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CIAO DATE: 04/06
Taking the International Rule of Law Seriously
Laurence Boisson de Chazournes
October 2005
Executive Summary
The scope of the collective security system established under the United Nations (UN) Charter has expanded significantly since the end of the cold war. Aside from the increasingly broad understanding of the concept of "threat to international peace," there has also been a related widening of the range of measures that may be adopted by the Security Council under Chapter VII of the Charter.
Measures of an economic nature adopted in application of Article 41 of the Charter are among the most frequently used in the realm of collective security. However, the application of these measures has often created negative side effects for the populations of states directly targeted by the sanctions and by third states. Requests for corrective measures have relied mainly on better compliance with human rights and humanitarian law as well as with specific provisions of the UN Charter. Economic considerations have been incrementally integrated in collective security decision-making, but only in an incidental or marginal fashion. To date, there have been no clear solutions proposed in the short or medium term to assess the impact of measures adopted within the collective security system in economic and regulatory terms. In particular, no principle or rule of economic law has been formulated to prevent harmful effects on third parties, be they states or non-state entities.
In recent years, the UN Security Council has also adopted an increasing number of economic reconstruction measures aimed at contributing to the restoration of peace in war-torn territories. These measures have brought to light the limitations of the existing UN collective security system to deal with economic issues that concern international peace and security. As it stands, Security Council actions are mainly reviewed in accordance with the UN Charter, and with human rights and humanitarian law principles.
The growing convergence between collective security measures and economic measures suggests that a broader set of principles and rules of international law are applicable to collective security decisions. The increasing interdependence of security and economic concerns was most recently acknowledged by the UN member states at the 2005 World Summit of 14-16 September, at which they endorsed the establishment of a Peacebuilding Commission. Yet much uncertainty remains as to the international legal principles applicable to economic measures adopted in the collective security context. The question posed is whether and how principles and rules of international economic law, including international trade law, find material application in these contexts.
This paper argues that respect for the international rule of law should not be based solely on adherence to the UN Charter when reviewing collective security measures of an economic nature. The promotion and integration of principles such as fair competition, non-discrimination and transparency would help enhance the legitimacy of the UN Security Council. While upholding the rule of law at national and international levels has been hailed as a key UN objective, such rhetoric is undermined by the reluctance of the Security Council to adopt regulatory mechanisms.
