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The UN Security Council and Non-state Actors

Published online by Cambridge University Press:  31 December 2019

Kristen Boon
Kristen Boon*
Affiliation:
Professor of Law & Associate Dean for Faculty Research & Development, Seton Hall Law School.
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Extract

Since the end of the Cold War it has become clear that non-state actors (NSA)1 can have a substantial impact on situations affecting international peace and security.2 Although the authority of the Security Council to directly address NSA is not uncontroversial, it is clear that as a practical matter the Council does exercise this authority regularly.3 My remarks will address this practice and explain its legal significance.

Type
Legal Techniques for Resolving Armed Conflicts with Non-state Actors
Information
Proceedings of the ASIL Annual Meeting , Volume 113 , 2019 , pp. 209 - 212
Copyright
Copyright © 2019 by The American Society of International Law

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Footnotes

This panel was convened at 9:00 a.m., Friday, March 29, 2019, by its moderator Randa Slim of the Middle East Institute, who introduced the panelists: Kristen Boon of Seton Hall Law School; Margaux Day, of the Public International Law and Policy Group; Gregory Fox of Wayne State Law School; and Vikram Raghavan of the World Bank Group.

References

1 By non-state actor, I refer to armed non-state actors, although the definition is open to some debate.

2 Greg Fox, Kristen Boon & Isaac Jenkins, The Contributions of United Nations Security Council Resolutions to the Law of Non-international Armed Conflict: New Evidence of Customary International Law, 67 Am. U. L. Rev. 649 (2018). See also Jessica S. Burniske, Naz K. Modirzadeh & Dustin A. Lewis, Armed Non-state Actors and International Human Rights Law: An Analysis of the Practice of the U.N. Security Council and U.N. General Assembly (Harv. L. Sch. Program on Int'l L. & Armed Conflict ed., 2017), available at http://blogs.harvard.edu/pilac/files/2017/06/HLS-PILAC—ANSAs-and-IHRL—June-2017.pdf.

3 Some permanent members of the Security Council have tried to limit the Council's interaction with non-state actors, and on some resolutions, such as 2395, there have been concerted efforts to limit interaction and input from non-state actors. This push back on references to non-state actors presumably seeks to emphasize state sovereignty. See SC Res. 2395 (Dec. 21, 2017).

4 SC Res. 1540, pmbl. para. 8 (Apr. 28, 2004).

5 Id.

6 SC Res. 2067, para. 18 (Sept. 18, 2012) (emphasis added).

7 SC Res. 2459 (Mar. 15, 2019).

8 SC Res. 2056 (July 5, 2012); see also SC Res. 2100 (Apr. 25, 2013). See generally Marina Lostal, Kristin Hausler & Pascal Bongard, Culture Under Fire: Armed Non-state Actors and Cultural Heritage in Wartime, Geneva Call (David McDonald ed., 2018), available at https://www.biicl.org/documents/10_cultural_heritage_study_final_highres.pdf.

9 Katharine Fortin, Armed Non-state Actors and International Human Rights Law: An Analysis of the UN Security Council and UN General Assembly, U Call (Oct. 13, 2017), at http://blog.ucall.nl/index.php/2017/10/armed-non-state-actors-and-international-human-rights-law-an-analysis-of-the-un-security-council-and-un-general-assembly/#more-927.

10 Our study found: Fox, Boon & Jenkins, supra note 2, at 701 n. 265 (“See S.C. Res. 1975, ¶ 1 (Mar. 30, 2011) (Côte d'Ivoire); S.C. Res. 1132, at 1 (Oct. 8, 1997) (Sierra Leone); S.C. Res. 841, at 2 (June 16, 1993) (Haiti); S.C. Res. 804, at 2 (Jan. 29, 1993) (Angola)”). Id. at 701 n. 266 (“See, e.g., S.C. Res. 2113, at 4 (July 30, 2013) (condemning the human rights and humanitarian law violations occurring in Sudan); S.C. Res. 2098, at 2 (Mar. 28, 2013) (expressing concern over the transgressions of human rights and humanitarian law in DR Congo); S.C. Res. 1964, at 2 (Dec. 22, 2010) (condemning human rights violations occurring in Somalia); S.C. Res. 1935, ¶ 9 (July 30, 2010) (demanding that all groups in Sudan comply with their international human rights and humanitarian law obligations); S.C. Res. 1577, at 2, ¶ 5 (Dec. 1, 2004) (considering appropriate measures for armed organization responsible for human rights violations in Burundi); S.C. Res. 1509, ¶ 4 (Sept. 19, 2003) (demanding parties in Liberia fulfill their obligations under the peace and ceasefire agreements).”). Id. at 701 n. 267 (“S.C. Res. 752, ¶ 1 (May 15, 1992) (demanding “that all parties and others concerned in Bosnia and Herzegovina stop the fighting immediately, [and] respect immediately and fully the cease-fire signed on 12 April1992.”)”). Id. at 701 n. 268 (“S.C. Res. 792, ¶ 8 (Nov. 30, 1992) (demanding “that the PDK fulfil immediately its obligations under the Paris Agreements”)”). Id at 701 n. 269 (“S.C. Res. 1214, ¶ 12 (Dec. 8, 1998) (demanding that “Afghan factions put an end to discrimination against girls and women and other violations of human rights”).”).

11 Jan Klabbers, (I Can't Get No) Recognition: Subjects Doctrine and the Emergence of Non-state Actors, in Nordic Cosmopolitanism: Essays in Int'l L. for Martti Koskennienmi 351, 354–55 (Jarna Petman & Jan Klabbers eds., 2003) (arguing that there must be a justification for placing international obligations on non-state actors).

12 See Greg Fox, Kristen Boon & Isaac Jenkins, The Contributions of United Nations Security Council Resolutions to the Law of Non-international Armed Conflict: New Evidence of Customary International Law, 67 Am. U. L. Rev. 649, 669 n. 82 (2018).

13 Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 ICJ Rep. 174 (Apr. 11).

14 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010 ICJ Rep. 403, 470, para. 116 (July 22).

15 For conflicts contained within our period of study, the average duration was 9.8 years, with a median of fourteen resolutions per conflict and an average of 27.6. See id. at 663.

16 The Council has invoked Chapter VII in 48% of conflicts, and usage of Chapter VII corresponds to the conflicts with the highest number of resolutions (such as Bosnia), confirming (4). Fox, Boon & Jenkins, supra note 2, at 664.

17 See generally Draft Conclusions on Identification of Customary Int'l L., Conclusions 4, 12, 2018 2 Y.B. Int'l Comm'n 122, UN Doc. A/73/10 (Aug. 10, 2018).

18 North Sea Continental Shelf (Ger. v. Den; Ger. v. Neth.), Judgment, 1969 ICJ Rep. 3, 43, para. 74 (Feb. 20) (emphasis added).

19 UN Charter Art. 14.

20 SC Res. 2383, para. 15 (Nov. 7, 2017) (“Affirms that the authorizations renewed in this resolution apply only with respect to the situation in Somalia and shall not affect the rights, obligations, or responsibilities of Member States under international law, including any rights or obligations under The Convention, with respect to any other situation, and underscores in particular that this resolution shall not be considered as establishing customary international law.”).

21 Int'l L. Ass'n, Statement of Principles Applicable to the Formation of General Customary International Law, at pt. III (2000).