The Security Council and the Rule of Law

This panel was convened at 10:45 am, Friday, March 27, by its moderator, Simon Chesterman of New York University School of Law, who introduced the panelists: Thomas Franck of New York University School of Law; Christine Gray of the University of Cambridge; Kim Lane Scheppele of Princeton University; and Stefan Talmon of the University of Oxford. * INTRODUCTION The United Nations Security Council is the most powerful multilateral political institution. It has grown well beyond its initial function as a political forum and serves important legal functions. Traditionally, these functions included determining that a threat to the peace, breach of the peace, or act of aggression had occurred and prescribing specific, legally binding obligations on member states under Chapter VII of the UN Charter. Today, they embrace establishing complex regimes to enforce its decisions and passing resolutions of general, rather than specific, application. These expanded powers can facilitate swirl and decisive action, but they have raised questions about the legal context within which the Council operates and the extent to which the Council itself adheres to the rule of law. This panel builds on a four-year series of meetings at United Nations Headquarters in New York (1) and examines the ways in which the Security Council supports, is supported by, and occasionally runs afoul of, the rule of law. Christine Gray begins by examining the positive and negative relationship between the Council and the rule of law--positive in the sense of promoting the rule of law internationally, negative in the sense of the rule of law constraints (if any) that apply to the Council s exercise of its considerable powers. Stefan Talmon then looks at the evolution in Council practice from quasi-legislative or "law-making" resolutions to "law-changing" resolutions. Kim Lane Scheppele then considers the concrete case of the Council' s counterterrorism resolutions and their impact at the domestic level. In the "live" version of this panel, Thomas M. Franck responded to these papers and offered his own take on what the Council might do to enhance its legitimacy in the eyes of international law and member states. As Tom has since passed away, we have transcribed his comments below. * Kim Lane Scheppele did not submit remarks for the Proceedings. (1) See Simon Chesterman, The UN Security Council and the Rule of Law, U.N. Doc. A/63/69-S/2008/270 (2008), available at . By Simon Chesterman, Vice Dean (Graduate Studies) and Professor of Law, National University of Singapore; Global Professor and Director of the New York University School of Law Singapore Program. THE SECURITY COUNCIL AND THE RULE OF LAW: AN OVERVIEW This topic can be seen from two aspects: positive and negative. Both are covered by Simon Chesterman in his seminal article on the rule of law and international law. (1) The positive aspect concerns the question of what action the Security Council can take to further the rule of law internationally. The negative aspect concerns the question of what constraints on the Security Council, if any, are required by the rule of law. The focus of my co-speakers is on the latter, more complex set of issues. But I should like to argue that it is the former that is more important in practice. And it is the positive work of the Security Council that is the primary focus of states concerned with the rule of law. This may be seen in the 2006 Security Council debate on "strengthening international law: the rule of law and the maintenance of international peace and security." (2) The debate was based on a Denmark paper discussing how the Security Council could contribute further to strengthening and developing an international order based on the rule of law. Denmark argued that Security Council legitimacy and credibility depend on its explicit commitment to operate within the framework of the rule of law. …