You're Gonna Need a Bigger Boat: Alternatives to the U.N. Security Council for Enforcing Nuclear Disarmament and Human Rights

Under traditional international law, there are two primary justifications for the international use of armed force: individual or collective self-defense (under article 51 of the U.N. Charter) and authorization by the Security Council (pursuant to chapter VII of the Charter). Both criteria are stringent; they were designed to reflect the framers’ immediate post-World War II perspective that war was such a horrible scourge that it should be avoided at (almost) any cost.In the intervening decades, however, global public opinion has shifted somewhat, and the world community increasingly feels that some additional values, not fully appreciated in 1945, are worth fighting for, as well. This article explores two of those issues: a) the protection of international human rights, especially the prevention of the worst atrocities of genocide, war crimes, and crimes against humanity, perpetrated by a government against its own population, and b) the pursuit of complete, global nuclear disarmament, a seemingly far-distant desiderata that has recently been placed on the agenda for more active consideration and development.In each case, “enforcement” remains a critical, underdeveloped issue. How can the parties to an ambitious human rights treaty or a disarmament agreement effectively ensure that recalcitrant parties live up to their obligations? If the “muscle” for enforcement comes exclusively from the Security Council, then the threat or exercise of the veto power by the five Permanent Members (the P5) will too often frustrate the accomplishment. If the violator is aligned with (or is) one of the P5, then the breach may persist, and the other parties may lack effective enforcement.One potential solution to this legal and policy dilemma is to “contract around” the Security Council. The treaty that establishes the new human rights or nuclear disarmament obligations could simultaneously create a new international organization to operate and oversee it. That new institution could be empowered to authorize a use of military force, without regard to the Security Council, and could do so via a majority (or supermajority) vote, without allowing any state a unilateral veto.But the U.N. Charter was deliberately crafted to avoid such facile circumvention. Article 103 specifies that in the event of a conflict between a state’s obligations under the Charter and its obligations under any other treaty, the Charter shall prevail. Similarly, the hoary doctrine of jus cogens, referring to peremptory norms of international law from which no derogation is permitted, also over-rules any attempt to evade the Charter’s fundamental limitations on the use of military force.This article examines this cluster of legal and policy issues, and argues that the concept of state consent – a fundament element in international law – should suffice to permit this enforcement of a human rights or nuclear disarmament treaty. While the continued operation of the Security Council, including the veto power, may suffice for most areas of international life, when dealing with these two vital areas, a new process, operated through new international organizations, should be available.The article analyzes the scant precedents for this concept, most of which are drawn from the realm of human rights. It also assembles the prior scholarship on point, all of which focuses on human rights, and extends the analysis to nuclear disarmament, as well.