Person:

Kapoor, Radhika

On December 9, 2022, the United Nations Security Council adopted resolution 2664 (2022), laying down a limited, standing humanitarian-related “carve-out” from Council-decided asset freezes. The resolution warrants close attention from U.N. Member States. That is not only due to the resolution’s consequential character. It is also because the core obligations arising from it are notably complex and raise correspondingly intricate issues concerning interpretation and implementation.

In this interpretive note for the Harvard Law School Program on International Law and Armed Conflict, Radhika Kapoor, Dustin Lewis, and Naz Modirzadeh seek to support U.N. Member States’ initial efforts to understand and implement certain key aspects of the resolution, especially the humanitarian-related “carve-out” at its center. As explained in the interpretive note, U.N. Member States bear principal responsibility for carrying out the legal mandate entailed in resolution 2664 (2022). Those States will, as a minimum, need to review and, as relevant, make adjustments to their national legal systems and any multi-State legal arrangements to which they belong, such as a regional organization. Further, members of the Security Council will need to evaluate the implications of the resolution with respect to each of the affected sanctions regimes and take the action warranted to address those implications. U.N. Member States may also take action to support those responsible for the briefings (the U.N. Emergency Relief Coordinator) and the report (the Secretary-General) requested by the Security Council.

States spend tens of billions of dollars each year to help implement humanitarian programs in conflicts across the world. Yet, in practice, counterterrorism objectives increasingly prevail over humanitarian concerns, often resulting in devastating effects for civilian populations in need of aid and protection in war. Not least, confusion and misapprehensions about the power and authority of States relative to the United Nations Security Council to set policy preferences and configure legal obligations contribute significantly to this trajectory.

In a new guide for States published by the Harvard Law School Program on International Law and Armed Conflict (HLS PILAC), Dustin A. Lewis, Radhika Kapoor, and Naz K. Modirzadeh argue that it is possible — and, they believe, urgently called for — to arrest this trajectory and safeguard principled humanitarian action. In their view, short-term and ad-hoc solutions are less likely to uphold the humanitarian imperative.

Instead, the authors present a framework for States to reconfigure the relations between these core commitments by deciding to assess the counterterrorism architecture through the lens of impartial humanitarianism. The authors also identify key questions that States may answer to help formulate and instantiate their values, policy commitments, and legal positions in order to advance the humanitarian imperative and uphold respect for principled humanitarian action in connection with carrying out the Security Council’s counterterrorism decisions.

The nature by which and the extent to which the United Nations Security Council ought to be involved in addressing issues concerning the environment are matters of ongoing multilateral debate and contestation. According to the Charter of the United Nations, the Security Council is the principal U.N. organ vested with “primary responsibility” for the maintenance of international peace and security. Contemporary policy and scholarly analyses tend to focus largely on relations between the Council and current ecological and climate crises. That focus is arguably warranted to a certain extent, not least because climate-related concerns undeniably entail significant implications pertaining to human and State security and their interrelations. Indeed, a review of contemporary literature might suggest that so-called “climatization,” which is sometimes conceptualized as the process through which domains of international politics are framed through a climate lens and are thereby transformed, represents the predominant — and, perhaps, the only — environment-related concern regarding the Council and that the appearance of climate-adjacent issues on the Council’s agenda is a surprising or even novel development. Yet a policy and scholarly focus only on those concerns may risk excluding or obscuring significant aspects of the Council’s practice pertaining to other issues related to the environment. Notably, over several decades, the Security Council’s practice concerning the environment has spanned a diverse array of issues and has had important implications for the conduct of States and other actors across multiple spheres.

So far as the editors are aware, there is no existing resource that systematically collects, organizes, and makes publicly and freely available the practice of the Security Council concerning the environment, including but not limited to the current ecological and climate crisis. To help fill this gap, a team of researchers at the Harvard Law School Program on International Law and Armed Conflict sought to create a catalogue of provisions of Security Council resolutions and presidential statements from 1945 through 2021 that apparently concern the environment or elements thereof.

Through the creation and publication of a catalogue of U.N. Security Council practice concerning the environment and an accompanying finding aid, the editors have sought to achieve two interrelated objectives. The first is to systematically collect and organize the practice of the U.N. Security Council as it pertains to the environment. The second is to describe the material, personal, geographical, and temporal scope of relevant Security Council practice. In their research, the editors did not aim to present a detailed legal assessment or analysis of relevant Security Council practice. Nor did they seek to prescribe desirable approaches that the Council might adopt or to critique extant approaches adopted by the Council. Rather, their goal is to help contribute to an evidentiary and analytical basis to ascertain and evaluate what the Council has done — and, by inference, what it has not (yet) done — in this area.