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Security Council Legislation, Article 2(7) of the UN Charter, and the Principle of Subsidiarity

Published online by Cambridge University Press:  05 August 2011

NICHOLAS TSAGOURIAS
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Abstract

This article considers the relationship between the United Nations and its member states in view of the Security Council's assertion of legislative powers. It claims that the exponential growth in UN powers at the expense of the powers of its member states cannot be arrested by legal means, because of the nature of the UN system and the absence of legally enforceable criteria and compulsory dispute-settlement mechanisms. For this reason, it proposes a different approach to law-making in the area of international peace and security – one that is built around the principle of subsidiarity, as reflected in Article 2(7) of the UN Charter. The role of the principle of subsidiarity in this respect is to determine which authority is best suited to exercise legislative power and how such power should be exercised in order to attain the objective of peace and security more efficiently. It is thus contended that the principle of subsidiarity promotes co-operative relations between the United Nations and its member states by protecting the latters' jurisdictional authority from unnecessary interference.

Keywords

Article 2(7) UN Chartermember statespowersproportionalitySecurity Council legislationsubsidiarityUnited Nations
Type
ARTICLES
Information
Leiden Journal of International Law , Volume 24 , Issue 3 , September 2011 , pp. 539 - 559
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2011

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References

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3 See, in general, A. Boyle and C. Chinkin, The Making of International Law (2007).

4 E.g., S/PRST/2002/6 (15 March 2002) and SC Res. 1265 (1999) on protection of civilians in armed conflict; S/PRST/1998/18 (19 June 1998), S/PRST/1999/21 (8 July 1999), S/PRST/2001/31 (31 October 2001), SC Res. 1261 (1999), SC Res. 1379 (2001), SC Res. 1325 (2000), and SC Res. 1327 (2000) on women and children affected by armed conflict; S/PRST/2001/16 (28 June 2001) and SC Res. 1308 (2000) on the threat posed by the AIDS pandemic to security and stability.

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6 As Jose Alvarez put it, SC legislation ‘circumvents the vehicle par excellence of community interest’, namely the multilateral treaty. Alvarez, J., ‘Hegemonic International Law Revisited’, (2003) 97 AJIL 873CrossRefGoogle Scholar, at 874–5. Representative of Nepal S/PV.4950 (Resumption 1), at 14.

7 According to India's Representative to the SC, ‘India cannot accept any obligations arising from treaties that India has not signed or ratified’; see Letter Dated 27 April 2005 from the Permanent Representative of India to the United Nations addressed to the President of the Security Council, S/2004/329. Also see Representative of Philippines UN Doc. S/PV.4950, at 3; Representative of Switzerland UN Doc. S/PV.4950, at 28.

8 Representative of Algeria and Iran UN Doc. S/PV. 4950, at 5 and 32, respectively; Egypt UN Doc. S/PV. 4950 (Resumption 1), at 3; Pakistan UN Doc. S/PV.4956, at 3.

9 H. G. Schermers and N. M. Blokker, International Institutional Law: Unity within Diversity (2003), paras. 209–210.

10 P. H. F. Bekker, The Legal Position of Intergovernmental Organizations: A Functional Necessity: Analysis of Their Legal Status and Immunities (1994), 75–8; M. Virally, ‘La notion de function dans la théorie de l'organisation internationale’, in Mélanges offerts à Charles Rousseau (1974), 277, at 294.

11 K. Skubiszewski, ‘Implied Powers of International Organisations’, in Y. Dinstein and M. Tabory (eds.), International Law at a Time of Perplexity (1989), 855, at 858.

12 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, [1949] ICJ Rep. 179 (hereafter, ‘Reparation for Injuries’).

13 Art. 24 and Chapters VI, VII, VIII of the UN Charter.

14 Reparation for Injuries, supra note 12, at 179; J. Klabbers, An Introduction to International Institutional Law (2009), 12.

15 Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), Advisory Opinion, [1962] ICJ Rep. 151, at 168 (hereafter, ‘Certain Expenses’).

16 Jurisdiction of the European Commission of the Danube, Advisory Opinion of 8 December 1927, PCIJ Publications (1927) Series B No. 14, at 64; Reparation for Injuries, supra note 12, at 179; B. Simma (ed.), The Charter of the United Nations: A Commentary (2002), 15.

17 C. De Visscher, Theories and Realities in International Law (1968), 260–1.

18 Interpretation of Greco-Turkish Agreement of December 1st, 1926 (Final Protocol, Article IV), Advisory Opinion, 28 August 1928, PCIJ Publications (1928) Series B No. 16, at 20; Certain Expenses, supra note 15, at 168. Also see Doc. 887 IV/2/39 UNCIO Vol. 13 (1945), at 668–9; and Doc. 664 IV/2/33, UNICIO Vol. 13 (1945), at 633–4.

19 E. Lauterpacht, ‘The Development of the Law of International Organizations by Decisions of International Tribunals’, (1976/IV) 152 RCADI 377, at 420–66; M. Hexner, ‘Teleological Interpretation of Basic Instruments of Public International Organizations’, in S. Engel (ed.), Law, State and International Legal Order: Essays in Honour of Hans Kelsen (1964), 119; J. Klabbers, An Introduction to International Institutional Law (2009), 53–73.

20 Competence of the General Assembly for the Admission of a State to the United Nations Advisory Opinion, [1950] ICJ Rep. 23–4 (Judge Azevedo, Dissenting Opinion).

21 Ibid., at 17–18.

22 D. Hammarskjöld, ‘Two Differing Concepts of United Nations Assayed: Introduction to the Annual Report of the Secretary-General on the Work of the Organization, 16 June 1960–15 June 1961’, (1961) 15 Int. Org. 549.

23 Reparation for Injuries, supra note 12, at 180.

24 Reparation for Injuries, supra note 12, at 182 (emphasis added); Certain Expenses, supra note 15, at 167–8, 170, 179; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [1971] ICJ Rep. 2, para. 110; Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion of 8 July 1996, [1996] ICJ Rep. 225, para. 25 (hereafter, ‘Nuclear Weapons’); see also Chief Justice Marshall's opinion in McCulloch v. Maryland, 17 US 316 (1819), regarding the scope of federal powers: ‘[l]et the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.’

25 Lauterpacht, supra note 19, at 430–2.

26 Nuclear Weapons, supra note 24, para. 25.

27 Reparation for Injuries, supra note 12, at 198 (Judge Hackworth, Dissenting Opinion); and Certain Expenses, supra note 15, at 268 (Judge Koretsky, Dissenting Opinion).

28 Certain Expenses, supra note 15, at 168.

29 Nuclear Weapons, supra note 24, para. 25.

30 Ibid., para. 26.

31 Ibid., para. 25.

32 F. Seyersted, The Common Law of International Organisations (2008), 29–33, 65–70; N. White, International Organisations (2005) 88, at 132–3.

33 Lettre du Gouvernement de la République française au Greffier, Certain Expenses, supra note 15, at 133.

34 This approach was castigated by Judge Spender, who said that ‘[w]hen, however, the Court is called upon to pronounce upon a question whether certain authority exercised by an organ of the Organization is within the power of that organ, only legal considerations may be invoked and de facto extension of the Charter must be disregarded’, ibid., at 197 (Judge Spender, Separate Opinion).

35 Ibid., at 200 (Judge Fitzmaurice, Separate Opinion).

36 Lettre du Gouvernement de la République française au Greffier, ibid., at 133. See also Professor Tunkin's oral argument before the ICJ in Certain Expenses, Pleadings, Oral Arguments, Documents, at 397, and ‘Memorandum of the USSR Government Concerning United Nations Operations for the Maintenance of Peace and Security’, UN Doc. S/7841 (1967).

37 Lettre du Gouvernement de la République française au Greffier, Certain Expenses, supra note 15, at 134.

38 L. Gross, ‘Expenses of the United Nations for Peace-Keeping Operations: The Advisory Opinion of the International Court of Justice’, (1963) 17 Int. Org. 1, at 5: ‘What is material is that in the Court's view the “freedom of action” of the Members is limited not by explicit provisions of the Charter but by the comprehensive ends to the attainment of which the Organization is dedicated. The Court here seems to discard the dictum of its predecessor in the Lotus case that “the rules of law binding upon States . . . emanate from their own free will” and that restrictions upon the independence of States cannot therefore be presumed.’

39 See UNYB (1962), at 541 ff.; Res. 1/9/65 GAOR.

40 See Art. 5 CTEU and Arts. 3, 4, 6 of CTFEU. Brünner v. European Union Treaty (German Constitutional Court), [1994] 1 CMLR 57; Polish Membership of the European Union (Accession Treaty) (Polish Constitutional Court), Judgment J18/04 of 11 May 2005. J. Weiler, The Constitution of Europe (1999), 39–56; Klabbers, supra note 19, at 31–7.

41 See, e.g., ‘Quadragesimo Anno: Encyclical of the Pope Pius XI on Reconstruction of the Social Order’ (1931), paras. 79–80, in D. J. O'Brien and T. A. Shannon (eds.), Catholic Social Thought: The Documentary Heritage (1992), 42, at 60; Komonchak, J., ‘Subsidiarity in the Church: The State of the Question’, (1988) 48 The Jurist 298Google Scholar. Benedict XVI, Pursuing the Common Good: How Solidarity and Subsidiarity Can Work Together, Allocution to the Participants of the Plenary Assembly of Pontifical Academy of Social Sciences, L'Osservatore Romano, 4 May 2008, at 1.

42 I. Feichtner, ‘Subsidiarity’, in Max Planck Encyclopedia of Public International Law, available online at www.mpepil.com. Bermann, G. A., ‘Taking Subsidiarity Seriously: Federalism in the European Community and the United States’, (1994) 94 Columbia Law Review 331, at 382CrossRefGoogle Scholar; Carozza, P. G., ‘Subsidiarity as a Structural Principle of International Human Rights Law’, (2003) 97 AJIL 38CrossRefGoogle Scholar, at 42–6; Komonchak, ibid., at 301–2.

43 ‘Pacem in terris, Encyclical of Pope John XXIII on Establishing Universal Peace in Truth, Justice, Charity, and Liberty, April 11, 1963’, in O'Brien, supra note 41, at 153–4, paras. 140–141: ‘The same principle of subsidiarity which governs the relations between public authorities and individuals, families and intermediate societies in a single State, must also apply to the relations between the public authority of the world community and the public authorities of each political community.’

44 For a critique of the presumption that there is agreement on the objectives, see G. Davies, ‘Subsidiarity as a Method of Policy Centralisation’, in T. Brouder and Y. Shany (eds.), The Shifting Allocation of Authority in International Law (2008), 79.

45 Schilling, T., ‘A New Dimension of Subsidiarity: Subsidiarity as a Rule and a Principle’, (1994) 14 Yearbook of European Law 202, at 206CrossRefGoogle Scholar.

46 See Art. 5 CTEU and Protocol (No. 2) On the Application of the Principles of Subsidiarity and Proportionality annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union.

47 Chapter VIII of the UN Charter.

48 Arts. 10–14 UN Charter; GA Res. 377 (Uniting for Peace); Certain Expenses, supra note 15, at 162–3.

49 L. Preuss, ‘Article 2, Paragraph 7’, (1949/I) 74 RCADI 547; C. Rousseau, ‘La détermination des affaires qui relève essentiellement de la compétence nationale des Etats’, (1952/I) AIDI 137, at 157; Cançado Trindade, A. A., ‘The Domestic Jurisdiction of States in the Practice of the United Nations and Regional Organizations’, (1976) 25 ICLQ 715CrossRefGoogle Scholar; A. D'Amato, ‘Domestic Jurisdiction’, in Encyclopaedia of Public International Law, at 3090; Simma, supra note 16, at 148–71; J.-P. Cot and A. Pellet, La Charte des Nations Unies: Commentaire article par article (2005), 485–507; B. Conforti and C. Focarelli, The Law and Practice of the United Nations (2010) 155–75.

