Book release: Strengthening the rule of law through the UN Security Council

The book StrengtheROL_book_coverning the rule of law through the UN Security Council, edited by Hilary Charlesworth and Jeremy Farrall, was released this month. The collection of essays, three from members of the Security Council Analysis Network,  examine the extent to which the Council has honoured his commitment to the rule of law when exercising its powers under the UN Charter to maintain international peace and security.

The book discusses both how the concept of the rule of law regulates, or influences, Security Council activity and how the Council has in turn shaped the notion of the rule of law. It explores in particular how this relationship has affected the Security Council’s three most prominent tools for the maintenance of international peace and security: peacekeeping, sanctions and force. In doing so, this book identifies strategies for better promotion of the rule of law by the Security Council. Click on  the links below to read excerpts from the book.

Foreward by Alan Ryan and preface to the book

Introduction by Hilary Charlesworth and Jeremy Farrall

Strengthening the local accountability of UN peacekeeping by Jeni Whalan

The UN Security Council as regulator and subject of the rule of law: conflict or confluence of interest? by Jeremy Farrall and Marie-Eve Loiselle

 

 

 

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This Saturday, Australians will finally elect a president

Gary Quinlan, Permanent Representative of Australia to the UN and President of the Security Council for the month of September, chairs the Council’s meeting on the situation in Liberia. UN Photo/Eskinder Debebe.
Gary Quinlan, Permanent Representative of Australia to the UN and President of the Security Council for the month of September, chairs the Council’s meeting on the situation in Liberia. UN Photo/Eskinder Debebe.

Australia is now President of the United Nations Security Council. Throughout September, Australia will set the council’s agenda and chair its meetings. But what will this Saturday’s federal election result mean for Australia’s September presidency and our remaining 16 months on the council?

First published by The Conversation, 2 September 2013

Jeremy Farrall and Marie-Eve Loiselle

Under normal circumstances it would be a stroke of good fortune to hold the Security Council presidency in September. Towards the end of the month, presidents and prime ministers from around the world will gather in New York for UN leaders’ week.

In previous years, countries holding the council presidencyin September have scheduled high-profile, high-level council debates on important global themes. But the scheduling of federal elections during the same month as our presidency has complicated our diplomatic efforts to make the most of this rare opportunity.

It is no small irony that the greatest challenge posed so far to Australia’s presidential aspirations has come not from a sceptical Coalition, but from a convinced Labor. As Oscar Wilde might have observed, to schedule elections in September once (under Gillard) may be regarded as a misfortune but to do so twice (under Rudd) seems like carelessness.

Kevin Rudd must have been tempted to delay the elections beyond September so that he could have the Security Council presidency all to himself. But the Coalition would have gleefully painted him once again as “Kevin 747”, a prime minister who was more interested in rubbing shoulders with global leaders than humble Australians.

Somehow, despite the conflict between national elections and our Security Council presidency, Australia has managed to schedule a high-level council meeting on small arms. This is the first time since 2008 that the council has held a formal debate on this topic.

According to diplomatic convention, our prime minister will be expected to sit in the president’s chair for the high-level meeting on small arms. This means that the election’s victor will soon get the chance not just to look presidential, but to be president of the most important peace and security body in the world.

So how will the election result affect the rest of Australia’s presidency? The answer is very little. While the Security Council has the flexibility to respond spontaneously to pressing threats to international peace and security, September’s formal schedule was painstakingly negotiated with other council members during August.

No matter which candidate wins government on Saturday, he will have little scope to modify the agenda for this month. In terms of protocol, Australia’s UN Ambassador Gary Quinlan will be the daily face and voice of the council throughout September.

The more interesting question is how the election result will affect Australia’s general participation on the council once our month as president ends. Kevin Rudd’s position on the virtues of Security Council membership would appear clear. He was the chief engineer of Australia’s campaign to join the council and plainly values any chance to showcase his nation’s contributions on the global stage.

