International Law-making: Towards a New Role for the Security Council?

Climate change represents one of the greatest challenges to international lawmaking the UN has ever faced. It is politically unrealistic to set up a new environmental organization and, on the other hand, the process frequently resorted to in the field of environmental law, namely inclusive consensus, is frequently unattainable. A possible alternative may lie in asking the UN Security Council to legislate on the matter, under its general power to deal with questions relating to the maintenance of peace and security. At present it is questionable whether the unreformed Security Council can be said to have the right process to make itself legitimate as a lawmaking body. Whether viewed in terms of accountability, participation, procedural fairness or transparency of decision-making, it remains a seriously deficient vehicle for the exercise of legislative competence. Nevertheless, this authority could be given to the Council subject to the condition that the involvement and the approval of the General Assembly would be required. Security Council resolutions should be debated and adopted in the General Assembly first, before giving them binding force in the Council. It would also be necessary to maintain and enhance deliberative and transparent processes in both the General Assembly and the Security Council when such resolutions are under discussion, but there is no reason why observers and accredited non-governmental organizations should not be involved at this stage as they are in the General Assembly.