HISTORICAL BACKGROUND OF THE SECURITY COUNCIL

GENERAL INTRODUCTION: HISTORICAL BACKGROUND OF THE SECURITY COUNCIL

The Security Council is one of the principles organs of the United Nations. It is established under Article 7 of the United Nations Charter. It is charged with the responsibility of maintaining international peace and security. It derives this power under Article 24 of the Charter. In order to achieve this primary aim, Article 25 provides that it shall have enforcement powers so that it can in some situations make binding resolutions to which member states shall give effect.

There are various methods through which the Security Council can maintain international peace and security under the Charter. These are:

• To investigate any dispute or situation which might lead to international friction;
• To recommend methods of adjusting such disputes or the terms of settlement;
• To formulate plans for the establishment of a system to regulate armaments;
• To determine the existence of a threat to the peace or act of aggression and recommend what action should be taken;
• To call on members to apply economic sanctions and other measures not involving the use of force to prevent or stop aggression;
• To take military action against an aggressor;

The Security Council held its first session on 17th January, 1946 at Church House, London. Since its first meeting, the Council which exists in continuous session has traveled widely holding its meetings in many cities such as Addis Ababa, Ethiopia in 1972, Panama City, Panama in 1973, then at its current home at the United Nations Headquarters in New York City.

{The Council is organized in such a way that it is able to function continuously and a representative of each of the members must be present at all times at the United Nations Headquarters. } The presidency of the Council rotates monthly, according to the English alphabetical listing of its member states. The Council is composed of 15 members of which 5 are permanent members with veto powers and the other 10 non permanent members are selected from the General Assembly on a rotational basis. The non permanent members are selected based on each member’s contribution to the maintenance of international peace and security and equitable geographical {distribution.} The non permanent members have no veto power. This is probably due to the nature of its role and the need to act expeditiously in situations of crisis which could endanger international peace and security. With the veto, the 5 permanent members can greatly influence a final decision in the council. This is due to the fact that even though the non permanent members can take part in the discussions and probably make suggestions, a permanent member can veto a decision that it is not happy with. This is exemplified by the case of Russia during the Cold War (show example) .The rationale for the veto is due to the fact that the mistakes made with the League of Nations needed to be avoided. There was therefore a need to have few members who would be able to take decisions expeditiously.

Articles 24 and 25 of the Charter are the main source of the power of the Council. This gives the Council the leverage to act on behalf of members of the General Assembly and to trust its decision on determining when there is a threat to peace and security. This shows that invocation of Chapter VII powers is not absolutely necessary to give the Council’s action a binding character. This is in consonance with the International Court of Justice holding in the Namibia case that the resolution was binding even though its basis is not the Council’s chapter VII powers .

During the Cold War, the Security Council was deadened by the constant use of the veto by the permanent members especially Russia which at a particular time led to the transfer of the Council’s power to the General Assembly and the Unifying for Peace Resolution was adopted. With the end of the Cold War, the Security Council became more active, that is, it had more opportunity to act by adopting a lot of resolutions (the resolution on Namibia) and performing the functions for which it was established. With this development, many countries began to assert their dissatisfaction with the unrepresentative character of the Council and its exercise of power

In interpreting the relevant Charter provisions on what constitutes a threat to peace and security, the Council has taken a liberal path so that a whole lot of issues come under what constitutes a threat to the peace from issues such as diseases, lack of economic co-operation to nuclear weapons. This has however come under a lot of criticism that the Council is making a general statement or more precisely legislating by making pronouncements on HIV. The reason why the Council has given its chapter VII power a liberal interpretation is due to the fact that each organ within the United Nations determines its own power to suit its functions. Similarly, the decisions of the Council are not subject to judicial review by the principle judicial organ of the United Nations which is the International Court of Justice.

It is also very important to take cognizance of the fact that the Charter has to be reflective of modern challenges. It cannot continue to be interpreted in accordance with the intention of the drafters. In order to give effect to its aims and objectives, contemporary challenges have to be taken into consideration.

AIMS AND OBJECTIVES

The issue of what constitutes a threat to international peace and security and the steps taken by the Council to address the issues through recommendations and resolutions will form part of the aim of this research. It would be argued whether or not the Security Council makes laws or it merely interprets them. If it makes laws, its legitimacy is to be questioned, that is whether it follows due process of treaty making or legislates in accordance with the primary objective of the Charter of maintaining international peace and security. I would also consider whether it is the right forum for such law making considering the implications of its legal output on the members of the United Nations.

