The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (11 page)

Article 25 of the Charter obliges member states to ‘accept and carry out the decisions of the Security Council’. Article 103 of the Charter stipulates that:

The obvious conclusion is that Security Council resolutions can override international law; and they do. In the
Lockerbie
cases, for instance, the International Court of Justice considered, prima facie, that Security Council resolutions prevailed over the treaty obligations of the states parties to that dispute.
⁷³
The fact that its resolutions trump ordinary legal obligations gives the Council the power to create binding
obligations
to deal with specific matters; and in theory that power might be used by the Council to create new general
laws
, prevailing over existing laws. There is, however, no sign of the Council wishing to exercise its powers so as to revise existing international laws generally, rather than for the much narrower purpose of adopting specific measures addressed to specific threats to international peace and security. Even Security Council resolutions 1373 of 28 September 2001 and 1540 of 28 April 2004, with their extensive requirements on states to take action respectively against terrorist acts and the proliferation of weapons of mass destruction, have a specific focus.

There is a perennial debate as to whether international courts can review the lawfulness of the Council’s decisions.
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The status and powers of the ICJ in this regard are reviewed below; here it is useful to examine the practice of other courts and tribunals. For example, the Appeals Chamber (but not the Trial Chamber) of the International Criminal Tribunal for the Former Yugoslavia declared itself competent to review a Security Council decision for the specific purpose of deciding that the Tribunal had been validly established.
⁷⁵
The Court of First Instance of the European Communities (CFI) has been faced with challenges to the EU measures implementing the asset freeze on Taliban funds that was imposed by Security Council Resolution 1267.
⁷⁶
While upholding the laws and the general primacy of resolutions under Article 103 of the UN Charter the CFI also held that it had the right

The European Court of Human Rights indicated strong reluctance to involve itself in areas within the Security Council’s sphere of action when it decided to strike out applications against certain NATO governments made by three Kosovar Albanians who had claims concerning certain alleged KFOR and UNMIK acts of omission and commission in Kosovo.
⁷⁸

One widely held view is that Security Council resolutions might be challenged and set aside if they violate rules of
jus cogens
, but not if they are inconsistent with other rules of international law. Were the matter to come before the ICJ, it could well take that view. However, there are potential problems in such reviewability of Council decisions, as the following exploration of accountability indicates.

The power of the Security Council gives rise to the question of its accountability. Accountability is an elusive concept, especially when applied to international organizations, where it has no generally recognized meaning, content, or consequences.
⁷⁹
In practice, as discussed at the end of this section, accountability often boils down to the fact that governments and indeed people keep an eye on the UN generally and the Council in particular, and will clip the UN’s wings in one way or another if they do not agree with its policies.

More formal conceptions of ‘accountability’ comprehend two notions: the duty to give an account (
of
one’s conduct), and the liability to be held to account (
for
one’s conduct). The particular difficulties inherent in applying these notions to international organizations derive largely from the difficulty of separating out (except at an abstract legal level) the organization itself from the states that compose it, and are compounded when the concept is applied not to the international organization as such but to an
organ
of the organization.

The first notion (the duty to give an account of oneself) attaches relatively easily to a ‘subordinate’ organ, but this is not so for a ‘primary’ (or in Charter terms ‘principal’) organ: a subordinate organ reports up to its parent organ, but to whom does a primary organ naturally report? The Charter requirement for the Security Council to submit an annual report to the General Assembly looks, on examination, to have more to it of gesture than of substance, as there is nothing in practice that the plenary organ can do with the report once received except debate it.
⁸⁰
The greater value in the reporting requirement might therefore be its secondary effect, in requiring that the Council at regular intervals draw up an account of what it has
been doing. But even that effect is diminished if the Assembly has no power to lay down what the report has to cover.

As to the second notion (the liability to be held to account), one might make some practical sense of it in the case, say, of a body composed of individuals or of experts; but even in the case of a subordinate organ, what sense can one make of it when the organ is composed of states? The question is especially pertinent in view of the fact that the Security Council is a primary organ; and given the nature of the powers conferred on it by the UN Charter.

The question is better approached by analysing the institutional relationships expressed or implied in the structure and terms of the Charter, in the light of the two basic notions referred to above. The Charter’s drafting history suggests strongly that, even while the composition of the Council and its voting rules were being focused upon, no conscious attention was devoted to ‘accountability’ in any of the senses here discussed. The concept of the ‘Four Policemen’ that dominated US/UK and Soviet thinking was inimical to accountability, based as it was on a wholly different axiom: that the victorious Great Powers carried with them an inherent endowment of authority for the maintenance of the peace, which they were graciously disposed to exercise thenceforth through the mechanisms of the new world organization.

