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Ch.V The Security Council, Functions and Powers, Article 24

Anne Peters

From: The Charter of the United Nations: A Commentary, Volume I (3rd Edition)

Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor)

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 08 June 2023

Subject(s):
International peace and security

Article 24

(1) In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.

(2) In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII.

(3) The Security Council shall submit annual and, when necessary, special reports to the General Assembly for its consideration.

  1. A.  Drafting History 1–5

  2. B.  Practice 6–9

  3. C.  The Primary Responsibility for the Maintenance of International Peace and Security 10–40

    1. I.  ‘Responsibility’ 11–16

      1. 1.  Conceptualization 11–14

      2. 2.  The ‘Responsibility to Protect’ 15–16

    2. II.  ‘Primary’ 17–30

      1. 1.  The Relation to the Powers of the General Assembly 19–24

      2. 2.  The Relation to the Powers of the ICJ 25–27

        1. (a)  Absence of Hierarchy and Simultaneous Exercise of Functions 28–31

        2. (b)  Judicial Review of Security Council Decisions 32–34

    3. III.  The Objective of ‘Maintenance of International Peace and Security’ 35

    4. IV.  The Objective of ‘Prompt and Effective Action by the United Nations’ 36–40

    5. V.  Legal Consequences of a Failure to Discharge ‘the Duties under this Responsibility’ 41–56

  4. D.  Responsibility towards Whom? The Principals of the Council 41–47

    1. I.  General 48–56

    2. II.  Reporting to the General Assembly under Article 24 (3) 48–56

      1. 1.  General 48

      2. 2.  Practice on Annual Reports 49–51

      3. 3.  Special Reports 52

      4. 4.  The Accountability Function of the Reports 53–56

  5. E.  In ‘Accordance with the Purposes and Principles of the United Nations’ 57

  6. F.  The ‘Powers Granted to the Security Council’ 58–80

    1. I.  Specific Powers and Implied Powers 58–62

    2. II.  The Various Types of Powers 63–65(p. 762)

    3. III.  Notably the Power to Take ‘Legislative’ Measures 66

      1. 1.  Practice 67–68

      2. 2.  Admissibility in Principle 69–75

      3. 3.  Normative Constraints on Legislative Action of the Council 76–78

      4. 4.  Outlook 79–80

UN Materials

‘The Charter of the United Nations: Draft’ (14 August 1943) US Dept of State (ed), Postwar Foreign Policy Preparation 1939–1945, Publication 3580 (1950) 526–32.

‘Tentative Proposals for a General International Organisation’ (18 July 1944) ibid, 595–606.

‘Dumbarton Oaks Proposals for the Establishment of a General International Organization’ (7 October 1944) UN Yearbook 1946–47 at 4–9 and UNCIO III, Doc 1 (G/P), 2–23.

‘Plan for the Establishment of an International Organization for the Maintenance of International Peace and Security’ of 23 December 1943 (1944) 1 Foreign Relations of the United States 614.

Summary of the ‘United Nations Conference on International Organization’, from 25 April to 24 October 1945 (1946/47) UNYB 12–34.

UNGA Res 377(V) (3 November 1950) ‘Uniting for Peace’ (‘Dean Acheson’).

Note by the President of the Security Council, Annual report of the Security Council to the General Assembly, of 22 May 2002 (UN Doc S/2002/199).

Resolution adopted by the General Assembly, ‘World Summit Outcome Document’ (24 October 2005) UN Doc A/RES/60/1.

Report of the Secretary-General: Implementing the Responsibility to Protect (12 January 2009) UN Doc A/63/677.

Select Bibliography

  • Akram M and Haider Shah S, ‘The Legislative Powers of the United Nations Security Council’ in RSJ Macdonald and DM Johnston (eds), Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (Nijhoff 2005) 431.
  • Arangio-Ruiz G, ‘On the Security Council’s Law-Making’ (2000) 83 Riv Dir Internaz 609.
  • Bailey SD and Daws S, The Procedure of the UN Security Council (Clarendon 1998).
  • Bosco DL, Five to Rule them All: The UN Security Council and the Making of the Modern World (OUP 2009).
  • de Wet E, The Chapter VII Powers of the United Nations Security Council (Hart 2004).
  • Gowlland-Debbas V, ‘The Relationship between the International Court of Justice and the Security Council in the Light of the Lockerbie Case’ (1994) 88 AJIL 643.
  • Herdegen M, Die Befugnisse des UN-Sicherheitsrates: Aufgeklärter Absolutismus im Völkerrecht? (CF Müller 1998).
  • Hinojosa Martinéz LM, ‘The Legislative Role of the Security Council in its Fight against Terrorism: Legal, Political, and Practical Limits’ (2008) 57 ICLQ 333.
  • Lowe V, Roberts A, Welsh J, and Zaum D (eds), The United Nations Security Council and War: The Evolution of Thought and Practice Since 1945 (OUP 2008).
  • Marschik A, ‘Legislative Powers of the Security Council’ in RSJ Macdonald and DM Johnston (eds), Towards World Constitutionalism, Issues in the Legal Ordering of the World Community (Nijhoff 2005) 457.(p. 763)
  • Orakhelashvili A, Collective Security (OUP 2011).
  • Rosand E, ‘The Security Council as “Global Legislator”: Ultra Vires or Ultra Innovative?’ (2004) 28 Fordham Intl LJ 542.
  • Talmon S, ‘The Security Council as World Legislature’ (2005) 99 AJIL 175.

A.  Drafting History*

The powers and procedures of the Security Council differ in important respects from those of the Council of the League of Nations as established in 1919. Notably, the League Covenant did not explicitly confer the responsibility for the maintenance of international peace and security on the League’s Council, although it entrusted the Council with the formulation of plans for ‘the reduction of national armaments’ which was deemed crucial for ‘the maintenance of peace’ (Art. 8 League of Nations Covenant).1 Decision-making required the agreement of all members of the Council, not only of the representatives of the principal allied and associated powers who were permanent members (Art. 5).

At the San Francisco Conference of 1945,2 the status and function of the SC in the general context of the organizational structure of the UN—especially vis-à-vis the Plenary organ of the Organization, the GA—and the definition in detail of the functions and powers of the SC were the object of extensive discussions. The very same questions had already been debated in the early planning stages. The Great Powers were determined to obtain a preponderant position in the future organization commensurate with their ‘exceptional responsibilities for the maintenance of international security’ (as the early US American draft for a Charter put it).3

The medium and smaller powers within the UN group were critical of the privileged status for the Great Powers, referring to the principle of the equality of States and the realization of the ideal of democracy in international relations.4 The underlying reason for the different political stances taken by the Great Powers on the one hand, and by the medium and small States on the other, is the tension between the preservation of national sovereignty and the perceived need for an international authority responsible for the maintenance of international peace and empowered to render binding decisions. (p. 764) In the course of the discussions, it was finally agreed as a guiding principle that in the new Organization the exceptional responsibilities of the Great Powers for the fulfilment of the Organization’s functions and the privileged position of these powers should be tied to the scope of the decision-making competence and the voting procedure.5