The research will carry out a literature review on what obtains about its law making powers which makes it quite interesting considering the fact that the Security Council is a political organ. This is due to the fact that it is one of the few organs aside the World Health Organization (WHO) and the International Atomic Energy Agency (IAEA) that make binding decisions on member states. It will be argued that the council does actually make laws even if it previously didn’t do so considering its recent resolutions such as the resolution on terrorism and the resolution establishing the International Compensation Commission following the Gulf War and the sanctions on Iraq considering their long term implications.

Even though the Security Council has become sort of a global legislature for the reasons stated above, for the arguments that would be canvassed in Chapter 2 of this dissertation, it will be argued that the Security Council being a political organ is not the right forum for law making as the case maybe. Due to the fact that there is no legislature at the international level, it became the ultimate world authority even though its primary pre-occupation is the maintenance of international peace and security. The word peace and security being viewed in the positive rather than just the prevention of war can encompass any subject and thus comes within the jurisdiction of the Security Council to legislate upon. (talk about hegemonic international law)

STRUCTURAL OUTLINE

Should be filled out later in the course of the dissertation and should take this page and the next.

DOES THE SECURITY COUNCIL MAKE LAWS?

The Security Council as an organ was not established to make law. (See Chesterman).Its primary role as stated earlier is the maintenance of international peace and security, a term which was couched in the negative by the drafters of the United Nations Charter i.e. to prevent war. The passage of time has affected the Charter and brought about different events to which solutions had to be proffered and thus the need for a liberal interpretation of the Charter in order to give effect to its aims and objectives. It is the manner the Council has chosen to interpret the Charter that has led to debates about whether it has started legislating(szazs) or it merely interprets the provisions of the Charter through its resolutions and recommendations.(see alvarez,pages 129,141,143).

As stated earlier, the Security Council is one of the few organs aside the WHO and IAEA that actually make legal instruments that are binding on the members. Although some resolutions are recommendatory while others are binding and has been accepted by states by virtue of Article 25 of the charter, recent resolutions have not only been binding but have sparked debates as to whether the council has started legislating. Different opinions abound with regard to this present debate.

White (2005) is of the view that the Council has developed a quasi-judicial capacity despite its express power of determination being limited to Article 39 of the Charter. He terms it as judicial capacity due to the fact that the determinations are based on international law rather than institutional law of its constituent document. He further contends that such a power is invaluable in a legal system that depends for its continuance on clear and unequivocal condemnation of breaches of international law. Although his opinion holds true to some extent due to the fact that there is no legislature at the international level, what it doesn’t tell us is the implications of such law making by the Council.

Schrijver (2006) is of the opinion that of recent the Council had started to create law by virtue of the general statements that it makes. That with resolution 1540 (resolution on terrorism), the Council had taken an unprecedented step of bringing into force legislation binding on all states on the issue of terrorism (szasz-the Security Council starts legislating). This argument contends that even if the Council before now did not create binding obligations on the members of the United Nations, its resolutions have taken a new dimension and they have the effect of law at the state level.

Others are of the opinion that the changing role of the Council as a result of the transformation in international law through the 20th century has caused a shift from bilateral treaty relations to multilateral institutional framework. In essence the consent of states are no longer required before action can be taken putting into consideration the matter of which the Council has jurisdiction over, hence the need to legislate on behalf of the entire international community. This argument is in line with the need to interpret the Charter in light of its object and purpose in accordance with Article 32 of the Vienna Convention on the law of treaties. However, there is the need for such laws when the need arises for them to be made in accordance with the limitations set by the Charter which will be explored further in the chapter taking the case study of the sanctions placed on Iraq during the Gulf conflict. Chesterman opines that for the Council to become a world legislator there is the need for a conscious transfer of such power from the member states to the Council to elevate it to that status.

