Limits to the Power of the Security Council - Essay Example

Introduction A has the right to self-determination, and its people are en d, through the to their exercise their absolute sovereign right to determine how they should be governed. However, the state is also a member of the international community, and therefore must choose to relinquish a part of its sovereign right if it wishes to be an active member of this community. As the state receives the benefits it gains therefrom, it should also commit to abide by the obligations attendant to membership. The United Nations is one such global community of states, and its members are bound to its principles, pronouncements and processes. The UN’s principal goal is to build on the lessons of the past and create a peaceful and secure environment for the future. To better achieve this, the Security Council was established as one of the two principal political organs of the U.N. Controversies have arisen, described in the following section, on the use of the broad coercive powers of the Council. This paper examines whether limitations exist to the exercise of these powers, and if so, how they work to enable the Security Council to better achieve its objectives. 2. The Power of the Security Council The powers of the Security Council are far reaching, but they are generally confined to the maintenance of international peace and security.1 The powers of the Security Council are conferred upon it by the United Nations in Article 24 of the UN Charter, by virtue of which the Security Council acts on behalf of the Member States of the UN in the discharge of these duties. It is also in Article 24, in paragraph 2, where the first mention is made of the limits to the exercise of its duties. According to this paragraph, when discharging its duties to maintain peace and security, the Security Council “shall act in accordance with the Purposes and Principles of the United Nations.” In this broad statement, the Charter in effect imposes upon the Security Council the responsibility to conduct its tasks within the UN’s stated Purpose and Principles; where these acts are inconsistent with these standards, then the Security Council is deemed to be acting ultra vires or beyond its mandate. The Security Council is bound by law, as with all organs of the United Nations, and within this constituent legal framework are defined the powers and functions it may rightfully carry out. “In any case, neither the text nor the spirit of the Charter conceives of the Security Council as legibus solutus (unbound by law).”2 This contains no assurances, however, that the Security Council’s actions at all times will be within the proper purview of the constitutional provisions; there may be times when questions arise as to whether certain actions exceed the limitations of these powers. The powers granted to the SC for the purpose of fulfilling its duties are explicitly stated in Chapters VI, VII, VIII, and XII.3 Chapter VII of the Charter empowers the Security Council to make decisions with far-reaching repercussions and which bind the Member States of the UN.4 And Member-States are bound to comply with its pronouncements: “Whether or not States have accepted the jurisdiction of the Court, they are required to fulfill their obligations under the Charter of the United Nations and other rules of international law…and they remain responsible for acts attributable to them which are contrary to international law.”5 This makes it all the more important for the Security Council to project itself through its actions as entirely credible and legitimate in its resolutions and decisions. 3. Definition and Composition of the Security Council The Security Council (SC) is a permanent council of the United Nations with the primary (but not exclusive) responsibility of ensuring that peace and security is maintained among the Member-Nations and, in effect, the nations of the world. Its principal task is to determine whether particular events or activities pose a threat to international peace and security. It has the power to authorize the imposition of sanctions among errant Member States, and beyond that, to use force in a wide range of situations.6 The SC is comprised of fifteen Member-States of the UN, consisting of five permanent members and ten non-permanent members. Specifically, the five permanent members are China, France, the Russian Federation,7 the United Kingdom, and the United States. The ten non-permanent members have a term to complete and then the membership is opened to other Member States. As of today, the ten non-permanent members are, together with the expiration of their terms: Austria (2010), Burkina Faso (2009); Costa Rica (2009); Croatia (2009); Japan (2010); Libyan Arab Jamahiriya (2009); Mexico (2010); Turkey (2010)’ Uganda (2010); and Vietnam (2009). The position of President of the SC is held in turn by each Member for the duration of one month, according to the English alphabetical order of their names.8 Gaining an insight into the composition and the manner by which leadership in the SC is chosen is important in assessing how democratic the pronouncements