By Anna Spain* –
4 Harv. Nat’l Sec. J. 320 (2013)
When faced with a global crisis within the scope of its mandate, the United Nations Security Council (UNSC or Council) has no obligation to decide whether or not to take action. This Article argues that it should. The UNSC is the only governing body with the legal authority to authorize binding measures necessary to restore peace and security, yet neither the United Nations Charter nor the UNSC’s own rules clarify the extent of its obligations. Unlike courts, the UNSC lacks a procedural rule establishing that it has a duty to decide. Unlike the United States Congress, which accepts its practical duty to declare war, the UNSC lacks consensus about when it must take up a matter. As a result, UNSC members can, and frequently do, defer making decisions in politically difficult cases. The costs of this ambiguity to those who depend on the UNSC for their security are high, making debate about UNSC reform critical and necessary.
In contrast to conventional scholarship addressing UNSC reform, this Article focuses on improving the UNSC’s decision-making process through the adoption of new procedural measures. It presents a novel approach to thinking about UNSC reform by translating wisdom from the realm of legal process theory to the political, quasi-judicial UNSC. The central argument is that the Council itself should adopt three procedural duties aimed at improving its decision-making process. First, the duty to decide would require the Council to take up decisions about whether or not it will take action in crises under its jurisdiction. Second, the duty to disclose would require the Council, when it takes no decision in a particular situation, to publicly disclose its reasoning for not doing so. Third, the duty to consult would obligate the Council to take reasonable measures to consult those nations, and the people therein, most affected by decisions falling under its Chapter VII authority regarding sanctions, intervention, and the use of force. After describing these duties, this Article draws upon qualitative data from within the U.N. itself to justify why this reform proposal, unlike many others, is viable. It also draws upon insights from the disciplines of legal process theory, social psychology, and negotiation to give explanatory power to why such reform matters will prove effective. Making these changes will enhance the UNSC’s decision processes in ways that will further its legitimacy and relevance in today’s world of multi-varied and evolving forms of conflict.
*Associate Professor at the University of Colorado Law School.