Chapter VII Powers and the Rule of Law:
The Jurisdictional Limits
Hitoshi Nasu∗
The Security Council is not a body that merely enforces agreed law. It is a law unto
itself. If it considers any situation as a threat to peace, it may decide what measures
shall be taken. No principles of law are laid down to guide it; it can decide in
accordance with what it thinks is expedient. It could be a tool enabling certain
powers to advance their selfish interests at the expense of another power.
J F Dulles, War or Peace (1950) 194-95
I. Introduction
The supremacy of the rule of law over the influence of discretionary power has
claimed venerable authority as the central tenet of law.1 One of the fundamental
challenges to this principle has been posed by the United Nations Security Council.
The Security Council is a creature of the UN Charter,2 upon which sovereign states
agree to confer some of their powers for the purpose of maintaining international
peace and security. 3 After 45 years of incubation, 4 the Security Council has
∗
1
2
3
4
Lecturer, ANU College of Law, The Australian National University; BA, MA
(Aoyama Gakuin); MIL, PhD (Sydney). This paper is based on a presentation
delivered at the Research Workshop of the ANU College of Law, 18 April 2007; Staff
Seminar at the Sydney Centre for International and Global Law, Faculty of Law, The
University of Sydney, 7 June 2007; and the 15th Annual Meeting of the Australian and
New Zealand Society of International Law (ANZSIL), Canberra, 28-30 June 2007.
I express my gratitude to the Dean Professor Michael Coper, Dr Jean-Pierre Fonteyne,
Professor Don Greig, Mr Leighton McDonald, Mr Wayne Morgan, Dr Gabriele
Porretto, Professor Donald R Rothwell, Professor Kim Rubenstein, Mr Daniel Stewart,
Mr Ernst Willheim, and participants of the events. I am also grateful to Melissa
Hamblin for her research assistance. However, the author alone remains responsible
for any errors.
A V Dicey, Introduction to the Study of the Law of the Constitution (10th ed, 1960)
202. Needless to say, the exact meaning of the concept has been contestable: see
generally B Z Tamanaha, On the Rule of Law: History, Politics, Theory (2004);
T R S Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (2001);
G de Q Walker, The Rule of Law: Foundation of Constitutional Democracy (1988)
1-42. In this article, the focus is confined to the formal conception of the rule of law
which restrains the way in which discretionary powers are exercised rather than the
content of the decision.
Charter of the United Nations (26 June 1945), ATS 1945 No 1, as amended by GA Res
1991 (1963), 557 UNTS 143; GA Res 2101 (1965), 638 UNTS 308; GA Res 2847
(1971), 892 UNTS 119.
See generally D Sarooshi, International Organizations and Their Exercise of
Sovereign Powers (2005).
The author does not evaluate the Security Council’s activities during the Cold War
period as ‘paralysed’ or ‘dysfunctional’. However restricted its activities might have
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reinvigorated its authority by exercising sheer powers under Chapter VII of the UN
Charter. In so doing, the Security Council has expanded its sphere of activities,
ranging from peace-enforcement to law-enforcement, and even to quasi-judicial as
well as quasi-legislative functions. 5 While the Security Council has recently
assumed a more active role in promoting the rule of law within states especially in
post-conflict territories,6 the real possibility has emerged that the Security Council
itself may well act above the rule of law, raising a fundamental question about the
extent to which its actions, particularly under Chapter VII, can be restricted in
accordance with the principles and rules of international law.
The concern that the Security Council may act ultra vires has produced a great
deal of literature that has attempted to promote judicial control over its actions.7
However essential it may be, the issue of control is no more than an instrumental
aspect of the fundamental question about the legality of the Security Council’s
actions and by no means represents substantive requirements to delimit the Security
Council’s powers under the Charter. For such control to be meaningful, less
ambiguous criteria must be ascertained for limiting the scope within which the
Security Council is empowered by the Charter to dispose of the rights and
obligations of member states.8 The purposes and principles of the UN Charter set
the substantive limits (‘outer limits’) to the Security Council’s general competence
including its exercise of Chapter VII powers.9 Yet ambiguity remains with the more
5
6
7
8
9
been, it is statistically shown that the Security Council has consistently performed its
duty in responding to threats to the peace: see M-F Cuellar, ‘Reflections on
Sovereignty and Collective Security’ (2004) 40 Stanford Journal of International Law
211, 224.
The expansion of Chapter VII grounds is examined at length below, in part II.
The Security Council has been considering the item entitled ‘Justice and the Rule of
Law: The United Nations Role’: see Statement by the President of the Security
Council, 22 June 2006, UN Doc S/PRST/2006/28; 6 October 2004, UN Doc
S/PRST/2004/34. See also Uniting Our Strengths: Enhancing United Nations Support
for the Rule of Law, Report of the Secretary-General, 14 December 2006, UN Doc
A/61/636-S/2006/980.
Recent significant works in this field include: E de Wet, The Chapter VII Powers of
the United Nations Security Council (2004) 69-129; M S M Amr, The Role of the
International Court of Justice as the Principal Judicial Organ of the United Nations
(2003) 279-340; D Schweigman, The Authority of the Security Council under Chapter
VII of the UN Charter: Legal Limits and the Role of the International Court of Justice
(2001) 267-85; D Akande, ‘The International Court of Justice and the Security
Council: Is There Room for Judicial Control of Decisions of the Political Organs of
the United Nations?’ (1997) 46 International and Comparative Law Quarterly 309;
M Bedjaoui, The New World Order and the Security Council: Testing the Legality of
Its Acts (1994) 55-93; G R Watson, ‘Constitutionalism, Judicial Review, and the
World Court’ (1993) 34 Harvard International Law Journal 1.
The lack of academic work on this issue is critically pointed out by G Arangio-Ruiz,
‘On the Security Council’s “Law-Making”’ (2000) 3 Rivista di diritto internazionale
609, 609-14. See also J W Halderman, The United Nations and the Rule of Law (1966)
29-30 (calling for the development of a more precise set of constitutional principles
and procedures).
For details see de Wet, above n 7, 178-368; Schweigman, above n 7, 165-82;
N Angelet, ‘International Law Limits to the Security Council’ in V Gowlland-Debbas
(ed), United Nations Sanctions and International Law (2001) 71, 74-7; S Lamb,
Chapter VII Powers and the Rule of Law
89
formalistic, jurisdictional limits (‘inner limits’) that relate not to the substance of the
decision but rather to the manner in which the decision is reached. This ambiguity
may well obscure the legal effects of resolutions, especially where the legality or the
validity is challenged. 10 Clarity is thus called for as to the jurisdictional scope
within which Chapter VII powers may be validly exercised.
This article attempts to identify criteria by reference to which we may ascertain
the jurisdictional scope of the Security Council acting under Chapter VII, relying on
the formal conception of the rule of law.11 By this I am referring to the procedural
limits to the powers of the Council; limits that relate not to the substance of the
decision reached by the Council, but rather to the manner in which the decision was
reached. It first outlines the historical background against which Chapter VII
powers have emerged in place of the allegedly defunct article 42 of the Charter and
subsequent expansion of the reach of these powers. Various aspects of Chapter VII
powers are examined in parts III and IV, which address in particular the
controversies concerning the expansion of Chapter VII powers and the problems of
expansion in the absence of a discernible and systematic set of rules of law. To
advance the supremacy of the rule of law over Chapter VII powers, part V explores
possible grounds for ascertaining jurisdictional errors that the Security Council may
commit in exercising Chapter VII powers. To that end, it draws on the
jurisprudence developed in Australian migration law where the notion of
jurisdictional error has recently been given a greater role against the backdrop of
significant obstacles to judicial review of ‘privative clause decisions’. 12 The
understanding and application of this concept puts the jurisdictional, procedural
limits of Chapter VII powers into perspective. Finally, part VI examines the legal
consequences of Chapter VII actions arising from one of the identified grounds of
jurisdictional error.
10
11
12
‘Legal Limits to United Nations Security Council Powers’ in G S Goodwin-Gill and
S Talmon (eds), The Reality of International Law: Essays in Honour of Ian Brownlie
(1999) 361, 366-84; T D Gill, ‘Legal and Some Political Limitations on the Power of
the UN Security Council to Exercise Its Enforcement Powers under Chapter VII of the
Charter’ (1995) 26 Netherlands Yearbook of International Law 33, 72-90.
See generally K Doebring, ‘Unlawful Resolutions of the Security Council and Their
Legal Consequences’ (1997) 1 Max Planck Yearbook of United Nations Law 91;
D Bowett, ‘Impact of Security Council Decisions on Dispute Settlement Procedures’
(1994) 5 European Journal of International Law 89.
The formal conception of the rule of law addresses formal attributes of law-making
and decision-making such as the manner in which a decision is made and the clarity of
the ensuing norm, whereas the substantive conception of the rule of law seeks to pass
judgment upon the actual content of the law itself. For details see, eg, P P Craig,
‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’
[1997] Public Law 467.
Migration Act 1958 (Cth) s 474. It gives final and non-reviewable decision-making
powers to the Executive, ostensibly aiming at expanding discretion to an unlimited
extent. For details of the privative clause, see S Evans, ‘Protection Visas and Privative
Clause Decisions: Hickman and the Migration Act 1958 (Cth)’ (2002) 9 Australian
Journal of Administrative Law 49.
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II. Origin and Development of Chapter VII Powers
What do Chapter VII powers mean? Chapter VII of the UN Charter is titled ‘action
with respect to threats to the peace, breach of the peace, and acts of aggression’ and
contains 13 provisions: article 39 (determination of the existence of a threat to the
peace, a breach of the peace, or an act of aggression); article 40 (provisional
measures); article 41 (enforcement measures not involving the use of armed force);
article 42 (enforcement measures involving the use of armed force); articles 43-50
(mechanisms and obligations in implementing enforcement measures); and article
51 (the right of self-defence). It is evident that Chapter VII concerns situations
where the peace is threatened, breached, or an act of aggression is committed.13
References to Chapter VII are nearly as old as the United Nations itself. In the
very early meetings of the Security Council, Chapter VII was referred to as a means
to adopt an enforcement measure against the Franco regime in Spain, because of its
pro-fascist activities, which contentiously fell within the domestic jurisdiction of
Spain.14 The reference to Chapter VII in the discussion of the Spanish issue was
made specifically in relation to the severance of diplomatic relations. More
ambiguous use was ventured when the Security Council buttressed the call for a
cease-fire in the Palestinian conflict with an explicit threat of further actions under
Chapter VII if the parties involved failed to comply.15 Yet it was far from clear
exactly what measures were envisaged by this reference to Chapter VII. As the
Belgian representative pointed out,16 there were obvious difficulties with carrying
out military enforcement action under article 42 in the absence of special
agreements within the meaning of article 43 of the Charter.17
Chapter VII was explicitly relied upon in Security Council resolutions when it
instituted mandatory economic sanctions against Southern Rhodesia in 1968,18 and
when it imposed a mandatory arms embargo against South Africa in 1977.19 There
was no obvious reason why Chapter VII was invoked in general terms to impose
sanctions, as non-military enforcement measures can be taken specifically under
article 41. One explanation is that the Chapter VII measures were intended as legal
sanctions (reaction against a violation of obligations established by the Charter),
13
14
15
16
17
18
19
There has been debate as to whether the finding under art 39 should precede the
adoption of provisional measures under art 40. Also, the right of self-defence under
art 51 can be exercised without the Council’s finding under art 39.
See, eg, UN SCOR, 1st year, 1st series, No 2, 180-82 (UK), 317-18 (Australia).
Enforcement measures under Chapter VII constitute an exception to the principle of
non-intervention as enshrined in art 2(7) of the Charter.
SC Res 50 (1948), SC Res 54 (1948).
See ‘The Palestine Question’ [1947-48] Yearbook of the United Nations 403, 437.
For authoritative and historical explanations of this linkage, see, eg, L Goodrich,
E Hambro and A Simons, Charter of the United Nations: Commentary and Documents
(3rd and revised ed, 1969) 315-17, 629-32; H Kelsen, The Law of the United Nations:
A Critical Analysis of Its Fundamental Problems (1951) 756.
SC Res 253 (1968) and the subsequent resolutions, SC Res 277 (1970), SC Res 388
(1976), and SC Res 409 (1977). A partial economic sanction had already been in place
under art 41: see SC Res 232 (1966).