and decisions of this body are, and in a sense how prone to, or safe from abuse such decisions are. 4. Scope of the mandate of the SC Before limitation can be discussed, it becomes necessary to examine the need for such limitation. According to Chapter V, the SC is mandated to ‘assume primary responsibility for maintaining peace and security’. Generally, this was taken by all to mean that an act of aggression or a breach of the peace has overtly taken place, necessarily implying the actual or potential use of military power in interstate or regional conflict. More recently, however, the interpretation has tended towards a broader scope, that of “threat” to international peace and security, more than the actuality or inevitabiltiy of armed encounter. Otunnu9 noted the increasing liberality and expansiveness of the criterion by which the SC justifies what the author calls its increasingly coercive intrusions into situations of international, regional, and sometimes even internal, conflicts. Some instances may be cited where the standard of “threat to international peace and security” involved a level other than armed conflict. In March 1991, Resolution 688 of the SC held that the “internal repression” to which the Iraqi population were being subjected to, as well as the cross-border flow of refugees, was a threat to “international peace and security in the region”. In March 1992, the SC pronounced that the fact that the Libyan government failed to extradite those suspected of carrying out the 1988 bombing of a Pan American passenger airplane over Lockerbie, Scotland10 likewise constituted a threat to international peace and security. Also, in December of that year, the internal conflict in Somalia prompted the issuance of Resolution 794, wherein the SC deemed “the magnitude of human tragedy caused by the conflict” to constitute a threat to international peace and security. While arguably these situations could be construed to be precursors to an escalation of conditions that may eventually threaten international peace and security, the relative remoteness of the event to actual or potential armed conflict of an international or regional scope is evident, when compared to the original intention of Chapter V. 5. Discussion on limits to the powers of the SC11 In seeking to understand the limitations on the powers of the SC, which together with the General Assembly make up the principal organs of the UN, it is necessary to examine their relationship with the principal judicial arm of the UN, the International Court of Justice (ICJ). In the structure of the UN, there is no hierarchical relationship linking the ICJ and the SC. Since neither is subordinate to the other, they are co-equal bodies and therefore, the ICJ is not barred from the exercise of its power that may involve the SC, as the SC is likewise not in any way constrained from the proper exercise of its power as it may involve the ICJ.12 According to the ICJ itself, while there exists in Article 12 of the Charter a clear provision of how functions are divided between the SC and the General Assembly, there is no such definition of the relationship between the International Court and the Security Council.13 This presents a dilemma in cases which are brought before the ICJ on a matter of legal determination, but which is also undergoing the administrative processes of the SC. In such a situation, the question arises: May a decision of the SC be nullified by a decision of the ICJ in an action brought before the latter for adjudication? The answer has implications on the role of the Court in possibly limiting the power of the SC to decide on a course of action which it (the SC) has taken pursuant to its mandate to maintain peace and security in accordance with the Charter. 5.1 Substantive Limits to the Powers of the SC, as embodied in the Purposes and Principles of the Charter Whether the ICJ may judicially review the official actions of the SC is dependent upon a determination of the possible legal bases of such limitation. The ICJ may only credibly rule on the validity (or lack of it) of Security Council decisions if a reliable legal standard may be applied. Practical sense tells us that any institution or instrumentality created by humans in a social setting, even if it be the Security Council in the context of the global setting, cannot act or decide without any limitation; the question lies in identifying those limitations. Because of the present concerns more than half a century after the Charter’s creation, it occurs to many that the framers of the Charter should have considered statutorily limiting the vast powers it has endowed the Security Council with. Historical literature shows that this consideration was actually debated upon, after which it was resolved that explicit limits were not necessary. It was then deemed that the text of the Charter was sufficient delimitation in its mandate for the Council to act in accordance with the purposes and principals of the UN. In the absence of any statutory provisions that set outright limits, there are other sources of law from which such standards may be construed.14 