- Does the UN Security Council have Authority to create new States? – - by Alexander-Georg Rackow –
A. Situation in Kosovo and Iraq
“Kosovo, an explosive region that once was a province of Serbia, has been on a long road to a kind of independence with international supervision. During the negotiations, the United Nations Security Council faced the challenge of finding a formula to protect about 114,000 ethnic Serbs while giving the majority ethnic Albanians enough autonomy to gain their support. Serbia has insisted that Kosovo remain its province, and Russia, Serbia's ally, has been cool to early plans for autonomy. Kosovo's two main groups were at war until 1999. Since then, NATO troops have kept the peace in Kosovo and will stay put after independence, although the United Nations office will most likely be replaced by another international organization with power to reject laws that conflict with United Nations agreements. The United States, Britain, France, Germany, Italy and Russia formed a group to work out the details of the plan to be put forward to the governments of Serbia and Kosovo. Among the thorny issues was the fate of former Kosovo Liberation Army fighters and protection of Serbian religious institutions. The European Union set up a police force to monitor the work of the police, judges, prosecutors and even prison guards in a multiethnic Kosovo, where 90 percent of the two million people are ethnic Albanian Muslims.”  Even though it seems unlikely that the United Nations Security Council (Security Council or UN Security Council) will take action to create a new and independent state named Kosovo. In view of the fact that Russia probably will not give up its opposition to an independent Kosovo and could easily block such effort by the Security Council by veto , the question arises whether the UN Security Council has the authority to create states, assuming that there were a unanimous belief among permament members of the Security Council that it was necessary to create a new state. Another region - inter alia - in which the Security Council could theoretically be asked to create a new state is Iraq. Since, “[t]he American invasion of Iraq in March 2003 toppled the brutal authoritarian government of Saddam Hussein, but unleashed a massive sectarian civil war that, as of late 2007, has no end in sight.”  While it is highly disputed whether Iraq should continue to exist or should be partitioned into three separate states, again the question arises whether it could be the UN Security Council, that has the legal authority to decide on such issues. B. Raising the Question: Can the UN Security Council Create States? In situations like Kosovo or Iraq where a region of a failed or weak state that seeks independence does not have the military and or political power to actually gain independence, a threat to international peace and security can arise. The political instability can lead to the collapse of the overarching state and result in waves of refugees that potentially can destabilize the political situation of the neighboring states. Such threat could be so intense that it might justify the use of force. It is possible that the UN Security Council in such a situation would come to the conclusion that it might be necessary to create a new and separate state out of an existing or failed state. The question that would strike a jurist in that situation would be whether the UN Security Council has the authority to execute that idea. Answering this question is the task of this paper. C. The Scope of the Question
Since “state creation” is a very broadly defined and discussed term, it seems necessary to clarify and define the term “state creation” for the context of this paper. Creation in the context of the paper means a unilateral creative act by the Security Council that is based on its own initiative. This is meant to oppose the traditional...