The United Nations Security Council & The Enforcement of International Law

Professor Christoph Mikulaschek teaches within Harvard University’s Department of Government, focusing on the power dynamics that define international law, security, and organizations. He holds a Ph.D. in Political Science from Princeton University and a Master’s Degree in International Affairs from Columbia University. In 2018, he was awarded the American Political Science Association’s Merze Tate Award for the best dissertation in the field of international relations, law, and politics. His dissertation examines the role of informal power-sharing in the proceedings of the UN Security Council. Professor Mikulaschek’s work has been published or is forthcoming in the American Journal of Political Science, International Organization, the Journal of Conflict Resolution, and the Review of International Organizations.

The interview below was conducted in the Fall of 2021. It has been edited for brevity and clarity.

Harvard Undergraduate Law Review (HULR): Throughout this interview, I would love to get to know more about your experience in the international law field and the scholarship you’ve conducted, particularly on mechanisms of international law enforcement such as the United Nations Security Council.

The first question that I had was about your work on minor powers’ influence in the UN Security Council. The research you’ve conducted points to minor powers in the international system’s disproportionate influence within Security Council proceedings. I would love to hear an overview from you on why that might be and what the implications of that are. Essentially, do you believe it benefits the international system for minor states to hold increased power in the United Nations?

Professor Mikulaschek (PM): The conventional wisdom we have in political science, but also in the news media is that the UN Security Council is an institution dominated by the five great powers with vetoes. My own research challenges this conventional wisdom, and I show that, contrary to this conventional wisdom, minor powers counterintuitively have more influence than you would expect based on the distribution of Council's members’ material capabilities. Also, if you think about the formal rules of decision-making in the Council, the minor powers have much more influence in this institution than the formal rules would give them. So, this is almost paradoxical: where does minor powers' influence come from? Well, I show in my book manuscript that the great powers care deeply about getting unanimity on the issues that they are most passionate about. For instance, the authorization of the use of force by the United States, or the imposition of sanctions against Iran, or other big-ticket items that are really at the core of the national interests and foreign policy agendas of these great powers. In exchange, to rally all 15 votes in support of their preferred policy proposals on these issues, these great powers share disproportionately large influence with minor powers on the issues that are most salient to those minor powers, which tend to be different topics.

For instance, African countries care most deeply about an active response from the UN Security Council to civil wars in their own regional neighborhood. I exploit exogenous rotation rules in the Council’s inner workings to conduct design-based causal inference based on natural experiments to show that when a given African region is represented on the Security Council, the UN sends some 920 more blue helmets to civil-war countries in that region than it does during years when no state in the region has a seat at the table — i.e., when that region is absent from the Council. The conventional wisdom cannot account for this stunning effect of minor powers' representation on the UN Security Council because it would assume that it’s the P5 running the show.

To respond to the final part of your question, which is about: is this a good thing or a bad thing? Well, it depends. On the one hand, this shows that the UN Security Council is a much more agile institution than the conventional wisdom gives credit for. It is often portrayed as an institution that still looks the way it did when it was created in the 1940s, but that's not true. Observers often tend to focus on membership reform, which obviously has been stalled. Still, the working methods of the Security Council have drastically changed over the course of its long history, and today’s working methods are radically different from those back when the institution was created. Essentially, the Council realizes that it relies on the voluntary cooperation and consent of actors outside the Council’s chamber— e.g., non-council members who provide 96 percent of the blue helmets deployed by the Council worldwide. The Council also relies on non-Council members to implement its sanctions in armed conflicts. These other countries would not voluntarily cooperate with the council if the council merely pushed to pursue the national interest of the five veto members.

On the other hand, there is a risk that initiatives promoted by minor powers during their two-year term on the Council can backfire after these states leave the Council. For instance, Venezuela was the most vocal advocate of establishing UN ‘safe areas’ in Bosnia in 1993. When the UN’s commitment to protecting the safe areas was tested in 1995, Venezuela no longer served on the UN Security Council, and the UN failed to deter the assault on Srebrenica.

HULR: I also wanted to talk about one of the specific enforcement measures that the UN Security Council can take, which is imposing economic sanctions on nations that have violated international law. There has been a lot of interjection from economists and scholars of international law on the financial distress that sanctions can bring on citizens who have little influence over their nation’s decisions to violate international law. Despite this, why do you think that economic sanctions remain so widely used as enforcement mechanisms in the global sphere?