5.1.1 Limits imposed by General International Law The key to the principal standard by which the actions of the SC may be assessed is its mandate to act in accordance with the Charter’s purposes and principles. Expressly, this is contained in Article 24 (2), while the specific provision for the purpose and principles are found in Articles 1 and 2. These comprise the imperative limits upon which the standard necessarily must be based, and therefore deserve a more thorough examination. In Article 1 (1), the purpose of the UN to settle international disputes and diffuse potentially volatile situations that could lead to acts of aggression, has been qualified by the words: “in conformity with the principles of justice and international law.” It may thus be construed that in the conduct of the SC in discharging its rightful duties, it is bound to do so only where such actions are consistent with general international law, unless explicitly authorized by the Charter. The SC may thus not so lightly disregard nor derogate from the doctrines and customs of established international law, with the sole exception that the Charter allows it to do so in particular circumstances.15 To every rule there is an exception, however, depending upon the exigencies of actual circumstances as they develop. It has been argued that the SC is charged with maintaining the peace which, at times, may only be achieved by disregarding international law. For instance, Chapter VII specifies measures (even action by land, sea or air16 with the use of force) under the discretionary use by the SC which are intended to restore peace at the expense of transgressing some tenets of international law. The measures are however, not meant to be punitive; where they are coercive, it is only to the extent that is necessary to restore peace and security.17 In this case the standard, therefore, should be whether the breach of international law was done in a manner that was justified by the gravity of the situation, and without which peace and security would not have been restored. 5.1.2 Duty not to violate norms of jus cogens Aside from general international law, the Security Council is precluded from exercising its powers in violation of the norms of jus cogens. These refer to the peremptory norms of international law, which means that they are not open to appeal or challenge. They override the international legal order and may not be derogated from.18 Unlike general international law which admits of some exceptions, in the case of jus cogens any conflicting SC decision or action with this standard is necessarily without legal force and effect.19 An example of this application is that of the Genocide case files by Bosnia and Herzegovina (henceforth, “Bosnia”) against the then Federal Republic of Yugoslavia on 30 March 1993. Bosnia’s second request for provisional measures in the said case made reference to Resolution 713 of the SC,20 which authorized the implementation of a general and complete arms embargo on Bosnia. According to Bosnia, the effect of the embargo was to assist in the commission of genocide in that country; to this, the ruling Judge ad hoc Eli Lauterpacht agreed, stressing that the prohibition of genocide was a matter of jus cogens of which Resolution 713 is directly violative. Despite the opinion of Judge Lauterpacht expressing concern that Resolution 713, if carried out, will make the UN members accessories to genocide, the ICJ did not directly rule on the matter. Instead, the Court’s decision advised that on the matter under adjudication, the possible commission of genocide, long acknowledged as a norm of jus cogens, places the matter in doubt for which reason the Security Council should extend it further consideration.21 This explanation was widely accepted by many of the Member-States, which eventually withdrew support for the embargo. 5.1.3 Human rights obligations Another legal basis on which limitations to the powers of the Security Council may be anchored upon springs from Chapter I, Article 1 (3) of the Charter. This paragraph states that it is the purpose of the United Nations to promote and encourage respect for human rights and fundamental freedoms for all. A similar guarantee for the preservation and promotion of human rights and fundamental freedoms is provided for in Chapter IX, Article 55. Where, therefore, in its exercise of its powers the Security Council transgresses upon the human rights and fundamental freedoms of people, then to that extent the act may be considered invalid, and the SC deemed to have acted ultra vires. In the Bosnia case, Judge Lauterpacht likewise expressed that human rights obligations act as a limitation on the Security Council’s exercise of its power. There was not serious objection to this because common logic will underscore the irony in the situation where an organ of the UN, the champion of human rights, would itself be empowered to violate human rights.22 While all are agreed that the SC must, in the exercise of its powers, be limited by human rights obligations, there has been some debate as to which fundamental human rights it should be bound by, since