SC Res 418 (1977).
Chapter VII Powers and the Rule of Law
91
rather than as an enforcement measure to restore international peace and security.20
It is hardly possible to draw a uniform definition of what constitutes a sanction
under international law, 21 much less to ascertain the relationship between
enforcement measures and sanctions. 22 While enforcement measures are not
designed to possess the character of a sanction,23 there has been an emerging view
that Chapter VII measures have the character of a sanction when they are adopted to
enforce certain fundamental norms that have been reflected in the Charter and its
practice.24
The 1990-1991 Gulf Crisis heralded a new era of the Council’s operation under
Chapter VII. A watershed was marked when the Security Council upgraded
enforcement measures against Iraq under Chapter VII, so as to authorise member
states to use armed force. Chapter VII was used for that purpose together with the
term ‘by all necessary means’,25 as a result of a compromise between the United
States and the Soviet Union.26 The use of Chapter VII powers in authorising and
justifying the use of armed force was widely accepted by states,27 but provoked
extensive academic debate as to what was the exact legal basis under the Charter.28
20
21
22
23
24
25
26
27
28
V Gowlland-Debbas, Collective Responses to Illegal Acts in International Law:
United Nations Action in the Question of Southern Rhodesia (1990) 465-80.
See, eg, J Farrall, United Nations Sanctions and the Rule of Law (2007) 6-7;
G Abi-Saab, ‘The Concept of Sanction in International Law’ in V Gowlland-Debbas
(ed), United Nations Sanctions and International Law (2001) 29; J L Kunz, ‘Sanctions
in International Law’ (1960) 54 American Journal of International Law 324..
Compare, eg, Kelsen, above n 17, 732-37; with E Zoller, Peacetime Unilateral
Remedies: An Analysis of Countermeasures (1984) 104-12.
See, eg, J A Frowein and N Krisch, ‘Introduction to Chapter VII’ in B Simma (ed),
The Charter of the United Nations: A Commentary (2nd ed, 2002) 701, 705;
R Higgins, ‘The New United Nations: Appearance and Reality’ in D Freestone,
S Subedi and S Davidson (eds), Contemporary Issues in International Law (2002)
143, 148; Gill, above n 9, 46.
See, eg, V Gowlland-Debbas, ‘The Functions of the United Nations Security Council
in the International Legal System’ in M Byers (ed), The Role of Law in International
Politics: Essays in International Relations and International Law (2000) 277,
286-301; O Schachter, ‘United Nations Law’ (1994) 88 American Journal of
International Law 1, 12; Gowlland-Debbas, above n 20, 469-73.
SC Res 678 (1990).
See R Rich, ‘Crafting Security Council Mandates’ in E Newman and R Rich (eds), The
UN Role in Promoting Democracy: Between Ideals and Reality (2004) 62, 66;
B Woodward, The Commanders (1991) 333-35.
A few countries criticised the authorisation in this manner: see UN SCOR (2963rd
mtg), UN Doc S/PV.2963 (1990), 31 (Yemen), 74 (Malaysia).
There are four main propositions:
(i) art 42 functioning independently from the conclusion of special agreements under
art 43: see, eg, Thomas M Franck, Recourse to Force: State Action against Threats
and Armed Attacks (2002) 26-7; C Greenwood, ‘New World Order or Old? The
Invasion of Kuwait and the Rule of Law’ (1992) 55 Modern Law Review 153, 167-69;
A Chayes, ‘The Use of Force in the Persian Gulf’ in L F Damrosch and D J Scheffer
(eds), Law and Force in the New International Order (1991) 3, 4-5, 10.
(ii) collective self-defence under art 51: see, eg, R Lavalle, ‘The Law of the United
Nations and the Use of Force under the Relevant Security Council Resolutions of 1990
and 1991 to Resolve the Persian Gulf Crisis’ (1992) 23 Netherlands Yearbook of
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It is arguable that the omission of any particular provision could have been
deliberate, with a view to avoiding unnecessary legal complication and political
confrontation.29 It might also have aimed to leave the possibility for the wording to
be held consistent with the idea that the Council approved collective self-defence
measures under article 51 within Chapter VII.30 There is therefore no doubt that the
invocation of Chapter VII was meant to give effect to ‘what is the core of the
United Nations system of collective security’.31
It is thus possible to understand Chapter VII powers in two different ways: first,
as legal sanctions against violations of fundamental norms established by the
Charter and its practice (law enforcement); and second, as enforcement measures
against an entity posing a threat to the peace, which are comparable to, albeit not
necessarily identical to, those under articles 41 and 42 of the Charter (peace
enforcement).32 The distinction between law enforcement and peace enforcement is
a fine one,33 as the Security Council often performs law enforcement functions in
conjunction with peace enforcement, authorising military action to ensure
compliance with the terms of the mandate.34 Yet both interpretations may share the
view that Chapter VII measures are confined to those listed in articles 41 and 42
and taken against the will of a target state. This view finds support in the decision of
the Appeals Chamber of the International Criminal Tribunal for the Former
Yugoslavia in Tadic. The Tribunal stated that the discretion given to the Security
29
30
31
32
33
34
International Law 3, 33-46; O Schachter, ‘United Nations Law in the Gulf Conflict’
(1991) 85 American Journal of International Law 452, 457-63; G K Walker, ‘The
Crisis over Kuwait, August 1990-February 1991’ (1991) 1 Duke Journal of
Comparative and International Law 25, 46-7;
(iii) art 39: see, eg, B Simma, ‘Does the UN Charter Provide an Adequate Legal Basis
for Individual or Collective Responses to Violations of International Obligations Erga
Omnes?’ in J Delbrück (ed), The Future of International Law Enforcement: New
Scenario – New Law? (1993) 125, 138.
(iv) Chapter VII in general: see, eg, P C Szasz, ‘Centralized and Decentralized Law
Enforcement: The Security Council and the General Assembly Acting under Chapters
VII and VIII’ in J Delbrück (ed), Allocation of Law Enforcement Authority in the
International System (1994) 17, 30.
See, eg, Greenwood, above n 28, 169; Schachter, above n 28, 462.
I Shearer, ‘International Law and the Gulf War’ in P Alston and M Bustelo (eds),
Whose New World Order: What Role for the United Nations? (1991) 69, 73.
UN SCOR (2963rd mtg), UN Doc S/PV.2963 (1990), 84-5 (Finland).
See, eg, K Herndl, ‘Reflections on the Role, Functions and Problems of the Security
Council of the United Nations’ (1987-VI) 206 Recueil des Cours 289, 322-25.
This is somewhat analogous to the controversy over the linkage between Chapter VII
enforcement measures and law enforcement within the meaning of art 94(2)
authorising the Council to take measures to give effect to a judgment rendered by the
ICJ: see, eg, S Rosenne, The Law and Practice of the International Court (4th ed,
2006) Vol 1, 242-47; H Mosler and K Oellers-Frahm, ‘Article 94’ in Simma (ed),
above n 23, 1174, 1177; A Tanzi, ‘Problems of Enforcement of Decisions of the
International Court of Justice and the Law of the United Nations’ (1995) 6 European
Journal of International Law 539, 553-58, 561-63; O Schachter, ‘The Enforcement of
International Judicial or Arbitral Decisions’ (1960) American Journal of International
Law 17, 17-24.
See, eg, SC Res 816 (1993) (Bosnia); SC Res 836 (1993) (Bosnia). See also Frowein
and Krisch, above n 23, 707.
Chapter VII Powers and the Rule of Law
93
Council under Chapter VII was not unfettered but limited to the measures provided
for in articles 41 and 42 of the Charter,35 finding its own constitutional basis in
article 41.36
There has been emerging practice, however, of expanding the scope of Chapter
VII powers. The Security Council has invoked Chapter VII powers for policing and
administrative purposes: for instance, to authorise UN missions to perform police
functions within a sovereign state; 37 to provide effective protection for UN and
diplomatic missions in countries where they are stationed; 38 and to establish
transitional administrations in war-torn territories. 39 Some of the Council’s
decisions under Chapter VII have also taken on a quasi-judicial nature, 40 for
example: to declare the legality or validity of certain acts or situations;41 to affirm
liability for damages;42 and to effect a binding demarcation of boundaries between
states.43 Chapter VII powers have furthermore extended to law-making functions by
imposing an obligation targeting a specific state to act in a specific manner,44 and
even by engaging in a general legislative-like enterprise subject to no specification
either of the target or manner in which the obligation is to be discharged.45
The proliferation of Chapter VII powers extending beyond the core function of
the collective security system requires recharacterisation of the powers ‘less by its
being taken against the will of the target State, but rather by its binding force
regardless of the will of the States subject to it’ [italics original].46 While leaving
35
36
37
38
39
40
41
42
43
44
45
46
Prosecutor v Tadic (Jurisdiction) (Appeals Chamber) (1997) 105 ILR 453, 468 [32].
Ibid 468-70. See also Prosecutor v Slobodan Milosevic (Preliminary Motions) (Trial
Chamber) (2000) Case No IT-02-54-T.
See, eg, SC Res 837 (1993) (authorising the Secretary-General to ‘take all necessary
measures against all those responsible for the armed attacks [against UN personnel] …
including to ensure the investigation of their actions and their arrest and detention for
prosecution, trial and punishment’).
See, eg, SC Res 664 (1990); SC Res 1246 (1999) (Sierra Leone); SC Res 1464 (2003)
(Ivory Coast). See also C Gray, ‘From Unity to Polarization: International Law and the
Use of Force against Iraq’ (2002) 13 European Journal of International Law 1, 3-5.
See, eg, SC Res 1244 (1999) (Kosovo); SC Res 1264 (1999) (East Timor).
See generally F L Kirgis Jr, ‘The Security Council’s First Fifty Years’ (1995) 89
American Journal of International Law 506, 529-32; K Harper, ‘Does the United
Nations Security Council Have the Competence to Act as Court and Legislature?’
(1994) 27 New York University Journal of International Law and Politics 103,
108-26.
SC Res 662 (1990) (the annexation of Kuwait by Iraq); SC Res 940 (1994) (the
military regime of Haiti); SC Res 941 (1994) (‘ethnic cleansing’).
SC Res 674 (1990).
SC Res 687 (1991); SC Res 773 (1992); SC Res 833 (1993). Cf S P Subedi, ‘The
Doctrine of Objective Regimes in International Law and the Competence of the United
Nations to Impose Territorial or Peace Settlement on States’ (1994) 37 German
Yearbook of International Law 162, 179 (characterising the binding demarcation as
the establishment of an objective regime by the UN).
See, eg, SC Res 687 (1991); SC Res 1737 (2006); SC Res 1747 (2007) (extending and
strengthening the disarmament treaty obligations on Iraq and Iran).
See, eg, SC Res 1373 (2001) (counter-terrorism); SC Res 1540 (2004) (nonproliferation of weapons of mass destruction).
Frowein and Krisch, above n 23, 706.
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the exact legal basis for the expanded grounds in doubt, the reference to Chapter
VII in general terms has become standard and established practice of the Security
Council.47 Such practice has been found useful to circumvent some marginal issues
such as the legal basis for military intervention in essentially domestic conflicts,48
and the legal basis for naval interdiction operations to ensure compliance with
non-military sanctions under UN auspices.49 The question remains as to how far
Chapter VII powers can extend beyond the limits of articles 41 and 42 of the
Charter. In other words, how much room is there for Security Council measures
falling outside the ambit of articles 41 and 42 to be justified under the aegis of
Chapter VII? To examine this question, the next part describes the problematic
nature of the proliferation of Chapter VII grounds over the last few decades.
III. Necessity to Regulate Chapter VII Powers
Although Chapter VII powers were originally meant to authorise enforcement
measures or sanctions, the central significance of such a role seems to have faded
due to the expedient practice of using the powers expansively for performing
peripheral functions. Considerable doubts have been expressed on such expansion,
for example, as to whether the Security Council can perform judicial or legislative
functions under Chapter VII. While some welcome such development,50 others call
for caution against the creation and imposition of a general and abstract obligation
having no basis in the Charter.51 At one extreme, the minimalist approach argues
that Chapter VII powers should be confined to enforcement measures as originally
47
48
49
50
51
See T Gazzini, The Changing Rules on the Use of Force in International Law (2005)
43-51; D M Malone, ‘The Security Council in the Post-Cold War Era: A Study in the
Creative Interpretation of the U.N. Charter’ (2003) 35 New York University Journal of
International Law and Politics 487, 492-95. But see M Koskenniemi, ‘The Police in
the Temple: Order, Justice and the UN: A Dialectical View’ (1995) 6 European
Journal of International Law 325.
See, eg, SC Res 794 (1992) (Somalia); SC Res 929 (1994) (Rwanda); SC Res 940
(1994) (Haiti); SC Res 1101 (1997) (Albania); SC Res 1484 (2003) (DRC).
See, eg, SC Res 787 (1992) (Bosnia); SC Res 875 (1994) (Haiti). Different authors
claim different legal bases for naval interdiction operations under Chapter VII powers:
see, eg, R McLaughlin, ‘United Nations Mandated Naval Interdiction Operations in
the Territorial Sea?’ (2002) 51 International and Comparative Law Quarterly 249;
G P Politakis, ‘UN-Mandated Naval Operations and the Notion of Pacific Blockade:
Comments on Some Recent Developments’ (1994) 6 African Journal of International
and Comparative Law 173, 191-98.
See, eg, P C Szasz, ‘The Security Council Starts Legislating’ (2002) 96 American
Journal of International Law 901. See also A Marschik, ‘Legislative Powers of the
Security Council’ in R St J Macdonald and D M Johnston (eds), Towards World
Constitutionalism (2005) 457 (supporting the evolutionary nature of subsequent
practice, but also examining limitations and conditions to minimise negative effects).
See, eg, M Akram and S H Shah, ‘The Legislative Powers of the United Nations
Security Council’ in Macdonald and Johnston (eds), ibid 431; M Happold, ‘Security
Council Resolution 1373 and the Constitution of the United Nations’ (2003) 16 Leiden
Journal of International Law 593. See also D W Bowett, ‘Judicial and Political
Functions of the Security Council and the International Court of Justice’ in H Fox
(ed), The Changing Constitution of the United Nations (1997) 73, 79-80.
Chapter VII Powers and the Rule of Law
95
envisaged.52 Yet the expansion, to a limited extent, is not necessarily groundless in
theory. Article 24(2) of the Charter leaves the Council with the possibility of
exercising a general or residual power,53 which may well provide an opaque ground
for the expanded scope of activities in the nature of Chapter VII.54
At the other extreme, therefore, the expeditious application of Chapter VII
powers leads to the view that the Council’s action under Chapter VII is unbound by
law.55 There is no doubt that the Security Council has the prima facie authority to
decide when enforcement measures are warranted and what types of enforcement
measures should be taken. 56 The conventional understanding is that as a
non-judicial organ the Security Council is by no means required to specify in its
resolutions the Charter provisions upon which its actions are based. 57 It is little
wonder that, given the pressing political circumstances, the Security Council gives
priority to unanimity over clarity in adopting resolutions to show its political
willingness to deal with the disputes or situations brought before it.58
A line has to be drawn, however, between the expedient application of the
Charter by the Security Council to secure the unanimous adoption of a resolution on
the one hand, and the objective and legitimate interpretation of relevant provisions
to ascertain the Security Council’s power and competence vested under the Charter
on the other.59 Danger is inevitable if one regards the political application based on
the policy of convenience and convergence as a proper method of interpretation.
Such application ‘might far too readily lead to political compromises which would
52
53
54
55
56
57
58
59
See, eg, Arangio-Ruiz, above n 8, 653-54.
Art 24(2) of the Charter provides that: ‘In discharging these duties the Security
Council shall act in accordance with the Purposes and Principles of the United
Nations. The specific powers granted to the Security Council for the discharge of these
duties are laid down in Chapters VI, VII, VIII and XII’.
See 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 16, 52 [110]; J Delbrück, ‘Article 24’ in Simma
(ed), above n 23, 442, 448; Gill, above n 9, 68-72. This general power of the Security
Council as a UN organ is distinguished from the implied powers that the UN may
exercise as an international organisation possessing a distinct international legal
personality.
See G H Oosthuizen, ‘Playing the Devil’s Advocate: The United Nations Security
Council is Unbound by Law’ (1999) 12 Leiden Journal of International Law 549.
See Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter)
(Advisory Opinion) [1962] ICJ Rep 151, 168; Namibia Case, above n 54, 22 [20];
Questions of Interpretation and Application of the 1971 Montreal Convention Arising
from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States)
(Provisional Measures) [1992] ICJ Rep 3, 15 [39]-[41].
See, eg, Y Dinstein, War, Aggression and Self-Defence (3rd ed, 2001) 251.
See H Freudenschuß, ‘Article 39 of the UN Charter Revisited: Threats to the Peace
and the Recent Practice of the UN Security Council’ (1993) 46 Austrian Journal of
Public and International Law 1, 34.
For the distinction between application and interpretation, see Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Merits)
[1986] ICJ Rep 14, 117 [225].
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Australian Year Book of International Law Vol 26
undermine the very foundation of the United Nations’. 60 Judge Fitzmaurice also
cautioned against the political interpretation, stating that:
Without in any absolute sense denying that, through a sufficiently steady and
long-continued course of conduct, a new tacit agreement may arise having a
modificatory effect, the presumption is against it, – especially in the case of an
organization whose constituent instrument provides for its own amendment, and
prescribes with some particularity what the means of effecting this are to be.61
The issue, therefore, should not simply be left to the discretion of the Security
Council as a matter of political preference and expedience. Such expansive and
expedient application of Chapter VII powers with reliance on political discretion
may well lead to the inadequate use of the powers for the following three reasons.
First, it has allowed the Security Council to abandon the flexible approach in the
selection of its course of action in dealing with conflicts. The upsurge of
Chapter VII operations over the last few decades ostensibly shows that the Security
Council has adopted a policy to refrain from taking action on its own initiative until
such time as the situation constitutes a threat to the peace, wherein it can invoke
Chapter VII powers to intervene in the conflict. Emerging conflicts have thus been
left within the diplomatic realm, often in the hands of the UN Secretary-General,
whilst the Security Council stays stagnant until the situation has become such that
political pressure mounts to push it into taking enforcement measures. 62 The
flexible approach to conflict management should be restored by the more cautious
use of Chapter VII powers so that the Security Council can discharge its primary
responsibility for the maintenance of international peace and security in a proactive,
decisive, and consistent manner even outside the realm of Chapter VII.63
Second, with the random application and multi-faceted meanings attached to
Chapter VII, the Security Council has failed to bring the application of Chapter VII
powers into an institutionalised framework,64 within which it can be ensured that
every measure it takes on the basis of Chapter VII will not go beyond the authorised
scope of its competence under the Charter. The reformulation of Chapter VII
powers has blurred the legitimate scope of application in cases where the
enforcement nature is questioned. It is argued that the transitional administration in
war-torn territories under Chapter VII has concealed not only the exact legal basis
and the nature of the operation but also possible abuse of the powers in the course
of operations. This arguably resulted in the covert oppression of the right to
self-determination and the illegitimate deprivation of the opportunity for peoples to
achieve self-governance. 65 Without an adequate safeguard, the expeditious and
60
61
62
63
64
65
Pollux, ‘The Interpretation of the Charter’ (1946) 23 British Year Book of
International Law 54, 69.
Namibia Case, above n 54, 282 (Judge Fitzmaurice dissenting opinion).
See W M Reisman, ‘The Constitutional Crisis in the United Nations’ (1993) 87
American Journal of International Law 83, 89-90.
See H Nasu, ‘Responsibility to React? Lessons from the Security Council’s Response
to the Southern Lebanon Crisis of 2006’ (2007) 14 International Peacekeeping 339.
See A Bianchi, ‘Ad-Hocism and the Rule of Law’ (2002) 13 European Journal of
International Law 263, 269-72.
See, eg, K Daglish and H Nasu, ‘Towards a True Incarnation of the Rule of Law in
Chapter VII Powers and the Rule of Law
97
ambiguous use of Chapter VII could well result in a de facto revision of the Charter
or ‘de-legalising’ a situation at hand. 66 Realists may favour the proliferation of
Chapter VII powers even at the price of neglect of the rule of law, emphasising the
effective function of the collective security. Yet the fact that the Security Council is
a political body making political decisions does not preclude it from its
responsibility to act as an organ of law governed by binding rules and procedures.67
Third, the recourse to Chapter VII powers for political expedience may well
conceal a violation of fundamental principles of the Charter, which would be
unjustifiable or intolerable under any circumstances. Article 1(1) of the Charter
mandates a peaceful settlement of international disputes or situations to be brought
about ‘in conformity with the principles of justice in international law’, while no
such reference is made in relation to collective security measures.68 This omission
has led to a view that, in acting under Chapter VII, the Security Council is not
bound by the principles of justice in international law.69 By expansively invoking
Chapter VII, however, the Security Council may well circumvent the principles of
justice and international law, which would otherwise have bearing upon the way in
which the Security Council should operate.70 It is to be recalled that the phrase was
inserted in response to the concern expressed by small- and medium-sized states so
that the Security Council has no power to impose a settlement or to sacrifice the
rights of any member states. 71 Another example concerns the principle of
non-intervention in the domestic jurisdiction of a state as embodied in article 2(7)
of the Charter, which also exempts enforcement measures under Chapter VII from
its application.72 To whatever extent the scope of domestic jurisdiction may have
66
67
68
69
70
71
72
War-Torn Territories: Centring Peacebuilding in the Will of the People’ (2007) 54
Netherlands International Law Review 81. See also J E Stromseth, Can Might Make
Rights?: Building the Rule of Law After Military Intervention (2006).
See M Byers, ‘Agreeing to Disagree: Security Council Resolution 1441 and
Intentional Ambiguity’ (2004) 10 Global Governance 165, 166.
See Tadic, above n 35, 465-66 [28]-[29].
Art 1(1) of the Charter provides as one of the purposes of the UN: ‘To maintain
international peace and security, and to that end: to take effective collective measures
for the prevention and removal of threats to peace, and for the suppression of acts of
aggression, or other breaches of the peace, and to bring about by peaceful means, and
in conformity with the principles of justice in international law, adjustment or
settlement of international disputes or situations which might lead to a breach of the
peace’.
See, eg, B Martenczuk, ‘The Security Council, the International Court and the Judicial
Review: What Lessons from Lockerbie?’ (1999) 10 European Journal of International
Law 544-45; Goodrich, Hambro and Simons, above n 17, 27-8. But see D Akande,
‘The International Court of Justice and the Security Council: Is There Room for
Judicial Control of the Decisions of the Political Organs of the United Nations?’
(1997) 46 International and Comparative Law Quarterly 309, 318-20.
An example in point is Res 748 in response to the Lockerbie incident. Libya’s
responsibility cannot be predetermined without offending the principle of justice and
international law: see G P McGinley, ‘The I.C.J.’s Decision in the Lockerbie Cases’
(1992) 22 Georgia Journal of International and Comparative Law 577, 599. I am
grateful to Dr Brett Williams for bringing this piece to my attention.
Gill, above n 9, 67.
Art 2(7) of the Charter reads that: ‘Nothing contained in the present Charter shall
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Australian Year Book of International Law Vol 26
been eroded,73 a real chance still exists that Chapter VII may well be used as an
easy way out of the restriction to intervene in matters falling essentially within the
domestic jurisdiction of a state. 74 Given that the Security Council must make
decisions in compliance with the purposes and principles of the Charter the possible
circumvention of the foundation of the Charter, taking advantage of Chapter VII
powers, is such that the neglect of the rule of law in favour of an incarnation of
collective security is intolerable.
