U.N. Security Council Reform and the Duty to Decide

U.N. Security Council

The armed conflict in Syria, ongoing since 2011, garnered increased attention from the international community this week. First, the European Union did not renew an arms embargo on the Syrian opposition, thus allowing EU member states to make their own decisions about whether to provide military resources to parties to the conflict. Then, Russia announced that it intended to uphold a defense contract to provide weapons, including air defense systems, to the Syrian government. These developments have frustrated efforts led by the U.S. and Russia to initiate peace talks between Syrian President Bashar al-Assad and the Syrian opposition in Geneva in June. U.S. Secretary of State John Kerry was critical of Russia’s decision, saying “[i]t is not helpful to have the S-300 transferred to the region while we are trying to organize this peace [conference] and create peace.”

Notably absent from the headlines is the U.N. Security Council. The Council’s heavily criticized handling (or lack thereof) of the Syrian conflict shows that despite the fact that the Council has “primary responsibility for the maintenance of international peace and security,”[1] it also has no legal obligation to take actions or make decisions on crises that arise within the scope of its mandate. In my recently published article in the Harvard National Security Journal, I argue that it should. The Security Council is the only governing body with the legal authority to authorize binding measures necessary to restore peace and security, yet neither the United Nations Charter nor the Council’s own rules clarify the extent of its obligations. Unlike courts, the Security Council lacks a procedural rule establishing that it has a duty to decide. As a result, Security Council members can, and frequently do, defer making decisions in politically difficult cases. The costs of this ambiguity to those who depend on the Council for their security are high, making debate about reform critical and necessary.

In my article, I propose a model of reform that focuses on improving the Council’s decision-making practices through the adoption of three new procedural duties. First, the duty to decide would require the Council to take up decisions about whether or not it will take action in crises under its jurisdiction. Second, the duty to disclose would require the Council, when it takes no decision in a particular situation, to publicly disclose its reasoning for not doing so. Third, the duty to consult would obligate the Council to take reasonable measures to consult those nations, and the people therein, most affected by decisions falling under its Chapter VII authority regarding sanctions, intervention, and the use of force.

This framework provides a method of reform that places the Council in control of instituting changes to improve its decision-making process. I argue that unlike many other reform proposals, this approach is viable because it has the capacity to improve the Council’s effectiveness and address some of the common critiques of the Council’s lack of accountability and transparency, while still affording the Council the ability to control reform through the adoption of new procedural rules. Drawing upon statements made by U.N. Security Council Members and other U.N. members at the fifth Open Debate on the Working Methods of the Council meeting in November 2012, I show that there is considerable support for engaging in procedural reform and that such reform offers a viable pathway for initiating change at the Security Council. I also draw upon theoretical insights from international legal process theory, social psychology and negotiation theory to explain under what conditions procedural reform is effective and why it matters. For example, establishing the duty to consult is important because empirical research shows that increasing participants’ process control improves their perceptions about the fairness and legitimacy of the outcome.[2]

Ultimately, reform is necessary if U.N. Security Council is going to remain the shepherd of international peace and security. The proposed duties to decide, to disclose and to consult offer a politically viable start. However, I also recognize that procedural reform cannot and should not be a substitute for the more complex and difficult conversation that needs to take place about the purpose and function of the Security Council in the 21st century. One of the critical questions the Council faces, as the Syrian conflict has demonstrated, is whether or not the Council intends to assume responsibility for global peace and collective security. As the Open Debate showed, many U.N. members assume that the Council is concerned with regional security, civil wars and other threats to the peace that do not fall within the scope of situations envisioned in Article 39 at the end of World War II.

Such expectations are based on the presumption that the Council is responsible for collective peace and security globally. If the Security Council  is not going to be the locus for collective peace and security, we face an era where other organizations such as NATO and individual nations will intervene into armed conflicts in the Council’s absence. For these reasons and more, the Council’s responsibility for peace and security given today’s realities must be defined and confirmed. Until that happens, procedural reform offers a pathway toward improving the way the Council operates while the world waits for comprehensive reform.

[1] U.N. Charter Article 24.


Uganda’s Marriage and Divorce Bill on the Table, Again

While international eyes are focused on Kenya in light of the recent elections, an important debate is ongoing in Uganda.

Uganda’s Marriage and Divorce Bill of 2009 is finally being debated in its parliament.  The bill in its various iterations has been waiting for parliamentary approval for approximately 40 years.  Although it would be an important step forward for women’s rights in marriage, many provisions of the bill remain controversial.

The Marriage and Divorce Bill has a long and tortured history.  A version of the bill was presented to Parliament in the 1970s, designed in part to improve women’s rights in marriage and also to consolidate the multiple acts regulating customary marriage, Hindu marriage, civil marriage, Christian marriage, and Islamic marriage.  This bill failed to pass.  A 2003 Domestic Relations Bill sought to achieve the same goals, but faced enormous resistance from Muslim groups opposed to the provisions banning polygamy.  After being rejected by Parliament in 2006, the bill was split into a Muslim Personal Bill, which covers Muslim marriages, and the Marriage and Divorce Bill, currently being debated.

Among the controversial provisions in the current bill are those that pertain to brideprice, a customary practice requiring payment of consideration by a groom to his wife’s family.  For years women’s groups have contested the customary practice requiring payment of brideprice to legitimize a marriage, yet its supporters consider it to be an important cultural element of marriage.  The Constitutional Court recently refused to ban the practice, a decision that is currently being appealed to the Supreme Court.  The current Marriage and Divorce Bill states that brideprice cannot be treated as a pre-requisite for marriage, and makes criminal the act of demanding repayment of brideprice.

Although many argue that this payment is merely symbolic, in conversations with me, Ugandan women have complained that it permits men to consider their wives their property and grant them few rights.  In connection with women’s ability to own or inherit property, I have often heard the phrase, “property cannot own property.”

The demand for repayment of brideprice can also keep women in abusive or unhappy marriages.  If a woman seeks a divorce, her husband or his family often demands a return of brideprice.  Unfortunately, that brideprice has not been paid to the woman herself, but her family, and it is not often available to be returned.

The bill, if enacted, would improve women’s rights dramatically.  In addition to the brideprice provisions, the bill prohibits “widow inheritance” (the practice of marrying off a widow to her deceased husband’s relative), grants certain rights to cohabiting couples, and equalizes the previously discriminatory divorce provisions.  On the other hand, an unfortunate effect of the bill is that it codifies the prohibition on same-sex marriages.  In addition, some feel that it does not adequately address the harms of polygamy.

Women’s groups have waited 4 decades for an improved marriage law.  Yet on March 9, 2013, President Yoweri Museveni suggested that the process of passing the bill is being rushed, and called for caution before enacting the bill.  Supporters can only hope that “caution” does not translate into failure to act.