International Law and the Report of the High-Level U.N. Panel on Threats, Challenges and Change

Frederic L. Kirgis
December 15, 2004
The U.N. Secretary-General's High-Level Panel on Threats, Challenges and Change has issued a lengthy report setting out a broad framework for collective security. [1]   It touches on several issues of international law and organization, including some important ones that are the focus of this Insight.  
The Panel addressed issues raised by weapons of mass destruction, including nuclear weapons.  Among other things, it called on nuclear-weapon States to reaffirm their previous commitments not to use nuclear weapons against non-nuclear-weapon States (Report, ¶ 120) and it called on States not parties to the Treaty on Non-Proliferation of Nuclear Weapons (NPT) to pledge a commitment to non-proliferation and disarmament (¶ 123).  The International Court of Justice has held that certain unilateral governmental declarations create binding obligations to the international community, if they are specific enough and are made with an intent to be bound. [2]   The United States has already made a qualified commitment to refrain from using nuclear weapons against non-nuclear-weapon States that are parties to the NPT. [3]   That commitment probably is specific enough to be binding, even without reaffirmation.  On the other hand, a commitment in general terms to non-proliferation and disarmament probably would not be specific enough to be binding.
The Panel said that "it would be valuable if the Security Council explicitly pledged to take collective action in response to a nuclear attack or the threat of such an attack on a non-nuclear-weapon State." (¶ 122)  Such a pledge would be no more than a statement of intent; nothing in the U.N. Charter or in Security Council practice would require the Council to act in accordance with the pledge.
North Korea has announced its withdrawal from the NPT under circumstances that have raised suspicions about its compliance with its NPT status as a non-nuclear-weapon State.  The Panel, without mentioning North Korea by name, said that "A State's notice of withdrawal from the [NPT] should prompt immediate verification of its compliance with the Treaty, if necessary mandated by the Security Council." (¶ 134)  The Security Council is authorized to take mandatory enforcement action under Chapter VII of the U.N. Charter if it determines that there is a threat to the peace, breach of the peace or act of aggression.  In the absence of a veto by any of the five permanent members, the Council could make such a finding when a State withdraws from the NPT and could apply mandatory sanctions, including even the authorization of armed force, if the withdrawing State refuses to allow verification.  
On several occasions the Security Council has used its authority under Article 41 of the U.N. Charter to impose mandatory sanctions, not involving armed force, on States that have threatened or breached the peace.  Those sanctions have turned out to be imperfect at best.  Sometimes they have done more harm to ordinary people in the sanctioned State than to its government, and often they have been quite porous.  The Panel emphasized the usefulness of targeted sanctions (financial, travel, aviation or arms embargoes), rather than comprehensive economic sanctions of the sort that were in force against Saddam Hussein's Iraq.    It stressed the need for effective monitoring mechanisms, supported by an adequate budget; the need for improved guidelines and reporting procedures to implement the sanctions; and, perhaps most significantly, the appointment of a senior U.N. official to advise the Security Council on how to target sanctions and coordinate their implementation.  The official would also assist with compliance efforts, identify technical assistance needs and make recommendations on adjustments needed to enhance the effectiveness of sanctions. (¶ 180)  Of course, the ultimate success of these measures would rest with the Security Council itself and particularly with its permanent member States.  
The international community has yet to agree on a universal definition of terrorism.  Recognizing this fact, the Panel recommended that the U.N. General Assembly adopt a consensus definition of terrorism based on the definitions contained in the 1999 International Convention for the Suppression of the Financing of Terrorism [4] and Security Council resolution 1566. [5]   It would encompass "any action, in addition to actions already specified by the existing conventions on aspects of terrorism, the Geneva Conventions and Security Council resolution 1566 (2004), that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act." (¶ 164)  Such a General Assembly resolution would have no binding force in and of itself, but if it is adopted by consensus or by an overwhelming majority, it would almost certainly be recognized as the authoritative definition of terrorism under international law.  
The Panel addressed the right of self-defense as it is set forth in Article 51 of the U.N. Charter.  Article 51 says in part, "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures to maintain international peace and security."  The Panel recognized that state practice has expanded the concept of "armed attack" to include a threatened imminent attack (¶ 188). [6]   It then asked a rhetorical question whether a State could lawfully act, not just against an imminent or proximate threat, but also preventively against a non-imminent or non-proximate one.  "The short answer," the Panel said, "is that if there are good arguments for preventive military action, with good evidence to support them, they should be put to the Security Council, which can authorize such action if it chooses to."  (¶ 190)  Although the Panel did not mention the United States by name, this appears to be a clear rejection of the assertion in the National Security Strategy of the United States of America that, "as a matter of common sense and self-defense, America will act against such emerging threats [involving weapons of mass destruction] before they are fully formed." [7]   The Report points out that the Security Council's mandate under Chapter VII of the U.N. Charter is broad enough to include approval of coercive action even if the threat is not imminent and even if it involves non-State actors (¶ 193).  