Paragraphs 2 and 3 of Article 24 of the Charter state:

There is thus an inner tension between, on the one hand, conferment of (or recognition of) ‘sovereign’ prerogatives in the Council under the relevant Chapters, and on the other hand the bow in the direction of the Purposes and Principles of the Charter and the reporting requirement to the General Assembly. This is a tension which the Charter itself does nothing to resolve. Article 24 does however at least identify the two directions in which ‘accountability’ might be made manifest: internally towards the General Assembly as the plenary organ of the organization, and/or externally towards the member states, viewed as the parties to the Charter, which is a binding treaty.

Another form of ‘liability to be held to account’ might be thought to lie, literally, in accounting – in the General Assembly’s power, under Charter Article 17, to ‘consider and approve the budget of the Organization’. However, when the Security Council embarks on a costly new initiative such as setting up a peacekeeping operation, the costs are borne through special budgets over which the General Assembly has much less control than it has over the regular budget. In respect of both the regular and special budgets, member states are obliged under the Charter to pay compulsory assessed contributions on percentage scales agreed by the General Assembly. None of this adds up to a direct system of Security Council accountability at the hands of the General Assembly as a whole. Indeed, the General
Assembly has much less direct financial control over the Security Council than it does over the International Court of Justice. However, when certain states withhold parts of their dues, as has happened frequently in UN history, they may be seeking to exercise pressure either against the General Assembly (e.g. for its particular apportionment of dues) or against the Security Council (e.g. for involving the UN in a peacekeeping operation with which the withholding state disagrees). Such withholding of dues is a violation of Articles 17 and 19 of the Charter.
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The third possibility, hinted at above, is review before the International Court of Justice. However, this is separate only in form: in substance it could arise only as either a request for an Advisory Opinion at the instance of the General Assembly (a form of internal accountability towards the plenary organ), or in a contentious case (an attenuated form of external accountability towards a member state as treaty party). The reviewability of Security Council decisions before the International Court of Justice has dazzled many jurists, drawing largely on analogies from domestic constitutions. While judicial review of the Council was plainly not part of the founders’ original intention, that may not be the end of the matter. More important than the abstract question of whether the ICJ might, in a suitable set of circumstances, pronounce itself competent to enquire into the ‘legality’ of a Council decision, is whether the means would be available to make it a practical reality. As to that, the practitioner’s view would be heavily preoccupied with questions such as: Who would be entitled to bring review proceedings, and against whom would they be directed (given that the Council as such, like the UN organization as a whole, is not capable of being party to a case before the Court)? Who would defend the proceedings, and on what authority? What remedies could the ICJ be asked to give, and against whom? And above all – given the Charter mandate for the Council to be able to act at any time as a matter of urgency – could the procedures of the Court itself manage the speed of response that would be needed? All that, taken together, suggests that the domestic constitutional analogy has little validity: the normal domestic model is in reality
ex post facto
review leading potentially to the invalidation of governmental decisions after the event: the implications of that for Security Council decisions that had already taken effect under
Chapter VII
might be little short of revolutionary.

In the absence of any clear Charter base for ‘accountability’ as such, the materials are sparse and disparate. ‘Review’ by the ICJ is a wholly hypothetical idea, devoid of political reality or any workable legal framework. Conversely, external responsibilities towards the member states might occasionally generate a specific liability of the UN organization as a whole towards an individual state, but hardly in such a way (and let alone with such a frequency) as to form a nucleus for a system of
regular accountability. The accountability of the Security Council becomes therefore largely if not exclusively an internal matter, one about the relationships between the separate principal organs of the organization, in which these relationships merge with their relationships to the member states singly or collectively. If these relationships are not wholly about politics and power, such legal elements as are present are nevertheless subject to politics and power for their effect.

The idea of Security Council accountability faces two additional difficulties, both of which can be serious within states and are even more problematic when an international body is involved. First, in light of the very extensive powers granted to the Council to take action necessary for the maintenance of international peace and security, accountability is particularly hard to pin down. Experience from domestic legal systems suggests that these are precisely the sort of areas where the Courts defer to the Executive, and decline to substitute their assessment of a situation, or what the situation demands, for those of the constitutional branch charged with those responsibilities. A second problem, suggested earlier in our discussion of ‘proper authority’, is that complaints about the Security Council are as likely to be about omissions as about actions (i.e. failure to act at all; or failure to act in this situation by contrast with others). Long practical experience within states, and some international experience, suggests how difficult it is for a judicial process to cope with omissions, and to construct a workable mandamus remedy against public authorities.

This negative assessment of certain formal ideas of accountability should not imply any dismissal in principle of the core notion that an organ such as the Security Council is accountable for its omissions as well as its actions, or that this accountability expresses itself in various observable ways. It serves only to point to the conclusion that in this case accountability is essentially political, and therefore unpredictable. Moreover, such accountability becomes in practice hard to separate from the numerous constraints that operate on the Council. While the various elements of such accountability and constraint are hard to systematize, they can include the following: