The Security Council

Introduction

Article 1 (1) of the United Nations Charter details the principal purpose of the UN to maintain international peace and security. Chapter V of the Charter establishes the Security Council with primary responsibility to fulfil this ambition and as such it is the most powerful organ within the UN system. However, the recent Iraq crisis exposed some of the major debates concerning the Council, relating in particular to the extent of its power and its possible reform. This briefing, after outlining the key characteristics of the Council, will go on to examine these debates in more detail.

Composition

The Security Council is composed of fifteen Member States, each having one representative based at UN Headquarters in New York. Five States have Permanent Member status - known as the P5: China, France, the United Kingdom, the United States of America, and the Russian Federation.

The General Assembly elects an additional ten Non-permanent Members to serve on the Council for two-year terms. This number was expanded by six on 1 January 1966 through an amendment to Article 23 (1) of the Charter in response to the increasing membership of the UN as a whole. Selection of these Members currently centres on geographical distribution: five Non-permanent members are filled by African and Asian States, two from Latin America, one from Eastern Europe, and two from what is officially described as Western Europe and Other Regions.

Functions and Powers

Article 24 (1) of the UN Charter states that in order to ensure prompt and effective action by the UN, its Members:

Confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.

The Council's specific functions, as outlined in Chapters VI, VII, VIII, and XII, include: making recommendations for the peaceful settlement of disputes; taking enforcement action to deal with threats to the peace, breaches of the peace and acts of aggression; recommending the admission of new Members; exercising the trusteeship functions of the UN; and recommending to the General Assembly the appointment of the Secretary-General.

The Security Council also has the ability - at least in theory - to take binding decisions that Member States are under a legal obligation to comply with. Article 25 states that the Members of the UN 'agree to accept and carry out the decisions of the Security Council in accordance with the present Charter'. In reality, the absence of military or other means of enforcement have made Article 25 difficult to realise.

Additionally, Article 29 enables the Security Council to establish such subsidiary organs it deems necessary for the performance of its functions. These organs have taken several forms. For instance, Sanctions Committees have been established to: examine reports from States on how they implement sanctions; seek further details from them; consider information on violations; and make recommendations to the Council on methods of increasing the effectiveness of sanctions regimes.

Likewise, the Counter Terrorism Committee (CTC) - an ad hoc body established by the Council in October 2001 pursuant to Resolution 1373 passed under Chapter VII - has become central to the Council's fight against international terrorism. In particular, the CTC works to encourage Member States to implement the international legal regime of conventions against terrorism.

Voting, the P5 and the Veto

The voting procedure of the Security Council is detailed in Article 27 of the UN Charter, which states that:

1. Each Member of the Security Council shall have one vote.
2. Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine Members.
3. Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine Members including the concurring votes of the Permanent Members.

Despite the intent that the limited membership of the Council would boost its decision-making capacity, Article 27(3) ensures that the P5 have the right to 'veto' unilaterally all substantive issues on the Council's agenda. During the Cold War confrontation between the US and the then Soviet Union, this clause effectively paralysed the Council machinery.

In an effort to negate the effects of the veto, western States encouraged the adoption of the Uniting for Peace Resolution by the General Assembly in November 1950. As Article 24(1) provides the Security Council with the primary responsibility for the maintenance of international peace and security, the General Assembly was considered a secondary body. The Resolution streamlines the procedure for calling special sessions in the General Assembly. It states that if, through a 'lack of unanimity of the Permanent Members [the Security Council] fails to exercise its primary responsibility for the maintenance of international peace and security', the General Assembly will immediately consider the matter with a view to making recommendations. Its legality, however, is less certain.

The Security Council Uncovered: Two Key Debates

Debate 1: Are there any Restraints on the Security Council's Power?

Under Chapter VII of the UN Charter, the Security Council can - in response to threats to or breaches of the peace or acts of aggression - impose economic and/or political sanctions (Article 41) or, should these prove or be deemed inadequate to restore international peace and security, it can authorise military action under Article 42. Chapter VII thus provides the legal basis for the use of force.

The post-Cold War period has been characterised by an increasingly enlarged interpretation of 'threats to international peace and security' and a previously unknown activism on the part of the Council. Enforcement action has been authorised to create and secure conditions for humanitarian relief in Somalia (1992) and Rwanda (1994). In Haiti, in response to the military coup and subsequent refugee crisis, Resolution 940 of 31 July 1994 authorised Member States to form a multinational force (MNF) to restore democracy. And, in response to the violence surrounding the dissolution of Yugoslavia, the Council defined the crisis as a 'threat to the peace' and authorised the use of force to ensure compliance with an arms embargo.

