The UN Security Council: Necessarily Imperfect
Should the Council remain the sole competent authority to authorize the use of force?
The United Nations Security Council is imperfect. In fact, it often fails at its primary role of managing global conflict. In 2022, it failed as the sole competent authority to authorize the use of force in Ukraine. The Russian Federation continues its assault on Ukraine’s sovereign land, protected by its veto powers in the UNSC. Most recently, the United States, China, and Russia have exchanged tit-for-tat vetoes over the crisis between Israel and Hamas. Recent commentators have called the UN as a whole “more rudderless than ever” and called the Israel-Hamas crisis a potential “coup de grâce.” Nonetheless, the veto power — seen by some as an unacceptable defect — is necessary to keep the world from devolving into the chaos of the early 20th Century.
The Council is built to survive political realities and adapt to modern challenges. As such, it remains the best option to be international law’s sole competent authority on the use of force. Its reliability is relative to the chaos of politics and must be considered within the context of the UN’s raison d’etre: avoiding a third world war.1 Its founders built flexibility and political survivability into the system, each necessary
“to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and… to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained…”
Internally, the Council often struggles with timeliness and effectiveness in making and enforcing decisions. Externally, modern strategies of grey-zone, cyber, and proxy warfare all seek to undermine the authority of the Council’s Chapter VII responsibilities. Nonetheless, no distinct alternative would satiate its critic’s chief complaints. It remains the best option because the foundational basis of its authority respects the nature of politics through power of discretion and options like the veto.
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Viva la veto
The Council’s primary challenge to its authority, the veto, is critical to its functioning. This tool creates susceptibility to great power politics that ensures its survival in political reality. The Permanent Five (P5) members of the Council hold Article 27 veto authority for any resolution under consideration. The veto often deadlocks the Council: the P5 invoked the veto on 162 separate occasions throughout the Cold War, not including threats and other measures prior to voting. As the sole competent authority on the use of force, idealists would wish the Council to be an infallible monolith, holding States accountable to a common ethic.
This line of thinking ignores the reality of international politics and undermines the value of the Council within such context. The P5 also happens to include the world’s regional hegemons, the United States, the Russian Federation, and the People’s Republic of China. Without veto ability, any of them might withdraw and take their allies, as Germany did with the League of Nations in 1933 while preparing to wreak havoc on the international system and wage war on the world.
The veto allows the conversation to continue in a forum for politics. It keeps the organization relevant in the face of great power competition and vents the pressure that would otherwise manifest in more dangerous forms. Idealists would wish for strict adherence to international law in every case, making the Council akin to a county courthouse. Such a structure would never last in the face of power politics. The structure of international law will matters only when the great powers recognize its authority.
Flexibility from the Charter
This authority is derived from the member states and their adherence to the Charter. Within the Charter, the Council has the authority and the flexibility to deal with any challenge. Article 2(4) prohibits the threat or use of force, except with the authorization of the Council (Chapter VII) or in self-defense (Article 51). To authorize the use of force, the Council must make an Article 39 determination that a breach of the peace, threat to the peace, or act of aggression has occurred. All 193 member-states must recognize Council decisions above any other obligation per Article 103.2 The only Charter restriction on the Council’s decision-making is in Article 24(2), which states the Council “shall act in accordance with the Purposes and Principles” of the UN.3
Flexibility, after all, was a distinct goal of the founding members at Dumbarton Oaks.4 While the worry of a third world war certainly loomed overhead, the founders were not naïve to think no other threats existed. The sometimes imprecise terminology and lack of definitions within the Charter ensure the Council’s flexibility in facing modern challenges. For instance, recent legal arguments include humanitarian intervention as an exception to Article 2(4). In the past 30 years, the Council’s role has become more proactive “in addressing emerging threats before they are placed on the Council’s formal agenda.”5 It also has more power in peacekeeping operations than it did in the Cold War. As Alexander Orakhelashvili argues, the discretionary powers given to the Council allow it to authorize the use of force in existing peacekeeping operations, so long as the Council makes an Article 39 determination.6 Even without a determination, it may authorize peacekeepers to use force against non-state secessionist or separatist entities.7 These legal adaptations did not fully exist before 1990. While the imprecision of the UN Charter does not make the Council’s job easy, it allows it to adapt.
Challenges of contemporary war
More significant than any structural challenges for the Council, member-states actively attempt to circumvent international law. Modern challenges posed by state adversaries follow the themes of grey-zone warfare, cyber-attacks, and sponsoring terrorists and proxy forces. Whether circumvention of the UNSC is the desired end, or simply a function of modern strategy, it is problematic for the Council.
Grey-zone warfare, hybrid warfare, measures short of war — these are labels meant to categorize modern strategies. One common denominator is “the rampant instrumentalisation of international law for strategic ends.”8 This stratagem can cause several issues for Article 39 determinations and Article 51 justifications. Despite Russia denying the use of force when it sent special forces to annex Crimea in 2014, it provided the legal justification in case it was determined otherwise.9 Only their forcing of a referendum made it to a draft resolution and was subsequently vetoed by Russia. China’s excess claims in the South China Sea bring to question the possibilities of collective self-defense and who would legally be defending if a war broke out.10 Each of these examples presents a challenge to assessing circumstances, but they do not challenge the authority of the Council to make final determinations. The Council’s discretion surrounding Article 39 means that as these strategies adapt, so might the council. The same can be said for cyber warfare.
