UN Research Paper

Sonali Sengupta
BA.LLB
20120296
The Security Council of the United Nations exercises quasi - legislative, quasi- judicial and
executive powers through Chapter VII resolutions which are legally binding on member States.
This research paper attempts to trace the legal basis of such an exercise of powers by the
Security Council and evaluates whether such an exercise of power is limited by international law.
1
The Security Council was meant to be a political organ with broad police like duties
and it was endowed with the principal responsibility to maintain international peace
and security and avoid another war, which is also the main goal of the United Nations.
The United Nations was itself structured so as to be a 2“universal instrument of
geopolitics”. Post cold war there were many debates due to the impressive
quantitative and qualitative improvements of the Security Council’s actions. We saw
these improvements in the 3form of resolutions and establishment of commissions etc.
4
since 1990, the Council has adopted more than 900 resolutions though in its first 45
years of functioning it had adopted around 646 resolutions only. As for commissions
and legal bodies, the Council has, inter alia, 5established a Compensation Commission
for Iraq, two International Criminal Tribunals - one for the former Yugoslavia and
one for Rwanda, a Demarcation Commission for the Iraq-Kuwait boundary and
Transitional Administrations in Kosovo and East Timor. These debates were also seen
to be necessary for the endeavors to foster the “law” in international law and relations.
The debates of the limitations on the powers of the Security Council are usually
discussed in conjunction with the debates on judicial review. But these are two
separate matters, for example, notwithstanding judicial review, an ultra vires act of
the Council can have distinct legal consequences like as can be seen in the case of the
controversial 6“right of last resort” in which member States, functioning under certain
conditions, can refuse to abide by an ultra vires decision of the Security Council. 7
Security Council can only amend laws and pass resolutions, it can’t make laws but a
legislature can make and amend therefore Security Council is a quasi-legislature.
The question in hand is to evaluate the scope of the legal powers of the
Council, in context to judicial, legislative and executive arenas of law. While doing so
1 Derek Bowett, The Impact of Security Council Decisions on Dispute Settlement Procedures,
http://www.ejil.org/pdfs/5/1/1272.pdf
2
http://www.questia.com/library/politics-and-government/international-relations/international-
organizations/united-nations/u-n-security-council
3
4
Aristotle Constantinides, An Overview of Legal Restraints on security Council Chapter VII Action
With a Focus on Post-Conflict Iraq, http://www.esil-sedi.eu/sites/default/files/Constantinides_0.PDF
5 Derek Bowett, The Impact of Security Council Decisions on Dispute Settlement Procedures,
http://www.ejil.org/pdfs/5/1/1272.pdf
5
5
6 Aristotle Constantinides, An Overview of Legal Restraints on security Council Chapter VII Action
7 Aristotle Constantinides, An Overview of Legal Restraints on security Council Chapter VII Action
Sonali Sengupta
BA.LLB
20120296
we will have to draw comparisons between the Security Council and the domestic
legal bodies that exercise legislative, judicial and executive powers. 8Though we have
seen that the council faces an accountability problem as it fails to differentiate
between these three heads of power. Though in practice the Council exercises these
three types of power without really distinguishing between them. The Security
Council regularly and routinely9 takes out a set of quasi-legislative instructions and
also creates such mechanisms to implement these instructions, for example, the
10
Security Council resolution 1373 (2001) which was on counter-terrorism,
11
sanctions resolutions such as the resolution on North Korea (resolution 1718, 2006)
and resolution on weapons of mass destruction (resolution 1540, 2004). As a result, it
is very unclear whether Security Council action fits into what could be politically
called 12“executive action” as the latter is more correctly constrained to denoting
actions of political bodies acting within the State governments. Now the question (and
a lot of critiques) are centered around what restrictions, if any at all, are there that
could limit the Security Council’s powers to perform and delegate executive type of
functions. Professor Pellet answers this question and says that many things bind the
Council. For starters,13 the council is bound by the Charter of the United Nations,
which specifically says that the Security Council must act in accordance with the
Purposes and Principles of the United Nations (UN Charter, Art 24(2)). The other
limitations are peremptory rules of international law that overrules treaties and the
norms of jus cogens. The only other way that council discretion is limited is the
principles of natural justice. The council may be bound by such principles if they do
exist. Though mostly, States can seek protection from abuse of Council’s actions and
decisions by seeking protection under the Charter and individuals can seek protection
under the norms of jus cogens. Beyond these two protections, 14the main check on
Council decisions is the possibility that states disregard the council’s decisions.
Council’s decisions are nothing without its member-state support. When the Security
Council is faced with issues of peace and security and it adopts enforcement measures
under its Chapter VII powers then international law is not that much of a primary
consideration. As a matter of fact, 15international law makes an appearance in para 1
of Article 1 but it is only with context to peaceful settlement of international disputes.
In fact it is indeed seen that the fundamental rules of international law whether it is
8 Simon Chesterman & David A. Jordan, The Security Council as World Executive? : The
Implementation and Enforcement of Rules by the Security Council,
9
Simon Chesterman & David A. Jordan, The Security Council as World Executive? : The
10
Edwrad Grodin, Making the World Safe for Democracy: UN Security Council Resolution 1373, the
International Imposition of Counterterrorism Policies, and the Arenas of Power Model,
http://blogs.cornell.edu/policyreview/2012/03/15/making-the-world-safe-for-democracy-un-security-
council-resolution-1373-the-international-imposition-of-counterterrorism-policies-and-the-arenas-of-
power-model/
Sonali Sengupta
BA.LLB
20120296
the prohibition of use of force, non-intervention or respect for State sovereignty do
not signify when it comes to Chapter VII action. 16Though by the virtue of the Article
103 of the Charter, which says, that binding Security Council decisions shall prevail
over only treaty law and not customary law. Nevertheless, the 17Security Council is
empowered to disengage from the edict of Article 103 and derogate temporarily from
the norms of both treaty and customary law as long as it is acting under the Chapter
VII, in the interests of maintaining international peace and security. These powers are
inherent in the enforcement action and implicit in Chapter VII itself. Here we can see
the executive side of the Council as we can see its powers when it comes to
enforcement of its actions on member states however temporarily. However , under
no circumstances can the Security Council act in ways that would defeat the very
purposes and principles of the UN or override any rules of jus cogens.
18
The Chapter VII of the United Nations provides the framework, within
which the Security Council can take enforcement actions. In other words it is this
Chapter that validates its executive powers. This Chapter gives that power to the
Council that allows it to 19“determine the existence of any threat to the peace, breach
of the peace, or act of aggression” and the power to make recommendations, resort to
non-military and military actions so as to ensure compliance of States to security
council decisions and actions which are in respect to20 “maintaining or restoring
international peace and security”.
Interpreting the Security Council resolutions is a complex art. The

International Court of Justice determined in its 21advisory opinion on 21st June, 1971
(Namibia) that, “the language of a resolution of the Security Council should be
carefully analysed before a conclusion can be made as to its binding effect. In view of
the nature of the powers under Article 25, the question whether they have been in fact
exercised is to be determined in each case, having regard to the terms of the
resolution to be interpreted, the discussions leading to it, the Charter provisions
invoked and, in general, all circumstances that might assist in determining the legal
consequences of the resolution of the Security Council” (para. 114). We see the
legislative powers of the Council here as the Security Council through its general
powers can take decisions of a binding nature as under 22Article 24 and Article 25
without any reference to Chapter VII. 23Chapter VII is usually invoked when the
18
Anna M. Vradenburgh, The Chapter VII Powers of the United Nations Charter: Do They Trump
Human Rights Law, 14 Loy. L.A. Intl&Com.L.Rev 175(1991),
http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1242&context=ilr
19
http://www.un.org/en/sc/repertoire/actions.shtml
20 http://www.un.org/en/sc/repertoire/actions.shtml, last accessed on
21
http://www.securitycouncilreport.org/monthly-forecast/2013-10/in_hindsight_chapter_vii.php, last
accessed on May 19, 2014.
22
Special Research Report No. 1: Security Council Action Under Chapter VII: Myths and Realities,
http://www.securitycouncilreport.org/special-research-report/lookup-c-glKWLeMTIsG-b-
4202671.php, last accessed on May 19, 2014.
23 Anna M. Vradenburgh, The Chapter VII Powers of the United Nations Charter: Do They Trump
Human Rights Law, 14 Loy. L.A. Intl&Com.L.Rev 175(1991),
Sonali Sengupta
BA.LLB
20120296
Security Council is acting under Article 39 and has determined that there has been a
“threat to the peace, breach of the peace, or act of aggression”. Though the Council
does not find it necessary to explicitly refer to Article 39 or to the nature of the
determination for it to use its powers under Chapter VII. Resolution 1973, which was
on the 24issue in Libya, stated that the situation “continues 25to constitute a threat to
international peace and security”. 26But in Resolution 1970, which was also adopted
under Chapter VII, did not contain any explicit Article 39 determination. 27Even in the
case that the Security Council is using its Chapter VII powers it is not necessary for
the decision to be binding to explicitly root its authority to the Chapter VII. Though of
late, the Security Council has been clarifying on this point with an explicit reference
to its “acting under Chapter VII” in its resolutions or provisions.
We can see the Security Council’s quasi-legislative and quasi-judicial acts