50 Rousseau, supra note 49, at 157.

51 Nationality Decrees Issued in Tunis and Morocco Case, Advisory Opinion of 7 February 1923, PCIJ Publications (1923) Series B No. 4, at 24.

52 Ibid.

53 According to Preuss, ‘Far from representing a definite concept which would be a clear guide for future action and which would resolve conflicts in this very delicate field of international action, the adoption of Article 2(7) merely postponed the division of opinion which would be certain to arise in the future’, cited in I. S. Claude, Jr, Swords into Plowshares (1971), 183.

54 Case of Certain Norwegian Loans, [1957] ICJ Rep. 9, at 52 (Judge Lauterpacht, Separate Opinion).

55 Cançado Trindade, supra note 49, at 765. Simma, supra note 16, at 149: ‘It has not . . . proved to be an effective tool for denying the United Nations the power to act.’ Schermers and Blokker, supra note 9, para. 212.

56 D'Amato, supra note 49, at 3095: ‘Like the claim of self-determination, it is hard to understand what “domestic jurisdiction” means exactly, but easy to appreciate the spirit in which it is invoked and the meaning that its proponents would ascribe to it in any given context.’

57 UNCIO VI, at 508.

58 Nationality Decrees Issued in Tunis and Morocco Case, supra note 51, at 24.

59 UN Doc. 1019_I/1/42 (1945), UNCIO, Vol. 6, at 509–10.

60 R. B. Russell, A History of the United Nations Charter (1958), 907.

61 Ibid., at 900.

62 Watson, J. S., ‘Autointerpretation, Competence, and the Continuing Validity of Article 2(7) of the UN Charter’, (1977) 73 AJIL 60CrossRefGoogle Scholar, at 60.

63 Rousseau, supra note 49, at 142; Schermers and Blokker, supra note 9, para. 215; G. Ulfstein, ‘Institutions and Competences’, in J. Klabbers, A. Peters, and G. Ulfstein, The Constitutionalization of International Law (2009), 74–6. For other interpretations of this Article that resemble the principle of subsidiarity, see Arangio-Ruiz, G., ‘Le domaine réservé: L'internationale et le rapport entre droit international et droit interne: Cours général de droit international public’, (1990) 225 RCADI 391Google Scholar. According to him, this article protects states against the direct affects of UN decisions. According to another construction of this article, it represents the principle of proportionality. Simma, supra note 16, at 171.

64 Art. 39 UN Charter.

65 Tadić, supra note 2, paras. 33–40; Certain Expenses, supra note 15, at 163–5, 177. H. Kelsen, The Law of the United Nations (1950), at 732–7; Simma, supra note 16, at 632, 705, 739.

66 Arts. 11, 12, 14 UN Charter.

67 GA Res. 377 (V).

68 Russell, supra note 60, at 646, 750–4; Simma, supra note 16, at 443–5.

69 Certain Expenses, supra note 15, at 163.

70 Arts. 11(2), 12(1), 14 UN Charter.

71 Certain Expenses, supra note 15, at 163; Case Concerning Military and Paramilitary Activities in and against Nicaragua, Jurisdiction of the Court and Admissibility of the Application, [1984] ICJ Rep. 381, para. 95; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, [2004] ICJ Rep. 200, paras. 26–27; Tadić, supra note 2, paras. 22–25. For a similar approach to exclusive powers, see Art. 2(1) CTFEU.

72 Art. 53 UN Charter.

73 Certain Expenses, supra note 15, at 164; Tsagourias, N., ‘Consent, Neutrality/Impartiality and the Use of Force in Peacekeeping: Their Constitutional Dimension’, (2006) 11 JCSL 465Google Scholar.

74 As was said above, the SC shares powers in peace and security with the GA, but the latter does not have legislative powers in the meaning used here. The SC also shares powers in peace and security with the ICJ, but the latter exercises judicial and not legislative powers. For example, in the Nicaragua case, the Court held that no restriction has been placed as to when to exercise its functions and that both the SC and the ICJ ‘can therefore perform their separate but complementary functions with respect to the same events’, Case Concerning Military and Paramilitary Activities in and against Nicaragua, Jurisdiction of the Court and Admissibility of the Application, [1984] ICJ. Rep. 14, para. 95.

