions per se – rather it was a review of the way the EU implemented them – it drew attention to the fact that the Security Council can prima facie act with no restraints and violate human rights indirectly without anyone holding them accountable for this. If the ICJ were able to review decisions of the Council for their legality and compliance with human rights, for example, then this would help to make the Council more accountable. However, it also has the danger of making the Council more reluctant to take action for fear it would be struck down by the Court and this would thus undermine their authority. Even if the ICJ was given non-binding powers to review Council actions, akin to its existing advisory opinions, a public pronouncement contrary to decisions the Council has made would still undermine its authority. A better idea would be for the Council to seek a ruling from the Court before it takes any action to ensure it would comply with international law, but this has the danger of slowing down decision making in the Council and it would not be able to act as decisively in the future. Furthermore, if the ICJ was to remove the restriction that only states parties could appear in cases before it then this could open the floodgates for states trying to sue the Security Council or the UN as a whole, which is not a desirable situation. Any changes to the competence of the ICJ would require an amendment to the ICJ statute, which, as it is an annex to the Charter, would require the same conditions to amend it and it is unlikely that the P5 would be willing to accept the ICJ being able to review its decisions.
Tied into the notion of judicial review is the idea that the Security Council should rely on its own jurisprudence in making future decisions. In the UK, courts when ruling on cases are bound to follow the precedent set by previous cases. It is suggested that the Security Council should adopt this approach when making decisions on international peace and security issues. Whilst it is appreciated that every situation in international law is different, there are many similarities and the Council should follow decisions they have made in the past when a similar situation arises. Syria is the prime example of this. When the Arab Spring started, the situation in Syria was prima facie similar to that in Libya, but yet intervention in Libya happened whilst nothing was done about Syria. This wasn’t to do with the lack of seriousness in Syria – as history has shown us it is much worse – but due to the political issues in Council blocking action from being taken. If the Council was bound to follow decisions they had taken in the past then Russia would not have been able to block R2P being rolled out in Syria. Like many reform ideas, the P5 may not like the idea of being bound by its previous decisions, but if it was to adopt this practice then it would enhance its credibility on the international stage. This type of conventional practice would not require an amendment to the Charter and instead would be a voluntary practice adopted by the Security Council members. But as with any reform proposal, this also has its downsides. If a decision the Council made in the past proved to be ineffective or not the right decision, it could still be bound to adopt a similar decision in the future, or if it didn’t make a decision before then there would be no pressure on it to act decisively if the situation arose again. However, it would be expected that the Council would learn from its past mistakes and, like domestic courts, break with precedent for the greater good.
 Fitzgerald, A. Security Council Reform: Creating a More Representative Body of the Entire UN Membership (2000)
 Chair of Intergovernmental Negotiations Letter to the President of the General Assembly, Non-Paper on Security Council Reform (18th December 2013) http://www.un.org/en/ga/president/68/pdf/letters/12102013Security_Council_Reform_Informals-10_December_2013.pdf
 Bryan D. Kreykes. “A Case for Delegation: The U.N. Security Council, Regional Conflicts, and Regional Organizations” Touro International Law Review 11.1 (2008): 1-22. Abstract available at http://works.bepress.com/bryan_kreykes/2/
 Cox, B. United Nations Security Council Reform: Collected Proposals and Possible Consequences (2009), available at http://scholarcommons.sc.edu/cgi/viewcontent.cgi?article=1035&context=scjilb
 Doehring, K. Unlawful Resolutions of the Security Council and their Legal Consequences, Max Planck Yearbook of United Nations Law (2005)
 See Kokott, J. & Sobotta, C. The Kadi Case – Constituttional Core Values and International Law – Finding the Balance? (2012) European Journal of International Law Vol. 23(4)
 Doehring, K. Unlawful Resolutions of the Security Council and their Legal Consequences, Max Planck Yearbook of United Nations Law (2005)