Emory International Law Review

The Use of International Law by the United Nations Security Council: An Empirical Framework for Analysis
Rossana Deplano LL.B, LL.M, Ph.D., Lecturer, Brunel University London (U.K.). I would like to thank Dr. Paolo Vargiu for his comments on earlier drafts and Dr. Patricia Hobbs for her constant support. All mistakes remain mine.

Abstract

This Article examines the strategic use of international law by the United Nations Security Council. Using an original database, which includes 611 resolutions adopted by the Security Council from 2004 to 2013, it provides a systematic analysis of the Security Council’s behavioral patterns that may help determine significant selection preferences in the exercise of its powers under the United Nations Charter. The analysis shows that while reference to positive international law in the text of resolutions contributes to shaping the politics of the Security Council, current Security Council practice has little or no influence over the development of international law.

Introduction

Scholarly literature on the United Nations Security abounds. From an international legal perspective, existent contributions have examined several aspects of the Security Council mandate, including its scope, the legitimacy of certain Security Council actions, and its lawmaking powers. 1See, e.g., David M. Malone, Security Council, in The Oxford Handbook on the United Nations 117 (Thomas G. Weiss & Sam Daws eds., 2008). See generally, e.g., Simon Chesterman, Thomas M. Franck, & David M. Malone, Law and Practice of the United Nations: Documents and Commentary (2008); Antonios Tzanakopoulos, Disobeying the Security Council (2013); Sufyan Droubi, Resisting United Nations Security Council Resolutions (2014); Erika de Wet, The Chapter VII Powers of the United Nations Security Council (2004). The contribution of such a body of literature to the rationalization of the principles of law governing the Security Council functioning is highly relevant. Nonetheless, Security Council practice has never been analyzed in a systematic way.

Doctrinal studies have proved to be successful in conceptualizing relevant principles and rules underlying the functioning of the Security Council. 2See generally, Anne Peters, Functions and Powers:Article 24, in 1 The Charter of the United Nations: A Commentary 2011 (Bruno Simma et al. eds., 2012); Nicholas Tsagourias, Security Council Legislation, Article 2(7) of the UN Charter, and the Principle of Subsidiarity, 24 Leiden J. Int’l L. 539 (2011); Eric Rasand, The Security Council as “Global Legislator”: Ultra Vires or Ultra Innovative?, 28 Fordham Int’l L.J. 542 (2005); Munir Akram & Syed H. Shah, The Legislative Powers of the United Nations Security Council, in Towards World Constitutionalism: Issues in the Legal Ordering of the World Community 431 (Ronald St. John Macdonald & Douglas M. Johnston eds., 2005); Axel Marschik, Legislative Powers of the Security Council, in Towards World Constitutionalism: Issues in the Legal Ordering of the World Community 457 (Ronald St. John Macdonald & Douglas M. Johnston eds., 2005); Cathleen Powell, The Legal Authority of the United Nations Security Council, in Security and Human Rights 157 (Benjamin J. Goold & Liora Lazarus eds., 2007); Bardo Fassbender, The United Nations Charter as Constitution of the International Community (2009). They have also assessed the degree of compliance of selected case-studies with the provisions of the U.N. Charter and international law. 3See generally, e.g., Christian Henderson & Noam Lubell, The Contemporary Legal Nature of UN Security Council Ceasefire Resolutions, 26 Leiden J. Int’l L. 369 (2013). However, due to the nature of the inquiry, traditional analysis is rooted on assumptions or generalizations derived from the study of selected, though important, Security Council decisions. Consequently, its findings are supported by little evidence of consolidated Security Council practice. For example, it has become commonplace to argue that the decision-making at the Security Council is ultimately governed by reasons of political convenience. 4See, e.g., Michael Barnett & Martha Finnemore, Political Approaches, in The Oxford Handbook on the United Nations, supra note 1, at 41. The main argument put forward to support this view is that the presence of five permanent members (P5) endowed with veto power over resolutions determines that the Security Council mandate can be executed only when there is agreement among them. 5Nigel Rodley & Başak Çali, Use of Force in International Law, in International Law for International Relations 226 (Başak Çali ed., 2010).

As a result, situations representing actual or potential breaches of international peace and security are likely to be overlooked whenever they involve a direct interest of a P5. 6See id. This seems to be confirmed by the fact that since 1946, not a single resolution has been adopted on Tibet or Chechnya, while only one has been adopted in 1960 on the relationship between Cuba and the United States. 7S.C. Res. 144, U.N. Doc. S/4395 (July 19, 1960). More recently, a draft resolution on Crimea has been vetoed by one P5 due to opposed views and conflicting interests with the proponent P5. 8 U.N. Security Council action on Crimea referendum blocked, U.N. News Centre (Mar. 15, 2014), http://www.un.org/apps/news/story.asp?NewsID=47362#.VNE-dGQbDTE (referring to S.C. Draft Res. 189, U.N. Doc. S/2014/189 (Mar. 14, 2014)). However, as of today no study has ever provided a detailed list of the issues addressed in the resolutions adopted, resolutions vetoed, Security Council private meetings, and meetings concluded with no action, with a view to ascertain the overall degree of legitimacy and effectiveness of such actions.

The present study aims at addressing this knowledge gap. It reports evidence from a substantial and systematic quantitative study designed to examine a sample of Security Council decisions which is representative of current Security Council practice, within a limited time-frame. The research is complementary to the existing body of literature since it introduces an empirical framework of analysis. Using an original database, which includes 611 resolutions adopted by the Security Council between 2004 and 2013, the research aims to establish the extent to which, if any, international law is able to limit the discretionary powers of the Security Council, and how the behavioral patterns of the Security Council contribute to the creation or development of international law. The findings of the analysis show that the Security Council has developed a self-contained legal mind under the aegis of the U.N. Charter, and that this evolutionary process poses a threat to the legitimacy of recent Security Council practice.

The remainder of the article is organized as follows. Part II provides a brief overview of the normative background of the Security Council, which represents the backdrop against which to evaluate the empirical analysis. Part III introduces the empirical framework for assessing Security Council practice. The first sub-section outlines the research design. The second one examines the extent to which the Security Council relies upon international law. Its purpose is to single out which rules of international law have been used by the Security Council in its resolutions and how they interact with each other. Part IV discusses the empirical results and their legal implications. It seeks to establish a taxonomy of Security Council decisions with a view to finding significant selection effects. Part V concludes.

I. Overview of Security Council Powers

Chapter VII of the U.N. Charter confers the responsibility for the maintenance of “international peace and security” on the Security Council. 9U.N. Charter art. 39. The U.N. Charter, however, does not provide for a definition of international peace and security, thus leaving the power to determine its significance to the judgment of the Security Council itself. 10See id. In order to execute its mandate, the Security Council disposes of a wide range of powers, including “the powers to authorize the use of force in the name of the international community.” 11Rodley & Çali, in International Law for International Relations, supra note 5, at 225. According to the established doctrine of implied powers, the Security Council also possesses those powers that are essential for the performance of its duties and that are commensurate with its responsibility for the maintenance of international peace and security. 12See Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 I.C.J. 174, 178 (Apr. 11); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276, Advisory Opinion, 1971 I.C.J. 16, ¶ 109 (June 21). Thus Security Council resolutions imposing obligations to the international community of states as a whole rather than being restricted to U.N. members are regarded as a direct emanation of the teleological reading of U.N. powers in general, and Security Council powers in particular. 13Tsagourias, supra note 2, at 545–47. See generally, S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001); S.C. Res. 1540, U.N. Doc. S/RES/1540 (Apr. 28, 2004); S.C. Res. 1636, U.N. Doc. S/RES/1636 (Oct. 31, 2005); S.C. Res. 1701, U.N. Doc. S/RES/1701 (Aug., 11, 2006); S.C. Res. 1737, U.N. Doc. S/RES/1737 (Dec. 27, 2006); S.C. Res. 1803, U.N. Doc. S/RES/1803 (Mar. 3, 2008).