These examples suggest that the Council has a seemingly unlimited scope to decide what constitutes a threat to the peace. This inspires debate over the extent of the Council's powers and whether its action is subject to any limits.

Legal Accountability

In fact, questions can be raised as to whether Security Council (political) decisions are open to judicial (legal) review. The Lockerbie case of 1992 helps illustrate the relationship between the Council and the International Court of Justice (hereafter the Court), established by the UN Charter as the UN's principal judicial organ (Article 92).

The case stemmed from Libya's refusal to surrender two of its nationals, suspected terrorists responsible for blowing up Pan-Am flight 103 over Lockerbie in Scotland in 1988. The UK and US took the issue to the Council, which adopted Resolution 731 in January 1992 urging Libya to co-operate. Libya in turn initiated proceedings against the UK and US at the Court, stating that they were in breach of the Montreal Convention (1971) for pressuring Libya to surrender two nationals for trial. Libya went on to request interim protection from UK/US threats. Three days after these hearings, the Council adopted Resolution 748, passed under Chapter VII, stating that Libya's failure to renounce terrorism constituted a 'threat to international peace and security'.

The Court was concerned with its power under Article 41 of its Statute to indicate provisional measures that ought to be taken to preserve the respective rights of the disputing parties, and its response to Resolution 748 is telling of the interplay between law and politics at the UN.

The Court first cited Article 25 of the UN Charter, which relates to the obligation of Member States to carry out the decisions of the Council. It decided that this applied to Libya's obligations under Resolution 748. Second, the Court cited Article 103 of the UN Charter, which 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 Charter shall prevail'. The Court concluded that Libya's claim to interim protection because of its compliance with the Montreal Convention was not appropriate. Thus, from the Lockerbie case, the application to the Court by Libya was not enough to prevent the Council from exercising its functions, and the Court ceded to the Council's authority.

More broadly however, political organs are bound by international law, and thus decisions are in principle subject to legal review. The former President of the Court, Mohammed Bedjaoui, has advocated such a principle, arguing:

Nobody can deny the right of international political organs, especially the Security Council, to the full exercise of their powers. Nobody should deny, on the other hand, that a Member State has the right to challenge a decision. Where questions arise which are deemed important on account of their repercussions for peace, that very importance will not be seized upon as a reason for forgetting that what it calls for is not so much a release from the bondage of rules as a firmer anchorage in law.

Similarly, former UN Secretary-General Boutros Boutros-Ghali, in his 1996 report An Agenda for Democratisation, commented that:

The General Assembly should not hesitate to draw upon Article 96 [of the UN Charter] in referring to the Court questions concerning the consistency of resolutions adopted by the United Nations bodies with the Charter of the United Nations.

Thus, legal accountability can help encourage clarification of what constitutes a threat to the peace, and also encourage the Council to define specifically what Article of the Charter it is acting under.

Debate 2: Reform of the Security Council

The Iraq crisis focused debate over the international legitimacy of a Council dominated by the P5, and has given momentum to calls for reform. In September 2003, the Secretary of State for Foreign and Commonwealth Affairs, Jack Straw, presented the first edition of what will be an annual report to Parliament entitled 'The United Kingdom and the United Nations'. This report outlined the UK's commitment to a more representative, efficient and transparent Council:

We continue to believe that the Council should expand, with new permanent members who represent the regional realities of the modern world. There should also be expansion in the non-permanent membership of the Council to allow greater representation by the developing world. The expansion of the Council should be matched by a continued re-examination of its working methods.

While it is difficult to predict the outcome of any reform process, the UK position helps to highlight the four key objectives that discussion on reforming - or strengthening - the Council rests on: clarifying its role and mandate; re-structuring its membership; reforming the right and use of the veto; and strengthening its transparency and legitimacy.

(1) Clarifying the Role and Mandate

As noted above, the interpretation of 'threats to international peace and security' has been expanded during the 1990s to include two new concepts. First, non-military threats were outlined at the first ever meeting of the Security Council at the level of Heads of State on 31 January 1992, which declared that:

The absence of war and military conflict does not in itself ensure international peace and security. The non-military sources of instability in the economic, social, humanitarian and ecological fields have become threats to the peace.

Threats emanating from within national borders represent the second concept. The UN Charter is not equipped to deal with either of these issues, and thus questions have been raised regarding the Council's authority to tackle them and whether there should be a division of labour with other organs of the UN. This has translated into calls for the Council to adapt its practices to this new reality in a predictable way or for amendments to the Charter to reflect contemporary threats.

(2) Restructuring the Membership

The increasing number of UN Member States (from 51 in 1945 to 191 in 2003), the shift in the international balance of power - away from the dominance of the P5 in the aftermath of World War II - and continued animosity towards the P5, have given momentum to demands for reforming the Council's membership.