28
very prominently through the adoptions of the 29resolutions 1373 and 1540 which talk
about the financing of terrorism and the spread of weapons of mass destruction
respectively. And then there is the 30resolution 1267 sanctions regime that basically
targets persons suspected of being involved in terrorism. 31 In the first two resolutions
the Security Council imposed, for an indefinite period, general obligations upon all
States whereas with the third resolution, the Security Council set up a sanctions
committee that has judicial powers to identify and freeze assets of individuals, groups
and corporations. 32Resolution 1373 requires states to take global action to counter
http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1242&context=ilr, last accessed on May

19, 2014.
24 Special Research Report No. 1: Security Council Action Under Chapter VII: Myths and Realities,
25 Bernd Martenczuk, The Security Council, The International Court and Judicial Review: What
Lessons from Lockerbie?
26
Bernd Martenczuk, The Security Council, The International Court and Judicial Review: What
Lessons from Lockerbie?
27 Special Research Report No. 1: Security Council Action Under Chapter VII: Myths and Realities,
28
Legislation and Adjudication in the Un Security Council: Bringing down the Deliberative Deficit,
Ian Johnstone, The American Journal of International Law, Vol. 102, No. 2 (Apr., 2008), pp. 275-308,
Published by: American Society of International Law, http://www.jstor.org/stable/30034539?seq=5,
last accessed on May 19, 2014.
29
Mark Angehr, The International Court of Justice’s Advisory Jurisdiction and The Review of Security
Council and General Assembly Resolutions,
http://www.law.northwestern.edu/lawreview/v103/n2/1007/LR103n2Angehr.pdf, last accessed on May
19, 2014.
30
http://www.un.org/sc/committees/1267/aq_sanctions_list.shtml, last accessed on May 19, 2014.
31 Mark Angehr, The International Court of Justice’s Advisory Jurisdiction and The Review of
Security Council and General Assembly Resolutions,
http://www.law.northwestern.edu/lawreview/v103/n2/1007/LR103n2Angehr.pdf, last accessed on May
19, 2014.
32 Legislation and Adjudication in the Un Security Council: Bringing down the Deliberative Deficit,
Sonali Sengupta
BA.LLB
20120296
terrorism and resolution 1540 is pressing for action so as to prevent the supply of
weapons of mass destruction to non state actors. Therefore where in the former it
behaved like a quasi-legislative body, in the latter it performed a quasi-judicial role by
setting up commissions. Critiques of this decision-making on the part of Security
Council are centered on the problem of the democratic deficit seen in these decisions.
33
Though there was increasing sympathy for collective counterterrorist measures post
9/11 attacks in the U.S.A, there was till a degree of skepticism which accompanied
these initiatives of the Security Council which only grew with the whole debacle
surrounding the war in Iraq. There were questions of whether an34 “imperial” Security
Council was now an instrument for the imposition of “hegemonic international law”.
The council remains serious on the fact that the regimes established under resolutions
1267, 1373 and 1540 are at a risk of collapsing.
35
The relationship between law and the Security Council is very complex
and multifaceted. The council’s actions have profound implications as by virtue of the
powers conferred upon it by the Charter, it can issue decisions that are legally binding
upon UN member states and it can mandate non-military as well as military actions so
as to maintain peace and security amongst nations. Though the Council is also a
political body working and issuing directions in a highly politically charged
atmosphere and therefore its quasi-legislative and executive actions are always being
questioned. The council sits at a crucial juncture between law and international
politics in international affairs. 36 The Security Councils ability to make laws that are
binding on practically all member states has led people to see the Security Council as
a quasi-legislative body and its activities as semi-legislatures. Although its law
making process is not as sophisticated as the legislative process of in many national
congressional and parliamentary proceedings of law making, but still 37its decisions
and the legal consequences of such decisions and resolutions have a quality akin to
35
Bruce Cronin, The UN Security Council and the Politics of International
Authority,http://books.google.co.in/books?id=N2yTAgAAQBAJ&lpg=PA99&ots=ju9Sgc11Ff&dq=se
curity%20council%20resolution%201540%20quasi%20legislative%20quasi%20judicial&pg=PA99#v
=onepage&q=security%20council%20resolution%201540%20quasi%20legislative%20quasi%20judici
al&f=false, last accessed on May 19, 2014.
36 Bruce Cronin, The UN Security Council and the Politics of International
Sonali Sengupta
BA.LLB
20120296
that of the legislations found in States. 38Upon occasion the Security Council has also
declared some activities to be illegal thus behaving in a quasi-judicial manner and
interpreting and applying international law just as seen in any court of law. For
example,39 the council law interpreting activities include rendering of the claims of
statehood by Southern Rhodesia as illegal, declaring boundary delimitations as in the
case of the border between Iraq and Kuwait. We can see the close relationship
between law and the Security Council even in its sanction practice where it dons both
quasi-legislative and quasi-judicial hats. The Security Council enters its quasi-judicial
mode whenever it applies its sanctions. A new web of legal obligations is created by
the setting up of the outlines of each sanctions regime through the mandatory
provisions of sanctions resolutions. This makes and constitutes legislation. The
Security Council also enters into its quasi-judicial mode when dealing with sanctions
regimes. Before it established its very first sanctions regime,40 the Security Council
declared the white minority regime in Southern Rhodesia to be illegal and described
its claims of independence as having no legal basis or validity. Some of the other
quasi-judicial proclamations that have been made by the Council which are in
connection to its sanctions regime are the ones against Iraq and Haiti. 41The Security
Council, in 1990, declared Iraq’s attempted occupation and annexation of Kuwait as
having no “legal validity” and went further to state that infact Iraq was liable for “any
loss, damage or injury arising in regard to Kuwait and third States as a result of its
invasion and illegal occupation of Kuwait.” 42Soon thereafter, in 1994, the Security
Council declared the de facto government, which had assumed control of Haiti
following the removal of President Jean-Bertrand Aristide’s democratically, elected
38 Jeremy Matam Farrall, United Nations Sanctions and the Rule of law, Cambridge Studies in
International and Comparitive Law, Cambridge University Press, 2009,
http://books.google.co.in/books?id=4vCVDYufeMsC&lpg=PA17&ots=rKflb8qk-
E&dq=security%20council%20resolution%201540%20quasi%20legislative%20quasi%20judicial&pg
=PA17#v=onepage&q=security%20council%20resolution%201540%20quasi%20legislative%20quasi
%20judicial&f=false, last accessed on May 19, 2014.
39
Jeremy Matam Farrall, United Nations Sanctions and the Rule of law, Cambridge Studies in
Sonali Sengupta
BA.LLB
20120296
government as “illegal”. For its sanctions to be effective, the Security Council relies
upon the good faith and the goodwill of its member states. It falls upon the member
states to take the required steps so as to bring the sanctions into effect as the UN
sanctions are not self-implementing in nature. 43Though the Article 25 of the UN
Charter binds the states legally and places upon them the obligation to comply with
the Council’s decisions but if they still choose to not do so then these sanctions will
prove to be ineffective. 44The Security Council is therefore, dependent on the
commitment of the member states to comply with the rules and sanctions placed upon
them by the Council and to respect and act in conformity with the rule of law. States
are more likely to implement the said sanctions, thereby acting in accordance with the
rule of law, if they see the Council completing their responsibilities while acting in
accordance with the rule of law as well. Therefore the Council’s reliance upon this
rule of law somewhat affects its own rule of law performance.
For the legislative actions of the Security Council to be effective, there

