Two Crises Of Confidence: Securing Non-proliferation And The Rule Of

Two Crises of Confidence: Securing Non-Proliferation and the Rule of Law Through Security Council Resolutions VIK KANWAR* I. INTRODUCTION International organizations are usually created by treaties or other ordinary means of international law-making, but at times they also gain autonomy in their ability to interpret, make, and over-rule existing international law. These organizations are regularly confronted by two contradictory challenges: objections to their imperializing overreach1 on the one hand and their impotence on the other. Both challenges are apparent in attempts by the United Nations Security Council to address the greatest concerns of the modern era: the grave threats to our collective security posed by nuclear, biological and chemical (“NBC”) weapons or weapons of mass destruction (“WMDs”).2 This paper investigates

* Visiting Assistant Professor (2006-2008), Loyola New Orleans College of Law. LL.M. New York University School of Law (2001); J.D., Northeastern University School of Law (2000). The first phase of research for this paper was completed in Spring 2006 while the author was Research Assistant at the Center on International Cooperation at NYU (CIC) and a Graduate Fellow at the Institute for International Law and Justice (IILJ) at NYU School of Law. At the CIC, Dr. Christine Wing provided the initial impetus for this project under the umbrella of the program “Strengthening Multilateral Approaches to Nuclear and Biological Weapons.” Dr. Cesare P.R. Romano and Dr. Rajiv Nayan provided early feedback and valuable advice on issues of international law and non-proliferation policy. At the IILJ, Professor Simon Chesterman provided useful insights, and with Professor Thomas Franck and Ambassador David Malone kindly allowed the author to attend a seminar discussing background legal issues. An earlier version of this paper (“Enforcer or Legislator of Last Resort: Two Competing Conceptions of the Security Council’s Role in Non-Proliferation”) was presented at “The Opinio Juris Inaugural On-line Symposium: Challenges to Public International Law” in April 2007. The author extends his sincere thanks to Professor Sean D. Murphy for his careful and critical comments on that draft, to the organizers of the Symposium—Professors Peggy McGuiness and Chris Borgen—for the opportunity to receive these comments in that energetic and increasingly influential forum, and to the many helpful correspondents who have responded to the pre-publication drafts since that time. Some of the recent ideas on confidencebuilding have been sparked by parallel projects in collaboration with Naz Modirzadeh and the Humanitarian Law Research Project at Harvard. Finally, this paper would not have seen publication without a generous research stipend from Dean Brian Bromberger and the Westerfield Program at Loyola University New Orleans College of Law, research assistance of Samuel Steinmetz and Steve Corbally, or the patient support of Lacey Torge, Joy Kanwar, Sateesh Nori, and Katie Young. This paper is dedicated to Zazie Diya Kanwar-Torge, age 2, who wields a gentle but unquestionable mandate over the author’s peace and security. The analyses offered here, as well as mistakes and omissions, are those of the author alone. 1. See, e.g., Roger P. Alford, “Outsourcing Authority?” Citation to Foreign Court Precedent in Domestic Jurisprudence: Four Mistakes in the Debate on “Outsourcing Authority”, 69 ALB. L. REV. 653, 653-54 (2006) (“ The criticism reflects a quite respectable and strong impression that international law is arrogantly overreaching, transgressing its proper role as a bracketed discipline.”). 2. It is conventional in the literature to refer to NBC (Nuclear, Biological or Bacteriological, and Chemical) weapons and WMDs (Weapons of Mass Destruction) interchangeably or without distinction.

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the Security Council’s proper role in regulating the proliferation of these weapons. Here, a genuine challenge for international law—developing means to regulate dangerous weapons—remains complicated by the various challenges toward international institutions and to the Security Council’s rapidly evolving role. At present, confidence in the collective ability to regulate dangerous weapons is linked to confidence in the Security Council as an effective and legitimate forum to address these threats. Though in terms of capacity and involvement the Security Council is a waking giant in the field of non-proliferation, the promises and perils of this involvement have yet to be explored.3 Two recent developments suggest the urgency of this inquiry. The first development is the Security Council’s wellknown involvement in recent proliferation crises4 concerning North Korea, Iran, and counter-proliferation resolutions directed at non-state proliferation networks.5 The second development, known primarily to academics, is the visible increase in formal options available to the Council, including the exercise of “legislative” powers purporting to have direct legal effect on all states, as well as on named individuals.6 Recently, the legal literature has begun to recognize the “quasi-legislative” character of certain Council decisions under Chapter VII, in particular measures aimed at terrorism and

The former appears more in the technical literature, and the latter in political statements. This paper will adopt the former because it is more precise, and the latter only when referring to a particular resolution or argument that uses this term. See, e.g., Colonel Guy B. Roberts, The Counterproliferation Self-Help Paradigm: A Legal Regime for Enforcing the Norm Prohibiting the Proliferation of Weapons of Mass Destruction, 27 DENV. J. INT’L L. & POL’Y 483 (1999). 3. Vik Kanwar, The Legislator of Last Resort: Security Council’s Emerging Role in WMD Proliferation Crises, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=977114. 4. By “crisis” here, I do not conclude the danger posed by the states, nor do I adopt any particular definition of dyadic crises (e.g., databases), but episodic events or “international incidents.” See INTERNATIONAL INCIDENTS: THE LAW THAT COUNTS IN WORLD POLITICS (W. Michael Reisman & Andrew R. Willard eds., Princeton Univ. Press 1988); But see Hilary Charlesworth, International Law: A Discipline of Crisis, 65 MOD. L. REV. 377-392 (2002) (examining the way that international lawyers tend to focus on crises for the development of international law). The article uses the reactions of international lawyers to NATO’s intervention in Kosovo in 1999 as a case study of this tendency and argues that the crisis focus impoverishes the discipline of international law, and proposes the idea of an international law of everyday life as an alternative. See Charlesworth, supra. An episodic focus is peculiarly well-suited to the practice of the Security Council, but there are two qualifications in this paper. As a shorthand, “crisis of confidence” denotes the need for confidence-building on both sides. The present paper takes the position that “formal”, “contingent”, “ordinary”, “extraordinary”, “crisis”, and “everyday” are concomitant aspects of Security Council practice. For an analogical argument cf., Sonja B. Starr, Extraordinary Crimes at Ordinary Times: International Justice Beyond Crisis Situations, 101 NW. U. L. REV. 1257 (2007). 5. See, e.g., Roberts, supra note 2, at 494. 6. See generally Alexander C. Linn, International Security and the War Powers Resolution, 8 WM. & MARY BILL OF RTS. J. 725 (2000); see also Roberto Lavalle, A Novel, If Awkward, Exercise in International Law-Making: Security Council Resolution 1540, 3 NETHERLANDS INT’L L REV. 411-38 (2004).

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proliferation.7 If support for such legislation can be found in the U.N. Charter, it has been argued, the Council would remain true to its legal pedigree and would remain a “creature of law.”8 It has even been suggested that compared to the painfully slow and hard-won achievements of multilateral nonproliferation regimes, the expediency of Security Council Resolutions would provide “a tantalizing short-cut to law.”9 Others conclude that an increased

7. Cf., the debate on “legislative role” of the Security Council under the Charter. Lavalle, supra note 6 at, 411-38.; Bardo Fassbender, Quis judicabit? The Security Council, Its Powers and Its Legal Control, 11 EUR. J. INT’L L. 219 (2000); Stefan Talmon, The Security Council As World Legislature, 99 AM. J. INT’L L. 175,176 (2005); Simon Chesterman, The Security Council as World Legislator?, http://www.iilj.org/newsandevents/documents/2005/2004_11_04_council_001.pdf (May 26, 2006 notes in response to a November 4, 2004 International Institute for Law and Justice panel discussion at New York University); Inger Österdahl, The Exception as the Rule: Lawmaking on Force and Human Rights, 10 CONFLICT SEC. L. 1-20 (2005); Mirko Sossai, UN SC Res.1373 (2001) International Law-making; A Transformation in the Nature of the Legal Obligations for the Fight against Terrorism?, http://www.esilsedi.eu/english/pdf/Sossai.PDF; EDWARD MCWHINNEY UNITED NATIONS LAWMAKING, CULTURAL AND IDEOLOGICAL RELATIVISM AND INTERNATIONAL LAW MAKING FOR AN ERA OF TRANSITION, 80 (Holmes & Meier Publishers, 1984); Jose E. Alvarez, Hegemonic International Law Revisited, 97 AM. J. INT’L L. 873 (2003); Paul C. Szasz, The Security Council Starts Legislating, 96 AM. J. INT’L L. 901 (2002); Eric Rosand, The Security Council As “Global Legislator”: Ultra Vires or Ultra Innovative?, 28 FORDHAM INT’L L.J. 542 (2005); THE CHARTER OF THE UNITED NATIONS, A COMMENTARY 702, 708-08. (Bruno Simma, ed., 2d ed. 2002). After the nineties, the “post-mortem” genre continued, while others viewed the Security Council as a useful tool for shaping policy, which could reconcile multilateralism with the rule of law. See, e.g., Michael J. Glennon, Why the Security Council Failed, 82 FOREIGN AFF. 16-17 (May/June 2003). 8. Simon Chesterman, The UN Security Council and the Rule of Law: The Role of the Security Council in Strengthening a Rules-based International System. Final Report and Recommendations from the Austrian Initiative, 2004-2008, http://www.bmeia.gv.at/fileadmin/user_upload/bmeia/media/Vertretung sbehoerden/New_York/Kandidatur_SR/FINAL_Report_-_The_UN_Security_Council_and_the_ Rule_of_Law.pdf (Hereinafter “Austrian Initiative”). See particularly Sections III (“The Security Council as a Creature of Law”) and IV (“The Security Council as Legislator”). Recommendation 33 proposes that: Legislation by Council decisions under Chapter VII of the UN Charter is a tantalizing shortcut to law. Years of negotiations over international instruments related to the prevention and suppression of international terrorism and the proliferation of weapons of mass destruction may be contrasted with the swift adoption of resolutions 1373 (2001), 1540 (2004) and 1566 (2004). Id. 9. Id. The Council is a creature of law but there is no formal process for reviewing its decisions; the ultimate sanctions on its authority are political. These include challenges to the Council’s authority through the General Assembly, or individual or collective refusal to comply with its decisions. It is in no one’s interest to push these political limits. For its part, the Council should limit itself to using its extraordinary powers for extraordinary purposes. When it is necessary to pass resolutions of a legislative character, respect for them will be enhanced by a process that ensures transparency, participation, and accountability. When the Council contemplates judicial functions, it should draw on existing institutions of international law. Id.

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role for the Security Council in this area is a cure worse than the illness.10 Even if there is plenty of room for disagreement on policy perspectives —whether to strengthen or delimit the Security Council’s capabilities in the area of non-proliferation or simply to increase its legitimacy—we must understand the Security Council’s existing capabilities to imagine what that future role might be. This paper suggests that the legal architecture of the United Nations Security Council to generate formal, binding obligations on would-be proliferators is more secure than one might expect. This is true both of the Security Council’s formal UN Charter powers and its operational relationship with existing multilateral mechanisms, which come to rely on its authority. In order for the Security Council to build confidence in the legality and legitimacy of its actions, it is necessary not only that it acts within the boundaries set by the UN Charter, but also that these boundaries are clearly defined. The powers are not per se legal or extra-legal (either in the sense “legal vs. political” or “legal vs. illegal”) but they become so only if they are exercised outside the limits of the UN Charter.11 While we are used to thinking of the Security Council, its powers and failings in political terms (the power of the permanent five members, the veto power, and the role of political will in advancing or defeating action)12, political considerations do not end the inquiry. All the Security Council’s power is still bound by law and its competencies are framed in terms of international law, not pure political considerations (expediency or compromise).13 Ultimately, it seems necessary to come to the recognition that a robust regime or set of mechanisms for handling WMD threats will have to rely on an institution empowered to act on contingent as well as formal bases, as well as among international organizations.14 The Security Council is uniquely constituted with both kinds of powers.15 Beyond its express and implied powers under the UN Charter, as well as powers granted by specific treaties,

10. Österdahl, supra note 7, at 19. 11. While this paper pursues questions about legal authority, it is also true that critiques of the Security Council’s legitimacy do not begin and end with analyses of its legal powers. Some persistent legitimacy concerns—arguments for greater participation and democratization in the Security Council — are neither settled in fact nor are they really analytically severable from the core questions of this paper. Brian J. Foley, Reforming the Security Council to Achieve Collective Security in PROGRESS IN INT’L ORG. (Russell Miller & Rebecca Bratspies eds., Martinus Nijhoff, publisher, forthcoming in 2008) (Draft on file with author). 12. Fernando R. Teson, The Vexing Problem of Authority in Humanitarian Intervention: A Proposal, 24 WIS. INT’L L.J. 761 (2006). 13. See, e.g., Judith G. Gardam, Legal Restraints on Security Military Enforcement Action, 17 MICH. J. INT’L L. 285 (1996). 14. Id. 15. Id.

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I argue in this paper that Security Council resolutions need not simply address contingent crises, but should also help develop the Council’s own legal capacity to deal with larger systemic crises, such as the possibility of noncompliance in the future and withdrawal from non-proliferation regimes.16 This involves side-stepping the default responses of dealing with potential proliferation threats—deferral or escalation—and actively pursuing “lateral” strategies, such as creative and quasi-legislative resolutions aimed at developing this capacity.17 Moreover, even as increasing attention has been given to questions about the Security Council’s lawmaking capacity,18 critical attention has drifted away from its use of contingent measures under the heading of “confidencebuilding.”19 The language of confidence-building is borrowed from the contiguous field of bilateral negotiation.20 Confidence-building measures include a broad range of activities and are aimed at reducing military tensions, developing trust and communication, and demonstrating good faith between parties to a conflict.21 Such measures are commonly used during the negotiation of peace agreements or to govern complex humanitarian operations, in situations where the parties rely upon different sources of legality and legitimacy or where there is a deep asymmetry between the parties.22 In

16. Id. 17. Id. 18. They are not necessarily reactions to breaches of the Charter, especially in the case of “threats to the peace” which do not fall within the prohibitions laid out in Article 2 paragraph 4 of the UN Charter. The circumstances and modalities of their imposition thus fall entirely under the discretion of the Security Council, unfettered by considerations of law. The Council does not have to act within the legal parameters of a given situation; it can ignore, affect and even negate the rights of the parties concerned and can create new law in specific cases through its decisions. At the other end of the spectrum are lawyers such as Jean Combacau, who espouse a “legal” vision of sanctions and their functions. See William C. Bradford, The Changing Laws of War: Do We Need a New Legal Regime After September 11? “The Duty to Defend Them”: A Natural Law Justification for the Bush Doctrine of Preventive War, 79 NOTRE DAME L. REV. 1365, 1471 n.427. Sanctions would thus always represent reactions against violations of Charter-based obligations, to the point of constructing an implicit prohibition for UN member states to produce the situations proscribed in a general way by Article 39. The Security Council, even when acting as a policeman, could only intervene to protect international public order as defined under international law. The Council, as the organ of a subject of international law, would obviously be subject to the applicable rules of that legal system and could not conclusively affect or modify the rights of the parties concerned. 19. See Public International Law & Policy Group, Paper: Confidence-Building Measures: A Quick Guide: The Role of Political Accountability and Transparency in Confidence-Building Measures, PUB. INT’L L. & POL’Y GROUP (2007), http://www.publicinternationallaw.org/areas/peacebuilding/PILPG_ Confidence-Building-Measures_Sept-07.doc [hereinafter, PILPG] (defining and reviewing common confidence-building measures used during the negotiation and implementation of peace agreements). 20. Id. 21. Id. 22. Id. According to this report: “Confidence-building measures include a broad range of activities aimed at reducing military tensions, developing trust and communication, and demonstrating good faith

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standoffs between the Security Council and states suspected of proliferation, as with these other examples, a fuller appreciation of confidence-building measures would introduce elements of reciprocity and good faith that would not otherwise be present.23 There are two purposes of confidence-building measures: (1) so that the Security Council will be better positioned to anticipate and respond to emerging challenges to peace and security, and (2) so states can better predict and rely upon norms guiding Security Council action.24 The two, if used properly, may complement each other and build confidence in the lawgoverned practice of the Council.25 It is hoped that these measures will better help all parties navigate or avoid complex proliferation crises. In the sense promoted by the Council itself, confidence-building involves transformation of voluntary undertakings into enforceable agreements and legal support for action. If we take, for example, the most recent resolution, S.C. Res. 1803 (March 3, 2008),26 against Iran for suspected development of a nuclear fuel between parties to a conflict. Parties to a conflict commonly use confidence-building measures to facilitate the resolution of the conflict.” Id. at 2. “To ensure compliance with agreed-upon measures and resolve potential disputes over implementation, parties to peace negotiations often establish a mechanism or designate a neutral third party to monitor implementation. Many peace agreements and ceasefires designate an international organization to oversee implementation of confidence-building measures.” PILPG, supra note 19. Peace treaties and ceasefires also establish special commissions to oversee implementation of a treaty’s terms, reviews common confidence-building measures used during the negotiation and implementation of peace agreements. Id. We can compare challenges to implementation in the contexts of non-proliferation and humanitarian law and the similar options for using confidence-building measures to support the rule of law. In both cases, the challenge is to inject reciprocity into a process that is otherwise asymmetrical in every material sense. This involves the introduction of “general and abstract norms” through incremental steps that are voluntary before they take legislative effect. 23. Id. 24. Id. 25. Id. 26. See S.C. Res. 1803, U.N. Doc. S/RES/1803 (Mar. 3, 2008); see also S.C. Res. 1696, U.N. Doc. S/RES/1696 (July 31, 2006); S.C. Res. 1737, U.N. Doc. S/RES/1737 (Dec. 23, 2006); S.C. Res. 1747, U.N. Doc. S/RES/1747 (Mar. 24, 2007). In S.C. Resolution 1803, the Security Council reaffirms its commitment to the Nuclear Non-Proliferation Treaty (“NPT”) and the need for all states parties to the NPT to comply with their treaty obligations pursuant to Articles 1 and II to perform research and use of nuclear energy for peaceful purposes. S.C. Res. 1803, supra. It notes with concern the reports of the International Atomic Energy Agency (“IAEA”) that Iran has not suspended its uranium enrichment and heavy water processing activities as previous Security Council Resolutions required it to do. Id. Iran has further not resumed cooperation with the IAEA under the Additional Protocol. Id. It emphasizes that China, France, Germany, the Russian Federation, and the United States are willing to explore an overarching strategy with Iran to address its nuclear issues based upon their June 2006 proposals. Id. Acting pursuant to Article 41 of Chapter VII of the U.N. Charter, it requires Iran to take steps to ensure confidence in the peaceful nature of its nuclear program and comply with S.C. Resolution 1737. Id. It imposes a travel ban on specific individuals whom the Security Council has identified as being associated or supporting Iran’s proliferation sensitive activities, and authorizes states to perform inspections of Iran Air Cargo and Iran Shipping Line if there are reasonable grounds to believe that they are carrying prohibited goods. S.C. Res. 1803, supra.

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cycle and possibly nuclear weapons, we will notice that the specific act being required of Iran is to restore confidence in its intentions.27 This has been a continuing theme in the various resolutions seeking to prevent North Korea from leaving the Nuclear Non-Proliferation Treaty (“NPT”) and Iran from developing its own nuclear technology.28 For the Security Council, then, continuing controversies concerning Iran and North Korea are viewed as crises of confidence or warning signals rather than breaches of law.29 The inquiry, then, is whether particular warning signals (including non-compliance or withdrawal from particular treaties) taken as factual and not as legal matters contribute to a threat to international peace and security. By the terms of the Charter, the Security Council is legally empowered to make factual determinations which depart from the finding of unlawful acts.30 Among the characterizations it might use in finding a threat to peace and security are the non-legal thresholds of warning signals or lack of confidence. In this paper, I expand the notion of “confidence-building” to apply not only to the requirements imposed upon states, but also upon the demonstration of good faith and fidelity to the rule of law on the part of the Security Council in accordance with the U.N. Charter. Otherwise, a different kind of collective insecurity would pervade the international community—one that each and every member is vulnerable to arbitrary attack by some or all the others. In

It calls upon states to prevent Iran from obtaining goods used for prohibited activities, and for them to avoid financial transactions with Bank Melli and Bank Saderat that might help to promote proliferation sensitive nuclear activities. Id. 27. Id. 28. In September 2005, the IAEA Board of Governors adopted a resolution declaring that Iran’s many failures and breaches “constitute noncompliance.” See Int’l Atomic Energy Agency, Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran, IAEA Doc, GOV/2005/77 (Sept. 24, 2005), available at http://www.iaea.org/Publications/Documents/Board/2005/gov2005-77.pdf. Arguments centered on Article III of the IAEA’s statute, which requires that “[i]f, in connection with the activities of the agency, there should arise questions that are within the competence of the Security Council, the agency shall notify the Security Council, as the organ bearing the main responsibility for the maintenance of international peace and security[.]” Statute of the IAEA, art. III(B)(4), available at http://www.iaea.org/ About/statute_text.html#A1.3. In September 2004, John Bolton, the U.S. Undersecretary of State, interpreted Article III to say, in his words, “should there arise questions that are within the competence of the Security Council, whose area of responsibility is the maintenance of international peace and security, the Board shall notify the Security Council,” Panel Discussion, The International Atomic Energy Agency: The World’s Enforcer or Paper Tiger?, Sept. 28, 2004, http://www.aei.org/events/ filter.all,eventID.911/ transcript.asp (last visited Oct. 27, 2008). His argument turns on whether, as a legal matter, a safeguards violation necessarily implicates international peace and security. Id. If not, there would be some discretion left to the Board of Governors. Id. 29. See, e.g., Larry D. Johnson, Protecting the World From Weapons of Mass Destruction: Reflections on the High-level Panel Report on Threats, Challenges and Change, 28 CAL. W. INT’L L.J. 63, 71 (2007). 30. U.N. Charter art. 34, para. 1.

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this sense the project of “confidence-building” must extend to the rule of law and to principles of reciprocity. If we expect countries posing proliferation concerns (such as Iran and North Korea) to act within the law—and as Members of the United Nations they are legally bound to “accept and carry out the decisions of the Security Council in accordance with the [U.N.] Charter”31—we should also be clear on the standards for referral and the various kinds of resolutions under the law. If all states uphold—beyond raw sovereignty—even the most general commitment to law-governed behavior, then at least the parties are willing to meet on a common plane of principle. If the Security Council adopts legislative policies, or if it acts as a wellordered security agency, its methods will receive little scrutiny. If it acts as a legislator that cannot be bound by any higher law, skepticism by states will be warranted. More particularly, anxiety will arise if states believe that the Security Council’s actions will be politically motivated, extra-legal, and subject to abuse; even worse, states may suspect that acting in accordance with the law can nevertheless make them vulnerable to punitive or discriminatory measures through the Security Council’s power prerogatives. There are normative implications to any descriptive account. In describing the legal status of the Security Council’s various powers, we should also seek to secure its place in the broader rule of law. The question that must ultimately be answered is not whether the Security Council may legally exercise a legislative power, but whether it can do so in a principled way. Though the manner in which the rule of law may constrain the Security Council is different from the way it constrains States or even individuals the common ground that all international actors must have confidence in is that their obligations will be treated in a predictable, consistent and law-governed manner, not according to the whims of powerful States and institutions. If this common ground cannot be acquired, the imposition of obligations through legislation should cover every member of a legal community. Once distinctions are made, scrutiny should be applied to the logic of those distinctions. In this case the Security Council is itself eroding confidence in the rule of law when it mixes a call for voluntary confidence-building with punitive enforcement measures or refers to them as binding obligations. These are the critiques that reflect anxieties about an expanded non-proliferation agenda of the Security Council that I will take up in the concluding section of this paper. The Security Council has already begun to evolve in response to emerging challenges to peace and security and the trend is that it will continue to do so. The evolution of cooperation between members also offers an opportunity to secure confidence in the Security Council’s own constitution and operation. Based on the international consensus that has gathered around 31. U.N. Charter art. 25.