With regard to the internal functioning of the Security Council, its decision-making power is governed by a combination of provisions of the U.N. Charter, 14U.N. Charter arts. 27, 31–32. provisions of the Provisional Rules of Procedure complementing the text of the U.N. Charter, 15U.N. S.C., Provisional Rules of Procedure of the Security Council, rules 40–57, U.N. Doc. S/96 (June 27, 1946). and other documents such as Note 507, complementing the Provisional Rules of Procedures. 16U.N. S.C. Pres., Note by the President of the Security Council, para. 2, U.N. Doc. S/2010/507 (July 26, 2010) [hereinafter Note 507]. For further analysis on procedural aspects of the Security Council decision making, see Rossana Deplano, Building a Taxonomy of United Nations Security Council Decisions: A Biased Compliance with the UN Charter Obligations?, 1 St. Prac. & Int’l L.J. 143 (2014). This set of rules allows the Security Council to adopt a variety of decisions, including resolutions, PRSTs, notes by the Security Council President, press statements and letters from the Security Council President. 17United Nations, The Security Council Working Methods Handbook 90 (2012). Although the list is not exhaustive, resolutions are recognized as the type of Security Council decision endowed with the greatest political relevance because they must be obeyed by U.N. member states. 18See Andreas Zimmerman, Voting: Article 27, in The Charter of the United Nations: A Commentary, supra note 2, at 1820 (Bruno Simma et al. eds., 2012). On the interpretation of Security Council resolutions, see generally Alexander Orakhelashvili, The Acts of the Security Council: Meaning and Standards of Review, 11 Max Planck Y.B. U.N. L. 143 (2007).

The element of compulsion characterizing resolutions, along with the existence of the P5’s veto power, determines that attributing meaning to the words of the U.N. Charter “international peace and security” 19U.N. Charter, art. 11, para 3. is an act of discretion exercised by the Security Council. More specifically, since individual resolutions of the Security Council do not set a precedent, what constitutes a threat to or breach of international peace and security is ultimately determined by the willingness of individual permanent members to take a specific action or inaction on a case-by-case basis. On this ground, the Security Council has been severely criticized as a non-representative and highly politicized body whose actions have not always been either efficient or impartial. 20Rodley & Çali, in International Law for International Relations supra note 5, at 228. The presence of the P5, in particular, is seen as anachronistic and has triggered a debate on the need to reform the Security Council to keep the pace with the changes currently taking place within the international community. 21Chesterman et al., supra note 1, at 133. The perceived fear is that as long as no superior organ to the Security Council exists, the P5 can yield unrestricted powers which, albeit formally subject to the purposes and principles of the U.N. Charter, 22See Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), Advisory Opinion, 1962 I.C.J. 151, 167–68 (July 20). cannot in fact be controlled by either the United Nations or its member states. The result is that each P5 is able to transpose important elements of its foreign policy to the international plane without the need to justify it under international law.

II. Analysis of Security Council Practice (2004-2013)

A. Research Design

Empirical scholarship on Security Council practice is still in its infancy. 23Deplano, supra note 16, at 139–41. Existent contributions have built a taxonomy of Security Council decisions with a view to finding significant selection effects. 24Id. at 139. Scholars have then used the results of the empirical analysis as a platform to assess the degree of compliance of Security Council decisions with international human rights standards. 25See generally, e.g., Paolo Vargiu & Rossana Deplano, The Human Rights Dimension of UN Security Council Resolutions, in Essays on Human Rights: A Celebration of the Life of Dr. Janusz Kochanowski 523 (Jo Carby-Hall ed., 2014). This study provides a deeper understanding of the rationale behind the adoption of Security Council decisions. By mapping the rules and principles of international law referred to in the text of Security Council resolutions, the proposed analysis attempts to conceptualize the legal mind of the Security Council.

The basis of the present research is quantitative and consists in coding and analyzing 611 resolutions adopted by the Security Council in the period of time between 2004 and 2013. The full text of resolutions is reported in the Security Council Annual Report to the General Assembly, which gathers all the questions considered by the Security Council during the year, as well as in the digital archive developed in 1995 by the U.N. Department of Public Information, which is freely available and provides direct access, via hypertext links, to each Security Council resolution since 1946. 26Security Council Resolutions, United Nations, www.un.org/en/sc/documents/resolutions/ (last visited Feb. 6, 2015).

The research methodology adopted is based on the textual analysis of a sample of resolutions representative of current Security Council practice. In order to establish the extent to which international law influences the politics of the Security Council and vice versa, an original database has been created. The coding method is organized in two parts. Firstly, to identify and classify existent categories of Security Council resolutions, individual resolutions have been grouped into different categories by using the descriptive formulation provided for all resolutions in the digital archive of the Security Council. Secondly, for each category of resolutions, two types of relevant rules have been identified. They include provisions of international law expressly mentioned in the text of resolutions, and principles developed by the Security Council which are not supported by positive international law.

As discussed below, the findings show that the overwhelming majority of Security Council resolutions address actual or potential breaches of international peace and security taking place in specific geopolitical regions, while the remaining ones regulate general issues variously related to the legitimacy of Security Council actions.

B. Security Council and International Law: A Conceptual Map

This Section examines the extent to which the Security Council relies upon international law. It shows evidence of the type of international legal instruments referred to in the text of resolutions. Such instruments have been divided into two groups. They include U.N. documents such as Security Council resolutions, PRSTs, General Assembly resolutions, and reports of the Secretary-General on one hand, and primary sources, such as treaties and customary international law (CIL) on the other hand. The analysis also considers generic reference to international law, including international humanitarian law, international human rights law, refugee law, and international standards.

Sometimes the same source is cited more than once in the same paragraph of a resolution. For the purpose of this study, only the first citation is taken into account. Furthermore, since the inquiry is restricted to evaluating the use of international legal instruments by the Security Council, generic reference to human rights or the rule of law is not reported.

The overall results show that the majority of citations concern U.N. documents in general and Security Council resolutions in particular. The latter are equally divided between resolutions on the same subject-matter of the resolution under scrutiny, and resolutions addressing related topics. Re-cited Security Council resolutions are often accompanied by reference to related PRSTs. In general, the Preamble contains a higher number of citations than the operative part of resolutions.

The most cited sets of resolutions address thematic issues—namely, women and peace and security, children in armed conflict, and protection of civilians in armed conflicts. Although merely declaratory, 27Declaratory Security Council resolutions and PRSTs are of quasi-legislative nature and have no normative effect. See Tsagourias, supra note 2, at 540. such resolutions and related PRSTs appear to have gained a special status among the sample of Security Council resolutions examined. Conversely, the resolutions on admissions of new members to the United Nations, those providing recommendations for the appointment of the new Secretary-General, those establishing a date of election to fill a vacancy in the International Court of Justice (ICJ), and the one providing a tribute to the outgoing Secretary-General do not contain any reference to international legal documents.