To prevent the improper use of Chapter VII powers, one may propose that the
Council’s powers under Chapter VII be delineated in a manner analogous to
governmental separation of powers – characterising the Security Council as an
executive branch bestowed with policing power. 75 There is no doubt that the
concentration of all three functions as lawmaker, judge and executioner, as White
warns, represents a recipe for abuse of power or the very definition of tyranny.76 It
is arguable, moreover, that the political nature of the organ and the decision-making
process influenced especially by the national interests of permanent member states
disqualify the Council from performing judicial or legislative function.77 Yet the
division and distribution of powers in the international system in general appears to
be guided by the principle of subsidiarity: powers are allocated to an authority
where the respective tasks can be most effectively dealt with. 78 The Security
Council is no exception to this principle, performing a wide variety of functions to
deal effectively with issues that are put on its agenda, no matter how some of its
decisions might be characterised. Hence the non-judicial nature of the Security
Council may not necessarily preclude it from performing ‘quasi-judicial’ functions
by reacting to, rather than adjudicating upon, violations of fundamental norms of
international law in place of the injured states in matters that affect the interests of
the international community as a whole. 79 Likewise, resolutions that purport to
73
74
75
76
77
78
79
authorise the United Nations to intervene in matters which are essentially within the
domestic jurisdiction of any state or shall require the Members to submit such matters
to settlement under the present Charter; but this principle shall not prejudice the
application of enforcement measures under Chapter VII’.
See, eg, I Brownlie, Principles of Public International Law (6th ed, 2003) 293; A A C
Trinidade, ‘The Domestic Jurisdiction of States in the Practice of the United Nations
and Regional Organisations’ (1976) 25 International and Comparative Law Quarterly
715, 722-44, 761-62.
T M Franck, Fairness in International Law and Institutions (1995) 219-21. This was
arguably the case over the Lockerbie affair: see B Graefrath, ‘Leave to the Court What
Belongs to the Court: The Libyan Case’ (1993) 4 European Journal of International
Law 184, 192.
See de Wet, above n 7, 109-13.
N D White, ‘The United Nations System: Conference, Contract or Constitutional
Order?’ (2000) 4 Singapore Journal of International and Comparative Law 281, 293.
See Kirgis, above n 40, 532; Harper, above n 40, 133-43.
J Delbrück, ‘Transnational Federalism: Problems and Prospects of Allocating Public
Authority Beyond the State’ (2004) 11 Indiana Journal of Global Legal Studies 31,
53.
See V Gowlland-Debbas, ‘Security Council Enforcement Action and Issues of State
Responsibility’ (1994) 43 International and Comparative Law Quarterly 55, 72-3. See
also Namibia Case, above n 54, 49 [102] (‘To deny to a political organ of the United
Chapter VII Powers and the Rule of Law
99
create obligations in contravention of existing treaty obligations may validly give
rise to a ‘quasi-legislative’ effect, by virtue of article 103 of the Charter,80 in that
they would render the treaty obligations no longer performable, rather than
abrogated or nullified, for the time the resolution remains in force.81
Alternatively, it is argued that peripheral functions such as quasi-judicial and
quasi-legislative decisions under Chapter VII should remain exceptional and be
confined to cases where they are indispensable for, or proportional to, the exercise
of peace enforcement functions.82 It is not so clear how the indispensability and
proportionality should be assessed. Nor is it promising that such general
requirement can impose any meaningful fetters upon the Council’s peripheral
functions, for it is first and foremost the Security Council that possesses the power
to decide what is dispensable for and proportional to the maintenance of
international peace and security.
It is therefore submitted that a systematic set of criteria be established and
applied against which the Council’s exercise of Chapter VII powers can be assessed
and regulated.
IV. Extending the Rule of Law over Chapter VII Powers
The development of rules of administrative law in Australia may provide a new
perspective in finding the epitome of the rule of law over the Security Council’s
decisions under Chapter VII. Particular attention is drawn to Australian migration
law. Some tension, similar to the tension discussed in the previous sections
regarding the expansion of Chapter VII powers, has unfolded in extending the rule
of law over open-ended discretionary powers conferred upon the Department of
Immigration whose decisions are to be final and non-reviewable (privative clause
decisions).83 In response to the expansion of discretionary power of the executive,
Australian courts have developed the concept of ‘jurisdictional error’ signifying that
a jurisdictionally flawed decision is not a valid decision.84 The notion has its origin
80
81
82
83
84
Nations … the right to act, on the argument that it lacks competence to render what is
described as a judicial decision, would not only be inconsistent but would amount to a
complete denial of the remedies available against fundamental breaches of an
international undertaking’).
Art 103 of the Charter reads that: ‘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’. For the view that the obligations under the Charter also include the
Council’s binding decisions, see, eg, R Bernhardt, ‘Article 103’ in Simma (ed), above
n 23, 1292, 1295-96; R H Lauwaars, ‘The Interrelationship between United Nations
Law and the Law of Other International Organizations’ (1984) 82 Michigan Law
Review 1604, 1606-7.
See D W Greig, Invalidity and the Law of Treaties (2006) 191-92.
Frowein and Krisch, above n 23, 708; Arangio-Ruiz, above n 8, 642; S Talmon, ‘The
Security Council as World Legislature’ (2005) 99 American Journal of International
Law 175, 182-85. See also Namibia Case, above n 54, 147 (Judge Onyeama separate
opinion).
See above n 12.
The landmark case on this issue is Plaintiff S157/2002 v Commonwealth (2003) 211
CLR 476. See also, C Beaton-Wells, ‘Restoring the Rule of Law – Plaintiff S157/2002
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in R v Hickman; ex parte Fox and Clinton, 85 where Dixon J propounded a
compromise interpretation of a clause ousting judicial review in the following
terms:
Such a clause is interpreted as meaning that no decision which is in fact given by the
body concerned shall be invalidated on the ground that it has not conformed to the
requirements governing its proceedings or the exercise of its authority or has not
confined its acts within the limits laid down by the instrument giving it authority,
provided always that its decision is a bona fide attempt to exercise its power, that it
relates to the subject matter of the legislation, and that it is reasonably capable of
reference to the power given to the body.86
Jurisdictional error is an elastic term,87 representing ‘a term of conclusion’ that
the decision is invalid when it is used in the context of judicial review.88 The notion
itself provides only scant guidance on the nature of errors that can be characterised
as jurisdictional, except that an error is jurisdictional where it involves the breach of
an inviolable, imperative or indispensable condition on the exercise of power in the
light of the statute as a whole. 89 While some adopt a restrictive view, 90 an
increasing number of others have expressed their support for a wider understanding
of the notion so that it embraces a number of different kinds of error of law.91 The
question as to what constitutes jurisdictional error must be answered in the context
of the particular empowering document by examining under what circumstances the
conditions precedent to a valid decision are or are not met.92
85
86
87
88
89
90
91
92
v Commonwealth of Australia’ (2003) 10 Australian Journal of Administrative Law
125; H Robertson, ‘Truth, Justice and the Australian Way – Plaintiff S157 of 2002 v
Commonwealth’ (2003) 31 Federal Law Review 373.
(1945) 70 CLR 598.
Ibid 615. The subsequent cases added another limb by requiring that it does not
display a jurisdictional error on its face. However, doubt has been cast on the necessity
of having this component independent from other limbs especially from the third limb:
see Plaintiff S157/2002, above n 84, 500; Mitchforce v Industrial Relations
Commission of New South Wales (2003) 57 NSWLR 212, 230-31 (Spigelman CJ).
See generally M Aronson et al, Judicial Review of Administrative Action (3rd ed, 2004)
211-18; S A de Smith et al, Judicial Review of Administrative Action (5th ed, 1995)
223-56.
See SDAV v Minister for Immigration and Multicultural and Indigenous Affairs (S215
of 2002) (2003) 199 ALR 43, 49 [27].
C Beaton-Wells, ‘Judicial Review of Migration Decisions: Life After S157’ (2005) 33
Federal Law Review 141, 142. See also T R S Allan, ‘Doctrine and Theory in
Administrative Law: An Elusive Quest for the Limits of Jurisdiction’ [2003] Public
Law 429, 442.
See, eg, NAAV v Minister for Immigration and Multicultural and Indigenous Affairs
(2002) 123 FCR 298, esp 473-77 [619]-[630] (von Doussa J).
SCAT v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76
ALD 625, 636-37; Jackson v Minister for Immigration and Multicultural and
Indigenous Affairs (2003) 75 ALD 643, 648-50; Minister for Immigration and
Multicultural Affairs v Yusuf (2001) 206 CLR 323, 351 [82]; Craig v South Australia
(1995) 184 CLR 163, 179.
See Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004)
207 ALR 12, 24 [51] (Gummow and Hayne JJ); S157/2002, above n 89, 45-6 [76][78]. See also Beaton-Wells, above n 84, 156-60.
Chapter VII Powers and the Rule of Law
101
Can and should municipal rules of administrative law be translated into
international law governing the Security Council’s actions? One way to answer this
question is to establish the notion of jurisdictional error as a general principle of law
in the sense of article 38(1)(c) of the International Court of Justice (ICJ) Statute.93
Yet the use of general principles of law as a source of international law has been
limited mainly to judicial administration for the settlement of a dispute between
states. 94 Even if the underlying policy and principles to limit the jurisdictional
grounds for discretionary action can be found common to many countries and
appropriately adapted to the international sphere, 95 there would be significant
difference as to the way in which jurisdictional limits are ascertained and regulated
in each country.96
The failure to establish the legal status as a general principle of law does not
necessarily indicate that international law governing the Security Council’s actions
should not be subject to an ‘analysis’ in terms of the values and ideas of national
legal systems.97 Attempts have in fact been made to examine whether and to what
extent ideas from domestic administrative law can help solve issues surrounding
global governance.98 The constitutional and public law analogies have also been
drawn by way of interpretation of and adaptation to the Charter provisions including
notably the application of the doctrine of implied power, which originates from the
United States constitutional practice. 99 While the analogies have been primarily
used to extend the competence of the UN vis-à-vis sovereign member states, there
seems no reason why it cannot be relied upon to limit the power of its organs. It is
thus argued that the notion of jurisdictional error may help analyse and clarify
jurisdictional limits that are inherent in the provisions and structure of the Charter.
Given the incontestable nature of privative clause decisions and almost likewise of
Security Council decisions, there is ample space where the notion of jurisdictional
error may provide a useful guide to ascertain a systematic set of jurisdictional
limits.
93
94
95
96
97
98
99
For an authoritative account of this source of international law, see, International
Status of South-West Africa (Advisory Opinion) [1950] ICJ Rep 4, 148 (Lord McNair).
See generally Brownlie, above n 73, 15-8.
See Sarooshi, above n 3, 14-7. In fact, the principle of good faith could be regarded as
a general principle of law purporting to restrict the exercise of discretion: B Cheng,
General Principles of Law as Applied by International Courts and Tribunals (1953)
132-36.
Difference exists even among common law countries: see D Dyzenhaus, The
Constitution of Law: Legality in a Time of Emergency (2006) 102-20.
I Brownlie, The Rule of Law in International Affairs (1998) 213.
See, eg, C Harlow, ‘Global Administrative Law: The Quest for Principles and Values’
(2006) 17 European Journal of International Law 187; D C Esty, ‘Good Governance
at the Supranational Scale: Globalizing Administrative Law’ (2006) 115 Yale Law
Journal 1490; B Kingsbury, N Krisch, and R B Stewart, ‘The Emergence of Global
Administrative Law’ (2005) 68 Law and Contemporary Problems 15.
For a critical view against the use of those analogies, see G Arangio-Ruiz, ‘The
“Federal Analogy” and UN Charter Interpretation: A Crucial Issue’ (1997) European
Journal of International Law 1.
102
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From a municipal law perspective, doubt may well be cast on the application of
the notion of jurisdictional error, given that the notion has been developed within
the constitutional context of the separation of powers in delineating the role of
courts so as not to interfere with the merits of decisions of the executive. In
Australia, section 75(v) of the Constitution has provided the engine room for the
entrenched minimum provision of judicial review.100 The concept of separation of
powers does not strictly apply to the UN, 101 nor is there the same level of
protection of judicial review in the Charter. 102 Yet the traditional common law
approach distinguishing public policy from legal principle can provide a valuable
perspective emphasising the central role that the formal conception of the rule of
law can play in restricting the exercise of discretionary power.103 It is distinguished
in this respect from the ultra vires doctrine, in that the legislative intent does not lay
the ground for ascertaining jurisdictional error. 104 The development of
jurisdictional error in response to the attempts to oust judicial review has thrown
into sharp relief the minimum extent to which a discretionary decision can be
subject to judicial review. Advantage can be taken of this notion in relation to
Security Council decisions in that the validity of decisions can be assessed without
interfering with the substantive merits of the way in which discretionary powers
under Chapter VII are exercised.
