Any created institution can as an axiom, never be given carte blanche to do as they please. The consequences of such power, would present a myriad of problems. Power thus has to be limited as to protect both the individuals whom are affected by the actions of the institution, and it also acts as a way of legitimatizing the institution at the same time. As an institution with limitless power, would as the quote expresses, “Power tends to corrupt, and absolute power corrupts absolutely. Great men are always bad me”蜉 and thus, be prone to abusing the power at its disposal. The United Nations Security Council (UNSC) which can be argued to be a creature of statute thus has to be seen as having inherent limits set on it by: the United Nations Charter, international law, and fundamental rules of law. The following essay will examine the extent of the UNSC powers under Chapter VII, and determine whether the Council has any legal limits to its exercise of power under the said Chapter. The essay will demonstrate that The UNSC is an organization with limited legal limits – which is understandable as it is faced with a role which requires extra-legal measures at times. This however, should present some concerns, while the UNSC has not outstepped its bounds and limits – in an atrocious way, things change.
The question whether the UNSC has any legal limits is one which is prevalent with the organizations actions having far reaching effect on the lives of the human race. The organization was founded to have, “primary responsibility for the maintenance of international peace and security”.蜉 The mandate which is given to the UNSC is one which resembles a body which overlooks and decides what constitutes a “threat” to the international community. Such power has to be limited as the task which the organization is given is bound to conflict with the basic rights of equality of people, and self-determination of all people which are enshrined in the Principles and Purposes of the United Nations Charter.蜉 With that in mind the United Nations drafters would not have envisaged an organ of the United Nations as having unfettered powers.
The United Nations Charter states unequivocally that, “primary responsibility for the maintenance of international peace and security” is vested upon the Security Council.蜉 The result of this is that the members of the United Nations have accepted the Security Council as the organization which will serve the members best at attaining international peace and security. Karl Doehring states, “The assumption that the United Nations – as a quasi sovereign organization – is competent to judge alone on the lawfulness of its own behavior, cannot be justified” the implications of which would suggest that the United Nations Security Council would be bound by the same rules as other sovereign entities, mainly states.蜉 In the Prosecutor v Dusko Tadic the Appeal Chambers of the Yugoslav Tribunal stated that the Security Council “is an organ of an international organization, established by a treaty which serves as a constitutional framework for that organization… [Security Council] is subjected to certain constitutional limitations…cannot, in any case, go beyond the limits of the jurisdiction of the Organization at large, not to mention other specific limitations or those which may derive from internal division within the organization… Neither the text nor the spirit of the Charter conceives of the Security Council as legibus solutes (unbound by law)”蜉. This view of the UNSC interpreted at its broadest possible meaning, presents - an organization which is at its bare minimum is bound by the Purposes and Principles of the United Nations Charter, or other relevant provisions of the Charter – the statement is repeated in Article 24(2) of the United Nations Charter.
And it could be suggested at its most restricted interpretation would amount to a organization which is bound not only by the Purposes and Principles of the UN Charter, but also by the majority view of the General Assembly of the United Nations. This last contestation can be advocated by the Uniting for Peace Resolution蜉 which in effect gave the General Assembly, the same powers as the Security Council. It did this it can be argued to pursue the mandate of the United Nations – collective cooperation to obtain international peace and security, by majority vote of the whole General Assembly. The Resolution was enacted because of the failure of the UNSC to follow its mandate of as having “primary responsibility” to take appropriate measures to maintain international peace and security, it allowed the General Assembly to take “appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security” which in effect gave the General Assembly the same chapter VII powers which allow for the authorization and “use of armed force”.蜉 It may be contended that the same path may be taken to legally limit the powers of the Security Council. In instances which the majority of the General Assembly feels that the UNSC is plagued with inaction or political stale mate, then the General Assembly may intervene in a more equitable way as it is composed of most of the states in the world, and if need be as the Uniting for Peace Resolution demonstrated “use force”. Or, when the UNSC makes recommendations under chapter VII, the Members of the General Assembly could simply not comply with the recommendations, which in effect would be the exercise of sovereign equality amongst the states of the United Nations General Assembly. Article 25 of the United Nations Charter, “serves as a specific basis for the Council’s obligation to respect the Charter. Under such interpretation of article 25, States should accept and carry out only those decisions of the Council which are intra vires and consistent with Charter. In the Namibia Advisory Opinion, the ICJ found that the relevant Security Council decisions were adopted in conformity with the purposes and principles of the Charter and in accordance with Articles 24 and 25; the decisions were ‘consequently binding on all States Members of the UN, which [we]re thus under obligation to accept and carry them out”.蜉 The legality of the route chosen by the General Assembly in The Uniting for Peace Resolution was deemed to be in conformity with the law in the Certain Expenses case. Thus, it would seem that the General Assembly can act as a limit to the wide reaching powers of the UNSC.