In a number of instances, compliance with relevant Security Council resolutions is required in absolute terms. 28S.C. Res. 1887, para. 10, U.N. Doc. S/RES/1887 (Sept. 24, 2009); S.C. Res. 1894, paras. 1, 6, U.N. Doc. S/RES/1894 (Nov. 11, 2009); S.C. Res. 1904, para. 44, U.N. Doc. S/RES/1904 (Dec. 17, 2009); S.C. Res. 1963, para. 17, U.N. Doc. S/RES/1963 (Dec. 20, 2010); S.C. Res. 2009, para. 11, U.N. Doc. S/RES/2009 (Sept. 16, 2011); S.C. Res. 2035, para. 15, U.N. Doc. S/RES/2035 (Feb. 17, 2012); S.C. Res. 2068, para. 1, U.N. Doc. S/RES/2068 (Sept. 19, 2012); S.C. Res. 2075, para. 2, U.N. Doc. S/RES/2075 (Nov. 16, 2012); S.C. Res. 2104, para. 5, U.N. Doc. S/RES/2104 (May 29, 2013); S.C. Res. 2126, para. 6, S/RES/2126 (Nov. 25, 2013). Whether this consolidated practice constitutes a precedent, at least with regard to resolutions referring to previous Security Council resolutions on the same subject-matter, 29S.C. Res. 1882, pmbl., U.N. Doc. S/RES/1882 (Aug. 4, 2009); S.C. Res. 1929, paras. 6, 16, U.N. Doc. S/RES/1929 (June 9, 2010); S.C. Res. 1998, para. 9, U.N. Doc. S/RES/1998 (July 12, 2011). is contested, although the answer seems to be negative. 30S.C. Res. 2118, pmbl., U.N. Doc. S/RES/2118 (Sept. 27, 2013). But see S.C. Res. 1904, supra note 28, ¶ 1 (establishing duties of compliance with previous Security Council resolutions on international terrorism for both U.N. members and non-member states). Likewise, re-cited Security Council resolutions do not appear to contribute to the creation or development of CIL. 31S.C. Res. 1918, pmbl., U.N. Doc. S/RES/1918 (Apr. 27, 2010) (“underscoring . . . that resolution 1897 shall not be considered as establishing customary international law”); see also S.C. Res. 1897, para. 8, U.N. Doc. S/RES/1897 (Nov. 30, 2009); S.C. Res. 1950, para. 8, U.N. Doc. S/RES/1950 (Nov. 23, 2010); S.C. Res. 2020, para. 10, U.N. Doc. S/RES 2020 (Oct. 12, 2011); S.C. Res. 2077, para. 13, U.N. Doc. S/RES/2077 (Nov. 21, 2012); S.C. Res. 2125, para. 13, U.N. Doc. S/RES/2125 (Nov. 18, 2013) (“underscoring that this resolution shall not be considered as establishing customary international law”); S.C. Res. 1976, pmbl., U.N. Doc. S/RES/1976 (Apr. 11, 2011); S.C. Res. 2015, pmbl., U.N. Doc. S/RES/2015 (Oct. 24, 2011). However, with regard to the legal force of resolutions, they stay on an equal footing with primary sources of international law. A passage from Security Council resolution 2087(2013), for example, reads: “Recognizing the freedom of all States to explore and use outer space in accordance with international law, including restrictions imposed by relevant Security Council resolutions.” 32S.C. Res. 2087, pmbl., U.N. Doc. S/RES/2087 (Jan. 22, 2013). Nonetheless, certain treaty provisions are recognized as the standard of international legality and might be successful in mitigating, to a certain extent, the discretionary powers of the Security Council. Prominent examples are the Treaty of Non-Proliferation of Nuclear Weapons (NPT), 33S.C. Res. 1887, pmbl., supra note 28 (“Underlining that the NPT remains the cornerstone of the nuclear non-proliferation regime and the essential foundation for the pursuit of nuclear disarmament and for the peaceful uses of nuclear energy, Reaffirming its firm commitment to the NPT and its conviction that the international nuclear non-proliferation regime should be maintained and strengthened to ensure its effective implementation, . . .”). the U.N. Convention on the Law of the Sea (UNCLOS), 34S.C. Res. 2018, pmbl., U.N. Doc. S/RES/2018 (Oct. 31, 2011) (“Affirming that international law, as reflected in the United Nations Convention on the Law of the Sea of 10 December 1982, in particular its articles 100, 101 and 105, sets out the legal framework applicable to countering piracy and armed robbery at sea, as well as other ocean activities”); see also S.C. Res. 2125, supra note 31, pmbl.; S.C. Res. 2077, supra note 31, pmbl.; S.C. Res. 2039, pmbl., U.N. Doc. S/RES/2039 (Feb. 29, 2012); S.C. Res. 2020, supra note 31, pmbl.; S.C. Res. 2015, supra note 31, pmbl.; S.C. Res. 1976, supra note 31, pmbl.; S.C. Res. 1950, supra note 31, pmbl.; S.C. Res. 1918, supra note 31, pmbl.; S.C. Res. 1897, supra note 31, pmbl.; S.C. Res. 1851, pmbl., U.N. Doc. S/RES/1851 (Dec. 16, 2008); S.C. Res. 1846, pmbl., U.N. Doc. S/RES/1846 (Dec. 2, 2008); S.C. Res. 1838, pmbl., U.N. Doc. S/RES/1838 (Oct. 7, 2008); S.C. Res. 1816, pmbl., U.N. Doc. S/RES/1816 (June 2, 2008). the Geneva Conventions, 35S.C. Res. 1894, supra note 28, pmbl. (“[T]he Geneva Conventions of 1949, which together with their Additional Protocols constitute the basis for the legal framework for the protection of civilians in armed conflict.”). and the purposes and principles of the U.N. Charter. 36S.C. Res. 1894, supra note 28, pmbl.; S.C. Res. 1874, pmbl., U.N. Doc. S/RES/1874 (June 12, 2009); S.C. Res. 1817, pmbl., U.N. Doc. S/RES/1817 (June 11, 2008); S.C. Res. 1688, pmbl., U.N. Doc. 1688 (June 16 2006); S.C. Res. 1645, pmbl., U.N. Doc. S/RES/1645 (Dec. 20, 2005); see also S.C. Res. 2123, U.N. Doc. S/RES/2123 (Nov. 12, 2013) (supporting resolutions on Bosnia and Herzegovina); S.C. Res. 2099, U.N. Doc. S/RES/2099 (Apr. 25, 2013) (supporting Western Sahara resolutions); S.C. Res. 1894, supra note 28 (providing protection of civilians in armed conflict).

The analysis also shows that particular sets of resolutions stand out either for the abundance or the paucity of the sources of international law other than United Nations documents referred to in the text of those resolutions. Resolutions on Somalia as well as those drawing on the reports of the Secretary-General on Sudan are examples of the first type. They both address situations classified as breaches of international peace and security, and represent the cusp of a trend in which Security Council resolutions addressing situations taking place in Africa rely heavily upon international legal instruments as the preferred means for eliciting compliance of their addressees. 37See, for instance, the Resolutions on the Democratic Republic of the Congo, Ivory Coast, Mali, Peace and security in Africa, Sudan/South Sudan. S.C. Res. 2179, U.N. Doc. S/RES/2179 (Oct. 14, 2014) (South Sudan); S.C. Res. 2177, U.N. Doc. S/RES/2177 (Sept. 18, 2014) (Africa); S.C. Res. 2164, U.N. Doc. S/RES/2164 (June 25, 2014) (Mali); S.C. Res. 2153, U.N. Doc. S/RES/2153 (Apr. 29, 2014) (Ivory Coast); S.C. Res. 2147, U.N. Doc. S/RES/2147 (Mar. 28, 2014) (Dem. Rep. Congo). Contrast resolutions on Liberia and Sierra Leone. S.C. Res. 2188, U.N. Doc. S/RES/2188 (Dec. 9, 2014) (Liberia); S.C. Res. 2065, U.N. Doc. S/RES/2065 (Sept. 12, 2012) (Sierra Leone). Most notably, the resolutions on the reports of the Secretary-General on Sudan contain a well-proportioned amount of reference to sources of international law in both the Preamble and the operative part of resolutions. Sources referred to include treaties, various U.N. documents and generic reference to international law, including international humanitarian and human rights law in equal measure. 38See generally U.N. Secretary-General, Report on South Sudan, U.N. Doc. S/2014/821 (Nov. 18, 2014); U.N. Secretary-General, Report on South Sudan, U.N. Doc. S/2014/537 (July 25, 2014). On the other hand, the distinctive trait of resolutions on Somalia is that they are the only ones to mention CIL and, 39S.C. Res. 2182, para. 21, U.N. Doc. S/RES/2182 (Oct. 24, 2014). contrary to the majority of Security Council resolutions under scrutiny, place more emphasis on international human rights law rather than humanitarian law.