The following section examines five standard grounds of judicial review at
common law that have potential application to Security Council action under
Chapter VII:105
•
duty to act within the power;
•
duty to act for proper purposes;
•
jurisdictional fact;
•
considerations: relevance, reasonableness and rationality; and
•
procedural fairness.
100
See J Kirk, ‘The Entrenched Minimum Provision of Judicial Review’ (2004) 12
Australian Journal of Administrative Law 64.
See above nn 75-81 and accompanying text.
Cf UN Charter, art 92.
See Dyzenhaus, above n 96, 18-9; L McDonald, ‘Positivism and the Formal Rule of
Law: Questioning the Connection’ (2001) 26 Australian Journal of Legal Philosophy
93, 113-21; cf P Craig, ‘Constitutional Foundations, the Rule of Law and Supremacy’
[2003] Public Law 92, 96-106.
There has been doctrinal debate, especially in England, on whether judicial review of
executive action is justified by the ultra vires doctrine (judicial review as an
implementation of the will of Parliament) or by the common law doctrine (judicial
review as the inherent power of the courts to develop the common law): compare, eg,
C Forsyth, ‘Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty
of Parliament and Judicial Review’ (1996) 55 Cambridge Law Journal 122; with
P Craig, ‘Ultra Vires and the Foundations of Judicial Review’ (1998) 57 Cambridge
Law Journal 63; Allan, above n 89.
Those grounds are derived from standard administrative law textbooks: see, eg,
R Douglas, Administrative Law (5th ed, 2006) chs 9-16; R Creyke and J McMillan,
Control of Governmental Action: Text, Cases and Commentary (2005) chs 8-14;
Aronson et al, above n 87, chs 4-9.
101
102
103
104
105
Chapter VII Powers and the Rule of Law
103
It is not suggested that all of those grounds of judicial review provide the basis
for jurisdictional error. The question as to what constitutes jurisdictional error must
be answered by examining an inviolable, imperative or indispensable condition on
the exercise of power in the light of the structure and provisions of the Charter as a
whole.
V. Jurisdictional Constraints upon Chapter VII Powers
(a) Duty to act within the power
Powers of the superior authority first and foremost must be exercised only with
respect to certain subject-matter prescribed by the constituent instrument.106 The
applicability of this doctrine is confirmed by reference to the Admission Case where
the ICJ held that ‘[t]he political character of an organ cannot release it from the
observance of the treaty provisions established by the Charter when they constitute
limitations on its powers or criteria for its judgment’.107 Distinctions have to be
made in respect of the UN between the competence of the organisation and the
competence of an organ such as the Security Council, 108 and also between the
competence of an organ and its jurisdiction to exercise certain powers conferred by
the Charter. The first distinction is important in that the implied power theory
applies to international organisations that possess a distinct legal personality,109 and
therefore it should not be used as a ground for the expansive use of Chapter VII
powers. The second distinction signifies the wider scope of the Security Council’s
competence as opposed to its jurisdiction to exercise Chapter VII powers. In other
words, there are circumstances where the Security Council is authorised to seize a
matter but is restrained from invoking Chapter VII powers.
As noted above, the Council’s general competence under article 24(2) of the
Charter may well provide a residual legal ground for performing a wider variety of
functions than those specified in the Charter.110 The unspecified functions may not
necessarily fall within the purview of Chapter VII of the Charter. The Security
Council may take unauthorised action even in acting within its general competence
when it exceeds the powers conferred by the Charter, thereby committing a
jurisdictional error. The scope of authorised powers can be ascertained by
106
107
108
109
110
A El-Erian, ‘The Legal Organization of International Society’ in M Sorensen (ed),
Manual of Public International Law (1968) 55, 75, cited in Brownlie, above n 97,
215.
Conditions of Admission of a State to Membership in the United Nations (Article 4 of
the Charter) (Advisory Opinion) [1948] ICJ Rep 57, 64.
For this distinction see, eg, R Bernhardt, ‘Ultra Vires Activities of International
Organizations’ in J Makarczyk (ed), Theory of International Law at the Threshold of
the 21st Century: Essays in Honour of Krzysztof Skubiszewski (1996) 599, 602-3;
F Morgenstern, ‘Legality in International Organizations’ (1976-77) 48 British Year
Book of International Law 241, 246-51.
See generally, J Makarczyk, ‘The International Court of Justice on the Implied Powers
of International Organizations’ in J Makarczyk (ed), Essays in International Law in
Honour of Judge Manfred Lacks (1984) 501; M Rama-Montaldo, ‘International Legal
Personality and Implied Powers of International Organizations’ (1970) 44 British Year
Book of International Law 111.
See above n 54.
104
Australian Year Book of International Law Vol 26
(a) implicit limitations inherent in the structure of the Charter, and (b) the purpose
of the powers, which is separately examined in the next subsection.
The Security Council is not authorised to exercise Chapter VII powers in cases
where it is only authorised to make recommendations. It would otherwise run
counter to the travaux préparatoires of the Charter where it was assured that
recommendations made by the Security Council possessed no obligatory effect for
the parties.111 The Security Council is thus precluded from exercising its powers to
impose terms or means of dispute settlement, which can only be recommended
under articles 36 and 37 of the Charter. This implied limitation applies even in
cases where a situation is regarded as a threat to the peace within the meaning of
article 39, 112 as Chapter VII powers should only be used to remove the threat,
leaving the settlement in the hands of the parties.113 Such recommendations must
also be in conformity with the rules of international law, inasmuch as the reference
to ‘the principles of justice and international law’ set out in article 1(1) as one of the
fundamental purposes of the Charter applies directly to the ‘adjustment or
settlement of international disputes or situations’. 114 It is thus arguable that the
demarcation of the Iraq-Kuwait border and the demand for handing over terrorist
suspects in contravention of the existing rules of international law fell outside
Chapter VII powers.115
On the other hand, the confirmation of Iraqi liability by Security Council
Resolution 687 arising from its invasion of Kuwait itself could well be characterised
as the proper use of Chapter VII powers, in so far as it does not constitute an
imposition of the terms of settlement. 116 Likewise, the mandatory disarmament
111
112
113
114
115
116
See UNCIO, vol 12, 162. The assurance was made by the US and UK delegates in
response to the Belgian proposal for recourse to judicial review of the Security
Council’s recommendations and decisions when they infringe on the essential rights of
a state party: UNCIO, vol 3, 332.
Art 39 authorises the Council to make recommendations including arguably those
under Chapter VI, but it does not allow for the enforcement of those recommendations:
see B Conforti, The Law and Practice of the United Nations (3rd and revised ed,
2005) 179.
One possible explanation for rejecting this view lies in the functional link or a
combination of powers between Chapter VI and Chapter VII, which could arguably
allow for the enforcement of a proposed pacific settlement: N D White, Keeping the
Peace: The United Nations and the Maintenance of International Peace and Security
(2nd ed, 1997) 94-5. But see Arangio-Ruiz, above n 8, 655-82.
See UNCIO, vol 6, 453-54 (Report of Committee I/1, Doc No 944).
It is interesting to note that the issue with regard to the Lockerbie affair was eventually
settled as a result of peaceful methods: see, Letter dated 15 August 2003 from the
Chargé d’affaires a.i. of the Permanent Mission of the Libyan Arab Jamahiriya to the
United Nations addressed to the President of the Security Council, 15 August 2003,
UN Doc S/2003/818; ICJ Press Release 2003/29, 10 September 2003, available via
<http://www.icj-cij.org> (last visited 26 March 2007); M Plachta, ‘The Lockerbie
Case: The Role of the Security Council in Enforcing the Principle Aut Dedere Aut
Judicare’ (2001) 12 European Journal of International Law 125, 131-36.
See B Graefrath, ‘Iraqi Compensations and the Security Council’ (1995) 55 Zeitschrift
für ausländische öffentliches Recht und Völkerrecht 1, 16-20. However, it does not
preclude the Security Council and its subsidiary organ from committing themselves
jurisdictional error in establishing and handling the compensation regime: see, below
Chapter VII Powers and the Rule of Law
105
program imposed upon Iraq can be justified on the basis of the Security Council’s
general power to formulate plans for disarmament under article 26 as well as article
24, 117 as article 26 is not expressly confined to recommendations. 118 The
mandatory disarmament is contrasted with other mandatory settlements imposed on
Iraq that should have fallen within articles 36 and 37 of the Charter.119 It is one
thing that the Security Council acted within the jurisdiction in confirming liability
for war compensation or imposing mandatory disarmament, but it is a different
matter whether the establishment and implementation of those regimes remained
within the jurisdiction. The latter question requires a separate inquiry.
In cases where the Security Council delegates its powers to a subsidiary organ,
the organ cannot exercise a power that the Security Council does not itself
possess.120 While delegation itself is subject to certain restrictions and conditions,
subsidiary organs are also required to act within power once powers are
delegated.121 The limitations upon the exercise of powers are even stricter, varying
according to the nature of the delegated powers. It has been suggested, for example,
that when a subsidiary organ exercises judicial functions, it should only be
exercisable to the extent that it gives due effect to the principles of independence,
impartiality and even-handedness.122 The issue has also been raised for establishing
an effective system of control over delegated powers.123
The scope of delegated powers may not easily be ascertained in cases where the
mandates and the nature of functions are ambiguous. The controversy over the
legality of the UN Compensation Commission’s work can, for example, be ascribed
to the ambiguity of the nature of delegated powers. It may well make sense if the
work was part of the sanction against Iraq to enforce certain fundamental norms,124
117
118
119
120
121
122
123
124
nn 124-126. See generally B Graefrath and M Mohr, ‘Legal Consequences of an Act
of Aggression: The Case of the Iraqi Invasion and Occupation of Kuwait’ (1992) 43
Austrian Journal of Public International Law 109.
Cf T Marauhn, ‘The Implementation of Disarmament and Arms Control Obligations
Imposed upon Iraq by the Security Council’ (1992) 52 Zeitschrift für ausländische
öffentliches Recht und Völkerrecht 781, 782-83.
Contra, Happold, above n 51, 605-7.
White, above n 113, 98.
For details, see the leading literature in this field written by D Sarooshi, The Untied
Nations and the Development of Collective Security: The Delegation by the UN
Security Council of Its Chapter VII Powers (1999) 20-32.
See, eg, Prosecutor v Tihomir Blaskic (Objection to the Issue of Subpoenae Duces
Tecum) (Appeals Chamber) (1998) 110 ILR 723, 688, 697-98 [25].
See de Wet, above n 7, 349; S Lamb, ‘The Powers of Arrest of the International
Criminal Tribunal for the Former Yugoslavia’ (2000) 71 British Year Book of
International Law 165, 196.
See, eg, UN SCOR (2963rd mtg), UN Doc S/PV.2963 (1990), 33 (Yemen); UN SCOR
(3145th mtg), UN Doc S/PV.3145, 7 (Zimbabwe). A theoretical aspect of this question
is fully examined by Sarooshi, above n 120, 153-66; N Blokker, ‘Is the Authorization
Authorized? Powers and Practice of the UN Security Council to Authorize the Use of
Force by “Coalitions of the Able and Willing”’ (2000) 11 European Journal of
International Law 541.
See, eg, A Gattini, ‘The UN Compensation Commission: Old Rules, New Procedures
on War Reparations’ (2002) 13 European Journal of International Law 161.
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whereas it might have constituted jurisdictional error if the work was characterised
as enforcing war compensation claims on behalf of victims,125 or as an adjudicatory
institution delivering practical justice to the disputes among claimants,126 both of
which should have been settled by peaceful means. A similar question was also
raised with regard to the nature of Resolution 1267 Sanctions Committee. 127 In
such cases, it is difficult to decide whether subsidiary organs are acting outside the
authorised jurisdiction.