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the development of a cooperative “web of prevention” around the proliferation of NBC materials,32 the Security Council may legitimately claim to be expanding its powers while seeking to secure confidence in the rule of law. There are three examples of lateral, but law-governed strategies that the Security Council may pursue. The first is the generally applicable legislative measures aimed at developing the capacities of states in activities such as interdiction.33 The second is the generally applicable resolutions aimed at developing the Council’s own capacities to support and enforce multilateral commitments.34 Finally, there are the strategies to build confidence that are appropriate to pursue, through Article VI voluntary agreements. These strategies include clarification of factual triggers (crises of confidence) that may initiate “peace and security.” We will turn now to the fuller Charter framework that grounds all of the Council’s powers. II. THE SECURITY COUNCIL’S COMPETENCE IN NON-PROLIFERATION Much of modern international law, including the treaty-based nonproliferation system has developed against the background of the general framework for international peace and security embodied in the U.N. Charter. The Charter is a treaty and, as such, all parties are bound by it.35 Additionally, because of its nature, and universal membership, it also has two other characteristics that distinguish it from all other treaties, and make it a kind of super-treaty. First, it can claim to represent customary international law, which would extend its legal obligations for States that are not, (not yet, or even no longer) members of the UN.36 Second, it is claimed that the UN Charter trumps any other treaty that is in conflict with it.37 Thus, the Charter is uniquely positioned to represent the interests of the international community and exercises unparalleled influence on subsequent multilateral treaty regimes.

32. See generally Roberts, supra note 2. 33. See Linn, supra note 6. 34. See, e.g., S.C. Res. 1540, U.N. Doc. S/RES/1540 (Apr. 28, 2004), available at http://daccessdds.un.org/doc/UNDOC/GEN/N04/328/43/PDF/N0432843.pdf?OpenElement. 35. See Major Joseph P. “Dutch” Bialke, United Nations Peace Operations: Applicable Norms and the Application of the Law of Armed Conflict, 50 A.F. L. REV. 1, 1-2 (2001) (discussing the obligations of member states under the Charter). 36. U.N. Charter art. 2, par. 6. 37. See John C. Yoo & Will Trachman, War, International Law, and Sovereignty: Reevaluating the Rules of the Game in a New Century: Less than Bargained for: The Use of Force and the Declining Relevance of the United Nations, 5 CHI. J. INT’L L. 379, 382 (2005) (“The Charter embraced an international system that mirrors the criminal law—a system in which there would be a supranational government that would attempt to hold a monopoly on the use of force.”).

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The UN’s principal mission is the maintenance of peace and security.38 The task of attaining this goal is shared by several UN organs, of which the Security Council is entrusted with the primary responsibility.39 The Security Council also improvises within this constituent structure, not only to interpret its explicit responsibilities, but also implied powers as well as those granted by specific treaties.40 It is thus with the Charter that any discussion of the Security Council’s proper role must begin. A. Charter Powers The United Nations Charter provides the framework for the Security Council’s legal powers on NBC weapons proliferation.41 Under the Charter, the Security Council possesses certain powers and duties which are wholly independent of any particular non-proliferation regime.42 In particular, the Charter vests the Security Council with “primary responsibility for the maintenance of international peace and security[.]”43 This mandate is binding on states and this effect is reinforced by Article 25, which provides: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”44 Much of this paper will interpret the issue of what is actually in accordance with” the Charter and what kinds of decisions the Council is empowered to make in regulating proliferation. More broadly, the most important obligations in the Charter set out the Security Council’s role in governing collective security and self-defense.45 The provisions on the settlement of disputes can be found in Chapter VI and the provisions on collective security can be found in Chapter VII in addition to the provisions

38. U.N. Charter art. 1, para. 1. 39. U.N. Charter art. 7, para. 1. 40. See Lucien J. Dhooge, Condemning Khartoum: The Illinois Divestment Act and Foreign Relations, 43 AM. BUS. L.J. 245, 281 n.211. 41. See U.N. Charter art. 24. 42. Id. 43. Id. (providing that the specific powers given to the Security Council, inter alia, in Chapter VII are granted for the discharge of its duties under the responsibility for the maintenance of international peace and security). 44. U.N. Charter art. 25. The issue has been debated what kind of Security Council resolutions are covered by this provision, in particular whether it only covered Security Council resolutions adopted under Chapter VII of the U.N. Charter. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J.e Rep. 1971 (June 21), The International Court of Justice determined in its 1971 ‘Namibia’ advisory opinion that the binding effect of Security Council decisions is not limited to resolutions adopted under this provision. Id. 45. U.N. Charter arts. 24-26.

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on self-defense shared between Articles 2(4) and 51.46 In matters of collective security and lawful self-defense, the Security Council is the authorized referee that decides on the line between Articles 2(4) and 51.47 Therefore, in the UN collective security system, the Security Council has a primary role in managing definitions that are central to matters that would have traditionally been considered the protected prerogatives of state sovereignty and internal security. It is also the UN body with the most options in defining and acting on the threats to peace and security.48 B. The Council’s Peace and Security Mandate The Council’s primary responsibility is to identify and respond to threats to international “peace and security.”49 This intentionally general phrase lends itself to being read as a unilateral prerogative power, not unlike various “police power” or “salus populi” provisions in national law.50 However, some qualifications must be made about this mandate. First, its “primary

46. See generally U.N. Charter. Article 51, states that “[n]othing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” U.N. Charter art. 51. The accepted meanings of the Charter’s principles on the recourse to force are shifting. Within the Charter the fundamental interpretive machinery consists in the tension between the Article 2(4) prohibition of the use of force (which is typically explained with reference to sovereignty, non-intervention, and preservation of a state’s “territorial integrity”) and the Article 51 exception for individual or collective self-defense (which is also typically explained with reference to sovereignty and preservation of a state’s “territorial integrity”), which is allowed until the Security Council authorizes measures to restore peace and security. See generally Mikael Nabati, Self-Defense,Global Terrorism, and Preemption (A Call to Rethink the Self-Defense Normative Framework), 13 TRANSNAT’L L. & CONTEMP. PROBS. 771 (2003). 47. See U.N. Charter arts. 24-26. 48. Id. 49. U.N. Charter art. 24. 50. Id. As a “salus populi” provision, “peace and security” would be viewed as a global prerogative. Though traditionally the province of state and municipal government, several scholars have identified or promoted notions of “salus populi (a broad “police power” protecting public safety, health, and morals, as well as collective security or self-preservation) at the global level.” See Patrik S. Florencio & Erik D. Ramanathan, Are Xenotransplantation Safeguards Legally Viable?, 16 BERKELEY TECH. L.J. 937, 970 n.134. In the minimal sense, “peace and security” can be interpreted as a public order or necessity-based exception. There are resonances of this concept in policy proposals such as “human security” or “Responsibility to Protect.” Also, though few commentators would accuse the Security Council of engaging in overbroad “humanitarian” elaborations of peace and security (public health public security, and wellbeing), it could be a global “police power” in this different sense. This observation relies upon unpublished research by the author, (on file with author), as well as, e.g., HEXAGON SERIES ON HUMAN AND ENVIRONMENTAL SECURITY AND PEACE: GLOBALIZATION AND ENVIRONMENTAL CHALLENGES RECONCEPTUALIZING SECURITY IN THE 21ST CENTURY, 99-112 (Hans Günter Brauch ed., Springer, 2008); see also DAVID P. FIDLER, INTERNATIONAL LAW AND PUBLIC HEALTH: MATERIALS ON AND ANALYSIS OF GLOBAL HEALTH JURISPRUDENCE (Transnational Publishers, Inc., 2000).

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responsibility” is a “core competence” though not an institutional monopoly. The phrase “peace and security” is not located a single provision of the Charter, but is disaggregated between Chapters VI and VII in four key provisions: (1) the institutional mandate in Article 24 vesting responsibility in the Security Council for the subject matter of peace and security,51 (2) “Chapter VI powers” specified in Article 34 governing the pacific settlement of disputes, allowing the Council to investigate and determine situations “likely to endanger the maintenance of international peace and security[,]”52 and (3) Article 39, which contains the language “determine the existence of any threat to the peace, breach of the peace, or act of aggression[,]”53 and finally (4) the language allowing self-defense “until the Security Council has taken measures necessary to maintain international peace and Security.”54 In terms of the line between political influence and creating legal obligation, the second and third of these are given some importance in acting under Chapter VI or VII powers. It does not create legal obligations but instead allows the Council to exercise its political influence to “investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.”55 In contrast, Chapter VII, Article 39 empowers the Security Council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression” to “make recommendations, or decide what measures shall be taken . . . to maintain or restore international peace and security.”56 These measures may include a mandatory embargo or authorizing the use of force to enforce a decision.57 The formal distinctions between the Article 34 and 39 mandates on peace and security lie in the level of anticipation of danger required (“might lead” and “likely to endanger” on one hand, versus “threat to peace” on the other), as well as what each Chapter authorizes the Council to do.58 Even if in practice the line between the two Chapters is sometimes

51. U.N. Charter art. 24, para. 1. 52. U.N. Charter art. 34, para. 1. 53. U.N. Charter art. 39, para. 1. 54. U.N. Charter art. 51, para. 1. 55. U.N. Charter art. 24, para. 1. Article 24 vests the Security Council with “primary responsibility for the maintenance of international peace and security.” Id. 56. U.N. Charter art. 39 (“The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”). 57. See id. 58. See U.N. Charter arts. 34 & 39.

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blurry, the invocation of one or the other can be crucial for perceptions of the mandatory character of a resolution. Under both provisions of the Charter the Security Council has exclusive powers to make factual determinations which include deciding whether international peace and security has been violated.59 The Security Council also has the power to decide a course of action.60 It does share with the International Court of Justice the power to make legal determinations.61 Thus, the characterization of proliferation activity as “illegal” rather than a “threat to peace and security” would be significant. The text of the Charter gives the Security Council the power to police non-proliferation insofar as the Council’s Charter role is not solely to determine the legality of states actions, but more centrally to anticipate and address their security implications.62 The Charter itself limits the Chapter VII powers of the Council. Article 2(7) crucially says “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.”63 Thus, an expanded non-proliferation agenda of the Security Council must be grounded in the Charter and guided by sensitivity to other multilateral commitments. More careful reference to the totality of the Charter may also help cure some of the perceived defects in its legitimacy. Threats to collective security are not enumerated in the Charter, however, and can only be discovered in practice through the consideration of facts. At certain times even the exercise of legal rights by states—withdrawal from a treaty, cutting off negotiations, denying inspection and withholding cooperation, issuing threatening statements, or giving rise to evidence of nuclear testing—can be considered factual matters that signal a threat to peace and security and the Security Council can properly consider the matter.64

59. Id. 60. Id. 61. See U.N. Charter arts. 92-96. 62. U.N. Charter art. 39, para. 1. 63. U.N. Charter art. 2, para. 7. 64. Hans Blix, The Role of Inspection as a Part of the Effort to Prevent the Possession of Weapons of Mass Destruction, Lecture at the fourth training course for future staff of United Nations Monitoring Verification and Inspection Commission (UNMOVIC), Ottawa, Canada (May 28, 2001), http://www.un. org/Depts/unmovic/new/pages/exec_chairman/blix_ottawa.asp. In the context of weapons inspections, for example, according to Chairman Hans Blix of UNMOVIC: “[i]t must be remembered that the government of the inspected state retains territorial control and can at any time deny inspectors access and withhold cooperation–but it can do so only at the price of sending warning signals to the world.” Id.

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For the Security Council, then, continuing controversies concerning Iran65 and North Korea66—viewed through the lens of the Article 24 mandate —are viewed as “crises of confidence” or “warning signals” rather than breaches of law. The inquiry, then, is whether particular “warning signals” including non-compliance or withdrawal from particular treaties, taken as

65. Here is an example of the factual as opposed to legal determinations the Security Council would consider in the dispute over Iran’s nuclear activities. Concerns first emerged in September 2002, when an Iranian dissident group revealed the existence of two previously undisclosed nuclear facilities under construction, one at Natanz and the other at Arak. Ari Fleischer White House Press Briefing, (Dec. 13, 2002), http://www.whitehouse.gov/news/releases/2002/12/20021213-6.html. The United States subsequently published satellite pictures of the two facilities, in December 2002, and said the pictures supported its judgment that Iran was involved in an “across-the-board pursuit of weapons of mass destruction and missile capabilities.” Id.; Andrew J. Grotto, Iran, the IAEA and the UN, ASIL INSIGHT, Nov. 2004, http://www.asil.org/insight041105.cfm. The US and EU have since pressed Iran to suspend all its work on uranium enrichment as a confidence-building measure and ratify an Additional Protocol, which would grant the IAEA considerably greater access to declared and suspected nuclear activities. In October 2003, Iran agreed to meet each of these demands. Grotto, supra. These disputes continue at the time of this writing. BBC News, Iran-UN Nuclear Talks Postponed, Apr. 13, 2008, http://news.bbc.co/uk/go/pr/fr/-/1/hi/ world/middle_east/7345663.stm. 66. Here is an example of the factual arguments as opposed to legal determinations the Security Council would consider in the case of North Korea, and the factual determinations it would have to make, including assessing future risks: (1) whether a nuclear-armed North Korea could trigger a regional arms race in Asia, where Japan, Taiwan, or South Korea might join China, India and Pakistan to decide their own nuclear weapons program or to leave the NPT; (2) whether U.S. or other superpower posture would harden in nuclear deterrence strategies in the region; (3) the danger of North Korea selling its plutonium, highly enriched uranium, or finished weapons to other countries (already ballistic missiles sold missiles to Iran, Yemen, Syria, and Pakistan), or terrorists (already prohibited by Resolution 1540, supra note 34); (4) when viewed as a precedent, any number of countries could imitate North Korea’s moves and acquire the capacity to produce fissile materials and manufacture nuclear weapons under the guise of “peaceful” nuclear endeavors allowed by the NPT. The status of negotiations regarding North Korea’s nuclear endeavors were described as follows: North Korea[] refus[ed] to acknowledge a secret uranium-enrichment program and then more recently, its nuclear assistance to Syria. So the [Bush] administration has made a compromise with North Korea. In the compromise, the North Koreans will declare how much plutonium they’ve produced over the years and instead of North Korea having to directly acknowledge the uranium-enrichment program and their assistance to Syria, the United States will make a statement expressing its belief that these activities have taken place and the North Koreans will not refute or challenge that U.S. statement. In exchange for that, the United States will take North Korea off the list of state sponsors of terrorism and remove some of the Trading with the Enemy Act sanctions. Most importantly, once the declaration issue has been resolved, the two sides will begin the serious negotiations over the so-called third phase, which is the plan to dismantle North Korea’s nuclear facilities and eventually eliminate its nuclear weapons. Interview with Gary Samore, Council on Foreign Relations; Samore: More Fluid U.S. Stance on N. Korea Nuclear Weapons, (Apr. 23, 2008), http://www.cfr.org/publication/16075/samore.html.

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factual and not as legal matters contribute to a threat to international peace and security.67 C. Security Council: Structural Issues One can criticize the broad competence given to the Council by the Charter if it is viewed as the institutional equivalent the Council may reject any legal limits on its powers, placing itself above the law, but nonetheless translating its own resort to expediency into international legality. This is, of course, a dangerous self-image for any institution to hold and this view of the Security Council cannot be sustained. In his memoir, War or Peace (1950), U.S. Secretary of State John Foster Dulles wrote: “The Security Council is not a body that merely enforces agreed law. It is a law unto itself[.] No principles of law are laid down to guide it; it can decide in accordance with what it thinks is expedient.”68 Dulles’ alarming statement is simply a vulgarization of the legal principles that allow the Security Council, along with the other principle organs of the UN, to interpret its own mandate. Even today, when few would say the Council is a “law unto itself,” the legal norms that guide the Council’s action are rarely discussed, and the legal effect of its decisions is increasingly accepted. However broad its competence may be, the Security Council must always craft resolutions that are guided by the UN Charter.69 States did not bargain away aspects of their sovereignty to an unrestrained super-sovereign Council but instead traded older security arrangements for the law-governed framework provided by the Charter. Thus, it is understandable that states should seek assurance that the Security Council is properly enabled or constrained by the Charter, and that some of the perceived defects in the Council’s legitimacy might be cured by more rigorous and careful reference to the totality of the Charter. In particular, if the Security Council draws its broad mandate from the Charter, it should also take seriously the Charter’s institutional design and the division of powers among UN bodies, coordination and comity with other Charter organs, particularly the General Assembly and International Court of Justice (“ICJ”).70 It would be a mistake to equate the peremptory character of the Charter as a blank check for Security Council action. The division of powers among

67. U.N. Charter art. 24. 68. JOHN FOSTER DULLES, WAR OR PEACE, 194-95 (The Macmillan Co., 1950); see Stevan Djordjević, The Control of the Legality of the Acts of the United Nations Security Council, 1 FACTA UNIVERSITATIS: SERIES: LAW AND POLITICS 371–87 (2000); MOHAMMED BEDJAOUI, NEW WORLD ORDER AND THE SECURITY COUNCIL, 11 (Dordrecht, 1994). 69. See U.N. Charter ch. VI. 70. See U.N. Charter art. 36, para. 3.

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UN bodies is crucial to defining the extent of the Security Council’s powers in the area of non-proliferation. It is probably significant, for example, that the Charter’s only provision calling for the Security Council to be responsible “for formulating plans . . . for the regulation of armaments”71 is mirrored by a grant of competence to the General Assembly which “may consider the general principles of co-operation in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments[.]”72 This is an example of two Charter organs not only dealing with related questions, but also supplementing each other on core areas of competence. The “peace and security” mandate is shared by the General Assembly,73 and insofar as Article 26 is justified as working toward the “least diversion for armaments of the world’s human and economic resources,”74 the Security Council is addressing issues of general welfare. Nonetheless, this cooperation has the effect of disaggregating disarmament issues from the Security Council’s peace and security mandate. In one sense, the Charter’s provisions tend to marginalize these issues by disaggregating them from the core mandates of the General Assembly and the Council, but insofar as every degree of agonism aids the rule of law, it may be just as important that competence in these matters is not monopolized. Cooperation between the branches could help bolster the Council’s case that a broader consensus exists on a particular subject matter concerning “peace and security.” In non-proliferation also, the practice of the two Charter organs should reflect the cooperative model suggested in the Charter. As a historical matter, insofar as disarmament and non-proliferation were topics for the UN to address, from the very beginning, the UN worked on disarmament through the General Assembly, which adopted resolutions that established certain principles of disarmament.75 As early as 1961, the General Assembly called

71. U.N. Charter art. 26. This is a relatively unfulfilled and under-interpreted provision. The Military Staff Committee was never established and the Security Council has taken up part of this mandate only unevenly and reluctantly. See James W. Houck, The Command and Control of the United Nations Forces in the Era of “Peace Enforcement”, 4 DUKE J. COMP. & INT’L L. 1 (1993) (discussing the role of the Military Staff Committee). The United Nations Charter provides for far-reaching functions of the Security Council in the area of peace and security, but until recently these powers have not been fully tested in the area of NBC weapons. See id. 72. U.N. Charter art. 11, para 1. 73. U.N. Charter art. 11, para. 2. 74. U.N. Charter art. 26, para. 1. 75. “The very first resolution of the General Assembly addressed disarmament and expressed the need to bring [nuclear technology] under control.” Dr. Nabil Elaraby, Global Policy Forum, The Security Council and Nuclear Weapons, presented at a meeting of the NGO Working Group on the Security Council (May 28, 1996), http://globalpolicy.igc.org/security/docs/elaraby.htm. “The GA adopted several resolutions after that, including one which outlawed nuclear weapons.” Id. “The GA also initiated disarmament efforts

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for the negotiation of the treaty that became the NPT by 1968.76 The Security Council is a relatively new actor to defining NBC issues as a central concern, but it is not unwelcome. As a procedural matter, the Charter leaves some delimitation of competences to comity between the two bodies (for example, the Security Council is normally deemed competent to interpret the meaning of “dispute” under Chapter VI77) but is also sometimes explicit (as in Article 12(1) which explicitly directs the Assembly to refrain from making recommendations while the Council is considering a matter78). There are also arguments for the availability of a kind of judicial review of the Security Council’s acts by the International Court of Justice, which is defined by the U.N. Charter as the “principal judicial organ” of the system.79 International lawyers and most member-states are generally supportive of both the constitutional character of the U.N. Charter and the role of the ICJ as the ultimate umpire of its text, even if it cannot enforce its decisions without a high degree of state consent and cooperation. Just as the Security Council has some overlap in subject matter with the General Assembly in the resolution of disputes, instances of aggression tend to be automatically escalated to and adjudicated by the Security Council. The International Court does not enjoy a full separation of powers because permanent members of the Security Council are able to veto enforcement of cases, even those to which they consented in advance to be bound.80 In 1963, Professor Rosalyn Higgins—later appointed to the ICJ, and elected the Court’s President in 2006—reviewed the history of the U.N. Charter and offered a softer version of the Dulles thesis: “that at the San Francisco Conference the proposal to confer the point of preliminary determination [of each organ’s competence] upon the International Court [of Justice] was rejected. The view was preferred that each organ would interpret its own competence.”81 More recently, especially as the Security Council has emerged from the yoke of Cold War deadlock, and has taken on more responsibility, legal

—first through the 18-nation Disarmament Committee, then the CCD, and now the Committee on Disarmament in Geneva where negotiations continue on various disarmament conventions.” Id. 76. See Treaty on the Non-Proliferation of Nuclear Weapons (NPT), opened for signature July 1, 1968, 21 U.S.T. 483, 729 U.N.T.S. 161, available at http://www.un.org/events/npt2005/npttreaty.html (last visited Oct. 14, 2008). 77. U.N. Charter art. 34, para. 1. 78. U.N. Charter art. 12, para. 1. 79. U.N. Charter art. 92, para. 1. 80. U.N. Charter art. 27, para. 3. 81. ROSALYN HIGGINS, THE DEVELOPMENT OF INTERNATIONAL LAW THROUGH THE POLITICAL ORGANS OF THE UNITED NATIONS 66 (1963); but see Libya v. U.S. (Prov. Meas.), infra note 83, at 9-14 (Weeramantry, J. Dissenting). For a summary of the legislative history; see Franck, infra note 82.