the full scale and continuum of human rights are seen to encompass those which are absolutely inviolate, and those which may be temporarily curtailed, given the set of circumstances that would necessitate such curtailment in order to avoid a greater evil. There appears to be a consensus that at least, the SC should be bound to abide by the rules contained in the International Bill of Rights, even during times of emergency and armed conflict.23 5.2 Procedural limitations to the powers of the SC: Questions of Judicial Review Earlier it was discussed that the SC and the ICJ were co-equal principal organs of the United Nations; the SC is a political organ, while the ICJ is the judicial organ. There exists no hierarchical link between the two, and no provisions to regulate their functions in relation to each other. Additionally, the Charter also does not provide for the power of judicial review for the ICJ with respect to the decisions of the SC. As a legal procedure, the power of judicial review refers to the power of the Court to rule on the validity, or lack of validity, of the decisions promulgated by the political organs of the UN (i.e., the Security Council and the General Assembly). While there are no provisions empowering the ICJ to exercise powers of judicial review, there are likewise no provisions precluding such exercise. When drawing a parallel between the UN Charter and municipal law, it is observed that for most national legal systems, judicial review is not prohibited. It appears that the presumption is that within a legal system, judicial review by the Court is permissible unless it is expressly prohibited by law. Drawing a parallel between the ICJ and the municipal courts, the absence of an outright grant of judicial review does not bar the ICJ from exercising this power.24 In the case of the ICJ, however, the Statute of the Court does now allow for it to rule on a direct challenge to the Security Council; its jurisdiction is limited to contentious cases between Member-States. The ICJ, therefore, may only judicially review a decision by the SC if such a question arises only as an incidental to a case between two Members. Another course may be taken, however, which is that of advisory proceedings. 5.2.1 Advisory proceedings One circumstance by which questions of judicial review may arise is that of advisory proceedings. Chapter XIV, which contains the provisions on the International Court of Justice, specifies in Article 96 that either of the principal political organs of the UN – the General Assembly or the Security Council – may request the ICJ for issuance of an advisory opinion concerning any legal question.25 Other organs and specialized agencies may also request the ICJ for an advisory opinion on matters related to their official activities, with prior authorization by the General Assembly.26 The General Assembly and the Security Council may, however, raise before the ICJ its advisory opinion on any legal question, whether arising or not from the conduct of its activities. It is therefore within the purview of Article 96 (1) for the General Assembly to request the opinion of the Court concerning the legality of particular decisions of the Security Council; similarly, the Security Council may raise such a question on the legality of the decisions of the General Assembly before the ICJ.27 While it is entirely within the competence of the Court to issue its opinion on the decisions of either organ, the implications and repercussions in actual practice make this difficult to implement. Should the ICJ opinion be contrary to the Security Council decision, there are three possible implications: (1) that the Security Council had doubtful competence on the matter; (2) that the opinion may likewise render doubtful any previous SC action on the matter; or (3) that the SC may have to put off any further action on the matter until the ICJ would have issued its decision. The latter is undesirable in at least two ways. One is that such an arrangement would mean that the SC is dependent upon the decision of the ICJ, putting the ICJ into a higher position than the SC, whereas they should be co-equal. The other is that this may set a precedent for the Council to always seek ICJ opinion whenever its competence is challenged.28 Any of these scenarios could adversely affect either the perception of the competence of the SC, or compromise the efficient discharge of its duties. 