Resolutions on Afghanistan and threats to international peace and security caused by terrorist acts pertain to the second type. Reference to international treaties is virtually absent in the latter, with the Bonn Agreement of 2005 on Afghanistan mentioned once in the Preamble to resolution 1988 (2011). 40S.C. Res. 1988, pmbl., U.N. Doc. S/RES/1988 (June 17, 2011). This set of resolutions is also characterized by a continuous reference, both in the Preamble and in the operative part, to previous Security Council resolutions on Afghanistan and general issues relating to sanctions. Resolution 1904 (2009) also dictates that all States, U.N. members and non-members alike, must take the measures to combat international terrorism as imposed by previous Security Council resolutions. 41S.C. Res. 1904, supra note 28, ¶ 1. Despite sporadic reference to international law, humanitarian law, international human rights law and refugee law in the Preamble, however, it is hard to single out the parameter of legality adopted by the Security Council to justify its actions other than Security Council resolutions themselves.

On the other hand, resolutions on Afghanistan tend to supply the paucity of reference to international treaties with great attention to Security Council resolutions on women, children, and civilians as well as resolutions on threats to international peace and security caused by terrorist acts. In light of the considerations above, this suggests that only the former set of resolutions—women, children, and civilians—may be regarded as the legal basis of Security Council actions, 42On the effectiveness of these sets of resolutions, see infra Part IV. in addition to the U.N. Charter provisions establishing the Security Council mandate.

Finally, the empirical results show that two individual resolutions possess unique features. The first one is resolution 1929(2010) on nuclear non-proliferation in Iran. It stands out as the most politicized of the resolutions under scrutiny as it establishes that to restore the confidence of the international community, the strategy for resolving the Iranian nuclear issue through peaceful means must conform to proposals made by the P5. 43S.C. Res. 1929, supra note 29, pmbl., ¶ 32 (operative); see also S.C. Res. 1696, para. 4, U.N. Doc. S/RES/1696 (July 31, 2006). The second one is resolution 2059(2012) on the situation in the Middle East. In this resolution, the absence of any reference to any previous Security Council resolutions—either on the same subject-matter or related ones, as well as to international treaties—is striking.

III. Reuniting “Is” and “Ought”

So far the analysis has shown that any attempts at assessing Security Council practice over a decade rely upon a particular vision of its role in addressing threats to or breaches of international peace and security. 44Chesterman, Franck & Malone, supra note 1, at 575–96. In particular, the previous Parts of this Article have examined what is the normative context stemming from selected provisions of the U.N. Charter and discussed the extent to which international law is able to shape Security Council practice with a view to finding coherence between theory and practice of Security Council powers. This Part aims to establish whether the proclaimed Security Council commitment to upholding applicable international law is tainted by appearance of bias. To that end, it creates a taxonomy of Security Council decisions adopted in a period of ten years (2004–2013) in order to find selection effects. The empirical analysis is based on simple statistics and includes actions adopted—namely, resolutions and PRSTs—as well as vetoes, inactions, and the outcome of private meetings.

In the period from 2004 to 2013, the Security Council adopted 1021 decisions, including 611 resolutions and 410 PRSTs. Grouped by categories of actions, the aggregated data shows that seventy-seven percent of all Security Council decisions address issues with a regional scope while sixteen percent of decisions address thematic issues. The remaining decisions, comprising seven percent, include actions previously agreed upon or taken by the broader family of United Nations institutions and seconded by the Security Council.

Figure 1: Composition of Security Council decisions (2004-2013)

deplano-figure 1

The disaggregated data in the geopolitical section further demonstrates that 496 decisions—comprising forty-nine percent of all Security Council decisions, concern the African continent while 172 decisions—comprising seventeen percent, concern the Middle East region. 45There is no generally accepted definition of Middle East. See Huseyin Yilmaz, The Eastern Question and the Ottoman Empire: The Genesis of the Near and Middle East in the Nineteenth Century, in Is There a Middle East? The Evolution of a Geopolitical Concept 11 (Michael E. Bonine, Abbas Amanat & Michael E. Gasper eds., 2011). For the purposes of this article, the broadest concept is used. Taken together, the number of Security Council decisions addressing issues taking place in Africa and the Middle East is equal to 668 out of 788—comprising eighty-five percent of Security Council decisions on geopolitical regions. The figures do not take into consideration any decision addressing United Nations activities in those geopolitical areas (which have been classified as “U.N./Other” related issues), but only actions taken by the Security Council.

Figure 2: Composition of decisions on geopolitical regions (2004-2013)

deplano-figure 2

Table 3: Decisions on geopolitical regions (2004-2013)

Category of action

All decisions

Decisions on geopolitical regions

Africa

496 (49%)

496 (63%)

Middle East

172 (17%)

172 (22%)

Europe

52 (5%)

52 (7%)

Asia-Pacific

41 (4%)

41 (5%)

Americas

27 (3%)

27 (3%)

Tot.

1021

788

In light of the above, it is significant that sixty-six percent of all Security Council decisions adopted between 2004 and 2013 specifically target Africa and the Middle East whereas the remaining thirty-four percent address the remaining issues without giving prominence to any particular subject-matter. Assuming that the Security Council has not acted ultra vires, 46On this issue, see Rosand, supra note 2. the findings of the empirical analysis also suggest that the actions taken by the Security Council address situations representing threats to international peace and security, and, therefore, fall under the purview of its mandate. However, the major point of concern is that the margin of discretion of Security Council members in general, and the P5 in particular, reflects the scenario of international relations and diplomatic interactions between members of the international community. 47Henry J. Steiner & Philip Alston, International Human Rights in Context: Law, Politics, Morals 651–53 (2000) (discussing gross violations of human rights and the Security Council’s impasse caused by political convenience of the P5); see also Rhona K.M. Smith, Textbook on International Human Rights 54 (2010) (arguing that “[t]he most serious compliant raised against the Security Council is that it is less likely to take action against its permanent members”). This, in turn, suggests that the actions taken by the Security Council in the period of time from 2004 to 2013 are tainted by selection bias. The number of Security Council meetings concluded without any action corroborates this conclusion, since the number of inactions related to geopolitical issues is equal to 753 out of 1040, comprising seventy-three percent, and within this section, 622 inactions concern issues taking place in Africa and the Middle East, comprising eighty-three percent.

Figure 3: Composition of decisions on geopolitical regions (2004-2013)

deplano-figure 3

Table 4: Decisions divided by categories of activities (2004-2013)

Category of activity

Regions

Thematic issues

U.N./Other

Resolutions

502

58

51

PRSTs

286

106

18

Vetoes

10

0

0

Private meetings (statements)

75

3

196*

Inactions

753

157

130**

* Fig. includes 46 inactions related to the functioning of the Security Council

** Fig. includes 83 inactions related to the functioning of the Security Council

Overall, the numerical evidence yielded by this study shows that although individual Security Council decisions comply with the terms of its mandate, the selection of subject-matters representing the object of the decisions adopted between 2004 and 2013 ultimately amounts to a biased compliance with the U.N. Charter obligations. By assessing the implications of the results of data analysis on the internal and external coherence of current Security Council practice, the remainder of this Part explores the possibility to reunite what “is” and what “ought to be” current and future Security Council practice. 48Joshua B. Fischman, Reuniting ‘Is’ and ‘Ought’ in Empirical Legal Scholarship, 162 U. Penn. L. Rev. 117, 168 (2013).