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opinion has gone the other way. In the influential article, “The Powers of Appreciation: Who is the Ultimate Guardian of UN Legality?”82 Professor Thomas M. Franck tracks the ICJ’s evolving powers of judicial review by comparing Lockerbie83 to the origin of judicial review in the foundational U.S. Supreme Court case Marbury v. Madison.84 In Lockerbie, the applicant asked the ICJ to find that the Security Council’s imposition of sanctions exceeded its Charter-delegated powers.85 As with the court in Marbury, the ICJ ostensibly accepted the broad discretionary power of the system’s political branch86 but by addressing the question on its merits, the court arrogated to itself an implicit right of judicial review, implying that under a different set of facts the court could rule a Security Council action ultra vires.87 Whereas Higgins takes recourse to history (the Travaux Preparatoires) to interpret the Charter, Franck’s approach is both structural and evolutionary, which is probably more appropriate for a longstanding multilateral treaty whose membership has multiplied over the years.88 Even if the possibility of an ICJ decision is unlikely to influence the crisis oriented decision-making and internal bargaining of the Security Council members, for any rule-based system to survive, it requires a safety valve to specify when proper authority has been exceeded. Under this theory, the Charter defines transgressions against peace and security as primarily a matter for Security Council, but this power can be checked against the other organs.89 82. Thomas M. Franck, The Powers of Appreciation: Who is the Ultimate Guardian of UN Legality?, 86 AM. J. INT’L L. 519 (1992). 83. Questions of Interpretation and Application of 1971 Montreal Convention Arising from Aerial Incident at Lockerbie (Libya v. U.K.; Libya v. U.S.), 1992 I.C.J. 114 (Apr. 1992). 84. 5 U.S. 137 (1803). 85. Questions of Interpretation (Libya v. U.K.; Libya v. U.S.), supra note 83; see also Franck, supra note 82, at 520. 86. Id. 87. Id. (concluding that “both Libya and the United States, as Members of the United Nations, are obliged to accept and carry out the decisions of the Security Council in accordance with Article 25 of the Charter,” including the obligations imposed by Security Council Resolution 748). It concludes, further, that “the obligations of the Parties in that respect prevail over their obligations under any other international agreement, including the Montreal Convention.” Id. 88. On interpretative methods, see generally THE CHARTER OF THE UNITED NATIONS, supra note 7. 89. In terms of political acceptability, there might be further safeguards that would help ensure states that the Security Council would not abuse its powers. Another remedy for enhancing legitimacy would be the control of Council actions even in the absence of formal procedures of review. Such control could be exercised by the members of the Council through voting, and by the General Assembly, which, if bold enough, may sanction the Council for its decisions. There can also be incidental control of the Council’s actions’ legality by international tribunals. For example, in the case of Tadic before the ICTY, the resolution-created tribunal reviewed the constitutionality of the acts establishing it. Prosecutor v. Tadic, Case No. IT-94-1-I, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Oct. 2, 1995); see also Prosecutor v. Tadic, Case No. IT-94-1-I, Sentencing/Decision (May 7, 1997).

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None of the above should suggest that the Security Council has unlimited discretion and power under the U.N. Charter. Limitations are most likely found in the checks and balances in the Charter itself, which balances the Security Council’s powers against the ICJ’s jurisdiction over peaceful settlement of disputes.90 In making recommendations under Chapter VI, the Security Council should also take into consideration the fact that legal disputes should, be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court.”91 If the Security Council violates the institutional restraints set out in the Charter, or oversteps its purpose, it would be acting ultra vires. Whether these legal restraints can be enforced against the Security Council is a separate matter. If the Security Council oversteps the limits of the Charter, can this be enforced against the Council? The Security Council has exclusive powers to make factual determinations, deciding whether international peace and security has been violated.92 When it comes to deciding what to do, it is clearly the Security Council which shares with the ICJ the power to make legal determinations. Who then decides whether the U.N. Charter limits have been overstepped: the Security Council itself, individual states, or the ICJ? The challenge is that the Charter does not offer a clear answer. Two significant problems remain. First, the ICJ has jurisdiction only in case of disputes between states.93 Hence should the Security Council act ultra vires in a resolution against Iran? Iran cannot bring a case before the ICJ against the Security Council. It might try to do that against each Security Council member, but then a second problem occurs. For the court to exercise jurisdiction, the given states must accept it.94 Hence, out of the 15 states, the chances are the court will not be able to exercise jurisdiction against a majority of them. The alternative is a request of an advisory opinion, however, an advisory opinion can be requested only by UN organs.95 Is there a chance the Security Council might ask an advisory opinion on the legality of its own actions? The General Assembly might proceed that way, but political

90. U.N. Charter art. 36, para 3. 91. U.N. Charter ch. VI, art. 36, para. 1. “The Security Council may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature, recommend appropriate procedures or methods of adjustment.” Id. “The Security Council should take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties. Id. at para. 2. In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court.” Id. at para. 3. 92. U.N. Charter art. 34. 93. U.N. Charter art. 92. 94. See, e.g., U.N. Charter art. 95. 95. U.N. Charter art. 96, para. 1.

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considerations make this unlikely. The second problem that arises lies in the fact that advisory opinions are not binding. While the Charter provides legal constraints on the Council, the primary political constraints will be the perception of the Council’s legitimacy and its compliance pull (its continuing ability to convince states to enforce its resolutions). The Security Council is also properly constrained by all relevant rules of customary international law.96 For example, states acting in an armed conflict under Security Council authorization must still follow the norms of humanitarian law. Because neither principles of international cooperation nor principles of sovereignty seem to support unrestrained and unlimited power, there must be some limit to the Security Council’s powers. Although the Charter provides legal constraints on the Council, the ultimate constraints will be political ones, including the long-term perception of the Council’s legitimacy and its “compliance pull,” more specifically, its continued ability to convince states to enforce its resolutions.97 Since the Namibia case, it has been accepted that resolutions may, in any event, have an operative effect—that is to say, the findings of fact or applications of law within an organ’s own competence are determinative.98 In addition to the NPT, two other treaties—the BWC and the CWC— form this multilateral non-proliferation regime.99 These will be discussed 96. See generally Judith G. Gardam, Legal Restraints on Security Council Military Enforcement Action, 17 MICH. J. INT’L L. 285 (1996). There are at least three substantive legal regimes applicable to NBC Weapons issues. (1) Use of Force (“Jus Ad Bellum”) doctrine, governing the legality of the threat or use of force, but not conduct of war or the extent of the development of these weapons. See Jefferson D. Reynolds, Collateral Damage on the 21st Century Battlefield: Enemy Exploitation of the Law of Armed Conflict, and the Struggle for a Moral High Ground, 56 A.F. L. REV. 1 (2005). This area of law establishes legal justifications for the resort to force, including self-defense, but is silent on particular weapons. See id. (2) International Humanitarian Law (“Jus in Bello”), governs the conduct of war, including the kinds of weapons that can be used in armed conflict. Id. For example, the treaties and customary law developed in this area prohibit the use of weapons that cause superfluous injury, unnecessary suffering, and as a matter of custom, the use of chemical and biological weapons. (3) The Arms Control Regime refers generally to those treaties and standards governing the actual development, rather than the justifications or the use of NBC weapons. See Jack M. Beard, The Shortcomings of Indeterminacy in Arms Control Regimes: The Case of the Biological Weapons Convention, 101 AM. J. INT’L L. 271, 274 (2007). 97. Legitimacy is the property of a rule or institution that exerts a “compliance pull” because the community believes that the rule or institution is the product of generally accepted principles of “right process.” THOMAS M. FRANCK, THE POWER OF LEGITIMACY AMONG NATIONS 41-49 (Oxford University Press 1990); see also Thomas M. Franck, Legitimacy in the International System, 82 AM. J. INT’L L. 705,751 (1988). 98. Legal Consequences for States of Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 I.C.J. 16, at 50 (June 21). 99. See, e.g., Sean D. Murphy, Contemporary Practice of the United States Relating to International Law: Use of Force and Arms Control: UN Security Council Resolution on Nonproliferation of WMD, 98 AM. J. INT’L L. 606, 607 (2004) (“[T]he Chemical Weapons Convention (CWC), the

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following an exploration of the Security Council’s recent resolutions and their interaction with the NPT regime. D. Implied Powers The Security Council is involved in interpretation, enforcement, and legislation, but not all of these powers are directed at the same sources of law.100 The Council exercises an interpretive function when it acts to give meaning to the Charter’s open-textured provisions.101 There are at least three categories of interpretation that are relevant to this discussion. First, the Security Council primary mandate, an interpretive act that we can expect in most cases, is whether a situation fits within the ambit of peace and security attentive to the kinds of signals that threaten international peace and security.102 This mandate implies what is enumerated in the Charter, and can only be discovered in practice. Here, the Council can take advice from states, statutory authority, and agendas of other Charter organs.103 Second, the Council may imply the nature and extent of its powers from other textual provisions in the Charter.104 For example, the Council may interpret the meaning of “dispute” under Chapter VI, which draws a line between its own competence in dispute settlement situations and that of the ICJ.105 Legal

Biological Weapons Convention (“BWC”) and the Nuclear Non-Proliferation Treaty (“NPT”), already prescribe most of the legislation that would cover proliferation by both State and non-State actors.”). 100. See generally James A.R. Nafziger & Edward M.Wise, Section IV: The Status in United States Law of Security Council Resolutions Under Chapter VII of the United Nations Charter, 46 AM. J. COMP. L. 421 (1998). 101. Steven R. Ratner, The Security Council and International Law, in THE U.N. SECURITY COUNCIL: FROM THE COLD WAR TO THE 21ST CENTURY 591-605 (David M. Malone ed., Lynne Rienner Publishers 2004) (The UN Security Council has, in practice, declarative, interpretative, promotion and enforcement functions. Promotion and enforcement correspond to Articles VI and VII. Declarative power is the least costly power, but even this cannot be readily agreed upon. The interpretative power is the foremost of the implied powers, because it gives the competence to imply further powers.); see generally JOSE ALVAREZ, INTERNATIONAL ORGANIZATIONS AS LAW-MAKERS (Oxford Univ. Press 2005); Jose Alvarez, The Security Council’s War on Terrorism: Problems and Policy Options, in REVIEW OF THE SECURITY COUNCIL BY MEMBER STATES (Erika de Wet and André Nollkaemper eds., Intersentia 2003). 102. See, e.g., Alexander D. Dale, Countering Hate Messages that Lead to Violence: The United nation’s Chapter VII Authority to Use Radio Jamming to Halt Incendiary Broadcasts, 11 DUKE J. COMP. & INT’L L. 109, 128 (2001) (“The Security Council should fulfill its duties under the U.N. Charter by using its discretionary powers under Article 39 to establish that speech rising to this incitement standard is a threat to or breach of international peace and security.”). 103. See generally Stephen M. Schwebel, Authorizing the Secretary General of the United Nations to Request Advisory Opinions of the International Court of Justice, 78 AM. J. INT’L L. 869, 871 (1984). 104. See, e.g., Lieutenant Todd A. Wynkoop, JAGC, USN, The Use of Force Against Third Party Neutrals to Enforce Sanctions Against a Belligerent, 42 NAVAL L. REV. 91, 93-94 (1995). 105. U.N. Charter Article 36 states: “In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the

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disputes should generally be referred by the parties to the ICJ.106 The Council may also address the long evaded question of its shared responsibilities (with the General Assembly under Article 11) for regulating armaments under Article 26 of the Charter and examine how it can best fulfill these responsibilities.107 Finally, there is the important debate over whether “law-making” powers can be implied among the Security Council’s powers. Chapter VII provides for sweeping circumstances where the Council may require all states to adopt certain measures.108 The question is whether the Council may impose these obligations in a general, abstract, and binding resolution outside of its power to address particular situations (such as imposing universal sanctions on a regime practicing apartheid). In recent debates regarding Resolution 1540, the dissenting view\stating that multilateral agreements entered into by states is the primary mode of global lawmaking.109 The General Assembly promoted this process by making recommendations (Article 13),110 and the Security Council’s legislation, even if readily and widely acceded to by states, should be considered purely exceptional. When the framers of the Charter saw a role for a UN body in such development, this was usually explicit. However, the character of Resolutions, especially those that are almost universally supported (such as Resolutions1373 and 1540) suggest that these powers are available to the Council. In the end, the proper test for implied powers is whether the Security Council respects institutional restraints set out in the Charter, and whether it is acting within its purpose. E. Treaty-Based Powers Multilateral treaty regimes are positioned between the Security Council and the states.111 Until recently, the development of international law parties to the International Court of Justice in accordance with the provisions of the Statute of the Court.” U.N. Charter ch. VI, art. 36, para. 3. 106. Id. 107. U.N. Charter ch. V, art. 26. 108. See generally U.N. Charter ch. VII. 109. See Mahnoush H. Arsanjani, Book Review: Alvarez, Jose E. International Organizations as Law-Makers, 100 AM. J. INT’L L. 733, 733 (2006) (“It has long been recognized that the age of states as the only major and relevant players in international law and politics has passed.”). 110. Article Seventeen states that, according to the U.N. Charter, the General Assembly shall “make recommendations for the purpose of ‘encourage[ing] the progressive development of international law and its codification[.]’” U.N. Gen. Assembly, Sixth Comm. on the Progressive Dev. of Int’l Law and its Codification, Progressive Development of International Law and its Codification, U.N. Doc. A/504 (Nov. 20, 1947) (prepared by G. Kaeckenbeeck), available at http://www.jstor.org/pss/2214015; see U.N. Charter art.13, para. 1, available at http://www.un.org/aboutun/charter/; see also U.N. Charter ch. IV, art. 13. 111. In terms of non-proliferation, there has not yet been an occasion for the Security Council to pass a resolution to override the provisions of a treaty under its peace and security mandate. There is a growing

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regulating NBC weapons has been almost entirely through the vehicle of multilateral treaty regimes, including the NPT, the Chemical Weapons Convention (“CWC”), and the Biological and Toxin Weapons Convention (“BWC”).112 The Council’s duties regarding these treaty regimes takes some guidance from the texts of these treaties, but is largely animated by its own Charter mandate.113 If the Security Council is invoking its Charter powers to promote non-proliferation, it must properly harmonize its efforts with these treaty regimes and other treaty-based and customary obligations under international law.114 In addition to defining the Article 25 obligations of members of the United Nations to accept and carry out the decisions of the Security Council, the ICJ in the Lockerbie Case (1992)115 stated that “in accordance with Article 103 of the Charter, the obligations of the Parties . . . prevail over their obligations under any other international agreement[.]”116 Thus, the U.N. Charter is a kind of “super-treaty” that overrides any ordinary hierarchy of norms suggested by Article 38 of the ICJ Statute.117 array of multilateral instruments and initiatives (not addressed specifically in this paper) aimed at preventing and responding to acts of nuclear terrorism. S.C. Res. 508, U.N. Doc. S/RES/508 (Apr. 28, 2004); International Convention on the Suppression of Acts of Nuclear Terrorism, G.A. Res. 59/290, U.N. Doc. A/RES/59/290 (Apr. 13, 2005). As of October 3, 2008, the Convention had 46 States Parties and 115 signatory States. The States Parties include Austria, Bangladesh, Belarus, Comoros, Croatia, Czech Republic, Denmark, El Salvador, Hungary, India, Kenya, Latvia, Lebanon, Mexico, Mongolia, Panama, Romania, Russian Federation, Serbia, Slovakia, South Africa, Spain, and the Former Yugoslav Republic of Macedonia. UN, Status of Multilateral Treaties Deposited with the Secretary-General: International Convention for the Suppression of Acts of Nuclear Terrorism, available at http://treaties.un.org/Pages/ViewDetails.aspx?src= TREATY&id=380&chapter=18&lang=en (last visited Oct. 8, 2008). In the past decade, States have launched a series of efforts to address the threat of nuclear terrorism. See David P. Fidler, International Convention for the Suppression of Acts of Nuclear Terrorism Enters into Force, 11 ASIL INSIGHTS, July 5, 2007, http://www.asil.org/insights070705.cfm. 112. See generally Murphy, supra note 99. 113. See generally Craig H. Allen, A Primer on the Nonproliferation Regime for Maritime Security Operations Force, 54 NAVAL L. REV. 51 (2007). 114. See Geoffrey S. Carlson, An Offer They Can’t Refuse? The Security Council Tells North Korea to Re-Sign the Nuclear Non-Proliferation Treaty, 46 COLUM. J. TRANSNAT’L L. 420, 422-23 (2008). 115. Questions of Interpretation and Application of 1971 Montreal Convention Arising from Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), 1992 I.C.J. 4 (Provisional Measures Order of Apr. 14); see also Libya v. U.S, supra note 83. 116. Id. at *15; see also U.N. Charter art. 25. 117. See U.N. Charter art. 25. International law sets out a particular pedigree of legality and legitimacy based on sources. Article 38 of the Statute of the International Court of Justice (“ICJ”), the supreme judicial organ of the United Nations, enumerates a list which has come to be generally accepted as reflecting the prevailing international consensus as to what are the main sources of international law. Statute of the International Court of Justice art. 38, available at http://www.icj-cij.org/documents/index. php?p1=4&p2=2&p3=0#. Article 38 specifically refers to international conventions or treaties, international custom, general principles of international law recognized by civilized nations, and judicial decisions and the teachings of the most highly qualified publicists. Id. These are the canonical sources of international law, but whether they are hierarchically ordered is an open question. Those who do recognize

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Instead, Security Council resolutions have thus far supported and complemented existing treaty-based nonproliferation regimes in multiple ways.118 For example, the Security Council, when appropriate, can enforce the international law principle (articulated in the Vienna Convention on the Law of Treaties) that signatories to a treaty may not undermine its “object and purpose.”119 The broader case can be made that the enforcement provisions of these security-related treaties, among others, should be read in light of the Security Council’s legitimate mandate under the U.N. Charter. In Resolution 1540 the Security Council reaffirmed its support for the existing multilateral treaties and called on states to renew their commitment to multilateral cooperation in the framework of the International Atomic Energy Agency (“IAEA”) and other bodies.120 Therein, the Resolution explicitly states that it will not alter the Nuclear Non-Proliferation Treaty, the Chemical Weapons Convention, or the Biological and Toxin Weapons Convention.121 While it does not compel member states that are not party to those treaties to adopt them, it comes close to aligning the purposes of these treaties with the peace and security mandate.122 At the very least, the steps to be taken by states in accordance with 1540 do not affect or alter commitments made in connection with existing regimes.123 The Treaty on the NPT envisions a role for the Security Council drawing upon its purposes outlined in the U.N. Charter but specifying a particular role in the enforcement of the treaty.124 The nuclear nonproliferation system mandates some level of cooperation between the Security Council and the

a hierarchy believe they are precisely in order of importance. One odd consequence of this view is that although these sources appear in the statute of a court, they would not give as much weight to judicial precedent as domestic systems, particularly common law and constitutional courts do. Whatever the view on hierarchy, there is general agreement that treaties and custom are the primary source of law-making in international law, and the others are subsidiary sources. Security Council resolutions are not mentioned as “sources of international law” in the Statute of the International Court of Justice, which was adopted at the same time as the Charter. The ICJ necessarily accepts that the U.N. Charter is a kind of “super-treaty” that overrides the ordinary treaties under Article 38. The experience of the UN system shows that Article 38 sources do not exhaust the possibilities of sources of international law. Other sources, including General Assembly resolutions, are sometimes called “soft law.” 118. See, e.g., Vienna Convention on the Law of Treaties, art. 18, May 23, 1969, 1155 U.N.T.S. 331. The United States has yet to sign the treaty. Avero Belgium Ins. v. American Airlines, Inc., 423 F.3d 73, 79 n.8 (2d Cir. 2005). 119. Vienna Convention on the Law of Treaties, supra note 118. 120. S.C. Res. 1540, supra note 34. 121. See id. 122. See id. 123. See id. 124. See Natasha Bajema & Mary Beth Nikitin, The Future of International Regimes: Organizations and Practices: Assessing Nuclear Maturity: Determining Which States Should Have Access to What Nuclear Technology, 28 FLETCHER F. WORLD AFF. 157, 167 (2004).

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International Atomic Energy Agency (“IAEA”).125 The IAEA monitors local technical requirements of states’ conformity with particular safeguards agreements and, in some cases; the Security Council may be called upon to deliberate the global security implications.126 The kinds of problems the Security Council will be expected to address are the security implications of breaches and options for enforcement in cases of withdrawal from the NPT or non-compliance with the treaty or IAEA safeguards.127 These are precisely the issues raised in the current controversies concerning North Korea (withdrawal) and Iran (non-compliance) and, though this paper takes no view as to the outcome of these issues or the merits of legal rights at stake, these examples are useful to demonstrate the potential range of Security Council responses. The Security Council is given a role in the NPT in relation to the treaty’s withdrawal clause, where the Security Council is named as a required recipient of the notice of and the reasons for withdrawal.128 Article X of the NPT provides that a state-party intending to withdraw from the treaty must give the Security Council three months notice of its intention and provide the Security Council with its reasons for withdrawal.129 It also added the require-

125. James Timbie, A Nuclear Iran: The Legal Implications of a Preemptive National Security Strategy: Iran’s Nuclear Program, 57 SYRACUSE L. REV. 433, 437 (2007). 126. The IAEA has a number of legislative instruments in place to verify and facilitate states’ compliance with nuclear security undertakings, notably those of the Nuclear NonProliferation Treaty and of [Resolution] 1540 in respect of non-state actors. These requirements include the safeguards agreements and their updates in the form of additional protocols, as well as the aforementioned CPPNM and the Code of Conduct on Safety and Security of Radioactive Sources[.] The IAEA safeguards system is designed to verify states’ fulfillment of their commitments not to use nuclear material to develop nuclear weapons or other nuclear explosive devices. The system contains a number of elements that include commitments relevant to states’ strengthening their control over nuclear material and nuclear-related material and activities. Tariq Rauf & Jan Lodding, UNSCR 1540 and the Role of the IAEA, in GLOBAL NON-PROLIFERATION AND COUNTER-TERRORISM: THE IMPACT OF UNSCR 1540 86, 88 (Olivia Bosch & Peter van Ham, eds., Brookings Institution Press 2005). 127. See, e.g., Bajema & Nikitin, supra note 124. 128. Antonio F. Perez, Survival of Rights Under The Nuclear Non-Proliferation Treaty: Withdrawal and the Continuing Right of International Atomic Energy Agency Safeguards, 34 VA. J. INT’L L. 749, 792 (1994). The NPT names the IAEA an organization which was founded before the NPT was concluded, as the competent body to administer safeguards pursuant to Article III. These safeguards perform a double function: to provide assurances that States Party are complying with their obligations, while simultaneously providing the mechanism for States Party to demonstrate their compliance. The additional protocol allows the IAEA inspectors to inspect facilities wherever they find them in a country on demand. See Bo Aler, Non-Proliferation and the IAEA in INTERNATIONAL ATOMIC ENERGY AGENCY, PERSONAL REFLECTIONS 153, available at http://www-pub.iaea.org/MTCD/publications/PDF/Pub1033_web.pdf. 129. Treaty on the Non-Proliferation of Nuclear Weapons, art. X, sec. 1, 21 U.S.T. 483, see Perez, supra note 128, at 749-50.