(b) Duty to act for proper purposes
Another limb of the inner limit to discretionary powers lies with the duty to act for
proper purposes. It has been an established rule that discretionary powers given to
the executive under a statute must be exercised for the purpose for which they were
granted and not for an ulterior purpose.128 It is arguable in the same vein that the
Security Council is prohibited from exercising discretionary Chapter VII powers for
purposes other than the one for which the powers are granted. The proper purpose
of Chapter VII is found in article 39 of the Charter: ‘to maintain or restore
international peace and security’.129 It has been suggested that Chapter VII powers
cannot be used for the purpose of overthrowing a government or the partition of a
sovereign state.130 Security Council resolutions adopted under Chapter VII for an
improper purpose, when the deviation is obvious, would constitute jurisdictional
error.
It is legitimately expected, although it is by no means mandatory, that
purpose(s) of each action can be found in explicit terms in the preamble to
enabling resolution. Serious doubt was expressed about the legitimacy
Resolutions 1422 and 1487, 131 whereby the Council addressed a general
125
126
127
128
129
130
131
the
the
of
(as
See, eg, Graefrath, above n 116, 26-34; D J Bederman, ‘The United Nations
Compensation Commission and the Tradition of International Claims Settlement’
(1994) 27 New York University Journal of International Law and Politics 1, 3-15;
E J Garmise, ‘The Iraqi Claims Process and the Ghost of Versailles’ (1992) 67 New
York University Law Review 840.
See, eg, D D Caron and B Morris, ‘The UN Compensation Commission: Practical
Justice, Not Retribution’ (2002) 13 European Journal of International Law 183.
See, eg, D Dyzenhaus, ‘The Rule of (Administrative) Law in International Law’
(2005) 68 Law and Contemporary Problems 127,140-52; N Krisch, ‘The Rise and Fall
of Collective Security: Terrorism, US Hegemony, and the Plight of the Security
Council’ in C Walter et al (eds), Terrorism as a Challenge for National and
International Law: Security versus Liberty? (2004) 879, 887-90; J E Alvarez,
‘Hegemonic International Law Revisited’ (2003) 97 American Journal of
International Law 873, 876-78.
See, eg, Secretary of State for Education and Science v Tameside Metropolitan
Borough Council [1977] AC 1014, 1046-47 (Lord Wilberforce); Congreve v Home
Office [1976] 1 QB 629, 649 (Lord Denning MR); Thompson v Council of the
Municipality of Randwick (1950) 81 CLR 87, 105-6 (Williams, Webb and Kitto JJ).
UN Charter, art 39. See also E Davidsson, ‘The U.N. Security Council’s Obligations
of Good Faith’ (2003) 15 Florida Journal of International Law 541, 553.
See Namibia Case, above n 54, 294 [115] (Judge Fitzmaurice dissenting opinion);
Brownlie, above n 97, 219.
SC Res 1422 (2002); SC Res 1487 (2003). The resolutions were adopted in response
to art 16 of the Rome Statute of the International Criminal Court (17 July 1998, 2187
Chapter VII Powers and the Rule of Law
107
opposed to specific) request to the International Criminal Court (ICC) to defer
investigation or prosecution of any case involving personnel from non-member
states over acts or omissions relating to a UN operation without specifying what
constitutes a threat to the peace.132 The purpose was presumably to achieve through
back doors the blanket exemption from ICC jurisdiction that the United States
sought for itself during the negotiations on the Rome Statute. The determination that
it is in the interests of international peace and security is surely not significant
enough to invoke Chapter VII. 133 The failure of identification as to what the
resolutions aimed to achieve for the maintenance or restoration of international
peace and security in those resolutions therefore indicates a manifest error of the
Security Council in using its discretionary powers under Chapter VII for an
improper purpose.134
Exactly what an action aims to achieve is often left ambiguous as a result of
political compromise reached under pressure. An example is the objective of the
UN Interim Mission in Kosovo (UNMIK) to promote the establishment of
‘substantial autonomy and self-government in Kosovo’.135 Not only was the future
status of Kosovo ambiguous,136 but also the extent to which it could be related to
the maintenance or restoration of international peace and security was far from
clear.137 Ambiguity of objectives makes it difficult to decide whether jurisdictional
error was committed, which necessarily requires an inquiry as to what extent the
stated objectives are truly related to the proper purpose of Chapter VII powers and
how the adequacy of the stated objectives is to be assessed.
132
133
134
135
136
137
UNTS 3), which provides that: ‘No investigation or prosecution may be commenced or
proceeded with under this Statute for a period of 12 months after the Security Council,
in a resolution adopted under Chapter VII of the Charter of the United Nations, has
requested the Court to that effect; the request may be renewed by the Council under
the same conditions’. However, it is not indicated that the Security Council address a
general request without identifying a specific threat to the peace.
For details see, eg, C Fritsche, ‘Security Council Resolution 1422: Peacekeeping and
the International Criminal Court’ in J A Frowein et al (eds), Verhandeln für den
Frieden – Negotiating for Peace, Liber Amicorum Tono Eitel (2003) 107; C Stahn,
‘The Ambiguities of Security Council Resolution 1422’ (2003) 14 European Journal
of International Law 85; R Cryer and N D White, ‘The Security Council and the
International Criminal Court: Who’s Feeling Threatened?’ (2002) 8 Yearbook of
International Peace Operations 143.
See SC Res 1422 (2002), preamble; SC Res 1487 (2003), preamble.
Those resolutions could also be based on a manifest error of jurisdictional fact: see
part V(c).
SC Res 1244 (1999), preamble and [10]-[11].
See S Chesterman, You, The People: The United Nations, Transitional Administration,
and State-Building (2004) 132; A Yannis, ‘Kosovo under International
Administration’ (2001) 43(2) Survival 31, 34-5.
It is argued, however, that the way in which it operated ran counter to the principle of
self-determination embodied in art 1(3) of the Charter and thus went beyond the outer
limit set by the Charter: see Daglish and Nasu, above n 65, 92-6.
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(c) Jurisdictional fact
There is no doubt that Chapter VII powers, no matter how far they are stretched, are
conditioned upon the Security Council’s determination under article 39 of the
Charter regarding the existence of a threat to the peace, a breach of the peace or an
act of aggression.138 Yet the question has been posed whether there are any limits
upon the Security Council with regard to the factual determination under article 39.
There are two schools of thought: some argue that the determination is entirely
within the discretion of the Security Council and therefore is not reviewable;139 and
others urge more principled determinations, claiming that a threat to the peace and
security cannot be artificially created as a pretext for the realisation of ulterior
purposes.140 Regardless of the correct position, it is alarming that the ‘threat to the
peace’ has increasingly been losing its original meaning,141 and becoming a mere
password permitting recourse to Chapter VII.
Attention should be drawn to two points of distinction. First, non-justiciability
of Security Council determinations under article 39 of the Charter does not
necessarily mean that the Security Council is free from legal restrictions in making
such determinations. 142 Second, and more importantly, even if article 39
determinations are not justiciable on their merits, it would not prevent the Court
from examining the jurisdictional fact, 143 based on which the Security Council
exercises its discretionary power to make determination under article 39 of the
Charter. While the common law position has been negative towards fact review,144
factual issues have been reviewed when they form a prerequisite for the exercise of
138
139
140
141
142
143
144
For this very reason, Nolte pointed to SC Res 1160 (1998) as a clear example of an act
ultra vires: see G Nolte, ‘The Limits of the Security Council’s Powers and Its
Functions in the International Legal System: Some Reflections’ in M Byers (ed), The
Role of Law in International Politics: Essays in International Relations and
International Law (2000) 315, 316.
Lockerbie Case, above n 56, 66 (Judge Weeramantry dissenting opinion); Application
of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v Serbia and Montenegro) (Further Request for the
Indication of Provisional Measures) [1993] ICJ Rep 325, 439 [98]-[99] (Judge ad hoc
Lauterpacht separate opinion). See also Higgins, above n 23, 150.
See Gowlland-Debbas, above n 79, 94; Brownlie, above n 97, 219; Graefrath, above
n 74, 195-97, 199; Kirgis, above n 40, 517.
The expansion of the concept has been studied elsewhere: see, eg, K Wellens, ‘The
UN Security Council and New Threats to the Peace: Back to the Future’ (2003) 8
Journal of Conflict and Security Law 15; T M Franck, above n 28, 40-44; I Österdahl,
Threat to the Peace: The Interpretation by the Security Council of Article 39 of the
UN Charter (1998); R Cryer, ‘The Security Council and Article 39: A Threat to
Coherence?’ (1996) 1 Journal of Armed Conflict Law 161; P H Kooijmans, ‘The
Enlargement of the Concept “Threat to the Peace”’ in R-J Dupuy (ed), The
Development of the Role of the Security Council (1993) 111.
See H Lauterpacht, The Function of Law in the International Community (1933) 386.
There are a number of different usages of this term: see, M Aronson, ‘The Resurgence
of Jurisdictional Facts’ (2001) 12 Public Law Review 17, 21-4. The term is used here
narrowly as the existence of requisite facts that provide a basis for the Security Council
forming a determination under art 39.
See, eg, Yusuf, above n 91, 344 [63] (McHugh, Gummow and Hayne JJ); Australian
Broadcasting Tribunal v Bond (1990) 170 CLR 321, 340-41 (Mason CJ).
Chapter VII Powers and the Rule of Law
109
power, especially in cases where the prerequisite is of special significance,145 where
no evidence is proffered to support factual determination,146 and arguably where
the fact-finding process is found to be irrational or illogical.147 It is thus arguable
that Security Council action under Chapter VII cannot satisfy the prerequisite when
it is based on an unsupported, speculative or irrational finding of a threat to the
peace, given that such determination is the most important prerequisite for the
exercise of Chapter VII powers. This limitation is distinguished from fact review in
that it does not interfere with the merits of fact finding, but rather focuses on how
the finding is formed.
The Security Council’s decisions in relation to the Lockerbie affair provided a
conspicuous ground for challenging their validity on the basis of an error of
jurisdictional fact.148 The evidence in support of charging two Libyan nationals for
terrorist acts was collected solely by the United States and United Kingdom
authorities and was never made available to the public.149 It was partly against this
backdrop that the issue was raised as to whether the Security Council could enforce
without a trial its decision against Libya on the premise that Libya was involved in
and responsible for the terrorist act. 150 It is arguable that the Council’s
determination under article 39 of the Charter with regard to Libya was based on an
unsupported, speculative or irrational finding, in so far as it relied on prejudiced
information collected with subjective motives. 151 In a similar scenario, the
identification of a terrorist group in Resolution 1530 was indeed found to be a
mistake resulting from relying on objectively untested information.152
Investigation undertaken at the initiative of the Security Council under article 34
of the Charter is worthy of note in this respect, in that it can provide an authoritative
145
146
147
148
149
150
151
152
See, eg, Corporation of the City of Enfield v Development Assessment Commission
(2000) 199 CLR 135, 150-51 [37]-[38]; Buck v Comcare (1999) 66 FCR 359, 364-65
(Finn J).
See, eg, Minister for Immigration and Multicultural and Indigenous Affairs v SGLB
(2004) 207 ALR 12, 21 (Gummow & Hayne JJ); SFGB v Minister for Immigration
and Multicultural and Indigenous Affairs (2003) 77 ALD 402, 407.
See Re Minister for Immigration and Multicultural Affairs; ex parte Applicant
S20/2002 (2003) 198 ALR 59, 62 [9] (Gleeson CJ), 71-73 [53]-[60] (McHugh and
Gummow JJ), 86-90 [124]-[138] (Kirby J); NABE v Minister for Immigration and
Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, 17-21 [55]-[63]; cf
Bond, above n 144, 356 (Mason CJ). See also G Airo-Farulla, ‘Rationality and Judicial
Review of Administrative Action’ (2000) 24 Melbourne University Law Review 543,
561-68.
SC Res 731 (1992); SC Res 748 (1992).
See M Weller, ‘The Lockerbie Case: A Premature End to the “New World Order”?’
(1992) 4 African Journal of International and Comparative Law 302, 313.
See Lockerbie Case, above n 56, 86 (Judge Ajibola dissenting opinion), 97 (Judge
el-Kosheri dissenting opinion). See also, Weller, above n 149.
McGinley, above n 70, 599. Although one of the terror suspects was ultimately
convicted, it does not support the Council’s original finding because (i) the
jurisdictional fact concerns the formation, rather than the merits, of the finding and (ii)
the conviction of the suspects does not necessarily prove that Libya was involved in or
responsible for the terrorist act.
