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

1. Exceptionality of UN
Security Council mandate
and ultra vires activities

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. 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. 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. 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. Is UN Security Council the only
organ for maintaining peace?
GA
Secretary-General
ICJ

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. 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. 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. 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. 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. 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. 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