has to be proactive cooperation of most of the governments as well as a wide range of
non-governmental actors. 45Though some critics of the Security Council resolution
1540 believe that the Council does not really legislate because all it did in the
resolution was provide parameters for legislation and not any specific legislation
itself, which might differ from state to state. All it did was to prescribe policy and it
left it up to the member states to make and adopt laws, which are consistent with that
policy.
46
Two important relationships (with other key UN bodies) are that with the wider
membership of UN and the Secretariat. The first is an important restrain on Council’s
activities, the Council may create mandates, but the fifth Committee of the General
Assembly allocates resources. Member states use influence where they can under this
method so this method becomes a balancing method. This leads to the impression that
foreign policies are being made in the treasury of certain member states.
46 Edwrad Grodin, Making the World Safe for Democracy: UN Security Council Resolution 1373, the
International Imposition of Counterterrorism Policies, and the Arenas of Power Model,
http://blogs.cornell.edu/policyreview/2012/03/15/making-the-world-safe-for-democracy-un-security-
council-resolution-1373-the-international-imposition-of-counterterrorism-policies-and-the-arenas-of-
power-model/, last accessed on May 19, 2014.
Sonali Sengupta
BA.LLB
20120296
The second relationship, that with the Secretariat, has the likelihood to serve as a rude
awakening for the Council — in any event making it harder for the Council to pass
incomprehensible orders — 47yet this needs a Secretariat that will tell the Council
what it needs as opposed to needs to listen, and a Secretariat that will precisely depict
what is obligatory to finish a Council mandate. At present, in any case, 48the
Secretariat fails to offer the ability to satisfy such a part, partially in light of the fact
that the more extensive membership has been unwilling to provide for it that limit,
encapsulated in the 49EISAS fiasco of 2000 in which deliberations to enhance
Secretariat's analytical scope were censured and quickly deserted.
The requirement for patience and self-control from the Council is especially vital as it
moves from reacting to particular emergencies to tending to bigger subjects. 50This
need is somewhat because of the risk that the Council will surpass its legal authority
in bearing essential obligations regarding worldwide peace and security, additionally
because of worries that poorly recognized Council resolutions will undermine its
power all the more unpretentiously, as Ambassador Ellen Løj contended
The Council's part as the executor and authority of rules that it regularly makes and
mediates is tricky, however it is not genuine to say that the Council freely
demonstrates as a lawmaker, judge, or killer. The Council's movements here may
combine powers one may comprehend to be authoritative, legal, and official, yet
division of such powers does not decipher specifically from the national to global
circle. More essential is the inquiry of accountability for how those different forces
are worked out, and the nature of decisions.
The Council works under the standard of law. 51Legally, this implies that the
Council's official powers are practiced subject to the Charter and standards of jus
cogens. All the more importantly, in any case, the Council's power determines from
the rule of law; the most paramount impediment on the Council's activity of executive
force is thus self-control. Without a constitutional court to sit in judgment of how that
control is worked out, responsibility, such as it is, has a tendency to be practiced only
through the likelihood of extreme and compelling responses: cancelling the funding or
neglecting Council resolutions.

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Sonali Sengupta

Interpreting the Security Council resolutions is a complex art. The

We can see the Security Council’s quasi-legislative and quasi-judicial acts

http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1242&context=ilr, last accessed on May

For the legislative actions of the Security Council to be effective, there

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