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North Korea: Witness to Transformation

Genser on United Nations Security Council Powers

by | March 26th, 2012 | 07:00 am
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We received a comment on the international legal issues surrounding the missile launch from Jared Genser – an Adjunct Professor of Georgetown Law School who teaches a seminar on the UN Security Council – that merits inclusion in a regular post. In subsequent communications, we have clarified a few further issues having to do with the powers of the Security Council. We begin with Genser’s analysis—lightly edited with his permission—and then turn to some further questions.  We should emphasize that as in all fields, international law is contested; caveat emptor. Nonetheless, we found Genser’s analysis persuasive.

Genser.

While there are also political issues at play, I do think the legal prohibition on the DPRK under international law from conducting further ballistic missile launches is significant. The sequencing of the arguments is as follows:

1. Resolution 1874 was adopted under Chapter VII of the UN Charter, which makes it a binding decision of the UN Security Council.

2. Under Article 41 of the UN Charter “[t]he Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures.” The Security Council has exclusive jurisdiction to make such a decision about what is necessary to promote international peace and security and address what the Council considers a “threat to the peace.”

3. Both under the UN Charter and the jurisprudence of the International Court of Justice in its Lockerbie (Libya v. U.S.) and Namibia cases, the Security Council must act in accordance with the purposes and principles of the United Nations.  Nevertheless, the ICJ has never even tried to use this minimal theoretical check on the Security Council’s actions to invalidate any of its decisions.  Indeed, it has affirmatively stated it does not have the power of judicial review over Security Council decisions.

4. Article 25 of the UN Charter states “[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” This obligates the DPRK to implement this decision.

5. Article 103 of the UN Charter states “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”

This is the UN Charter’s built-in supremacy clause.

6. The DPRK has absolutely obtained both rights and duties from other international treaties, such as the Outer Space Treaty (Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies).

7. Nevertheless, the DPRK’s obligations under Article 103 of the UN Charter supersede the operation of any other international treaty. Indeed, the Outer Space Treaty itself says in Article 3: “States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the Moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations . . .” This only reaffirms the power of the Security Council under Article 103 to supersede any state’s rights and duties provided to any country under the Outer Space Treaty providing that state is also a member of the United Nations.

8. Therefore, the DPRK’s obligation to suspend its ballistic missile program and reestablish its moratorium on testing flows directly from its obligations under the UN Charter. Those Charter duties supersede any other rights and duties provided by other treaties to which the DPRK is a party.

While there may be skepticism regarding the relevance of international law arguments in this debate, there is a healthy interrelationship between the law and politics in this case. The political arguments of various countries opposed to further testing are only strengthened by the clarity of international law on the DPRK’s obligations to refrain from future testing.

The Security Council alone can interpret the meaning its ascribes to any specific resolution, and that interpretation can change over time. Nevertheless, the fact that Resolution 1874 was adopted unanimously, including with support from China and the Russian Federation, makes it very difficult politically for there to be any other interpretation offered of the launch than that it is in flagrant violation of Resolution 1874.”

Haggard.

I argued that the breadth of power delegated to the UN Security Council under Chapter VII was possible because of the veto powers granted to the P5; this assured that unanimity among major powers with different interests would be required to take action under it. However, are there other legal limits of Chapter VII powers? Are there actions that would be considered ultra vires or beyond the powers of the UNSC under the authority granted to it under Chapter VII?

Genser

Former ICJ President Rosalyn Higgins herself raised these questions with regard to the Chapter VII powers of the UNSC: “What are the limits to institutional creativity?  What deviations from what was intended in the Charter are to be regarded as lawful, imaginative adaptations to contemporary needs?  And what are to be regarded as going that step too far to be consistent with legality and as ultra vires?”  The consensus view at this point is that all actions of the Security Council are presumptively legal, unless they are beyond the powers granted to the Security Council in the UN Charter, are in violation of jus cogens (preemptory norms of international law that are inviolable, e.g., prohibition against torture), or are in violation of the principles and purposes of the UN Charter.

But this raises three problems.  First, Article 39 says the Security Council “shall determine the existence of any threat to the peace, breach of the peace, or act of aggression.”  It alone has the power to make this determination and there is no guidance in the Charter or otherwise about how those terms should be defined.  It is therefore inherently a political decision, which leads to well-known selectivity and bias.

Second, Article 41 and 42 defines measures not involving and involving armed force respectively not by limiting powers but by stating that “such action[s]” “may include” illustrative lists of those categories of actions.  But the plain language of the Charter makes clear these lists are not exhaustive.  For example, the preparatory work of the UN Charter never envisioned that there would ever be such things as the Special Tribunals for the Former Yugoslavia and Rwanda. Nonetheless, the Council determined that the best way to secure “international peace and security” in those cases was to provide mechanisms to achieve international justice and accountability for mass atrocities rather than to let immunity prevail.

And third, there is no mechanism to challenge the potential illegality of a UNSC action beyond either defying the Security Council or publicly claiming its actions are ultra vires.  The ICJ in its Namibia case denied it had powers of judicial review over Security Council resolutions.  And in the Lockerbie case, it declined to review the Security Council’s decisions.  Thus, practically speaking, if a country is a party to the UN Charter, it has acquiesced in giving extraordinarily broad powers to the Security Council and there is no effective means for redress.

Haggard

Is there legal or precedential guidance with respect to what the UNSC can legitimately identify as a threat to international peace and security?

Genser

The Security Council has the power to define such threats, and the reality is that the definition can change over time dependent on the composition of the Council. But we can look backwards at prior Chapter VII resolutions and see what factors the Council typically cited when it chose to characterize a situation as a threat to the peace. This work remains to be done for the North Korean case, which involves a very particular set of circumstances.

But one related analogy to the DPRK situation that is worth examining is Iran. The Security Council has adopted a series of resolutions on Iran in which it determined that Iran’s failure to comply with mandated inspections and its acquisition of nuclear and missile technologies was sufficient to constitute a threat to the peace. Sanctions followed.  Interestingly, Resolution 1929 states the following:

“7. Decides that Iran shall not acquire an interest in any commercial activity in another State involving uranium mining, production or use of nuclear materials and technology as listed in INFCIRC/254/Rev.9/Part 1, in particular uranium-enrichment and reprocessing activities, all heavy-water activities or technology-related to ballistic missiles capable of delivering nuclear weapons . . .

9. Decides that Iran shall not undertake any activity related to ballistic missiles capable of delivering nuclear weapons, including launches using ballistic missile technology, and that States shall take all necessary measures to prevent the transfer of technology or technical assistance to Iran related to such activities;” …

Thus, one might argue that the Security Council has acted consistently in treating two countries viewed as potential threats to the peace in similar ways: by broadly sanctioning them and prohibiting them from engaging in the use of any ballistic missile technology, including for the launches of satellites.

Haggard

What about using the NPT as a route to enforcement?

Genser

The NPT is vague on the question of enforcement and no procedure for enforcement is outlined in the treaty itself. It is the statute of the IAEA that provides for the Security Council referral (IAEA Statute Article XII.C).  Such a measure was taken against Syria. There is no obligation upon a referral for the UNSC to act, but in principle it may do so under Chapter VII if it sees fit.

Haggard

In future posts, we will explore in more detail the international legal dimensions of the North Korean issue, including the role that might be played by the IAEA, the NPT and UNSCR 1540, which was adopted unanimously under Chapter VII and imposes binding obligations on Member States of the UN not to transfer WMD technology to non-state actors.