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ment of “a statement of the extraordinary events [the withdrawing party] regards as having jeopardized its supreme interests.”130 IAEA practice reflects the regard for the Security Council to act as the final arbiter in maintaining international peace and security.131 Participants in the most recent NPT Review Conferences—the sole forum for collective monitoring of general compliance of NPT obligations—have been friendly to the expansion of the Security Council’s role, particularly regarding increased scrutiny for withdrawal, affirming that: Given the importance of the Treaty on the Non-Proliferation of Nuclear Weapons for international peace and security, a withdrawal notification under Article X, paragraph 1, should be qualified as being of immediate relevance to the Security Council. Request that any withdrawal notification under Article X, paragraph 1, prompt the Security Council to consider this issue and its implications as a matter of urgency, including examination of the cause for the withdrawal which, according to the requirements of Article X, has to be “related to the subject matter of the Treaty” and request that the Security Council further declare that, in case of withdrawal notification under Article X, paragraph 1, its consideration will include the matter of a special IAEA inspection of the notifying party.132 This is an interpretation in favor of the Security Council’s power to condition or prevent withdrawal through Article X. It can also be argued that such an action would be consistent with the duties of the Council under the Charter. Whether Article X was specifically intended to give the Security Council an opportunity to block any withdrawal that might produce a threat to international peace and security, certain factual determinations may be

130. Treaty on the Non-Proliferation of Nuclear Weapons, supra note 129, at art. X, par. 1. The United States has concluded that it must develop, test, and deploy anti-ballistic missile systems for the defense of its national territory, its forces outside the United States, and, its friends and allies. Press Release, Richard Boucher, U. S. State Dep’t Spokesman, (Dec. 14, 2001) (on file with author). 131. Carlson, supra note 114, at 425 (“Article XII(C) of the IAEA Statute provides that breaches of IAEA obligations shall be referred to the UN Security Council and General Assembly after first asking the party to comply and referral to the IAEA Board of Governors. So although the role of the Security Council is unspecified, the NPT indirectly contemplates Security Council enforcement.”). 132. See CTR. FOR INT’L SEC. AND COOPERATION & PROGRAM ON SCI. AND GLOBAL SEC., PREVENTING NUCLEAR PROLIFERATION AND NUCLEAR TERRORISM: ESSENTIAL STEPS TO REDUCE THE AVAILABILITY OF NUCLEAR-EXPLOSIVE MATERIALS 5-6 (Mar. 2005), available at http://www.princeton. edu/~globsec/ (select hyperlink for pdf file); see also Preparatory Comm. for 2005 Review Conference of Parties to Treaty on Non-Proliferation of Nuclear Weapons, Strengthening the NPT Against Withdrawal and Non-Compliance: Suggestions for the Establishment of Procedures and Mechanisms, NPT/CONF.2005/PC.III/WP.15 (Working Paper No. 15, Apr. 29, 2004) (submitted by Germany), available at http://www.reachingcriticalwill.org/legal/npt/prepcom04/papers/GermanyWP15.pdf.

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made133 if the Security Council scrutinizes withdrawal under this mandate. These kinds of arguments can be rehearsed in application to North Korea, a currently relevant case study for the issue of withdrawal.134 It is not surprising that the principal challenges to the legitimacy of the Security Council—critiques of opportunism and of the non-democratic character—reappear in the context of the NPT in three specific forms: 1.

2.

Critique of nuclear oligopoly of the P-5: Currently the permanent five members are the only nations permitted to possess nuclear weapons under the Nuclear Non-Proliferation Treaty. Though this nuclear status is not the result of their security council membership, the P-5’s military supremacy is the de facto result of the NPT.135 Critique of discriminatory treatment under the NPT: If the Security Council overtakes and steers the NPT process, selective enforcement is probable. This introduces an element of discrimination in contravention of Article IV of the Treaty, which guarantees that states may “develop research, production and use

133. Here is an example of the factual arguments the Security Council would consider in the case of North Korea as well as the factual determinations it would have to make. Arguably a nuclear-armed North Korea could trigger: (1) a regional arms race in Asia: Japan, Taiwan, or South Korea might decide to start their own nuclear weapons program, which would reverberate in China, India and Pakistan, (2) U.S. posture may harden in nuclear deterrence strategies in the region, (3) danger of North Korea selling its plutonium, highly enriched uranium, or finished weapons to other countries (already ballistic missiles sold missiles to Iran, Yemen, Syria, and Pakistan), or terrorists (already prohibited by Resolution 1540, supra note 34), and (4) any number of countries could imitate North Korea’s moves and acquire the capacity to produce fissile materials and manufacture nuclear weapons under the guise of “peaceful” nuclear endeavors allowed by the NPT. 134. S.C. Res. 825, U.N. Doc. S/RES/825 (May 11, 1993). 135. See Patricia Hewitson, Between Empire and Community: The United States and Multilateralism 2001-2003: A Mid-Term Assessment: Arms Control: Nonproliferation and Reduction of Nuclear Weapons: Risks of Weakening the Multilateral Nuclear Nonproliferation Norm, 21 BERKELEY J. INT’L L. 405, 478 (2003). The current five members of the Security Council are the only nations permitted to possess nuclear weapons under the Nuclear Non-Proliferation Treaty, whose cut-off date coincided with the date the Treaty was concluded. Thus, nuclear status is not the result of their Security Council membership, though it is sometimes used as a modern-day justification for their continued presence on the body. The de facto situation is that the five permanent members of the Security Council are also the only states recognized by the NPT. The UN Security Council’s permanent members were originally the victorious powers after World War II: the Republic of China, France, the Soviet Union, the United Kingdom, and the United States. With the exception of the non-nuclear Republic of China (Taiwan), which was in fact replaced by the nuclear People’s Republic of China in the UN in 1971, the Security Council, by the signing of the NPT, was de facto composed of the states that together monopolized nuclear weaponry. Then came India, with its 1974 test, and, in 1991, the world learned that Iraq had an active nuclear weapons program in the 1980s. By 1998, North Korea, India, Pakistan, Israel (allegedly; Israel has never admitted to nuclear weapons possession), and other countries that are not permanent members of the UN Security Council possessed nuclear weapons outside of the anti-proliferation framework established by the Treaty. See generally id.

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of nuclear energy for peaceful purposes without discrimination[.]”136 Critique of the non-proliferation agenda as an evasion of disarmament responsibilities: Though the Non-Proliferation Treaty also commits nuclear weapons states to move toward nuclear disarmament, this commitment has faded from the active agenda of the NPT, and there is little incentive for the P-5 to pursue this goal. Whether by default or design, an agenda promoting nonproliferation without disarmament simply freezes in place the military-technological gap that allowed the great powers that emerged after the Second World War to steer the Security Council for the past five decades. 137

The Security Council’s potential enforcement role is probably clearer in terms of two other treaties—the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (biological) and Toxin Weapons and on Their Destruction of 1972 (“BWC”) and the Chemical Weapons Convention of 1993 (“CWC”). These treaties, unlike the NPT, are comprehensive and apply equally to all U.N. member states.138 Also, in these treaties, breaches of the peace are less ambiguous since each treaty prohibits entire categories of weapons that have no peaceful purposes.139 By banning an entire class of weapons, rather than drawing technical lines between permissible and impermissible uses of technologies (as in the NPT),140 there 136. Int’l Atomic Energy Agency, Treaty on the Non-proliferation of Nuclear Weapons, art. 4, IAEA Doc. INFCIRC/140 (Apr. 22, 1970), available at http://www.iaea.org/Publications/Documents/ Infcircs/Others/ infcirc140.pdf; Ambassador Perla Carvalho-Soto, Conference Proceedings: Nuclear Arms Control, Non-Proliferation and Disarmament in the Post-Cold War Security Environment: Panel II: Nuclear Arms Control and Disarmament in the 21st Century: Prospects and Proposals: Mexican Perspectives on Nuclear Disarmament, 31 CASE W. RES. J. INT’L L. 647, 649 (1999) (“Because the Treaty legitimizes the distinction between nuclear weapon states and non-nuclear weapon states, it is viewed as a discriminatory treaty in which the obligations are not equal for all states. The development of nuclear weapons is forbidden for some states, while it is allowed for others.”). 137. See Carvalho-Soto, supra note 136, at 651. 138. See Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 26 U.S.T. 571 [hereinafter, BWC]; see also Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction, Apr. 29, 1997, 1974 U.N.T.S. 45, 32 I.L.M. 800 (1993) [hereinafter, Convention on Prohibition]. 139. Matthew Meselson & Julian Robinson, Weapons of Mass Destruction and the Proliferation Dilemma: A Draft Convention to Prohibit Biological and Chemical Weapons Under International Criminal Law, 28 FLETCHER F. WORLD AFF. 57, 59 (2004). 140. John R. Crook, Contemporary Practice of the United States Relating to International Law: Use of Force and Arms Control: U.S. Administration Adopts New Approach to India’s Civilian Nuclear Program, Undertakes to Seek Changes in U.S. Legislation, 99 AM. J. INT’L L. 912, 913 (2005). The problem of the dual-use nature of NBC WEAPONS prohibits relevant technologies from being used to

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is a more immediate nexus to the Security Council’s peace and security mandate.141 More specifically, Article VI of the BWC directs states to refer compliance matters to the UN Security Council, though this has never been used.142 In 1988, the Security Council endorsed the UN Secretary-General’s fact-finding mechanism, making it applicable to all UN member states.143 More recently, after two decades of building international consensus, the CWC was passed, restricting the development and possession of chemical weapons in a similar manner.144 The groundwork for norm-setting on both of these conventions was already in place by the time the conventions were drafted. The preamble to the BWC mentioned the “urgency of eliminating from the arsenals of states” chemical as well as biological agents,145 and both treaties build on longstanding treaties and customary international law, including the 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or Other Gases, and of Bacteriological Methods of Warfare (“Geneva Protocol”) which bans the use of an earlier generation of chemical and biological weapons (“CBW”) as a means of warfare.146 Especially in light of the level of international consensus, the Security Council can go further in its use of resolutions to harmonize its own capacities with the purposes of the BWC and CWC and develop appropriate enforcement mechanisms. In time, this may be less complicated with the NPT as well. A model for this kind of action is Resolution 1540, which directs states to implement legislation prohibiting the misuse of NBC materials, particularly to safeguard these from non-state actors.147 Even outside specific compliance

produce weapons but allows the same technologies to be employed for peaceful purposes. Id. 141. There is still room for verification of use and misuse of types and quantities. Article I, paragraph 1 of the Biological and Toxin Weapons Convention prohibits, for example, the “development, production, stockpiling, acquisition or retention of ‘[m]icrobial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective, or other peaceful purposes.’” Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction (“BWC”), art. I, para. 1 (Mar. 26, 1975); see also David P. Fidler, International Law and Weapons of Mass Destruction: End of the Arms Control Approach, 14 DUKE J. OF COMP. & INT’L L. 39, 66-67 (2004). 142. See BWC, supra 138, at art. VI, par. 1. Although under Article VI state parties may refer compliance matters to the U.N. Security Council, no other alleged violation of the BWC has been brought to the Council’s attention. Article V of the BWC provides for bilateral and/or multilateral consultations between state parties should a non-compliance allegation occur. Id. at art. VI. 143. See, e.g., Vera Gowlland-Debbas, The Relationship Between The International Court of Justice and the Security Council in Light of the Lockerbie Case, 88 AM. J. INT’L L. 643, 656 (1994). 144. Convention on the Prohibition, supra note 138. 145. BWC, supra note 138, at 586. 146. Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, http://cns.miis.edu/inventory/pdfs/genev.pdf; see Jack M. Beard, supra note 96, at 277. 147. S.C. Res. 1540, supra note 34. The Resolution makes clear that all individuals must be

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frameworks, states may bring these matters to the attention of the UN Security Council as a threat to international peace and security.148 In each case, if the internal mechanism in the treaties will be best equipped to make the distinction between a minor and a material breach, fact-finding should be left to these bodies. However, where there are gaps, the Council is competent to act. Another virtue of the independence of the Security Council’s mandate is the ability to address security concerns outside of the NPT framework concerning nuclear non-members such as India, Pakistan, and Israel, or potentially, a fully withdrawn North Korea.149 In the final analysis, while it should not undercut multilateral treaty frameworks, the Security Council need not rely on the text of particular treaties in following its mandate. For example, it may well be that Iran comes into compliance with technical requirements (record-keeping and inspections), but that suspicions about undeclared nuclear weapons activities remain and give rise to security concerns with safeguards noncompliance. Factual matters that signal a threat to peace and security— whether these are non-compliance with safeguards, withdrawal from a treaty, cutting off negotiations, issuing threatening statements, transfer of technology, or nuclear testing, for example— may or may not be prohibited in the text of a particular non-proliferation treaty, but ultimately, the Security Council must interpret these incidents through the lens of its charter mandate.150 F.

Security Council Practice Based on Non-Proliferation Instruments and Resolutions

The subject of non-proliferation is not explicitly mentioned in the U.N. Charter, both because relevant threats are not enumerated in the Charter and because the Charter was drafted before the destructive potential of modern NBCs first became salient to all states party to the San Francisco Convention. The bombing of Hiroshima took place two months after the Charter was signed by the major powers and four months before the first meeting of the

prohibited from developing, weaponizing, and employing biological agents for harmful purposes and states must now implement domestic laws criminalizing the possession, processing, or weaponization of biological materials. Id. 148. See, e.g., BWC, supra note 141, at art. VI. 149. Arsalan M. Suleman, Bargaining in the Shadow of Violence: The NPT, IAEA, and Nuclear NonProliferation Negotiations, 26 BERKELEY J. INT’L L. 206, 215 (2008) (“The basis of enforcing this nonproliferation pledge is found in Article III of the treaty, which requires non-nuclear-weapon states party to the treaty to accept comprehensive IAEA safeguards.”). 150. See, e.g., Jonathan B. Schwartz, Dealing with a “Rogue State”: The Libya Precedent, 101 AM. J. INT’L L. 553, 561 (2007) (“[I]n the event of noncompliance, the Security Council would have had the authority to insist that Libya fulfill the Court’s ruling.”).

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Council. Therefore, while the text of the Charter could not be expected to give the Security Council the express duty to police non-proliferation, this role has evolved through a series of statements and resolutions.151 There has been an evolution of these concerns in recent years with the Security Council bringing non-proliferation concerns more squarely onto its agenda. In 1992, national leaders of Security Council met and issued a statement that the spread of nuclear and other weapons of mass destruction constituted a “threat to international peace and security” within the meaning of Chapter VII.152 Though this statement itself did not have the same legal effect as a Security Council resolution, subsequent resolutions have built on this.153 In 1995, Resolution 687 was the first to identify proliferation is a threat,154 followed by Resolution 984 (1995) which sought to facilitate cooperation with the NPT, promote security assurances for non-nuclear weapon states, and encourage states to pursue negotiations in good faith.155 This resolution contains the language “in accordance with the relevant provisions of the Charter of the United Nations, any aggression with the use of nuclear weapons would endanger international peace and security,”156 though this falls short of defining proliferation in itself as aggression (already a notoriously ambiguous term in international law).157

151. See Eric Rosand, The Security Council as “Global Legislator”: Ultra Vires or Ultra Innovative?, 28 FORDHAM INT’L L.J. 542, 546-47 (2005) (discussing the adoption of Resolutions 1373 and 1540). 152. ENCYCLOPEDIA OF ARMS CONTROL AND DISARMAMENT 460 (Richard Dean Burns ed., vol. 1, Scribner’s 1993). 153. See, e.g., S.C. Res. 687, U.N. Doc. S/Res/687 (Apr. 3, 1991), available at http://www.fas.org/ news/un/iraq/sres0687.htm. 154. Id. The 687 regime could be viewed as sui generis for different reasons. On one hand, 687 could be characterized as simply imposing a thoroughly traditional disarmament of conventional weapons on a defeated state in an armed conflict and, though it represented a significant stride in the “threat to peace and security” by WMDs, peace and security in “the area” (the region of the Middle East) did not define proliferation in itself as such a threat. My current view is that an analysis of 687 is absolutely crucial to the study I am undertaking, but precisely because of its unusual structural features: (1) as a “mixed” resolution, adopted under Chapter VII but aimed at the resolution of disputes, including “legal disputes” (others would say it is yet another sub-category of the erosion of the distinction between VI and VII), and (2) as a peculiar instance of “law-making,” creating new legal obligations on a particular state by its standing authority (and delegating these to IAEA and UNSCOM). ALVAREZ, INTERNATIONAL ORGANIZATIONS AS LAW-MAKERS, supra note 101, at 420-21. 155. S.C. Res. 984, U.N. Doc. S/RES/984 (Apr. 11, 1995). 156. Id. 157. BENJAMIN B. FERENCZ, DEFINING INTERNATIONAL AGGRESSION: THE SEARCH FOR WORLD PEACE : A DOCUMENTARY HISTORY AND ANALYSIS (Oceana Publications 1975); William Schabas, “The Unfinished Work of Defining Aggression: How Many Times Must the Cannonballs Fly, Before They are Forever Banned?”, in THE PERMANENT INTERNATIONAL CRIMINAL COURT: LEGAL AND POLICY ISSUES 123-39 (Dominic McGoldrick & Erick Donnelly eds., Hart Publishing, 2004).

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The Security Council’s involvement in the topic of non-proliferation has grown in tandem with its elaboration of legislative powers, a repertoire of contingent confidence-building requirements, and with the growth of the notion of the nexus between nuclear weapons and terrorism as constituting a common global threat. Both developments have their roots in the resolution against Iraq after the invasion of Kuwait. Resolution 687 demanded “that Iraq shall unconditionally accept the destruction . . .” of biological and chemical weapons and certain ballistic missile systems, and “unconditionally undertake not to use, develop, construct[,] acquire . . . or develop nuclear weapons.”158 This kind of measure was not unusual in the context of a collective security action against an aggressor.159 When it was suspected that Iraq was not in compliance with Resolution 687 more than a decade later, however, this provided a justification for more far-reaching measures contained in Resolution 1373. The topics of counter-terrorism and non-proliferation have merged and entered the Security Council’s purview since (1) the terrorist attacks of September 11, 2001 spurred the activism of the United States in securing international cooperation against terror networks, and (2) the discovery of the A.Q. Kahn black market for WMD proliferation.160 More recently there have been concerns about North Korea and Iran violating the Non-Proliferation Treaty, which have led to a series of resolutions attempting to contain or dissuade these states from nuclear activities.161 Resolution 1373, initially built on Resolution 687, along with its successor 1540,162 were the first properly legislative resolutions directly imposing general obligations on member states to prevent proliferation through the enactment of national civil and criminal legislation aimed at terrorism or proliferation.163

158. S.C. Res. 687, supra note 153. 159. Such a creation of concrete legal obligations of the targeted State in order to maintain international peace and security is within the limits of Articles 39 and 41 of the U.N. Charter. However, there is some criticism of such definite determination of rights and obligations as these may constitute comprehensive dispute settlement rather than temporary measures during an imminent crisis. 160. William J. Broad, David E. Sanger, & Raymond Bonner, A Tale of Nuclear Proliferation: How Pakistani Built His Network, N.Y. TIMES, Feb. 12, 2004, at A1, available at http://www.nytimes.com/ 2004/02/12/international/asia/12NUKE.html?ex=1391922000&en=85b47f440288c152&ei=5007&part ner=USERLAND. 161. See, e.g., S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001). 162. Calling upon all member states to enact national legislation criminalizing the development, acquisition, manufacturing, possession, transport or transfer of nuclear, chemical, and biological weapons and their means of delivery by a non-state actor. S.C. Res. 1540, supra note 34. 163. See generally Eric Rosand, Security Council Resolution 1373, the Counter-Terrorism Committee, and the Fight Against Terrorism, 97 AM. J. INT’L L. 333 (2003).

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1. Recent resolutions concerning NPT Withdrawal or Noncompliance As of this writing, the Security Council has issued a series of resolutions concerning North Korea (the Democratic People’s Republic of Korea or DPRK) and Iran, alleging threats to peace and security posed by the ambiguous conduct and status of each state in relation to the NPT.164 To date, neither situation has involved a clear violation of the NPT or international law, but each can be characterized as crisis driven by a lack of confidence in each regime’s motivations.165 To date, all efforts at solving the nuclear crises in the Middle East and Northeast Asia have not yielded. The progression of resolutions (three for North Korea between 1993 and 2006 and three concerning Iran) has been event-driven in response to a particular crisis event, has escalated from urging cooperation to imposition of targeted sanctions, and is evidenced by the use of “peace and security” language and the Chapter VII application of sanctions to North Korea, in light of the country’s claim that it has developed nuclear weapons.166 The western powers on the P-5 also suspect that Iran, which admits to pursuing a full nuclear cycle for peaceful purposes, has the intention of developing nuclear weapons.167 They are concerned about the peace and stability in the Middle East if nuclear capacity is developed by a state outside the NPT framework.168 Neither Iran nor North Korea enjoy normal diplomatic relations with the United States, and are considered hostile regimes.169 Therefore, demands will not be legislated with dissuasion diplomatic talks faltering, military action unpalatable, and the effectiveness of UN sanctions debatable.170 i. Responses to Withdrawal by North Korea North Korea has developed nuclear capacity, and three events have acted as warning signals—withdrawal from the NPT, testing ballistic missiles, and testing a nuclear device—which have caused responses by Security Council resolutions.171 Policy goals are, therefore, to achieve dismantlement of North 164. See Suleman, supra note 149. 165. Id. 166. See Carlson, supra note 114. 167. See generally John R. Crook, Continuing U.S. and Multilateral Efforts to Curb Iran’s Nuclear Program, 102 AM. J. INT’L L. 187 (2008). 168. See, e.g., John R. Crook, U.S. Concerns About Declining Effectiveness of Nonproliferation Regime, 99 AM. J. INT’L L. 917 (2005). 169. Id. 170. Nicholas R. Burns, Under Secretary for Political Affairs, Testimony to the House International Relations Committee: U.S. Policy Toward North Korea (Nov. 16, 2006), available at http://www.state.gov/p/us/rm/2006/76178.htm ( stating that DPRK’s pursuit of nuclear weapons and their means of delivery represents a “clear threat to international peace and security”). 171. See, e.g., S.C. Res. 825, supra note 134.

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Korea’s nuclear weapons program, acceptance of IAEA inspections, and the country’s return to the NPT.172 The resolutions, particularly Resolution 825, affirmed that such launches jeopardize peace, stability, and security in the region and beyond.173 Resolution 825 consisted of an unsuccessful attempt to block withdrawal from the NPT.174 The Resolution urged the DPRK to cooperate with the IAEA and to implement the 1992 North-South Denuclearization statement.175 The resolution does not invoke Chapter VII of the U.N. Charter per request of China and Russia. It urges all member states to encourage North Korea to respond positively to this Resolution and to facilitate a solution to the nuclear issue.176 Under the Charter, though only ambiguously in the NPT itself, the Security Council can reject the withdrawal or block unjustified withdrawal until peace and security considerations are satisfied. Resolution 825 did not contain any reference to Chapter VII and only called upon North Korea to reconsider its decision to withdraw from the NPT.177 In light of the country’s claim that it has developed nuclear weapons, and the fact that their means of delivery represents a threat to international peace and security, the Security Council responded with the unanimous adoption of Resolution 1695, which contained a clause strongly urging North Korea’s return to the NPT and to IAEA safeguards.178 In this measure, the Security Council condemned North Korea’s missile launches and demanded suspension of all related ballistic missile activity.179 In addition, acting “under its special responsibility for the maintenance of international peace and security,”180 the Resolution required all member states to prevent the transfer of missile and missile-related items, including materials, goods and technology, to North Korea’s missile or weapons of mass destruction programs, as

172. Id. 173. Id. 174. Frederic L. Kirgis, North Korea’s Withdrawal from the Nuclear Nonproliferation Treaty, ASIL INSIGHTS, Jan. 2003, http://www.asil.org/insights/insigh96.htm; Antonio F. Perez, The Survival of Rights under the Nuclear Non-Proliferation Treaty: Withdrawal and the Continuing Right of International Atomic Energy Agency Safeguards, 34 VA. J. INT’L L. 749, 785 (1994); S.C. Res. 825, supra note 134. 175. S.C. Res. 825, supra note 134. 176. Id. 177. Id. 178. S.C. Res 1695, U.N. Doc S/RES/1695 (July 15, 2006). 179. Id. 180. Under Chapter VI, Article 37, states may “refer their dispute to the Security Council, who will assess whether the dispute endangers the maintenance of international peace and security.” U.N. Charter art. 37.