PM: So, I believe that economic sanctions can be an important tool to enforce compliance with international law and, particularly, obligations imposed by the UN Security Council. In general, reciprocity is one of the cornerstones of the politics of international law. When one country violates its commitments under international law, other countries harmed by that non-compliance can respond reciprocally. For instance, in the international trade arena, the World Trade Organization can authorize retaliatory tariffs when one country doesn’t abide by its obligations under international trade law. In many issue areas, we see a similar pattern of the right to respond reciprocally to violations of international law. But, in the issue area you talked about—the UN Security Council and the maintenance of international peace and security—economic sanctions have been extremely prominent for decades, especially since the early 1990s. But, there has also been a shift away from blanket economic sanctions to so-called smart sanctions directed at specific individuals, companies, or organizations. Alternatively, they aim to restrict trade with key commodities as opposed to just cutting all economic ties, like comprehensive economic sanctions of the early 1990s did. In a way, the international community has acknowledged and learned from the problems you mentioned, including the humanitarian toll of comprehensive economic sanctions. That explains, in part, why we now have a second generation of smart sanctions. 

There have been several decades of academic debate on the effectiveness of sanctions. Sanctions have a mixed success record. Whether you think the glass is half empty or half full really depends on your perspective. But, in a way, measuring the success of sanctions is also complicated by the fact that countries pursue various objectives through economic sanctions. Some sanctions seek to coerce a change in the behavior of the sanction's target, while others merely aim to constrain access to the resources needed to engage in some proscribed activity. So, in the latter case, the idea is not to coerce a behavioral change, but it’s just to reduce the ability of the sanction’s target to actually implement the behavior that the target wants to enact. Third, some sanctions merely aim to signal that some violation of international law is inappropriate and to stigmatize the target of the sanctions for the violation of international law. In the latter two cases, where the goal is to constrain or stigmatize, we shouldn't necessarily expect sanctions to lead to behavioral change by the sanction’s target because that was not the goal pursued by the actors who imposed the sanctions.

HULR: Currently, nations can only really achieve legal justification of war for reasons of self-defense, ally defense, or approval from the United Nations. Have there been examples of states exploiting the power and legitimacy of the UN when attempting to initiate a violent conflict? What measures does the UN take to review war’s true “necessity”?

PM: Since 1945, one of the founding stones of the international legal order has been this general prohibition on the use or threat of force, which is enshrined in the UN Charter in Article 2. As you said, there are only two exceptions from this general prohibition: (individual or collective) self-defense or the authorization of the use of force by the UN Security Council. Your question focuses on the UN Security Council. The UN Charter, in Article 39, gives the Council remarkable latitude and discretion in determining the existence of a threat to international peace and security. In other words, it is up to the Council to determine, on a case-by-case basis, which kind of situation or behavior threatens international peace and security. Once the Security Council has identified a threat to international peace and security, it can make use of a vast array of tools to respond to this threat, including by authorizing the use of force by individual countries or by international organizations like NATO. 

Then the question is, what is a threat to international peace and security? In which circumstances is the Council allowed to authorize the use of force? Well, the Charter gives the discretion to determine the existence of a threat to international peace and security to the UN Security Council. So, the Security Council has the right and responsibility to determine whether such a threat exists and how to respond to it. With great power comes great responsibility and the potential to abuse that power for nefarious purposes. The question of whether the International Court of Justice can legally review decisions like the authorization of the use of force by the UN Security Council is an open one, which hasn’t been settled yet. It came up in court cases, but the International Court of Justice, one may suspect, strategically refrained from giving a clear answer. But, clearly, the Council itself has wide discretion and there have been two main concerns about how it exercises its responsibility. One is the use of the veto to block the response to an actual threat to peace and security, which would then lead to the massive loss of human lives—and we’ve seen that in many cases. 