The issue of external coherence refers to the relation between the Security Council and other U.N. organs—namely, the Secretary-General and the General Assembly. Previous studies have shown that because of the veto power, whether actual or threatened, certain decisions turn out to be impractical and have, therefore, suggested that alternative approaches and levels of discussion might help ameliorate the situation. 49Deplano, supra note 16. For instance, the level of decision-making regarding threats to or breaches of international peace and security could be shared with other primary organs of the United Nations, at least at the preliminary stages of discussion leading to the possible inclusion of a matter on the Security Council agenda.

One such organ is the Secretary-General. As established practice shows, there is an ongoing exchange of letters between the Secretary-General and the Security Council President on current and potential issues on the Security Council agenda. 50Id. at 148–49. However, although such an exchange is meant to improve the overall Security Council action strategy, the Security Council recognizes the role of the Secretary-General as merely consultative. 51S.C. Res. 1998, supra note 29, ¶ 2; S.C. Res. 1882, supra note 29, ¶ 2; S.C. Res. 1612, para. 4, U.N. Doc. S/RES/1612 (July 26, 2005); S.C. Pres. Statement 2010/10, para. 16, U.N. Doc. S/PRST/2010/10 (June 16, 2010). In strict legal terms, this restrictive attitude of the Security Council stems from the wording of the U.N. Charter by virtue of Article 24, which confers “primary responsibility” on the Security Council for the maintenance of international peace and security. On the other side of the spectrum, Article 99 of the U.N. Charter may be invoked as the basis of the Secretary-General’s political activities. 52Edward Newman, Secretary-General, in Weiss & Daws, supra note 1, at 177–78. It reads: “The Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.” 53U.N. Charter art. 99.

Although formulated in broad terms, the right of the Secretary-General under Article 99 has limited relevance in constraining the powers of the Security Council. As the history of the drafting of Article 99 shows, the Secretary-General was not intended to preside over the Security Council or to dictate its agenda. 54Stephen M. Schwebel, The Origins and Development of Article 99 of the Charter, 28 Brit. Y.B. Int’l L. 371 (1951). By no coincidence, the final formulation of Article 99 was proposed by a P5, thus confirming the political nature of the Security Council. 55Id. at 374.

Another alternative might consist of a duty of the Security Council to take into consideration matters referred to it by the General Assembly and publicly justify its decisions as to whether or not take action in light of applicable provisions of the U.N. Charter and international law. As things stand, the General Assembly may discuss any questions relating to the maintenance of international peace and security and make any recommendations to Member States and the Security Council on any such questions. 56U.N. Charter arts. 10–11. However, the rights of the General Assembly are subject to the provision of Article 12 of the U.N. Charter: “While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.” 57Id. art. 12.

Absent any duty of the Security Council to take into consideration situations of potential breach of international peace and security brought to its attention by other U.N. organs, such as the Secretary-General and the General Assembly, the possibility to create, and clarify, the normative parameter of legitimacy of Security Council actions is constantly jeopardized by the Security Council power to decide the degree of necessity of its intervention based on political considerations. 58In the Security Council resolutions and presidential statements on women, children and civilians there are countless references to the unlimited discretion of the Security Council in assessing matters brought to its attentions (“where necessary” and “on a case-by-case basis”). See, for instance, S.C. Pres. Statement 2002/6, U.N. Doc. S/PRST/2002/6 (Mar. 15, 2002). Given the broad formulation of Article 24 of the U.N. Charter, even the principle laid out by the ICJ on the political character of an organ of the United Nations, such as the Security Council, cannot be regarded as decisive in determining the legitimacy of Security Council actions:

The political character of an organ cannot release it from the observance of the treaty provisions established by the Charter when they constitute limitations on its powers or criteria for its judgment. To ascertain whether an organ has freedom of choice for its decisions, reference must be made to the terms of its constitution. 59Conditions of Admission of a State to Membership in the United Nations, 1948 I.C.J. 57, 64 (May 28, 1948) (emphasis added).

This has led certain international scholarship to conclude that “such lack of accountability and failure to provide remedies against an injudicious Security Council in itself poses a threat to international peace and security.” 60Javaid Rehman, International Human Rights Law 39 (2010).

Perhaps the best way to establish a benchmark of international legality would be to ensure a high level of internal coherence of Security Council decisions. Resolutions and PRSTs addressing thematic issues, for example, could be used to set a parameter of legality for future Security Council actions. Such use of precedent would not be contrary to the Security Council mandate nor would it be perceived as an undue interference by the P5, since the content of thematic resolutions is decided by the Security Council itself. Conversely, it would bring benefit in the international legal system as it would start a process of codification of the legal mind of the Security Council. However, the effectiveness of this proposal is doubtful in many ways. In particular, whereas reasons of consistency and reasonableness of Security Council actions suggest that it is unlikely that the Security Council would treat identical situations in different ways without any serious justification, the definition of international peace and security is so broad that cannot eliminate selection bias relating to the issues included on the Security Council agenda.

Conclusions

The issue of interpretation of Security Council resolutions is highly contested. Scholars and international tribunals alike differ in their approach to the interpretation of the scope of individual resolutions, the determination of which clarifies their legal effect. 61Sienho Yee, The Dynamic Interplay between the Interpreters of Security Council Resolutions, 11 Chinese J. Int’l L. 613 (2012). By providing a systematic analysis of a sample comprising over a quarter of Security Council practice since 1946, this article has provided an alternative perspective.

The findings of the analysis show that the Security Council has developed a self-contained legal mind under the aegis of the U.N. Charter. Part III, in particular, has demonstrated that references to primary sources of international law in the text of resolutions abound, and they seem to have some influence on the behavioral patterns of the Security Council. However, as the adopted resolutions do not set a precedent, the sources of international law cited therein fail to establish an objective parameter of international legality. In addition, Part IV has shown that the powers of the Security Council are characterized by an inherent tension between compliance with the terms of its mandate and a degree of discretion related to the selection of subject-matters, which ultimately amounts to a biased compliance with its U.N. Charter obligations.

This leads to the conclusion that while the discretionary powers of the Security Council cannot be eliminated, its commitment to enhancing existent regimes of international law such as humanitarian law exercises some influence over its politics, as the case of the resolutions on women, children, and civilians demonstrate. At the same time, this constructive attitude of the Security Council contributes to strengthening the authority of existent rules and principles of international law. On the other side of the spectrum, it appears that, outside the area of international terrorism, the scrutinized behavioral regularities of the Security Council have little or no influence on the development of international law.

APPENDIX 1—LIST OF RESOLUTIONS (2004-2013)

Subject

No. of Res.

Category

Sub-category

Admission of new members

2

U.N./Other

Afghanistan

22

Geopolitical regions

Middle East

Bosnia and Herzegovina

13

Geopolitical regions

Europe

Burundi

14

Geopolitical regions

Africa

Central African Republic

4

Geopolitical regions

Africa

Chad, Central African Republic and the sub-region

6

Geopolitical regions

Africa

Children and armed conflict

5

Thematic issue

Cooperation between the U.N. and regional and sub-regional organizations in maintaining international peace and security

2

Thematic issue

Cyprus

19

Geopolitical regions

Europe

Date of election to fill a vacancy in the ICJ

4

U.N./Other

Democratic Republic of the Congo

41

Geopolitical regions

Africa

General issues relating to sanctions

3

Thematic issues

Georgia

12

Geopolitical regions

Europe

Great Lakes Region

2

Geopolitical regions

Africa

Guinea-Bissau

7

Geopolitical regions

Africa

Haiti

17

Geopolitical regions

Americas

ICTR

16

U.N./Other

ICTR and ICTY

2

U.N./Other

ICTY

22

U.N./Other

Iraq

18

Geopolitical regions

Middle East

Ivory Coast

47

Geopolitical regions

Africa

Letter from the permanent Representative of Japan to the U.N.