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well as procurement of such items and technology from that country.181 It also addressed the transfer of financial resources in relation to those programs.182 Finally, the Security Council unanimously adopted Resolution 1718,183 reacting to North Korea’s October 9, 2006 announcement that it had conducted an underground nuclear weapon test.184 The Council condemned the nuclear weapon test and imposed sanctions on North Korea, calling for it to return immediately to multilateral (six-party) talks on the issue.185 The Resolution contained several uncommon provisions that warrant closer inspection from a legal perspective, in particular regarding their conformity with U.N. Charter law and the limits (if any) on the competences of the Security Council.186 Sanctions within Resolution 1718 prevent a range of goods from entering or leaving North Korea and impose an asset freeze and travel ban on persons related to the nuclear-weapon program.187 Through its decision, the Council prohibited the provision of large-scale arms, nuclear technology, and related training to North Korea, as well as luxury goods, calling upon all states to take cooperative action, including thorough inspection of cargo, in accordance with their respective national laws.188 The Council stressed that such inspections should aim to prevent illicit trafficking in nuclear, chemical or biological weapons, as well as their means of delivery and related materials.189 The Resolution also strongly urged the country to return immediately to the sixparty talks without precondition, to work towards expeditious implementation of the September 2005 joint statement, and return to NPT and IAEA safeguards.190 The Resolution’s source of authority and scope of limitations are not explicit for some of these provisions. Since the return to the six-party talks is intended to lead to a comprehensive settlement, some authors argue that dispute settlement is excluded from a binding Chapter VII action and is, instead, dealt with in the possibly less binding Chapter VI. In addition, even if implemented, the measures contained in Resolution 1718 deal with a concrete threat to international security and are aimed at the prevention of an arms race in the region.191

181. 182. 183. 184. 185. 186. 187. 188. 189. 190. 191.

S.C. Res. 1695, U.N. Doc. S/RES/1695 (July 4, 2006). Id. S.C. Res. 1718, U.N. Doc. S/RES/1718 (Oct. 14, 2006). Id. Id. Id. Id. S.C. Res. 1718, supra note 183. Id. Id. Id.

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ii. Responses to Alleged Non-compliance by Iran A second scenario involves not withdrawal, but non-compliance. Noncompliance refers to the failure of a state to comply with obligations under the NPT, and also individual safeguards agreements required by the NPT. This is concluded between states and the IAEA, and in many cases, involves an additional protocol. The western powers on the P-5 also suspect that Iran, which admits to pursuing a full nuclear cycle for peaceful purposes, has the intention of developing nuclear weapons.192 They are concerned about the peace and stability in the Middle East if nuclear capacity is developed by a state outside the NPT framework. Article XII(c) of the IAEA statute, provides the legal basis for reporting to the Security Council and the UN General Assembly.193 Under the IAEA’s instruments, key findings of failures and breaches will oblige the board, triggering them to send the matter referral to the UN Security Council; this provides objective architecture based on breach of obligations.194 We have already seen one model of pursuing non-compliance as grounds for Security Council involvement. As witnessed with Iran in 2006, this included: (1) referral by IAEA based on non-compliance with safeguards agreements grounds, (2) deferral of timing of referral and demands for the transgressor to remedy the noncompliance, and (3) a more active Security Council involvement, reinforces the IAEA’s authority, and ultimately enforcement of corrective actions.195 However, the breach of obligations is only one factor the Security Council must consider in a totality of circumstances, pointing to whether or not there is a threat to security.196 The Council must take care to respect the non-proliferation framework, and balance between not infringing on, “inalienable rights of all the parties to the treaty to develop research, produc-

192. Steven E. Miller, A Nuclear Iran: The Legal Implications of a Preemptive National Security Strategy: Proliferation Gamesmanship: Iran and the Politics of Nuclear Confrontation, 57 SYRACUSE L. REV. 551, 552 (2007). 193. See Edwin J. Nazario, The Poential Role of Arbitration in the Nuclear Non-Proliferation Treaty Regime, 10 AM. REV. INT’L ARB. 139, 146 (1999). 194. Id. For example, in September 2005, the IAEA Board of Governors found that Iran’s history of concealment of nuclear activities exclusively for peaceful purposes has given rise to “absence of confidence,” That Iran’s nuclear program is “exclusively for peaceful purposes, and that “Iran’s policy of concealment has resulted in many breaches of its obligation to comply with its Safeguards Agreement.” See IAEA, Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran, supra note 28. 195. See IAEA, Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran, supra note 28. 196. See Peter J. Smyczek, Regulating the Battlefield of the Future: The Legal Limitations on the Conduct of Psychological Operations (PSYOP) Under Public International Law, 57 A.F. L. Rev. 209, 237 (2005).

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tion and use of nuclear energy for peaceful purposes[,]” prohibiting, “the manufacture or [acquisition of] nuclear weapons or other nuclear explosive devices” by non-nuclear weapons states.197 The difficulty of distinguishing between peaceful and prohibited purposes is subjective determinations of intent, but these must be supported by more facts provided by the IAEA and other available intelligence. The Security Council seeks to maintain its own legitimacy by resolutions, as supplemental to separate processes of multilateral dissuasion diplomacy. In the cases of Iran and North Korea, the objective would be to persuade Iran to co-operate with UN demands to halt uranium enrichment, and for North Korea relinquish its nuclear weapons program and return to the NPT, maintaining consensus statements, formally among the P-5, and ideologically among all member-states.198 Finally, what seems clear is that the Council itself like any other actor in the international system, must exercise self-restraint in the exercise of its powers.199 Just as states must exercise restraint in acceding to multilateral regimes, including the U.N. Charter, the Security Council must similarly respect the object and purpose of multilateral treaty regimes.200 At minimum, it must not frustrate these purposes, and in some cases, where multilateral consensus is particularly strong, it is under duty to bolster these goals.201 III. A “SCRIPT” OF SECURITY COUNCIL RESOLUTIONS: REFERRAL, DEFERRAL, AND ESCALATION There is no fixed course for the Security Council to follow in confronting proliferation threats, but the U.N. Charter and other legal instruments provide

197. IAEA Treaty on the Non-proliferation of Nuclear Weapons, supra note 76. The NPT Article II prohibits the manufacture or acquisition of nuclear weapons or nuclear explosive devices by non-nuclear weapons states, but Article IV directs that: “Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with Articles I and II of this Treaty.” Id. 198. See, e.g., S.C. Res. 825, 1695, & 1718, discussed supra notes 134-191. Diplomatic overtures initiated by the EU-3 as early as June 2003 and by the permanent five members of the UN Security Council plus Germany (P5+1), have failed to persuade Iran to co-operate with UN demands to halt uranium enrichment. Furthermore, discussions within the framework of the Six-Party Talks between the U.S., North Korea, and other regional powers have not convinced the North to relinquish its nuclear weapons program and return to the NPT. Id. 199. See Matthias J. Herdegen, The “Constitutionaliziation” of the UN Secretary System, 27 VAND. J. TRANSNAT’L L. 135, 135 (1994). There is an analogy that can be drawn here of the level of state implementation of Security Council resolutions. It is well documented that despite the plenary power given to the Security Council through international law, and even though complied with the status of these resolutions, is far from paramount under most constitutions and domestic systems. 200. See, e.g., John W. Head, What Has Not Changed Since September 11—The Benefits of Multilateralism, 12 KAN. J.L. & PUB. POL’Y 1, 2 (2002). 201. See generally Grant T. Harris, The Era of Multilateralism Occupation, 24 BERKELEY J. INT’L L. 1 (2006).

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a series of options.202 Ostensibly, the Charter appears to draw a path of escalation, from less to more serious enforcement measures, set out in Chapters VI and VII, ranging from milder to stronger forms of censure, followed by economic sanctions, and ultimately military force.203 This is certainly one way to read the Charter, since Chapter VI comes before Chapter VII, and the description of levels also seems to follow this route.204 The order in the Charter roughly corresponds to the rhetoric of escalation that is implied when the Security Council wishes to communicate that a full range of credible threats are on the table.205 The Security Council can make binding decisions outside Chapter VII invoking its power to take a course of enforcement action that constitutes a legally binding commitment.206 Ironically, though political expediency and the formal structure of the Charter seem to agree on graduated measures, the practice of the Council has never quite reflected this. Chapter VI has not been as much a prelude as an alternative to Chapter VII.207 The Security Council does not always identify under which Chapter of the Charter it is acting, but even where the Charter serves as a less formal operational code for Security Council action, and specific provisions are not evoked, a distinction remains between the settlement of disputes on the one hand, and enforcement on the other, falling under either recommendations or decisions.208 Resolutions in each category tend to share certain characteristics:

202. Vik Kanwar, The Legislator of Last Resort: Security Council’s Emerging Role in WMD Proliferation Crises 23(Working Paper Series) at 14, available at http://ssrn.com/abstract=977114 (last visited Oct. 14, 2008). 203. Id. 204. Id. 205. Id. 206. Id. 207. Vik Kanwar, supra note 202, at 14. 208. Most authorities do not consider resolutions under Chapter VI (Pacific Settlement of Disputes) to be legally binding. The International Court of Justice suggested in the Namibia case that resolutions other than those made under Chapter VII can also be binding. 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. 2 (June 21) (indicating that a range of factors may point to the intention to bind member states of the UN, and that the Chapter under which it is passed is not definitive of the binding nature of a resolution). It is beyond doubt however that those resolutions made outside these two Chapters dealing with the internal governance of the organization (such as the admission of new Member States) are legally binding, where the Charter gives the Security Council power to make them. The binding nature of decisions is not determined by whether they are taken under Chapter VI or Chapter VII, but by whether they were intended to bind all member states. Professor Rosalyn Higgins states that the Charter offers no support for the view that Article 25 applies only to measures under Chapter VII, but rather applies to “all decisions of the Security Council adopted in accordance with the Charter.” Rosalyn Higgins, The Advisory Opinion on Namibia: Which UN Resolutions Are Binding Under Article 25 of the Chapter, 21 INT’L & COMP. L.Q. 270, at 270-73, 275-77, 279-83 (1972); see also Section C: Role

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(A) Recommendations: • Chapter VI—type language • “Soft power” • Dispute settlement model • Non-forcible measures or declarations • Consent model: to be implemented through voluntary means • Facilitating diplomacy • Sovereignty and consent-based solutions • Security Council as a impartial broker • UN as forum for negotiation • Investigation as Research • Recommendation of procedures and terms (B) Decisions: • Chapter VII—type language (citing responsibility for the maintenance of international peace and security) • “Hard power” • Law enforcement model: threats to the peace, breaches of the peace, and acts of aggression • Implemented through forcible and non-forcible coercive means • Ultimatums and unilateral option of cutting off diplomacy • Binding, non-negotiable solutions • Security Council as enforcer of collective security guarding legitimacy of international norms • UN as collective will of world community • Investigation as law enforcement • Determinative decisions on procedures and terms with firm deadlines and consequences209 As shorthand it might seem that Chapter VI recommendations would request and Chapter VII decisions would require states to take certain measures, but sometimes there is a schism between a resolution’s form and function, causing uncertainty in how to comply with the resolution. A recent example of this confusion is Resolution 1718, responding to a nuclear test by North Korea.210 Chapter VII calls the test, “threat to the peace, breach of the

of the Security Council, HUMAN RIGHTS WATCH, http://www.hrw.org/reports98/icc/jitbwb-05.htm (last visited Sept. 7, 2008). In any case Article VI’s primary appeal to legitimacy is not its purported binding character, but rather its link with pre-Charter notions of “consent” and “sovereignty” that most States believe ground their participation in the Charter framework. Chapter VI also provides a default mechanism to keep Chapter VII the exception. See generally U.N. Charter ch. VI, art. 33. 209. Kanwar, supra note 202. 210. See U.N. Res. 1718, supra note 183.

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peace[.]”211 The resolution calls on member states to prevent “illicit trafficking in nuclear, chemical or biological weapons,”212 which was immediately undercut by China’s insistence on the word request over require. Various domestic policy escalations came out to of Resolution 1718.213 Thus, the steps forward were not clear immediately following Resolution 1718.214 The compromises in the resolution have already weakened implementation. In the U.S and other commitments obligations remained the same,215 which is nothing that specifically requires any country to participate in such actions; countries’ actions should be consistent with international law and “in accordance with their national authorities and legislation.”216 The legislative option would flip the script and require that national legislation and action be in accordance with the Resolution. Another option for the Security Council to sidestep such escalation is to attempt to gain

211. U.N. Charter art. 39; Sharon Squassoni & Emma Chanlett-Avery, North Korea’s Nuclear Test: Motivations, Implications, and U.S. Options, CONGRESSIONAL RESEARCH SERV., at 1-6 (2006). That whether a technical success or failure, underground explosion was nuclear, but that the test produced a low yield of less than one kiloton. Id. 212. U.N. Res. 1718, supra note 183. 213. See Carlson, supra 114. 214. Paul Richter, U.S. Pressures China on N. Korean Arms Traffic; Beijing’s Refusal to Check its Neighbor’s Cargo for Weapons Leaves a U.N. Sanctions Loophole that Ambassador Bolton is Working to Close, L.A. TIMES, Oct. 16, 2006, at A5; Maggie Farley, The World; China Reverses its Refusal to Search N. Korean Cargo; U.S. Officials Confirm that Radioactive Debris was Found in Air Samples Taken Near the Test Site, L.A. TIMES, Oct. 17, 2006, at A5; John O’Neil & Norimitsu Onishi, U.S. Confirms Nuclear Claim by North Korea, N.Y. TIMES, Oct. 16, 2006, http://www.nytimes.com/2006/ 10/16/world/asia/17koreacnd.html; Yonhap & Nikkei, China Pulls its Punches on North Korea, ASIA TIMES, Oct. 18, 2006, http://www.atimes.com/atimes/china/HJ18Ad01.html. 215. UN Res. 1718 legitimizes the U.S.-led Proliferation Security Initiative (PSI) a series of bilateral ship-boarding agreements which would facilitate short-notice inspections, but the resolution “does not authorize interception or confiscation of cargo and so serves only to focus, not strengthen, efforts.” Chanlett-Avery & Squassoni, supra note 211, at 16. Wang Guangya said “Inspections yes, but inspections are different from interception and interdiction.” Peter Heinlein, China to Inspect North Korean Ships for Illegal Weapons, NEWS VOA, Oct. 16, 2006, http://www.voanews.com/english/archive/2006-10/2006-1016-voa47.cfm?CFID=52084502&CFTOKEN=74956767. “In the region, only Japan is a member of PSI. South Korea announced on October 10, 2006 that it would take part in PSI activities on a case-by-case basis[.]” Chanlett-Avery & Squassoni, supra note 211. In addition to PSI, the U.S. already has passed similar legislation. “In late September and early October 2006, Congress enacted two pieces of legislation on North Korea.” Id. at 3. “The North Korea Nonproliferation Act of 2006, P.L. 109-353, 120 Stat 2015, adds North Korea to the Iran-Syria Nonproliferation Act, P.L. 106-178, 114 Stat 38; P.L. 109-112, 119 Stat 2366, authorizing sanctions on third party ‘persons’ for weapons-of-mass-destruction-related transfers to and from North Korea.” Chanlett-Avery & Squassoni, supra note 211. “The John Warner National Defense Authorization Act for Fiscal Year 2007, P.L. 109-364, 120 Stat 2083, requires the President to appoint a Policy Coordinator for North Korea within 60 days of enactment . . . and requires the executive branch to report to Congress every 180 days in fiscal years 2007 and 2008 on the status of North Korea’s nuclear and missile programs.” Chanlett-Avery & Squassoni, supra note 211. 216. S.C. Res. 1718, supra note 183.

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consensus on a general legislative resolution, which promotes measures (and imposes obligations) for all states to undertake.217 This will be discussed in a concluding section on alternatives to escalation referred to as lateral strategies. Another equivocation that weakened the resolution issue is that the various imperatives (decides, directs, requires) addresses the specific desired conduct to different actors, including the targeted state (which poses a threat), and other states (who are presumably threatened). Thus, the mandatory force of the resolution can seemingly differ where the recommendations are directed at the targeted states, and the decisions impose requirements on other states, or vice versa.218 Once resolutions were adopted, they were viewed as halfway measures rather than paths to collective enforcement. Short of uniform requirements, the request for cooperation will yield uneven compliance and uneven advantages. As applied to non-proliferation crises, the Security Council has the power of characterization.219 When should non-proliferation crises be characterized as potential or present threats to peace and security, and when should they be considered as a phase in the peaceful settlement of disputes? Where states are developing technical capacity within their present rights, or exercising their rights to leave an international framework, may the Security Council issue demand the suspension of these rights as confidence-building measures in a resolution? If so, can failure to comply characterized as a legal breach? In both cases, at hand is a multi-party dispute that happens to involve many of the permanent members of the Security Council, as well as a link to a hypothetical threat to the community at large. Such scenarios, where negotiating is on the way to non-negotiable requirements, requires that confidence building on the way to legal frameworks. Clarity is important, diplomatic efforts might not follow the same script of escalation; on-proliferation crises demand intensification of pressure without escalation of resolutions from censure to sanctions to force. A. Level One: Referral (and Deferral), Provisional Measures Formally, referral to the Security Council is little more than a petition to place a matter on the Council’s agenda, and is typically viewed as a prelude to all necessary fact-finding, and deliberation before deciding upon an enforcement action such as censure, sanctions, or the use of force.220 In a practical context however, referral is more than a procedural step, but a kind 217. 218. 219. 220.

Kanwar, supra note 202, at 15. S.C. Res. 1718, supra note 183. U.N. Charter art. 39. Kanwar, supra note 202, at 15.

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of enforcement measure in itself.221 Just as censure, sanctions, or force are each preceded by a threat, we have seen attempts by states as well as the IAEA to threaten referral, and expose non-compliant states to international scrutiny and its uncertain consequences.222 Interpreted as a coercive measure, a referral carries a range of implications, the most serious of which is the eventual, but not necessary, possibility of force.223 For this reason, in proliferation crises, the act of referral is sometimes interpreted by a targeted state as a hostile act, rather than a step in dispute resolution. 224 When the IAEA referred Iran’s controversial nuclear program to the Security Council,225 even as the Europeans insisted that “the diplomatic path is not closed.”226 Iran characterized the referral alternatively as the “end of diplomacy,” as an infringement of its legal rights, or more dismissively as a mere threat to “hold meetings.”227 Two years earlier, during its withdrawal crisis, North Korea indicated that any resolution from the Security Council would be an “act of war.”228 221. Id. 222. Id. 223. Id. at 15-16. 224. Associated Press, IAEA Finds Traces of Plutonium in Iran, CHINA DAILY, Nov. 15, 2006, http://www.chinadaily.com.cn/world/2006-11/15/content_733403.htm. The content of a resolution can differ greatly, but the very fact of a resolution can also be given a variable symbolic importance. The symbolic significance is indicated by North Korea’s statement that it would consider any resolution as an act of war. See infra note 225. 225. That these powers did not wait to meet in the forum of Security Council itself signaled both the need for coordinated action and that the powers were giving diplomatic and not legal effect to its decisions. The London meeting was attended by the foreign ministers of the permanent members of the Security Council - Britain, US, France, China and Russia plus the German Foreign Minister (“Group of 5+1”) and the high representative of the European Union, Javier Solana, and a joint statement by the powers urged Iran to suspend all uranium enrichment activities. 226. Associated Press, U.N.: Iran Got Atomic Warhead Papers on Black Market, USA TODAY, Feb. 1, 2006, available at http://www.usatoday.com/news/world/2006-01-30-un-iran_x.htm. Referral without an immediate resolution is a signal that diplomatic channel, and as steps toward more forceful action. Upon Iran’s first referral “[f]or us, the diplomatic path is not closed,” said French Foreign Ministry spokesman Jean-Baptiste Mattei. Id. The process of taking Tehran to the Security Council is “reversible, too, if Iran makes the gestures we’re waiting for.” Id. “The EU foreign policy chief, Javier Solana, insisted that talk of sanctions was premature. ‘We are in a diplomatic channel,’ he said. But U.S. Ambassador John Bolton called the decision to report Iran to the Security Council a ‘major step forward.’ Id. 227. Kanwar, supra note 202, at 16. 228. JEFFREY ROBERTSON, INFORMATION, ANALYSIS, AND ADVICE FOR THE PARLIAMENT, NORTH KOREA NUCLEAR CRISIS—ISSUES AND IMPLICATIONS 5-6, http://www.aph.gov.au/library/pubs/cib/200203/03cib18.pdf. Though North Korea’s nuclear program has been denounced by Security Council in small steps, North Korea declared it considered each step—the U.S. President’s “axis of evil” speech, the passage of Res. 1718, and the imposition and limited enforcement of sanctions—to be an “act of war.” Pyongyang Threatens to Make More Nukes, WASH. TIMES, Mar. 15, 2005, http://washingtontimes.com/news/2005/ mar/15/20050315-120756-4758r/print/. In the area of enforcement of non-proliferation, the possibility of referral to the Security Council is taken as a threat, first as a step in the direction of economic and political

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If targeted states are uncertain about what referral will entail, members of the Security Council could be every bit as perplexed about where it might lead, and in some ways, there is a studied ambiguity at work so that the rhetoric of escalation in itself is meant to enforce compliance.229 In the postCold War period, members of the P-5 are active in setting the Council’s agenda by holding closed-door meetings before important referrals and votes on resolution.230 This coordination accounts for their unprecedented success passing resolutions and avoiding vetoes in this period. However, this record does not account for the number of issues that P-5 consultation has kept out of the forum of the Security Council in the first place.231 In confronting proliferation crises, similar to those with North Korea (consultation effectively kept away from the Security Council) and Iran (which at least made it to the referral stage), the political will of the P-5 must be measured.232 This might well involve delaying a referral to do the patient work of identifying facts that meet a threshold for referral, at which point the Security Council’s peace and security competence might apply. A threat of referral may be delayed to facilitate diplomatic efforts.233 In practice, and even when a referral is made, it may be a “referral with a deferral” to gain more leverage in negotiations.234 Examples include the EU-3’s “2004 Paris Agreement calling for greater Iranian transparency,” and the IAEA’s February 2006 referral of Iran to the Security Council, which included a one-month deferral in an attempt to gain cooperation from Iran and halt the escalation implied by the Security Council becoming seized of the matter.235 For referral

sanctions, and possibly military force. Resolution 1718 clearly states that measures must be taken under its Article 41, which specifically does not authorize the use of armed force. S.C. Res. 1718, supra note 183, ¶¶ 3, 6. North Korea’s UN ambassador Pak Gil Yon Pak “warned that if the US continued to ‘increase pressure’ on North Korea, his government would consider it a declaration of war and take countermeasures.” Peter Symonds, US Pushes Through UN Resolution Against North Korea, WORLD SOCIALIST WEB SITE, Oct. 16, 2006, http://www.wsws.org/articles/2006/oct2006/korea-o16.shtml. “PSI tried to interdict and board a vessel that refused to stop. In this situation such use of force could be interpreted as an act of war.” Mark J. Valencia, Maritime Interdiction of North Korean WMD Trade: Who Will Do What?, POLICY FORUM ONLINE, Nov. 3, 2006, http://www.nautilus.org/fora/security/0698Valencia.html. 229. Kanwar, supra note 202, at 16. 230. Id. 231. Id. 232. Id. 233. Steven C. Welsh, IAEA on Iran: Recent and Pending Action and Legal Parameters, 1, 8, CTR. FOR DEF. INFORMATION, Feb. 2, 2006, http://www.cdi.org/news/law/iran-iaea-020206.cfm. 234. Id. An open timetable, i.e. “referral with a deferral”, has certain merits. In diplomacy, there will be stalling tactics on both sides, and for European powers, delays in referral can be used to strengthen the factual record, and to discover ongoing concealment and deception. In both cases, deferral of some sort is a rational step. Id. With North Korea, the Security Council’s relative inaction (by default or design) preserved diplomatic channels. Id. 235. Id.