The result of the discussions was to leave the ‘primary responsibility’ for the maintenance of international security with the Council, as already foreseen in the early drafts,6 while granting a secondary or co-responsibility for peace and security to the GA within the framework of its general powers to debate and make recommendations. This result was basically already shaped in a verbal compromise during the Dumbarton Oaks negotiations of August to October 1944.7 It further relied on the so-called Yalta formula on the voting procedure as agreed upon among the Great Powers (United States, Soviet Union, and United Kingdom) at the Yalta Conference of February 1945.8 The provisions on the structure, procedures, and competences of the Security Council were then accepted by the fifty nations attending the San Francisco Conference against considerable opposition from the medium and smaller powers.9

The relationship between the Security Council and the International Court of Justice was also debated at the San Francisco Conference. A Belgian proposal for an amendment of the Dumbarton Oaks text sought to give a State which was party to a dispute brought before the Security Council a right to ask the Court ‘whether a recommendation or a decision made by the Council or proposed in it infringes on its essential rights’.10 But this amendment was criticized by numerous State representatives as an inadequate weakening of the Security Council and was then withdrawn by Belgium.11

B.  Practice

The process of shifting responsibility in the field of maintaining international peace and security from the executive to the Plenary organ and back, which had occurred during the negotiations on the Charter, continued after 1945, partly against the formal distribution of powers between the SC and the GA as provided for by the Charter. After an initial period in which the SC functioned properly, with the intensification of the East–West conflict at the beginning of the 1950s, the SC became inoperative because of the frequent use of the veto by its permanent members. The number of meetings held by the SC declined drastically between 1955 and 1960.

(p. 765) The GA began to take on the leading role within the Organization with regard to the maintenance of international peace and security. Attempts at giving this de facto shift of the exercise of the responsibility for the maintenance of peace from the SC to the GA a permanent legal basis—for example, by means of the Uniting for Peace Resolution12—were unsuccessful.

When the rapid increase in membership made the gaining of majorities in the GA more difficult to calculate for the Great Powers, the original distribution of powers within the Organization resurfaced. Members in general, not only the Great Powers, again had recourse to the SC. The growing number of meetings held by the SC since the beginning of the 1960s manifests this development.13 Since 1991, the activities of the SC have greatly increased.14

Article 24 has been virtually never explicitly referred to in decisions adopted by the Security Council, especially not since 1991.15 Actual ‘constitutional debates’ on the provision occurred only in the early years of the Organization.16 Occasionally, draft resolutions which were ultimately not adopted explicitly referred to Art. 24. Furthermore, explicit references to Art. 24 can be found in presidential statements and in the proceedings and in communications of the Council. Implicit references to the principle enshrined in Art. 24 are more frequent; a number of resolutions and presidential statements have alluded to the provision, but without invoking it explicitly.17 While the provision of Art. 24 ‘was more or less a dead letter until 1990, it shows its overwhelming importance for public international law nowadays’.18

C.  The Primary Responsibility for the Maintenance of International Peace and Security

10  The Charter confers on the Council the ‘primary responsibility’ for the maintenance of international peace and security.

(p. 766) I.  ‘Responsibility’

1.  Conceptualization

11  As well as in Art. 24, the term ‘responsibility’ is used in Art. 60 (‘responsibility for the discharge of the functions of the Organization’) and in Art. 51 (‘the authority and responsibility’ of the Security Council to take action to maintain or restore international peace and security). The concept of responsibility must first be distinguished from competence, authority, or power. This distinction is made in ordinary language and also in Art. 51.19

12  Second, it is clear that the notion of responsibility in Art. 24 does not relate to secondary obligations in the sense of the ILC Draft Articles on the International Responsibility of Organizations, which arise in the event of a breach of primary norms of international law. ‘Responsibility’ in Art. 24 is not ‘liability’ (secondary level) but relates to the primary level of law. However, thirdly, ‘responsibility’ in the sense of Art. 24 is not necessarily identical with a duty or obligation.

13  A responsibility presupposes a competence to exercise that responsibility. But unlike the term ‘competence’, the term ‘responsibility’ has two predicates. It exists for something (here: the maintenance of international peace and security) and to someone else. In contrast to merely enjoying the ‘competence’ for securing peace, the assignment of a ‘responsibility’ means that the Council is not only entitled to take action in order to maintain peace and security, but that it should fulfil that task and discharge that function properly. Although a ‘responsibility’ is perhaps less strict than a ‘duty’ or ‘obligation’, the term still implies not only a—however imperfect—political or moral but also a legal requirement to act.20 Within the legal framework of the Charter, this view is corroborated by text of Art. 24 which speaks of the Security Council’s ‘duties under this responsibility’, and of the ‘discharge of these duties’.

14  Responsibility means that the Council is responsible to another actor, to a principal. That predicate of ‘responsibility’ is congruent with accountability and responsiveness. So the term ‘responsibility’ highlights the position of trust which has been given to the Council. The follow-up question is to whom exactly the Council is responsible, to whom that fiduciary relationship extends, in other words: who the principals of the Council are (see on this MN 41–47).

2.  The ‘Responsibility to Protect’

15  The Council’s responsibility for the maintenance of international peace and security includes the so-called ‘responsibility to protect’ (R2P). The Heads of State and Government, relying on the novel concept of ‘responsibility to protect’ have in the World Summit Outcome Document of 2005 further fleshed out and extended the United Nations’ (and thereby also the Council’s) responsibility in the direction of a ‘responsibility…to help to protect populations from genocide, war crimes, ethnic (p. 767) cleansing and crimes against humanity’.21 That document, and a subsequent report of the Secretary-General,22 formulated a three-pillar strategy, consisting in Pillar one: protection responsibilities of States, Pillar two: international assistance and capacity-building, and Pillar three: timely and decisive response. With regard to Pillar three, the States committed themselves by stating: ‘we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.’23

16  So although the responsibility to protect resides first and foremost in the territorial State, a ‘residual responsibility’ falls on the international community acting, ‘through the United Nations’, which includes collective action ‘through the Security Council’, as the relevant documents formulate it.24 Moreover, the Secretary-General stated, speaking of R2P, that ‘[w]ithin the Security Council, the five permanent members bear particular responsibility, because of the privileges of tenure and the veto power’.25

II.  ‘Primary’

17  Article 24 assigns to the Security Council the ‘primary responsibility for the maintenance of international peace and security’. This phrase does not concern the allocation of responsibilities between the Security Council and other actors outside the Organization, but only among different organs. In relation to the members, Art. 51 also implies a primary ‘authority and responsibility’ of the Security Council to take measures for the maintenance of international peace and security in the event of an armed attack against a member which is not affected by the right of self-defence of a member.

