Happold: Reviewing the Security Council: The Role of Other International Organisations

Matthew Happold (Université du Luxembourg - Law) has posted Reviewing the Security Council: The Role of Other International Organisations. Here's the abstract:

The recent activities of the Security Council of the United Nations with regards to Libya have highlighted once again how extensive its powers are. Acting under Chapter VII of the Charter of the United Nations, the Council has imposed an arms embargo, frozen Libyan assets, referred the situation to the International Criminal Court, ordered a ‘no-fly zone’ and authorized the use of force short of occupying the territory to enforce it and to protect the civilian population. But, of course, ‘For unto whomsoever much is given, of him shall be much required’ or, to put it in contemporary idiom, ‘With great power comes great responsibility.’ Although we might agree that the Security Council is justified in acting to prevent a humanitarian catastrophe, the powers it disposes can be used for both good and ill.

So what happens if and when the Council’s great powers are exercised irresponsibly? This paper examines two issues. The first is whether the Security Council is legibus solutus: that is, unbound by law. This examination, however, is only be preliminary to the second inquiry, which will consider which bodies are entitled to review the Security Council’s decisions to determine their vires and what, if they conclude that the Council has exceed its powers, they can do about it.

Given that today all but one or two provocateurs consider that the Council is not legally unbound, one might consider that absent some body external to the Security Council willing and able to act to scrutinize its actions to review their conformity with the Council’s legal powers, whether the Council will step outside of the limits of legality depends solely on the Council itself; a situation would render any legal limits to its powers illusory.

Debate, in this context, has tended to focus on judicial review; on whether the Council’s actions can be reviewed by some court or tribunal. At first, it was the role of the International Court of Justice that was scrutinised. More recently attention has shifted to look at other courts and tribunals, both national and international. However, as will be shown, judicial review of the Security Council’s actions cannot serve as a means to control the Council. The International Court of Justice will not, and other courts and tribunals cannot, effectively undertake such a task.

However, another option does exist: review by the United Nations member States themselves. It will be argued that the practice of States shows that there are limits to the power of the Security Council, and that States frame those limits in legal terms. States have asserted a ‘right of last resort’ to review the legality of Council decisions and to act accordingly. In particular, they have done so acting collectively through the political organs of international organisations.