The Sword of Damocles: Revisiting the Question of Whether the United Nations Security Council Is Bound by International Law

By Gordon, Joy | Chicago Journal of International Law, Winter 2012 | Go to article overview

The Sword of Damocles: Revisiting the Question of Whether the United Nations Security Council Is Bound by International Law


Gordon, Joy, Chicago Journal of International Law


Abstract

This Article considers whether the United Nations Security Council is bound by international humanitarian law in the context of Chapter VII, which authorizes the Council to use force in response to aggression, threats to peace, and breaches of the peace. In the early 1990s, the Council took unprecedented measures that were seen by many as overreaching, raising the possibility that the leading institution of global governance might abuse its power. At the present moment, it seems that the matter is resolved politically and judicially. But it is not resolved constitutionally, and the abuse of power by the Security Council remains a possibility. If, in the future, a permanent member of the Council comes to hold considerable political and economic influence over the other permanent members, as was the case in the early 1990s, the possibility of an extraordinary abuse of power within the Security Council again becomes viable.

Table of Contents

I. Introduction................................... .......................................................................... 606

II. The History of the Question................................................................ ............... 608

III. The Issue of Chrerreaching......... .................................................................... ....616

A. Lockerbie, Iraq, and Bosnia ............................................................................ 616

1. The Lockerbie case. ......................................................................................616

2. The humanitarian impact of the Iraq sanctions. .................................. .....618

3. Bosnia. ............................................................................................................620

B. Other Concerns of Overreaching................................................................... 621

IV. Responses to the Council's Activism.. ............................................................ ..623

A. Judicial and Scholarly Responses.................................................................... 626

1. The 1990s: revisiting the question. .............................................................626

2. The late 1990s through the present........................ .................................... 632

B. The Question of Judicial Review.................................................................... 633

C. The Scholarly Literature: An Emerging Consensus... ............................. .....638

V. Conclusion.... ......................................................................................................... .642

I. INTRODUCTION

The early 1990s saw a dramatic increase in the activism of the United Nations Security Council. It was an extraordinary moment in the history of the Council, as the paralysis that had characterized it throughout the Cold War had ended. For the first time since its inception, it was possible for the Council to act assertively and consensually, particularly in the context of Chapter VII, which authorizes the Council to respond to aggression, breaches of the peace, and threats to the peace. With the dissolution of the Soviet Union and its replacement by Russia, there was no counterweight on the Council to the US and its allies. At the same time, a type of overreaching that had been anticipated at the formation of the United Nations, but had never before come close to actualization, became possible. Now, for the first time in human history, there was an institution of global governance that, in Chapter VII, had a mandate whose boundaries were uncertain, whose will would be implemented by virtually every nation on earth, and whose machinery could now be put in motion.

Starting in 1990, a number of the Council's activities raised serious questions about whether its acts exceeded the scope of its mandate: if the United Nations Charter gave the Council such extensive powers "in order to ensure prompt and effective action,"1 how do we make sense of the fact that this body invoked Chapter VII to create tribunals, which have continued for years after the crisis passed? …

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