18  Because the primary responsibility implies a primary competence, too, the phrase in Art. 24 contains a guideline for the resolution of conflicts of competences among the organs. In the Wall Advisory Opinion, the ICJ emphasized ‘that Article 24 refers to a primary, but not necessarily exclusive, competence’.26 Because it is not exclusive, a space for responsibilities of other organs remains, and there can be overlap. This raises the question of the distribution of the responsibilities between the Security Council and General Assembly on the one hand, and of the former’s relation to the International Court of Justice (ICJ) on the other, in the area of overlap. Generally speaking, the different organs must observe the institutional balance and must pay each other mutual due respect.

(p. 768) 1.  The Relation to the Powers of the General Assembly

19  Article 11 confers on the General Assembly various powers which relate to international peace and security: it may consider general principles in that context (s 1), it may discuss related questions (s 2), it has the power to call to the attention of the Security Council situations which are likely to endanger peace and security (s 3). Moreover, the Assembly may discuss any question of international peace and security under its general competence laid down in Art. 10. These provisions create an overlap of competencies between the Assembly and the Council in the issue area of international peace and security. The exercise of the respective competencies by the organs may lead to activities which conflict in substance. Principles and procedures for avoiding, mitigating, and resolving such conflicts are therefore needed.

20  The qualifier ‘primary’ is one tool in this regard. ‘Primary’ is meant in a substantive and functional sense, not only in terms of timing and procedure.27 This understanding is borne out by the French text which speaks of a ‘principal’ responsibility (‘la responsabilité principale’). The Assembly’s responsibility is therefore residual and secondary.

21  The division of powers between the Council and the Assembly has been much discussed in the context of the General Assembly’s Uniting for Peace Resolution of 1950, also called ‘Dean Acheson’ Resolution. In this resolution, the General Assembly, inter alia, claimed the authority to qualify situations in the sense of Chapter VII (threat to the peace, breach of the peace, or act of aggression), and to make recommendations to the members for collective measures, including ‘the use of armed force where necessary’.28 The justification was that such a power can be derived e contrario from Art. 12 as an implied power of the Assembly in the event of a failure or deadlock of the Council.

22  The Uniting for Peace Resolution had been sponsored by the United States, and back in 1950 constituted an attempt to shift the balance of power between the two organs by breaking the stifling effect of the Soviet use of the veto. Since then, the General Assembly has convened ten emergency special sessions under the Uniting for Peace procedures, some of which had a ‘rolling’ character and lasted over several years.29 Most but not all of the usages related to the Israeli–Arab conflict. So politically speaking, the Uniting for Peace procedures have mostly been employed as a tool by the non-aligned movement in the Assembly, and more specifically the Arab States, to criticize Israel’s policy.30 In the face of Council inaction vis-à-vis the spectre of genocidal events, such as in Kosovo and Rwanda, reliance on the Uniting for Peace procedures were again suggested by States, by expert reports, and by the Secretary-General.31 However, neither these proposals nor existing practice have resulted in juridically overturning the primary responsibility for the maintenance of peace and security of the Council, and have not shifted any political power away from that body.

(p. 769) 23  In legal terms, it has been debated whether some parts of the Uniting for Peace Resolution are unlawful because they infringe upon the Council’s competences. It has been argued that the assignment of the ‘primary’ responsibility to the Council suggests that the Uniting for Peace Resolution is not in conformity with the Charter to the extent that it purports to confer quasi-Chapter VII powers to the Assembly.32 Second, in the Wall Case, Israel had argued that the Security Council, by adopting a roadmap, ‘continued to exercise its responsibility for the responsibility for the maintenance of international peace and security and that, as a result, the General Assembly was not entitled to act’ and to request an Advisory Opinion on the legal consequences of the wall in occupied Palestinian territory.33 However, the ICJ treated the Uniting for Peace Resolution as perfectly lawful when it scrutinized whether the conditions set by that resolution were fulfilled. It did opine that the Security Council had on multiple occasions failed to adopt resolutions on Israeli settlements and on the construction of the wall, so that the requirement that ‘the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility’, as stated in Res 377 (V), was fulfilled in that case.34

24  To conclude, regarding the relationship between the Council and the Assembly, the term ‘primary’ does not offer a precise guideline as to when and under what conditions exactly an act of the Assembly would unduly interfere with the competences of the Council and therefore be ultra vires. The exact delineation of competences is made not by the provision of Art. 24 but by the more specific provisions of Arts 11, 12, and 39, and also by the Uniting for Peace Resolution.

2.  The Relation to the Powers of the ICJ

(a)  Absence of Hierarchy and Simultaneous Exercise of Functions

25  Matters concerning international peace and security do not lie exclusively but only ‘primarily’ within the competence of the Council. There is no hierarchy, subordination, or competition between the Council and the ICJ. The Charter does not, in contradistinction to its provisions on the relation between the Council and the General Assembly, prohibit one organ from dealing with a matter pending before the other. The Council and the Court are two distinct organs with distinct functions, and they operate with distinct procedures.35 The Security Council is no court, its decisions are not judgments. The concept of lis pendens is not applicable to them. The Court need not, on any other ground, defer to the Council.36

26  The relation between the Council and the ICJ was specifically at issue in two cases. In the Tehran Hostages Case, the Court examined ex officio whether its competence to decide the case, or the admissibility of the proceedings, were affected by the fact that the Security Council was actively seized of the occupation of the US-American embassy and the detention of its diplomatic and consular staff as hostages.37 The ICJ here made clear (p. 770) that the Court was not restricted in deciding on a legal dispute even when this was also dealt with by the Council. The ‘simultaneous exercise of their respective functions by the Court and the Security Council’ is admitted by the Charter and by the ICJ Statute, said the Court.38 The reason given by the ICJ is that the Court’s resolution of a legal question may be an important factor in promoting the peaceful settlement of a dispute with which the Security Council is dealing.39

27  In the Lockerbie proceedings,40 the question was, inter alia, whether the ICJ was precluded from dealing with a case of which the Security Council was already seized.41 By not declining jurisdiction in the provisional measures stage (against the objections of the UK and the US which had argued that the request should be qualified as inadmissible because of ‘the risk of contradiction between the resolution and the provisional measures’) the Court implicitly gave a negative answer and implicitly confirmed the Libyan claim of an absence of hierarchy between the two organs.42 The merits of the two parallel cases were never reached due to the parties’ joint request for removal from the Court’s list in 2003.43

(b)  Judicial Review of Security Council Decisions

28  A different question is whether the ICJ can review Security Council decisions.44 The Charter itself does not foresee any specific procedure for determining the legality or validity of an act of the Organization itself which would be analogous to a constitutional review in States, as the Court stressed already in its Advisory Opinion on Certain Expenses.45 In the Namibia proceedings, the ICJ stated: ‘Undoubtedly, the Court does not possess powers of judicial review or appeal in respect of the decisions taken by the United Nations organs concerned.’46

29  However, the lack of an explicit power of direct ‘constitutional’ review does not mean that the Court is prohibited from scrutinizing Council decisions in an incidental fashion (p. 771) in contentious proceedings between States. The conformity of Council decisions with the Charter and with general international law is a legal question.47 As the ICJ stated in the Tehran Hostages Case: ‘It is for the Court, the principal judicial organ of the United Nations, to resolve any legal question that may be at issue between parties to the dispute.’48 The Court was also prepared to address the issue of the legality of a Council decision in the merits stage of the Lockerbie proceedings.49 It did not consider the Libyan assertion that Res 748 (1992) was ‘contrary to international law’,50 as being outside its jurisdiction or otherwise unreviewable. Of course, any ICJ decision on the legality of a Council decision in a judgment will be res iudicata only for the parties to the dispute and will not bind the Council itself.