So, if anyone understands the importance and the possibilities of our council membership it is Kevin Rudd. If he does win on Saturday, then he could be expected to use the presidency and the remainder of our membership to promote effective action to protect civilians in Syria and to stamp out illegal trade in small arms. However, with the polls the way they are, it is highly likely that Tony Abbott will soon set the priorities for Australia’s membership on the Security Council.

Australia is now President of the United Nations Security Council. Throughout September, Australia will set the council’s agenda and chair its meetings. But what will this Saturday’s federal election result mean for Australia’s September presidency and our remaining 16 months on the council?

Under normal circumstances it would be a stroke of good fortune to hold the Security Council presidency in September. Towards the end of the month, presidents and prime ministers from around the world will gather in New York for UN leaders’ week.

In previous years, countries holding the council presidencyin September have scheduled high-profile, high-level council debates on important global themes. But the scheduling of federal elections during the same month as our presidency has complicated our diplomatic efforts to make the most of this rare opportunity.

It is no small irony that the greatest challenge posed so far to Australia’s presidential aspirations has come not from a sceptical Coalition, but from a convinced Labor. As Oscar Wilde might have observed, to schedule elections in September once (under Gillard) may be regarded as a misfortune but to do so twice (under Rudd) seems like carelessness.

Kevin Rudd must have been tempted to delay the elections beyond September so that he could have the Security Council presidency all to himself. But the Coalition would have gleefully painted him once again as “Kevin 747”, a prime minister who was more interested in rubbing shoulders with global leaders than humble Australians.

Somehow, despite the conflict between national elections and our Security Council presidency, Australia has managed to schedule a high-level council meeting on small arms. This is the first time since 2008 that the council has held a formal debate on this topic.

According to diplomatic convention, our prime minister will be expected to sit in the president’s chair for the high-level meeting on small arms. This means that the election’s victor will soon get the chance not just to look presidential, but to be president of the most important peace and security body in the world.

So how will the election result affect the rest of Australia’s presidency? The answer is very little. While the Security Council has the flexibility to respond spontaneously to pressing threats to international peace and security, September’s formal schedule was painstakingly negotiated with other council members during August.

No matter which candidate wins government on Saturday, he will have little scope to modify the agenda for this month. In terms of protocol, Australia’s UN Ambassador Gary Quinlan will be the daily face and voice of the council throughout September.

The more interesting question is how the election result will affect Australia’s general participation on the council once our month as president ends. Kevin Rudd’s position on the virtues of Security Council membership would appear clear. He was the chief engineer of Australia’s campaign to join the council and plainly values any chance to showcase his nation’s contributions on the global stage.

So, if anyone understands the importance and the possibilities of our council membership it is Kevin Rudd. If he does win on Saturday, then he could be expected to use the presidency and the remainder of our membership to promote effective action to protect civilians in Syria and to stamp out illegal trade in small arms. However, with the polls the way they are, it is highly likely that Tony Abbott will soon set the priorities for Australia’s membership on the Security Council.

It is less clear how Abbott would use Australia’s seat on the Security Council. He was of course a vocal critic of Australia’s campaign for a council seat and the Coalition’s few electoral foreign policy pronouncements have suggested a preference for Jakarta over Geneva, and trade over aid. Abbott’s shadow foreign minister Julie Bishop recently suggested that a Coalition government would use its membership to focus the council’s attention on preventing the emergence of failed states in our region.

However, if in government, the Coalition would have to engage effectively in council deliberations on the global crises of the moment, no matter where they may be located. In the current climate this is more likely to mean Syria, Egypt or Afghanistan than Fiji or the Solomon Islands. The Coalition should not shy away from shouldering Australia’s responsibilities on the council.

If it serves no other purpose, Australia’s council membership would surely enable Abbott to fulfil the pledge in his policy booklet to “enhance Australia’s role and engagement in the world developing greater international cooperation”.

If Kevin Rudd defies the odds to win Saturday’s election, he would fly to New York in a heartbeat to preside over the Security Council’s high-level meeting on small arms. And despite the Coalition’s vocal opposition to the Labor Party’s campaign for Security Council membership, Tony Abbott’s advisers must be licking their lips at the prospect of prime minister Abbott chairing a council meeting potentially attended by presidents Obama, Putin, Jinping and Hollande, as well as British prime minister David Cameron.