75 Art. 5(3), CTEU; Protocol (No. 2) On the Application of the Principles of Subsidiarity and Proportionality, supra note 46, Art. 5.

76 See, e.g., statement by Representative of Republic of Korea S/PV.4950 (Resumption 1), at 8; ‘given the urgency of this dire challenge and the amount of time for a negotiating process involving all Member States, it is fitting and timely for the Security Council to address important loopholes in the existing proliferation regimes.’ Also Representative of United States of America, S/PV.4956, at 5; Representative of Chile, ibid., at 6; Representative of Romania, ibid., at 9.

77 E.g., there are 13 International Conventions or protocols addressing terrorism (www.un.org/terrorism/index.shtml).

78 GA Res. A/52/653 (1997).

79 GA Res. 54/109 (1999).

80 Asada, M., ‘Security Council Resolution 1540 to Combat WMD Terrorism: Effectiveness and Legitimacy in International Legislation’, (2009) 13 JCSL 303Google Scholar.

81 SC Res. 1540 (Preamble).

82 SC Res. 1918 (2010) (Preamble).

83 SC Res. 827 (1993); SC Res. 955 (1994).

84 Some of the provisions included in their respective statutes, such as those on individual criminal responsibility arising out of Common Art. 3 (Art. 3 Common to the Four Geneva Conventions of 1949) (Arts. 2, 3, 5 ICTY Statute and Art. 4 ICTR Statute) may not have represented at the time of their adoption customary law. Tadić, supra note 2, paras. 71–137; Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, 1998, paras. 604–606.

85 SC Res. 1373, para. 3(f) and SC Res. 1540, paras. 3 and 10.

86 S/PV.4956 (2004), at 8.

87 See also SC Res. 1624 (2005); SC Res. 1805 (2008).

88 SC Res. 1918 (2010), para. 2.

89 SC Res. 1377 (2001).

90 Guidelines of the Committee for the Conduct of Its Work: Note by the Chairman, Doc. S/AC.40/2001/CRP.1 (2001).

91 Programme of work of the Security Council Committee established pursuant to Resolution 1540 (2004) from 1 February 2010 to 31 January 2011, S/2010/112 (2 March 2010). See also SC Res. 1810 (2008).

92 Survey of the implementation of Security Council Resolution 1373 (2001) by Member States, UN Doc. S/2009/620; Letter Dated 8 July 2008 from the Chairman of the Security Council Committee Established Pursuant to Resolution 1540 (2004) Addressed to the President of the Security Council, UN Doc. S/2008/493.

93 Annex to the Letter Dated 29 January 2010 from the Chairman of the Security Council Committee Established Pursuant to Resolution 1540 (2004) Addressed to the President of the Security Council. Final Document on the 2009 Comprehensive Review of the Status of Implementation of SC Resolution 1540 (2004): Key Findings and Recommendations, UN Doc. S/2010/52.

94 As the Representative of Nepal said, ‘the opaque and exclusive decision-making process in the Council does not inspire much confidence among the wider membership of the United Nations Member States of the opportunity to participate in negotiations leading to agreements and decisions that would have profound and wide ramification for Member States’, S/PV.4950 (2004) (Resumption 1), at 14.

95 Thirty-four states participated in these meetings. As the Representative of Liechtenstein said, ‘open debates of the Security Council are an important means of enabling the Council to hear the view of other Member States and thus to truly act on their behalf, as foreseen in the Charter of the United Nations’, S/PV.4950 (2004) (Resumption 1), at 11–12. The US representative said, ‘because this threat and the actions we are taking today concern the entire United Nations membership, the United States and the co-sponsors have made major efforts to consult, listen and take into account the many views expressed. We share a common goal: to implement the Resolution’, S/PV.4956 (2004), at 5.

96 S/PV.4950, at 21.

97 S/PV.4950, at 7.

98 See GA Draft Resolution on Reforming the Working Methods of the Security Council (17 March 2006), Annex, paras. 4–6, A/60/L.49. SC Presidential Note S/2006/507 of 19 July 2006.