UN Security Council resolutions sometimes create opportunities where none exist. We can seize them, if we understand its decisions and manage our expectations. By Ivan Shalev
I occasionally wonder whether the UN Security Council is secretly mandated to frustrate people in our field. Not only do we have to consider its (outdated) institutional set up, but we also have to grapple with how it chooses (not) to use its exclusive powers. Of course these issues overlap, or as Scott Sheeran summarised it: the “UN Security Council veto is killing people”.
To outside observers, even reading Security Council resolutions is confusing. Member States tend to formulate them with deliberate ambiguity – to facilitate an agreement, but also to lay a favourable claim to its meaning at a later stage.
The art of interpreting Security Council resolutions requires solid analytical, political, and legal understanding – and a feeling for ambiguous expressions. However, there are surprisingly few resources on how to do it. Here is a starting point:
Understanding the context
The Security Council is mandated by UN Member States, under the UN Charter, to act on their behalf with primary responsibility for the maintenance of international peace and security. It has very broad powers in making recommendations and adopting binding measures, but those need to be in accordance with the Purposes and Principles of the Organisation.
Resolutions are formal expressions of a collective decision of a UN organ. Security Council resolutions need affirmative votes by at least nine of its fifteen members, including the permanent five (P5) when non-procedural matters are concerned. A state’s delegation would draft the proposed text, discuss it with a few others for revisions, and submit it to the rest of the Security Council for informal consultations. The final adoption is only a brief formality in this diplomatic process.
One may notice at least two issues relevant to interpretation. First, Security Council negotiations are flexible and political; lawyers are rarely involved beyond first drafts, so consistency across resolutions is limited. Second, input from outsiders is minimal, even though informal Arria-formula meetings allow for contributions from civil society, as we have seen in the process of implementing the landmark 1325(2000) resolution on women, peace and security. So, only the Security Council (and to a certain extent its subsidiary bodies) may authentically interpret a resolution.
Additionally, we need thorough knowledge about the subject matter of a given resolution. The vast majority refer to particular situations or crises, as even a cursory glance at this years’ resolutions reveals. Generally, a good starting point for research are the respective Secretary-General reports. There are also a small number of resolutions that cover general topics, such as children in armed conflict, or are internal to the Organisation, such as recommending a Secretary-General.
Knowing where to pay attention
A typical Security Council resolution has two parts. The unnumbered preamble sets the context, including references to past actions, and often helps to identify the object and purpose of a resolution. Most notably, this is where a determination of “threat to peace” would appear. This is one of the phrases that invoke Article 39 and Chapter VII of the UN Charter, and as such, tends to accompany binding provisions and authorisations to use coercive measures and force. For instance, 757(1992) imposed obligations on UN Member States to implement a trade embargo on Yugoslavia and 3186(2001) authorised the International Security Assistance Force to use of all necessary means (i.e. force) in Kabul.
The numbered operative paragraphs each contain a Security Council opinion or requested action. Depending on the measures, they fall under Chapter VI or VII, though an explicit reference is not necessary. Peacekeeping mandates are said to be ‘in-between’, but the complicated legal regime that covers them should be explained separately. Generally, binding paragraphs start with “decides” instead of “urges”, “invites” or “calls upon”. Actions may range from recommendations on peace arrangements, investigations and mediation, to appointment of special envoys and establishing missions. If those fail, enforcement measures may for example include economic sanctions, arms embargoes, financial penalties, and travel bans, severance of diplomatic ties, or blockades.
From interpretation to practice
The Security Council’s wide authority is reflected in the magnitude of the impact of its resolutions. But those are often too general to anticipate and resolve the practical challenges we face in assisting peace and security – let alone the suffering of those to whom they are denied. This creates unfortunate situations, like uncertainty about the legality of military intervention in Iraq, negative impact of counter-terrorism measures on human rights in Europe, and perpetuating conflict in the Occupied Palestinian Territories.
A practitioner’s view: Kosovo 1999
Martin Griffiths was part of the UN Advance Team that arrived in Pristina following the UNSC resolution that mandated a UN Mission in Kosovo. However, the vague language of the resolution presented a number of difficulties on the ground:
“It was particularly challenging to understand what power we had in running Kosovo and what authority remained with Belgrade. The Resolution was rather vague in this regard. Indeed our first meeting in Pristina was with a representative of the Federal government who decided to remain in Pristina after all the Serbian troops and officials had left. We were confused because it was not clear whether the Federal government had a role to play or not. Eventually this was sorted out by his precipitate departure back to Belgrade after we had found him one night overseeing the destruction of all the Kosovo land records.“
“More puzzling was whether we had control over our frontiers or not. Was the border between Kosovo and Macedonia for example still a federal matter? Or was it now for us to manage? Deciding on this was a central matter for anyone attempting as we were to govern Kosovo. For example could we tax goods coming into the province? Could we arrange for fuel imports?”
“Another more irritating but vivid example concerned mobile telephones. Kosovo had no land line system as it had been destroyed in the war. We all functioned on mobile phones therefore (except KFOR which ran a military wireless system). But the license to the Italian company providing the service was controlled by Belgrade. We could not ask them to cede it to us as that would have implied UN acceptance of their continuing authority. Instead Belgrade simply switched it off and on from time to time just to remind us of their presence!”
“During all this we of course frequently asked the UN's lawyers in New York for their advice nothing of practical use was forthcoming. The simple fact was that the Resolution was vague in order to avoid a Russian veto, and we would have to live with that. In due course this period of phoney war ended as the UN steadily assumed authority for the province. But as is well known, independence still had a long way to go.”
© image wikipedia United Nations Security Council