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The UNSC and "legal hegemony"
As you may know, the United Nations Security Council has demanded that Iran abandon the enrichment of Uranium. Does the UNSC have the legal authority to make this demand? There are people especially in the US who declare that the UNSC is now essentially a "global legislator" and as such it can legally demand anything it wants, unbound by any laws or rules since (according to the proponents of this view) the UNSC is supposedly the only judge of its own legal competence and authority.
On that point, I recommend reading:
The Security Council as Legal Hegemon
by Daniel Joyner
Georgetown Journal of International Law, Vol 43, pp. 225-258 (2011-2012)
Joyner discusses several examples of the Security Council "demonstrating its relatively recent determination that it is essentially unbound by law, whether UN Charter law or otherwise..."
"[The] permanent five's adoption of the Security Council as an instrument for carrying out their own political agendas through international lawmaking in this area, is likely to be quite disconcerting to many smaller, developing countries, who might legitimately worry whether they will be the next target of the Council's omnipotent and politically motivated attentions. It thus becomes necessary to consider what international law, and the international legal system, can or should do to protect states, particularly smaller and developing states, from the UN Security Council and its demonstrated bullish, near hegemonic attitude towards its own legal authority."
And specifically regarding Iran's right to enrich uranium as recognized by the NPT,
"In summary, then, by trampling upon a right of states recognized in a broadly subscribed treaty to be an "inalienable right," the Security Council in Resolution 1737 and subsequent related resolutions on Iran overstepped the bounds of its Chapter VII authority. It has at least in doing so pushed the limits of that authority to a point at which serious questions must be asked about the limits of its authority, and how international law should respond to this challenge in order to guarantee that there are legal limits placed upon the power of the Security Council, preventing it from becoming a legal hegemon unbound by law."
He goes on to discuss Iran's uranium enrichment can bee seen as a right protected by jus cogens (fundamamental principles of international law that are non-derogable), and therefore outside of the Security Council's arbitrary and self-serving claims of authority:
"Thus, to return to the case study of Iran, if the inalienable right to peaceful nuclear energy technologies recognized in Article IV of the NPT were to be additionally recognized as among the fundamental rights of states, and thereby achieve the status of a rule of jus cogens, this would form an effective legal curtailment of the authority of the Security Council to restrict this fundamental right and would serve to protect developing countries in their exercise of this right."
Two points should be made: first, notice that the proponents of the view that the UNSC has unrestricte authority to define its own powers are not primarily making a principled legal argument. but are instead making a policy proscription: in their opinion, the UNSC should be unfettered because supposedly that's the best way for the UNSC to deal with "threats of the 21st Century." Well, people are entitled to their opinions but opinions are not legally binding.
But more specifically with regard to Daniel Joyner's article: it is too bad that he posits his argument in conditional terms when he prefaces it with an "if":
"if the inalienable right to peaceful nuclear energy technologies recognized in Article IV of the NPT were to be additionally recognized as among the fundamental rights of states, and thereby achieve the status of a rule of jus cogens..."
But there is no need to use such hedging language, since it isn't the right of enrichment per se that should "achieve" the status of jus cogens. Remember, jus cogens is about principles of international law that are non-derogable, not specifics. There is no need for the right of enrichment per se to be viewed as jus cogens, as long as that right can be seen as protected by an already existing and well-recognized element of jus cogens, namely, the basic principle of all international law: the sovereign equality of states.
You see, there is no fundamental law of nature which says that some countries are entitled to enrich uranium and some are not. Either all countries have this right or none do, since the most basic principle of international law is that all nations are legally equal and have the same legal rights. After all the sovereign equality of nations is already a well-recognized peremptory norm of international law. One well respected commentator on international law put it this way:
"The equality before International Law of all member-States of the Family of Nations is an invariable quality derived from their International Personality. Whatever inequality may exist between states as regards their size, population, power, degree of civilization, wealth and other qualities, they are nevertheless equal as International Persons..."
In fact, the first paragraph of the United Nations Charter makes this clear:
"The Organization is based on the principle of the sovereign equality of all its members."
And so to the extent that the UNSC purports to have a right to arbitrarily pick and choose which countries gets to exercise certain rights and which do not, the UNSC is violating that very basic and non-derogable peremptory norm of sovereign equality, which is very much a recognized element of jus cogens.
The question therefore isn't whether uranium enrichment itself is a peremptory norm and fundamental right of states, which is how Joyner frames the issue, but whether the UNSC's selective and arbitrary approach to deciding what countries do and what countries do not have that right, constitutes a violation of the principle of Sovereign Equality.