Such a priceless photo opportunity would announce and anoint Abbott as a heavyweight leader on the global stage. Depending on your perspective, it would be a terrible – or delicious – irony that the person he would most have to thank for the chance to partake in his first truly historic moment on the international stage would be none other than Kevin Rudd.

Security Council sanctions: can Australia make a difference?

Gary Quinlan (second from left), Permanent Representative of Australia to the UN and President of the Security Council for the month of September, briefs members in his capacity as Chairman of the Council’s 1737 Sanctions Committee on Iran. UN Photo/JC McIlwaine
Gary Quinlan (second from left), Permanent Representative of Australia to the UN and President of the Security Council for the month of September, briefs members in his capacity as Chairman of the Council’s 1737 Sanctions Committee on Iran. UN Photo/JC McIlwaine

For the United Nations Security Council, sanctions are an important instrument in addressing threats to international peace and security. They usually take the form of controls and bans on travel, trade in specified goods and services, and on financial dealings with designated persons and entities.

first published by The Conversation 29 August 2013

Christopher Michaelsen and Maire-Eve Loiselle

Since it assumed its role as a non-permanent member of the Security Council in January this year, Australia has been playing a leadership role in chairing three subsidiary bodies of the council mandated to implement UN sanctions: the 1267 Committee on Al-Qaida, the 1988 Committee on the Taliban, and the 1737 Committee on Iran.

It would be foolish to expect that we could instigate widespread reform, in particular if permanent council members like the United States, Russia or China remain sceptical or indeed opposed to further changes. We should nonetheless consider options and opportunities to strengthen the mandate of the Ombudsperson when the 1267 regime comes before the Security Council for extension in June 2014.

The first UN sanctions regimes were comprehensive in that they were directed at states as a whole. But in the late 1990s, it became apparent that such comprehensive sanctions had devastating effects on the innocent population without affecting the regime in power. Saddam Hussein’s Iraq in the 1990s was a case in point.

In response, the council developed “smart” sanctionstargeting specifically identified individuals and entities within states, including an increasing number of non-state actors. Over the last decade, individualised sanctions regimes have proliferated.

The individualisation of UN sanctions, however, has not been accompanied by the creation of effective mechanisms for individuals to challenge the measures targeting them. At the UN level, no judicial or quasi-judicial institutions exist to provide an avenue of appeal. What’s more, recourse to national courts and tribunals tends to be unavailable as these generally lack jurisdiction to review Security Council resolutions.

It is therefore unsurprising that the UN sanctions regimes – the 1267 regime in particular – have been criticised for their lack of due process. Nonetheless, reform has been slow. The most significant development has been the establishment of an Ombudsperson mechanism in 2009 which now allows listed individuals and entities to petition the 1267 Committee for delisting.

While this represents a significant improvement, there is still no obligation for the 1267 Committee or the Security Council to delist a targeted individual or entity if certain requirements are met. Just last month, the European Court of Justice (ECJ)expressed its concerns about the current system. In the Kadi II case, the court held that the lack of effective judicial protection at the UN level required that EU courts proceed to an indirect judicial review of contested listings.

So, what can Australia do in its capacity as chair of three sanctions committees and non-permanent member of the Security Council to address the due process shortcomings?

Some of these options are technical and perhaps politically uncontroversial, but they would have a significant impact on the overall fairness of the process. For instance, the Ombudsperson currently does not have a mandate to follow up in cases where individuals and entities are officially delisted in New York, but where this delisting has not been implemented by states in practice with the consequence that assets freeze and travel restrictions remained in place.

But we should also not lose sight of the bigger picture and consider advocating for extending the Ombudsperson procedure to other UN sanctions regimes. At present, 14 of these regimes operate lists targeting individuals and entities. Yet, the Ombudsperson procedure is only available to those listed by the 1267 Committee. In one case, this has led to the absurd outcome that an individual was delisted from the 1267 list, only to be relisted on the sanctions list of the Committee on Somalia and Eritrea.