30  Second, being a ‘legal question’ also in the sense of Art. 96, the legality of Council decision can be directly made the object of a request for an advisory opinion. Third, the legality of a Council decision can pop up incidentally in an advisory opinion on a broader legal question, as it did in the Kosovo proceedings.51

31  A different procedural constellation was present in the Namibia proceedings. Here the Security Council itself requested an advisory opinion in its Res 284 (1970). The legality of these or other Council decisions was not the material subject of the request. Rather, a preliminary question was whether the decision asking for the Court’s opinion was illegal and invalid and therefore inapt to trigger the proceedings. At this point the ICJ formulated the presumption that Council decisions passed in accordance with the organ’s procedures were legal and valid. However, since in that instance the objections against the lawfulness of the Security Council resolution concerned the competence of the ICJ, the Court did not rely on that presumption, but proceeded to examine the objections.52

III.  The Objective of ‘Maintenance of International Peace and Security’

32  The task of maintaining international peace and security, which is conferred primarily on the Council (Art. 24), and secondarily to the General Assembly (Art. 11)53 is at the same time mentioned as the first purpose of the United Nations as a whole (in Art. 1 (1) and in the Preamble). Furthermore, the phrase ‘international peace and security’ figures in Chapter VII, in Art. 43. The notion ‘peace’ is additionally used in Art. 39. Absent specific indications to the contrary, identical words in the Charter should be presumed to carry the same meaning.

33  Article 24 (1) can be understood as the ‘operational version of the UN’s primary purpose of maintaining international peace and security as laid down in Article 1 (1)’.54 (p. 772) Formally speaking, the term ‘international peace and security’ in Art. 24 must have a somewhat broader meaning than the term in Art. 1 (1), because Art. 1 (1) refers only to Chapters VI and VII (dispute settlement and enforcement action), whereas Art. 24 mentions, for example, also Chapter XIII (the trusteeship system). Hans Kelsen therefore understood the phrase to mean about the same as the statement of the Preamble, namely that the peoples of the UN unite their strength ‘to maintain international peace and security’, thus defining the universal purpose of the Organization, without implying any specific function.55 Kelsen concluded that Art. 24 means nothing else but conferring on the Security Council the primary responsibility ‘for the achievement of the general purpose of the United Nations’.56

34  In 1992, one year after the successful Security Council-authorized military action against the aggression of Iraq against Kuwait, the Security Council held an important meeting on the item of ‘[t]he responsibility of the Security Council in the maintenance of international peace and security’, for the first time at the level of Heads of State and Government. In the concluding note, the President of the Security Council, speaking on behalf of the members, diagnosed a ‘time of change’. He considered that ‘the ending of the Cold War’ had created ‘new favourable international circumstances under which the Security Council has begun to fulfil more effectively its primary responsibility for the maintenance of international peace and security’. The note gave the phrase ‘international peace and security’ a very broad meaning. It stated that ‘[t]he absence of war and military conflicts amongst States does not in itself ensure international peace and security. The non-military sources of instability in the economic, social, humanitarian and ecological fields have become threats to peace and security.’57 This broad conception of a ‘positive’ peace (as opposed to mere absence of military violence) and of ‘human’ security as opposed to mere interstate security is crucial for the post-Cold War understanding of the Council’s exercise of its responsibility under Art. 24.

IV.  The Objective of ‘Prompt and Effective Action by the United Nations’

35  The primary responsibility for the maintenance of international peace and security is conferred on the Council ‘in order to ensure prompt and effective action by the United Nations’ as a whole. The term ‘action’ is ambiguous and has different meanings at different places in the Charter.58 For example, the title of Chapter VII of the Charter is ‘Action with respect to threats to the peace, breaches of the peace, and acts of aggression’. Likewise, ‘action’ is mentioned in Art. 11 (2).59 Differently from Art. 24, in neither of the other provisions mentioned is it specifically stated who exactly acts or should act. Action ‘by’ the United Nations must in any case be taken by an organ or by members on account of the Organization. The responsibility of the Council is, in Art. 24, conceived of as being instrumental to that end (‘in order to ensure’). Moreover, the provision is directed at ensuring ‘prompt and effective’ action. That action is in turn instrumental in realizing the overall objectives of the Organization. These considerations suggest that (p. 773) the Council could ultimately be held accountable (politically or even legally) for not discharging its responsibility.

V.  Legal Consequences of a Failure to Discharge ‘the Duties under this Responsibility’

36  What are the legal consequences if the Council fails to discharge its ‘duties under this responsibility’, as Art. 24 (1) puts it? In the cases of Rwanda and Srebrenica, the Council’s failures have been heavily criticized by official reports which found that the SC incurred a political and moral liability.60 The question is whether—in extreme cases such as these—the Council might be under a legal obligation to take a (specific) decision, with the consequence that its passivity would be illegal, and would trigger the international legal responsibility (in the sense of liability, on the second level of law) of the United Nations.61

37  On the premise that the Security Council acts within the realm of law and that its decisions are subject to legal limits,62 there is no reason to desist from attaching legal consequences to the Council’s omission to take a decision regarding international peace and security. Every decision to act is at the same time a decision not to act in a different manner, and vice versa. However, the law generally treats ‘passive’ behaviour differently from ‘active’ behaviour, albeit only in degree. Passive behaviour is legally relevant if it violates a legal obligation to act. In that case, doing nothing constitutes a legally relevant omission. A legal obligation to act, incumbent on the Council, is especially plausible in the context of human rights violations, taking into account that these are, under the practice of the Council, apt to constitute threats to the peace. Additionally, all international human rights instruments give rise to positive governmental obligations to protect human rights against interference by private actors.63 Governmental passivity is here apt to trigger State responsibility for the State’s lack of due diligence to prevent the violation or to respond to it with legal, political, and administrative means as required by the human rights conventions.64 Once it is accepted that the Security Council is bound by international human rights, parallel to States,65 the principles concerning protection developed for States can arguably be transferred to the Council. The need to avoid imposing a rigid standard and the need to respect that public authorities must make (political) choices in terms of priorities and resources arise both for governments and for the Security Council.

(p. 774) 38  Although the Council may in principle be held liable for passivity, the trigger or threshold may differ from the situation of responsibilizing it for action. In human rights law, the States’ obligation to intervene and protect persons against aggressions emanating, eg from private actors, is triggered only in extreme cases, where the need for State intervention is obvious. Moreover, the positive obligation to protect is normally not an obligation of result, but mostly an obligation of conduct. It requires the State to exercise due diligence, but not to guarantee absolute protection.66 Along that line, the Security Council could be under a legal requirement to exercise due diligence when human rights are massively threatened in a member State. Such a due diligence requirement is not strict. The Security Council could be deemed to fail it only when it either remains completely passive in the face of massive atrocity or when it takes only token measures which are obviously and egregiously insufficient to tackle the threat. In any case, the Security Council could not be held responsible for a failure to prevent or terminate, for example, a massacre or genocide, but only for a failure to conduct itself adequately, independent of any causality for the result.