The UNSC was created by states in an effort to enhance globally accepted norms, and to keep international peace. It would seem unattainable to have states create an organization which can exercise powers which are not permitted or seen as being contrary to international law – and which are not accessible to the states of the United Nations itself. This last proposition can be summarized as, placing on the UNSC the requirement of adhering to the same laws which are placed on individual states – or international law. The following quote demonstrates the effect of international law on the use chapter VII powers by the UNSC, “International law as such is not the primary consideration when the UN is faced with issues of peace and security and adopts enforcement measures under its Chapter VII powers. In fact, international law is mentioned in Article 1 para 1 of the Charter among the UN purposes, but only with respect to the peaceful settlement of disputes. Indeed, fundamental rules of international law, such as the prohibition of the use of force, respect for State sovereignty or nonintervention do not apply in case of Chapter VII action”.蜉 It would be extremely difficult for the UNSC to fulfill its role under the Charter without being able to deviate temporarily from international law when, acting to maintain international peace and security under the realm of chapter VII powers.蜉 However, this is qualified by the statement that the UNSC can never act in a way which is contrary to rules of jus cogens.蜉 The last qualification that the UNSC cannot deviate from the jus cogens demonstrates that the UNSC is bound in a legal sense, by those fundamental principles of law, which bind all states. The authority for the notion of jus cogens and its binding effect on the UNSC is announced by the judgment in Kadi v Council of the European Union where the court found that the UNSC was at least bound by jus cogens.蜉
As aforementioned the UNSC is unequivocally bound by the Charter which enabled its existence – mainly the United Nations Charter. The relevant provisions are found in the Principles and Purposes of the Charter. Thus, article 1 has to be seen as the basis on which every action of the Security Council has to be founded on, while paying attention to the other legal limits in place when chapter VII powers are resorted to. Moreover since, “Article 39
determinations made in under-determined form create the potential for the exercise of power by Council fiat, mirroring the slippery slope that many countries facing “permanent emergencies” have fallen down. As the Council faces threats “of a kind, or an order of magnitude, entirely different from those envisaged by the Charter’s authors,” the “living” Charter must adapt as well” this should not be seen as a way in which the UNSC can further grant itself far reaching powers.蜉 Rather article 1 should be seen as giving the UNSC its legitimacy and any deviation from those principles enshrined in the article should not be seen as being legitimate use of power by the organization – and consequently illegal.
The UNSC would seem to be legally limited by Human Rights Law, as it is found in the Principles and Purpose of the United Nations Charter. It is however, suggested that human rights law is not a legal constraint on the UNSC, “While human rights law is broadly applicable to the U.N.
through its constitutional assumptions and as a subject of international law, its binding effect on the Council is dubious”.蜉 However, “The Security Council functions to maintain and restore peace and security; its powers are limited to those actions necessary for the restoration of peace, see the wording of Article 42 UN Charter. All measures taken by the Security Council must work to that end” thus, the notion of the UNSC being bound by human rights law is not ousted completely.蜉
The UNSC would seem to be bound by jus cogens as there is authority in case law pronouncing on the fact. The UNSC as it stands seems to be left having far reaching powers with little limit to its exercise and review its acts. This at the present time has not presented many problems but it could be argued that if the UNSC is not set limits and legal ones it could result in unfavorable results for the world. The legal limits which are in place on the UNSC seem to be very wide and leave available wide discretionary powers to the UNSC
Bibliography:
United Nations Charter.
Uniting for Peace Resolution G.A. Resolution. 377 (V), November 3 1950.
Kadi v Council of the European Union, 2005 E.C.R II-3649.
Prosecutor v Dusko Tadic, No. IT-94-1-AR72
Jared Schott ‘Chapter VII as Exceptions: Security Council Action and the Regulative Ideal Emergency’ Northwestern Journal of International Human Rights (2007) Vol. 6 Issue 1.
Karl Doehring ‘Unlawful Resolutions of the Security Council and their Legal Consequences’ (1997) Max Planck Yearbook of United Nations Law.
L. M. Goodrich, E. Hambro, A. P. Simons ‘Charter of the United Nations, Commentary and Documents’ (1969) 3rd ed.
Wolfgang Weis ‘Security Council Powers of the Exigencies of Justice after War’ (2002) Max Planck Yearbook of United Nations Law, Vol. 12.
John Emerich Edward Dalberg ‘Power corrupts’ at http://www.phrases.org.uk/meanings/absolute-power-corrupts-absolutely.html on 8 October 2012.