It is clear that such broader structural reform requires sustained political will. It is also clear that Australia’s capacity to tackle these broader endemic challenges is limited. But it can nonetheless play an important role in keeping the issue on the agenda, even if immediate progress seems politically unlikely.

The debate on the due process concerns of the UN sanctions regimes is therefore not only about justice for listed individuals and entities per se. Rather, it is also about the system that we want to build. If we want to go beyond the state and target individuals considered to constitute a threat to international peace and security, we should also give them standing to defend themselves. The issue is therefore closely related to the Security Council’s credibility in general.

As the council is becoming more concerned with human rights violations, it should practice what it preaches and operate in line with decent procedures. Australia should make the most out of its presidency of the Security Council and push for continued reform in this regard.

The decline of consent in international law

2013 Conference on Disarmament. UN Photo/Jean-Marc Ferré.
2013 Conference on Disarmament. UN Photo/Jean-Marc Ferré.

International scrutiny of the North Korean and Iranian nuclear programs always has a strong legal dimension. But just how far do legal obligations extend?

First published by the Lowy Interpreter19 March 2013

Marie-Eve Loiselle

North Korea’s latest nuclear test came just days after the Security Council indicated in Resolution 2087 that it would be willing to take significant actions in the event of a further North Korean nuclear test. The Security Council’s response to the test came on 7 March with a China-backed resolution that strengthened UN sanctions.

In the case of Iran, Western countries contend that Iran’s failure to disclose the construction of enrichment facilities is in contravention of its obligation under the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and its Safeguards Agreement. Iran, on the other hand, relies on NPT Article 4(1) and insists on its right to enrich uranium for peaceful purposes.

In January, Oxford scholar Dapo Akande posed the following question on the website of the European Journal of International Law: if Iran withdrew from the NPT, would the Security Council be legally justified to impose on Iran, through a Chapter VII resolution, obligations contained in the NPT and the Safeguards Agreement?

The Security Council has already determined implicitly, in a series of resolutions adopted under Chapter VII, that the Iranian nuclear program constitutes a threat to international peace and security. So a priori, there would be nothing to prevent the Council from imposing obligations contained in the NPT on Iran. Thus, even as a non-party to the NPT, Iran may continue to be subject to the same obligations, since decisions taken under Chapter VII are binding on all UN member states.

Yet there would be something unsettling about such a move by the Security Council. After all, Iran, by withdrawing from the NPT, would simply be exercising the right provided to all state parties under NPT Article X: ‘Each Party shall in exercising its national sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country.’

Respect for national sovereignty and the consensual nature of treaty obligations lies at the heart of the question.

While the letter of the UN Charter suggests that the Council would be empowered to impose NPT treaty obligations on Iran, this would clash with that country’s expressed will not to be bound by NPT obligations.

This would not be the first time the Security Council had imposed treaty-like obligations on states. As Vera Gowlland-Debbas noted in a recent paper, in the last decade the Security Council has become increasingly involved in the law-making ‘industry’ through Chapter VII resolutions, especially in the area of non-proliferation.

Some of these resolutions have practically copied and pasted treaty obligations into Security Council resolutions that are now binding on states not party to these agreements (prominent examples include resolutions 1373 and 1540). In country-specific cases,resolutions 1718 and 1874 on North Korea are examples of resolutions imposing treaty obligations on non-parties. North Korea withdrew from the NPT in 2002. Yet following North Korea’s nuclear test in 2006, the Security Council demanded that it act in accordance with the obligations of the NPT and the Safeguards Agreement. North Korea’s latest nuclear test calls into question the effectiveness of that approach.

While some of these decisions may have been justified from the standpoint of maintaining international peace and security, the composition of the Security Council, the risk of double standards and the lack of transparency in its decision-making process casts a shadow on this recent practice of enforcing unendorsed treaty obligations through Article 39 of the UN Charter and the determination of a threat to international peace and security. This is further complicated by the fact that the Security Council’s understanding of what constitutes a threat to international peace and security has become increasingly broad in the last two decades.