See T O’Donnell, ‘Naming and Shaming: The Sorry Tale of Security Council
Resolution 1530 (2004)’ (2006) 17 European Journal of International Law 945.
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and objective basis for Security Council determination. 153 Although the UN
Monitoring, Verification and Inspection Commission (UNMOVIC) in Iraq was not
based on article 34 of the Charter, its report provided a sound ground for denying
jurisdictional fact by stating that they did not find evidence showing that programs
of weapons of mass destruction were continued or resumed in Iraq. 154 Even
assuming that the Security Council has non-justiciable discretion to decide whether
the situation is a threat to the peace and therefore warrants the use of force, it is
difficult to see the way in which the Council reaches a finding adverse to the
information that has been objectively and independently assessed as not being
unsupported, speculative or irrational. Had the Security Council adopted a
resolution authorising the use of force by coalition forces against Iraq, it might have
constituted jurisdictional error on the basis of jurisdictional fact.
(d) Considerations: relevance, reasonableness and rationality
Disagreement has also existed as to what extent the Security Council has
discretionary powers in deciding what measures are appropriate to avert a threat to
the peace, a breach of the peace, or an act of aggression. At one pole is the virtually
unlimited discretion of the Security Council’s power in this respect.155 At the other
pole it is improper for the Security Council to impose upon a state Chapter VII
measures having no reasonable relationship with the determination under article 39
of the Charter.156 Apart from the outer limit set by the purposes and principles of
the Charter, 157 are there any considerations that the Security Council must take
account of in adopting measures under Chapter VII?
First, one may argue that the Security Council’s decisions are invalid when it
has taken an irrelevant consideration into account or failed to take a relevant
consideration into account. In the absence of express limitation, ‘the questions what
are, and what are not, legitimate considerations for its exercise must always be
disputable and open to wide differences of opinion’.158 Nowhere in the Charter can
be found any specific considerations that must be taken into account or that must
not be taken into account.
153
154
155
156
157
158
For details, see H Nasu, ‘Investigation Proprio Motu for the Maintenance of
International Peace and Security’ (2004) 23 Aust YBIL 105.
See Thirteenth Quarterly Report of the Executive Chairman of the United Nations
Monitoring, Verification and Inspection Commission in accordance with Paragraph 12
of the Security Council Resolution 1284 (1999), 30 May 2003, UN Doc S/2003/580,
[7]-[16]. It was subsequently revealed that the US intelligence agencies made a
number of mistakes and miscalculations as to whether Iraq possessed weapons of mass
destruction: Report of the US Intelligence Community’s Prewar Intelligence
Assessments on Iraq, 7 July 2004, <http://www.gpoaccess.gov/serialset/creports/
iraq.html>.
See Oosthuizen, above n 55, 554-55.
See Arangio-Ruiz, above n 8, 642.
Above n 9.
R v Trebilco; ex parte F S Falkiner & Sons Ltd (1936) 56 CLR 20, 32 (Dixon J). See
also, Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR
507, 565-66 [188]-[191] (Hayne J); Minister for Aboriginal Affairs v Peko-Wallsend
Ltd (1985) 162 CLR 24, 42 (Mason J).
Chapter VII Powers and the Rule of Law
111
Second, the adequacy of consideration may well provide a different spectrum. It
has been suggested that the Security Council’s measures that have the effect of
overriding the existing rights and obligations of states should be confined to those
instrumental to genuine peace-enforcement measures within the bounds of
reasonableness.159 Yet, the notion of reasonableness in international legal discourse
indicates nothing more than the persistent problem with the legitimacy of an
international legal order and the possibility of diversified and even contradictory
interpretations,160 which may cause more harm than good without being subject to
judicial reasoning.
Third, a more objective assessment is possible by narrowing the focus and
applying the principle of proportionality,161 which requires a rational link between
the legitimate objective and the methods chosen to achieve the objective.162 There
does not seem to be a consensus as to whether the Security Council’s decisions are
bound by the general principle of proportionality. Some argue that proportionality is
irreconcilable with the flexibility that the Security Council needs and is entitled to
in order to engage in prompt and effective action.163 Others find the principle of
proportionality applicable by regarding the words ‘to restore international peace
and security’ in article 39 of the Charter as the yardstick for determination.164 In
any event, the possibility remains that this criterion may further develop and help in
judging the appropriateness of Chapter VII measures more objectively. It is unlikely
nevertheless that an unreasonable or disproportionate use of Chapter VII powers
leads to a jurisdictional error, unless the requirement is established as mandatory
and is subject to an objective judgment on substantive merits.
159
160
161
162
163
164
See Arangio-Ruiz, above n 8, 625-30, 642. The classic English notion of Wednesbury
unreasonableness – a decision is impugned if it is so unreasonable that no reasonable
authority could ever have come to it (Associated Provincial Picture Houses Ltd v
Wednesbury Corp [1948] 1 KB 223, 229-30) – has lost its practical significance in
England and Australia due not least to its restrictiveness.
See O Corten, ‘The Notion of “Reasonable” in International Law: Legal Discourse,
Reason and Contradictions’ (1999) 48 International and Comparative Law Quarterly
613, 618-20.
This in fact represents a recent trend in England: see, eg, R (Alconbury Developments
Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 All
ER 929, 976 [51] (Lord Slynn). See also New South Wales v Macquarie Bank Ltd
(1992) 30 NSWLR 307, 321-25 (Kirby P); cf Honourable Justice Bruce v Honourable
Justice Cole (1998) 45 NSWLR 163, 185.
R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, 547-58.
Proportionality has been used in a variety of settings both in international and
domestic contexts: see, eg, D W Greig, ‘Reciprocity, Proportionality, and the Law of
Treaties’ (1994) 34 Virginia Journal of International Law 295, 296-97, 322-27.
See C Gray, ‘A Crisis of Legitimacy for the UN Collective Security System?’ (2007)
56 International and Comparative Law Quarterly 157, 165-66; de Wet, above n 7,
185.
See J Gardam, Necessity, Proportionality and the Use of Force by States (2004)
199-212; Angelet, above n 9, 72-4; J Gardam, ‘Legal Constraints on Security Council
Military Enforcement Action’ (1996) 17 Michigan Journal of International Law 285,
307-9. See also In Larger Freedom: Towards Development, Security and Human
Rights for All, UN Doc A/59/2005, [126] (2005).
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(e) Procedural fairness
In broad terms, procedural fairness requires that persons be afforded a fair and
unbiased hearing before decisions are taken that affect them.165 It is unreasonable
to expect that the Security Council, even if acting in an adjudicatory capacity,
would ensure procedural fairness to the same extent that courts do.166 However, the
Charter in fact provides some minimum procedural requirements. For example,
article 31 of the Charter gives member states a chance to participate in the
discussion of any question that specially affects the interests of a state.167 Article 32
furthermore requires the Security Council to invite parties, in a dispute under
consideration, for discussion whether the state is a UN member or non-member
state.168 The interest of a state in participation within the meaning of article 31 is
not confined to resolutions having a specific effect on the state, but applies
generally even to those having the same effect on other members.169 Although the
participation is in practice subject to the discretion of the Security Council, it
arguably provides states with the right to participate and to be heard, in so far as the
matter affects vital interests of all member states,170 especially when it involves a
quasi-legislative or quasi-judicial determination. 171 This procedural requirement
has been generally observed,172 and has even seen the expansion of its scope.173
Another possible minimum procedural safeguard is the nemo judex in sua causa
principle, 174 underlying the second clause of article 27(3) whereby a party to a
165
166
167
168
169
170
171
172
173
174
See generally Aronson et al, above n 87, 369-617; de Smith et al, above n 87,
375-548; Creyke and McMillan, above n 105, 513-96; Douglas, above n 105,
479-629; I Holloway, Natural Justice and the High Court of Australia: A Study in
Common Law Constitutionalism (2002).
See Koskenniemi, above n 47, 345-46.
Art 31 of the Charter states that: ‘Any Member of the United Nations which is not a
member of the Security Council may participate, without vote, in the discussion of any
question brought before the Security Council whenever the latter considers that the
interests of that Member are specially affected.’ See also rules 37-39 of the Provisional
Rules of Procedural of the Security Council, UN Doc S/96/Rev.7 (1982), reproduced
in S D Bailey and S Daws, The Procedure of the UN Security Council (3rd ed, 1998)
441-54.
Art 32 of the Charter partly provides that: ‘Any Member of the United Nations which
is not a member of the Security Council or any state which is not a Member of the
United Nations, if it is a party to a dispute under consideration by the Security
Council, shall be invited to participate, without vote, in the discussion relating to the
dispute.’ The requirement is mandatory, yet dependent upon the Security Council’s
determination as to whether the matter under consideration is in the nature of a
dispute: Namibia Case, above n 54, 22-3.
R Dolzer, ‘Article 31’ in Simma (ed), above n 23, 573, 576-77.
See Talmon, above n 82, 187.
See E Lauterpacht, Aspects of the Administration of International Justice (1991) 46-8.
See Bailey and Daws, above n 167, 156-59.
See eg, J Prantl, The UN Security Council and Informal Groups of States:
Complementing or Competing for Governance? (2006); N Sybesma-Knol, ‘The
Continuing Relevance of the Participation of Observers in the Work of the United
Nations’ in K Wellens (ed), International Law: Theory and Practice, Essays in
Honour of Eric Suy (1998) 371, 384-86.
‘No one can be judge of his/her own case.’ The applicability of this principle in
Chapter VII Powers and the Rule of Law
113
dispute before the Security Council, whether a permanent member or not, may not
vote on resolutions taken under Chapter VI.175 Yet this compulsory abstention does
not extend to decisions under Chapter VII. Nor does it apply to matters
characterised as a ‘situation’ rather than a ‘dispute’ or to a dispute to which the
permanent member is allegedly not a party.176 Given more frequent recourses to
Chapter VII these days, the permanent members can easily evade compulsory
abstention by simply bringing the matter under Chapter VII or even by not
indicating whether the resolution in question is being adopted under Chapter VI or
Chapter VII.177 The expansive application of Chapter VII powers, particularly to
the settlement of disputes such as the territorial dispute between Iraq and Kuwait
and the Lockerbie dispute over the surrender of two terrorist suspects,178 may well
cause concern in the light of fairness. Even if compulsory abstention should extend
to some of Chapter VII decisions, difficulties remain as to the determination of a
‘party’ to the dispute and the characterisation of the matter at issue. In any event,
procedurally defective decisions on this basis are unlikely to constitute
jurisdictional error unless that particular affirmative vote by a party to the dispute
was decisive to the adoption of the resolution.
VI. Consequences of Jurisdictional Error and Accountability
The Security Council in acting under Chapter VII is deemed to have committed
jurisdictional error when it makes a decision in contravention of other provisions of
the Charter, for apparently improper purposes, or based on an unsupported,
speculative or irrational finding for the purpose of article 39 of the Charter. It is
also arguable that the blocking of other member states from participating in
discussion when the Security Council performs a quasi-legislative or quasi-judicial
function could constitute jurisdictional error by virtue of the breach of procedural
fairness. Purported decisions based on jurisdictional error are rendered null and
void ab initio – absolute nullity – as opposed to voidable.179 Jurisdictional error
175
176
177
178
179
international law was upheld in Article 3, Paragraph 2, of the Treaty of Lausanne
(Frontier between Turkey and Iraq) [1925] PCIJ (Series B) No 12, 31-32.
Art 27(3) of the Charter reads that: ‘Decisions of the Security Council on all other
[non-procedural] matters shall be made by an affirmative vote of nine members
including the concurring votes of the permanent members; provided that, in decisions
under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall
abstain from voting.’ For a detailed textual analysis, see B Simma, S Brunner and
H-P Kaul, ‘Article 27’ in Simma (ed), above n 23, 476, 501-7.
Those were typical ways to escape from compulsory abstention: see, eg, H Köchler,
Democracy and the International Rule of Law: Propositions for an Alternative World
Order (1995) 103-4; R Higgins, ‘The Place of International Law in the Settlement of
Disputes by the Security Council’ (1970) 64 American Journal of International Law 1,
1-2. See also Bailey and Daws, above n 167, 250-57; Y Z Blum, Eroding the United
Nations Charter (1993) 207-16.
Reisman, above n 62, 93.