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to be meaningful, both a political and legal threshold must be met.236 First, there must be political will to refer a matter to the Council, and secondly, there must be a general sense that the matter falls within the Council’s competence. 237 As we see in the referral of Iran to the Security Council, in situations of non-compliance there are at least two legal bases for referral to the Security Council: the UN Charter and the IAEA Statute.238 Under Chapter VI, Article 37, states may, refer their dispute to the Security Council, who will assess whether the dispute “endanger[s] the maintenance of international peace and security[.]”239 In terms of the IAEA’s mandate, in the context of the NPT, referral by the IAEA is an advanced stage of its mandate.240 Statute Article XII.C, which directs that as a matter of course safeguards noncompliance is to be reported to the (when appropriate) Security Council as well as the (annually) UN General Assembly.241 Key findings triggering sending the matter to the Council involve breaches of its obligation to comply with the provisions of its Safeguards

236. Welsh, supra note 233, at 1, 8. 237. Kanwar, supra note 202, at 16. 238. Id. The IAEA Board of Governors “on Sept. 24, 2005, adopted findings of Iranian safeguards noncompliance, as well as the existence of questions impacting international peace and security. Each finding triggers [UN Security Council] referral under the Statute of the IAEA. The board resolution instead, while acknowledging such referral was required, left open the issue of timing.” Welsh, supra note 233. 239. U.N. Charter ch. VI, art. 37, para. 1-2. Chapter VI governs the pacific settlement of disputes. U.N. Charter ch. VI. Under Chapter VI Article 34, “[t]he Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.” U.N. Charter art. 34. “Any Member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34, to the attention of the Security Council or of the General Assembly.” Id. at art. 35, para. 1. “A state which is not a Member of the United Nations may bring to the attention of the Security Council or of the General Assembly any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations of pacific settlement provided in the present Charter.” Id. at art. 35, para. 2. “The proceedings of the General Assembly in respect of matters brought to its attention under this Article will be subject to the provisions of Articles 11 and 12.” U.N. Charter art. 35, para. 3. “The Security Council may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature, recommend appropriate procedures or methods of adjustment.” Id. at art. 36, para. 1. “The Security Council should take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties.” Id. at art. 36, para. 2. “In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court.” U.N. Charter art. 36, para.3. 240. Kanwar, supra note 202. 241. Welsh, supra note 233. The meaning of “referral” and “reporting” is blurred however; while the former connotes pushing the issue up one level; and the latter seems softer and suited to diplomatic solutions and confidence-building measures. Kanwar, supra note 202.

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Agreement, but also a general sense that the “peace and security” questions are at stake that exceed the competence of the IAEA.242 As such, there are two independent justifications possible for Security Council referral, the first based on international security concerns and the second based on safeguards noncompliance.243 In 2005, the U.S. and the EU-3 took a hybrid approach by agreeing with Russia and China that the appropriate trigger for referral of Iran to the Security Council would be the resumption of uranium enrichment,244 but also channeling actual referral through the IAEA referral procedure.245 This is probably because of the IAEA’s reputation as a neutral institution, with a more heterogeneous membership and more representative procedures than the Council itself (no veto and a majority, secured by a series of bi-lateral negotiations).246 These include factual findings of safeguards noncompliance,247 and particularly any questions that arise within the Security Council’s broader mandate.248 In this case the IAEA cited both non-compliance with the safeguards framework and also declared that it is not in a position to determine whether Iran’s nuclear program is for civilian purposes, a question which falls under the Security Council’s competence.249 Both are sufficient in themselves, even if the other justification is missing. An IAEA resolution is not a necessary requirement for the Council to take up the issue, and an IAEA resolution does not automatically put the issue on the Security Council’s agenda. There have been IAEA referrals in the past where the Council declined taking up the question.250 “It still requires a deliberate

242. Statute of the IAEA, supra note 28, art. XII, sec. C. The IAEA must notify the Security Council, according to article III.B.4 of the IAEA statute, “if in connection with the activities of the Agency there should arise questions that are within the competence of the Security Council[.]” Id. In addition, under article XII.C of the statute, “[t]he Board shall report the non-compliance to all members and to the Security Council and General Assembly of the United Nations.” Id. art. XII, § C. “Submit reports on its activities annually to the General Assembly of the United Nations and, when appropriate, to the Security Council: if in connection with the activities of the Agency there should arise questions that are within the competence of the Security Council, the Agency shall notify the Security Council, as the organ bearing the main responsibility for the maintenance of international peace and security, and may also take the measures open to it under this Statute, including those provided in paragraph C of Article XII[.]” Id. at art. III(B)(4). 243. Kanwar, supra note 202, at 16-17. 244. Mark Leonard, Can EU Diplomacy Stop Iran’s Nuclear Programme?, CTR FOR EUR REFORM at 5-7 (2005), http://www.cer.org.uk/pdf/wp645_dip_iran_nuclear.pdf. 245. Kanwar, supra note 202. 246. Id. 247. See IAEA, Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran, supra note 28. 248. Kanwar, supra note 202. 249. Id. 250. For example, “[t]he IAEA Board of Governors declared Iraq in violation of its safeguards agreement at a special session on 18 July 1991.” Weapons of Mass Destruction, Nuclear Capabilities of Iraq, available at http://www.globalsecurity.org/wmd/library/news/iraq/un/iraqintro.html (last visited Oct.

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decision by the Council.”251 However, in this case, the negotiations by the P-5 guaranteed its acceptance onto the Security Council agenda in advance.252 The involvement of the IAEA Board of Governors applies more multilateral pressure even as the de facto engineers of the referral—the U.S., the U.K. and France—will now press the issue in the Council.253 Although the IAEA discussions are already guided by legal considerations, interpreting the letter of the NPT, referral to the Security Council is meant to mark more fully the transubstantiation of mere politics or expediency of diplomacy into an enforceable legal framework.254 Yet from a practical standpoint, referral to the Security Council simply plays a role in structuring the progression of further diplomacy and information gathering (both the “facts on the ground” and scientific, technical and legal briefings associated with nuclear technology).255 Consideration of a matter and provisional measures to determination and taking a position is also a time for formulating temporary measures that would stabilize the situation, such as providing a window of opportunity for compliance (probably including an expanded mandate for inspections and a new deadline for compliance) before censure and further enforcement actions.256 These diverse options provided or implied in the U.N. Charter can be used by default, as a stalling tactic for diplomacy

14, 2008). “In accordance with its Statute, the IAEA transmitted its conclusions to the United Nations Security Council.” Id. A month later, the Council adopted Resolution 707 (1991), demanding that Iraq halt all nuclear activity, provide full disclosure of its weapons programs, and provide UNSCOM and IAEA inspectors access to all sites. S.C. Res. 707, U.N. Doc. S/RES/707 (Aug. 15, 1991). In April 1993, the Board adopted a resolution concluding that North Korea was in non-compliance with its safeguards agreement and referred it to the Council. Subsequently, the Council passed Resolution 825 (1993) urging North Korea to reconsider its announcement to withdraw from the NPT and abide by its international obligations. See S.C. Res. 825, supra note 134. In 2003, facing a new crisis whereby North Korea refused to comply with its safeguards agreement, the IAEA Board decided to report once again to the Council. Kanwar, supra note 202. However, the Council, after extensive discussion took no action, leaving the issue to be pursued through diplomacy outside the Council. Id. “In March 2004, the Board passed a resolution welcoming the Libyan decision to eliminate all materials leading to the production of nuclear weapons and reported the matter to the Council ‘for information purposes only.’” The Council took note of this resolution in a presidential statement (S/PRST/2004/10).” SECURITY COUNCIL REPORT, February 2006, Iran, available at http://www.securitycouncilreport.org/site/pp.aspx?c=glKWLeMTIsG&b=1387817& printmode=1 (last visited Oct. 14, 2008). 251. SECURITY COUNCIL REPORT, Feb. 2006, Iran, available at http://www.securitycouncilreport. org/site/pp.aspx?c=glKWLeMTIsG&b=1387817&printmode=1 htm. (last visited Oct. 14, 2008). 252. Kanwar, supra note 202, at 18. 253. Id. 254. Id. 255. Id. 256. Id.

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or more favorable conditions, or they can be used more decisively and instrumentally.257 B. Level Two: Promotion, Declarations and Censure A second stage, both in time and gravity, usually involves the move from consideration of a matter and provisional measures taken only to stabilize a situation to proper resolutions based on debates and determinations.258 These resolutions will probably take the form of (1) statements promoting negotiation, (2) declarations of concern and understanding of legal rights, or finally (3) a censure of non-compliance. Since censure is an ambiguous result, unlikely to achieve anything beyond an assertion of Security Council anonymity, it is worth attempting promotion of arbitration or diplomacy under Article 33 as another stopgap on the way to censure.259 These could include facilitation of negotiations on specified issues encouraging resumed negotiations between a state and the IAEA, and providing general support for the IAEA by tracking progress, setting a timetable, and requesting regular reports.260 Related to this promotion function is the power to label the acts of states as “legal or illegal,” and declare whether they are in conformity with international obligations.261 The Security Council’s “utterance of legal principles and findings,” has been referred to as its “declarative function.”262 Examples of declaration can range from expressions of concern in the forms of a presidential statement to declarations of the illegality of activities and requesting compliance.263 Declarations of legality actually constitute “legality” in a political rather than a legal sense because they are not being enforced through a Chapter VII binding resolution, but a Chapter VI resolution.264 Examples of this function in practice include: power to declare an “illegal regime,”265 declaring an “illegal occupation,”266 imposing liability for

257. Vik Kanwar, supra note 202. 258. Id. 259. U.N. Charter ch. VI, Article 33. “The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.” Id. at para. 1. “The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.” Id. at para. 2. 260. Kanwar, supra note 202, at 18-19. 261. Id. 262. ED. DAVID P. MALONE,, THE UN SECURITY COUNCIL: FROM THE COLD WAR TO THE 21ST CENTURY 593, (Lynne Rienner Publishers) (2004). 263. Kanwar, supra note 202, at 19. 264. Id. 265. S.C. Res. 216, U.N. Doc. S/RES/216 (Nov. 12, 1965) (A resolution declaring independent

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damages caused by an “illegal invasion,”267 and declaring elections “free and fair.”268 The Security Council has also defined legality in terms of the violation of particular obligations undertaken by states, such as the use of chemical weapons in the Iran-Iraq War.269 One situation where a declaration of legality or illegality might not attend to the ultimate issue is one where a targeted state is acting in conformity with its formal obligations, but is nonetheless causing concerns for peace and security. In this case, a declaration would recommend a moratorium on the exercise of rights until appropriate cooperation has restored the confidence of the international community.270 The final step in this phase of escalation is censure: a statement condemning non-compliance with international obligations, requesting cooperation, and urging the cessation of certain activities.271 Resolutions that order compliance or censure instances of non-compliance might buy time where more coercive actions can be too costly, or where consensus has not been reached on pursuing sanctions or military force. In recent years, the IAEA has indicated Iraq, North Korea, Libya, and Romania as candidates for censure, based on non-compliance alone, but every step towards censure has been controversial.272 Whereas the Chinese blocked even censure in the case of North Korea, with Iran it seems the only likely outcome.273 For Security Council members diplomatically and economically engaged with the targeted state, censure is an attractive alternative to Chapter VII actions, because it can be secured by consensus rather than requiring a vote on the record.274 However, if censure is the end result of Security Council involvement, it is likely that little has been gained but perhaps some halfhearted wrist slapping or bad publicity.275 Normative de-legitimation of a

Rhodesia an “illegal racist minority regime.”). 266. S.C. Res. 276, U.N. Doc. S/RES/ 276 (Jan. 30, 1970) (A resolution declaring South Africa’s occupation of Namibia as illegal.). 267. S.C. Res. 687, U.N. Doc. S/RES/687 (Apr. 3, 1991) (A resolution declaring Iraq’s liability under international law for any damage to any party as a result of its invasion of Kuwait.). 268. S.C. Res. 825, supra note 134 (A resolution endorsing the findings of a “free and fair” election in Cambodia, by Secretary-general’s special representative.). 269. S.C. Res. 598, U.N. Doc. S/RES/598 (July 20, 1987) (A resolution declaring the use of chemical weapons in the Iran-Iraq War as “contrary to obligations under the 1925 Geneva Conventions.). The last example, from Resolution 598 (1987) is significant because it interprets legality under Geneva Conventions generally (much of which has crossed the threshold to become custom), but a particular (optional) protocol undertaken by states syntax. Id. This is analogous in some ways to interpreting legality under the NPT, and the withdrawal clause. 270. Kanwar, supra note 202, at 19. 271. Id. 272. Id. 273. Id. 274. Id. 275. Vik Kanwar, supra note 202, at 19.

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regime is rarely effective in applying continual pressure unless it damages domestic popularity or does tangible damage to diplomatic or economic relations.276 In short, if dissuasion is a goal, censure must translate into further action. This result is more easily achieved with the application of mandatory measures under Article VII instead of a recommendation.277 Even if is a terminal action for the Council, there must be some assurance of peace and security before the Council leaves behind its responsibility, whether this means alternative channels of diplomacy, a stable deterrence regime, effective voluntary sanctions, or other forms of remediation such as those provided in the IAEA Statute.278 C. Level Three: Economic Sanctions If censure, inspections, and related provisional measures under Chapter VI are not successful in dissuading suspected proliferation activities, the next step is to pursue economic sanctions.279 The move to Chapter VII is perhaps the least trivial of enforcement issues. Chapter VII empowers the Security Council with the “force of law;” decisions in accordance with this Chapter are mandatory and binding on Members of the United Nations, who must take measures that give effect to its decisions.280 If after Chapter VI measures fail to remedy noncompliance or to secure peace and security, the Council will likely consider punitive measures, beginning with non-forcible measures.281 Article 41 governs the Security Council’s power to decide on non-forcible measures, economic sanctions and embargoes, and severance of diplomatic relations.282 Though measures contained in Chapter VII, Article 41 fall short of the use of force—they explicitly exclude naval blockades and other forms of military enforcement which must be pursued under Article 42.283 These are undoubtedly coercive measures, and a clear departure from Article VI.284 The difference between a mandatory embargo under Chapter

276. Id. 277. Id. 278. Id. 279. Id. 280. U.N. Charter ch. VII; see also Kanwar, supra note 202. 281. Kanwar, supra note 202. 282. U.N. Charter ch. VII, art. 41 (“The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.”). 283. Id. 284. Iran would likely treat sanctions as a hostile act, just as North Korea’s ambassador to the United Nations suggests, “any kind of sanctions to be taken by the Security Council or anywhere we will consider it a declaration of war against the DPRK. “Andrea Koppel & Elise Labott, North Korea Warns Against “Act

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VII and a mere recommendation under Chapter VI can be crucial both for perceptions of legality and overall efficacy of a resolution.285 A possible model for this is Security Council Resolution 418 declaring arms trade with South Africa (but not apartheid per se) a “threat to peace” under Article 39 and making the arms embargo mandatory in 1977.286 A counter-example might be Resolution 217 (1965) directing states not to recognize the “illegal authority” of Rhodesia in diplomatic or other relations.287 Because it was not passed under Chapter VII, the Rhodesia Resolution proved to be a relatively toothless “recommendation”; three years later, it had to be followed up with a resolution under Article 41 adding mandatory boycotts.288 The use of Chapter VII sanctions multiplied during the 1990s, including innovations such as the creation of international tribunals, but until the current decade, it had never been applied to a non-proliferation crisis.289 From a practical standpoint, since the permanent members will typically communicate before bringing an important resolution to a vote, a resolution imposing

of war,” CNN.COM, Jan. 22, 2003, http://www.cnn.com/2003/WORLD/asiapcf/east/01/22/koreas.un/ index.html (last visited Sept. 7, 2009). “‘They have said they would take such punitive action by the Security Council as a declaration of war,’” said Maurice Strong, U.N. special adviser on North Korea, following a visit to Pyongyang. Id. “The sanctions were imposed by former President Bill Clinton in 1995” and renewed by Bush in 2001. BBC News, US Renews Iran Sanctions, Mar. 14, 2001, http://news.bbc.co.uk/1/hi/world/middle_east/1219357.stm (last visited Oct. 14, 2008). “The sanctions, imposed under the International Emergency Economic Powers Act, mainly affect US petroleum companies, barring them from investing in Iran’s energy sector.” Id. 285. Kanwar, supra note 202, at 20. 286. S.C. Res. 421, U.N. Doc. S/RES/421 (Dec. 9, 1977). “The Council acted by adopting by consensus resolution 591 (1986), the text of which had been recommended by its Committee on sanctions against South Africa, formally known as the ‘Security Council Committee established by resolution 421 (1977) concerning the question of South Africa.’” UN CHRONICLE, Strict Implementation of 1977 Arms Embargo Against South Africa Asked by Council—United Nations Security Council, available at http://findarticles.com/p/articles/mi_m1309/is_/ai_4776463 (last visited Oct. 14, 2008); see S.C. Res. 591, U.N. Doc. S/RES/591 (Nov. 28, 1986); S.C. Res. 421, U.N. Doc. S/RES/421 (Dec. 9, 1977); S.C. Res. 418, U.N. Doc. S/RES/418 (Nov. 4, 1977). Under resolution 421, “the Council established a committee consisting of all Council members to study ways by which that embargo could be made more effective and to make recommendations to the Council.” UN CHRONICLE, supra. “In resolution 591, States were called on to prohibit the export of spare parts for embargoed aircraft and other military equipment belonging to South Africa and any official involvement in the maintenance and service of such equipment.” Id. 287. S.C. Res. 252, U.N. Doc. S/RES/252 (May 21, 1968). 288. Kanwar, supra note 202; see S.C. Res. 252, supra note 287. 289. In the 1990s, Article 41 sanctions were imposed on Iraq, S.C. Res. 661, ¶¶ 3-5, U.N. Doc. S/RES/661 (Aug. 6, 1990), Yugoslavia, S.C. Res. 713, ¶ 6, U.N. Doc. S/RES/713 (Sept. 25, 1991), Somalia, S.C. Res. 733, ¶ 5, U.N. Doc. S/RES/733 (Jan. 23, 1992), and a high point in number of 1993, when sanctions were added against Libya, Liberia, Haiti, and Angola. The most dramatic improvisation of Article 41 has been the creation of ICTY in May 25, 1993, which is in charge of prosecuting and halting violations.

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sanctions will not be introduced if it is likely to be vetoed.290 In confronting proliferation crises, similar to those with North Korea (where consultation effectively blocked a Security Council resolution) and Iran (which at least made it to the referral stage), the political will of the P-5 members must be measured.291 Threats of sanctions have a relatively low cost, unless they provoke retaliation, but the actual imposition can be costly to all concerned.292 The Security Council, once it has accepted a referral has a responsibility and determined a threat to “make recommendations, or decide what measures shall be taken . . . to maintain or restore international peace and security.”293 Chapter VII, Article 39, empowers the Security Council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression” and also gives it the power to determine the difference between a mandatory embargo under Chapter VII and a mere recommendation under Chapter VI which can be crucial for perceptions of legality and overall efficacy of a resolution.294 Again, the ongoing case of Iran gives us a range of considerations in proliferation crises. In the event good faith negotiations fail and confidencebuilding measures are not met,295 a threat is determined; the temptation to rule

290. “Iranians are not used to bullying and will not also surrender to bullying,” state-run Islamic Republic News Agency quoted Iranian President Mahmoud Ahmadinejad as saying. “The Iranian nation has just one slogan: ‘Nuclear energy is the Iranian nation’s inalienable right.’” U.N. Tackles Iran Nuclear Crisis, CNN.COM, Mar. 9, 2006, http://edition.cnn.com/2006/WORLD/meast/03/09/iran.nuclear/index.html (last visited Sept. 9, 2008). “Certain powers think that by holding meetings they can force the Iranian nation to capitulate. But the era of bullying has passed and real power is in the hands of nations.” Id. 291. Kanwar, supra note 202, at 21. 292. Id. 293. U.N. Charter art. 39. 294. Id.; U.N. Charter Chapter VI. 295. Paris framework and a Russian plan that would enable Iran to carry out its wish to enrich uranium, but to do so on Russian territory have been rejected by Tehran. Kanwar, supra note 202. Russia, which has been building a nuclear power station for Iran at Bushehr, has made an offer to co-operate with the Iranians in producing the uranium they require enriched to the level required for energy-generation purposes (as opposed to weapons quality) but on Russian soil. NTI, Nuclear Chronology 2005, http://www.nti.org/e_research/profiles/Iran/1825_4968.html (last visited Oct. 15, 2008). Optimistically the inevitability of this scenario can be resisted with creative application of provisional measures and diplomacy. For example, Russia could choose this moment to renew the offer of agreement for offsite (reprocessing) uranium enrichment that would ensure Iran’s nuclear capacity for civilian purposes, and the IAEA could commend Iran’s compliance with its safeguard agreement, and declare its confidence in Iran’s principled stand on developing indigenous energy sources without destabilizing the region. So far, this kind of offer has not succeeded. However, this might be more effective at a time when (1) the threat of general sanctions is imminent; (2) Russia is in the position to veto any further resolutions on sanctions, and (3) it seems that Russia is perfectly willing to go along with further resolutions if not satisfied with Iran’s safeguards. Any sanctions would be mainly economic. Their effect is questionable and there are several stages to be gone through before they could be imposed. What if sanctions do not work? Sooner or later, military action might then get onto the agenda.