1

Geopolitical regions

Asia

Letter from the Secretary-General (S/2006/920)

8

Geopolitical regions

Asia

Liberia

33

Geopolitical regions

Africa

Libya

7

Geopolitical regions

Africa

Maintenance of international peace and security

1

Thematic issue

Maintenance of international peace and security: nuclear non-proliferation and nuclear disarmament

1

Thematic issue

Mali

3

Geopolitical regions

Africa

Middle East

51

Geopolitical regions

Middle East

Middle East, including the Palestinian question

3

Geopolitical regions

Middle East

Non-proliferation

8

Thematic issue

Non-proliferation/Democratic People’s Republic of Korea

7

Geopolitical regions

Asia

Non-proliferation/Iran

1

Geopolitical regions

Middle East

Non-proliferation of weapons of mass destruction

5

Thematic issue

Peace and security in Africa

7

Geopolitical regions

Africa

Peace consolidation in West Africa

1

Geopolitical regions

Africa

Post-conflict peacebuilding

3

Thematic issue

Protection of civilians in armed conflicts

3

Thematic issue

Recommendations for the appointment of the Secretary-General

2

U.N./Other

Reports of the Secretary-General on Sudan

22

Geopolitical regions

Africa

Rwanda

2

Geopolitical regions

Africa

Security Council meetings in Nairobi

1

U.N./Other

Sierra Leone

14

Geopolitical regions

Africa

Situation between Eritrea and Ethiopia

14

Geopolitical regions

Africa

Situation between Iraq and Kuwait

4

Geopolitical regions

Middle East

Small arms and light weapons

1

Thematic issue

Somalia

44

Geopolitical regions

Africa

Sudan

25

Geopolitical regions

Africa

Sudan sanctions

1

Geopolitical regions

Africa

Sudan/South Sudan

4

Geopolitical regions

Africa

Threats to international peace and security (Security Council Summit 2005)

2

Thematic issue

Threats to international peace and security caused by terrorist acts

18

Thematic issue

Timor Leste

13

Geopolitical regions

Asia

Tribute to the outgoing Secretary-General

1

U.N./Other

U.N. peacekeeping operations

1

U.N./Other

Western Sahara

15

Geopolitical regions

Africa

Women and peace and security

6

Thematic issue

Tot.

611

APPENDIX 2—LIST OF PRESIDENTIAL STATEMENTS (2004-2013)

Subject

No. of PRSTs

Category

Sub-category

Admission of new members

2

U.N./Other

Afghanistan

10

Geopolitical regions

Middle East

Bosnia and Herzegovina

1

Geopolitical regions

Europe

Briefings by chairmen of Security Council subsidiary bodies

2

U.N./Other

Burundi

8

Geopolitical regions

Africa

Central African Region

7

Geopolitical regions

Africa

Central African Republic

5

Geopolitical regions

Africa

Chad, Central African Republic and the subregion

5

Geopolitical regions

Africa

Chad and Sudan

3

Geopolitical regions

Africa

Children and armed conflict

8

Thematic issue

Civilian aspects of conflict: management and peacebuilding

1

Thematic issue

Cooperation between the U.N. and regional and sub-regional organizations in maintaining international peace and security

4

U.N./Other

Cooperation between the U.N. and regional organizations in stabilization processes

1

U.N./Other

Cross-border issues in West Africa

2

Geopolitical regions

Africa

Cyprus

3

Geopolitical regions

Europe

Decision of Libya to abandon its weapons of mass destruction

1

Democratic Republic of the Congo

24

Geopolitical regions

Africa

Eritrea and Ethiopia

7

Geopolitical regions

Africa

Great Lakes Region

6

Geopolitical regions

Africa

Guinea-Bissau

12

Geopolitical regions

Africa

Haiti

10

Geopolitical regions

Americas

ICTR and ICTY

2

U.N./Other

Institutional relationship with the African Union

1

U.N./Other

Iraq

7

Geopolitical regions

Middle East

Iraq and Kuwait

3

Geopolitical regions

Middle East

Ivory Coast

24

Geopolitical regions

Africa

Justice and the rule of law

1

Thematic issue

Letter from Chargé d’affaires of the Permanent Mission of Papua New Guinea

1

Geopolitical regions

Oceania

Letter from Permanent Representative of Japan

1

Geopolitical regions

Africa

Letter from the Permanent Representative of Korea

1

U.N./Other

Letter from Permanent Representative of Sudan

1

Geopolitical regions

Africa

Letter from the Secretary-General (S/2006/920)

3

U.N./Other

Libya

1

Geopolitical regions

Africa

Maintenance of international peace and security

6

Thematic issue

Maintenance of international peace and security: interdependence between security and development

1

Thematic issue

Maintenance of international peace and security: mediation and settlement of disputes

2

Thematic issue

Maintenance of international peace and security: natural resources and conflict

1

Thematic issue

Maintenance of international peace and security: piracy

1

Thematic issue

Maintenance of international peace and security: preventive diplomacy

1

Thematic issue

Maintenance of international peace and security: regulation and reduction of armaments

2

Thematic issue

Maintenance of international peace and security: role of Security Council in supporting security sector reform

2

Thematic issue

Maintenance of international peace and security: role of Security Council in humanitarian crises

1

Thematic issue

Middle East

46

Geopolitical regions

Middle East

Middle East, including the Palestinian question

7

Geopolitical regions

Middle East

Myanmar

2

Geopolitical regions

Asia

Non-proliferation

1

Thematic issue

Non-proliferation/Democratic Peoples’ Republic of Korea

2

Geopolitical regions

Asia

Non-proliferation of weapons of mass destruction

1

Thematic issue

Peace and security in Africa

17

Geopolitical regions

Africa

Peace and security in Africa: the Sahel region

1

Geopolitical regions

Africa

Peace consolidation in West Africa

5

Geopolitical regions

Africa

Post-conflict national reconciliation: role of the United Nations

1

U.N./Other

Post-conflict peacebuilding

6

Thematic issue

Post-conflict peacebuilding: institution-building

1

Thematic issue

Protection of civilians in armed conflicts

6

Thematic issue

Relationship between the United Nations and regional and sub-regional organizations in the maintenance of international peace and security

1

Thematic issue

Reports of the Secretary-General on Sudan

26

Geopolitical regions

Africa

Responsibility of the Security Council in the maintenance of international peace and security: HIV/AIDS and peacekeeping operations

1

Thematic issue

Role of civil society in conflict prevention and the pacific settlement of disputes

1

Thematic issue

Role of regional and sub-regional organizations in the maintenance of international peace and security

1

Thematic issue

Rule of law

3

Thematic issue

Security Council resolutions 1160(1998), 1199(1998), 1203(1998), 1239(1999) and 1244(1999)

4

Geopolitical regions

Europe

Sierra Leone

5

Geopolitical regions

Africa

Small arms

3

Thematic issue

Somalia

24

Geopolitical regions

Africa

Threats to international peace and security

3

Thematic issue

Threats to international peace and security caused by terrorist acts

35

Thematic issue

Timor Leste

6

Geopolitical regions

Asia

U.N. peacekeeping operations

5

Thematic issue

Women and peace and security

11

Thematic issue

Tot.

410

APPENDIX 3—VETO LIST (2004-2013)

Agenda item

Date

Draft

Permanent member casting negative vote

Middle East situation, including the Palestinian question

25 March 2004

S/2004/240

United States

Cyprus

21 April 2004

S/2004/313

Russian Federation

Middle East situation, including the Palestinian question

5 October 2004

S/2004/783

United States

Middle East situation, including the Palestinian question

13 July 2006

S/2006/508

United States

Myanmar

12 January 2007

S/2007/14

China; Russian Federation

Georgia

15 June 2009

S/2009/310

Russian Federation

Middle East

19 July 2012

S/2012/538

China; Russian Federation

Middle East situation

4 October 2011

S/2011/612

China; Russian Federation

Middle East situation, including the Palestinian question

18 February 2011

S/2011/24

United States

Middle East situation: Syria

4 February 2012

S/2012/77

China; Russian Federation

Tot.