39  The violation of that obligation of conduct in maintaining international security in its broad inception, including human security, would then trigger the international responsibility of the United Nations.67 In this sense Special Rapporteur Giorgio Gaja stated that, assuming that general international law requires other entities (including the UN) to prevent genocide, ‘failure to act would have represented a breach of an international obligation. Difficulties relating to the decision-making process could not exonerate the United Nations.’68 In contrast, other commentators opine that the Council ‘is under no strict duty to act when the community of nations is endangered’.69 From that perspective, the idea of a legal responsibility of the United Nations itself for failing to act, for example in the face of genocide is ‘absurdly premature and not likely to be affirmed by state practice’.70

40  Given the fact that the Council’s responsibility to maintain peace and security, including its responsibility to protect, is currently less than a hard-and-fast-obligation of the Security Council under international law, the failure on the side of the Council to live up to this responsibility does not, under the law as it stands, constitute an international wrongful conduct in the form of a legally relevant omission to take action. So (p. 775) far, the Council’s doing nothing does not trigger the international legal responsibility of the United Nations under the law as it stands. It is however, perfectly enviseagable that the Council’s responsibility will harden into a legal obligation of conduct which can be violated by the Council’s complete passivity or its obviously inadequate reaction in the face of massive atrocity. That omission would then constitute an internationally wrongful act of the United Nations.

D.  Responsibility towards Whom? The Principals of the Council

I.  General

41  As stated above, the concept of ‘responsibility’ implies a position of trust. The Council is a trustee. A crucial question is who the trust givers are. According to the text of Art. 24, the ‘members confer’ the responsibility on the Council and ‘agree’ that it acts ‘on their behalf’. These three phrases raise the question of the legal source of the Council’s responsibility, and, as a corollary to that source, the question to whom the Council is responsible, in other words who the principal of the Council is. All three phrases, taken literally, manifest the idea that the States themselves are the actual principal of the Council, and not the United Nations (as an international organization) itself. In contrast, Hans Kelsen, in his early commentary, took pains to demonstrate that not the members, but rather the Organization itself is the principal.71

42  These two opposing views still exist today. For one group of commentators, the members, who have ‘delegated’ parts of their sovereignty, remain the source of authority of the Council.72 This means that the States, being the trust givers, are in consequence also the principals. From that perspective, ‘the predominant accountability-holder in the case of the SC acting under Chapter VII is neither the membership of the Organization constituted as a Plenary organ, nor the public at large or the individuals affected by the exercise of its power, but rather each and every member state’.73

43  Partisans of the other camp, in contrast, highlight that the Council’s authority and its powers arise from a constituent act, the Charter, but not from members’ parallel delegations.74 From that perspective, the founding act has severed the ‘umbilical cord’ between members and organization. Powers exercised by the latter’s organs are not a mere prolongation of the members’ powers, but qualitatively different from the former; they are a new type of public authority. The consequence would seem to be that the Security Council is accountable not to the members individually, but to the Plenary organ in which these are represented. The General Assembly is, from that perspective, the proper institutional (p. 776) frame which has swallowed the individual States, and is therefore the rightful recipient of the Council’s accounts.

44  To some extent, the divergent views represent different perspectives: an informal, more ‘real-political’ one and a formal more ‘legalist’ one. But the persistence of these two diverging views also manifests the hybridity of the founding act of an international organization, and of the concomitant ambiguous and fluid features of the relationship between the Organization and its members. Sociologically speaking, the United Nations, as any other international organization, is to some extent both, in varying degrees: an alter ego of its members, but also an autonomous actor. It oscillates between the two poles, and the degree of autonomy may change over time. Although the Organization is supposed to work in the interests of its members, the whole point of setting up an organization is to render it to a certain extent autonomous from its individual members, with the objective to fulfil certain public functions more effectively. This reasoning can be seen behind the Art. 24 wording ‘prompt and effective action by the United Nations’. The social and factual autonomy of the United Nations is underscored by its juridical independence, its international legal personality. But on the other hand, the Organization’s continuing social and factual dependency on the members is highlighted for example by the fact that the Council does not possess its own armed forces, and that it regularly only authorizes but does not mandate the members to take enforcement action.

45  From a strictly legalist perspective, the principal of the Council is the Organization itself. The Security Council, being an organ of the United Nations, formally acts on behalf of that legal person and not on behalf of the members individually.75 The Charter’s term ‘on their behalf’ can best be understood as highlighting the fact that, despite the restricted membership of the Council, that body is supposed to act in the interests of all members.76 Still, doctrinally, acts of the Council are imputable to the Organization.77 Any decision of the Council taken in discharge of its responsibilities must, therefore, be considered as an action taken by the Organization as a whole.78

46  However, it would be too legalist to ignore the members behind the Organization. The question is not so much whether the organizational veil separating the Council from the members is piercable or not, but rather when, in which context, and under which conditions. That question cannot be answered by a reference to the text of Art. 24 which in a confused way refers to the members. Other legal texts, too, imply that the Council’s responsibility is owed not only to the Organization, but to an ‘international community’, acting ‘through the United Nations’.79 Scholars have pointed out that ‘[t]he (p. 777) powers vested in the Council under the Charter are in the nature of a trust and a delegation from the entire membership of the UN’.80 From that perspective, the members should be allowed to claim ‘a right of supervision on how this responsibility is exercised on their behalf’.81 The question whether members can claim this only inside the United Nations or also extra-institutionally depends on the view taken on the piercability of the institutional veil.

47  According to the Organization’s institutional design, the supervision is exercised by the General Assembly in which all members are represented. Regularly, the Council’s accountability to the members is channelled through that body. The reporting obligation under Art. 24c (3) (see MN 48–56) serves exactly this end. But this does not legally prohibit the use of other, informal, accountability mechanisms and the design of additional ones should current ones not suffice. From a moral perspective, the ultimate principals of the Council are in any case individual human beings who are ideally represented by their States. But because that representation does not function well in many parts of the world, individuals should be allowed to employ additional tools for responsibilizing the Council, for example individual complaints before domestic courts.

II.  Reporting to the General Assembly under Article 24 (3)

1.  General

48  The reporting obligation enshrined in Art. 24 (3) is a corollary to the principle that the Security Council acts, under Art. 24 (1), on behalf of all members.82 The provision was not yet present in the Dumbarton Oaks Proposal,83 and was inserted into the Charter upon the wish of small and medium States at the conference of San Francisco. Its counterpart is Art. 15 (1), under which the General Assembly shall ‘receive and consider annual and special reports from the Security Council’. Article 15 (1) also requires ‘an account of the measures that the Security Council has decided upon or taken to maintain international peace and security’. These two provisions underscore the idea that the Security Council is a trustee of the membership (or of the ‘international community’), institutionalized in the General Assembly, which must render its ‘accounts’ to the trust givers. Upon criticism of the members, the reports’ structure and contents, and the procedure and timing have since the 1990s been repeatedly improved.