Cyberattacks come with many nuances, problems of interpretation, and enforcement challenges. Cyber capabilities have grown to include physical destruction (Stuxnet), economic coercion (Colonial Pipeline), and everything between. At a fundamental level, this may bring to attention some of the historical attempts to redefine force as coercion or interference.11 The prevailing view in 2011, according to Matthew Waxman, had long been that the use of force must include “armed attack.”12 The emerging opposing view comes from the Tallinn manual, where an “International Group of Experts… unanimously concluded that general principles of international law applied to cyberspace.”13 Further, they concluded that “Acts that injure or kill persons or damage or destroy objects are unambiguously uses of force.”14 The Tallinn view is tantamount to the argument herein: that the imprecise language of the Charter provides the flexibility necessary for the Council to act.
Similar to the challenges above, states increasingly support terrorist and insurgent organizations to carry out proxy wars. With Resolution 1373, the Council set forth a list of prohibited activities supporting terrorist organizations and established a Counter-Terrorism Committee to ensure its adherence.15 The resolution lacks a definition of international terrorism, and, of course, some states abuse this ambiguity. Iran has been repeatedly condemned for state-sponsorship of terrorists, and yet the US justification for killing Qassim Soleimani is hotly debated.16 After all, Resolution 1373 puts the onus on the host nation to stop terrorists but does not blindly authorize the use of force against nations who fail to do so. Some argued the US was acting in self defense, recalling a similar (albeit failed) US legal stance in the Nicaragua Case surrounding US attacks on the Contras.17 Others argue that “an ongoing series of attacks is not an ongoing attack” and therefore does not allow room for self-defense. This particular imperfection in international law remains necessary for the time being. Soleimani clearly supported terrorist organizations, and the IRGC continues to do so, but the legal framework of the Charter does not make a clear pathway for a use of force authorization by the Council. Yet, explicitly extending authorization of force against sovereign states expected of supporting proxy forces could very well lead to wide-spread justification of assassinations. This legal framework, while imperfect, is necessary until the UN member states develop a consensus on issues like the Soleimani case.
Final thoughts: No alternative
Despite the many shortcomings of the Security Council, no alternative that might satiate its critics’ chief complaints would survive. Critics point to a poor track record in regional conflicts like Rwanda, Yugoslavia, and Ukraine. The Council’s maintenance of international peace and security cannot be held to a zero-defect standard. No one can expect any organization to prevent every use of force between sovereign states — just or unjust — especially not an organization that gets its power from those member states.18 Critics also point to indecision and deadlocking. This, too, is unavoidable. The Council should not be evaluated on the idea that it can come to a unanimous deliberation on every use of force. This never happens in international politics. The Council maintains its power over the authorization of the use of force because the largest military powers in the world allow it to do so. Without their support, it would have no teeth whatsoever.
As the exclusive competent authority to authorize the use of force, the Council has been far from perfect, and the answers are not clearly set for them. Nonetheless, these imperfections are due to and critical to the character of international relations. The fact that it remains the forum and the structure for international discourse, even in times of great strife, bodes well for its future. Many of the contemporary challenges to peace and security are not new. Grey-zone warfare is a new label, but the circumstances surrounding any particular situation are no more complicated than the last seven decades. Despite the many challenges of today’s security environment, the Council is best to handle the mantle of responsibility. Any distinct alternative would not last.
UN Secretary-General’s High-level Panel on Threats Challenges and Change, A More Secure World: Our Shared Responsibility, (United Nations, 2004), 10.
B. Simma, “NATO, the UN and the Use of Force: Legal Aspects,” European Journal of International Law 10, no. 1 (1999): 5.
Edward C. Luck, “A Council for All Seasons: The Creation of the Security Council and Its Relevance Today,” In The United Nations Security Council and War, edited by Vaughan Lowe, (2008), 68.
Luck, “A Council For All Seasons,” 71.
N. D. White and Christian Henderson, Research Handbook on International Conflict and Security Law: Jus Ad Bellum, Jus in Bello, and Jus Post Bellum, (Cheltenham, UK: Edward Elgar, 2013), 21.
Alexander Orakhelashvili. "The Legal Basis of the United Nations Peace-Keeping Operations," Journal of International Law 43 (2002): 494.
Orakhelashvili, “The Legal Basis,” 492.
Aurel Sari, “Legal Resilience in an Era of Grey Zone Conflicts and Hybrid Threats,” Cambridge Review of International Affairs 33, no. 6 (2020): 861.
Christine D. Gray, International Law and the Use of Force. 4th edition ed. (Oxford: Oxford University Press, 2018), 106.
Gray, International Law and the Use of Force, 198.
M. Waxman, “Cyber-Attacks and the Use of Force: Back to the Future of Article 2(4),” Yale Journal of International Law 36, no. 2 (2011): 427-30.
Waxman, “Cyber-Attacks and the Use of Force,” 427-30.
Michael N. Schmitt, Tallinn Manual on the International Law Applicable to Cyber Warfare. (Cambridge: Cambridge University Press, 2013), 13.
Schmitt, Tallinn Manual, 48.
Alan Boyle, “International Lawmaking: Towards a New Role for the Security Council?,” In Realising Utopia: The Future of International Law, edited by Antonio Cassese. (Oxford: Oxford University Press, 2012), 180.
Luca Ferro, “Killing Qasem Soleimani: International Lawyers Divided and Conquered,” Case Western Reserve Journal of International Law 53 (2021): 170-78.
Ferro, “Killing Qasem Soleimani,” 172-73.
Adam Roberts and Benedict Kingsbury, “Introduction: The UN’s Roles in International Society since 1945,” In United Nations, Divided World: The United Nations' Roles in International Relations, edited by Adam Roberts and Benedict Kingsbury, (Oxford: Oxford University Press, 1993), 9-10.