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out Article VII sanctions in advance of the facts should be resisted. So far, pessimism about sanctions unlike cynicism about censure or apprehension about military force—rests largely on narrow prudential arguments (e.g., whether the price of oil is $30 or $300 a barrel)296 rather than principled arguments, or even the likelihood of success. This does not change the legal basis in non-proliferation, or peace and security for imposing sanctions; it only weakens the will to do so. However, rather than ruling out sanctions, Security Council members might negotiate their scope to maximize effectiveness. It is especially important for P-5 members to separate out the interests that make it desirable to impose sanctions in an individual capacity, from the findings concerning peace and security that would make it an option for the international community as a whole. In both cases, however, the state or body considering sanctions should communicate an appropriate basis that would properly trigger or increase sanctions, negotiate the possible scope of the sanctions being proposed, and assess their effectiveness against their costs. If any veto-wielding member remains hostile to this option, the alternative would be for sanctions to be pursued by regional or interest-based blocs of states without the imprimatur of Security Council authorization. One alternative to abandoning the Article VII framework altogether, might be to combine 39 and 41, making mandatory a limited boycott while recommending a much more sweeping set of voluntary sanctions. The core sanctions from the point of view of the peace and security mandate are not those that would bleed the Iranian regime dry (gas and oil revenue) and send shockwaves into the global energy market, but those aimed at a principled incapacitation of the threat. These would begin with targeted sanctions against dual-use technologies (analogous to pre-emptive “surgical strikes” on nuclear facilities).297 The Security Council is one among many players on the multilateral scene, and its competence in matters of peace and security does not pre-empt other smart sanction regimes. While the U.S. currently has sanctions on dualuse materials in place, the EU does not. This may be the priority of where to start rather than comprehensive sanctions or forcible measures. From here, other political and diplomatic privileges can be revoked to signal isolation from benefits of multilateral engagement, and its benefits.298 Not all of these need even be enforced through a Security Council Resolution. For example,

296. Kanwar, supra note 202. To be sure, all states, including permanent members of Security Council, are constrained by prudential interests such as the domestic effect of trade sanctions. See, e.g., Josh Cohen & Charles F. Sabel, Global Democracy?, 37 N.Y.U. J. INT’L L. & POL. 763 (2005). These are the kinds of interests that may be calculated in individual sanctions, and diplomacy, but not properly a subject for the Security Council to consider in invoking its “peace and security” powers. 297. The ‘break-out’ capability used to enrich uranium for fuel can also be used to enrich it further for a nuclear weapon. 298. Kanwar, supra note 202.

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“Iran is also currently applying for membership of the World Trade Organization (“WTO”), so this application [c]ould be blocked.”299 There are also enforcement provisions particular to Article XIX of the IAEA Statute that are aimed at isolating non-complying states from the benefits of this multilateral regime.300 The Board may impose one or both of the following sanctions: “[D]irect curtailment or suspension of assistance being provided by the Agency or by a member, and call for the return of materials and equipment made available to the recipient member or group of members.”301 This would prohibit Russia from providing nuclear technology and compel the return of relevant materials and equipment, though it would leave untouched material centrifuges and other materials provided by Pakistan outside the NPT framework.302 Secondly, the IAEA could “suspend any non-complying member from the exercise of the privileges and rights of membership.”303 The most sweeping of these are potentially any “rights” enumerated in the NPT to permissible uses of nuclear energy.304 However, the particular value of Article VII sanctions, once authorized, is their universal and uniform character, and consensus on tough sanctions might be essential to the Security Council’s power to enforce non-proliferation.305 D. Level Four: The Use of Force 1. Self-Defense and Collective Security within the Charter Once these other measures have been exhausted, if creative lateral possibilities and diplomatic channels are closed, and sanctions have proven ineffective or inappropriate, or if the suspected proliferant takes hostile action, then the Council may contemplate authorizing the use of force conferred under Chapter VII.306 Chapter VII, Article 39, empowers the Security Council to “determine the existence of any threat to the peace, breach of the peace, or act

299. Paul Reynolds, The Long Road to Iran Sanctions, BBC NEWS, Jan. 12, 2006, http://news.bbc.co.uk/1/hi/world/middle_east/4607492.stm. 300. Kanwar, supra note 202. 301. ERIC A. CRODDY & JAMES J. WIRTZ, WEAPONS OF MASS DESTRUCTION, AN ENCYCLOPEDIA OF WORLDWIDE POLICY, TECHNOLOGY, AND HISTORY, 448, (ABC-CLIO, Inc.) (2005); IAEA Stat. art. XII C, available at http://www.iaea.org/About/statute_text.html#A1.12. 302. Kanwar, supra note 202. 303. CRODDY & WIRTZ, supra note 301 at 448; IAEA Stat. art. XII, § C, available at http://www.iaea.org/About/statute_text.htm#A1.12 (on file with Statute of the IAEA); Steven C. Welsh, Iran’s Nuclear Program and International Legal Instruments: IAEA Statute, CTR. FOR DEF. INFORMATION, Nov. 24, 2004, http://www.cdi.org/news/law/iaea-statute.cfm; Welsh, supra note 233. 304. Kanwar, supra note 202. 305. Id. 306. Id.

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of aggression” and also gives it the power to “make recommendations, or decide what measures shall be taken . . . to maintain or restore international peace and security.”307 The powers to determine a threat and decide the measures to be taken are—taken together—as close to the traditional sovereign functions of protection and enforcement as exist in an international organization.308 Therefore, in the UN collective security system, the Security Council has a primary role in managing definitions that are central to matters that would have traditionally been considered the protected prerogatives of state sovereignty and internal security.309 The Charter also attempts to both permit and tame the traditional area of self-defense, but only provisionally and in anticipation of Council authorization.310 In this narrow instance only, to act independently of the Security Council is not to act outside the Charter. If the Security Council does succeed in authorizing the use of force, then one cost might be the possibility of diplomatic engagement, a soft approach— to resolve issues through diplomacy.311 However, Security Council authorization of the use of force against a suspected proliferant is not easy either from a political or doctrinal point of view, and as threat of force materializes into the use of force, support for these actions decreases.312 The UN’s collective security system has never successfully responded with Chapter VII in a proliferation crisis. The Security Council is unlikely to be able to gather the collective will to authorize preventative strikes to slow progress.313 Low intensity actions such as naval blockades and other forms of military enforcement, which must be pursued under Article 42.314 Enforcement of

307. U.N. Charter art. 39. 308. Kanwar, supra note 202. 309. Id. 310. Id. 311. Id. Even here, it is worth contemplating whether to continue inducement “carrots.” These would be cut off in situations of war, and would probably be prohibited in sanctions. Engagement can be divisive, and also mismanaged (Iraq Oil for food scandal offers one kind of warning). Id. 312. Kanwar, supra note 202; Robin Oakley, Q&A: What Next in Iran Crisis?, CNN.COM, Jan. 17, 2006, http://www.cnn.com/2006/WORLD/meast/01/17/iran.qanda/index.html. 313. Kanwar, supra note 202. 314. U.N. Charter art. 42 (“Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”). There is a great deal of discretion in this section, and the threat of force is implied where the Security Council may “duly take account of failure to comply with such provisional measures.” U.N. Charter art. 40. Article 42 allows the Security Council to move beyond or bypass Article 41 where it is deemed insufficient and authorizes the Security Council to take forcible measures, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. U.N. Charter art. 42. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations. Id.

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boycott measures against third states can be pursued under Article 41 or 42.315 In addition, an often overlooked section pertaining to these issues is Chapter VII Article 40 which empowers the Security Council to take an undefined range of provisional measures prevention and compulsion in the face of a threat to peace and international security.316 2. Self-Defense and Collective Enforcement Exceeding the Charter Though the theory of the U.N. Charter channels the use of force through the exclusive authorization of the Security Council, state practice has developed more vigorously around the self-defense exception by individual states or states acting collectively independently from an explicit authorization by the Security Council.317 The recent situations that have been vigorously debated in this regard are the NATO intervention in Kosovo and the U.S. invasion of Iraq.318 In principle, and by the Charter’s own terms, to respond to an armed attack in self-defense (or as in Kosovo “collective self-defense”) and act temporarily without Security Council approval is not to act outside the Charter, and NATO’s actions have been approved by the Council ex post facto.319 However, the Iraq situation poses a more ambiguous precedent for the Council.320 Either the U.S. failed to respect the factual determinations of the Council and acted unilaterally in defiance of the Council, or it acted properly in enforcing the Council’s resolutions, even if the factual argument (involving WMDs) was incorrect.321 What does this mean for the Security Council’s future ability to enforce non-proliferation norms? Despite the robust legal framework provided by the Charter and treaty regimes, the Security Council still acts in accordance with concrete situations and imperfect data, and its relationship to its own past actions is ambiguous.322 Even more centrally, the manner in which the Iran crisis has arisen in the Council today is like looking in a cracked mirror of a situation more than twenty-five years ago.323 Security Council Resolution 487 of 19 June 1981 concerned the only precedent for a successful preventive strike against a fledgling nuclear program.324 At this time, however, to support the NPT and 315. 316. 317. 318. 319. 320. 321. 322. 323. 324.

U.N. Charter arts. 41, 42; Kanwar, supra note 202. U.N. Charter art. 40. Kanwar, supra note 202, at 23. Id. Id. Id. Id. at 23-24. Kanwar, supra note 202. Id. Id.

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IAEA framework, the Security Council condemned the destruction of the nuclear reactor and defended the aspiring proliferant’s “sovereign right” to pursue a peaceful nuclear program in conformity with the NPT.325 This was the Council’s resolution condemning Israel’s unilateral strikes in 1981 targeting of the Osirak reactor in Iraq.326 It appears in retrospect that the Security Council and IAEA’s threat assessment and reading of Iraq’s intentions was factually incorrect, although their doctrinal support against unilateral strikes may still hold.327 Today, as priorities have shifted, and confidence-measures fall apart, the question of a surgical strike to prevent proliferation appears from time to time once again.328 Yet this time, the question posed in the Resolution is reversed. Under the collective security system, can the Security Council authorize a military strike (or any lesser forcible measure) against a proliferation threat? This possibility is preserved as a legal option, even by the Resolution on Osirak.329 Yet almost nobody expects this to happen. Slightly more likely is a military strike by Israel or the United States.330 Yet the recourse to unilateral surgical strikes is all the more complicated both in fact and at law.331 Leaving aside the risks that Israel would risk destabilizing the region if it acted similarly today in Iran, it is probably not possible to reproduce the earlier military success. It is instructed by the lesson of the Osirak strike that Iranians have dispersed their nuclear sites throughout the country, and likely underground.332 The potential impact of a U.S. unilateral strike following disappointing results at the Security Council would carry the shadow of the more recent Iraq War experience (which again cast doubt on the accuracy of WMD threat assessments).333 These two precedents put the Security Council in an ambiguous position in terms of its own practice and how this would be interpreted in enforcing non-proliferation norms. If the Charter is regarded as a potentially dynamic instrument, it cannot only be so for the Security Council alone, but we must also recognize consistent state practice. If we look at the text and purposes of the Charter

325. Id. 326. Id.; Anthony D’Amato, Israel’s Air Strike Against the Osiraq Reactor: A Retrospective, 10 TEMPLE INT’L & COMP. L. J. 259 (1996). 327. Kanwar, supra note 202, at 24. 328. Id. 329. Id. 330. Id 331. Id. 332. Mondoweiss, Iraq comes home: the war of ideas, Dual Loyalty: Why Did a Neocon Vote in Both Israel and U.S.?, Jan. 16, 2007, http://www.philipweiss.org/mondoweiss/2007/01/dual_loyalty_ wh.html (last visited Oct. 15, 2008). 333. Kanwar, supra note 202, at 24.

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without discarding sixty years of institutional and state practice, the same openness in the text of the Charter that gives the Council such a wide margin of discretion, also gives some dynamic possibility to state practice.334 Thus, the Charter itself may not have contemplated anticipatory self-defense or humanitarian intervention (“the responsibility to protect”); the same way it might not have conceived of the Security Council’s powers as legislative or added non-proliferation to the Security Council’s portfolio.335 For Thomas Franck, while the “literal” text of the U.N. Charter does not allow for anticipatory self-defense, the spirit rather than the letter of the Charter can be followed faithfully in the practice of the U.N.’s principal organs and by members through state practice.336 Franck argues that the Charter has been adapted to allow for a much broader reading of the right of self-defense to encompass anticipatory self-defense or the rescue of a state’s nationals abroad, and for an approach to humanitarian intervention that would treat it as excusable if illegal.337 Though the mainstream legal position on preemptive self-defense has remained the same over the years, state practice is ambiguous: (1) the U.S. used Resolutions as well as a questionable theory of customary law of anticipatory self-defense to justify its military action in Iraq, and (2) Australian, Spanish, and British justification for military action was premised entirely on the enforcement of Security Council Resolutions 678, 687, and 1441.338 Thus, any future Resolution could be bent to the service of a unilateral strike, leading back to a near replay of Osirak, with the Security Council in an uncertain position.339 The best way for the Security Council to take control of these uncertain doctrines and their role in non-proliferation is to draw a line in the sand on which kinds of threats may properly lead to military action under the U.N. system, and what fact-finding will support such an action. Finally, there is the question of how to characterize capability for interdiction of nuclear suppliers. Under the Chapter VII resolutions, UN Security Council Resolutions 1718 (regarding North Korea) and 1737 (regarding Iran) the question remains whether they have legislated (indirectly or directly) what is necessary, which is to bolster the legal capacity of Security Council resolution.

334. Id. 335. Id. 336. THOMAS M FRANCK, RECOURSE TO FORCE: STATE ACTION AGAINST THREATS AND ARMED ATTACKS 6-7, 174 (2002) (quoting St. Paul in II Corinthians 3:6: “The letter killeth, but the spirit giveth life”). 337. Id. 338. Kanwar, supra note 202, at 24. 339. Id.

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Resolution 1718 does provide a legal basis for preventing the supply of nuclear- and missile-related items to North Korea.340 “However, the resolution does not sanction the use of force in order to intercept suspect cargo and no explicit legal basis for interdiction exists in the case of Iran, despite the provisions of Security Council Resolution 1737.”341 Resolutions 1718342 and 1737343 do provide some degree of legality as they call on member states to take the “necessary measures” to prevent the supply or transfer of nuclear and missile related hardware to Iran and North Korea.344 “But, neither resolution offers an explicit legal basis for PSI operations against either country.”345 “Moreover, both resolutions invoke Article 41 of Chapter VII of the U.N. Charter limiting efforts to prevent procurement or proliferation by Iran and North Korea strictly to non-military means. This is likely to impede PSI participants’ efforts to intercept suspect vehicles, aircraft and shipping in the event that force is required to carry out interdiction and inspection.”346 “Moreover, developing effective national and international legal authorities to freeze financial transactions and seize assets, as proposed at the HLPM, would provide legality for interdiction.”347 Although, in the case of North Korea, Security Council Resolution 1718 already obliges UN member states to immediately freeze the financial assets of those involved in the North’s proliferation activities.348 IV. CAN LATERAL STRATEGIES OR LEGISLATIVE RESOLUTIONS BUILD CONFIDENCE IN THE RULE OF LAW? 1. Beyond Deferral and Escalation: Lateral Strategies As this paper has already suggested, the sources of Security Council authority and the measures open to it, should be viewed as subjects not of insecurity, but of confidence-building. Insofar as it can, the Security Council should seek a procedural model based on the rule of law. In the Charter a pattern of escalation graduated levels of enforcement shapes the unwritten script of Security Council practice, but it is only one

340. S.C. Res. 1718, supra note 183, ¶ 8(a)(i)-(iii). 341. Richard Bond, The Proliferation Security Initiative: Targeting Iran and North Korea, BRITISH AMERICAN S ECURITY INFORMATION C OUNCIL , B ASIC P APERS, No. 53, Jan. 2007, http://www.basicint.org/pubs/Papers/BP53.htm. 342. S.C. Res. 1718, supra note 183, ¶ 8(e). 343. S.C. Res. 1737, supra note 26, ¶¶ 3, 4, 6. 344. Kanwar, supra note 202. 345. Richard Bond, supra note 341. 346. Id. 347. Id. 348. S.C. Res. 1737, supra note 26, ¶ 8(d).

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possible reading of the U.N. Charter and Security Council practice.349 However, it would be a failure of imagination to think that these escalating measures provide the Security Council the only effective alternative to inaction. Part of this ramping up of Council resolutions without a clear idea of workable options is due to a failure to give credit to the Charter’s capacity for flexibility, and the repertoire of tools available to improve and expand the relevant legal architecture even while engaging with marginal transgressors and rogue states.350 Escalation also fails to set institutional precedents and strategies that can transcend a particular situation.351 In the legal framework of the Charter, there is nothing that compels automatic progress from one level of enforcement to another.352 Therefore, political will is required throughout the process just to remain in a legal framework. Enforcement in this context does not provide a remedy or permanent solution, but influences an eventual political settlement. Over the past few years, in confronting crises in North Korea and Iran, proponents of Security Council action seemed perplexed and exhausted by their options before they have been tried.353 The pitfalls of censure (as potentially ineffective), sanctions (as potentially counter-productive), and military force (as potentially disastrous) have been addressed more often than concrete proposals for action.354 The weakness of escalation—a unidirectional strategy of censure, sanctions and force (each punctuated with deferral, diplomacy, and threats)—is in its poverty of choices and results.355 Each stage can be foiled by the dangers of failure, inaction, or overreaction. Of Iran, for example, the International Crisis Group says “EU-led diplomacy so far has failed to persuade Iran to forego its fuel cycle ambitions; the UN Security Council seems unlikely to agree on sanctions strong enough to force it to do so;356 and preventive military force is both a dangerous and unproductive option.”357

349. Kanwar, supra note 202. 350. Id. 351. Id. 352. Id. 353. Id. 354. Kanwar, supra note 202. 355. Id. 356. Sanctions can only be effective if they affect Iran’s oil industry, but this puts as much pressure on countries that consume oil as it does on Iran. 357. Iran: Is There a Way Out of the Nuclear Impasse?, INTERNATIONAL CRISIS GROUP REPORT, Feb. 23, 2006, http://www.crisisgroup.org/home/index.cfm?id=3976.

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This pessimism is also evident in proposals for provisional options provided or implied in the U.N. Charter.358 By presuming the chain of options in terms of escalation, every option provided by the Charter appears reactive —as a stalling tactic for diplomacy or more favorable conditions—rather than decisive and instrumental.359 Escalation also fails to set institutional precedents and strategies that can transcend a particular situation. The alternatives to escalation can be called lateral strategies.360 The characteristic of a lateral strategy is to strengthen capacity rather than escalate threats.361 This includes the controversial capacity to pursue “legislative” options that may be general, abstract, and binding on all parties under Chapter VII.362 These strategies can be used as confidence-building measures reassuring a targeted state that the international community is shooting more broadly, and that it is not being singled out or necessarily accused of bad faith. For example, that the Security Council Resolution 1540 was prompted by a specific threat—the discovery of Pakistani scientist A.Q. Khan’s notorious proliferation network—yet it was phrased in broader terms, and took up a directly legislative role by calling upon all Member States to enact national legislation criminalizing the development, acquisition, manufacturing, possession, transport or transfer of nuclear, chemical, and biological weapons and their means of delivery by a non-state actor.363 Though it also recognized that the specific actors in the Khan network were a small part of a more widespread threat, the more systemic problem that was addressed by this resolution was to fill a gap in the existing non-proliferation regime, which did not address WMD acquisition by non-state actors.364 In a similar manner, any future resolutions that contemplates the threats posed by nuclear Iran or North Korea need not be narrowly tailored or confined to these specific crises, but could address a systemic problem.365 These situations may appear sui generis today but they might also anticipate a troubling pattern, which immediate-past U.N. Secretary-General Kofi Annan has called a potential “cascade of proliferation.”366 This kind of proposal goes back to Hans Kelsen’s Law of the United Nations (1951), which links the

358. 359. 360. 361. 362. 363. 364. 365. 366.

Kanwar, supra note 202. Id. Id. at 25. Id. Id. Kanwar, supra note 202, at 25. Id. Id. SECRETARY-GENERAL, REPORT OF THE SECRETARY-GENERAL ON THE FOLLOW-UP TO THE OUTCOME OF THE MILLENNIUM SUMMIT, ¶¶ 12, 111, U.N. Doc. A/59/565 (Dec. 2, 2004), available at http://www.un.org/secureworld/report.pdf.

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Security Council’s powers under Article 26 to make plans for the regulation of armaments, with its power to interpret threats under Article 39.367 The general idea of the Kelsen proposal is for the Security Council to pro-actively formulate concrete plans for the regulation of armaments (which originally connoted either an increase or decrease in armaments, according to security needs but more recently has become tied to disarmament and nonproliferation) under Article 26 and then interpret any non-compliance with these plans as a threat to peace and security under Article 39, which also makes the Article 26 obligation binding.368 Article 26 has never been put to use, there is little or no practice worth speaking of. It would only take a carefully formulated resolution by the Security Council to resurrect this provision and make it useful in the new security environment. The Kelsenian proposal is legalistic in intent, and must be distinguished from the kind of trap-setting escalation that is becoming the script for Iran, draw a “line in the sand” which, if Iran crosses it, would represent a violation of international law, one more definitively and publicly established than, for example, whether Iran is, in fact, currently working on nuclear warheads. Violation of a legally binding Security Council resolution must clarify existing standards and understandings of what constitutes a threat to peace and security, one which is being established through recent resolutions. This seems theoretically sound, but more circuitous than the evolutionary approach taken through recent resolutions, including 1373369 and 1540370 taking up a directly “legislative” role in each case explicitly “acting under Chapter VII.”371 However, even where the Security Council does not identify under which section of the Charter it is acting, there are certain signals in the texts of a resolution that the Security Council is undertaking a law-making function. First, the Council may “call upon” states to take particular actions “in accordance with their national legal authorities and legislation and consistent with international law.”372 Second, the Council will express the intention to “monitor closely” the implementation of the resolution.”373 Third, the Council will state its decision to “remain seized of the matter.”374 In Resolution 1540 and 1373, these steps were accompanied by the creation of

367. 368. 369. 370. 371. 372. 373. 374.

Kanwar, supra note 202. HANS KELSEN, LAW OF THE UNITED NATIONS, 105-06 (1950). S.C. Res. 1373, supra note 161, at 1 S.C. Res. 1540, supra note 34, at 2. Kanwar, supra note 202. S.C. Res. 1540, supra note 34, ¶ 3(c). Id. ¶ 11. Id. ¶ 12.

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subsidiary organs which would monitor States’ progress in meeting these obligations.375 In any proposed resolution creating binding non-proliferation obligations on states, we could expect to see a similarly close level of involvement and an emphasis on capacity-building. In recent writings and statements, examples of generic and binding resolutions have been offered by non-proliferation experts such as the IAEA’s Director-General ElBaradei, Pierre Goldschmidt, former head of the IAEA’s safeguards department, and George Perkovich of the Carnegie Endowment for International Peace.376 Proposals for these legislative resolutions addressed to strengthening the non-proliferation regime have diverged in character. The first is a proposal for a resolution setting a “universal moratorium on any new enrichment and reprocessing facilities[]” wherein Iran cannot claim it is being discriminatorily targeted.377 What is significant about El Baradei’s proposal is that it combines the universality of law-making with the temporariness of a moratorium, or legislation with a sunset clause. El Baradei, as IAEA’s Director-General is probably not even being particularly Machiavellian or instrumentalist about the enactment of such legislation which the Agency would want to apply universally. The end is not tied to the empowerment of Security Council in this area, but to the revitalization of the existing NBC-weapon treaty

375. Kanwar, supra note 202. The Security Council’s Power to create Subsidiary Organs: One development to encourage enforcement of the Resolutions has been the creation of specific subsidiary organs such as those created under 1540 and 1373. See Axel Marschik, The Security Council as World Legislator? Theory, Practice and Consequences of an Expanding World Power, (United Nations - Dept. of Permanent Representative, IILJ Working Paper No. 2005-18), available at http://papers.ssrn.com/ sol3/papers.cfm?abstract_id=871758. Security Council also has established various standing committees and ad hoc bodies. See High Beam Encyclopedia, Structure of the United Nations System, available at http://www.encyclopedia.com/doc/1G2-2586700020.html (last visited Oct. 15, 2008). Article 29 of the Charter empowers the Council to establish ‘such subsidiary organs as it deems necessary for the performance of its functions. U.N. Charter art. 29. Some of these have been given tasks related to one issue and are terminated when the mandate has been fulfilled, others have a long-term existence and are activated when there is work to be done. Kanwar, supra note 202. A subsidiary organ may be one person or a committee or a peace-keeping force or a tribunal. It can be established either by the Security Council or by the President of the Council and/or the Secretary-General pursuant to a decision of the Council; it can conduct its operations at U.N. Headquarters or in the field; it can be given an ad hoc assignment or a continuing responsibility. The only Rule of Procedure governing the appointment of subsidiary organs is Rule 28, which simply states that the Council may appoint a commission or committee or a rapporteur for a specified question. See id. 376. Robert Zarate, The NPT, IAEA Safeguards and Peaceful Nuclear Energy: An “Inalienable Right,” But Precisely to What?, NONPROLIFERATION POLICY EDUCATION CTR, Sept. 2007, available at http://www.npec-web.org/Essays/20070509-Zarate-NPT-IAEA-PeacefulNuclear.pdf (last visited Oct. 15, 2008). 377. Leonard, supra note 244, at 16 (discussing Mohammed El Baradei’s proposal).