2.  Practice on Annual Reports

49  The Security Council’s annual report to the General Assembly on its activities is assigned the sequential number ‘2’ for the session in question and is published as supplement no 2 to the Official Records of the General Assembly. They are available on the internet. Since 2001/02, the reports contain six main parts: Part I: brief statistical description of the key activities of the Security Council; Part II: summary of the questions considered by the (p. 778) Council under its responsibility for the maintenance of international peace and security; Part III: other matters; Part IV: account of the work of the Military Staff Committee; Part V: matters that were brought to the attention of the Council but not discussed; Part VI: work of the subsidiary bodies.84 The length of the reports has grown more or less steadily.85

50  The rapid growth in Council activity from 1989 onwards was accompanied by its increased reliance on informal consultations to which non-members of the Council were not admitted. The exclusionary and closed character of the action was deemed unfair by those non-members especially as the effects of decisions, such as economic sanctions, affected many States. The delivery of the report by the Council provided an opportunity for States to express their frustration. After a crisis in 1992/93, the presentation of the report has become an important opportunity for members to raise issues concerning the respective competencies and responsibilities of the two principal organs. Since then, annual debates on the reports have on the one hand related to the format, content, and timing of the report, and on the other hand more broadly to the procedures and practice of the Council during the reporting period.86 Since 1993, the Security Council repeatedly promised that a draft be made available in advance to all members of the Security Council so as to allow for the finalization of the annual report in time for its consideration during the main part of the regular session of the General Assembly.87

51  The quality of the reports is ‘descriptive rather than analytical in nature’.88 The lack of analysis has been defended by Council members as an inherent feature of the report, because it is impossible for the fifteen members of the Security Council to agree on a common understanding of the action and on a shared analysis.89 A way out of this impasse is the solution retained since 1997. In that year, members of the Council reviewed the format of the annual report and agreed upon a number of procedural and substantive improvements which took effect in the reporting period 1997/98.90 Since that procedural reform the reports contain a ‘brief assessment on the work of the Security Council, which representatives who have completed their functions as Presidents of the Security Council may wish to prepare, under their own responsibility, and following consultations with members of the Council for the month during which they presided and which should not be considered as representing the views of the Council’.91 At the occasion of the presentation of the annual report 2000/01, criticism flamed up again, in the Council itself and in the GA.92 In response, the format and content of the annual report was again changed.93

(p. 779) 3.  Special Reports

52  Under Art. 24 (3), the Council shall ‘when necessary’ submit special reports to the General Assembly. This has been done only rarely. The few cases happened in the early years and always related to the deferral or refusal of the admission of a new member.94 Under Rule 60 (3) of the Council’s Rules of Procedure, the Council must submit a special report if it does not recommend an applicant State for membership or postpones the consideration of the application.95 Beyond this constellation, given the very scarce practice, it is unclear who decides on the ‘necessity’ of a special report: the Council itself or the General Assembly? In the note of 1997, the Security Council promised to consider the delivery of special reports. But since then—to the best of my knowledge—special reports have not been furnished.

4.  The Accountability Function of the Reports

53  The reports are submitted ‘for the consideration’ of the General Assembly. The term ‘consideration’ implies a weak power of the Assembly only. Although ‘consideration’ seems to be more than ‘discussion’ (as foreseen in Art. 11 (2)), maybe an ‘in-depth analysis of the contents of the report’,96 it does not give the General Assembly the right to take specific action, let alone to adopt any political or legal sanctions against the Security Council, upon a report. Secondly, Art. 24 (3) does not convey to the General Assembly the power to hold Security Council responsible for failing to report or for presenting a deficient report.

54  During the 1990s, the debates in the General Assembly revealed diverging views about the purpose of the reports. For the one side, which notably included the members of the Council themselves, the reports were to be a mere ‘diary’ of the Council’s activities and decisions. Other States favoured the view that the report should be a means for the UN members to appraise and assess the performance of the Council.97 In 1993, the UNGA encouraged members to ‘participate actively in a substantive and in-depth discussion on, and consideration of the reports of the Security Council’.98 The practice sketched out above reflects the increasing perception and usage of the reports as a tool for holding the Security Council responsible. Especially since 1997, the Council repeatedly promised some more analytical features, an improved timing, and a personal performance assessment by the holders of the one-month presidential position during the year.99

55  In 2001, two non-permanent members of the Security Council criticized that the annual report failed to achieve its objective of ‘illuminating the work of the Council to the General Assembly’.100 Further critique along that line was expressed in the General Assembly. After the crisis of 2001 and the ensuing revision of the format and content of the report, the annual report 2001/02 was adopted in an open meeting of the Security Council during which the members of the Council commented on format and (p. 780) substance.101 At that meeting, a non-permanent member of the UNSC interpreted the new format as ‘a concrete sign of a collective effort towards transparency and a clear signal that we want to keep the General Assembly better informed’.102

56  The relation between the General Assembly and the Council is not analogous to the relation between a State’s government and its parliament. Nevertheless, the accountability function of the reports is in political terms appropriate.103 It is in legal terms borne out by the wording and structure of the Charter, and by the drafting history.104 Along that line, the provision of Art. 24 (3) is mentioned by the ICTY Appeals chamber in the Tadic decision on jurisdiction as one expression of constitutional limitations on the Council.105 In order to fulfil its accountability function, the report should be analytical and not purely enumerative, and it must contain explanations for the decisions taken (or not taken).106 Giving reasons for legal acts (and for their omission) is instrumental in enabling members to exercise scrutiny and to formulate critique. Giving reasons to that extent has a quasi-democratic function. It is also a requirement of the rule of law, because it clarifies the Council action not only in political but also in legal terms. In conclusion, while the annual reports were in the past barely used by the General Assembly as an accountability tool, that use has always been a topic of debate and has been continuously intensified.

E.  In ‘Accordance with the Purposes and Principles of the United Nations’

57  Under Art. 24 (2), the Security Council must act in ‘accordance with the Purposes and Principles of the United Nations’. These are first of all enshrined in Arts 1 (purposes) and 2 (principles). Throughout the practice of the UN organs, additional UN principles have emerged, and the ones mentioned have been fleshed out more specifically through multilateral conventions, and through resolutions of the General Assembly (for example the Friendly Relations Declaration Res 2625 (XXV)) and of the Security Council. The protection of human rights, the prohibition of genocide, the right to self-determination and basic principle of IHL must today also be counted among the principles which the Security Council is bound to respect.107 Moreover, the ‘Purposes and Principles’ limitation is not exclusive.108 The Security Council is additionally bound by the entire UN Charter.109 It is moreover arguably bound by norms of general international law which (p. 781) mostly overlap with the Charter principles mentioned as further developed through practice. The problem of legal limits to Security Council action is discussed in the commentary on Art. 25.110

F.  The ‘Powers Granted to the Security Council’

I.  Specific Powers and Implied Powers

58  Article 24 (2) sentence 2 reads: ‘The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII.’ Further tasks are explicitly assigned to the Council in other Chapters which are not mentioned in Art. 24 (2). These are tasks under Chapter II (Arts 4 to 6), Chapter IV (Art. 12 (1)), Chapter V (Art. 26), and Chapter XIV (Art. 94 (2)). This scheme raises the question whether the Council possess only those specific powers which are mentioned at different places in the Charter, or additionally a general power to maintain peace and security, beyond the enumerated specific ones.

