Two Crises of Confidence: Securing Non-Proliferation and the Rule of Law Through Security Council Resolutions

Abstract

This timely article describes the powers of the United Nations Security Council as they have developed in the field of non-proliferation, and proposes a normative framework based on the model of reciprocal confidence-building that would bridge the dissonance between legality and legitimacy in the Security Council's practice. Recent proliferation crises, concerning Iran, North Korea, and non-state proliferation networks, have led the Council draw upon various sources and resources' express and implied powers under the UN Charter, powers granted by specific treaties, international consensus' to expand its powers.

This paper attempts to transcend false choices between power politics and law, between contingency and formalism, or between deferral and escalation, which are often used to characterize the security Council's resolutions. Instead, it proposes lateral and confidence-building measures developing the Council's capacity to deal with systemic crises while seeking to secure confidence in the rule of law. This paper offers three examples of lateral, but law-governed strategies that the Security Council may pursue. First, the Council may deploy generally applicable legislative measures aimed at developing the capacities of states in activities such as interdiction. Second, it discusses generally applicable resolutions aimed at developing the Council's own capacities to support and enforce multilateral commitments. Finally, it indicates the authority to pursue, through Article VI voluntary agreements, confidence-building measures which would also include objective factual triggers (crises of confidence) for enforceability though Chapter VII.

Keywords: confidence-building, dispute resolution, collective security, rule of law, United Nations, Security Council, non-proliferation, weapons of mass destruction, Iran, North Korea, Iraq, emergency measures, formalism, contingency, international organizations, international lawmaking, compliance theory