Nation-States have long been jealous of their sovereignty.  The sovereignty principle is reflected in U.N. Charter Article 2(7), which withholds authorization from the U.N. to "intervene in matters which are essentially within the domestic jurisdiction of any state," except when the Security Council applies enforcement measures under Chapter VII.  In the years since the inception of the U.N., the scope of "domestic jurisdiction" has gradually been whittled down.  Governments can no longer plausibly contend that serious mistreatment of individuals, even of their own citizens within their own territory, is simply a matter of domestic jurisdiction.  The Panel, recognizing this development and endorsing its further evolution, gave its approval to "the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law which sovereign Governments have proved themselves powerless or unwilling to prevent."  (¶ 203)  The Panel thus endorsed not only the Security Council's authority to take action in such instances, but also its responsibility to do so.  Moreover, it included among the circumstances calling for intervention, not just large-scale homicide, but also serious violations of international humanitarian law --- which would include such things as torture and other non-lethal, but severe, mistreatment of prisoners and civilians.  If the Security Council takes or authorizes coercive action under Chapter VII in these cases, it would fall within the exception in Article 2(7) to the principle of non-intervention in domestic jurisdiction.  Of course, the Security Council could take such action only if no permanent member vetoes it.  
The Panel raised another Article 2(7) issue when it recommended that the Security Council establish a Peacebuilding Commission.  Article 29 of the Charter authorizes the Council to establish such subsidiary organs as it deems necessary, but that authorization, standing alone, would not get around the domestic jurisdiction principle if the subsidiary organ is designed to intervene in a national government's relations with its own citizens in its own territory.  The Panel appears to have recognized this issue by calling for cooperation with the national government, but it left the door open to a further contraction of what properly belongs to a nation's domestic jurisdiction when the government fails to cooperate.  The Peacebuilding Commission would "identify countries which are under stress and risk sliding towards State collapse; [it would] organize, in partnership with the national Government, proactive assistance in preventing that process from developing further; [it would also] assist in the planning for transitions between conflict and post-conflict peacebuilding; and in particular [it would] marshal and sustain the efforts of the international community in post-conflict peacebuilding over whatever period may be necessary." (¶ 264)  It is not hard to imagine a Peacebuilding Commission going beyond what a host government would approve of; perhaps that could be reconciled with Article 2(7) if the Commision's mandate in a given case comes directly from the Security Council under Chapter VII of the Charter.  
The Panel had little good to say about the U.N. Commission on Human Rights, which has become a highly politicized body.  The Panel called for reform, first by expanding the Commission's membership to include all U.N. member States, thus giving all of them a stake in promoting human rights (¶ 285).  This alone would not be enough to make the Commission effective, so the Panel proposed that all members designate prominent and experienced human rights figures as heads of their delegations (¶ 286).  Most importantly, it proposed that the Commission be supported by an advisory council or panel consisting of 15 independent experts appointed for three years, renewable once (¶ 287).  The council of experts might well become the key to the success or failure of the revamped Commission.  
As is well known, the United States has expressed strong misgivings about the recently-established International Criminal Court and has declined to become a party to its Statute.  The Panel's contrasting view was emphatically stated.  For one thing, it called on all U.N. member States to sign and ratify the Court's Statute (¶ 233).  It also said:  
  In the area of legal mechanisms, there have been few more important recent developments than the Rome Statute creating the International Criminal Court.  In cases of mounting conflict, early indication by the Security Council that it is carefully monitoring the conflict in question and that it is willing to use its powers under the Rome Statute might deter parties from committing crimes against humanity and violating the laws of war.  The Security Council should stand ready to use the authority it has under the Rome Statute to refer cases to the International Criminal Court. [8] (¶ 90)
The United States (or any other permanent Security Council member) could veto any resolution that would refer a case or situation to the Court.  The first real test may come soon, in the context of a probable effort to refer crimes arising from the humanitarian crisis in Darfur, Sudan, to the Court.  The United States has been quite vocal in denouncing the violations of humanitarian law in that region, but it remains to be seen whether the United States would refrain from vetoing a resolution referring that situation to the Court.  