5.2.2 Contentious cases The validity of SC decisions may be challenged in the ICJ, as the Lockerbie and Bosnia cases demonstrated. It must be recalled that the decision may not be directly challenged in Court, but it may be called into question as incidental to cases between two Member-States. Such an incident may be when a resolution earlier arrived at by the Security Council becomes the law applicable in the settlement of disputes between two states. The application of the resolution in this case may be contested by the claimant, where there is doubt that such resolution is properly applicable given the specific circumstances. In the course of this inquiry, it may become necessary to examine the resolution’s validity, in which case the Court must make a determination as to whether or not the SC had exceeded its powers in arriving at the challenged resolution. The principal objective of the inquiry is not to declare that a Security Council resolution is invalid or not, but to determine if there is sufficient basis for the satisfaction of the legal claim of one State against another. In order to bring into closer focus the role of the ICJ in the procedural limitation of SC powers, it is apropos to examine the Lockerbie case at this point. Lockerbie is a landmark case where several doctrines on the judicial review of SC decisions have been first articulated. The incident central to the case was the explosion of Pan American Flight 103 over Lockerbie, Scotland, on 21 December 1988, killing 259 passenger and crew and eleven persons on the ground.29 The subsequent three-year criminal investigation revealed that the likely suspects were two agents of the Libyan intelligence, namely Abdel Basset Ali lal-Megrahi, and Lamen Khalifa Fhimah. The two were indicted in the United States in November 1991. The case gained political color when the U.S. leadership alleged that the Flight 103 incident was authored by Abdullah Sanussi, brother-in-law of Moammar Gaddhafi and chief of Libyan intelligence. More recently, Gadhafi himself had been implicated as the mastermind.30 During the years immediately following the incident, the story gained in complexity as speculative scenarios included other nations, such as the Iranians, and other incidents such as the failed bombing attempt in African Togo, also planned by Libyan terrorists. Even as the investigations were still being pursued, and before the accused were brought to trial, the Western press had already called for the punishment of Libya, placing the blame square on the Ghaddafi regime. Based on the forensic evidence and the results of the investigation, the U.S. and U.K. sought the extradition of the suspects from Libya, but were met with outright refusal, at which point the matter was raised before the Security Council. As a result thereof, the SC adopted Resolution 731 in January of 1992, implicating Libyan government officials in their alleged participation in the bombing. The citation underscored Libya’s lackluster effort in establishing culpability for the “terrorist acts” and urged the Libyan government to agree to the requests of the U.K. and the U.S., based on the UN Charter. Subsequently, the SC issues Resolution 74831 citing Chapter VII On the other hand, Libya, after its attempts at arbitration with the U.S. and the U.K. were denied, applied at the International Court of Justice for the cessation of actions from the U.S. and U.K., basing their claims on the Montreal Convention.32 Libya also filed for provisional remedies (i.e., the counterpart of injunctive relief in municipal law) with the ICJ. At this point, the issues setting the ICJ against the SC appeared joined, with the two UN organs on a direct collision course due to conflicting jurisdictions – or, as others put it, concurrent jurisdictions.33 When Libya sought provisional remedies from the ICJ, the Court denied granting of provisional remedies, but did not abstain from exercising its jurisdiction over the case. Judge Shahabuddeen, in much the same manner as Judge Lauterpacht in the Bosnia case, avoided directly ruling on the SC resolution, but provided a separate opinion in support of denying Libya its petitioned provisional remedies. The opinion observed that while legal issues may arise questioning the competence of the SC in its decisions, and the issues are important, the present situation is pre-emptive and the time too premature to provide satisfactory solution to the matter. Officially, the petition for provisional remedies was denied on the basis that the SC resolution called for sanctions, but not the use of force; and since the legitimate use of force has to be approved by the SC, while the sanctions are in place, then the resolution applying the sanctions actually works to forestall the use of force – in short, “the Resolution of the Council stands in the way, both on the law and on the facts”34 against the use of force. Furthermore, in the order itself, the ICJ declared that pursuant to Article 103 of the Charter, the obligations of the parties under the Charter supersede their obligations under the Montreal Convention, or any other international agreement for that matter.35 5.3 Effects of court decisions (i.e., that council resolution is ultra vires) In the case of advisory opinions, since this is only an opinion then there are no legal consequences of the pronouncement that a particular SC resolution is ultra vires. When the decision is made in a contentious case, however, there are legal consequences in so far as they bind the contending parties, although they except any external parties form the effects thereof, and any other application on any other case even on the parties to this case.36 The reason for this provision is to remove any possibility that the pronouncements of this case becomes universally binding on the principle of stare decisis on the