59  On the one hand, the ICTY Appeals Chamber in the Tadic decision on jurisdiction has drawn from Art. 24 in particular the conclusion that ‘[t]he Charter thus speaks the language of specific powers, not of absolute fiat’.111 On the other hand, the ICJ, in the Namibia Advisory Opinion, stated: ‘Article 24 of the Charter vests in the Security Council the necessary authority to take action such as that taken in the present case. The reference in paragraph 2 of this Article to specific powers of the Security Council under certain chapters of the Charter does not exclude the existence of general powers to discharge the responsibilities conferred in paragraph 1.’112 The Namibia Advisory Opinion thus read Art. 24 (2) not as complete and exclusive formula, but inversely as a phrase which must be understood as e contrario presupposing the existence of general powers.113

60  It is submitted that the ICTY Appeals Chamber’s concern for the rule of law voiced in its Tadic decision on jurisdiction and the legality of Security Council action can be reconciled with the Namibia Advisory Opinion’s concern for an effective fulfilment of functions by relying on the principle of implied powers which governs international organizations. According to that principle, the United Nations ‘must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties’.114 This principle has been applied not only to the Organization as a whole but has further been used to define the powers of its organs. In the Effect of Awards Advisory Opinion, the ICJ applied it to identify an implied power of the General Assembly to establish an administrative tribunal.115 Along this line, it can be argued that the Council must possess further unspecified powers to take various kinds of measures to the extent that these are essential to discharging its responsibility to maintain international peace and security.

(p. 782) 61  The legal basis of these implied powers is, from that perspective, not Art. 24 (1) directly, but rather various provisions in the Charter, including their necessary implications. This understanding is compatible with the reading by Hans Kelsen who observed that Art. 24 (1) was intended only to stress the political importance of the Security Council, and ‘not to establish a positive legal effect’. In that reading the provision is ‘not…a general determination of the competence of the Security Council’, and thus not a legal basis for a general power.116

62  The existence of such powers which are unspecified but not disjunct from the overall function of the Council is supported by scholarship.117 Due to vagueness of the concepts of ‘international peace and security’ these powers are broad and allow for very flexible action, but they are not unlimited.

II.  The Various Types of Powers

63  The Security Council is not limited to performing executive-type ‘police’ functions. Historically, however, the American representative at the conference of San Francisco had famously characterized the Security Council as the world’s ‘policeman’.118 A policeman’s job is both to prevent and to repress violence in concrete cases, not normally to enact general rules for unknown cases in the future. But the policeman function, while it may have been on the minds of the drafters, has not been inscribed into the text of the Charter.

64  The Charter itself does not mention executive, legislative, or judicial functions of the Security Council. The ICTY Appeal Chamber’s Tadic decision on jurisdiction highlighted that the division of powers which is largely followed in most municipal systems ‘does not apply to the United Nations. Among the principal organs of the United Nations the divisions between judicial, executive and legislative functions are not clear cut’, the Tribunal stated.119

65  Still, the main activity of the Council has been of an executive type in the sense of taking and enforcing decisions which relate to concrete situations. Especially its Chapter VII powers, where the Council makes a factual assessment (Art. 39) upon which it takes binding decisions as a consequence, resemble the functions of the executive branch in domestic jurisdictions.120

III.  Notably the Power to Take ‘Legislative’ Measures

66  The Council has in the past also taken measures of a legislative or law-making quality. That practice has given rise to occasional criticism by members, and to an intense scholarly debate.121 It now seems settled that the Council may in principle ‘legislate’ but only under specific conditions which can be drawn from the Charter framework and from practice.

(p. 783) 1.  Practice

67  A Council decision has a legislative character when it imposes general and abstract obligations, and when it is not limited to one particular and concrete situation, but applicable to an indefinite number of cases.122 A different type of quasi-legislative effect is brought about through the enforcement by the Council of non-binding standards (such as industrial codes of conduct), by the Council’s contribution to the formation of customary law,123 and by Council decisions pushing members to accede to entire existing treaties.124 These indirectly law-making decisions do not pose similar problems to the actually legislative ones and will not be discussed here.

68  The main examples of law-making resolutions in the proper sense are Res 1373 (of 18 September 2001) on the financing of terrorism and Res 1540 (of 28 April 2004)125 on weapons of mass destruction. Also the establishment of the Criminal Tribunals for the former Yugoslavia by Res 827 (25 May 1993) and for Rwanda by Res 995 (8 Nov 1994) were pieces of legislation in the sense described above, because the resolutions actually contained the statutes of the tribunals, ie general and abstract texts which regulate the functioning of novel institutions. Finally, also the two resolutions which exempted US soldiers from the jurisdiction of the ICC (Res 1422 (12 July 2002) and 1487 (12 June 2003)) have been counted among the ‘legislative’ ones, because they contained general and abstract obligations.

2.  Admissibility in Principle

69  The Council is entitled to adopt legislative resolutions. Decisions of that kind are not inadmissible or even illegal on the ground that they are of a wrong type. As a matter of practice, by far the majority of members has supported the legislative resolutions. Those few members who objected could not block the development towards an overall acceptance.126

70  This acceptance can rely on a reasonable interpretation of the Charter. Its wording allows law-making resolutions of the Council, although this was not the historic intent, as stated above. The principle of speciality does not prohibit law-making by the Council. Although no explicit Charter provision authorizes the Council to adopt binding acts with (p. 784) a legislative content, it does not rule it out, either. Article 41 constitutes a sufficient legal basis for legislative acts.127 That provision authorizes the Council to take ‘measures’ not involving the use of force. ‘Measures’ is a broad term which does not limit the Council to concrete and particular decisions, but which encompasses legislative measures.128

71  The concept of ‘threat to the peace’ in Art. 39 has evolved to also comprise general situations, such as terrorism. The Council’s ‘primary responsibility for the maintenance of international peace and security’ (Art. 24) requires it both to remove and to prevent threats to the peace (Art. 1 (1)). Consequently, a proactive (and not just a reactive or remedial) dimension is inherent in the mandate of the Council. This means that it must be allowed to deal with abstract as well as specific threats to the peace.129

72  The principal objections which have been raised against legislative decisions are ultimately not convincing. At first sight, the Council’s law-making activity seems to affect the institutional balance within the Organization. It is the General Assembly which is entrusted with the ‘progressive development of international law’ (Art. 13 (1) (a)), and not the Council. However, the Assembly is explicitly limited to recommendations, debates, and encouragement, and clearly has no authority to enact binding laws. The institutional set-up of the Organization is not similar to a State with the Assembly as the legislature and the Council as the executive.130 Therefore, law-making by the Council does not—as a matter of form—interfere with the Assembly’s competences.