See, eg, Greig, above n 81, 199-200 (in relation to the Lockerbie Case).
See, eg, Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR
597, 616 [53] (Gaudron and Gummow JJ). This distinction is applicable to international
law: R Y Jennings, ‘Nullity and Effectiveness in International Law’ in Cambridge Essays
in International Law: Essays in Honour of Lord McNair (1965) 64, 65-8.
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committed by subsidiary organs or member states in implementing the Council’s
resolution, on the other hand, may not necessarily render purported decisions null
and void ab initio.180 To decide the legal consequences of jurisdictionally flawed
decisions in the course of implementing a resolution, 181 it must be examined
whether it was a purpose of the resolution that an act done in breach of the
provision should be invalid.182
Those grounds of jurisdictional error may not always provide clear-cut
boundaries against which the validity of Security Council decisions can be
objectively assessed. As examined above, for example, ambiguity may remain with
the mandates, the nature of delegated functions, the extent to which the stated
objectives are truly related to the proper purpose of Chapter VII powers, and with
how the adequacy of the stated objectives is to be assessed. When the objective or
nature of decisions under Chapter VII is clearly stated or can be reasonably
inferred, the grounds of jurisdictional error as identified above pose a ‘hard-edged’
question that leaves no room for legitimate disagreement, as opposed to a
‘soft-edged’ question that embraces legitimate disagreement such as what
constitutes reasonable or proportionate measures. 183 As long as jurisdictional
elements as identified above are clarified in resolutions, formal requirements whose
breach would result in jurisdictional error, as opposed to substantive requirements,
can provide clear-cut boundaries for criteria against which the validity of Security
Council decisions can be more objectively assessed. Apart from jus cogens, which
renders contradicting Security Council decisions null and void ab initio, any
substantive criteria – such as reasonableness and proportionality – cannot render
decisions invalid without being so assessed by an independent judicial body.184
It is an established principle in the field of the law of international organisations
that, but for the possibility of an act being ultra vires, the decision of an organ
carries with it a prima facie presumption of validity. 185 Although attempts have
been made to extend judicial control over the legality of Security Council decisions,
practical difficulties remain unless recourse is had to an advisory opinion or to
180
181
182
183
184
185
But see B O’Donnell, ‘Jurisdictional Error, Invalidity and the Role of Injunction in
s 75(v) of the Australian Constitution’ (2007) 28 Australian Bar Review 291, 296-99
(proposing that jurisdictional error be ascertained by looking at the consequences of an
error).
This was envisaged as a second step in the Hickman principle: see Plaintiff S157/2002,
above n 84, 31-2 [20]-[22] (Gleeson CJ), 43 [65]-[66] (Gaudron, McHugh, Gummow,
Kirby and Hayne JJ); R v Murray; ex parte Proctor (1949) 77 CLR 387, 400
(Dixon J).
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355,
388-91 [91]-[93] (McHugh, Gummow, Kirby and Hayne JJ).
The Hon Justice B J Preston, ‘Judicial Review of Illegality and Irrationality of
Administrative Decisions in Australia’ (2006) 28 Australian Bar Review 17, 20-21.
The distinction is characterised by Osieke as between procedural ultra vires and
substantive ultra vires: E Osieke, ‘The Legal Validity of Ultra Vires Decisions of
International Organizations’ (1983) 77 American Journal of International Law 239,
243-47.
See above n 56. See also, J Crawford, ‘Marbury v Madison at the International Level’
(2004) 36 George Washington International Law Review 505, 510.
Chapter VII Powers and the Rule of Law
115
contentious proceedings where the legality of a resolution forms an incidental
subject-matter. 186 Critics may argue that, in the absence of judicial review, the
criteria examined above including the notion of jurisdictional error serve no
meaningful purpose in restricting the Security Council’s powers under Chapter VII.
Yet the requirement that discretionary powers be legally authorised does not
necessarily entail the requirement that all discretionary powers be judicially
reviewable. 187 Even in the absence of an appropriate court having compulsory
jurisdiction over the legality of Security Council action, invalidity of Security
Council action may exist when the action constitutes an absolute nullity.188
Even if the ICJ is unable to establish its jurisdiction over the issue or to find it
justiciable, the jurisdictional issue can still be raised by member states, which
arguably reserve the right of ‘last resort’ to raise opposition.189 Such opposition
questioning the validity of decisions will carry more weight when it is so decided in
domestic courts. 190 When opposition is raised, the Security Council should be
prepared, though it is not explicitly so mandated under the Charter, to explain and
justify the exercise of Chapter VII powers not only to member states but more
widely to the international community. This proposition is consistent with recent
calls for the greater enhancement of accountability, in the strict sense of the
word,191 both in international and domestic contexts.192
186
187
188
189
190
191
192
For details, see literature cited above n 7.
See T Endicott, ‘The Reason of the Law’ (2003) 48 American Journal of
Jurisprudence 83, 87-95.
Certain Expenses Case, above n 56, 221-22 (Judge Morelli separate opinion), 304
(Judge Bustamante dissenting opinion).
See generally N Angelet, ‘Protest against Security Council Decisions’ in K Wellens
(ed), International Law: Theory and Practice, Essays in Honour of Eric Suy (1998)
277; Doebring, above n 10; Bowett, above n 10, 94-101; D Ciobanu, Preliminary
Objections: Related to the Jurisdiction of the United Nations Political Organs (1975)
72-7.
See generally E De Wet and A Nollkaemper, ‘Review of Security Council Decisions
by National Courts’ (2002) 45 German Yearbook of International Law 166, 184-200;
A Reinisch, International Organizations Before National Courts (2000) 70-84.
Accountability in the strict sense of the word indicates the process through which one
side asserting the right to call for the account seeks answers and rectification while the
other side, being separate, external, and accountable to the former, responds to the call:
R Mulgan, ‘ “Accountability”: An Ever-Expanding Concept?’ (2000) 78 Public
Administration 555, 555-56. The accountability of international organisations appears
to have been given much wider meaning: see, eg, International Law Association, Final
Report of the Committee on the Accountability of International Organizations (2004)
available via <http://www.ila-hq.org/html/layout_committee.htm>. However, it
involves confusion between two different categories of unlawful acts of international
organisations – acts of a kind that can also be committed by states and those involving
a reference to the special nature of international organisations deriving all their powers
from a conventional or statutory source, only the latter of which accountability in the
strict sense is concerned about: E Lauterpacht, ‘The Legal Effect of Illegal Acts of
International Organisations’ in Cambridge Essays in International Law: Essays in
Honour of Lord McNair (1965) 88, 89.
See, eg, N Krisch, ‘The Pluralism of Global Administrative Law’ (2006) 17 European
Journal of International Law 247.
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In enhancing the accountability of the Security Council not only to member
states and targeted states but also to the international community as a whole, the
mere reference to Chapter VII would not be sufficient to explain and justify the
validity of the power it exercises. The recent Council action against Iran has in fact
demonstrated the benefit of identifying the specific basis for action so as not to give
any indication that the mandate can be expansively interpreted to authorise military
enforcement measures. 193 International lawyers might have been negligent in
respect of the Security Council’s decisions by not demanding that the Security
Council identify the exact legal basis for its action. The Security Council should be
required to identify (i) the specific legal basis within the Charter, (ii) the purpose(s)
of the action, (iii) the factual basis for the action, (iv) the function that it performs
by the action, and preferably (v) how the specified action can effectively and
reasonably achieve the purpose(s) in compliance with the purposes and principles of
the Charter including human rights norms. By spelling out those details either in the
resolution or in an explanatory memorandum, issues surrounding the validity of
Security Council decisions will be better addressed.
What should be called for is the fostering of the ‘culture of justification’,194
whereby some clear, well-accepted, and legally embedded procedures can be
developed,195 by requiring the Security Council to provide reasons for action. The
political reality that often results in compromise and ambiguity in the wording of
resolutions, important as it may be, should not be seen as an excuse for failing to
justify actions with sufficient clarity. Legal considerations have reportedly had
some bearing on decision-making processes in the Security Council as conveying
the ‘power of the better argument’.196 The ‘power of the better argument’ will carry
more weight in a regularised process of interaction and exchange. Such regularised
procedures can serve primarily for the establishment of alleged nullity of Security
Council decisions but may also address the substantive merits of decisions if the
procedures also play a role as a forum of discussion to develop shared grounds for
assessing the ‘adequacy of justification’.
VII. Conclusion
Chapter VII powers have undergone significant reformulation and expansion during
the past few decades. Although the reference to Chapter VII was first meant to be
nothing more than a general application of enforcement measures or sanctions under
193
194
195
196
See, UN SCOR (5612th mtg), UN Doc S/PV.5612 (2006), 2 (Russia), 8 (Argentina).
See generally M Taggart, ‘Reinventing Administrative Law’ in N Bamforth and
P Leyland (eds), Public Law in a Multi-Layered Constitution (2003) 311, 332-34;
D Dyzenhaus, M Hunt and M Taggart, ‘The Principle of Legality in Administrative
Law: Internationalisation as Constitutionalisation’ (2001) 1 Oxford University
Commonwealth Law Journal 5, 29-32; D Dyzenhaus, ‘Law as Justification: Etienne
Mureinik’s Conception of Legal Culture’ (1998) 14 South African Journal on Human
Rights 11; P Craig, ‘The Common Law, Reasons and Administrative Justice’ (1994)
53 Cambridge Law Journal 282.
L McDonald, ‘The Rule of Law in the “New Regulatory State”’ (2004) 33 Common
Law World Review 197, 218-20. See also Halderman, above n 8, 5-6, 220-27.
See I Johnstone, ‘Security Council Deliberations: The Power of the Better Argument’
(2003) 14 European Journal of International Law 437.
Chapter VII Powers and the Rule of Law
117
articles 41 and 42 of the Charter, it has grown into the standard source of authority
justifying a wide range of Security Council decisions. The expansion of Chapter VII
powers entails the risk of losing flexibility in the Council’s approach to conflict
management, blurring the authorised scope of Chapter VII, and allowing
circumvention of fundamental principles of the Charter. Yet an attempt to limit the
Council’s powers under Chapter VII by simply drawing an analogy to governmental
separation of powers or by requiring an indispensable and genuine link to the
exercise of peace enforcement functions does not provide a satisfactory answer.
This article instead proposed that more systematic criteria be established and
applied against which the Security Council’s wide variety of actions can be more
objectively assessed.
Drawing upon jurisprudence from municipal courts that have developed
principles of judicial review for supposedly unreviewable decisions the notion of
jurisdictional error can be established on the grounds of the duty to act within the
power, the duty to act for proper purposes, jurisdictional fact, and procedural
fairness. These procedural limits provide a systematic set of criteria by reference to
which the jurisdictional limits to Security Council decisions under Chapter VII can
be ascertained. It is thus possible to render null and void ab initio such decisions as
those made in contravention of other provisions of the Charter, for apparently
improper purposes, based on a unsupported, speculative or irrational finding of a
threat to the peace, and arguably in breach of certain fundamental rules of
procedural fairness when the Security Council performs quasi-legislative or
quasi-judicial functions. Difficulties remain when an objective judgment is required
to determine jurisdictional error, due, for example, to ambiguity regarding the aims
of a decision or the nature of action. Yet the development of regularised procedures
by way of fostering a culture of justification may help deal with such difficulties.
The first step towards that end is to enhance the accountability of the Security
Council by requiring it to identify (i) the specific legal basis within the Charter,
(ii) the purpose(s) of the action, (iii) the factual basis for the action, (iv) the function
that it performs by the action, and preferably (v) how the specified action
effectively and reasonably achieve the purpose(s) in compliance with the purposes
and principles of the Charter.
Achieving the supremacy of the rule of law over the discretionary powers of the
Security Council under Chapter VII of the Charter is a fundamental challenge both
to the rule of law and to the effective function of the collective security system. It is
imperative to strike a fair balance between the regulation of Security Council
actions under the rule of law and the effective function of the Security Council for
the purpose of maintaining or restoring international peace and security. Time needs
to be expended on developing a shared understanding as to how the discretion
should be exercised. In the meantime the formal and jurisdictional requirements of
the rule of law provide more objective grounds for restricting Chapter VII actions,
for which the Security Council should be held accountable not only to the UN
member states but also more widely to the international community.