Exceptionality of UN
Security Council mandate
and ultra vires activities
Outline
1.
2.
3.
4.
5.
6.

UN Security Council Structure
Legal Framework of UN Security Council
Exceptionality of UN Secur...
UN Security Council Structure
 One of the six principal organs of the United Nations
2-year terms
no immediate
reelection...
UN Security Council
Legal Framework
 UN Charter, Art 24 (1)
 In order to ensure prompt and effective action by
the Unite...
UN Security Council
Legal Framework
 UN Charter, Art 25
 The Members of the United Nations agree to accept and
carry out...
Is UN Security Council the only
organ for maintaining peace?
GA

Secretary-General

ICJ
UN Security Council’s
Cycle of actions
 To make a determination of “the existence of any threat to
the peace, breach of t...
UN Security Council
Policy Critique
 Political selectivity (Iraq, Syria)
 Unequal composition
 Legitimacy of actions
 ...
UN Security Council & Rule of Law
 Norms of objective international law
 can be set aside if otherwise serious dangers a...
Different Views on
UN Security Council
 UN shall be a party to a court, say ICJ
  Right contra legem

 UN Charter shal...
Valuable functions of
UN Security Council
 Looking at disputes brought by UN Member States (UN
Charter, Art 35) on non-me...
Sources
 Commentary to the UN Charter – pp. 442-463, 701-748
 Doehring, Karl. Unlawful Resolutions of the Security
Counc...
Kostiantyn Iakovliev (Ukraine)
MA in Human Rights and
Democratization,
Yerevan State University –
Belarusian State
Univers...
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Exceptionality of UN Security Council Mandate

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Different views on exceptionality of UN Security Council mandate under UN Charter and its activities ultra vires for a class on Targeted sanctions of International Organizations at Belarusian State University within MA in Human Rights and Democratization for Eastern Partnership countries academic mobility semester

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Exceptionality of UN Security Council Mandate

  1. 1. Exceptionality of UN Security Council mandate and ultra vires activities
  2. 2. Outline 1. 2. 3. 4. 5. 6. UN Security Council Structure Legal Framework of UN Security Council Exceptionality of UN Security Council UN Security Council & Rule of Law Conclusions List of Sources
  3. 3. UN Security Council Structure  One of the six principal organs of the United Nations 2-year terms no immediate reelection “…due regard being specially paid, in the first instance to the contribution of Members of the United Nations to the maintenance of international peace and security and to the other purposes of the Organisation, and also to equitable geographical distribution“ (UN Charter Art 23 (1)
  4. 4. UN Security Council Legal Framework  UN Charter, Art 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,  … in carrying out its duties under this responsibility the Security Council acts on their behalf.  UN Charter, Art 24 (2)  In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations
  5. 5. UN Security Council Legal Framework  UN Charter, Art 25  The Members of the United Nations agree to accept and carry out the decisions of the Security Council…  UN Charter, Art 48 (1)  The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine.  UN Charter, Art 103  In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.
  6. 6. Is UN Security Council the only organ for maintaining peace? GA Secretary-General ICJ
  7. 7. UN Security Council’s Cycle of actions  To make a determination of “the existence of any threat to the peace, breach of the peace, or act of aggression (UN Charter, Art 39)  The notion expanded to include “internal conflicts, widespread deprivations of human rights, humanitarian disasters, and serious threats to democratic government” (Matheson)  It was used in even broader sense to also mean “such internal crises where there was a plausible concern that their continuation might lead to regional and international escalation”  Decide on measures not involving the use of force (UN Charter, Art 41) – sanctions  Or use force if it considers such measures “would be inadequate or have proved to be inadequate” (UN Charter, Art 42) – other possibility is settlement on peacekeapers
  8. 8. UN Security Council Policy Critique  Political selectivity (Iraq, Syria)  Unequal composition  Legitimacy of actions  Violation of UN Charter itself when blaming people for actions of governments as among its Purposes of the United Nations are to maintain international peace and security (Art 1) and promote “higher standards of living, full employment, and conditions of economic and social progress and development; solutions of international economic, social, health, and related problems; and international cultural and educational co-operation; and universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion” (Art 55)
  9. 9. UN Security Council & Rule of Law  Norms of objective international law  can be set aside if otherwise serious dangers and sufferings must be expected, or even the existence of community as such could not be protected – Straatraison  ILC’s Draft on the responsibility of states  Friendly Relations Declaration  German Federal Constitutional Court on compensation to aliens for illegal expropriation to prevent insolvency  Jus cogens – peremptory norms of law  cannot be set aside (e. g., right to self-defense)  Vienna Convention on the Law of Treaties  Treaties may supersede customary law and create it or overrule it as long as not set aside by consent of the partners as long as they do not have a character of jus cogens (e. g., environmental destruction when a certain degree is reached)
  10. 10. Different Views on UN Security Council  UN shall be a party to a court, say ICJ   Right contra legem  UN Charter shall be treated as World Constitution with UN Security Council as World Government   resolutions do not create law, they apply it   may violate dispositive law with general consent as per accepting UN Charter as a legal system   sanctions may exempt humanitarian goods  Every state shall choose to judge legality of resolutions and deny their binding effect due to an autonomous judgment   UN Collapses  States should inform UN Security Council about their reservations of it invoking jus cogens only acting against the order of a resolution
  11. 11. Valuable functions of UN Security Council  Looking at disputes brought by UN Member States (UN Charter, Art 35) on non-members (UN Charter, Art 37)  Carrying out investigations (UN Charter, Art 34)  Making recommendation for peaceful settlement of those “the continuance of which is likely to endanger the maintenance of international peace and security“ (UN Charter, Art 33)   legal disputes to be settled by ICJ (UN Charter, Art 36)  And other terms of settlement (UN Charter, Art 37)  Serving as the only international body that can impose legal obligations on all UN member states
  12. 12. Sources  Commentary to the UN Charter – pp. 442-463, 701-748  Doehring, Karl. Unlawful Resolutions of the Security Council and their Legal Consequences  Ewans. International Law – pp. 1206-1210, 1236-1273  Scharf, Michael P. The Law of International Organizations: Problems and Materials – 2nd edition, 2007, pp. 445-483  United Nations Charter  Wood, Michael. United Nations, Security Council - Max Planck Encyclopedia of Public International Law www.mpepil.com
  13. 13. Kostiantyn Iakovliev (Ukraine) MA in Human Rights and Democratization, Yerevan State University – Belarusian State University, 2013 https://plus.google.com/u/0/+ KostiantynIakovliev/ https://www.linkedin.com/in/ia kovliev Photo taken at UN House Armenia during Model UN in Fall 2012

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