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regimes.378 Yet even here the near-term means is clearly and unavoidably located in the current powers of the Security Council.379 Separately, but similarly, Pierre Goldschmidt, former head of the IAEA’s safeguards department, and George Perkovich of the Carnegie Endowment for International Peace have recommended the following proposed resolutions: (1) A resolution establishing, independently of any specific case, U.N. Security Council would automatically grant Chapter VII the IAEA broader authority to conduct more intrusive inspections in cases of safeguards noncompliance (Perkovich). (2) A resolution wherein a state has been found by the IAEA to be in noncompliance with its safeguards agreement, the agency’s verification authority would automatically widen until the state’s declarations are accounted for. (Goldschmidt). (3) A resolution wherein inspectors would be given “immediate access to relevant locations, to individuals at their working place and to original documents where they are normally used or stored.” (Goldschmidt).380 (4) A resolution wherein a noncompliant state would be required “within 60 days to conclude with the IAEA an INFCIRC/66-type safeguards agreement for all nuclear facilities.” This would “block a noncompliant state from withdrawing from the nonproliferation treaty and claiming the right to do whatever it wants with its nuclear material and equipment, as North Korea did and Iran threatens to do.”381 (Goldschmidt). (5) A resolution wherein a noncompliant state would be required to “suspend sensitive nuclear fuel cycle-related activities for 10 years.”382 (Perkovich). While the relative merits of particular proposals can be debated, their common characteristic is that they involve side-stepping the default responses—deferral or escalation—and actively pursuing creative and durable resolutions aimed at developing long term legal and operational capacity, and supporting the non-proliferation framework.383 What is emphasized is strengthening the capacity of the IAEA to engage in a more proactive investigative role with a legal framework to back it up, perhaps with the 378. Kanwar, supra note 202. 379. Id. 380. George Perkovich, Security Council Must Curb Iran, INT’L HERALD TRIBUNE, Opinion 7, Jan. 11, 2006, available at http://www.iht.com/articles/2006/01/11/opinion/edperk.php?page=1. 381. Id. 382. Id. 383. See generally id.

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weight of the UN Security Council to compel cooperation with IAEA efforts more robust than traditional safeguards.384 This process has begun with the Additional Protocol, and with its first referral to the Security Council.385 There can be other suggestions of this sort, including the creation of a permanent nonproliferation commission under the Security Council (similar to UNSCOM or UNMOVIC but with a universal mandate, and which would have to take care to coordinate with and not undercut the IAEA), or a streamlining of approval by the Security Council of the Secretary General in invoking his existing inspection authority. This avoids the problem of surrogating of Council functions by competing and uncoordinated means.386 384. Kanwar, supra note 202. 385. Daryl Kimball & Peter Crail, The 1997 IAEA Additional Protocal at a Glance, ARMS CONTROL ASS’N, available at http://www.armscontrol.org/factsheets/IAEAProtoco. 386. There have been precedents and proposals for the “surrogation” of the Security Council’s peace and security functions. One of these was the “Uniting for Peace” Resolution passed by the General Assembly during a period of Cold War deadlock on the Council. G.A. Res. 377 (V) A, ¶ 1, U.N. Doc. A/377 (Nov. 3, 1950), available at http://domino.un.org/unispal.nsf/85255a0a0010ae8285255534 0060479d/55c2b84da9e0052b05256554005726c6%21OpenDocument. An example of how the internal politics of the Security Council and the external, institutional politics might affect each other, consider the obscure example of the “Uniting for Peace Resolution.” Kanwar, supra note 202. To address this problem of Security Council deadlock, the United States pushed the U.N. General Assembly to pass the “Uniting for Peace Resolution.” Thalif Deen, Security Council Loses Credibility Over Iran, Israel, INTER PRESS SERV., Jan. 30, 2008, available at http://www.commondreams.org/archive/2008/01/30/6735 (last visited Oct. 15, 2008). “The resolution said that where a threat of international peace and security arises and the Security Council fails to act, the General Assembly can authorize a response, even the use of force.” BIPARTISAN SECURITY GROUP, POLICY BRIEF, THE PROLIFERATION SECURITY INITIATIVE THE LEGAL CHALLENGE 5, available at http://www.gsinstitute.org/gsi/pubs/09_03_psi_brief.pdf. Although the legality of the Uniting for Peace Resolution is questionable, [and though it has fallen into disuse since 1960], the United States used it to pass additional resolutions in the General Assembly and get “legal” backing for many actions which the Soviets would have blocked, particularly during the Korean War. Id.; but see BARRY CARTER & PHILLIP TRIMBLE, INTERNATIONAL LAW 1223-24 (3d ed. 1999) (relating this history with the qualification that “The Uniting for Peace Resolution may contradict the U.N. Charter”). In the vacuum of authority left by the Security Council during the Cold War, the General Assembly also passed a series of ‘law making’ resolutions on issues related to the use of force. Important among these have been the 1970 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, G.A. Res. 2625 (XXV), U.N. Doc. A/2625 (Oct. 24, 1970), and the 1974 Definition of Aggression, G.A. Res. 3314 (XXIX), U.N. Doc. A/3314 (Dec. 14, 1974). Other examples of “surrogation” include the use of regional organizations to authorize force when the Security Council fails to act. Kanwar, supra note 202. It is sometimes claimed that the U.N. Charter allows regional organizations to authorize force when the Security Council fails to act. Ivo Daalder & James Steinberg, The Future of Preemption, 1 AMERICAN INTEREST, No. 2,Winter 2005, http://www.the-americaninterest.com/ai2/article.cfm?Id=35&MId=2 (last visited Oct. 15, 2008). “In the Cuban Missile Crisis, the United States used this argument to stop Soviet ships, relying on authorization from the Organization of American States (OAS).” THE PROLIFERATION SECURITY INITIATIVE THE LEGAL CHALLENGE, BIPARTISAN SECURITY GROUP POLICY BRIEF 8, available at http://www.gsinstitute.org/gsi/pubs/09_03_psi_brief.pdf (last visited Oct. 15, 2008). Finally, there is the possibility that great powers will step into the breach unilaterally. Unilateral actions of powerful states “surrogate” the functions of the Security Council, and

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One suggestion is that Security Council resolutions need not simply address contingent crises, but should also help develop the Council’s own legal capacity to deal with larger systemic crises, such as the possibility of non-compliance in the future and withdrawal from non-proliferation regimes. The development over time of a practice related to peace and security would give more force and consistency to the possibility of Council intervention. Even outside specific compliance frameworks, states may bring these matters to the attention of the UN Security Council as a threat to international peace and security.387 In each case, if the internal mechanism in the treaties will be best equipped to make the distinction between a minor and a material breach, fact-finding should be left to these bodies. However, where there are gaps, the Council is competent to act. In the final analysis, while it should not undercut multilateral treaty frameworks, the Security Council need not rely on the text of particular treaties in following its mandate. Factual matters that signal a threat to peace and security—whether these are non-compliance with safeguards, withdrawal from a treaty, cutting off negotiations, issuing threatening statements, or nuclear testing, for example—may or may not carry a legal meaning, but ultimately, the Security Council need not rely on the text of particular treaties in interpreting and following its mandate.388 It may well be that Iran comes into compliance with technical (record-keeping and inspections), but that suspicions about undeclared nuclear weapons activities remain and give rise to security concerns, safeguards, and noncompliance. The Security Council could also link various statutory inspection schemes through its Article 34 authority to investigate and authorize investigations, the only provision in the Charter that grants a body this competence.389 To add value to the nonproliferation compliance system, legislative resolutions need not be outcome-determinative, but they should at least create appropriate background conditions for facilitating dissuasion diplomacy, and authorizing new coercive and persuasive measures (such as additional agency-based “sanctions”) available to the IAEA and other inspection agencies. Other proposals addressing institutional gaps might involve the revitalization of the long-defunct Military Staff Committee, the only subsidiary organ created under the U.N. Charter, detailed in Article 47

this could be seen to erode the legitimacy and efficacy of the Council. Kanwar, supra note 202. Examples of U.S. “surrogation” of Security Council functions continues to the current day, including the “coalition of the willing” in Iraq, which, lacking formal Security Council authorization, nonetheless claimed authority both inside and outside the Security Council framework. Id. 387. U.N. Charter art. 34, para 1. 388. Kanwar, supra note 202. 389. U.N. Charter art. 34, supra note 30; see Theodor Schweisfurth, Article 34, in THE CHARTER OF THE UNITED NATIONS, A COMMENTARY, supra note 7, at 595-96.

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and given advisory functions on questions of armaments under Article 26.390 More practical lessons could be applied from the experiences in recent proliferation crises to get out of the cycle of escalation and deferral, and develop deeper and more general remedies. Lateral strategies also move the goalposts on familiar legitimacy debates.391 As George Perkovich has noted, “[t]he Security Council can make these vital reforms without eroding state sovereignty or development.”392 Countries such as Iran can no longer claim they are being singled out as a matter of international concern. It also helps reconcile two important aspects of the NPT, which are non-discrimination in the development of nuclear energy for peaceful purposes393 and prohibition of the manufacture or acquisition of nuclear weapons or nuclear explosive devices by non-nuclear weapons states.394 However, as mentioned in the section on implied powers, there are also serious qualms about the legitimacy of these legislative powers closely linked to ongoing challenges to the ill-defined and expansive powers of the Security Council.395 B.

Strictly Exceptional: Law-Making between Formalism and Contingency

These suggestions push the Security Council further into the legislative realm, a suggestion that has a mixed response. The Council’s recent resolutions suggest at least two models for confronting proliferation threats: (1) a more traditional enforcement model, under which the Council would respond to particular crises through ad hoc and targeted measures, and (2) a legislative model, by which the Council would impose formal, binding obligations of an abstract and general character on member-states more generally.396 In the course of its diverse activities, the Security Council is 390. 391. 392. 393.

Kanwar, supra note 202. Id. Perkovich, supra note 380. EDMUND JAN OZMANCZYK, ENCYCLOPEDIA OF THE UNITED NATIONS AND INTERNATIONAL AGREEMENTS 1609; IAEA, Treaty on the Non-proliferation of Nuclear Weapons, supra note 51. 394. HARALAMBOS ATHANASOPULOS, NUCLEAR DISARMAMENT IN INTERNATIONAL LAW 73 (McFarland & Co. 2000). 395. Kanwar, supra note 202. 396. Stefan Talmon, The Security Council As World Legislature, 99 AM. J. INT’L L. 175, 176 (2005). (“The hallmark of any international legislation is the general and abstract character of the obligations imposed.”). At the core, it is this “general and abstract” character, and not the “binding” character or the consent of all nations and generally binding whose effects are incorporated into international law, international law that is novel and controversial or relatively obdurate norms. The “enforcement” model under Chapter VII involves a (theoretically) expedient and binding model; however, both the description and the critique of “legislation” picks up on not only the durability of legislation, but also aspects that resemble “executive” functions: “fast-track” single point of control bypassing the orthodox practices of

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more properly regarded as a law-governed “enforcer” than as a “legislator.” As the title of the article argues that there are strong reasons to urge general legislation as a continuing option, and since the power is being developed, its basis and limits are better understood sooner than later. First, nonproliferation is a carefully defined and delimited area of competence closely linked to the Council’s core peace and security mandate.397 Second, the area of non-proliferation embodies demands toward formal equality, which can only be fulfilled through the elaboration of principled general approaches and shared obligations. Even so, since the Security Council’s actions inevitably entail legal effects and justifications, and often by promoting respect for general rules of international law, the Council should also be bound to respect U.N. Charter norms and general principles of international law (e.g., jus cogens and the principle of ultra vires) as applied to international organizations. It may be both possible and desirable to retain a carefully limited legislative role for the Council in this. This is precisely what was at stake in an exchange between Spanish Ambassador Inocencio Arias and Algerian Ambassador Abdullah Baali regarding Resolution 1540.398 In Baali’s view, approving this resolution would mean the council is “acting in an exceptional manner since, clearly, the Charter does not give it a mandate to legislate on behalf of the international community[.]”399 “Arias called the initiative ‘part of the global struggle against terrorism,’ therefore ‘this council is competent to act.’”400 Compare the statement of the Chinese representative over the resolution: “Preventing the proliferation of weapons of mass destruction (WMD) and their means of delivery is conducive to the maintenance of international peace and security”401 to the statement of the representative of Pakistan: “There are grave implications to this effort by the Security Council to impose obligations on States, which their Governments and sovereign legislatures have not freely accepted, especially when some of these obligations could impinge on matters relating to their national security and to their right of self-defence.”402 It is

treaty-making or custom. 397. Kanwar, supra note 202. 398. Id. 399. Statement by H.E. Abdallah BAALI, Ambassador, Premanent Representative on the NonProliferation of Arms of Mass Destruction, Apr. 24, 2006, available at http://www.algeriaun.org/default.asp?doc=2070 (last visited Oct. 15, 2008). 400. Jim Wurst, U.N. Resolution on Weapons of Mass Destruction Sparks Debate, NTI, GLOBAL SEC. NEWSWIRE, Apr. 23, 2004 http://www.nti.org/d_newswire/issues/2004/4/23/b7101668-3b66-49e2-8838e14c62eb159f.html; Security Council Debate on Non-proliferation of Weapons of Mass Destruction, New York, at 6,7, 9-10, U.N. Doc. S/PV.4950 (Apr. 22, 2004). 401. Security Council Debate, supra note 400. 402. Id. at 15.

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significant that among emerging powers, nuclear rivals India and Pakistan both insisted that 1540 is only acceptable as an “exceptional” measure and not as a proper “legislative” act authorized by the Charter.403 These middle States are not criticizing the Council for acting in an arbitrary manner outside of stable and public law. Instead, critics insist on its extra-legal and exceptional character, and claim that states have come to rely on a role for the Council that is explicitly discretionary, and delimited only by the requirements of a crisis.404 This critique flips the script on the Charterbased critique, the problem is not that the Council dictates by fiat and in a discriminatory manner but that its effects would be overbroad and remain in force for an indefinite period of time. In terms of output, two critiques arise, and point in different directions: 1)

2)

Critique of Contingency: Since the Security Council’s powers are inherently discretionary and tailored to particular crises, the concrete actions will often seem inconsistent, unprincipled, or discriminatory. Critique of Formalism: If the Security Council reaches toward consistency, and the development of background standards, this “legislative” activity will be seen as overreaching and imperial.405

Formalism and contingency are merely techniques in the peace and security mandate.406 This paper has argued that the Charter provides the Security Council’s proper legal capacity to address proliferation of NBC weapons, including its express and implied powers under the U.N. Charter as well as powers granted by specific treaties and de facto legislative powers. I also argue that one area where the legal dimension is increasingly important is the development of norms in the area of non-proliferation. For these reasons (as with Resolutions 1373 and 1540), the Council’s enactment of legislation will likely be limited to politically favorable issues at opportune moments, but it can also add pressure for the great powers to act with more uniformity. One might imagine following Resolution 1718 rather than weak implementation of interdiction measures “in accordance with their national authorities and legislation,”407 the legislative option would shift the burden and require that national legislation should be in accordance with the resolution.

403. 404. 405. 406. 407.

Kanwar, supra note 202. Id. Id. Id. S.C. Res. 1540, supra note 34, at ¶ 3(c).

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Finally, a different kind of misgiving is the concern that if a targeted state does not respect current legal obligations, why would it respect a more elaborated set of obligations? It is also questionable whether such a measure would actually reassure a country such as Iran that it is not being singled out or accused of bad faith, or if it would instead mobilize resentment against the Security Council as an instrument of Western hegemony. Thus all the same pitfalls—hypocrisy, futility, and opportunism—might return, only slightly transfigured. Yet, if for no other reason, these measures can be recommended as a way to prompt both the Security Council and countries of concern to uphold the language of legality, and meet and engage with evolving expectations on a common plane of principle.408 The importance of taking up a proactive and legalistic model of Security Council options is to provide an alternative to a completely reactive posture to political contingencies and to help guide this evolution in a way that is rational, incremental, and principled. The desired effect is twofold: (1) so that the Security Council will be better positioned to anticipate and respond to emerging challenges to peace and security, and (2) so states can better predict and rely upon norms guiding Security Council action. It is hoped that these background conditions will better help all parties navigate or avoid complex proliferation crises. Here both prudence and principle suggest that the Security Council must be a vehicle and not an obstacle to the development of multilateralism and the rule of law. C. Beyond Technique: Securing Confidence in the Rule of Law With this in mind, we can return briefly to the kinds of legitimacy critiques that do not emphasize legal authority. These are two common critiques that reflect anxieties about an expanded non-proliferation agenda of the Security Council:

408. Elaine Sciolini, Showdown at U.N.? Iran seems Calm, N.Y. TIMES, Mar. 14, 2006, at A8, available at http://www.nytimes.com/2006/03/14/international/middleeast/14iran.html (reporting that Iran had officially stopped all diplomatic bargains to try to evade Security Council scrutiny and welcomed taking their dossier to the Council head on). This suggests that those who are in control of the facts and the relevant law will be able to weather the storm. Even as reports of nuclear warheads surfaced and the IAEA sent the matter to the Security Council, IAEA noted that “Iran has continued to facilitate access under its Safeguards Agreement as requested by the Agency, and to act as if the Additional Protocol is in force, including by providing in a timely manner the requisite declarations and access to locations.” Deputy Director General for Safeguards, Developments in the Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran and Agency Verification of Iran’s Suspension of Enrichment-related and Reprocessing Activities 1, IAEA, Jan. 31, 2006 (Update Brief), available at http://www.iaea.org/News Center/Statements/DDGs/2006/heinonen31012006.pdf.

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Critique of Opportunism. To finally take up the cause of nonproliferation under Charter responsibilities may seem opportunistic. In this view the politics of great powers are seen to set priorities and force revision, development or enforcement of international norms only when a great power is also a stakeholder in a crisis. Critique of Non-Democratic Character of the Security Council. The Security Council’s powers deviate from the traditional concept of sovereign equality through the influence of each of the permanent five members and their power of veto.409 This is tangentially related to the non-representative character of the P-5 in terms of current realities of power and regional blocs, which is usually a centerpiece of Security Council reform proposals.410 In either case, a more inclusive multilateral approach would lean towards the increased involvement of General Assembly or specific treaty organs.411

But in the proclaimed pursuit of such general interests (action possible only when the general interest coincides with the subjective interests of Security Council Members), the Security Council has adopted measures that may not always appear compatible with basic principles such as the rule of law which is presumed as underpinning both the international and domestic legal orders. For at the same time as their express objectives concern, inter alia, the promotion of human rights as part and parcel of international peace and security, sanctions inevitably affect the rights of populations in the sanctioned entity and call on implementing States to circumscribe constitutionally protected rights of individuals in their territories. This process is exacerbated by the creeping extension of the powers of the Security Council.412 These are precisely the kinds of critiques that appear beside the point when we focus on the Security Council’s powers in terms of obligations to the international community as a whole. In some ways, the legitimacy of the Security Council could increase Security Council resolutions need not simply address contingent crises, but should also help develop the Council’s own legal capacity to deal with larger systemic crises such as future possible noncompliance and withdrawal from non-proliferation regimes. This involves side-stepping the default responses—deferral or escalation—and actively

409. Kanwar, supra note 202. 410. Id. 411. Id. 412. NATIONAL IMPLEMENTATION OF UNITED NATIONS SANCTIONS: A COMPARATIVE STUDY, 653 (Vera Gowlland Debbas, ed., 2004).

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pursuing lateral strategies, creative and quasi-legislative resolutions aimed at developing this capacity. As for the broader legitimacy concerns, these are just as likely to be resolved through more legitimate process and output413 acting in a manner that is principled and general—than any scheme for greater representation on the Council. The Security Council has already begun to evolve in response to emerging challenges to peace and security, and it will continue to do so. The evolution of cooperation between members also offers an opportunity to secure confidence in its Security Council’s own constitution and operation. Based on the international consensus that has gathered around the development of a cooperative “web of prevention” around the proliferation of NBC materials, the Security Council may claim legitimate claim to expanding its powers while seeking to secure confidence in the rule of law. V. CONCLUDING OBSERVATIONS This paper has given three examples of lateral, but law-governed strategies that the Security Council may pursue. First, it has shown the way in which the Council deploys generally applicable legislative measures aimed at developing the capacities of states in activities such as interdiction. Second, it discussed generally applicable resolutions aimed at developing the Council’s own capacities to support and enforce multilateral commitments, such as Resolution 1540 and the BWC. Third, it indicated the authority to pursue, through Article VI voluntary agreements to confidence-building, which would also include factual triggers (crises of confidence) that may trigger “peace and security” concerns that may trigger enforceability though Chapter VII. This paper has argued that beyond the U.N. Security Council’s express and implied powers under the U.N. Charter, or those powers granted by specific treaties, the Council is empowered with lateral and productive options. Among these is that resolutions need not simply address contingent crises, but should also help develop the Council’s capacity to deal with systemic crises. Formalism and contingency are reciprocal forces, enabling and constraining, and States might deem such capacity-building to be a proper

413. If the Security Council enters the activity of legislation, an “extraordinary” step of prescribing durable obligations upon the international community at large, it is appropriate that these actions should correspond closely to categories of pre-existing obligations: those that are non-derogable (jus cogens) and/or owed to the community at large (erga omnes). Kanwar, supra note 202. These are claims that are elaborated in the work of international lawyers arguing for principles of responsibility applicable to international organizations. Int’l Law Comm’n on State Responsibility, May 20-June 12, 1998, Geneva, Switz., July 27-Aug. 14, 1998, New York, U.S., at 27-28, 52, 64, U.N. Doc. A/CN.4/488 (Mar. 25, 1998), available at http://untreaty.un.org/ilc/documentation/english/a_cn4_488.pdf.

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subject matter for Council lawmaking powers. Finally, the Council also has sufficient formal power to support the adoption of confidence-building measures to impose on itself procedural checks to engage with states of concern. At present, a robust regime or set of mechanisms for handling WMD threats will have to rely on an institution empowered to act within a framework that has already secured agreement among the states and peoples in the world. This is not a choice between power politics and law, between contingency and formalism, or between deferral and escalation. It is necessary to recognize that among international organizations, the Security Council is uniquely empowered to ensure “peace and security” with contingent as well as formal measures. Both kinds of measures could be translated to the proliferation context in a law-governed manner.