The Panel's most publicized recommendation was that the size and composition of the Security Council be reformed.  The report proposed that the Council be increased in size from its present 15 to 24, in order to enhance the involvement of States that contribute most to the U.N. financially, militarily and diplomatically.  Members of the Panel could not agree on a single model for the newly-constituted Security Council, so they proposed two possible models.  Model A would create six new permanent seats carrying no new veto power, and three new two-year non-renewable seats, apportioned among the four major regional areas (Africa, Asia and Pacific, Europe, and Americas). (¶ 252)  Model B would create no new permanent seats, but would create a new category of eight four-year renewable seats and one new two-year non-renewable seat. (¶ 253)  
Neither model would tamper with the existing veto powers of the five current permanent members of the Council (China, France, Russia, the United Kingdom and the United States).  The retention of their veto power is not a matter of principle; rather, it is strictly a matter of practicality.  Either model would have to be adopted by means of a Charter amendment.  Under Article 108 of the Charter, any amendment requires a vote of two thirds of the U.N. member States and ratification by their constitutional processes; the affirmative votes and ratifications must include those of all five current permanent members of the Security Council.  No amendment that restricted or eliminated their veto powers would have a chance of being ratified by all five. [9]  
Security Council reform has been discussed at the U.N. for several years.  Various proposals have been made and have gone nowhere.  It is conceivable, but far from certain, that the imprimatur of the High-Level Panel will reinvigorate the debate and produce real reform.  It will not happen painlessly or soon.
Addendum (Updated March 28, 2005)
On March 20, 2005, Secretary General Kofi Annan outlined a plan to reform the United Nations in a five-year report to the UN General Assembly on implementation of the Millennium Declaration.  In this report, In Larger Freedom: Towards Development, Security, and Human Rights For All, Annan called upon members of the international community to adopt a comprehensive package of measures to promote "freedom from want,"  "freedom from fear," and "freedom to live in dignity."  Secretary Annan also recommended that reform of the UN system should involve a more representative Security Council, along the lines of principles set forth in the December 2004 Report of the High-Level Panel.  In addition, Annan proposed replacing the sometimes maligned Commission on Human Rights with a new Human Rights Council, which would be comprised of members elected directly by the General Assembly. The full report and related resources is available at:
About the Author:  
Frederic L. Kirgis is Law Alumni Professor at Washington and Lee University School of Law.  He has written books and articles on international law, and is an honorary editor of the American Journal of International Law.  The author is grateful to David Scheffer for his extremely helpful comments on a draft of this Insight.  Any errors or omissions are the author's own.  
[1] The Report, "A More Secure World: Our Shared Responsibility," is on line at <>.
[2] Nuclear Tests Case (Australia and New Zealand v. France), 1974 I.C.J. 253.
[3] Statement of then-Secretary of State Warren Christopher, quoted in N.Y. Times, Apr. 6, 1995, p. A12: "The United States reaffirms that it will not use nuclear weapons against nonnuclear weapon states parties to the [NPT] except in the case of an invasion or any other attack on the United States, its territories, its armed forces or other troops, its allies, or on a state toward which it has a security commitment, carried out or sustained by such a nonnuclear weapon state in association or alliance with a nuclear weapon state."
[4] 39 I.L.M. 270 (2000).  Article 2 of the Convention defines terrorism as an act that constitutes an offense within any of nine designated treaties dealing with specific acts against civilians and civilian objects, or "Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act."
[5] Security Council resolution 1566 refers to terrorism as "criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose
to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act . . . ."
[6] The Panel stressed the word "imminent."
[7] The National Security Strategy of the United States of America (Sept. 2002), 41 I.L.M. 1478 (2002).
[8] Under Article 13(b) of the Rome Statute, the Court may exercise jurisdiction over a situation referred to the Prosecutor by the Security Council acting under Chapter VII of the U.N. Charter.  The Rome Statute appears in U.N. Doc. A/CONF.183/9, and in 37 I.L.M. 999 (1998).
[9] The Panel also recommended some minor Charter amendments that would eliminate obsolete references to "enemy States" in Articles 53 and 107, delete Chapter 13 on the Trusteeship Council, and delete all references to the Military Staff Committee (a moribund body that, according to the present Charter, consists of the Chiefs of Staff of the permanent Council members, with the function of advising the Council on military questions relating to the maintenance of peace and security).