In this series, Dr Carolyn Evans (CE) discusses her research on the United Nations Security Council published in her recent monograph, Towards a more accountable United Nations Security Council (Brill 2021) with ILA Reporter Assistant Editor Crystal Ji (CJ). Part I examines Dr Evans’ influences that shaped the direction of her research, the Security Council’s relationship with international law, and the problems and potential of the Security Council in performing its role.
CJ: Congratulations on the book/monograph! What prompted you to write this book?
CE: It is my doctoral thesis revisited. It commences with the story of how I came to pursue a PhD, which is relevant especially as it’s not my first trip around the block, and I only just finished my PhD three years ago. I was involved in community service for a very long time, mostly as a human rights activist. This gave me a practical understanding of how human rights treaties make a difference and how they can be used. It became clear as I went along that if I better understood the role of the UN, including what the Security Council does, I would be able to improve my human rights work. It also intersected with what I had done in my professional life for a very long time, which is what we would now call ‘governance’ in a broad sense: how decisions are made, who has the right to make them, and whether they’ve been made effectively.
You start by looking at functions assigned to an entity that has decision-making powers and see if they are performing them correctly, the procedural elements of decision-making; funnily enough, I assumed early on in my career that people in power would simply follow those procedures, but I later realised what a brave assumption that was. Many times decision-makers do not even understand their own procedures, or they get all caught up on a tiny element of the procedure and they miss the main problem. Over the years I accumulated all this knowledge about governance, and then once I studied international law, it dawned on me that some of the most substantial issues of governance in the world relate to the Security Council. It was an obvious thing for me to study. The potential for abuse of power is huge, but there is also huge potential to not be effective. In some ways, the Security Council could be one of the most powerful institutions in the world, yet many people look at it and wonder why it is not.
CJ: So the book was clearly very much informed by both personal experiences and also what you studied later.
CE: Yes. I have two Masters degrees – one I did a long time ago, an MBA, then as I went on in my career I became more interested in law, and so I did a Masters of Legal Studies. In that, I did the international law and human rights track. There were big lightbulb moments.
CJ: You mention that you realised the Security Council is a very powerful institution with great potential. What is its relationship to international law?
CE: The Security Council’s relationship with international law is one of the big issues. In one sense, it is simple – the UN is a creature of international law that is constituted by a multilateral treaty, and all of the things it does are enabled and empowered by international law in that broad sense.
It is a great balancing act… but it is not just about the P5 having the veto, as that greatly oversimplifies how the Security Council interacts with international law.
From another perspective, what the Security Council is there to do is simply impossible without the supporting framework of international law. It has its own obligations and activities, it also has guidance on what to do and how to respond in the face of what others do, but that nice summary papers over an enormous number of cracks. There are so many practical difficulties in working your way through the geopolitics even when you’ve got international law on your side. You can argue about getting the balance between legalism and realism right, or whether the ends/consequences for the world justify the means the Security Council might use. But even some of the really big concepts of international law, such as sovereign equality of states, get lost in the noise of debate in the Security Council. At this point, it is hard not to comment that the misconceptions surrounding the Security Council’s interactions with international law are not helped by the infamous relic of the post-war era, the dreaded veto. It is a great balancing act, trying to wrangle all of that, but it is not just about the P5 having the veto, as that greatly oversimplifies how the Security Council interacts with international law. There is so much more to it than that. The General Assembly, the elected members of the Security Council, all these other actors in the picture also have their own interactions with international law, and that shapes what the Council might/should/could do.
I approach this from a different angle. If you think about it from the veto, it can stop action that is proposed. But first, there has to be a proposal to be stopped. If you look at how the Council has used international law to its advantage over the years, half the time there isn’t even a proposal, and that tends to be a bigger issue. So there are many consequences of what goes wrong when the Security Council does something, certainly, but I tend to focus on the consequences if the Security Council does nothing, because there is only one Security Council and there is no alternative. If they do not do their job, where do we all end up? Before Timor was as we know it now, it was formerly a Portuguese colony that Indonesia invaded in 1975. Twenty-five years of death and destruction came afterwards, but it came afterwards because the Security Council could not take action. Much more recently, two years ago when the Secretary-General called for a global ceasefire in order to deal with the COVID-19 pandemic, the Security Council could not get it together to pass a resolution in support of that. Though it probably would not have made a difference if the Council had passed that resolution, it does show the depth of the problem, that they could not realise the world needed them to be active rather than sitting frozen, like a rabbit in the headlights.
CJ: If there is a proposal put forward, you have the P5 who have the power to veto, being comprised of countries that a lot of people would say does not even reflect current power structures. How do we overcome that hurdle of the veto, so that the Security Council can be a productive body to help maintain international peace and security?