Another justification for the Council’s recent role could be supported by the fact that there is no specified organ in the Charter responsible for interpreting the provisions of the Charter. As a result of this, each organ is responsible for interpreting the Charter provisions relevant to its functions. Similarly, since the Council is charged with the responsibility of determining what constitutes a threat to international peace and security, (check relevant charter provision).it is justified in doing what it is presently engaged in. The ends driven demands of peace and security are winning the battle for the Council’s role

It is contended that the Council by answering purely juridical questions to which it is not the rightful organ, has shed its reluctance to create legal obligations, thus acting as a law maker .The legality for its law making powers can be found in the provisions of its Chapter VII powers and states consequently have a duty to obey its determinations

A different opinion holds that since there is no enforcement mechanism at the international level, the international normative system is not law. Therefore, the decisions made by the Council are not legislative in nature. (Check the article and see her reference on this point). Although this is a good point due to the fact there is no legislature at the international level, it does not take cognizance of the fact that the present day Security Council does actually have the ability to coerce compliance and has done so in several instances such as during the Gulf War when it required member states to use all necessary means to ensure compliance by Iraq of the order to vacate Kuwait. (find reference)

It has also been contended that the sanctions that the Council places on states are temporary and meant to secure compliance and as such cannot be said to establish new rules of international law. This a plausible argument due to the fact that even if the sanctions were initially temporary, they can later acquire the force of law to be made applicable to other defaulting states, hence they become custom (my argument is plausible as well).

It is submitted in line with Chesterman’s argument that the Council’s decisions even if previously not legislative, have taken a radical turn for imposing obligations on states. This is true of the resolution on terrorism which requires states to pass legislations to give effect to the resolution and report to a committee about progress made on the implementation of the resolution (see szasz and the resolution on terrorism).This is in contradiction to most of its resolutions which usually encourage states to do a particular thing rather than using operative words like”shall”. This kind of obligation is usually found at the state level where you have a legislature with the requisite power and the necessary checks on its decisions or at the international level through multilateral treaties that create obligations on states with their consent.

More so, this is contrary to the practice of the General Assembly where resolutions of this nature are adopted unanimously. The Security Council is supposed to work in conjunction with the General Assembly in relation to security matters (correction needed).

BINDING AND NON BINDING RESOLUTION

The Security Council takes decisions by passing resolutions. Resolutions may be defined as a unanimous agreement by the members of the Security Council on the course of action to take with regards to issues of international peace and security. The Security Council is one of the few organs with intergovernmental organizations that can adopt binding resolution on member states. Pursuant to the provisions of Article 25 and 48(1) of the charter, the council can adopt binding decisions on its members. For the decisions to be binding, they must be taken in pursuance of the primary responsibility of the Council of maintaining international peace and security. The binding resolutions usually require compliance by states and it can come in the form of economic sanctions or other restriction on the state in question (szazs).

On the other hand, the Council has recommendatory powers in accordance with Article 26 of the Charter by formulating plans to be submitted to the members of the United Nations through the General Assembly. Such plans are not binding on the member states (Stefan talmon)

In determining whether a resolution is binding or not, the International Court of Justice in the advisory opinion over the continued presence of South Africa in Namibia stated that care ought to be taken before reaching a conclusion. White is of the opinion that the approach of the Council means that it can adopt binding decisions on a wider variety of matters concerning peace and security (within its confines). A possible explanation for the cautious approach of the court might be due to the fact that distinction between binding resolutions and mere declarations have become blurred (Alvarez).This is as a result of developments in international norms. What is today merely of normative value might acquire the force of law with time and might even develop into a jus cogen norm (define term in glossary).This could be seen with some General Assembly declaration (declaration on the right of self determination).This could possibly happen with the resolution on terrorism.

White says that the non binding recommendations can help shape customary international law. This is because the distinction between binding resolution and soft law obligation as stated by Alvarez is no longer clear cut (page 599).Soft law is no longer just a precursor to a hard rule. It is sometimes regarded as preferable to law making. It helps to provide an authoritative interpretation of the Charter as can be exemplified in the case of the council. (I don’t know if this is really applicable as it seems to encompass IGOs generally).

With the end of the Cold War, the activities of the Council have made distinction between enforcement, law making and dispute settlement difficult (page 600). At one time or the other, the Council has engaged in all of the above mentioned activities and even though they were not initially meant to be binding, states eventually adopt legislations to that effect (find example).

CONCLUSION

The conclusion will be fitted in later in the final draft and more will be said about the aim and objective and the structural outline. it will come to a total of 10 pages.