10

Footnotes

LL.B, LL.M, Ph.D., Lecturer, Brunel University London (U.K.). I would like to thank Dr. Paolo Vargiu for his comments on earlier drafts and Dr. Patricia Hobbs for her constant support. All mistakes remain mine.

1See, e.g., David M. Malone, Security Council, in The Oxford Handbook on the United Nations 117 (Thomas G. Weiss & Sam Daws eds., 2008). See generally, e.g., Simon Chesterman, Thomas M. Franck, & David M. Malone, Law and Practice of the United Nations: Documents and Commentary (2008); Antonios Tzanakopoulos, Disobeying the Security Council (2013); Sufyan Droubi, Resisting United Nations Security Council Resolutions (2014); Erika de Wet, The Chapter VII Powers of the United Nations Security Council (2004).

2See generally, Anne Peters, Functions and Powers:Article 24, in 1 The Charter of the United Nations: A Commentary 2011 (Bruno Simma et al. eds., 2012); Nicholas Tsagourias, Security Council Legislation, Article 2(7) of the UN Charter, and the Principle of Subsidiarity, 24 Leiden J. Int’l L. 539 (2011); Eric Rasand, The Security Council as “Global Legislator”: Ultra Vires or Ultra Innovative?, 28 Fordham Int’l L.J. 542 (2005); Munir Akram & Syed H. Shah, The Legislative Powers of the United Nations Security Council, in Towards World Constitutionalism: Issues in the Legal Ordering of the World Community 431 (Ronald St. John Macdonald & Douglas M. Johnston eds., 2005); Axel Marschik, Legislative Powers of the Security Council, in Towards World Constitutionalism: Issues in the Legal Ordering of the World Community 457 (Ronald St. John Macdonald & Douglas M. Johnston eds., 2005); Cathleen Powell, The Legal Authority of the United Nations Security Council, in Security and Human Rights 157 (Benjamin J. Goold & Liora Lazarus eds., 2007); Bardo Fassbender, The United Nations Charter as Constitution of the International Community (2009).

3See generally, e.g., Christian Henderson & Noam Lubell, The Contemporary Legal Nature of UN Security Council Ceasefire Resolutions, 26 Leiden J. Int’l L. 369 (2013).

4See, e.g., Michael Barnett & Martha Finnemore, Political Approaches, in The Oxford Handbook on the United Nations, supra note 1, at 41.

5Nigel Rodley & Başak Çali, Use of Force in International Law, in International Law for International Relations 226 (Başak Çali ed., 2010).

6See id.

7S.C. Res. 144, U.N. Doc. S/4395 (July 19, 1960).

8 U.N. Security Council action on Crimea referendum blocked, U.N. News Centre (Mar. 15, 2014), http://www.un.org/apps/news/story.asp?NewsID=47362#.VNE-dGQbDTE (referring to S.C. Draft Res. 189, U.N. Doc. S/2014/189 (Mar. 14, 2014)).

9U.N. Charter art. 39.

10See id.

11Rodley & Çali, in International Law for International Relations, supra note 5, at 225.

12See Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 I.C.J. 174, 178 (Apr. 11); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276, Advisory Opinion, 1971 I.C.J. 16, ¶ 109 (June 21).

13Tsagourias, supra note 2, at 545–47. See generally, S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001); S.C. Res. 1540, U.N. Doc. S/RES/1540 (Apr. 28, 2004); S.C. Res. 1636, U.N. Doc. S/RES/1636 (Oct. 31, 2005); S.C. Res. 1701, U.N. Doc. S/RES/1701 (Aug., 11, 2006); S.C. Res. 1737, U.N. Doc. S/RES/1737 (Dec. 27, 2006); S.C. Res. 1803, U.N. Doc. S/RES/1803 (Mar. 3, 2008).

14U.N. Charter arts. 27, 31–32.

15U.N. S.C., Provisional Rules of Procedure of the Security Council, rules 40–57, U.N. Doc. S/96 (June 27, 1946).

16U.N. S.C. Pres., Note by the President of the Security Council, para. 2, U.N. Doc. S/2010/507 (July 26, 2010) [hereinafter Note 507]. For further analysis on procedural aspects of the Security Council decision making, see Rossana Deplano, Building a Taxonomy of United Nations Security Council Decisions: A Biased Compliance with the UN Charter Obligations?, 1 St. Prac. & Int’l L.J. 143 (2014).

17United Nations, The Security Council Working Methods Handbook 90 (2012).

18See Andreas Zimmerman, Voting: Article 27, in The Charter of the United Nations: A Commentary, supra note 2, at 1820 (Bruno Simma et al. eds., 2012). On the interpretation of Security Council resolutions, see generally Alexander Orakhelashvili, The Acts of the Security Council: Meaning and Standards of Review, 11 Max Planck Y.B. U.N. L. 143 (2007).

19U.N. Charter, art. 11, para 3.

20Rodley & Çali, in International Law for International Relations supra note 5, at 228.

21Chesterman et al., supra note 1, at 133.

22See Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), Advisory Opinion, 1962 I.C.J. 151, 167–68 (July 20).

23Deplano, supra note 16, at 139–41.

24Id. at 139.

25See generally, e.g., Paolo Vargiu & Rossana Deplano, The Human Rights Dimension of UN Security Council Resolutions, in Essays on Human Rights: A Celebration of the Life of Dr. Janusz Kochanowski 523 (Jo Carby-Hall ed., 2014).

26Security Council Resolutions, United Nations, www.un.org/en/sc/documents/resolutions/ (last visited Feb. 6, 2015).

27Declaratory Security Council resolutions and PRSTs are of quasi-legislative nature and have no normative effect. See Tsagourias, supra note 2, at 540.

28S.C. Res. 1887, para. 10, U.N. Doc. S/RES/1887 (Sept. 24, 2009); S.C. Res. 1894, paras. 1, 6, U.N. Doc. S/RES/1894 (Nov. 11, 2009); S.C. Res. 1904, para. 44, U.N. Doc. S/RES/1904 (Dec. 17, 2009); S.C. Res. 1963, para. 17, U.N. Doc. S/RES/1963 (Dec. 20, 2010); S.C. Res. 2009, para. 11, U.N. Doc. S/RES/2009 (Sept. 16, 2011); S.C. Res. 2035, para. 15, U.N. Doc. S/RES/2035 (Feb. 17, 2012); S.C. Res. 2068, para. 1, U.N. Doc. S/RES/2068 (Sept. 19, 2012); S.C. Res. 2075, para. 2, U.N. Doc. S/RES/2075 (Nov. 16, 2012); S.C. Res. 2104, para. 5, U.N. Doc. S/RES/2104 (May 29, 2013); S.C. Res. 2126, para. 6, S/RES/2126 (Nov. 25, 2013).

29S.C. Res. 1882, pmbl., U.N. Doc. S/RES/1882 (Aug. 4, 2009); S.C. Res. 1929, paras. 6, 16, U.N. Doc. S/RES/1929 (June 9, 2010); S.C. Res. 1998, para. 9, U.N. Doc. S/RES/1998 (July 12, 2011).

30S.C. Res. 2118, pmbl., U.N. Doc. S/RES/2118 (Sept. 27, 2013). But see S.C. Res. 1904, supra note 28, ¶ 1 (establishing duties of compliance with previous Security Council resolutions on international terrorism for both U.N. members and non-member states).