73  The second fundamental objection is that the imposition of binding, general, and in temporal terms unlimited obligations on States which are for the most part not members of the Council overturns the cornerstone of the international legal system, namely the principle that States can be bound only on the basis of their consent which ultimately flows from sovereignty.131 The sovereigntist concern cannot be fully alleviated with the formalistic response that members, by ratifying the Charter and by endowing the Council with the authority to adopt binding legal acts, have in principle consented for the future to be bound by decisions which might impose yet unknown obligations on them, and have to that extent limited their sovereignty. Members did not foresee and could not reasonably foresee that the Council would engage in law-making. By not delineating the Council’s powers more strictly, the members have not forgone their right to protest against novel types of decision-making. They have not given a blank cheque to the Council.

74  Besides affecting State sovereignty and the consent principle, law-making by the Council appears to enjoy a low degree of legitimacy because that body is not or is hardly representative, not legally and barely politically accountable to all States (and their populations), and because the law-making procedure is rather intransparent, hardly (p. 785) deliberative, and not inclusive but exclusive. Although these legitimacy flaws affect all types of Council activity, they are more serious when it comes to law-making action because the Council’s quasi-laws interfere more with the rights of third States and of citizens than decisions limited to concrete situations. Overall, law-making by the Council might constitute ‘hegemonic international law’ which carries the risk of (further) eroding the legitimacy of the Council.132

75  This objection which combines concern for institutional functions and for those values which State sovereignty ultimately seeks to protect, namely the consent of the governed, is the most pertinent one. While it is not strong enough to prohibit law-making by the Council, it nourishes the normative quest for a close circumscription of its law-making activity.

3.  Normative Constraints on Legislative Action of the Council

76  Numerous members have formulated conditions under which they would be prepared to accept law-making resolutions. These statements, together with the acquiescence of other States, constitute subsequent practice which must guide the interpretation of the Charter which both founds and limits the Council’s powers. At the same time, these conditions accommodate the normative concerns sketched out above. Based on this, the Charter can and should be interpreted so as to allow law-making decisions if the following requirements are met.133

77  In substance, the subject-matter must fall into the context of Chapter VII. First, law-making by the Council should react to a significant, new, and urgent threat in an emergency situation which qualifies as a threat to the peace in terms of Art. 39. Second, the Council must respect the institutional balance between the main organs and must therefore not adopt ‘laws’ which contradict General Assembly resolutions. Third, the resolution should be as little intrusive as possible in terms of material scope and temporary extension. This would imply that a Council decision cannot simply reduplicate entire treaties which are not in force or which have been ratified only by a small number of States, because such a far-reaching step is not necessary to address a threat to international peace and security.134 A fourth factor is discussed controversially under the heading of the ‘gap requirement’. It hinges first on the question whether the Council can—when exercising its enforcement powers under Chapter VII—deviate from general international law (customary law or treaties, or both).135 From this starting point, some authors opine that the abrogation, or even de facto modification of the terms or the undoing of the effects of existing treaties (for example the Rome Statute136) is not admissible (even if it were generally possible under Chapter VII, notably by virtue of Art. 103) when the Council acts in a legislative mode. The authors argue that the Council may only legislate when there is a ‘gap’ in the treaty law, and may not abrogate existing treaty provisions.137 However, if Art. 103 fully applies to legislative resolutions, a treaty (p. 786) override by the Council would in principle be no problem.138 But in many cases, Art. 103 will not be applicable, all the more as the scope of application of Art. 103 should be construed narrowly in this regard.139

78  In procedural terms, the elaboration of legislative resolutions should be transparent. Also, the Council should seek a broad consensus among States. As far as the implementation of legislative decisions is concerned, the Council should grant members a leeway, and should assist them in carrying out the decisions. Overall, the Council must remain an exceptional and auxiliary law-maker only, it must make an effort of self-restraint, and may in no way rise up to a ‘world legislator’.140

4.  Outlook

79  Law-making activity of the Council appears necessary in some instances for maintaining international peace and security, especially in urgent situations where treaty making (within the General Assembly or outside of it) is too slow or unfeasible. But it must remain within legal limits. It is not clear which of the normative requirements discussed above are hard and fast legal constraints and which are basically legal policy demands. Probably the Council’s past practice of consulting States has not given rise to a precise legal obligation to consult non-Council members on a draft legislative resolution before it is made final.141 Due to the small number of events and the variations, that practice has not brought about a concretization or extension of the procedure laid out in Art. 28 by means of a tacit amendment. However, the general principle that any law-making resolution should be adopted only after some form of consultation of non-members of the Council in the drafting process, possibly channelled through the Assembly, finds some basis in Charter principles on State equality (Art. 2 (1)), and on the functions of the General Assembly (Chapter IV). The principle that law-making by the Council must remain the exception, and must remain ‘emergency regulation’, can be understood as an emanation of the Charter-based principle of proportionality. Overall, it seems fair to say that the Council is, when it enacts abstract and general rules, under stricter procedural and substantive limits than when acting in the classical executive mode.142 A legislative Council decision overstepping these limits, however difficult they are to define, would be illegal, or ultra vires in the traditional terminology.143

80  Anyway, the major practical problem is the implementation and enforcement of the legislative resolutions.144 The Council cannot by itself effectively monitor this, but is dependent on the cooperation of the members. To secure that cooperation, the Council must as far as possible forestall any criticism of lacking legitimacy. So in the end, law-making decisions must be based on an overall consensus of the international community both for normative and practical reasons.

Footnotes:

I thank Jost Delbrück, author of the commentary in the previous edition, for handing over this piece of the commentary and for allowing me to use his work. I am indebted to Thore Neumann for outstanding research assistance and helpful comments on previous versions of this piece.

1  Covenant of the League of Nations, Part I of the Treaty of Versailles of 28 June 1919 (Treaty of Peace with Germany) in (1919) 13 AJIL Suppl 151–386.

2  The ‘United Nations Conference on International Organization’, from 25 April to 24 October 1945. See for a summary (1946/47) UNYB 12–34.

3  Art. 4 (1) of the US-American draft (‘The Charter of the United Nations: Draft’ of 14 August 1943, in US Dept of State (ed), Postwar Foreign Policy Preparation 1939–1945, Publication 3580 (1950) 526, 527). See on the three political visions of the leaders of the USA (Roosevelt), the UK (Churchill), and the Soviet Union (Stalin) near the end of the war and the immediate post-war DL Bosco, Five to Rule them All: The UN Security Council and the Making of the Modern World (OUP 2009) 14–19, with further references. Notably Roosevelt formulated the ‘Four Policemen Concept’ in his speech to the Nation on Christmas Eve 1943 (ibid, 14–15). See s III of the ‘Plan for the Establishment of an International Organization for the Maintenance of International Peace a