The other concern is, of course, when the Council does authorize the use of force for some goals that are not consistent with the UN Charter, and here we have seen much less of this, I would say. The reason is that five countries with very different foreign policy orientations have vetoes in the Security Council. If one of them wanted to get the Council to approve the use of force for a purpose that’s not consistent with the UN Charter, others would likely object. There was one case in 1994 when, arguably, there was some kind of logroll between the great powers on the Council. The UN Security Council authorized the French intervention in Rwanda, Russian intervention in Georgia, and US intervention in Haiti. According to some diplomats, there may have been some issue linkage between these three cases where there may have been a logroll. But, that is a rare exception. In most cases, the most effective institutional check against the authorization of interventions for nefarious purposes is to get nine positive votes in the UN Security Council, including no veto.

HULR: Going back to the earlier discussion on minor powers’ influence in the UN Security Council: when trying to determine what a threat to international peace and security is, do you find that the interests of the permanent Security Council powers are prioritized over the interests of these minor powers when considering the authorization of the use of force?

PM: It depends. For instance, think about the most prominent case in 2003: the US and its allies were pushing very hard to get the UN Security Council to authorize the use of force in Iraq and the UN Security Council didn’t. The vote was never held, but according to the records of the diplomats who sat on the Council at the time, the US and its allies would have gotten less than a handful of positive votes in support of the authorization out of 15. So, the US did not succeed to convince these minor powers to support the intervention and, at the end of the day, if a vote had been held, it wouldn’t have been vetoed by France, Russia, or China, because the US and the UK wouldn’t even have gotten nine positive votes even though, at the time, all the levers of US diplomacy were applied—all kinds of sticks and carrots, if you will. Still, the most powerful country in the world did not get its way. I think that this example shows that the UN Security Council doesn’t simply rubber-stamp the preferences of the great powers, even in such a high-profile case.

HULR: How do the actions of international organizations shape public opinion on international and foreign affairs — and what work can international organizations do to ensure that the public is informed about major violations of international law throughout the world?

PM: In a way, we have to ask ourselves: why does the US even want to get the UN Security Council’s approval of the use of force before it embarks on a military intervention elsewhere? There are two main rationales: to bring other countries on board to send a signal to government leaders abroad so that they’re more likely to join the intervention or at least refrain from obstructing it. The other motivation is to send a signal to the domestic public and the public of allied nations, who may then support their own country’s participation. Governments pay keen attention to the signaling effect the UN Security Council or NATO or other international organizations have on public opinion. In my own research, I conducted survey experiments with large nationally representative samples in the United States and in two European countries, and I show that the authorization of the use of force by the UN Security Council has a very strong effect on the attitudes of American citizens and also those of European publics. What’s really interesting, though, is that the effect of the signal depends on whether the institution is united or divided. A united UN Security Council sends the signal that the international elites in this institution are all in agreement with the policy—they are all in support of it. Whereas, the authorization of the use of force by a divided Council, despite the vocal dissent by some Council members, signals that these international elites are divided over the merit of this intervention. That sends a very different signal to members of the public who come away thinking that maybe there are two sides to this. Public opinion will rally much less in support of an intervention when a divided Security Council has authorized that intervention than they do when it has been endorsed by a united Security Council—a unanimous vote in the Security Council. I find similar patterns with the adoption of electorally salient policies in the European Union. So, this is not just a phenomenon that we can solely find in the UN, but it generalizes to other international organizations as well.

HULR: Another aspect of international law that I wanted to talk about was the complications that arise when different nations try to find some sort of universality to international law. Of course, various nations employ different legal systems and often have different values reflected in their national legal systems. Yet, we still have aspirations for implementing international law standards as a mechanism for the promotion of peace and justice globally. Can you envision a world where international law is applied consistently in most world areas, or do you feel that that sort of international law utopia is far out of reach?

PM: So, there is an often-cited observation that most nations comply with most international legal rules most of the time, and that is certainly true even today. It may not be apparent when you look at the news because the media understandably focuses on reporting on those cases of egregious violation of the laws of war, human rights, or free trade, and do not even acknowledge that all of these other norms in international law are consistently implemented on a day-to-day basis. I think there are ways to marry universalism and regionalism and international law. In a way, international law is not just codified and progressively developed through global institutions like the United Nations. It reserves an important role for regional organizations like ASEAN, the African Union, or the European Union. These institutions then shape their own regional international rules and organizations according to their own customs, cultures, and understandings. For instance, the African regional human rights document doesn’t just spell out individual rights, which is our traditional understanding in the West about human rights as rights of an individual citizen. But, it also spells out responsibilities and the rights of people. So, there is a place for diversity in international law.