31S.C. Res. 1918, pmbl., U.N. Doc. S/RES/1918 (Apr. 27, 2010) (“underscoring . . . that resolution 1897 shall not be considered as establishing customary international law”); see also S.C. Res. 1897, para. 8, U.N. Doc. S/RES/1897 (Nov. 30, 2009); S.C. Res. 1950, para. 8, U.N. Doc. S/RES/1950 (Nov. 23, 2010); S.C. Res. 2020, para. 10, U.N. Doc. S/RES 2020 (Oct. 12, 2011); S.C. Res. 2077, para. 13, U.N. Doc. S/RES/2077 (Nov. 21, 2012); S.C. Res. 2125, para. 13, U.N. Doc. S/RES/2125 (Nov. 18, 2013) (“underscoring that this resolution shall not be considered as establishing customary international law”); S.C. Res. 1976, pmbl., U.N. Doc. S/RES/1976 (Apr. 11, 2011); S.C. Res. 2015, pmbl., U.N. Doc. S/RES/2015 (Oct. 24, 2011).

32S.C. Res. 2087, pmbl., U.N. Doc. S/RES/2087 (Jan. 22, 2013).

33S.C. Res. 1887, pmbl., supra note 28 (“Underlining that the NPT remains the cornerstone of the nuclear non-proliferation regime and the essential foundation for the pursuit of nuclear disarmament and for the peaceful uses of nuclear energy, Reaffirming its firm commitment to the NPT and its conviction that the international nuclear non-proliferation regime should be maintained and strengthened to ensure its effective implementation, . . .”).

34S.C. Res. 2018, pmbl., U.N. Doc. S/RES/2018 (Oct. 31, 2011) (“Affirming that international law, as reflected in the United Nations Convention on the Law of the Sea of 10 December 1982, in particular its articles 100, 101 and 105, sets out the legal framework applicable to countering piracy and armed robbery at sea, as well as other ocean activities”); see also S.C. Res. 2125, supra note 31, pmbl.; S.C. Res. 2077, supra note 31, pmbl.; S.C. Res. 2039, pmbl., U.N. Doc. S/RES/2039 (Feb. 29, 2012); S.C. Res. 2020, supra note 31, pmbl.; S.C. Res. 2015, supra note 31, pmbl.; S.C. Res. 1976, supra note 31, pmbl.; S.C. Res. 1950, supra note 31, pmbl.; S.C. Res. 1918, supra note 31, pmbl.; S.C. Res. 1897, supra note 31, pmbl.; S.C. Res. 1851, pmbl., U.N. Doc. S/RES/1851 (Dec. 16, 2008); S.C. Res. 1846, pmbl., U.N. Doc. S/RES/1846 (Dec. 2, 2008); S.C. Res. 1838, pmbl., U.N. Doc. S/RES/1838 (Oct. 7, 2008); S.C. Res. 1816, pmbl., U.N. Doc. S/RES/1816 (June 2, 2008).

35S.C. Res. 1894, supra note 28, pmbl. (“[T]he Geneva Conventions of 1949, which together with their Additional Protocols constitute the basis for the legal framework for the protection of civilians in armed conflict.”).

36S.C. Res. 1894, supra note 28, pmbl.; S.C. Res. 1874, pmbl., U.N. Doc. S/RES/1874 (June 12, 2009); S.C. Res. 1817, pmbl., U.N. Doc. S/RES/1817 (June 11, 2008); S.C. Res. 1688, pmbl., U.N. Doc. 1688 (June 16 2006); S.C. Res. 1645, pmbl., U.N. Doc. S/RES/1645 (Dec. 20, 2005); see also S.C. Res. 2123, U.N. Doc. S/RES/2123 (Nov. 12, 2013) (supporting resolutions on Bosnia and Herzegovina); S.C. Res. 2099, U.N. Doc. S/RES/2099 (Apr. 25, 2013) (supporting Western Sahara resolutions); S.C. Res. 1894, supra note 28 (providing protection of civilians in armed conflict).

37See, for instance, the Resolutions on the Democratic Republic of the Congo, Ivory Coast, Mali, Peace and security in Africa, Sudan/South Sudan. S.C. Res. 2179, U.N. Doc. S/RES/2179 (Oct. 14, 2014) (South Sudan); S.C. Res. 2177, U.N. Doc. S/RES/2177 (Sept. 18, 2014) (Africa); S.C. Res. 2164, U.N. Doc. S/RES/2164 (June 25, 2014) (Mali); S.C. Res. 2153, U.N. Doc. S/RES/2153 (Apr. 29, 2014) (Ivory Coast); S.C. Res. 2147, U.N. Doc. S/RES/2147 (Mar. 28, 2014) (Dem. Rep. Congo). Contrast resolutions on Liberia and Sierra Leone. S.C. Res. 2188, U.N. Doc. S/RES/2188 (Dec. 9, 2014) (Liberia); S.C. Res. 2065, U.N. Doc. S/RES/2065 (Sept. 12, 2012) (Sierra Leone).

38See generally U.N. Secretary-General, Report on South Sudan, U.N. Doc. S/2014/821 (Nov. 18, 2014); U.N. Secretary-General, Report on South Sudan, U.N. Doc. S/2014/537 (July 25, 2014).

39S.C. Res. 2182, para. 21, U.N. Doc. S/RES/2182 (Oct. 24, 2014).

40S.C. Res. 1988, pmbl., U.N. Doc. S/RES/1988 (June 17, 2011).

41S.C. Res. 1904, supra note 28, ¶ 1.

42On the effectiveness of these sets of resolutions, see infra Part IV.

43S.C. Res. 1929, supra note 29, pmbl., ¶ 32 (operative); see also S.C. Res. 1696, para. 4, U.N. Doc. S/RES/1696 (July 31, 2006).

44Chesterman, Franck & Malone, supra note 1, at 575–96.

45There is no generally accepted definition of Middle East. See Huseyin Yilmaz, The Eastern Question and the Ottoman Empire: The Genesis of the Near and Middle East in the Nineteenth Century, in Is There a Middle East? The Evolution of a Geopolitical Concept 11 (Michael E. Bonine, Abbas Amanat & Michael E. Gasper eds., 2011). For the purposes of this article, the broadest concept is used.

46On this issue, see Rosand, supra note 2.

47Henry J. Steiner & Philip Alston, International Human Rights in Context: Law, Politics, Morals 651–53 (2000) (discussing gross violations of human rights and the Security Council’s impasse caused by political convenience of the P5); see also Rhona K.M. Smith, Textbook on International Human Rights 54 (2010) (arguing that “[t]he most serious compliant raised against the Security Council is that it is less likely to take action against its permanent members”).

48Joshua B. Fischman, Reuniting ‘Is’ and ‘Ought’ in Empirical Legal Scholarship, 162 U. Penn. L. Rev. 117, 168 (2013).

49Deplano, supra note 16.

50Id. at 148–49.

51S.C. Res. 1998, supra note 29, ¶ 2; S.C. Res. 1882, supra note 29, ¶ 2; S.C. Res. 1612, para. 4, U.N. Doc. S/RES/1612 (July 26, 2005); S.C. Pres. Statement 2010/10, para. 16, U.N. Doc. S/PRST/2010/10 (June 16, 2010).

52Edward Newman, Secretary-General, in Weiss & Daws, supra note 1, at 177–78.

53U.N. Charter art. 99.

54Stephen M. Schwebel, The Origins and Development of Article 99 of the Charter, 28 Brit. Y.B. Int’l L. 371 (1951).

55Id. at 374.

56U.N. Charter arts. 10–11.

57Id. art. 12.

58In the Security Council resolutions and presidential statements on women, children and civilians there are countless references to the unlimited discretion of the Security Council in assessing matters brought to its attentions (“where necessary” and “on a case-by-case basis”). See, for instance, S.C. Pres. Statement 2002/6, U.N. Doc. S/PRST/2002/6 (Mar. 15, 2002).

59Conditions of Admission of a State to Membership in the United Nations, 1948 I.C.J. 57, 64 (May 28, 1948) (emphasis added).

60Javaid Rehman, International Human Rights Law 39 (2010).

61Sienho Yee, The Dynamic Interplay between the Interpreters of Security Council Resolutions, 11 Chinese J. Int’l L. 613 (2012).