CE: It is very hard to talk about the Security Council without talking about reform. It has been a hot topic for decades. When I started my doctoral research, I very quickly became allergic to debate over particular reform proposals, because although I do see the worth of the debate, I just cannot get past the veto. It seems so improbable to suggest that there will be any change to the most important arrangements like permanent membership and the veto. Without compacting or abbreviating that discussion too much, the veto is both the cause and the effect of the problem. You never get out of the loop.
The Security Council is a geopolitical body of huge complexity and significance, so you are not going to get things just by wanting them. That persistence is key.
In my doctoral research, I thought: ‘let’s accept that, what else can we do? What else looks possible?’ What I came around to and what I discuss in the book, is to ask: ‘Is the Council doing what it is there to do?’, rather than contemplating reform and deciding the Council should do something different. In one sense, that applies to the whole UN.
Recently, there have been debates sparked by the situation in Europe, saying we really need to reform, or perhaps to get rid of the UN altogether. I can understand those arguments, but after researching it for so long, what I do get from the history of the Security Council is a much stronger sense that when certain actors put their mind to it, really good results are possible despite the P5 and their veto. I ended my research very optimistic about that. ‘What is it we want from the Council?’ is a good question. ‘Who gets to decide that?’ is another. It is quite possible to take the view the Security Council does a lot of behind-the-scenes diplomatic work that we do not see. However, that is not its main job; its main job is to maintain and restore international peace and security. Put another way, if we do not have a better idea of what we want from the institution, getting rid of the institution and starting again probably will not help. If we instead put their feet to the fire and make the actors we have already got do the thing they are there to do, there is a better chance of progress.
In that direction there are some good examples to be discussed about when the elected members took concerted, unified action to pursue a goal and achieved it. One is the 1267 Ombudsperson. Resolution 1267 deals with counter-terrorism, to better deal with the Taliban and Bin Laden. That committee is the source of some of the ‘celebrated cases’ where people were – incorrectly – listed on terrorism watchlists and then could not get off the watchlists. More than 15 years ago there was action that led to a General Assembly resolution about the need to have fair and clear procedures for listing and delisting. This now seems obvious. But it took nearly five years of successive elected members of the Security Council pursuing this one idea that ‘fair and clear procedures’ were needed. They put it on the agenda under different headings, they kept going back to it. Costa Rica, Liechtenstein, Luxembourg, Germany, Sweden, Switzerland, Denmark and various others played a role at different times. All these disparate members, as they came and went as members of the Security Council, they kept chipping away at this idea that the procedures for terrorism watchlists were not right. In the end, they got an ombudsperson, changed the rules, and, crucially, provided for a review mechanism.
The Security Council is a geopolitical body of huge complexity and significance, so you are not going to get things just by wanting them. That persistence is key.
Another example is the process by which the Secretary-General is chosen. Many people were critical of the Security Council for that process being held behind closed doors for a long time. But it started because the General Assembly asked the Security Council to do it that way. In 1946, the General Assembly passed a resolution essentially saying to the Security Council, ‘just give us one candidate because we do not want to debate it in open forum, there might be dissent and it might not be fun’. [Ed: see Terms of Appointment of the Secretary-General GA Res 11 (1), UN GAOR, 1st sess, 17th plen mtg, UN Doc A/Res/11 (1) (24 January 1946) para 4(d).]
So it started with the General Assembly but it also finished with it. In 2015, especially towards the end of that year and in the next year, the General Assembly said it wanted to do things differently, an idea which different civil society organisations then picked up. The selection of Secretary-General Antonio Guterres came out of a much more open and accountable process, because of the instigation of the General Assembly and then elected members of the Security Council being persistent. So the General Assembly creates the demand, to which it is possible for the Security Council to respond if elected members then pick that up and are persistent, and that makes change. You need to see the possibilities out of examples like that rather than feel the weight of the veto.
There is a similar pattern to be seen in an example like Australia and Jordan and Luxembourg taking action to get humanitarian aid to Syria. The Syria example is particularly important because the whole way through that process, which ended with a decision under Article 25 of the UN Charter to say Syria must allow access for humanitarian aid, that was totally against what Russia and China wanted. They were against it from the beginning, but persistence won the day. So in some ways, it is a bit of a cheap shot to always go back to the veto, because there is a lot more to Security Council decision-making than that, but of course we can all see that the veto is a very real problem.
In Part 2, Dr Carolyn Evans and Crystal Ji examine what greater accountability could look like for the Security Council.
Dr Carolyn M Evans CSC teaches and researches at the Faculty of Law & Justice at UNSW Sydney, specialising in international law in relation to international organisations. Dr Carolyn Evans’ monograph Towards a more accountable United Nations Security Council is available now.