Security Council, as well as all other parties. What is most interesting, however, is what the legal effects are for findings where the Security Council has acted ultra vires in any one particular case. Questions arise such as whether such acts should be considered null and void ab initio or whether they are merely voidable, and if the latter, at whose instance (the ICJ or the SC upon its volition) the action to void should be taken. While there are no statutes on this matter, from what had transpired in the Bosnia case described early in this paper, there appears to be a consensus that an SC decision which is found to be ultra vires should at the least not be binding upon the Member-States. This does not mean, however, that States may unilaterally decide as to whether they would comply or not with specific resolutions; there is no reason why SC decisions which are not compromised by adverse ICJ decisions contentious cases would not be considered binding and mandatory upon the Member States. 6. Conclusion This study sought to find out whether limitations existed to constrain the Security Council in the exercise of its powers, and how these limitations work to achieve the SC’s purpose and objectives. It was determined that limitations to SC powers do exist, although the UN Charter provisions or statutes do not expressly articulate them. Substantively, the Security Council is limited in the exercise of its powers only in so far as it advances the stated purposes and principles of the UN. Also through construction of the Charter provisions, the use of power: (1) must as a rule comply with general international law except when circumstances require it, (2) must not under any circumstance violate the norms of jus cogens; and (3) must not violate the rules contained in the Universal Declaration of Human Rights. Procedurally, the International Court of Justice provides the venue to seek advice on the validity of SC resolutions, and to challenge (albeit tangentially) the validity of these resolutions through contentious cases between Member-States. By providing observing such limitations, the Security Council avoids the unbridled abuse of power to which all human organizations are prone, and remain focused on its principal objective of assuring peace and security between nations. The effect of the perception of limitations to its power is for the SC to continue to command the respect and adherence of the Member-States to its resolutions, improving the chances for compliance and, therefore, effectiveness of its decisions. References Akande, Dapo. ‘The International Court of Justice and the Security Council: Is There Room for Judicial Control of Decisions of the Political Organs of the United Nations?’ The International and Comparative Law Quarterly (1 Apr 1, 1997), Vol. 46, Issue 2 Chesterman, Simon & Lehnardt, Chia. ‘The Security Council as World Judge? The Powers and Limits of the UN Security Council in Relation to Judicial Functions.’ The Role of the Security Council in Strengthening a Rules-Based International System. Institute for International Law and Justice, New York University School of Law (2008). Accessed 16 April 2012 from http://www.iilj.org/research/documents/panel_3_report.pdf Chesterman, Simon. “UNaccountable? The United Nations, Emergency Powers, and the Rule of Law.” Vanderbilt Journal of Transnational Law, Nov 2009, Vol. 42 Issue 5, p1509-1541 Constantinides, Aristotle. ‘An Overview of Legal Restraints on Security Council Chapter VII Action with a Focus on Post-Conflict Iraq’. Accessed 16 April 2012 from http://www.esil-sedi.eu/fichiers/en/Constantinides_782.pdf De Wet, Erika. The Chapter VII Powers of the United Nations Security Council, Hart Publishing, 2008 Hauben, Ronda. ‘Abuse of UN Processes in Security Council Actions Against Libya.’ Accessed 16 April 2012 from http://www.ais.org/~jrh/acn/feature.pdf Orakhelashvili, Alexander. “The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions.” European Journal of International Law, Feb 2005, Vol. 16 Issue 1, p59-88,; DOI: 10.1093/ejil/chi103 Otunnu, Olara A. “The Security Council: A need for change.” Ecumenical Review, Jul 1995, Vol. 47 Issue 3, p302 Popovski, Vesselin.“Sovereignty as Duty to protect Human Rights.” UN Chronicle, Dec 2004-Feb 2005, Vol. 41 Issue 1, p16-18 UN Delegate. Accessed 20 April 2012 from http://www.un.int/wcm/content/site/portal Wie?, Wolfgang. ‘Security Council Powers and the Exigencies of Justice after War.’ Max Planck Yearbook of United Nations Law, A. von Bogdandy and R. Wolfrum (eds.), Vol. 12 (2008), 45-111, Koninklijke Brill NV. Wood, Sir Michael. ‘The UN Security Council and International Law.’ Hersch Lauterpacht Memorial Lectures. University of Cambridge (7-9 Nov, 2006). Accessed 16 April 2012 from http://www.lcil.cam.ac.uk/Media/lectures/pdf/2006_hersch_lecture_2.pdf Zubel, Eric. “The Lockerbie Controversy: Tension Between The International Court of Justice and the Security Council.” Annual Survey of International and Comparative Law. 1999. Vol. 5, Issue 1, pp. 259-285, Article 10. Accessed 20 April 2012 from http://digitalcommons.law.ggu.edu/annlsurvey/vol5/iss1/10 Read More