The re-emergence of Japan and Germany since WWII, along with their financial contributions to the UN, merits some recognition. However, admitting Japan and Germany to the Council on a permanent or even semi-permanent basis would increase the North-South divide that already characterises the Council.

Other proposals call for single, rotating seats reflecting the major continents. EU High Representative for Common Foreign and Security Policy, Javier Solana, advocates a single European seat, a proposal matched elsewhere by calls for single African, Asian, and Latin American seats. However, resistance from existing Members - the P5 in particular - is not the only difficulty with these proposals. The idea of 'regional seats' radically departs from the Council as an institution of individual nation-states, established in Article 23.

(3) The Right and Use of the Veto

The veto is the most controversial and least feasible prospect of reform. The problem stems from the Cold-War period, where superpower hostility ensured that the veto represented a crippling functional limitation to the Security Council. This has been replaced in the post-Cold War era by concern over the legitimacy of a Council doing too much. Calls for scrapping the veto centre on liberalising the Council. However, as the incidence of the P5 using the veto has fallen dramatically during the 1990s, the Council already appears somewhat liberated. In any case, little desire exists to extend the veto to new Members, and the P5 have shown no willingness to give up their privileged position. For any change to be made, the P5 would have to give an affirmative vote, a situation unlikely to arise.

(4) The Need for More Transparency and Credibility

This theme deals with the challenge of achieving broader participation and equality in the Council without compromising its effectiveness. Several suggestions have been advanced to address this challenge, of which two appear critical. First, the Council should develop channels of communication for receiving information and ideas from independent sources like NGOs. Second, the Council could take steps to reduce the sense of exclusion on the part of the broader UN membership in its decision-making process. This could involve more substantive input by the General Assembly, a better balance between private and public debate, and an improved briefing structure so that all Council Members could have access to relevant information to base their decisions on.

Progress on Reform at the UN

The debate over reform has in large part developed from within the Organisation. Since the first expansion of the Council in 1966, there have been a number of proposals put forward. In 1979, a proposal was made to increase the number of Non-permanent Members to fourteen, and in 1980, a group of African, Asian, and Latin American States proposed the addition of a further six Non-permanent Members, taking the total to twenty-one.

The Open-ended Working Group

In response to the submission of a resolution in 1993 by thirty-six developing States calling for 'more balanced representation' on the Council, the General Assembly established the Open-ended Working Group 'to consider all aspects of the question of increase in the membership of the Security Council'. The Working Group met for the first time in January 1994, and throughout that year met twenty-one times before releasing its annual report. To this was added a selection of 'non-papers' in 1995, detailing a number of observations and assessments made by the Group. Although this practice of producing an annual report accompanied by non-papers has become the norm, in reality little tangible progress has been achieved on reform.

The General Assembly

In March 1997, the President of the General Assembly proposed the enlargement of the Council through the addition of five new Permanent and four Non-permanent Members. New Permanent Members would not be granted the veto, and an affirmative vote of 15 would be required to pass resolutions. This plan failed to foster consensus, despite general agreement on the need for reform. Also, in November 2000, a two-day meeting brought together 110 Member States to discuss Council reform. Similarly, this meeting failed to produce any real progress. Member States agreed that the Council must become more representative, but also agreed that representation should not hamper its functional capacity. Nevertheless, it was at least an opportunity for Members to air their views, as well as an effort to keep the issue of reform on the agenda.

Final Remarks

Speaking at a press conference on 8 September 2003, Secretary-General Kofi Annan called for an overhaul in the way the UN runs its affairs. In particular, he cautioned on the role of the Security Council, badly tarnished by divisions over Iraq:

Unless the Security Council regains the confidence of States and world public opinion, individual States will increasingly resort exclusively to their own national perception of emerging threats and their own judgement on how best to address them.

With every crisis, the UN appears to re-affirm its commitment to reform, but history tells us that the prospect of real change in the near future is unlikely. Nevertheless, even in the light of the controversy surrounding the Council, its continuing media exposure makes it the UN's most public face and solidifies its position as the UN's principal organ.

Author: Tim Pippard, Research Assistant, editor: Alex Ramsbotham, Head of Research.

UN and Conflict Briefings

This set of briefing papers has been financed by a donation in memory of Joy K B Wynn-Jones and Mary Owen. For a full publication list and more detailed information on the work of the Programme, please contact Alexander Ramsbotham, Head of Research, UN and Conflict Programme, UNA-UK, 3 Whitehall Court, London SW1A 2EL.

Tel: (switchboard) +44 (0)20 7766 3444 (direct line) +44 (0)20 7766 3446 Fax: +44 (0)20 7930 5893 E-mail: aramsbotham@una-uk.org.