The UN Security Council as regulator and subject of the rule of law: conflict or confluence of interest?

A central theme to emerge from this volume is how the UN Security Council’s decision-making process shapes, and in turn is shaped by, the idea of the rule of law (ROL). As all chapters demonstrate in one way or another, the Council’s engagements with the ROL tend to unfold on two separate but connected fronts. First, there is the external front, where the UNSC acts as promoter, enforcer or protector of the ROL. As Terence Halliday insightfully observed at one of the workshops from which this book evolved, when engaging with the ROL in this way the UNSC strengthens the ROL ‘on the offence’, thus playing the role of regulator of the ROL. The key question on the external front is how UNSCauthorised activities in the areas of peacekeeping, sanctions and force might better promote the ROL. Second, there is the internal front, where the UNSC acts as subject of the ROL. When engaging with the ROL in this way, the UNSC strengthens the ROL ‘on the defence’, thus playing the role of subject or regulatee of the ROL. The key question on the internal front is how the ROL as an important principle of governance might be better respected in the UNSC’s decision-making processes that lead to the authorisation of peacekeeping, sanctions and force. This chapter draws on the contributions to this collection to explore how the UNSC’s actions on the external and internal fronts enhance (or indeed impede) the Council’s capacity to regulate international peace and security. The chapter argues that the Council’s capacity to strengthen the rule of law on the external front will be stronger when it respects the rule of law on the internal front. Put another way, the more responsive the Council is as both regulator and subject of the ROL, the greater its capacity will be to strengthen the ROL. The chapter proceeds in three sections. Section 1 examines how the UNSC can strengthen the ROL when playing the role of regulator of the ROL. Section 2 then explores how the Council can strengthen the ROL when playing the role of subject or regulatee of the ROL. Section 3 turns to the future, drawing on the analysis in both this chapter and the collection as a whole to advance proposals designed to increase the capacity of the UNSC to strengthen the ROL through its future practice on both the external and internal fronts, whether as regulator or subject of the ROL.