The Rule of Law in the United Nations Security Council Decision-Making Process: Turning the Focus Inwards (Routledge Research in International Law)

The Un Security Council Is Entrusted Under The Un Charter With Primary Responsibility For The Maintenance And Restoration Of The International Peace; It Is The Only Body With The Power To Authorise Military Intervention Legally And Impose International Sanctions Where It Decides. However, Its Decision-making Process Has Hitherto Been Obscure And Allegations Of Political Bias Have Been Made Against The Security Council In Its Responses To Potential International Threats. Despite The Rule Of Law Featuring On The Security Council’s Agenda For Over A Decade And A Un General Assembly Declaration In 2012 Establishing That The Rule Of Law Should Apply Internally To The Un, The Security Council Has Yet To Formulate Or Incorporate A Rule Of Law Framework That Would Govern Its Decision-making Process. This Book Explains The Necessity Of A Rule Of Law Framework For The Security Council Before Analysing Existing Literature And Un Documents On The Domestic And International Rule Of Law In Search Of Concepts Suitable For Transposition To The Arena Of The Security Council. It Emerges With Eight Core Components, Which Form A Bespoke Rule Of Law Framework For The Security Council. Against This Framework, The Security Council’s Decision-making Process Since The End Of The Cold War Is Meticulously Evaluated, Illustrating Explicitly Where And How The Rule Of Law Has Been Undermined Or Neglected In Its Behaviour. Ultimately, The Book Concludes That The Security Council And Other Bodies Are Unwilling Or Unable Adequately To Regulate The Decision-making Process Against A Suitable Rule Of Law Framework, And Argues That There Exists A Need For The External Regulation Of Council Practice And Judicial Review Of Its Decisions.-- Yoking The Giant Pantagruel : Why The Security Council Needs A Rule Of Law -- The Shifting Sands Of The Rule Of Law -- The Components Of A Bespoke Security Council Rule Of Law -- Clarity Of Action -- Legal Certainty -- Equality Before The Law -- The Predictability Paradox -- Consistency With International Human Rights And Humanitarian Norms And Standards -- Separation Of Powers And Acting Ultra Vires -- The Equitable Participation In Decision-making Processes -- Accountability. Sherif A Elgebeily. Includes Bibliographical References And Index. Cover 1 Title 4 Copyright 5 Dedication 6 Contents 8 Acknowledgements 12 Definitions and abbreviations 14 Introduction 16 PART I Defining the rule of law for the Security Council: how, why and what? 22 1 Yoking the giant Pantagruel: why the Security Council needs a rule of law 24 Introduction 24 Why is the rule of law necessary for the Security Council? 24 The limited composition of the Security Council 25 The decision-making process and use of the veto 25 The extended competence of the Council 26 The legally binding nature of Council resolutions 27 2 The shifting sands of the rule of law 31 Introduction 31 What do we mean by ‘the rule of law’? 31 The origins of the rule of law 32 The domestic rule of law 34 Searching for a definition of the international rule of law for the Security Council 35 Direct transposition of domestic norms to the international plane 36 A more cautious examination 37 A definition for the UN Security Council 39 The legitimacy of the UN definition 41 3 The components of a bespoke Security Council rule of law 51 Introduction 51 Clarity of action 51 Legal certainty 53 Equality before the law 54 The predictability paradox 55 Consistency with international human rights norms and standards 57 The separation of powers and acting ultra vires 58 The equitable participation in decision-making processes 59 Accountability before the law 60 Chapter conclusions 60 PART II Exploring the components of the rule of law 62 4 Clarity of action 64 Introduction 64 Council obligations for procedural transparency 65 Private (informal) meetings 66 Informal consultations 69 Council efforts to reform 70 Discussions on working methods 70 Documentation 71 Elections of the Secretary-General 71 Conclusions 72 5 Legal certainty 77 Introduction 77 Determination of a threat under Article 39 78 Angola 79 Somalia 79 Haiti 79 Afghanistan 80 Sudan 81 Patterns in Council practice 81 Explicit reference to Chapter VII 82 The anatomy of a Chapter VII resolution 83 Dilution or digression? 84 A clear legal basis 86 Conclusions 87 6 Equality before the law 95 Introduction 95 Council responses to conflicts 96 Is Syria about Libya? 96 Council action in analogous situations 98 Equality in international standards towards nuclear threats 99 The case of the Democratic People’s Republic of Korea 99 India and Pakistan 100 Conclusions 102 7 The predictability paradox 111 Introduction 111 A clear pattern of action 112 Respect for national sovereignty 113 Humanitarian intervention 114 Civilian nuclear programmes: an arbitrary standard? 116 Conclusions 119 8 Consistency with international human rights and humanitarian norms and standards 125 Introduction 125 The case for applicability of human rights and humanitarian law to the Council 126 Applying human rights to Council decisions 129 Article 41: humanitarian concerns regarding non-military intervention 130 A lesson learnt? 133 Article 41: human rights concerns regarding non-military intervention 134 Conclusions 136 9 Separation of powers and acting ultra vires 147 Introduction 147 Sources of support for the separation of powers 148 The Council’s norm-setting 149 The international tribunals: advancement of international law by proxy 150 The Council as direct legislator 154 International terrorism 156 Nuclear non-proliferation 158 Conclusions 161 10 The equitable participation in decision-making processes 169 Introduction 169 Arguing the expansion of the Council 170 Wider support for Council enlargement 172 The logistics of expansion 173 Consultation of relevant parties to a situation or matter of discussion 175 The infringement on sovereign rights 176 The veto 178 The intended purpose of the veto 178 The veto record of the Council 180 The United States 181 The Russian Federation and China 184 Efforts to reform the use of the veto 186 Conclusions 187 11 Accountability 199 Introduction 199 Self-regulation 200 The accountability, coherence and transparency (ACT) group 201 The Office of the Ombudsperson 201 Sibling UN organs 202 The International Court of Justice 203 Potential coordination with the ICJ 205 The General Assembly 207 Conclusions 208 Final conclusions 214 Index 219 "The UN Security Council is entrusted under the UN Charter with primary responsibility for the maintenance and restoration of the international peace; it is the only body with the power to authorise military intervention legally and impose international sanctions where it decides. However, its decision-making process has hitherto been obscure and allegations of political bias have been made against the Security Council in its responses to potential international threats. Despite the rule of law featuring on the Security Council's agenda for over a decade and a UN General Assembly declaration in 2012 establishing that the rule of law should apply internally to the UN, the Security Council has yet to formulate or incorporate a rule of law framework that would govern its decision-making process. This book explains the necessity of a rule of law framework for the Security Council before analysing existing literature and UN documents on the domestic and international rule of law in search of concepts suitable for transposition to the arena of the Security Council. It emerges with eight core components, which form a bespoke rule of law framework for the Security Council. Against this framework, the Security Council's decision-making process since the end of the Cold War is meticulously evaluated, illustrating explicitly where and how the rule of law has been undermined or neglected in its behaviour. Ultimately, the book concludes that the Security Council and other bodies are unwilling or unable adequately to regulate the decision-making process against a suitable rule of law framework, and argues that there exists a need for the external regulation of Council practice and judicial review of its decisions."-- Back cover