Saving Succeeding Generations from the Scourge of War

The United Nations Security Council at 75

Series: 

In its famous first words, the UN Charter expresses the determination of “the peoples of the United Nations […] to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind”. In order to achieve this, a new world organization was established, with a key responsibility for the Security Council.

The aim of this book is to evaluate the functioning of the Security Council during its first 75 years, from an institutional legal perspective. It analyzes three issues that were not only hotly debated when the United Nations was founded, but have also been highly relevant for the Council’s functioning in practice and are likely to remain so in the future: the right of veto for the permanent members, the rule of law, and the size of the Council (the need for enlargement).

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Niels Blokker is Professor of International Institutional Law at Leiden University (Schermers Chair) and was previously Deputy Legal Adviser at the Ministry of Foreign Affairs of the Netherlands. Together with the late Henry Schermers, he has published International Institutional Law (Brill/Nijhoff, 6th ed. 2018). Together with Nico Schrijver, he has edited The Security Council and the Use of Force (Brill/Nijhoff, 2005), Immunities of International Organizations (Brill/Nijhoff, 2015) and Elected Members of the Security Council (Brill/Nijhoff, 2020). He is co-founder and co-editor in chief of the journal International Organizations Law Review (Brill/Nijhoff).
List of Tables

Introduction

1 The United Nations at 75
1 A Comparison with the League of Nations
2 Developments in Membership
3 Evolutions in ‘Organizationship’
 3.1 Introduction: No Security Council without the United Nations
 3.2 Legal Personality of the United Nations
 3.3 Constitutional Development through ‘Practice of the Organization’
  3.3.1 Guidance from the International Court of Justice
  3.3.2 A Legal Basis for ‘Interpretation through Practice’?
  3.3.3 Whose Practice?
4 Concluding Observations

2 The Security Council and the Right of Veto
1 Introduction
2 A Problematic Beginning: without the Veto No United Nations
3 A Problematic Practice
4 Problematic Reform Discussions: l’histoire se répète
 4.1 Moderating the Use of the Veto without Charter Amendment
 4.2 Changing the Veto, Amending the Charter
 4.3 The Gordian Knot of Vetoes on Veto Reform
5 The Veto: Indispensable or Obsolete? Concluding Observations

3 The Security Council, the Rule of Power and the Rule of Law
1 Introduction
2 The Notion Rule of Law
3 Five Ways of Containing the Power of the Permanent Members
 3.1 Right of Veto (‘I Forbid’), No Right of jubeo (‘I Order’)
 3.2 Bound by Charter Obligations
 3.3 Wartime Superpower Cooperation, Modified not Merely Codified by the Charter
 3.4 The Security Council Does Not Have Unlimited Powers
 3.5 The Security Council is Embedded in the United Nations Organization
  3.5.1 The General Assembly
  3.5.2 The Secretariat
  3.5.3 The International Court of Justice

4 The 1945 Negotiations: Peace at Any Price? the ‘Rule of Power’ vs. the ‘Rule of Law’

5 Security Council Practice and the Rule of Law
 5.1 Introduction
 5.2 General: Thematic Debates, Presidential Statements
  5.2.1 The 2003 and 2004 Thematic Debates: the Rule of Law at the National Level
  5.2.2 The 2006 and 2010 Thematic Debates: the Rule of Law at the International Level
  5.2.3 Subsequent Thematic Debates on the Rule of Law
  5.2.4 The Security Council as a Model for the Rule of Law?
 5.3 Two Specific Topics: International Criminal Justice and Individual Sanctions
  5.3.1 Introduction
  5.3.2 The Rise and Fall of International Criminal Justice in the Security Council
   5.3.2.1 The Establishment of Ad Hoc Criminal Tribunals
   5.3.2.2 Referrals to the International Criminal Court
  5.3.3 Reviewing Individual Sanctions
6 Concluding Observations

4 The Need for a Second Enlargement of the Security Council
1 Introduction
2 The Inevitability of the First Enlargement
3 The Urgency of Another Enlargement
4 Effective and Representative?
5 A Comparison
6 The Proposals by the 2004 High-level Panel on Threats, Challenges and Change
7 Concluding Observations

5 United Nations? Security Council? Concluding Institutional Legal Reflections
1 The Creation of the United Nations Revisited
2 The Creation of the Security Council Revisited
3 The United Nations in 75 Years of Practice
4 The Veto in Practice
5 The Security Council and the Rule of Law
6 On the Need for a Second Enlargement of the Security Council
7 Institutions Matter

Appendix Overview of the Use of the Veto (1945 – 2020)
Index