The Contributions of United Nations Security Council Resolutions to the Law of Non-International Armed Conflict: New Evidence of Customary International Law

By Fox, Gregory H.; Boon, Kristen E. et al. | American University Law Review, January 1, 2018 | Go to article overview

The Contributions of United Nations Security Council Resolutions to the Law of Non-International Armed Conflict: New Evidence of Customary International Law


Fox, Gregory H., Boon, Kristen E., Jenkins, Isaac, American University Law Review


Introduction

Since the end of the Cold War, the U.N. Security Council ("Council") has become the preeminent international actor in the resolution of armed conflicts. This is especially true of noninternational armed conflicts ("NIACs"), now far more common than inter-state armed conflicts ("IACs").1 The Council has developed a substantial track record of quelling hostilities in NIACs, assisting in negotiating peace agreements, supervising transitions from war to peace, and designing new political and legal institutions for the postconflict societies.2 No single state or group of states has come close to matching the Council's rate of intervention.3 It is the rare NIAC that is not subject to one or more of these Council actions.4

While the Council's omnipresence in NIACs is now unremarkable, the legal consequences of its actions have hardly been examined. Few have asked whether Council actions can contribute to customary international law, let alone whether the specific obligations the Council imposes on NIAC parties should contribute to customary norms regulating those conflicts.5 Traditional customary law consisted of acts by individual states taken out of a sense of legal obligation.6 But, if states have repeatedly turned to the Council as their chosen agent to address NIACs, a continued focus on state action would elide decades of important Council practice across a wide range of conflicts. The result could be-and arguably is-an emerging body of customary norms that is increasingly disconnected from how the international community actually addresses NIACs.

Many customary law questions concerning NIACs are the subject of fierce debate, and taking account of Council actions could easily determine their outcomes. For example, a debate on whether peace agreements that end NIACs are legally binding has been indeterminate, but the Council has been clear in its view that parties must follow such agreements.7 Similarly, scholars are divided on whether non-state rebel groups are bound by human rights obligations, but the Council has been consistent and unequivocal in applying human rights standards to such groups.8 Another contested issue is whether states should hold elections in the immediate aftermath of peace settlements in NIACs. Some scholars argue there is no more important time to adhere to international standards of democratic politics.9 Others argue that immediate post-conflict elections are frequently destabilizing and may actually end up undermining democratic transitions.10 The Council has consistently sided with the former view.11

This Article is the first attempt to take account of Council practice in addressing these questions. Our analysis is based on a newlycompiled data set of all Council resolutions passed on the most consequential NIACs from 1990 to 2013.12 Despite deep cleavages over Syria, Ukraine, and a few other conflicts, the Security Council has imposed a broad and consistent range of obligations on NIAC parties.13 The Council's most ambitious undertakings in response to NIACs, which are post-conflict peacekeeping and reconstruction missions, have remained active and relatively uncontroversial.14 While the weight accorded to the Council's resolutions varies with each norm in question, we argue that, in all cases, this practice should be considered relevant evidence of law in the substantive areas we discuss.15 Though many scholars have examined the Council's so-called "legislative resolutions"-binding, treaty-like documents obviously intended to affect international law-our data is the first to assess normative patterns across conflict-specific resolutions.16

The data also allow us to respond to the most common critique of using Council practice as evidence of customary law: that Council resolutions address only discrete aspects of specific conflicts and do not establish broad, prospective rules of general application.17 The dense patterns of obligation we identify are quite similar to the repetitive practices of states in traditional customary law. …

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